sense, are regarded as foreign to one another.89 It seems now settled that a plea of another suit pending in a state or federal court in the same district cannot be pleaded to the prosecution of a like suit in the other court.90 This rule is also applied where the pendency of the prior suit is in another state or district from that in which the federal court is held.91 The first suit must be for the same matter as the second, but it is not requisite that the second suit should be for the whole matter embraced by the first. The whole effect of the second suit should, however, be attainable in the first.92 It is not necessary to a plea of this nature that the former suit should be between precisely the same parties as the latter.93 The usual

Co. v. Brune's Assignee, 96 U. S. 588; Allen v. Watt, 69 Ill. 655; Hatch v. Spofford, 22 Conn. 485; McJilton v. Love, 13 Ill. 486.

89 Goodall v. Marshall, 11 N. H. 99, 35 Am. Dec. 472; Seevers v. Clement, 28 Md. 426; Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 57 N. W. 938. See, however, Moore v. Spiegel, 143 Mass. 413, 9 N. E. 827.

90 Gordon v. Gilfoil, 99 U. S. 168; Sharon v. Hill, 22 Fed. 28; Pierce v. Feagans, 39 Fed. 587; City of North Muskegon v. Clark, 62 Fed. 694; Seymour v. Bailey, 66 Ill. 288; Hollister v. Stewart, 111 N. Y. 644, 19 N. E. 782; Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504, reviewing the authorities.

91 Marshall v. Otto, 59 Fed. 249; Rawitzer v. Wyatt, 40 Fed. 609; · Stanton v. Embrey, 93 U. S. 554. See, however, Ryan v. Seaboard & Roanoke R. Co., 89 Fed. 397; Marks v. Marks, 75 Fed. 321. It seems that the federal court will sometimes, as a matter of comity, stay proceedings until the suit in the state court is disposed of, and then proceed in the light of the results reached in the state court. Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; Zimmerman v. Sorelle, 49 U. S. App. 387, 80 Fed. 417. For practice where two suits are pending in two different federal courts, see Ryan v. Seaboard & Roanoke R. Co., 89 Fed. 397.

921 Barbour, Ch. Pr. 125, 126; Moor v. Welsh Copper Co., 1 Eq. Abr. 39; Law v. Rigby, 4 Brown Ch. 60; Pickford v. Hunter, 5 Sim. 122; Massachusetts Mut. Life Ins. Co. v. Chicago & A. R. Co., 13 Fed. 857; Way v. Bragaw, 16 N. J. Eq. 217; Larter v. Canfield, 59 N. J. Eq. 461, 45 Atl. 616; Brooke v. Phillips, 6 Phila. (Pa.) 392.

93 1 Barbour, Ch. Pr. 126; Neve v. Weston, 3 Atk. 557. See, on question of identity of parties, Bent v. Maxwell Land Grant & Ry. Co., 3 Johns. (N. M.) 158, 3 Pac. 721; Crane v. Larsen, 15 Or. 345, 15 Pac. 326; Walsworth v. Johnson, 41 Cal. 61; Estes v. Worthington, 30 Fed. 465; Smith v. Blatchford, 2 Ind. 184, 52 Am. Dec. 504; Parsons v. Greenville & C. R. Co., 1 Hughes, 279, Fed. Cas. No. 10,776; Foreman

course is not to reply to such a plea, or to have the plea set down, but to refer it to a master in chancery to look into the two suits, and report whether or not they are both for the same matter. If the master reports that the two suits are for the same matter, the plea is allowed; but if he reports otherwise, the plea is then overruled. If the complainant sets down the plea to be argued, he admits the truth of the pleading, and it must be allowed, unless it be defective in form.95 Pendency of a writ of error cannot be pleaded in abatement of another action in the same state, unless the writ of error operates as a supersedeas; nor even then if the writ of error was sued out after the commencement of the second action.96

§ 259. Plea for want of proper parties.

The defendant may object to the bill for want of proper parties, if the defect is not apparent on the face of the bill, by pleading the matter necessary to show it. Such a plea goes both to the discovery and relief, where relief is prayed, although the want of parties is no objection to a bill for discovery merely.97

Shoe Co. v. F. M. Lewis & Co., 191 Ill. 155, 60 N. E. 971. A prior suit pending may be pleaded as a defense to a subsequent suit, but the converse of the proposition is not true. Renner v. Marshall, 1 Wheat. (U. S.) 215; Nicholl v. Mason, 21 Wend. (N. Y.) 339; Consolidated Coal Co. of St. Louis v. Oeltjen, 189 Ill. 85, 59 N. E. 600. In some cases the court will interfere to restrain a second suit brought against the defendant, without requiring him to plead the pendency of the former suit; as, for example, in two or more suits instituted on behalf of an infant for the same matter, or in case of creditors suing an executor or an administrator after a decree for an account at the suit of other creditors. 1 Barbour, Ch. Pr. 126; Battell v. Matot, 58 Vt. 271; Paxton v. Douglas, 8 Ves. 520.

94 Mitford, Eq. Pl. 247; Story, Eq. Pl. § 743; Jones v. Segueira, 1 Phillips, 82; Griffing v. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910; Battell v. Matot, 58 Vt. 271, 5 Atl. 479.

95 Mitford, Eq. Pl. 247; Story, Eq. Pl. § 743; Cooper, Eq. Pl. 275; Grif fing v. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910.

96 McJilton v. Love, 13 Ill. 486; Hailman v. Buckmaster, 8 Ill. 498; Bank of United States v. Merchants' Bank of Baltimore, 7 Gill (Md.) 415; Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312; Prynn v. Edwards, 1 Ld. Raym. 47.

97 Mitford, Eq. Pl. 280; Story, Eq. Pl. § 745; Conwell v. Watkins, 71

§ 260. Plea of multiplicity of suits.

This objection may be taken by plea.98

§ 261. Plea of multifariousness.

The objection of multifariousness is usually apparent on the face of the bill, in which case it should be taken by way of demurrer. If the bill be so artfully framed, or if, for some other reason, the objection does not appear on the face of the bill, it may be raised by plea.99

§ 262. Pleas in bar to a bill.

Pleas in bar may be divided into three heads: (1) Pleas founded on some bar created by statute; (2) pleas founded on matter of record, or as of record, in some court; (3) pleas of matter purely in pais, as it is termed,—that is, upon matter of fact which is not of record.100

§ 263. Pleas founded on statutory bar.

Pleas of this sort are: (1) The statute of limitations; (2) the statute of frauds and perjuries; (3) any other statute, public or private, which has created a bar; (4) the plea of the statute of fine and nonclaim, which has no existence in America.101

§ 264. Plea of statute of limitations.

This is generally a good bar to a suit in equity. If the objec

Ill. 489; Prentice v. Kimball, 19 Ill. 320; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427. This question has been heretofore considered under the head of parties to suits in equity. See supra, §§ 56, 217.

98 Story, Eq. Pl. § 746; Stafford v. City of London, 1 P. Wms. 428; Beames, Pleas in Eq. 155, 156; Mitford, Eq. Pl. 145, 221.

99 Story, Eq. Pl. § 747; Benson v. Hadfield, 14 Hare, 32; Mitford, Eq. Pl. 221. But see Halstead v. Shepard, 23 Ala. 558. See supra, §§ 107 et seq., 216. A misjoinder of complainants, if it do not appear on the face of the bill, may be pleaded. Harding v. Cobb, 47 Miss. 599, citing 1 Story, Eq. Pl. § 283.

100 Story, Eq. Pl. § 749; Cooper, Eq. Pl. 251; Beames, Pleas in Eq. 159. For classification by Lord Redesdale, see Mitford, Eq. Pl. 236.

101 Story, Eq. Pl. § 750; Cooper, Eq. Pl. 251.

tion appears on the face of the bill, it may be taken by way of demurrer. If it does not so appear, then a plea is proper.102 To render the statute of limitations available as a defense, it must be set up and relied on by the pleadings. 103 It is not necessary that there should be any express reference to the statute in pleading it.104 Where a bill contains special matter in avoidance of the statute of limitations, a plea of the statute must contain averments negativing such matters, and it is not sufficient for the answer alone to negative such matters.105

§ 265. Statute of frauds.

The statute for the prevention of frauds and perjuries may also be pleaded in bar of a suit, to which the provisions of the statute apply.106 This plea extends to the discovery of the parol agreement as well as to the performance of it.107 The statute of frauds, to be made available as a defense, must be pleaded; otherwise, it is waived.108 It must be set up by plea, demur

102 Mitford, Eq. Pl. 269; Cooper, Eq. Pl. 251; Story, Eq. Pl. §§ 751, 760; Conover v. Wright, 6 N. J. Eq. 613; Carroll v. Waring, 3 Gill & J. (Md.) 491; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384. See post, § 300. 103 Borders v. Murphy, 78 Ill. 81; Ruckman v. Decker, 23 N. J. Eq. 283; Wilson v. Anthony, 19 Ark. 16; Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479; Hudsons v. Hudsons' Adm'r, 6 Munf. (Va.) 356. See, however, Haskell v. Bailey, - Conn. 569, holding that the rule that defendant must plead the statute of limitations, to avail himself of its benefits, does not apply to suits in chancery, and citing Story, Eq. Pl. § 484, Hardy v. Reeves, 4 Ves. 479, Bulkley v. Bulkley, 2 Day (Conn.) 363. Where the statute does not create an absolute statutory bar by lapse of time, but only a presumption of payment arising from it, defendant must set up payment by plea or answer, to avail himself of that presumption. Fellers v. Lee, 2 Barb. (N. Y.) 488.

104 Harpending v. Reformed Protestant Dutch Church, 16 Pet. (U. S.) 455; Van Hook v. Whitlock, 7 Paige (N. Y.) 373.

105 Stearns v. Page, 1 Story, 204, Fed. Cas. No. 13,339. See Wright v. Le Claire, 4 G. Greene (Iowa) 420; McCloskey v. Barr, 38 Fed. 165. 106 Mitford, Eq. Pl. 265; Cooper, Eq. Pl. 255; Story, Eq. Pl. § 761. See post, § 301.

107 Story, Eq. Pl. § 763.

10 Irwin v. Dyke, 114 Ill. 302, 1 N. E. 913; Finucan v. Kendig, 109 Ill. 198; Van Duyne v. Vreeland, 12 N. J. Eq. 142; Battell v. Matot, 58 Vt. 271, 5 Atl. 479.

rer, or answer.109 The defendant cannot, by demurrer, rely on the statute of frauds, unless it clearly appears on the face of the bill that the agreement was within the statute. If he claims the benefit of the statute, where it does not so appear, he must insist upon it in his answer, or set it up by way of plea.110 But where a bill shows on its face that the contract was only oral, when it should be in writing, the objection of the statute of frauds may be made by demurrer.111 A bill is not demurrable because, in stating an agreement within the statute of frauds, it does not state whether or not the agreement is in writing. If it was verbal, that fact must be made to appear by plea or answer. 112 A plea of the statute of frauds should expressly aver that the contract was not in writing.113 If the defendant, by his answer, admits the parol agreement, and insists on the benefit of the statute, he will be entitled to it, notwithstanding such admission. If he does not insist on it, the court will, in a proper case, enforce the agreement on the ground that the defendant has renounced the benefit of the statute.114 The statute may be pleaded to a bill for the discovery and execution of a trust, with an averment that there is no declaration of the trust in writing. Circumstances of fraud may be alleged in the bill to avoid the

109 Douglass v. Snow, 77 Me. 91; Tarleton v. Vietes, 6 Ill. 470, 41 Am. Dec. 193; Angel v. Simpson, 85 Ala. 53, 3 So. 758; Lyon v. Cressman, 22 N. C. 268; Newton v. Swazey, 8 N. H. 13.

110 Switzer v. Skiles, 8 Ill. 529, 44 Am. Dec. 723; Strouse v. Elting, 110 Ala. 132, 20 So. 123; Whiting v. Dyer, 21 R. I. 85, 41 Atl. 895.

111 Macey v. Childress, 2 Tenn. Ch. 438; Randall v. Howard, 2 Black (U. S.) 585; Monson v. Hutchin, 194 Ill. 433, 62 N. E. 788; Dick v. Dick, 172 Ill. 578, 50 N. E. 142; Dicken v. McKinley, 163 Ill. 318, 45 N. E. 134, 54 Am. St. Rep. 142.

112 Cranston v. Smith, 6 R. I. 231; Piedmont Land Improvement Co. v. Piedmont Foundry & Machine Co., 96 Ala. 389, 11 So. 332. The rule seems to be otherwise in Kentucky and some other states. See Smith v. Fah, 15 B. Mon. (Ky.) 443.

113 Mitford, Eq. Pl. 266; Cooper, Eq. Pl. 255; Bean v. Valle, 2 Mo. 126; Vaupell v. Woodward, 2 Sandf. Ch. (N. Y.) 143.

114 Mitford, Eq. Pl. 267; Story, Eq. Pl. § 763; Cozine v. Graham, 2 Paige (N. Y.) 177; Thompson v. Jamesson, 1 Cranch, C. C. 295, Fed. Cas No. 13,960; Winn v. Albert, 2 Md. Ch. 269; Small v. Owings, 1 Md. Ch 363; Walker v. Hill's Ex'rs, 21 N. J. Eq. 191.