Matters in abatement, such as lis pendens and objections to the jurisdiction of the court, can now be set up by answer.2 Formerly, matters in abatement which did not affect the jurisdiction and objections to the character of the parties and matters of form, could not be so pleaded.3

Facts that have occurred since the filing of the bill may be so pleaded by the defendant."

The defenses must be pleaded with sufficient certainty, although it seems that the same degree of certainty is not required in an answer as in a bill nor as formerly, in a plea.

The general rule is that no affirmative defense can be proved unless it has been set up in the answer, but the failure of the

tice was first authorized by the New York Code of Procedure, written by David Dudley Field. Lord Chancellor Loreburn (Harv. Law Rev., xxvi., p. 101): "A litigant may state in his defense what facts he relies upon, and at the same time may state that he contends that even if the facts be as alleged by the plaintiff, yet they furnish no cause of action. That is in effect a demurrer. There is no doubt that this practice is beneficial. It may be convenient that the question of law decided by the demurrer should be decided first, and if decided in favor of the defendent it will end the case, unless the plaintiff is allowed to amend and raise a fresh contention. It may be, and generally is, convenient first, to ascertain all the facts at a trial, and then to apply the law or equity, as the case may be. Which course is to be taken is usually agreed to by the parties, but, if not agreed, the judge can direct what is to be done. We find it very useful to have as much elasticity as possible in these things, and I am sure no one doubts that all relevant contentions both of fact and law ought to be stated in the pleadings. An answer to a bill in equity may

plead a former judgment in bar in connection with matters of defense to the merits. Mound City Co. v. Castleman, 171 Fed. 520. In a patent case the defendant may deny complainant's title to the patent and allege his own ownership therein and at the same time deny its validity. Cleveland Eng. Co. v. Galion Dynamic Motor Truck Co., 243 Fed. 405. See infra, § 188. Todd Protectograph Co. v. New Era Mfg. Co., 236 Fed. 768.

2 Eq. Rule 29.

3 Eq. Rule 39, of 1842; Pierce v. Feagans, 39 Fed. 587.

4 Earl of Leicester v. Perry, 1 Brown Ch. C. 305; Turner v. Robinson, 1 Sim. & S. 3.

5 Daniell's Ch. Pr. (5th Am. ed.) 714.

6 Maury V. Mason, 8 Porter (Ala.) 213, 228.

7 Stanley v. Robinson, 1 Russ. & M. 527; Cummings v. Coleman, 7 Rich. (S. C.) Eq. 509, 520, 62 Am. Dec. 402; Burnham v. Dalling, 3 C. E. Green (18 N. J. Eq.) 132; Daniell's Ch. Pr. (5th Am. ed.) 712; Black v. Thorne, 10 Blatchf. 66, 84; Sperry v. Erie Ry. Co., 6 Blatchf.

425.

opposite party to make this a ground of objection to the introduction of evidence in support of such omitted defense waives the defect.8

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:

Estoppel and purchase in good faith for a valuable consideration 10 are such affirmative defenses. The defense that complainant has an adequate remedy at law unless raised by motion to dismiss should be set up in the answer although the court may raise the same on its own motion.1 It has been held that when the fact appears, that the complainant has come into court with unclean hands because of fraudulent misrepresentations to the public concerning the subject-matter of the suit, his bill will be dismissed, although the defense is not pleaded.13 It has been said: that, if a defendant states in his answer certain facts as evidence of a particular case, which he represents to be the consequence of those facts, and upon which he rests his defense, he is not permitted afterwards to make use of the same facts, for the purpose of establishing a different defense from that to which by his answer he has drawn the plaintiff's attention.14 Thus it has been said that where fraud is set up in the answer "the party making the charge, if it is denied in a proper pleading, will be confined to that issue." 15

§ 176. Defenses in answer. In general. The defenses which were formerly usually or always included in pleas may now be set up by answer. Pleas have been abolished, and with them a vast amount of learning has been rendered obsolete.1 Defenses,

8 Lusk v. Bush, C. C. A., 199 Fed. 369.

9 Pennsylvania Co. v. Cole, 132 Fed. 668. But see Curtain Supply Co. v. Nat. Lock Washer Co., 174 Fed. 45; cited infra, § 188.

10 Great Northern Ry. Co. V. Hower, 236 U. S. 702; U. S. v. Grand Canyon Cattle Co., C. C. A., 247 Fed. 446.

11 Thomas v. South Butte Min. Co., C. C. A., 230 Fed. 968; infra, $ 376.

12 Reynes v. Dumont, 130 U. S. 354, 32 L. ed. 934; infra, § 376. 13 Memphis Keeley Institute Leslie E. Keeley Co., C. C. A., 16

V.

L.R.A. (N.S.), 921, 155 Fed. 964. 14 Langdell's Eq. Pl., § 79; Bennett v. Neale, Wightwick, 324.

15 French v. Shoemaker, 14 Wall. 314, 335, 20 L. ed. 852, 857. See $ 70. § 176. 1 A plea was a pleading which set up some reason not apparent upon the face of the bill why the defendant should not be obliged to answer the whole or a part thereof. Lord Redesdale defines a plea as special answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether the special matter

which formerly might be set up by plea and can now be included in an answer, are either defenses in abatement or defenses in bar to the suit. Objections in abatement include among them,

objections to the jurisdiction, objections to the person and objections to the bill.2 Objections to the jurisdiction are: (1) That the subject of the suit is not within the jurisdiction of a court of equity; (2) that some other court of equity has the proper jurisdiction; (3) that the defendant has not been properly served with process. Objections to the person are: (1) That the plaintiff has not the legal capacity to sue; either at all if an alien enemy, or alone if an infant," or without leave from the court if a receiver.8 (2) That the plaintiff is not the person. whom he pretends to be, or does not sustain the character which he assumes; as, for example, that he is not executor, or not assignee,10 or not a corporation,11 when suing as such; or that the suit is brought in the name of a fictitious person; 12 or that it is brought in the name of a person who sues for the benefit of another, through collusion or champerty; 13 or, it seems, in a

Langdell on Equity Pleading, where they will find the subject discussed at length with full references to the cases. They were abolished in England by the Judicature Act of 1873, but they endured in the Federal courts until the end of the year 1912 and are still used in the courts of a few of the States. It was as true when they were abolished as in the time of Beames, that the subject of pleas in equity is one "concerning which so much still remains to be elucidated, that it may be said of them, maxima pars eorum quae scimus est minima eorum quae ignoramus," Beames on Pleas, 61. See Am. Sulphite Pulp Co. v. Bayless Pulp & Paper Co., 163 Fed. 843, 844.

2 See Beames on Pleas, ch. 2; Story's Eq. Pl., §§ 705-708; Rule 39; Memphis City v. Dean, 8 Wall. 64, 19 L. ed. 326.

8 Story's Eq. Pl., 88 710-713.

4 Story's Eq. Pl., 88 714-716.

5 Larned v. Griffin, 12 Fed. 590; Williams v. Empire Tr. Co., 1 N. J. L. 315.

6 Albrech v. Sussman, 2 V. & B. 323; Story's Eq. Pl., § 724; Mumford v. Mumford, 1 Gall. 366.

7 Story's Eq. Pl., § 725. But see Dudgeon v. Watson, 23 Fed. 161. 8 See Newman v. Moody, 19 Fed. 858.

9 See Rubber Co. v. Goodyear, 9 Wall. 788, 792, 19 L. ed. 566, 567; Ord. v. Huddleston, 2 Dick. 510; Story's Eq. Pl., § 727.

10 Nicholas v. Murray, 5 Saw. 320.

11 Dental V. Co. v. Wetherbee, 2 Cliff, 555; Blackburn v. Selma, M. & M. R. Co., 2 Flip. 525; Emerson Co. v. Nimrocks, 88 Fed. 280. A limited partnership, organized under the laws of Michigan, was allowed, in the Second Circuit, to sue in equity in its copartnership name, where jurisdiction did not depend upon the citizenship. Sanitas Nut Food. Co. v. Force Food Co., 124 Fed. 302.

12 Chapman v. School Dist. No. 1, Deady, 108, 116.

13 Dinsmore v. Central R. Co., 19 Fed. 153. But see Sperry v. Erle Ry. Co., 6 Blatchf. 425.

stockholder's suit founded upon a right which may properly be asserted by the corporation, that the corporation has not refused to sue.14 It was held that the objection that the plaintiff was a lunatic and could not sue without a next friend could not be taken by plea, and that the proper course for the defendant was to move either to strike the bill off the file on account of the complainant's mental incapacity, or for a stay of the proceedings until a committee or next friend was appointed. 15 (3) That the defendant cannot be sued except upon the happening of some event which has not occurred, as under the former practice, that he was a receiver, and no leave to sue him had been obtained from the court by which he was appointed.16 (4) That the defendant is not the person he is alleged to be, or does not sustain the character which he is alleged to bear; or that the person named as a defendant is not a corporation when sued as such, in which case the person served with process on its behalf may file the answer in his own name, or was not incorporated under the laws of the State which is named in the bill as its creator; 19 or that the defendant has become a bankrupt or insolvent, and his interest in the subject-matter has passed to his assignee.20 It is improper to file an answer in the name of a defunct corporation by its successor.21 It was held: that it was too late to file a plea that the defendant corporation had been dissolved, when, after the alleged dissolution, counsel had argued on its behalf in support of a judgment in its favor, which was subsequently reversed.22 Objections to the bill are: (1) That there is another suit depending in a domestic court of equity for the same matter. (2) That there is a want of proper parties.

14 Newby v. Oregon Cent. Ry. Co., 1 Saw. 63, 67.

15 Dudgeon v. Watson, 23 Fed. 161.

16 Barton v. Barbour, 104 U. S. 126, 26 L. ed. 672; Jerome v. McCarter, 94 U. S. 734, 737, 24 L. ed. 136, 137; In re Young, 7 Fed. 855. But see 24 St. at L., ch. 373, § 3; infra, § 314.

17 Story's Eq. Pl., §§ 732-734. 18 Kelly v. Mississippi C. R. Co., 1 Fed. 564; s. c., 2 Flip. 581. See

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also Williams v. Empire Tr. Co., 1 N. J. L. J. 315.

19 Blackburn v. Selma, M. & M. R. Co., 2 Flip. 525.

20 Kittredge v. Claremont Bank, 3 Story, 590; Story's Eq. Pl., § 732 See also Doggett v. Emerson, 1 Woodb. & M. 196.

21 Underwood Typewriter Co. v. Fox Typewriter Co., 158 Fed. 476. 22 L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., C. C. A., 128 Fed. 332.