12 F. 225 | U.S. Circuit Court for the District of Eastern Louisiana | 1882
(Billings, D. J., concurring.) This canse has been set down for hearing, and heard, on demurrer and pleas. The demurrer is a general one, going to the whole bill. The questions raised by it have been practically disposed of on the hearing heretofore had for a preliminary injunction. As we adhere to our opinions given on that hearing, the demurrer must be overruled.
The first plea sets up a forfeiture of complainant’s charter and rights by reason of having removed the grand slaughter-house, as originally located on the right bank of the Mississippi river, under the provisions of act No. 118 of 1869, to the left bank of the river. This plea is insufficient, as, under the terms of said act 118 of 1869, such removal would not work a forfeiture of complainant’s charter and exclusive rights, even if such forfeiture could be inquired into collaterally.
The second plea is to the jurisdiction of the court, on the ground that both complainant and defendant are citizens of Louisiana. The federal question involved in this suit, to-wit, the constitutionality
The third plea sets forth that there is a suit between the same parties on the same causes of action depending in the state court. This plea is insufficient in 'form and substance in not' showing when the suit in the state court was commenced, — whether prior or subsequent to this suit-; whether -issue was- joined, etc. See Story, Eq. Pl. § 737. And it is insufficient, in law. Stanton v. Ebury, 93 U. S. 554; Ins. Co. v. Brune, 96 U. S. 588.
The fourth plea avers certain articles of, the Louisiana constitution of- 1879, abolishing monopolies and giving the regulation of slaughter-houses to the municipal corporations, which latter have enlarged the limits within which slaughtering of animals for food may be done. The effect of the article of the Louisiana constitution abolishing monopolies, as affecting complainant’s rights, has been passed upon in this case. We still adhere to the opinion that complainant’s exclusive right, contracted under act No. 118 of 1869, is not affected by the constitution of 1879. This plea also must be held insufficient.-
We notice that with the demurrer to the whole bill and four separate pleas, each going to the whole bill, there is also filed an answer to the whole bill, in which all the matters averred in the pleas are again set forth. Under the thirty-second equity rule a defendant may demur to part of a bill, plead to part, and answer as to the residue. Under the thirty-seventh equity rule no demurrer or plea shall be held bad and overruled upon argument only, because' the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. But we do not understand that there is any rule that allows a defendant to demur to the whole bill, plead to the whole bill, and answer to the whole bill at the same time. The effect of such pleading is that the plea is taken as waiving the demurrer, and the answer as waiving the plea. See Daniell, Ch. 787, 788.
In this view of the ease, as well as for reasons before given, the demurrer and pleas filed herein should be overruled. And it is so ordered.
See same case, 9 Fed. Rep. 743.
