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artfully framed that from that or from some other cause the objection does not appear on the face of the bill, the defendant may take advantage thereof by setting forth the special matter by a plea." The following plea was held bad and overruled: where the bill was filed to restrain the infringement of five patents, and stated that the defendant made and sold for use "soda-water fountains, each made according to, and employing and containing, the inventions described and claimed in each of the above-named letters-patent and reissued letters-patent.' The plea set up as a defense that all of the letters-patent described in the bill were, as the bill showed, for separate and distinct inventions, "which several alleged inventions are not, in point of fact, connected together in use or operation, and are not, in point of fact, conjointly embodied in any of the sodawater and other fountains manufactured, used, or sold, by this defendant; so that the said plaintiff, by his single bill of complaint aforesaid, seeks to compel this defendant to unite five separate and distinct defences depending upon distinct and different proofs, so as to complicate the defence and embarrass this defendant in his answer to the said complaint; and that it is not true, as alleged in said bill, that the said defendant has made, constructed, used, and vended to others to be used, soda-water and other fountains, each made according to, and employing and containing the inventions described and claimed in each of the above-named letters-patent and reissued letters-patent." 4

§ 129. Pleas of Pendency of another Suit. -A plea that another suit in equity is pending for the same cause in the same court is, if true, a sufficient defense to a bill. The pendency of an action at law for the same matter is not, however, in itself a defense. 2 For the very fact that relief cannot be had at law is the usual ground for resorting to equity. If, however, there appears to be no sufficient reason for the maintenance of both, the court at equity may, after the defendant has answered, put the plaintiff to his election, whether he will proceed at law or in equity; and 3 Story's Eq. Pl. §§ 746, 749. See also Benson v. Hadfield, 4 Hare, 32.

Ch. Ca. 241; Tarleton v. Barnes, 2 Keen, 632, 635; Insurance Co. v. Brune, 96

4 Matthews v. Lalance & G. Manuf. U. S. 588, 592, 593. See also Memphis Co., 2 Fed. R. 232. City v. Dean, 8 Wall. 64.

§ 129. 1 Mitford's Pl. ch. 2, § 2, part 2; Story's Eq. Pl. § 736; Urlin v. Hudson, 1 Vern. 332; Foster v. Vassall, 3 Atk. 587, 590; Crofts v. Wortley, 1

2 Graham v. Meyer, 4 Blatchf. 129; Thorne v. Towanda Tanning Co., 15 Fed. R. 289, 292.

if he elects the latter, then his proceeding at law will be enjoined; if the former, his bill will be dismissed.3 The pendency of another suit in a court of another of the United States, or of a foreign country, is not a bar to a suit for the same relief in a Circuit Court of the United States. Nor, it seems, although there the authorities are conflicting,5 is the pendency of a similar suit in a court held within the same State where the Federal court is held. The effect of the pendency of another suit for the same cause in another court of the United States has never been expressly decided; but there seems to be no difference in principle between such a suit and one in a court of another State, except that proceedings in such a case in a Federal court could be enjoined by a Federal judge. A plea that another suit is pending, in which the complainant might obtain by cross-bill the relief now sought by him, is bad.9 A plea of lis pendens should set forth the commencement of the former suit, its general nature, character, and objects, the relief prayed, and how far it has progressed; 10 it should then aver specifically that the second suit is for the same subject-matter 11 as the first, and seeks the same, or similar, relief; 12 and further, that the former suit is still depending.13 It must show that the defendant was served or has appeared in the former suit." For it is no suit depending till the

11

3 Story's Eq. Pl. § 742; Beames' Orders in Chancery, 11, 12; Mitford's Pleadings, ch. 2, § 2, part 2; Royle v. Wynne, 1 Craig & Ph. 252; Thorne v. Towanda Tanning Co., 15 Fed. R. 289, 292.

4 Insurance Co. v. Brune, 96 U. S. 588, 592, 593; Stanton v. Embrey, 93 U. S. 548; Lord Dillon v. Alvares, 4 Ves. 357. See Story's Eq. Pl. § 747.

See Radford v. Folsom, 14 Fed. R. 97; Brooks v. Mills County, 4 Dill. 524.

Latham v. Chafee, 7 Fed. R. 520; White v. Whitman, 1 Curt. 494; Sharon v. Hill, 22 Fed. R. 28; Washburn & Moen Manuf. Co. v. Scutt, 22 Fed. R. 710; Loring v. Marsh, 2 Cliff. 322; Gordon v. Gilfoil, 99 U. S. 168, 178; Dwight v. Central Vermont R. R. Co., 9 Fed. R. 785; Crescent City Live Stock Co. v. Butchers' Union Live Stock Co., 12 Fed. R. 225. 7 See Wheeler v. McCormick, 8 Blatchf. 267; Steiger v. Heidelberger, 4 Fed. R. 455; s. c. 18 Blatchf. 426; Brooks v. Mills County, 4 Dill. 524, 527.

8 See Massachusetts Mutual Life Ins. Co. v. Chicago & A. R. Co., 13 Fed. R. 857; Beauchamp v. Marquis of Huntley, Jacobs, 546; Erie Ry. Co. v. Ramsey, 45 N. Y. 637.

9 Washburn & Moen Manuf. Co. v. Scutt, 22 Fed. R. 710.

10 Crescent City Live Stock Co. v. Butchers' Union Live Stock Co., 12 Fed. R. 225; Foster v. Vassall, 3 Atk. 589, 590; Story's Eq. Pl. § 737.

11 Devie v. Lord Brownlow, 2 Dickens, 611; Mitford's Pleadings, ch. 2, § 2, part 2; Story's Eq. Pl. § 737.

12 Behrens v. Sieveking, 2 Myl. & Cr. 602; Wheeler v. McCormick, 8 Blatchf. 267; Jenkins v. Eldredge, 3 Story, 183; Story's Eq. Pl. § 737.

13 Story's Eq. Pl. § 737. See Urlin v. Hudson, 1 Vern. 332; Mitford's Pleadings, ch. 2, § 2, part 2.

14 Moor v. Welsh Copper Co., 1 Eq. Cas. Abr. 39, pl. 14.

parties have appeared or been served to appear, but only a piece of parchment thrown into the office, which may lie there forever, and never come to a suit." 15 "It is not necessary to the sufficiency of the plea that the former suit should be precisely between the same parties as the latter. For if a man institutes a suit, and afterwards sells part of the property in question to another, who files an original bill touching the part so purchased by him, a plea of the former suit depending touching the whole property will hold.16 So where one part-owner of a ship filed a bill against the husband for an account, and afterwards the same part-owner and the rest of the owners filed a bill for the same purpose, the pendency of the first suit was held a good plea to the last; 17 for though the first bill was insufficient for want of parties, yet by the second bill the defendant was doubly vexed for the same cause. The course which the court has taken in such case has been to dismiss the first bill, and to direct the defendant in the second cause to answer upon being paid the costs of the plea allowed." 18 Where a former suit had been brought for a part, but not the whole of the relief sought in the case at bar, the court held its pendency no defense, but said that proceedings in it might be stayed until the determination of the second suit.19 "Where a second bill is brought by the same person for the same purpose, but in a different right, as where the executor of an administrator brought a bill conceiving himself to be the personal representative of the intestate, and afterwards procured administration de bonis non, and brought another bill, the pendency of the former bill is not a good plea.20 The reason of this determination seems to have been, that, the first bill being wholly irregular, the plaintiff could have no benefit from it, and it might have been dismissed upon demurrer. Where a decree is made upon a bill brought by a creditor on behalf of himself and all other creditors of the same person, and another creditor comes in before the master to take the benefit of the decree, and proves his debt, and then files a bill on behalf of himself and the other creditors,

15 Moor v. Welsh Copper Co., 1 Eq. 2, citing Crofts v. Wortley, 1 Ch. Cas. Cas. Abr. 39.

16 Moor v. Welsh Copper Co., 1 Eq. Cas. Abr. 39.

17 Durand v. Hutchinson, Mich. 1771, in Chan.

18 Mitford's Pleadings, ch. 2, § 2, part

241.

19 Massachusetts Mutual Life Ins. Co. v. Chicago & A. R. Co., 13 Fed. R. 857. 20 Huggins v. York Building Co., 2 Atk. 44.

21

the defendants may plead the pendency of the former suit; for a man coming in under a decree is quasi a party.” When, after a bill had been filed to restrain the infringement of a patent and to obtain an account of profits, the defendant continues his infringements, the pendency of the first is no objection to a second bill seeking an injunction, and an account founded upon the subsequent infringements.22 According to Lord Redesdale, "as the pendency of the former suit, unless admitted by the plaintiff, is made the immediate subject of inquiry by one of the masters, a plea of this kind is not put in upon oath." 23

The plea of want of parties

§ 130. Plea of Want of Parties. is sometimes included among pleas in bar. The same defense may be made by answer; and in a recent case the court refused to allow it to be set up by plea upon the ground that the same defense can be considered with more convenience and expedition when pleaded in an answer. Such a plea must state the names, if known, of all the persons for whose omission the defendant claims that the bill is defective. It should also state that they are living, and, unless they are in every aspect of the bill indispensable parties to it, that they are within the jurisdiction of the court. After a plea for want of parties has been sustained, and the bill amended by adding thereto the parties named in the plea, a second plea further objecting to the bill for the omission of other parties not named in the first plea cannot be filed. A plea to the whole bill for want of parties will be overruled if, in any aspect of the bill, the parties therein named would not be necessary.7

§ 131. Pleas of Statutes. Pleas in bar set up some reason founded on the substance of the case, why the plaintiff is not entitled to relief. They rest upon some matter created either by

21 Mitford's Pl. ch. 2, § 2, part 2, citing upon last point Neve v. Weston, 3 Atk. 557.

22 Wheeler v. McCormick, 8 Blatchf. 267. Roemer v. Newwan, 19 Fed. R. 98; Higby v. Columbia Rubber Co. 18 Fed. R. 601. Contra, Gold & Stock Telegraph Co. v. Pearce, 19 Fed. R. 419.

33 Mitford's Pleadings, ch. 2, § 2, part 2; citing Urlin v. Hudson' 1 Vern. 332. But see the positive language of Rule 31.

§ 130. 1 Mitford's Pl. ch. 2, § 2, part

2. See, however, Story's Eq. Pl. § 744, and citations.

2, 8 United States v. Gillespie, 6 Fed. R. 803. See Rule 52.

4 Attorney General v. Jackson, 11 Ves. 367, 369; Cook v. Mancius, 3 Johns. ch. (N. Y.) 427; Dwight v. Central Vermont R. R. Co. 9 Fed. R. 785; Campbell v. James, 2 Fed. R. 338, 348.

5 Goodyear v. Toby, 6 Blatchf. 138.
6 Rawlins v. Dalton, 3 Y. & Coll. 447.
7 Homan v. Shiel, 2 Jones (Irish), 164.

statute, matter of record, or matter in pais, which last term sig nifies a matter of fact which is not of record, and is not given by statute special effect. Pleas founded upon matter that is made a bar by statute rest upon the statute of limitations, the statute of frauds, or less frequently some other statute. Federal courts. of equity are not bound by State statutes of limitation,1 except in cases where their jurisdiction is concurrent with the jurisdiction at common law; 2 but they will usually follow them, unless injustice would otherwise be done, thus enforcing the doctrine of equitable laches; and they will do so especially when suits are brought against executors, or to foreclose mortgages.6 Moreover, the lapse of time for a shorter period than the statute of limitations, and in cases to which that statute does not apply, will often be held such laches as to bar the complainant. It is not laches for a complainant to delay asserting his rights until the determination in another suit, brought by himself or another in a similar position, of a doubtful question of law materially affecting their validity.8 The United States is not bound by laches; and the State statutes of limitations do not affect it,10 even, it has been said, if specially named therein." An individual seeking to enforce by subrogation the rights of a State may be estopped by laches of the State which would not have affected the State itself. 12 Municipal corporations and counties may be estopped by laches.13 The plea of the statute of limitations is in substantially the same form as a similar plea in an action at law, but no special form is essential.14 If the bill charge fraud or other matters, which, if true, would prevent the statute from

§ 131. 1 Jolinson v. Roe, 1 Fed. R. 692; Etting v. Marx's Executor, 4 Fed. R. 673. But see Pratt v. Northam, 5 Mason, 95.

2 Wagner v. Baird, 7 How. 234, 258; Godden v. Kimmell, 99 U. S. 201; Wilson v. Koontz, 7 Cranch, 202.

3 Godden v. Kimmell, 99 U. S. 201; Meath v. Phillips Co., 108 U. S. 553.

4 Fogg v. St. Louis H. & K. R. R. Co., 17 Fed. R. 871, 873.

5 Pulliam v. Pulliam, 10 Fed. R. 53; Broderick's Will, 21 Wall. 503.

6 Cleveland Ins. Co. v. Reed, 1 Biss. 180.

8 Buxton v. James, 5 De Gex & Sm. 80, 84; Rumford Chemical Works v. Vice, 14 Blatchf. 179, 180; Green v. Barney, 19 Fed. R. 420; People v. Cooper, 22 Hun (29 N. Y. S. C. R.), 515, 517. See Illinois G. T. Ry. Co. v. Wade, 140

U. S. 65.

9 U. S. v. Beebe, 127 U. S. 338; U. S. v. Insley, 130 U. S. 263; U. S. v. Dalles Military Land Co., 140 U. S. 599.

10 Gibson v. Chouteau, 13 Wall. 92; U. S. v. Thompson, 98 U. S. 486.

11 U. S. v. Thompson, 98 U. S. 486, 490.

12 Cressy v. Meyer, 138 U. S. 525.
18 Boone County v. Burlington & M. R.

7 Brown v. Connty of Buena Vista, 95 R. R. Co., 139 U. S. 684. U. S. 157, 161.

14 Harpending, v. Reformed Protestant

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