$253. Division of pleas to bills for relief.

Pleas to relief are divided into four classes: (1) Pleas to the jurisdiction; (2) pleas to the person; (3) pleas to the frame or form of the bill; (4) pleas in bar to the bill.74

§ 254. Declinatory, dilatory, and peremptory pleas.

Mr. Justice Story deems pleas to be susceptible of the same division as were exceptions in the Roman law: (1) Declinatory, corresponding to pleas to the jurisdiction; (2) dilatory, corresponding to pleas to the person; and (3) peremptory, corresponding to pleas in bar. All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abatement; and therefore, in general, the objections founded thereon must be taken ante litem contestatam, by plea, and are not available by way of answer or at the hearing. And it has been said that pleas of these several kinds may be successively pleaded, one after another, in their proper order, that is to say, first, declinatory pleas; secondly, dilatory pleas; and, thirdly, pleas in bar. For it has been said that although no man shall be permitted to plead two dilatories at several times, nor several bars, because he may plead them all at once, yet, after a plea to the jurisdiction, he may be admitted to plead in bar, because it is consistent with those pleas to plead in bar at the same time.75

$255. Pleas to the jurisdiction.

Pleas to the jurisdiction are arranged under four heads: (1) That the subject-matter of the bill is not within the cognizance

1

74 Story, Eq. Pl. § 705; Beames, Pleas in Eq. 53. Some of the earlier writers divide pleas into pleas in abatement and pleas in bar, but it is said that no practical consequence results from such distinction. Daniell, Ch. Pl. & Pr. (4th Ed.) 626. For classifications by other writ ers, see Mitford, Eq. Pl. 219; Cooper, Eq. Pl. 236; Adams, Eq. (8th Ed.) 336; United States v. Peralta, 99 Fed. 618.

75 Story, Eq. Pl. §§ 707, 708; Amberg v. Nachtway, 92 Ill. App. 608; Beames, Pleas in Eq. 55-60; Anonymous. Mos. 207; Cooper, Eq. P 226, 227, 237; Saltus v. Tobias, 7 Johns. Ch. (N. Y.) 214.

of any municipal court of justice; (2) that it is not within the jurisdiction of a court of equity; (3) that some other court of equity is invested with the proper jurisdiction; (4) that some other court possesses proper jurisdiction. 70 As heretofore stat ed, when these objections appear on the face of the bill, they may be taken by demurrer. The nature of these objections has been considered in connection with the subject of demurrers."

§ 256. Pleas to the person.

Pleas to the person are divided into pleas to the person of the complainant, and pleas to the person of the defendant. Pleas to the person of the complainant include: (1) Of outlawry; (2) of excommunication; (3) of popish recusant convict; (4) of attainder; (5) of alienage; (6) of infancy; (7) of cov erture; (8) of idiocy or lunacy; (9) of bankruptcy or insolvency; (10) of want of the character in which the complain

The first three of the pleas to the person of the complainant are generally unknown in America, and are of very rare occurrence in England in modern times. The fourth is also of rare occurrence. The grounds of these pleas were referred to in connection with the subject of demurrers, by which the same objections may be taken when they appear on the face of the bill.80

79

Pleas to the person of the defendant are more limited than

76 Story, Eq. Pl. §§ 710-721; Mitford, Eq. Pl. 222-226; Cooper, Eq. Pl. 237-243.

77 See supra, § 208 et seq. Where there is a defect in the serv ice of process, the objection, under certain circumstances, may be raised by plea. Supra, § 136; Beach, Mod. Eq. Pr. § 301; Foster, Fed. Pr. § 126; Larned v. Griffin, 12 Fed. 590; William v. Empire Transportation Co., 1 N. J. Law J. 315.

78 Story, Eq. Pl. § 722; Mitford, Eq. Pl. 226; Cooper, Eq. Pl. 243. 79 Story, Eq. Pl. § 723.

80 See supra, § 209. See, also, Mitford, Eq. Pl. 226-229; Cooper, Eq. Pl. 243-245; Beames, Pleas in Eq. 100-109; Nicholas v. Murray, 5 Sawy. 320, Fed. Cas. No. 10,223; Dental Vulcanite Co. v. Wetherbee, 2 Cliff. 555, Fed. Cas. No. 3,810; Kittredge v. Claremont Bank, 3 Story, 590, Fed. Cas. No. 7,858.

those last considered; for it is a rule at law that persons who are disabled to sue cannot plead their own disabilities when sued. This rule is equally applicable, in equity, in all cases where the suit seeks the performance of a duty by the defendant. Such a rule does not extend to cases where the disqualification is only partial, and does not apply to cases where the proceeding is in rem, and the disability is of such a nature that, besides the personal disqualification which it imposes, the interest in the defendant's property which is the subject of the suit has become vested in another.81 It will be a good plea that the defendant is not the person that he is alleged to be, or that he does not sustain the character which he is alleged to bear in the bill, such as heir, executor, or administrator.82 If the defendant has not that interest in the subject of a suit which can make him liable to the demands of the complainant, and the bill, alleging that he has or claims an interest, avoids a demurrer, he may plead the matter necessary to show that he has no interest, if the case is not such that by a general disclaimer he can satisfy the suit.83

$257. Pleas to the bill or frame thereof.

Such pleas differ from pleas to the jurisdiction, by not disputing the original power of the court to take cognizance of the particular matter; from pleas to the person, by admitting the complainant's ability to sue, and the defendant's liability to be sued, although they object to the suit as framed, or contend that it is unnecessary; from pleas in bar, because, while not objecting to the validity of the right made the subject of the suit, it is contended that the right ought not to be canvassed on the existing record. Pleas of this nature are divided into: (1) Plea of another suit depending in a court of equity for the

81 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 631; Turner v. Robinson, 1 Sim. & S. 3. See Dudgeon v. Watson, 23 Fed. 161.

82 Mitford, Eq. Pl. 234; Story, Eq. Pl. § 732; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 631; Burger v. Potter, 32 Ill. 66.

83 Cooper. Eq. Pl. 250; Story, Eq. Pl. § 734; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 632; Mitford, Eq. Pl. 235.

same matter; (2) plea of want of proper parties; (3) plea of multiplicity of suits; (4) plea of multifariousness.84

§ 258. Plea of pendency of another suit.

Such a plea should set forth with certainty the commencement of the former suit, its general nature, character, and objects, and the relief prayed. It should aver, and so the fact should be, that the second suit is for the same subject-matter as the first; that the same issue is joined in the former suit as in the suit now before the court, and that the subject-matter is the same, and that the proceedings in the former suit were for the same purpose; that there have been proceedings in the suit, such as an appearance, or process requiring an appearance, at least; that the former suit is still depending. 85 The plea can 84 Story, Eq. Pl. § 735; Beames, Pleas in Eq. 134-158.

85 Mitford, Eq. Pl. 246; Story, Eq. Pl. §§ 736-738; Brooke v. Phillips, 6 Phila. (Pa.) 392; Bank of Michigan v. Williams, Har. (Mich.) 219: Macey v. Childress, 2 Tenn. Ch. 23; Griffing v. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910. See Hessenbruch v. Markle, 194 Pa. 581, 45 Atl. 669. See post, § 304, for setting up objection by answer. The pendency of an other suit may be asserted by demurrer when the objection appears on the face of the bill. A plea of a former suit pending, under the Tennessee practice, may be incorporated in an answer without the necessity of pleading it specially as matter in abatement; but when such special plea is relied on in the answer, and such matter is allowed to stand as a plea merely, all the certainty required in a plea must be contained in the answer. Connell v. Furgason, 5 Cold. (Tenn.) 401; High v. Batte, 10 Yerg. (Tenn.) 335. In Anonymous, Mos. 268, it was said that, though the objection of another suit pending must be taken by plea in the court of exchequer, it might be taken by motion in the court of chancery. Lord Eldon said, in Murray v. Shadwell, 17 Ves. 353, that such statement was unsupported, and that the regular way of raising the objection was by plea. Battell v. Matot, 58 Vt. 271, 5 Atl. 479. Where two suits are brought in the name of an infant, it is a motion of course to obtain a reference, on the statement of counsel that both suits are for the same purpose, to see which of them is most for the infant's benefit. Sullivan v. Sullivan, 2 Mer. 40; Battell v. Matot, 58 Vt. 271, 5 Atl. 479. Defendant may state the pendency and object of the former suit, and aver that the present suit was brought for the same matters; or he may omit the averment that the suits are for the same subject-matters, if he states facts sufficient to show that they are so. Suydam v. Johnson, 16 N. J. Eq. 112; McEwen v. Broadhead,

only be in bar of a suit depending in the same or some other court of equity.88 The remedy where there is an action at law pending for the same matter is by application that the complainant elect in which suit he will proceed.87 A plea, in a domestic forum, of another suit pending, will not be good if the suit is pending in a court in another country.88 The states, in this

11 N. J. Eq. 129; Griffing v. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910. "In Watson v. Jones, 13 Wall. (U. S.) 715, Mr. Justice Miller, speaking for the court, says: 'When the pendency of such a suit is set up to defeat another, the case must be the same. There must be the same parties, or at least such as represent the same interest. There must be the same rights asserted, and the same relief prayed for. This relief must be founded on the same facts, and the title or essential basis of the relief sought must be the same.'. It is also held 'that the true test of the sufficiency of a plea of "other suit pending" in another forum was the legal efficacy of the first suit, when finally disposed of, as "the thing adjudged," regarding the matters at issue in the second suit.' The Haytian Republic, 154 U. S. 124." Richardson v. Opelt, 60 Neb. 180, 82 N. W. 377.

se 1 Barbour, Ch. Pr. 126; Story, Eq. Pl. § 742; Way v. Bragaw, 16 N. J. Eq. 213; Brooke v. Phillips, 6 Phila. (Pa.) 392; Howell v. Waldron, 2 Ch. Cas. 85. The general rule is that the pendency of a creditors' bill brought by one creditor in behalf of all creditors of the common debtor cannot be successfully pleaded in abatement or in bar of a subsequent bill brought by a different creditor in a different right, until after decree has been rendered in the former suit, under which all may come in and participate. 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 635, 794; Macy v. Childress, 2 Tenn. Ch. 23; Moore v. Holt, 3 Tenn. Ch. 141; Innes v. Lansing, 2 Paige (N. Y.) 583; Rogers v. King, 8 Paige (N. Y.) 210; Sweeney Mfg. Co. v. Goldberg, 66 Ill. App. 568. There is nothing to prevent other creditors from filing bills for the like purpose; and there is nothing more common than for several suits to exist together, and the court permits them to go on together until a decree in one of them is obtained, because it is possible, before the decree, that the litigating creditor may stop his suit. 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 794; Piedmont & A. Life Ins. Co. v. Maury, 75 Va. 508; Woodgate v. Field, 2 Hare, 211, 212.

87 See post, § 365; 1 Barbour, Ch. Pr. 126. After full answer put in, the defendant may apply for an order that the complainant make his election as to which court he will proceed before. Jones v. Strafford, 3 P. Wms. 90; Brooke v. Phillips, 6 Phila. (Pa.) 392; 1 Barbour, Ch. Pr. 126; Way v. Bragaw, 16 N. J. Eq. 213; Conover v. Conover, 1 N. J. Eq. 409.

88 Dillon v. Alvares, 4 Ves. 357; Radford v. Folsom, 14 Fed. 97; Stanton v. Embrey, 93 U. S. 548; Cole v. Flitcraft, 47 Md. 312; Insurance