answer, as in this case, must fail; and should, in my judgment, be made on the ground that the matter being waived, has become redundant or irrelevant.

There is no doubt that the rule and authorities on the subject of pleading matter in abatement with matter to the merits, is as stated by counsel for plaintiff.

But are these denials of the plaintiff's corporate existence generally, or of particular facts necessary thereto, or of its power to make the contract in question, pleas in abatement or in bar of the action? These denials are equivalent to an allegation that the plaintiff is not only without power to make this contract, but is really a fictitious person. A plea that the plaintiff is a fictitious person is sometimes classed by the text writers as a plea in abatement: 1 Chit. P., 482; Gould P., ch. V, sec. 38. But the latter, in section 60 of the same chapter, says: "That the plaintiff never was in esse, seems also to be a good plea in bar. For that a right of action should exist, in favor of an imaginary person, is plainly impossible."

This is not a case where an admitted cause of action is being prosecuted in the name of a fictitious person, like Doe v. Penfield, 16 John., 308. In that case, the fact that the plaintiff was a fictitious person was pleaded in abatement of the action, while the cause of action or indebtedness of the defendant to the real party in interest was not controverted. But this is a case in which the cause of action -the liability of the defendant-is bound up in and dependent upon the legal existence of the alleged plaintiff, and a denial or defense which puts that fact in issue, is, to all intents and purposes, a plea in bar, and unless expressly pleaded in abatement merely, should be so considered.

It is also contended by counsel for the plaintiff that the defendant having contracted with the plaintiff as a corporation existing under the laws of Great Britain, by the corporate name of "The Oregonian Railway Company, Limited," for the lease of its railway, is not now permitted to deny such corporate existence or the power to make such contract.

The law is well settled that a person who contracts with an apparent corporation as such, is estopped, when sued on such contract, to say that the plaintiff had no corporate existence or power to make such contract. A corporation, like an individual, when sued on a contract, may set up as a defense, its want of power or capacity to make such contract; but the party with whom it contracts cannot set up such want of power or capacity as a defense to an action by the corporation for a breach thereof. And the reason of the distinction is, that legal disability, as in the case of a minor, is a defense personal to the party who is under it, and cannot be taken advantage of by another: Cowell v. Springs Co., 100 U. S., 61; Bigelow on Estoppel (3d ed.), 464–5. But notwithstanding this, the defense of a want of corporate existence or power, if made, is not a "frivolous" one. A defense is only "frivolous" when it contains nothing that can affect the plaintiff's case: Witherell v. Wilberg, 4

Saw., 233. But these denials, unless the plaintiff sets up and claims the benefit of the estoppel, whenever the opportunity occurs, are a good defense to the action. They are material, and if the plaintiff waives the estoppel and goes to trial on the issue arising thereon and fail to prove its corporate existence and power, the verdict and judgment must go against it.

The matter which may estop the defendant in this case from denying the corporate existence of the plaintiff is the fact of its contracting with the latter as such corporation. If this fact did not already appear in the complaint the plaintiff could not have the benefit of the estoppel, unless he set it up in a replication; and that is the way in which the point is generally made in the pleadings. But in this case, the matter which operates as an estoppel-the contract of leasing-is set forth in the complaint. In such case the defendant may claim the benefit of the estoppel by a demurrer to the plea, which contains the defense, of a want of corporate existence or power: 1 Chit., p. 634; Bigelow on Estoppel (3d ed.), 591.

I have not seen a precedent of such a demurrer, but the form may be readily devised from the usual replication of an estoppal to a plea.

The demurrer should not be general-that the facts contained in the plea do not constitute a defense to the action-but special and to the effect that the defendant ought not to be heard or allowed to say or allege that the plaintiff is not a corporation or has no power to make the contract sued on, contrary to its own acknowledgment and deed, as appears by the complaint and is admitted by the

answer.

The first, second, third and part of the fourth and fifth of these denials are intended to and do controvert the corporate existence and power of the plaintiff and cannot therefore be considered frivolous; and the same may be said of the denial of the defendant's power to enter into this contract. But the question of the plaintiff's corporate existence, or the power of it or the defendant to execute the lease should more properly be made by demurrer to the complaint.

The denial of indebtedness is clearly frivolous; for taken as a whole, it only amounts to an averment that all the prior installments of rent have been paid. So of the denial that the plaintiff has complied with the laws of the state on the subject of foreign corporations. The act requiring certain foreign corporations to comply with certain provisions thereof before doing business in the state has no application to railway corporations, and is confined in its operation to the corporations mentioned in the title thereof: Or. & W. T. & I. Co. v. Rathbun, 5. Saw., 32.

But the motion to strike out on the ground of frivolousness being taken to the whole answer cannot be allowed in part, and is therefore disallowed altogether.

The defendant also moves for leave to file a third amended answer containing the same matter as the one under consideration with two

additional affirmative defenses. Without considering its materiality, I think proper to allow it to be filed, and thus give the plaintiff an opportunity to meet the defenses attempted to be made by it, in the light of this decision and as it may now be advised.

DISTRICT COURT OF ALASKA.

UNITED STATES v. KIE.

Filed November 10, 1884.

POWER OF DISTRICT JUDGE TO ADMIT TO BAIL-DEFENDANT CHARGED WITH MURDER, The power of a district judge under section 1,016 of the United States revised statutes, to admit a prisoner to bail in a criminal case where the punishment may be death, is discretionary. Such power should only be exercised when the necessity is most urgent, and when peculiar reasons exist and are shown to the court for granting the application. The fact that the prisoner is suffering from disease, which his confinement may have increased, is not sufficient to warrant his admission to bail, unless further confinement might seriously affect his body or mind, and possibly bring about his death.

RIGHT OF PRISONER TO SPEEDY TRIAL-CONFINEMENT TO AWAIT TRIAL.-Confining a prisoner to await his trial at the next regular term of the court, is not depriving him of his right to a speedy trial, as guaranteed by the constitution of the United States. Nor does the fact that such confinement must necessarily continue until such term entitle the prisoner to be admitted to bail.

APPLICATION of defendant charged with murder to be admitted to bail. The opinion states the facts.

John J. McLean, for the petitioner.

E. W. Haskett, U. S. Attorney, for the United States.

MCALLISTER, J. This is an application on behalf of one Charles Kie by his attorney, John J. McLean, Esq., to be admitted to bail, although said Kie is in confinement on a charge of murder.

The petition contains several clauses, and various matters are set out in support of the application.

After most carefully examining these several clauses I am of the opinion that there are only two which the court can properly consider: namely, the second clause as regards the physicial condition of the prisoner, and the probable effect that a longer period of confinement may have upon his health, and the fifth clause as regards the said prisoner's constitutional right to a speedy trial. The other matters alleged and set out in the petition, are, I think, immaterial, and allowing that the facts are as herein stated, the court could not, upon that showing, admit the prisoner to bail: therefore I shall confine myself to the consideration of the second and fifth clauses.

By section 1,016 of the revised statutes of the United States, authority is given any judge of a district court to admit to bail in a criminal case where the punishment may be death; the statute also provides "that the judge shall exercise his discretion, having regard to the nature and circumstances of the offense, and of the evidence, and to the usages of law." This petition appeals directly to that

discretionary power which the statute vests in the judge, and I have examined it with great care.

First, I shall consider the second clause, or ground, upon which which the application is made. It is as follows: "That the above named defendant has been confined in prison, and in irons continuously, since about the twelfth day of July, 1884, being in charge of the naval authorities for a part of the time, and now at the present time in charge of the United States marshal for this district. During this period of confinement the above named defendant has suffered from disease, and this disease has been rendered more acute and painful by his close confinement, this disease of his body has affected his mind so much so that his attorney believes that melancholy has been superinduced by the same, and that much further delay in admitting him to bail will render him insane, or result in his death. Hereunto is appended the certificate of Doctor Hugh S. Wyman, a regular practicing physician and graduate of medicine, of the university of Michigan, as follows:

8

"U. S. MARINE HOSPITAL SERVICE, DISTRICT OF THE PACIFIC,
"PORT OF SITKA, A. T., SURGEON'S OFFICE.

} "I certify on honor, that, having examined Charles Kie, I find him to be suffering from secondary syphilis, complicated with derangement of the heart's action, and much constitutional debility.

"H. S. WYMAN, M. Ď.”

As to the first allegation as regards the length of time the prisoner has already been confined, to wit: from the twelfth day.of July, until now, some four months, it is in my judgment, considering that he is charged with murder, not an unreasonable confinement, especially under the somewhat peculiar circumstances of the case; the facts, as developed at the preliminary examination, show that on the twelfth day of July, last, there was no civil law in this territory, that the prisoner was arrested and delivered over to the custody of the naval authorities, and after the arrival of the civil officers in the territory in the early part of October, was delivered into their custody. On the twenty-first day of October a preliminary examination was held and the prisoner duly committed on a charge of murder and is now in custody awaiting the action of the grand jury.

This confinement certainly is not unreasonable; but it is alleged that during this last-mentioned period, and at the present time, the prisoner is suffering from a most painful disease, which has seriously affected his body and mind; this presents a serious question, and one deserving of most careful examination. The fact that a prisoner, although confined in prison on a most grave charge, is ill and suffering, and that his sufferings are aggravated by his confinement, should appeal most strongly, in my judgment, to that discretionary power with which the court is clothed, to be exercised, however, as the statute says, "with regard to the nature and circumstances of the offense, and of the evidence, and the usages of law," and this power, above all, is to be exercised with great discretion, so that, while, on the one hand, a prisoner should not

be allowed to languish in jail, on the other hand, the court should not, except upon the strongest grounds, and the clearest evidence, open the prison door, and by so doing put it in the power of the prisoner to escape; therefore, bail should only be allowed in such a case as this, when the necessity is most urgent, when peculiar reasons exist, and are shown to the court, for granting the application. I may almost say it should be an extreme case which would justify the court in granting such a petition as the one now before me; whether this is such a case, I have most serious doubts.

There is undoubtedly evidence before the court to the effect that the prisoner is suffering from a painful disease, and that his confinement may have increased it; it is also probable, and, no doubt, this disease, and the confinement he has undergone, may have weakened him somewhat; but there is no evidence that the prisoner is in such a condition, either of body or mind, that the court should look upon this as an exceptional case. As I before remarked, the question presented is a serious one, and not free from difficulty; and if the evidence before me had sustained the allegations in the petition, and it had been shown to my satisfaction that the prisoner was in such a physical condition that further confinement might seriously affect him in body and mind, and possibly bring about his death, I would unhesitatingly grant the prayer of the petitioner, and admit the prisoner to bail; but, from the evidence before me in support of this allegation, and from my own knowledge of the physical and mental condition of the prisoner, I am of the opinion that, under the circumstances, this said prisoner, Charles Kie, has neither been confined an unreasonable time awaiting trial, nor is he at the present time in such a condition, either physically or mentally, as to cause the court to exercise its power under the statute, and admit him to bail.

I now come to the fifth clause of the petition, which is as follows: "The continued imprisonment in the common jail at Sitka, Alaska territory, of the said defendant is illegal and unjust in that he, the said defendant, is entitled to a just and speedy trial, according to article six of the amendments to the constitution of the United States of America, and he therefore prays that this to to him vital right be immediately granted by admitting him to bail."

By the provision of the constitution mentioned in the above clause of the petition, the prisoner undoubtedly has the right to a speedy trial. All persons held on a criminal charge have the legal right to demand a speedy and impartial trial by jury. The right was guaranteed to the English people by the great charter; it has been confirmed in subsequent bills of right, iterated and reiterated by the courts time and again. In this country the same right is also generally guaranteed by the constitutions of the several states. That the prisoner may claim this right, there is no doubt; but what is to be understood by a speedy trial, is the question now to be determined. It is clear that one arrested and put in jail has not the right