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(3) That the bill will cause an improper multiplicity of suits. (4) Multifariousness.23

Defenses which consist of matters of law may also be pleaded in the answer.24 When an objection to the jurisdiction has been previously overruled it is the safer practice to reassert the same in the answer.25 Otherwise the court might hold that it had been waived when capable of waiver.26 Where complainant had filed answers in suits in a State court it was held that he could not thereafter maintain in the Federal court a bill to enjoin the prosecution of those actions because of a multiplicity of suits.27

§ 177. The pendency of another suit. A defense, 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, for the very fact that relief cannot be had at law is the usual ground for resorting to equity. Thus the pendency of an action at law upon a contract was held to be no bar to a subsequent bill in equity by the same plaintiff to reform it so as to obviate a cross-action on the contract by the defendant. Conversely it has been held

23 Story's Eq. Pl., §§ 735-748. 24 Boyd v. N. Y. & H. R. Co., 220 Fed. 174, 178.

25 Tate v. Brinser, 226 Fed. 878; Fry v. Denver & R. G. R. Co., 226 Fed. 898. Supra, §§ 169, 170.

26 Granite Brick Co. v. Titus, C. C. A., 226 Fed. 557.

27 Robinson v. Wemmer, 253 Fed. 790.

§ 177. 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 Ch. Ca. 241; Tarleton v. Barnes, 2 Keen, 632, 635; Insurance Co. v. Brune, 96 U. S. 588, 592, 593, 24 L. ed. 737, 739, 740. See also Memphis v. Dean, 8 Wall. 64, 19 L. ed. 326. The pendency of a suit to enjoin the removal of ore from a mining claim, brought in asFed. Prac. Vol. I-64

that the pendency of a suit in

sistance to an action of ejectment to recover possession of a part of such claim, is not a bar to a subsequent suit by the same complainant to remove a cloud on its title to the entire claim, which includes extralateral rights not in controversy in the former suit. Empire StateIdaho M. & D. Co. v. Bunker Hill & S. M. & C. Co., C. C. A., 121 Fed. 973. Where the former suit was by a trustee who had removed and the second by the beneficiary of the trust, it was held that there should be no abatement of the latter. Alexander v. Fidelity Trust, C. C. A., 249 Fed. 1.

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

3 Providence S. E. Co. v. Hathaway Mfg. Co., 79 Fed. 512.

equity is no ground for a plea in abatement of an action at law.* If, however, there appeared to be no sufficient reason for the maintenance of both, the court at equity might, after the defendant has answered, put the plaintiff to his election, whether he will proceed at law or in equity; and if he elects the latter, then his proceeding at law would be enjoined; if the former, his bill would be dismissed.5

The pendency of another suit in personam in a court of another State of the Union 6 or of a foreign country 7 is not a bar to a suit for the same relief in a District Court of the United States when the object is not to obtain the possession of property in the custody of the former court or the former court has acquired jurisdiction by garnishee process or attachment.9

The pendency of a similar suit in a court, held within the same State and district where the Federal court is held, is under similar circumstances, not a bar to a suit for the same relief in a District Court of the United States; 10 where the Federal

4 Jarrett v. Halsey, C. C. A., 244 Fed. 392.

5 Story's Eq. Pl., § 742; Beames' Orders in Ch., 11, 12; Mitford's Pl., ch. 2, § 2, part 2; Royle v. Wyne, 1. C. & Ph. 252; Thorne v. Towanda T. Co., 15 Fed. 289, 292; infra, § 368.

6 Insurance Co. v. Brune, 96 U. S. 588, 592, 593, 24 L. ed. 737, 739. 740; Stanton v. Embrey, 93 U. S. 548, 23 L. ed. 983; O'Callaghan v. O'Brien, 116 Fed. 934; Robinson v. Suburban Brick Co., C. C. A., 127 Fed. 804. But see Dady v. Georgia & A. Ry. Co., 112 Fed. 838.

7 Lord Dillon v. Alvares, 4 Vesey, 357; Story's Eq. Pl., § 747; The Kongsli, 252 Fed. 267 (a suit in personam in Admiralty).

8 Briggs v. Stroud, 58 Fed. 717, 720; Mankato v. Barber Asphalt Paving Co., C. C. A., 142 Fed. 329, supra, § 57.

9 Lowenstein v. Levy, C. C. A., 212 Fed. 383.

10 Latham v. Chafee, 7 Fed. 520;

White v. Whitman, 1 Curt. 494; Sharon v. Hill, 22 Fed. 28; Washburn & M. Mfg. Co. v. v. Scutt, 22 Fed. 710; Loring v. Marsh, 2 Cliff. 322; Gordon v. Gilfoil, 99 U. S. 168, 178, 25 L. ed. 383, 386; Dwight v. Cent. Vt. R. Co., 9 Fed. 785; Crescent City L. S. Co. v. Butchers' U. L. S. Co., 12 Fed. 225; North Muskegon, v. Clark, C. C. A., 62 Fed. 694; Marshall v. Otto, 59 Fed. 249; Rejall v. Greenhood, 60 Fed. 884; Short v. Hepburn, 75 Fed. 113; Shaw v. Lyman, 79 Fed. 2; Brooks v. Vermont Cent. R. Co., 14 Blatchf. 463, Fed. Cas. No. 1,964; Beekman v. Hudson River West Shore Ry. Co., 35 Fed. 3; Barber Asphalt Paving Co. v. Morris, C. C. A., 67 L. R. A. 761, 132 Fed. 945; Burk v. McCaffrey, 136 Fed. 696; Mankato v. Barber Asphalt Paving Co., C. C. A., 142 Fed. 329; Barnsdall v. Waltemeyer, C. C. A., 142 Fed. 415 New York Cotton Exch. v. Hunt, 144 Fed. 511; Weir v. Winnett, 155 Fed. 824; Borden's Condensed Milk

jurisdiction is founded upon difference of citizenship, although the suit was begun in a State court where the first action was pending and was subsequently removed.11 But it is usually a ground for a stay of its own proceedings by the Federal court, where the action in the State court was first instituted,12 pro

Co. v. Baker, 177 Fed. 906, Chicago, B. & Q. R. Co. v. Weil, 183 Fed. 956; People's Gaslight & Coke Co. v. City of Chicago, 192 Fed. 398; Bixler v. Pennsylvania R. Co. v. WilFed. 553; Commission Co. v. Williams, 211 Fed. 530; Rouiller v. A. & B. Schuster Co., 212 Fed. 348; City of Ironton, Ohio, v. Harrison Const. Co., C. C. A., 212 Fed. 353; Land v. Ferro-Concrete Const. Co., 221 Fed. 433; Re Lasserot, C. C. A., 240 Fed. 325; Doane v. California Land Co., C. C. A., 243 Fed. 67; Jarrett v. Halsey, C. C. A., 244 Fed. 392; Knudsen v. First Trust & Savings Bank, C. C. A., 245 Fed. 81; W. D. Reeves Lumber Co. v. Leavenworth, C. C. A., 248 Fed. 686; Latham v. Chafee, 7 Fed. 520; White v. Whitman, 1 Curt. 494; Sharon v. Hill, 22 Fed. 28; Washburn & M. Mfg. Co. v. Scutt, 22 Fed. 710; Loring v. Marsh, 2 Cliff. 322; Gordon v. Gilfoil, 99 U. S. 168, 178, 25 L. ed. 383, 386; Crescent City L. S. Co. v. Butchers' U. L. S. Co., 12 Fed. 225; Dwight v. Cent. Vt. R. Co., 9 Fed. 785; North Muskegon v. Clark, C. C. A., 62 Fed. 694; Marshall v. Otto, 59 Fed. 249; Rejall v. Greenhood, 60 Fed. 884; Short v. Hepburn, 75 Fed. 113; Shaw v. Lyman, 79 Fed. 2; Brooks v. Vermont Cent. R. Co., 14 Blatchf. 463, Fed. Cas. No. 1,964; Beekman V. Hudson River West Shore Ry. Co. 35 Fed. 3; Barber Asphalt Paving Co. v. Morris, C. C. A., 67 L.R.A. 761, 132 Fed. 945; Burk v. McCaffrey, 136 Fed. 696; Mankato v. Barber Asphalt Paving

Co., C. C. A., 142 Fed. 329; Barnsdall v. Waltemeyer, C. C. A., 142 Fed. 415; New York Cotton Exch. v. Hunt, 144 Fed. 511; Weir v. Winnett, 155 Fed. 824; Borden's Condensed Milk Co. v. Baker, 177 Fed. 906; Chicago, B. & Q. R. Co. v. Weil, 183 Fed. 956; People's Gaslight & Coke Co. v. City of Chicago, 192 Fed. 398; Curlette v. Olds, 110 App. Div. (N. Y.) 596. The fact that a counter-claim was pleaded in the State court was held to make no difference in this respect. Burk v. McCaffrey, 136 Fed. 696. But see Gamble v. San Diego, 79 Fed. 487, and supra, § 57. Contra, Radford v. Folsom, 14 Fed. 97; Brooks v. Mills County, 4 Dill. 524; Lawrence v. Remington, 6 Biss. 44; Marks v. Marks, 75 Fed. 321; South Penn Oil Co. v. Miller, C. C. A., 175 Fed. 729. See Am. Confectionery Co. v. North British & Mercantile Ins. Co., 199 Fed. 195.

See D. E. Loewe Co. v. Lawlor, 130 Fed. 633; holding that an action, founded upon an act of Congress, against monopolies of Interstate Commerce was not affected by a previous suit in the State court for similar relief.

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vided that the parties to the two suits are the same.13 however, when the suit in the court of the United States is brought to enforce a cause of action of which the Federal jurisdiction is exclusive.14

The effect of the pendency of another suit for the same cause in another court of the United States has never been expressly decided.

Where the suits sought to set aside the same judgment and to subject to the payment of the judgment land in different districts, it was held that the pendency of one did not affect the institution and prosecution of the other.15 In such a case where the parties are the same, the court, where the first suit was brought, might enjoin the prosecution of the other suit.16 This might also be done if the prior suit involved an adjudication upon the validity of the right to use a machine affected by the second suit; 17 but not merely because the validity of the plaintiff's patent is attacked in another suit to enjoin the use of a different machine.18 Where the pendency of the former suit appeared on the face of the complaint it was held that it was waived when not raised by demurrer.19

A defense that another suit is pending, in which the complainant might obtain by cross-bill the relief now sought by him, is bad.20

refused to stay foreclosure proceedings pending a prior suit to set aside the mortgage, brought by a mortgagor in the Federal court in the same district, when it appeared that the mortgagor was an attorney in the State courts, who founded his suit upon a technical non-residence, and there were circumstances which made it probable that the action was brought to hinder and delay the mortgagee. Curlette v. Olds, 110 App. Div. (N. Y.) 596. See supra, § 57. Contra, R. M. Rose & Co. v. Southern Express Co., 223 Fed. 868; Woren v. Witherbee-Sherman & Co., 240 Fed. 1013.

13 Kirkpatrick v. Eastern Milling & Export Co., 135 Fed. 144. See

Wheeler v. McCormick, 8 Blatchf. 267; Steiger v. Heidelberger, 4 Fed. 455; s. c., 18 Blatchf. 426; Brooks v. Mills County, 4 Dill. 524, 527.

14 Photo Drama Motion Picture Co. v. Social U. Film Corp. 213 Fed. 374.

15 Ross v. Miller, C. C. A., 252 Fed. 697, 700.

16 Electric Vehicle Co. v. Barney, 143 Fed. 551.

17 Ibid.

18 Ibid.

19 Rederiaktiebolaget Amie v. Universal Transp. Co., C. C. A., 250 Fed. 400.

20 Washburn & M. Mfg. Co. v. Scutt, 22 Fed. 710.

66

A defense of lis pendens should set forth the commencement of the former suit, its general nature, character, and objects, whether it is at law or in equity, the relief prayed and how far it has progressed; 21 it should then aver specifically that the second suit is for the same subject-matter 22 as the first, and seeks the same or similar relief; 23 and further, that the former suit is still pending.24 It must show that the defendant was served or has appeared in the former suit.25 For it is no suit depending till the 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." 26 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.27 So where one partowner 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; 28 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.29 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,

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25 Moor v. Welsh, C. Co., 1 Eq. Cas. Abr. 39, pl. 14; Story's Eq. Pl., $737. See Urlin v. Hudson, 1 Vern. 332; Mitford's Pl., ch. 2, § 2, part 2. 26 Ibid. 27 Ibid.

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

29 Mitford's Pl., ch. 2, § 2 part 2, citing Crofts v. Wortley, 1 Ch. Cas.

241.

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