Page:Federal Reporter, 1st Series, Volume 6.djvu/815

 UNITED STATES V. GILLESPIE. 803 �United States v. Gillespie and another, Execntors, eto. �(Ovrcuit Court, D. New Jersey. April 22, 1881.) �1. EquiTT Practice— Federal Coubts— Plba in Abatembnt. �^ Under the rules of equity practice, matters in abatement may be pleaded in the federal courts, and need not be Bet up in the answer. �2. Same— Defectivb Parties. �Under such rules, however, the want of proper parties cannot be pleaded by the defendant, but such defect must be suggested ia the answer, as provided by the fifty-second equity ruie. — [Ed. �In Equity. �A. Q. Keasbey, for complainant. �Gilchrist de Parker, for defendants. �By the Coubt. This is an application to the court by the defendants, executors of Joseph L. Lewis, deceased, for leave to plead varions pleas. The matters specified in the notice, and sought tp he set up by pleas, merely suspend the right to sue, and are offered to defeat the particular proceeding instituted, rather than to relieve the defendants wholly from the demand, and hence are defences in abatement and not in bar. Such matters are expressly excluded from the provisions of the thirty-ninth equity rule, and we perceive no valid reason why the defendants should not be allowed to plead them, if they prefer so to do, rather than set them up in their answer. The leave, however, does not apply to the alleged want of proper parties to the suit. The fifty-second equity rule makes provision for such a speedy disposition of ail suggestions in the answer in regard to defective parties that nothing is gained and no necessity exists for a plea. �The defendants are allowed to plead ail matters in abate- ment, which, in the judgment of counsel, render the action premature under the provisions of the statutes pf the state of New Jersey. ��� �