By a reference to the plea, which is printed in full above, it will be seen that it is to the jurisdiction of the court, and pleads that this court has not now, and never had, and cannot have, jurisdiction over the defendant; is specifically in bar, and prays that the defendant shall be dismissed from the suit.

Since the pleading defendant is a corporation incorporated under the laws of the State of New Jersey, and the subjectmatter of the suit is one within the jurisdiction of the court of chancery of New Jersey, it would be a denial of justice for the court in this suit, merely because process had not been properly served upon the defendant, to order or decree that this court has no jurisdiction, and never had, and never can have; or that, by failure to properly serve the defendant, the complainant's suit is barred; or to dismiss the defendant from this properly brought suit.

The utmost limit of the right of the defendant in this suit is not to be called upon to answer the bill, unless and until it is properly brought before the court for that purpose. The sole question before the court in this suit is whether the subpoena was duly served as required by law upon the defendant. The determination of this question does not affect the jurisdiction of the court, properly speaking, at all; it merely affects its ability to enforce its jurisdiction over the person of this defendant.

What might be termed pure pleas to the jurisdiction (and those to which, in my judgment, they should always have been. confined) were cases where the determination on the plea settled the jurisdiction of the court over the subject-matter. There were, however, some questions which were permitted to be settled by pleas to the jurisdiction which did not determine that the court might not have jurisdiction over the subject-matter, but did settle that at that time it had not, and, therefore, the suit abated. In England, at the time when we inherited the chancery practice, pleas to the jurisdiction of the court were used to assert that the court of chancery of England was not the proper court to take cognizance of the rights sought to be enforced by the complainant; and those which were based upon the person of the complainant or defendant asserted that the complainant was in

capacitated to sue, or that the defendant was not the person who ought to be sued.

Under the first head of such pleas, the fact that the defendant, for some reason, was solely suable in some other court was a proper subject-matter, and for this reason the defendant was required always to set out the other court which had exclusive jurisdiction. If he did not do this, his plea was bad, because the court of chancery had jurisdiction of all cases of equitable cognizance, and the assertion in the plea that the court of chancery of England did not have jurisdiction, without asserting what court had, really set forth a cause of demurrer and not of plea-it merely asserted that the case was not one of equitable cognizance. Mitf. Pl. (6th Am. ed. from 5th Lond. ed.) 258, *219, 262, *223, 263, *224, 265, *226; Story Eq. Pl. § 705; Beam. Eq. Pl. 53; Fletch. Eq. Pl. & Pr. 289.

Generally speaking, in the courts of the different states, there is no analogous plea of privilege-corporations and individuals being liable to suit where "found."

The real question most often sought to be raised does not really go to the jurisdiction of the court at all, but merely to its right to enforce that jurisdiction with respect to a defendant who claims that he has not been found within the jurisdiction, has not, in other words, been properly brought before the court for judgment.

At law there were two classes of pleas to the jurisdiction of the court-those in bar, and those in abatement. But the study of the course of pleading at law will not be very helpful to us because of the difference between the practice in the two courts.

At law, the foundation of the suit is the writ; whereas, in equity, the foundation of the suit is the bill. If the writ was abated at law, the suit necessarily fell with it; whereas, in equity, the subpoena could be set aside or abated or quashed without affecting the stability of the bill at all.

At law, the return of the officer upon the process was conclusive, and if it was false, the remedy was not to disprove it in that suit and have it set aside, but the party was relegated to his action against the officer for a false return.

There will not, therefore, be found in the early precedents at law any pleas in abatement or in bar based upon the allegation that the writ was not served by the officer in the manner in which his return purports to show that it was served.

The presumption just stated concerning the truth of the officer's return even went to what the courts termed "the opinion of the officer"-that is to say, his designation of the character of the person whom he served, whether as agent or as director, or as a member of the family, or what not. Von Roy v. Blackman (United States Circuit Court, 1877), 3 Woods 98.

In equity, the subpoena was not of the same nature as the summons or other process at law, but was a mere notice. It was not required, under our practice, to be served by the sheriff or any other officer, and might be served by an individual. This was subsequently changed by statute.

The necessity, at law, of the declaration following the writ, and of the effect of a variance between the two, and other like matters, contradistinguish the pleadings in equity from those at law to such a degree that there is, as above stated, little or no analogy between the course of pleading in the two courts in this respect, at least.

Even at law, when a plea of the nature of the one interposed in this case was first brought to the attention of our supreme court, Chief-Justice Beasley remarks that he could not find any model of the same in any of the books, but sustained it by reason of its analogy to a plea for which he did find a precedent. Camden Rolling Mill Co. v. Swede Iron Co., 32 N. J. Law (3 Vr.) 16. With the utmost deference to the very learned judge who decided this case, I cannot refrain from suggesting that he fell into an error therein similar to that which appears in some of the later cases in our own court, with which I shall have occasion to deal hereafter. A New Jersey creditor was seeking to enforce a right of a transitory nature against a foreign corporation. The New Jersey court had jurisdiction if it could properly get the defendant into court. Unless the defendant, the foreign corporation, was doing business here it could not enforce its jurisdiction. The real question, therefore, was not jurisdiction or the lack of it, but ability to enforce jurisdiction at that time upon

the service then made or attempted-non constat-that the very next day the defendant would not, by transferring its business to New Jersey, bring itself fully within the compulsory process of the court.

In that case the pleading defendant was a foreign corporation who asserted its immunity here because it was not doing business here and had not been properly served, &c. The chief-justice found an analogy between that plea and those pleas of personal privilege in the English courts, and sustained the propriety of the plea in this case. The error which I think was committed was in considering that a foreign corporation was privileged from suit in the courts of New Jersey, because it had not been found within the state. It undoubtedly was in a position to assert that the jurisdiction of the court could not be exercised over it until it was properly brought before the court; and unless it was doing business here or had specified an agent, &c., it could not be found herein. But it was not in an analogous position to the English privileged person who could claim that some court had exclusive jurisdiction over him. If the subject-matter were one cognizable by the courts of New Jersey, and the sole objection was that the defendant, a foreign corporation, had not been properly brought before the court for judgment, I do not think the precedents support the plea.

It is not necessary to decide whether the subject-matter in that suit was one cognizable by the New Jersey court, but it may be useful to note that the supreme court of the United States in Burrow Steamship Co. v. Kane (1898), 170 U. S. 100, said that "the constant tendency of judicial decision in modern times has been in the direction of putting corporations upon the same footing as natural persons in regard to the jurisdiction of suits by or against them," and in that case entertained a suit begun in New York by a citizen of New Jersey against a corporation of Great Britain for a tort committed in Londonderry, Ireland; and from the reasoning of the court, the principle deduced is that unless there is something restrictive in the legislation of the state, the courts of the state would have jurisdiction of a transitory cause of action brought against a foreign corporation if the latter was "found" therein and served.

I have had occasion to point out elsewhere (Groel v. United Electric Co. (1905), 69 N. J. Eq. (3 Robb.) 397) that at first corporations were held to be only suable within the jurisdiction of the state which created them, but that this early theory was abandoned, and now corporations created by any sovereignty may be sued within any jurisdiction which has jurisdiction of the subject-matter, provided they are "found" therein and served in accordance with the practice of that jurisdiction concerning service; and I see no reason why the proper court should not have jurisdiction of the subject-matter in all suits of a transitory nature.

While there has been much discussion and a difference of opinion upon the question as to whether there is any distinction in equity between pleas in bar and those in abatement (Story Eq. Pl. (7th ed.) 587 $ 708, and notes), I do not find. it necessary in this matter to determine which is the correct theory. The plea in this suit is framed upon the theory that it is in bar. The proper effect to be given to the proof of the facts of the plea is clearly not to bar the complainant's suit, but, at the most, to abate it. But even here I do not see how it would be proper to abate the suit by dismissing the bill, or dismissing the defendant from the bill (which is the same thing, in effect), even if this plea went no further in its prayer than that.

Assuming that it is a proper case for a plea in abatement in equity (and it surely cannot be claimed that a defendant, situated as this one is, can have any greater relief by not having been served than to abate the suit until he is served), the plea is an improper one. Pleas in abatement are improperly begun and concluded if the matter set up is stated to be in bar. 1 Encycl. Pl. & Pr. 27, notes. This plea, therefore, is defective, and no proper order or decree can be entered upon it, even if the allegations of non-service set up in it are proven.

The contention of the pleading defendant is that it having filed this plea, and the complainant having joined issue, and it having proven the facts concerning non-service, the court, under the authorities (Hunt v. West Jersey Traction Co. (Vice-Chancellor Grey, 1901), 62 N. J. Eq. (17 Dick.) 225), is bound to find for the defendant and dismiss the bill, or dismiss the de