77 F. 857 | U.S. Circuit Court for the District of Rhode Island | 1897
In this action of trespass quare clausum fregit file defendant pleads in abatement that, before the commencement of the present action, the plaintiff “impleaded” the defendant “in a suit in equity in this court, by bill of complaint, for the identical trespasses in the said writ and declaration mentioned.” ! pon general demurrer to the plea the plaintiff makes objection that it is not verified by affidavit, nor supported by the certificate of counsel, as required by sections 2 and 3 of rule 8 of the rules of the circuit court for the First circuit. This objection goes only to the reception of the plea, and. the irregularity is waived by the filing of a demurrer, the office of which is to> put in issue the legal effect of the plea after- it has been received. Bank v. Slocomb, 14 Pet. 60; Goodyear v. Toby, 6 Blatchf. 130. Fed. Cas. No. 5,585.
The plea, therefore, must be considered upon its merits. As a court, of equity has no jurisdiction over a case identical with the present action, the prior suit in equity either must be defective, or must differ in scope from the present action. Since the jurisdiction of equity is limited to cases in which the law does not afford a complete and adequate remedy, it has been held by cases both at law and in equity that two causes, one at law, one in equity, are ex necessitate so dissimilar that the pendency of one cannot he pleaded in abatement, of the other. Blanchard v. Stone, 16 Vt. 234; Hatch v. Spofford. 22 Conn. 498; Kittredge v. Race, 92 U. S. 116; Colt v. Partridge, 7 Metc. (Mass.) 570; Black v. Lackey, 2 B. Mon. 257; Graham v. Meyer, 4 Blatchf. 129, Fed. Cas. No. 5,673; Story, Eq. Pl. § 742.
