CHAPTER IX. PLEAS. § 124. Definition and Classification of Pleas. - A plea is a pleading which sets up some reason not apparent upon the face of the bill why the defendant should not be obliged to answer the whole or a part thereof. Lord Redesdale defines a plea as "a special answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether the special matter urged by it did not debar the plaintiff from his title to that answer which the bill required." A plea may be to the whole or to a part of the bill." Usually but a single ground of defense can be presented by a plea, which, though it may state more than one fact, must bring the matters in issue to a single point.3 Otherwise, it is open to the charge of duplicity and multifariousness, and will be overruled. But if a bill contain different prayers for relief based upon different grounds, the defendant may file a plea to each part of the relief.5 And in other cases, where great inconvenience can thus be saved, the court may upon motion, after notice to the complainant's solicitor, give special leave to file a double plea, or rather, according to Professor Langdell, two separate pleas, each containing a single defense. Thus, in England, a defendant to a bill for an injunction against the infringement of a patent and for an account was allowed to file a double § 124. 1 Roche v. Morgell, 2 Sch. & London v. Corporation of Liverpool, 3 Lef. 721, 725. 2 Rule 32. 3 Whitbread v. Brockhurst, 1 Brown, Ch. C. 404, 416, note 9; s. c. 2 Ves. & Bea. 154, note; Watkins v. Stone, 2 Simons, 49; Rhode Island v. Massachusetts, 14 Pet. 210, 259; Story's Eq. Pl. § 654. 4 Rhode Island v. Massachusetts, 14 Pet. 210, 259; Gaines v. Mausseaux, 1 Woods, 118; Whitbread v. Brockhurst, 1 Brown, Ch. C. 404, 416, note 9; s. c. 2 Ves. & Bea. 154, note; Corporation of Anst. 738; Watkins v. Stone, 2 Simons, 49; Saltus v. Tobias, 7 J. Ch. (N. Y.) 214; Giant Powder Co. v. Safety Nitro Powder Co., 19 Fed. R. 509; M'Closkey v. Barr, 38 Fed. R. 165; Story's Eq. Pl. §§ 653–655. But see Reissner v. Anness, 12 Off. Gaz. 842; s. c. 3 Bann. & A. Pat. Cas. 148. 5 Emmott v. Mitchell, 14 Simons, 432. Gibson v. Whitehead, 4 Madd. 241; Kay v. Marshall, 1 Keen, 190. 7 Langdell's Eq. Pl. § 98. 11 plea, "namely, first, that the invention was not useful, and secondly, that it was not new."8 It has been held that the question whether a patent has been infringed cannot be raised by a plea. A plea must not contain inconsistent allegations,10 as "a plea of the Statute of Limitations and of liability never incurred." " Nor, it has been said, can a plea properly raise by averment an issue not "raised by the bill." 12 But, if the plea be otherwise good, immaterial allegations will not vitiate it.18 Matters that have occurred since the filing of the bill may be set up by plea provided the time for filing the plea has not elapsed. Otherwise, such matters can only be pleaded by a supplemental answer or cross-bill.15 A plea should state facts, not arguments and conclusions of law, which will be disregarded. 16 Thus, it has been held that pleas which state that defendant "is the sole owner in fee simple of the entire title of" the land which is the subject of the suit; "that, at the time of the bringing of this suit and long prior thereto, this defendant was and still is in the open, notorious, continuous, and exclusive possession of the said premises as the sole owner thereof, and claiming and holding adversely to the complainants and all the world;" and "that the said complainants were, at the time of bringing this suit and long prior thereto, ousted and disseissed and out of possession of said premises," are bad. Pleas are either pure, negative, or anomalous. A pure plea sets up new matter as a defense which is not apparent upon the face of the bill.17 A negative plea, which is sometimes also termed an anomalous plea, merely denies certain allegations contained in the bill.18 An anomalous plea sets up a fact in avoidance of the bill, but one which the bill has antici Kay v. Marshall, 1 Keen, 190, 192. But see Reissner v. Anness, 12 Off. Gaz. 842; s. c. 3 Bann. & A. Pat. Cas. 148. 9 Korn v. Wiebusch, 33 Fed. R. 50; Hubbell v. De Land, 14 Fed. R. 471, 474. 10 Emmott v. Mitchell, 14 Simons, 432; Story's Eq. Pl. §§ 656, 657. 14 Earl of Leicester v. Perry, 1 Brown, Ch. C. 305; Turner v. Robinson, 1 Sim. & S. 3. 15 Miller v. Fenton, 11 Paige (N. Y.), 18; Daniell's Ch. Pr. (5th Am. ed.) 607. 16 Beames on Pleas, 22, 23; Jerrard v. Saunders, 2 Ves. Jr. 187; National Bank 11 Emmott v. Mitchell, 14 Simons, 432, v. Insurance Co., 104 U. S. 54; Wood v. 436. 12 Emmott v. Mitchell, 14 Simons, 432, 436. But see Rhode Island v. Massachusetts, 14 Pet. 210, 270. 13 Rhode Island v. Massachusetts, 14 Pet. 210, 270; Claridge v. Hoare, 14 Ves. Mann, 1 Sumner, 506; McCloskey v. 17 M'Closkey v. Barr, 38 Fed. R. 165. pated and without confessing replied to.19 Now that the benefits of discovery can be obtained at common law, negative and anomalous pleas are rarely used; and the learning and subtlety which have been displayed in discussing their characteristics are of little service, except as a means of mental discipline or for the gratification of an antiquarian taste. Those interested in studying their history and refinements are referred to the works of Beames on Pleas, Wigram on Discovery, and Langdell on Equity Pleading, where they will find the subject discussed at length, with full references to the cases. Pleas are either to the relief or to the discovery; and pleas to the relief are either pleas in abatement or pleas in bar. § 125. Pleas in Abatement in General. The books which recognize pleas in abatement include among them pleas to the jurisdiction, pleas to the person, and pleas to the bill. Matters in abatement can, in general, only be set up by plea or demurrer; and a defendant, by answering or pleading in bar, waives any such objection. But the act of March 3, 1875, provides "that if in any suit commenced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just." The objection that there is no jurisdiction in 3 19 Langdell's Eq. Pl. § 102; Story's Eq. Pl. § 651; M'Donald v. Salem Capital Flour Mills Co., 31 Fed. R. 577; M'Closkey v. Barr, 38 Fed. R. 165; Hilton v. Guyott, 42 Fed. R. 249. But see Milligan v. Milledge, 3 Cr. 220. § 125. 1 See Beames on Pleas, ch. 2; Story's Eq. Pl. §§ 705-708; Rule 39; Memphis City v. Dean, 8 Wall. 64. 2 Beames on Pleas (1st Am. ed.) 63– 64; Story's Eq. Pl. § 708; Rule 89; Liv. ingston v. Story, 11 Pet. 351, 393; Wick liffe v. Owings, 27 How. 47. 52; Rubber Co. v. Goodyear, 9 Wall. 788, 792; Wood v. Mann, 1 Sumner, 506; Dodge v. Perkins, 4 Mason, 435; Cittredge v. Claremont Bank, 3 Story, 590; Doggett v. Emerson, 1 Woodb. & M. 196; Blackburn v. Selma, M. & M. R. R. Co., 2 Flippin, 525. 3 Act of March 3, 1875, § 5; U. S. R. S. 1 Supp. 175; 18 St. at L. 470; reenacted March 8 1887, 24 St. at L. ch. 373. See Nashua & Lowell R. R. Co. v. Boston & Lowell R. R. Co., 136 U. S. 356, 474. equity because the complainant has an adequate remedy at law may be taken by demurrer, plea, or answer. Otherwise, the defendant waives the right to make it," although the court may for its own protection dismiss a bill for this reason at the final hearing when the pleadings are silent upon the subject. The reference of the matter in dispute to an arbitrator, under an agreement that his award shall be made the basis of a decree, is a waiver of such an objection.7 § 126. Pleas to the Jurisdiction. - Pleas to the jurisdiction are: (1) That the subject of the suit is not within the jurisdiction of a court of equity;1 (2) that some other court of equity has the proper jurisdiction; 2 (3) that the defendant has not been properly served with process.3 § 127. Pleas to the Person. Pleas to the person are: (1) That the plaintiff has not the legal capacity to sue either at all if an alien enemy,1 or alone if an infant,2 or without leave from the court as a receiver. (2) That the plaintiff is not the person whom he pretends to be, or does not sustain the character which he assumes; as, for example, that he is not executor, or not assignee," or not a corporation, when suing as such; or that the suit is brought in the name of a fictitious person; or that it is brought in the name of a person who sues for the benefit of another, through collusion or champerty; or, it seems, in a stockholder's suit founded upon a right which may properly be asserted by the corporation, that the corporation has not refused to sue. It has been held that the objection that the plaintiff is a lunatic and cannot sue without a next friend cannot be taken by Reynes v. Dumont, 130 United States, 354, 395; Wylie v. Coxe, 15 Howard, 415; Kilbourn v. Sunderland, 130 U. S. 505. Reynes v. Dumont, 130 U. S. 354; Wylie v. Coxe, 15 How. 415. • Parker v. Winnipiseogee Lake C. & W. Co., 2 Black, 545, 550; Lewis v. Cocks, 23 Wall. 466; Oelrichs v. Spain, 15 Wall. 211. 7 Strong v. Willey, 104 U. S. 512. Larned v. Griffin, 12 Fed. R. 590; Williams v. Empire Transportation Co., 1 N. J. L. J. 815. § 127. 1 Albrech v. Sussman, 2 V. & B. 323; Story's Eq. Pl. § 724; Mumford v. Mumford, 1 Gall. 366. 4 See Rubber Co. v. Goodyear, 9 Wall. 788, 792; Ord v. Huddleston, 2 Dickens, 510; Story's Eq. Pl. § 727. 6 Nicholas v. Murray, 5 Saw. 320. • Dental Vulcanite Co. v. Wetherbee, 2 Cliff. 555; Blackburn v. Selma, M. & M. R. R. Co., 2 Flippin, 525. Chapman v. School District No. 1, Deady, 108, 116. 8 Dinsmore v. Central R. R. Co., 19 Fed. R. 153. But see Sperry v. Erie Ry. Co., 6 Blatchf. 425. Newby. Oregon Central Ry. Co., 1 Saw. 63, 67. plea, and that the proper course for the defendant is to move either to strike the bill off the file on account of the complainant's mental incapacity, or for a stay of proceedings until a committee or next friend is appointed. 10 (3) That the defendant cannot be sued except upon the happening of some event which has not occurred, as that he is a receiver, and no leave to sue him has been obtained from the court by which he was appointed." (4) That the defendant is not the person he is alleged to be, or does not sustain the character which he is alleged to bear; 12 or that the person named as a defendant is not a corporation when sued as such, in which case the person served with process on its behalf may file the plea in his own name,13 or was not incorporated under the laws of the State which is named in the bill as its creator; 14 or that the defendant has become a bankrupt or insolvent, and his interest in the subject-matter has passed to his assignee.15 § 128. Pleas to the Bill. Pleas to the bill are: (1) That there is another suit depending in a domestic court of equity for the same matter. (2) That there is a want of proper parties. (3) That the bill will cause an improper multiplicity of suits. (4) Multifariousness. Of these the first two are the only ones of much practical importance. It is doubtful whether either of the last two has ever been successfully maintained.2 Judge Story thus speaks of them: "Thirdly, the plea of multiplicity of suits. This objection also may be taken by way of plea, for it is against the whole policy of courts of equity to encourage multiplicity of suits. Indeed, this constitutes one main ground of the objection of the want of sufficient parties, since its tendency is to multiply litigation. Fourthly, the plea of multifariousness, or of joining and confounding distinct matters in one bill. Generally this objection is apparent on the face of the bill, and then it could be taken by way of demurrer. But, in case the bill is so 10 Dudgeon v. Watson, 23 Fed. R. 161. 11 Barton v. Barbour, 104 U. S. 126; Jerome . McCarter, 94 U. S. 734, 737; In re Young, 7 Fed. R. 855. But see 24 St. at L. ch. 373, § 3. 12 Story's Eq. Pl. §§ 732-734. 13 Kelley v. Mississippi Central R. R. Co., 1 Fed. R. 564; s. c. 2 Flippin, 581. See also Williams v. Empire Transportation Co., 1 N. J. L. J. 315. 14 Blackburn v. Selma, M. & M. R. R. Co., 2 Flippin, 525. 15 Kittredge v. Claremont Bank, 3 Story, 590; Story's Eq. Pl. § 732. See also Doggett v. Emerson, 1 Woodb. & M. 196. § 128. 1 Story's Eq. Pl. §§ 735-748. 2 Benson v. Hadfield, 4 Hare, 32, 39; M'Closkey v. Barr, 38 Fed. R. 165. |