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be sued within the district,4 or whose residence, or citizenship, would defeat the jurisdiction, need not be joined.
The liability for tort is joint and several. Consequently one or more of the tortfeasors may be made party defendant to an action for a tort. 8 This is the case in an action against trustees for the negligent management of their trust.' The failure to prove a conspiracy charged in a civil action is not a ground for its abatement.10
The United States may sue at common law upon a contractor's bond for the benefit of subcontractors, laborers, and material men, when the liability of the sureties is contested. 11 When there is no such contest, the suit is treated as if brought for the distribution of a fund in court and must be brought in equity. 12 An action may be brought at common law in the name of the United States upon the bond of a clerk of a Federal court or of a postal clerk 14 for the benefit of the persons injured, by the defendant's misconduct, or other defalcation..
Where it appears that one of two or more joint plaintiffs have no interest in the relief prayed, the action should be dismissed.15 It was so held where one of them had consented to the act of which complaint was made.16
4 Clearwater v. Meredith, 21 How. 489, 493.
5 Ibid, Camp v. Gress, 250 U. S. 308, 316, affirming, C. C. A., 244 Fed. 121.
6 Clearwater, v. Meredith, 21 How. 489, 493.
7 Mississippi & Missouri R. R. Co. v. Ward, 2 Black 485, 17 L. ed. 311, supra, $ 119.
9 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co. 8 Blatchf. 347, supra, $ 119.
10 Medlin Milling Co. v. Moffatt Commission Co., 218 Fed. 686.
11 Illinois Surety Co. v. U. S. to the use of Peeler 240 U. 8. 214, 223.
12 Ibid., 240 U. S. 214, 225; supra, $ 5a.
18 U. S. v. Bell, 127 Fed. 1002. See Kinney V. U. S. Fidelity & Guaranty Co., 182 Fed. 1005 holding that in such an action for the clerk's refusal to enter judgment and issue execution against a garnishee, the burden rests upon plaintiff to prove that the judgment could have been collected if the execution had been issued.
14 U. S. v. U. S. Fidelity & Guaranty Tr. Co., C. C. A., 742 Fed. 16; holding that in such an action the defendant could not move for an interpleader.
15 Southern Ry. Co. v. Meaher, 238 Fed. 538. But see Morton v. Ft, Lyon Canal Co., 238 Fed. 501.
16 Southern Ry. Co. v. Meaher, C. C. A., 238 Fed. 538.
Otherwise, the State practice as regards the joinder of plaintiffs or defendants 18 in actions at common law is usually followed. This is the case as regards the omission of a woman, even when she is an alien. 19
$ 454c. Joinder of causes of action at common law. The State practice is usually followed as to the right to join different causes of action at common law in the same suit.1
Before the act of March 3, 1915,2 legal and equitable causes of action could not be joined in the same suit, although this was permitted by the State practice.3
A count upon a special contract for the performance of services or the sale of material can usually be joined with a count upon a quantum meruit. So in an action by the assignor of a contract, may be a count to recover in his own right with one to recover for the benefit of the assignee. In trespass on the case, two causes of action held by the plaintiff which arise out of substantially the same transactions and depend upon substantially the same evidence may usually be joined. Such are claims for criminal conversation with the plaintiff's wife and for alienation of her affections. In an action by the United States to recover the value of imported merchandise forfeited because of false invoices and declarations, the plaintiff's pleadings may aver both a false invoice presented to a consul in France and a false declaration upon a written entry in the United States.8 Under the Alaska statute in a suit against
17 Delaware Co. Com 'rs v. Diebold S. Co., 133 U. S. 473, 488, 33 L. ed. 674, 680; Perry v. Mechanics' Mut. Ins. Co., 11 Fed. 478; United Mine Workers of America v. Coronado Coal Co., 258 Fed. 829.
18 Columbia Digger Co. v. Rector, 215 Fed. 618.
19 Morning Journal Ass 'n Smith, C. C. A., 56 Fed. 141.
$ 454c. 1 Castro v. De Uriarte, 12 Fed. 250 Columbia Digger Co. v. Rector, 215 Fed. 618; United Mine Workers of Am. v. Coronda Coal Co., C. C. A., 258 Fed. 829.
But see O'Connell v. Reed, C. C. A., 56 Fed.
531; Bowden v. Burnham, C. C. A., 59 Fed. 752; Holt v. Bergevin, 60 Fed. 1.
2 38 St. at L. 956, quoted supra, $ 206.
3 Berkey v. Cornell, 90 Fed. 711.
4 Guerini Stone Co. Carlin Constr. Co., 248 U. S. 331.
5 Light v. Gray & Davis, 250 Fed: 631; Light et al. v. Gray & Davis, Inc.
6 Harper v. Harper, 252 Fed. 39. 7 Ibid.
8 U, S. v. Leon Rheims Co. et al., 246 Fed. 179.
officers and directors of a bank a cause of action for permitting subscribers to surrender stock may be joined with one for declaring an illegal dividend. In a suit for personal injury to an employee averments of negligence in failing to provide a safe place to work and by employing an incompetent fellow servant do not state separate causes of action.10 In the districts of New York injury to the person and injury to the property caused by the same acts of negligence are two separate causes of action. 11
Where causes of action which might have been joined as separate counts are improperly joined in a single count the plaintiff cannot be compelled upon the trial to elect between them. 12
8 454d. Pleading facts affecting the jurisdiction. The plaintiff's pleading must show the jurisdiction, including the defendant's residence. Where the State practice permits the institution of a suit by a notice of motion, the notice must show the facts essential to confer the Federal jurisdiction.
It is the safer practice to plead an objection to the jurisdiction by a special plea in abatement, no matter what the State statute may be ; 3 but this is not always indispensable where the State practice permits matters in abatement to be joined with other defenses. Where the State practice so permits, a general denial in the defendant's answer puts in issue the allegations in plaintiff's pleading concerning citizenship. In actions of as
9 Jesson et al. v. Noyes, C. C. A., Fed. 574; Jones v. Rowley, 73 Fed. 245 Fed. 46; U. S. v. Leon Rheims 286; National Masonic Ass 'n v. Co., 246 Fed. 179.
Sparks, 83 Fed. 225. See Hartog v. 10 Balaklala Consol. Copper Co. v. Memory, 116 U. S. 588, 29 L. ed. Whitsett, C. C. A., 221 Fed. 421. 725; Foster v. Cleveland, C., C. &
11 Borden's Condensed Milk Co. St. L. Ry. Co., 56 Fed. 434; Bjornv. Joseph Mosby, C. C. A., 250 Fed. quist v. Boston & A. R. Co., C. C. A., 889. See Reilly v. Alphalt Paving 250 Fed. 929. It has been held that Co., 170 N. Y. 40.
this cannot be done in the districts 12 Balaklala Consol. Copper Co. v. of Ohio. Kimball v. Detroit, M. & Whitsett, 221 Fed. 421.
T. S. L. Ry., 189 Fed. 409. $ 454d. 1 Laskey v. Newton, 50 4 Steigleder v. McQuesten, 198 U. Fed. 634.
S. 141, 49 L. ed. 986; Cole v. Car2 West Fork Glass Co. v. Innes- son, C. C. A., 153 Fed. 278; Leonard Weld Glass Co., C. C. A., 178 Fed. v. Merchants' Coal Co., C. C. A., 162 205.
Fed. 885. 8 Imperial Ref. Co. v. Wyman, 38 5 Roberts v. Lewis, 144 U. S. 653,
sumpsit brought in one of the districts of Virginia a plea of non-assumpsit does not raise this issue. In the Second Circuit the State practice is not followed and a defense upon the merits waives an objection to the jurisdiction founded upon the residence of either party although the two defenses are joined.?
If the defendant had no knowledge or information sufficient to form a belief that the plaintiff's averments of citizenship and residence were untrue at the time when he filed his original pleading and until after the expiration of the period within which he might amend as of course, he may be granted leave to file a plea in abatement, denying the allegations of citizenship or residence as the case may be 8 He must then, however, withdraw his other defenses since the plea to the jurisdiction should not be joined with a plea to the merits. If he insists upon both, it may be held that he waived the objections to the jurisdiction, if this affected the residence only and was consequently capable of waiver.10 If the plea to the jurisdiction is overruled upon the law or the facts, the defendant may be granted leave to plead a defense to the merits. 11
If the allegations concerning the jurisdiction are denied in the answer, the burden of proof to establish difference of citi
36 L. ed. 579; Roberts v. Langenbach, C. C. A., 119 Fed. 349; Lindsay-Bitton Live Stock Co. v. Justice, (. (. A., 191 Fed. 163.
6 Donati v. Cleveland Grain Co., (. C. A., 221 Fed. 168.
7 Kever v. Reading Coal & Iron Co., C. C. A., 260 Fed. 534, 542, in which the author was counsel. Roman V.
Lehigh Valley Coal Co., 242 Fed. 595, a defendant, who removed an action against him by a citizen of the State in which the action was brought and answered to the merits, waived jurisdiction over his person so long as plaintiff was a citizen of that State; but, when an alien was substituted as plaintiff, defendant then had a right to withdraw his answer and interpose a plea to the jurisdiction.
Valley Coal Co. Washko, C. C. A., 231 Fed. 42, 46, modifying Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547.
9 Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547; Kever v. Phila. & Reading Coal & Iron Co., 234 Fed. 814, S. C. 241 Fed. 883; Lehigh Valley Coal Co. v. Washko, C. C. A., 231 Fed. 42, 47. 10 Ibid.
See supra, $ 62a. 11 Philadelphia & Reading Coal & Iron Co. v. Kever, C. C. A., 260 Fed. 534. Certiorari denied, 250 U. S. 665, 40 Sup. Ct. 13. See Bryan v. Louisville & N. R. Co., C. C. A., 244 Fed. 650.
zenship is upon the plaintiff.12 When the issue as to citizenship or residence 18 or as to the amount in controversy 14 is set up by a plea in abatement, the burden of proof is upon the defendant.
A defense that there is a lack of the requisite diversity of citizenship 15 or the cause of action is not within the Federal jurisdiction 16 cannot be waived and may be asserted whenever it appears in the record or the evidence.
8 454e. Pleadings by defendant in action at common law. In general. In actions at common law, the defendants' pleadings must usually conform to the State practice. This is the case as regards the joinder of defenses. 2
It has been said that where the United States sues to enforce a Federal statute, the State laws and practice are considered as those of a foreign jurisdiction and need not be followed.3
The subject of demurrers is subsequently discussed.
Where the plaintiff's pleading is not alternative or double, a traverse in a plea'at common law other than the general issue is technically improper. Where, however, the previous pleading has incorporated therein a traverse of a possible plea in avoidance thereof, the adversary may incorporate in a plea of confession and avoidance a traverse of such anticipatory traverse. In such a case this traverse cannot be disregarded nor strieken out? and may render the plea good as against a demurrer.
When the general issue has been pleaded, or there is a similar
12 Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. ed. 579.
13 Sheppard v. Graves, 14 How. 505, 14 L. ed. 518; Philadelphia & Reading Coal & Iron Co. v. Kever, C. C. A., 260 Fed. 534, 542.
14 Hunt v. New York Cotton Exchange, 205 U. S. 322, 333, 27 Sup. Ct. 529, 51 L. ed. 821.
15 Kever v. Reading Coal & Iron Co., C. C. A., 260 Fed. 534, 542.
16 Lewicki v. John C. Wiardi & Co., 213 Fed. 647. $ 454e.
1 McIntyre v. Modern Woodmen of America, C. C. A., 200
Fed. Prac. Vol. III-2
Fed. 1; Patterson v. Jacksonville
2 Cole v. Carson, C. C. A., 153 Fed. 278; Leonard v. Merchants' Coal Co., C. C. A., 162 Fed. 885.
3 V. S. v. Rubin, 227 Fed. 938.