Page:Federal Reporter, 1st Series, Volume 9.djvu/802

 DWIGHT V. CENTBAL VEBMONT B. CO. 787 �eitizens of Vermont, Massachusetts, and Maine, whose names are kno'wn to and ascertainable by the orators, and not by the defend- ant, and demurs to the bill for want of the necessary parties. �None of these pleas is supported by answer. AU of them, and the demurrer, have been argued. They may properly be considered in the inverse order of their statement. �The last one, that of the Vermont Central Eailroad Company, la not in the proper form and sufficient, even if the fact that there were stockholders, eitizens of Vermont, Massachusetts, or Maine, not invited to take part in the prosecution of the suit, would defeat it. In Buch cases the defendant should, at law, give the plaintiff a better writ, by setting eut the name and identifying the party whose exist- ence is alleged to create a fatal non-joinder, so that the plaintiff may traverse the allegation and form a definite issue to be tried, or discon- tinue and bring a new suit, joining the proper parties, upon the information given. The rules of pleading are the same in equity as at law, unless the reasons of them are varied by the different methods of procedure. There is no reason growing out of the proceedings in equity for varying this rule. The orators have the right to have the names of the stockholders, if there are any in those states whose existence would defeat the suit, set forth, so that they could traverse the existence of the persons or the fact of their being stockholders. They could not do that upon these allegations. There is no person named whom they may say is not a stockholder, or about whom they may say there is no such person. A traverse of the plea in its terms would put in issue what the orators know that the defendants do not know about the stockholders in those states. It would be quite singu- lar if a suit should be abated at the instance of defendants on account of the supposed existence of persons whom they cannot name or identify. The want of such persons as parties is not likely to harm them. Hotel Co. v. Wade, 97 U. S. 13. �The pleas of Clark and Worthington C. Smith are to the same effect, and so nearly alike that they may well be considered together. They have been spoken of in argument as pleas to the jurisdiction of the court, or to the ability of the orators to bring suit, or as pleas in abatement otherwise; but, correctly speaking, they are not either. The orators and defendants are alleged in the bill to be eitizens of different states. This fact gives the court jurisdiction of the con- troversy between them, and enables the orators to bring the suit, and to maintain it if they can establish their case. The refusai of the= ��� �