HORNFAGER v. HORNFAGER.

SUPREME COURT, SPECIAL TERM, OCTOBER, 1850.

[6 Howard, Practice Reports, 279.]

THIS was a motion by plaintiff to set aside the proceedings in an action for partition, commenced by the defendant, on the ground that an action for the partition of the same premises had been previously commenced by the plaintiff.

PARKER, Justice. Where it appears by the complaint that there is another action pending between the same parties for the same cause, the remedy is by demurrer (Code, § 144, sub. 3). When any of the matters enumerated in section 141 do not appear upon the face of the complaint, the objection may be taken by answer (Code, § 147). This is applicable to a suit brought by a defendant for partition. It is a suit between the same parties for the same cause.

The remedy is to set forth in the answer in the suit last commenced, the fact of the pendency of the first suit commenced.

Motion denied, but without costs.1

a plea in abatement and before pleading in bar of the action. Sperry's Case, S. Rep. 61 a; Harley v. Greenwood, 5 B. & Al. 95, 101; Bissill v. Williamson, 7 H. & N. 391, 393, 394. Pleas in abatement have been abolished in England, and, by the Judicature Act, 1873, § 24 (5), if an action is brought while another action is pending, the defendant may apply for a stay of proceedings in one or the other of the two actions. See Williams v. Hunt, [1905] 1 K. B. 512, 514. In many of the states in this country the former English practice still obtains. Stephens v. Monongahela Bank, 111 U. S. 197; Watts v. Sweeney, 127 Ind. 116; Carmian v. Cornell, 148 Ind. 83; Moore v. Spiegel, 143 Mass. 413; Near v. Mitchell, 23 Mich. 382; Engle v. Nelson, 1 Pen. & W. 442; Hartz v. Commw., 1 Grant (Pa.), 359; Commw. v. Cope, 45 Pa. 161 (semble); Maxwell v. First Bank, (Tex. Civ. Ap., 1894) 24 S. W. R. 848; Risher v. Wheeling Co., (West Virginia, 1905) 49 S. E. R. 1016.

In some states, pleas in abatement, as such, have been abolished, and the objection formerly taken by such pleas must be raised in the same mode as defences in bar, that is, by the defendant's answer. In consequence of this change a defendant may plead in the same answer the pendency of a prior action and defences in bar of the action. Page v. Mitchell, 37 Minn. 368; Gardner v. Clark, 21 N. Y. 399; Dawley v. Brown, 9 Hun, 461; Freeman v. Carpenter, 17 Wis. 126.

But see contra, Watts v. Sweeney, 127 Ind. 116; Hopwood v. Patterson, 2 Oreg. 49.

But in jurisdictions in which by statute dilatory matter may be pleaded, with defences, in the answer, the objection is waived, if not so pleaded. Hawkins v. Hughes, 87 N. Ca. 115; Blackwell v. Dibrell, 103 N. Ca. 270.

The plea or answer of a prior cause of action pending must make clear that the two causes of action are identical and between the same parties or their privies. Needham v. Wright, 140 Ind. 190. — ED.

1 Lake Co. v. Cowles, 31 Cal. 215; Smosk v. Graham, 1 Blackf. 314; Morton v. Sweetser, 12 All. 134; Moore v. Spiegel, 143 Mass. 413; Near v. Mitchell, 23 Mich. 382; Sullings v. Goodyear Co., 36 Mich. 313; People v. Smith, 65 Mich. 1; Williams v. McGrade, 18 Minn. 82, 88; Gregory v. Kenyon, 34 Neb. 640; Percival v. Hickey, 18 Johns. 257; White v. Talmage, 35 N. Y. Super. Ct. 223; Walton v. Walton, 80 N. Ca. 26; Hawkins v. Hughes, 87 N. Ca. 115; Wright v. Maseras, 56 Barb. 521; Engle v. Nelson, 1 Pen. & W. 442; Hartz v. Commonw. 1 Grant (Pa.), 389; Commonw. v. Cope, 45 Pa. 161, 164; Findlay v. Keim, 62 Pa. 112; Drake v. Brander, 8 Tex. 351 (semble); Williamson v. Paxton, 18 Grat. 475, 504 Accord.

Requisites of the Plea or ANSWER. — The plea must allege

(1) that the prior action was pending at the time of the second action brought. Moore

CHARLOTTE B. DILLAYE v. SMITH A. PARKS.

SUPREME COURT, NEW YORK, FEBRUARY, 1860.

[31 Barbour, 132.]

By the Court, BROWN, J. The disability of the plaintiff, who is a married woman, did not appear upon the face of the complaint. If the defendant, therefore, intended to avail himself of the coverture as a defence to the action, he should have set it up in the answer. She might then have shown, if it was in her power, that the action concerned her separate estate, and the precise question upon which the referee decided in favor of the defendant would have been presented by the pleadings. The defendant, however, in his answer, denied each and every allegation in the complaint only, and thus waived whatever advantage he might have had by pleading the coverture.2

v. Spiegel, 143 Mass. 413, 416; Jenkins v. Peporn, 2 Johns. Cas. 312; Haight v. Holley, 3 Wend. 258; Porter v. Kingsbury, 77 N. Y. 164; Hadden v. St. Louis Co., 57 How. Pr. 390; Porter v. Fuld Co., (N. Y. Ap. Div., June, 1906) 99 N. Y. S. 815;

(2) that it was still pending at the time of plea pleaded. Nelson v. Foster, 5 Biss. 44; Moss v. Ashbrooks, 12 Ark. 369; Bancroft v. Eastman, 7 Ill. 259; Johnson v. Johnson, 114 Ill. 611; O'Donnell v. Raymond, 106 Ill. Ap. 146; Moore v. Kessler, 59 Ind. 152 (but see Lee v. Hafley, 21 Ind. 98; Hale v. Miller, 131 Ind. 80); Hawley v. Chicago Co., 71 Iowa, 717; Lewis v. Higgins, 52 Md. 614; Wales v. Jones, 1 Mich. 254; Pew v. Yoare, 12 Mich. 16; Phelps v. Winona Co., 37 Minn. 485; O'Beirne v. Lloyd, 1 Sweeny, 19; Hopwood v.. Patterson, 2 Oreg. 49; Toland . Tichenor, 3 Rawle, 320; Gardner v. Kiehl, 182 Pa. 194; Polsey v. White Co., 19 R. I. 482;

(3) the identity of the cause of action and of the parties. 1 Encyc. Pl. & Pr. 757-763; (4) the designation of the court in which the prior action is pending. Miller v. Rigney, 16 Ind. 327; Fahey v. Brannagan, 56 Me. 42; Berger v. Moessinger, 5 Oh. C. C. 432; (5) a reference to the record of the prior action. Clifford v. Cony, 1 Mass. 495; Bullock v. Bolles, 9 R. I. 501; Polsey v. White Co., 19 R. I. 492.

But see Ward v. Dewey, 12 How. Pr. 193, 196. — Ed.

1 Only so much of the case as relates to the coverture of the plaintiff is given. - ED. 2 Morgan v. Painter, 6 T. R. 265; Walker v. Golling, 11 M. & W. 78; Powell v. Glenn, 21 Ala. 458; Morningstar v. Querens, 142 Ala. 186; Laster v. Toliver, 11 Ark. 450; Baldwin v. Second St. Co., 77 Cal. 390; Loomis v. Hollister, 75 Conn. 275; Albert v. Freas, (Md., 1906) 64 Atl. R. 282; Hayden v. Attleborough, 7 Gray, 338; Hubert v. Fera, 99 Mass. 198, 199; Jaha v. Belleg, 105 Mass. 208, 211; Simmons v. Thomas, 43 Miss. 31; Jordan v. Cummings, 43 N. H. 134; Dutton v. Rice, 53 N. H. 496; Stevens v. Bostwick, 2 Hun, 423; Beville v. Cox, 109 N. Ca. 265; Hoop v. Plummer, 14 Oh. St. 449; Woog v. Barnhart, 41 Oh. St. 177; Wilson v. Hamilton, 4 S. & R. 238; Sheidle v. Weishlee, 16 Pa. 134; Bates v. Stevens, 4 Vt. 545.

The rule is the same as to coverture of the defendant. Atwood v. Higgins, 76 Me. 423; Ross v. Linder, 12 S. Ca. 592.

It is for the plaintiff to reply, and not for the defendant in his plea of abatement to deny in advance, exceptional circumstances permitting a married woman to sue alone. Dutton v. Rice, 53 N. H. 496. But see Ferris v. Holmes, 8 Daly, 217, contra. — ED.

SMITH v. ALLEN.

SUPREME COURT, INDIANA, JUNE 7, 1861.

[16 Indiana Reports, 316.]

APPEAL from the Wells Common Pleas.

WORDEN, J. This was an action by the appellee against the appellant, to recover the value of certain personal property, brought before a justice, and appealed to the Common Pleas, in which Court there was a verdict and judgment.

The fifth1 error is that the plaintiff was proved to be a minor, and therefore could not maintain an action in her own name, without a next friend. This objection was made for the first time on the motion for a new trial. It was then too late. Pleading to the merits and going to trial, was a waiver of any objection on that ground, and ar admission of the plaintiff's capacity to sue.2

1 Only so much of the case is given as relates to this point.-ED.

2 Cowne v. Boules, 1 Salk. 93, 205; Howland v. Wallace, 81 Ala. 238; In re Cahill, 74 Cal. 52; Graham v. Cain, 2 Harringt. 97; Bartlett v. Batts, 14 Ga. 539; Edwards v. Beall, 75 Ind. 401; Albert v. State, 66 Ind. 325; Blood v. Harrington, 8 Pick. 552; Jaha v. Belleg, 105 Mass. 208, 211; Smith v. Carney, 127 Mass. 179; Sick v. Mich. Ass'n, 49 Mich. 50; Shuek v. Hagar, 24 Minn. 339 (objection by special motion, not by general denial); Gully v. Dunlap, 24 Miss. 410; Robinson v. Hood, 67 Mo. 660 (semble); Young v. Young, 3 N. H. 345; Smith v. Van Houten, 9 N. J. 381; Schemerhorn v. Jenkins, 7 Johns. 373; Fellows v. Niver, 18 Wend. 563; Treadwell v. Bruder, 3 E. D. Sm. 596; Parks v. Parks, 19 Abb. Pr. 161; Rutter v. Puckhofer, 9 Bosw. 638; Smart v. Haring, 14 Hun, 276; Sims v. N. Y. College, 35 Hun, 344; Rima v. Rossie Works, 47 Hun, 153 (discrediting Imhoff v. Wurtz, 9 N. Y. Civ. Pro. R. 48); Re Watson, 2 Dem. 642, 647; Hicks v. Beam, 112 N. Ca. 642; Woog v. Barnhart, 41 Oh. St. 177; Heft v. McGill, 3 Pa. St. 256; Drago v. Moso, 1 Speers, 212; Moke v. Fellman, 17 Tex. 367; Hepp v. Hueffner, 61 Wis. 148; Webber v. Ward, 94 Wis. 605 (semble) Accord. - ED.

Other instances of personal incapacity must be pleaded specially or the objection is waived.

Plaintiff an alien Enemy. - Shivers v. Wilson, 5 Har. & J. 130, 132 (semble); Burnside v. Matthews, 54 N. Y. 78.

Plaintiff an Indian. — Jaha v. Belleg, 105 Mass. 208; Jemmerson v. Kennedy, 55 Hun, 47. Plaintiff a Lunatic or Idiot. - Etna Co. v. Sellers, 154 Ind. 370; Lung v. Whidden, 2 N. H. 435; Blackwell v. Mortgage Co., 65 S. Ca. 105; Hoyt v. Hoyt, 58 Vt. 538.

Non-Residence of Plaintiff. - Gurney v. Grand Trunk Co., 37 N. Y. St. Rep. 557; Dutche v. Dutcher, 39 Wis. 651.

Non-Qualification of District Attorney. · Board v. Hackett, 21 Wis. 613.

Guardian. Plath v. Braunsdorf, 40 Wis. 107.

--

Failure to file Articles of Incorporation. — Ontario Bank v. Tibbits, 80 Cal. 68.

Failure of Corporation to appoint resident Agent. - Weaver Co. v. R. I. Co., (R. I. 1905) 61 Atl. R. 426.

Action premature. — That an action is brought too soon because of some statute postponing legal proceedings for a certain time, as, for instance, in the case of claims against executors, is matter for an affirmative dilatory plea. Goodrich v. Atlanta Ass'n, 96 Ga. 803; Pitts Co. v. Commercial Bank, 121 Ill. 582; Bacon v. Schepflin, 53 Ill. Ap. 17; Clements v. Swain, 2 N. H. 475; Kittridge v. Folsom, 8 N. H. 98.

Misnomer.- Misnomer is an affirmative dilatory plea or answer. Mayor v. Bolton, 1 B. & P. 40; Jowell v. Charnock, 6 M. & Sel. 45; McCreery v. Everding, 54 Cal. 168; Hammond v. Starr, 79 Cal. 556; Augusta Co. v. Teunville, 119 Ga. 804; Rhodes v. Louisville Co., 121 Ga. 551, 553; McIntosh Co. v. Aiken, 123 Ga. 647; Chicago Co. v. Heinrich,

Per Curiam. The judgment is affirmed, with costs, and 5 per cent. damages.

157 Ill. 388, 57 Ill. Ap. 399; Board v. Huffman, 134 Ind. 1; Gilbert v. Nantucket, 5 Mass. 97.

It is to be remembered that in many jurisdictions pleas or answers in abatement have been abolished. - ED.

CHAPTER VI.

SEVERAL PLEAS.

F. WENDLING, RESPONDENT, v. G. M. PIERCE, APPELLANT. SUPREME COURT, NEW YORK, MARCH TERM, 1898.

[27 New York Appellate Division Reports, 517.]

ADAMS, J. The plaintiff, a real estate broker, brings this action to recover the amount claimed to be due him by reason of his employment by the defendant to negotiate the exchange of his farm of about 400 acres for certain real estate in the city of Buffalo.

The answer of the defendant denies any employment of or indebtedness to the plaintiff. It then admits the execution of the contract for the exchange of the property referred to in the complaint and alleges that the defendant was induced to enter into the same by reason of the false statements and representations made by the plaintiff as the agent or representative of one Harmon Frost, the other party to the contract, and that when he, the defendant, discovered the fraud which had been practiced upon him he refused to complete the exchange and so notified both the plaintiff and Frost.

The allegations respecting the representations made by the plaintiff were regarded as irrelevant by the Special Term, and it is from the order striking them from the answer that this appeal is brought. The theory upon which this order was granted was that the allegations of the defendant's answer were inconsistent with each other, as possibly they were; but we do not understand that consistency is any longer required of a defendant in pleading several separate and distinct defences.

The former Code of Procedure (§ 150) permitted a defendant to set forth in his answer as many defences and counterclaims as he might have; and under this system of pleading it was repeatedly held that defences which were utterly inconsistent with each other might be properly united in the same pleading, as, by way of illustration, a denial of speaking the words, and an allegation that the words spoken were true, in an action of slander (Buhler v. Wentworth), or a denial and a justification of the taking in an action of replevin. Hackley v. Ogmun.2

When the present Code of Civil Procedure was enacted, in 1876, an

1 17 Barb. 619.

210 How. Pr. 44.