quiry into the facts showing actual vexation or oppression. But it is said that the modern practice is not to infer this, but to inquire into the circumstances, and to determine as a matter of fact whether the second suit is vexatious or unnecessary: State v. Dougherty, 45 Mo. 294; Hill v. Dunlap, 15 Vt. 645; Downer v. Garland, 21 Id. 362; Ballou v. Ballou, 26 Id. 673.

In pleading the objection, facts should be set out which will show that the first action operates to abate the second: Miller v. Rigney, 16 Ind. 327. It is held in some cases that the first suit must be still pending when the plea is filed, and that if it be dismissed before the plea is filed the second will not abate. This is the rule in Oregon: Hopwood v. Patterson, 2 Or. 50; and in a number of the states: Adams v. Gardner, 13 B. Mon. 197; Leavitt v. Mowe, 54 Md. 613; Clifford v. Cony, 1 Mass. 495; Pew v. Toare, 12 Mich. 16; Hixon v. Schooley, 26 N. J. L. 461; Marston v. Lawrence, 1 Johns. Cas. 397; Toland v. Tichenor, 3 Rawle, 320; Archer v. Ward, 9 Gratt. 622; Boland v. Benson, 50 Wis. 225; but the contrary (that the prior action need not be still pending) has been held in probably as many other states. See among others the following cases: Lee v. Hefley, 21 Ind. 98; Parker v. Colcord, 2 N. H. 36; Hope v. Alley, 11 Tex. 259; Hadden v. St. Louis etc. R. R. Co., 57 How. Pr. 390. Where two suits are commenced at identically the same time, between the same parties, and for the same cause and relief, it is said that the plaintiff thereby abuses his process and right, and each suit will abate the other, and that no subsequent discontinuance of either will make the other good: Beach v. Norton, 8 Conn. 71; Wales v. Jones, 1 Mich. 254; Davis v. Dunklee, 9 N. H. 545; Haight v. Holley, 3 Wend. 258; but the party may, if he can, to defeat the plea, show that one of the actions was really commenced at a later day: Davis v. Dunklee, 9 N. H. 545. In Morton v. Webb, 7 Vt. 123, it was held, where both actions were commenced at the same time, that if the process was served at different times the action in which the process was first served would abate the other. The fact that an action has been subsequently commenced is not ground for abatement of the prior suit, but the plea can

only be set up in the action last com- Oct. 11, 1852, menced: Renner v. Marshall, 1 Wheat. § 66. 215; Rizer v. Gillpatrick, 16 Kan. 564; Buffum v. Tilton, 17 Pick. 510; Webster v. Randall, 19 Id. 13; Ratzer v. Ratzer, 2 Abb. N. C. 461; Nicoll v. Mason, 21 Wend. 339; Wood v. Lake, 13 Wis. 84.

The actions must be for the same cause and relief. Concurrent or cumulative remedies do not conflict so aз to be pleadable in abatement: People v. Wayne Circuit, 26 Mich. 406. An action upon a joint liability and another on a several liability in respect to the same debt do not interfere; as in Wise v. Prowse, 9 Price, 393, an action in which two drawers of a negotiable instrument were sued as such, and one of them was afterwards sued as its acceptor; or in Blackburn v. Watson, 85 Pa. St. 241, where an action on a joint indorsement was pleaded in abatement of an action on a several liability involving no responsibility as a joint debtor, though on the same instrument, and it was held not to be well pleaded. Proceedings in rem and in personam do not necessarily conflict with each other, until satisfaction is obtained in one, and therefore cannot be pleaded in abatement of cach other; and it was so held in Delahay v. Clement, 4 Ill. 201, and Parmelee v. Tennessee R. R. Co., 13 Lea, 600, where a mechanic's lien proceeding was plead. ed in abatement of an action for labor and material; Kalorama, 10 Wall. 204, where an admiralty lien was pleaded in abatement of a common-law action for repairs and sup. plies to a vessel: Harmer v. Bell, 22 Eng. L. & Eq. 62, an action for a collision, where an action for damages was held not to abate a proceeding in rem against the steamer; and likewise in Toby v. Brown, 10 Ark. 308; Nelson v. Couch, 15 C. B., N. S., 99. A proceeding by bail process and one by attachment cannot be prosecuted at the same time: Clark v. Tuggle, 18 Ga. 604. Pendency of a suit against a warehouseman for insurance money received by him for goods lost by fire will not bar an action against a common carrier for the value of the same property that was consumed by fire: Clark v. Wilder, 25 Pa. St. 314. Pendency of statutory arbitration is properly pleaded to a subsequent action between the parties to recover a demand included in the submission:

Fahy v. Brannagan, 56 Me. 42. Pendency of ejectment will not bar an action of covenant for rent by the devisees: Streaper v. Fisher, 1 Rawle, 155; S. C., 18 Am. Dec. 604; nor will an action to recover rents and profits, by a purchaser at sheriff's sale, affect his action in ejectment for possession: Henry v. Everts, 30 Cal. 425; nor in trespass to try title can an action for possession of the property be pleaded in abatement: Hall v. Wallace, 25 Ala. 438. The fact that proceedings by forcible detainer for possession are pending cannot be set up in abatement of a motion for a writ of possession: Kessinger v. Whittaker, 82 Ill. 22. In forcible detainer, it is a good defense that another action between the same parties for the same cause is pending on appeal: Bond v. White, 24 Kan. 45. In an action by the master of a vessel for wages, an action of debt will not abate a proceeding against the vessel directly: The Bengal, Swab. 468; People v. Wayne Circuit, 27 Mich. 406. A proceeding in bankruptcy will not war rant staying a common-law action for debt: Carrington_v. Hogarth, 7 Man. & G. 1013. In Rousseau V. Estate of Bourgeois, 28 La. Ann. 186, it is held that the plea of lis pendens is not available to executory proceedings. So it is held that a proceeding to forfeit shares will not abate an action for calls on stock: Great Northern R'y Co. v. Kennedy, 4 Ex. 417; Inglis v. Great Northern R'y Co., 16 Eng. L. & Eq. 55; a proceeding on a judge's order for payment will not warrant staying a common-law action for debt: Wade v. Simeon, 1 Com. B. 610. It has been held that the following classes of actions cannot be maintained at the same time, and that the former is properly pleaded in abatement of the latter in each instance, viz.: An action to foreclose a mortgage to which a subsequent mortgagee is made a party, and a subsequent suit of foreclosure by such mortgagee on his own behalf: Rowley v. Williams, 5 Wis. 151. An action for damages by nuisances, and a statutory proceeding to abate such nuisances, in which no damages were prayed: Gould v. Langton, 43 Pa. St. 365. Assumpsit, and an action in which plaintiff's claims by the prior action in assumpsit might be set off: Schenck v. Schenck, 10 N. J. L. 276;

New England Screw Co. v. Bliven, 3 Blatchf. 240. A suit for the restoration of property and a suit for damages for the wrongful detention: Draper v. Stouvenal, 38 N. Y. 319. But the pendency of a suit to foreclose a mortgage for non-payment of one annual installment on the note secured thereby cannot be pleaded in abatement to a subsequent suit to foreclose the same mortgage for the second installment: Jacobs v. Lewis, 47 Mo. 344.

The parties must be the same in each suit, and the fact that the plaintiffs in the two suits are different is presumptively an objection to the plea: Smith v. Blatchford, 52 Am. Dec. 504. So if the plea does not aver that the defendant was a party to the first proceeding, it is insufficient: Brannigan v. Rose, 3 Gilm. 123; Weaver v. Conger, 10 Cal. 233; Primm v. Gray, 10 Id. 522; Gould v. Smith, 30 Conn. SS. Where only one of two defendants pleads the pendency of a prior action against him, the plea is bad: De Forest v. Jewett, 1 Hall, 137. To an action against one obligor, the pendency of an action against all the obligors on the same instrument has been held to be well pleaded: Graves v. Dale, 1 T. B. Mon. 191. The defendants in one action cannot plead another action pending against themselves and others for the recovery of land: Atkinson v. State Bank, 5 Blackf. 84. Where an action for personal injuries has abated by death, it cannot be pleaded in abatement to an action by plaintiff's personal representatives for damages for his death: Indianapolis R. R. Co. v. Stout, 53 Ind. 143. Where an administrator sued as the representative of the wrong party, and consequently was compelled to bring a new suit, the pendency of the former would not abate the latter: Cornelius v. Vanarsdallen, 3 Pa. St. 434. The pendency of an action by a firm creditor against a partner and the administrator of his deceased partner may properly be pleaded in defense to an action against the survivor alone as such: Weil v. Guerin, 42 Ohio St. 299.

The pendency of a prior suit in a state court is not a bar to a suit in the courts of the United States between the same parties for the same cause of action: Stanton v. Embrey, 93 U. S. 548, and numerous decisions there relied upon; Lynch v. Hartford F. I. Co., 17 Fed. Rep. 627; and see

the note to West v. McConnell, 25 Am. Dec. 195 et seq.

See a full note on this topic to Smith v. Lathrop, 84 Am. Dec. 453 et seq.

A

Defect of parties. — The demurrer for this cause will lie when from the face of the complaint it appears that other parties are necessary to a complete determination of the controversy: Cohen v. Ottenheimer, 13 Or. 220. Defect is the same as non-joinder; it means too few not too many parties: Bennett v. Preston, 17 Ind. 291. defect of parties plaintiff or defendant appearing on the face of the pleading must be taken by demurrer or will be deemed waived: Andrews v. Mokelumne Hill Co., 7 Cal. 330; Warner v. Wilson, 4 Id. 313; Beard v. Knox, 5 Id. 257; Tissot v. Throckmorton, 6 Id. 473; Dunn v. Tozer, 10 Id. 167; Mott v. Smith, 16 Id. 557; Burroughs v. Lott, 19 Id. 125; Barber v. Reynolds, 33 Id. 497; Tennant v. Pfister, 45 Id. 270; Hess v. Nellis, 65 Barb. 440; Davidson v. Elms, 67 N. C. 228; Donnan v. Intelligencer etc. Co.. 70 Mo. 168; Waits v. McClure, 10 Bush, 763; Mott v. Ruenbuhl, 1 Tex. Ct. App. (Civ. Cas.), § 599; Walker v. Deaver, 79 Mo. 664; Zabriskie v. Smith, 13 N. Y. 322; Ingraham v. Baldwin, 12 Barb. 18; Depuy v. Strong, 4 Abb. Pr., N. S., 340; 37 N. Y. 372; Maxwell v. Pratt, 24 Hun, 448. If the defect does not appear on the face of the complaint, to be availed of it must be taken by answer: Pavisich v. Bean, 48 Id. 364; Merritt v. Walsh, 32 N. Y. 685; Umsted v. Buskirk, 17 Ohio St. 113; but the objection cannot be taken by answer, except where evidence is necessary to make the defect apparent: McCormick v. Blossom, 40 Iowa, 256; Ryan v. Mullinix, 45 Id. 631; Dewey v. Moyer, 9 Hun, 473; 72 N. Y. 70; Zimmerman v. Schoenfeldt, 3 Hun, 692; Lowry v. Harris, 12 Minn. 255. If the objection is not taken by either demurrer or answer it is waived: See § 71 [70], post; Blakeley v. Le Due, 22 Minn. 476; Lowry v. Harris, 12 Id. 255; Rowe v. Baccigalluppi, 21 Cal. 633; Trenor v. Central Pacific R. R., 50 Id. 222; Lee v. Wilkes, 27 How. Pr. 336; S. C., 19 Abb. Pr. 355; Conklin v. Barton, 43 Barb. 435; Hoop v. Plummer, 14 Ohio St. 448; Albro v. Lawson, 17 B. Mon. 642; Bouton v. Orr, 51 Iowa, 475; Dreutzer v. Lawrence, 58 Wis. 594; Spencer v. Van Cott, 2 Utah, 342; Adger v. Pringle, 11 S. C. 543; Bald

win v. Caufield, 26 Minn. 58; Ruten- Oct. 11, 1862, burg v. Main, 47 Cal. 214; Featherson $66. v. Norris, 7 S. C. 472; Tarbox v. Gorman, 31 Minn. 62. The objection cannot be raised on a demurrer that the complaint does not state sufficient facts: Tennant v. Pfister, 51 Cal. 511; Umsted v. Buskirk, 17 Ohio St. 113.

That the demurrer should specify in what the misjoinder or defects consists, see Irwine v. Wood, 7 Col. 477; and it is insufficient if it merely follows the words of the statute: Skinner v. Steward, 13 Abb. Pr. 412; Baker v. Drury, 29 Wis. 580; Dewey v. State, 91 Ind. 182. If the court can make a judgment or decrec determining the controversy without prejudice to the rights of parties not joined, a demurrer for defect of parties will not be sustained: Wallace v. Eaton, 5 How. Pr. 99; otherwise the demurrer is well taken: Id.; Snyder v. Voorhes, 7 Col. 296. It must appear that the party demurring is prejudiced by the non-joinder: Stockwell v. Wager, 30 How. Pr. 271; or that he has an interest in having the omitted parties joined: Wooster v. Chamberlain, 28 Barb. 602; Newbould v. Warren, 14 Abb. Pr. 80; Littell v. Sayre, 7 Hun, 458; Moore v. Hegeman, 6 Id. 290. But a complaint is not demurrable for defect of parties where it avers that the defendants are certain persons named and many others whose names are not known and whom it is impracticable to bring before the court; as, for instance, in the case of stockholders: Bronson v. Insurance Co., 85 N. C. 411; Hammond v. Hudson River etc. Co., 20 Barb. 378. And see Long v. Bank, 81 N. C. 41; Hughes v. Whitaker, 84 Id. 640.

Misjoinder of parties. By a misjoinder of parties is meant an excess of parties: Neil v. Trustees, 31 Ohio St. 15. In many code states misjoinder of parties is not a ground of demurrer: Pomeroy's Remedies, sec. 209. In Oregon, the wording of the statute would seem to indicate that misjoinder of parties is not a ground of demurrer, and that defect of parties only is demurrable, and this is the ruling under similar statutes in other states: See Boldt v. Budwig, 19 Neb. 713; Davey v. Dakota Co., 19 Id. 721; Nevil v. Clifford, 55 Wis. 161. If it appears on the face of the complaint that no cause of action is stated against parties misjoined, they of course may take the objection by de

murrer on the ground that the complaint does not state a cause of action against them: Lewis v. Williams, 3 Minn. 151; and so a demurrer has been held to lie on this same ground, for misjoining plaintiffs whom the face of the complaint shows have no cause of action against the defendants: Richtmeyer v. Richtmeyer, 50 Barb. 55. Where it does not appear that any cause of action is stated, the objection may probably be taken by motion to strike out parties or by answer.

But see the opinions expressed on these propositions in Pomeroy's Remedies, secs. 209 et seq.

Misjoinder of causes of action. -See, as to what causes of action may or may not be joined, § 93 [91], post. That the defect of misjoinder of causes of action is waived unless taken advantage of by demurrer is the general rule, see Blossom v. Barrett, 37 N. Y. 434; Finley v. Hayes, 81 N. C. 368; McMillan v. Edwards, 75 Id. 81; Field v. Hurst, 9 S. C. 277; Simpson v. Greely, 8 Kan. 586; Haverstick v. Trudel, 51 Cal. 431; Fuhn v. Weber, 38 Id. 636; Learned v. Castle 3 West Coast Rep. 154 (Sup. Ct. Cal.); Anderson v. Hill, 53 Barb. 238; Sherman v. Inman Steamship Co., 26 Hun, 107; Crawfordsville v. Bond, 96 Ind. 236; but there are other cases which hold that the objection may also be taken by answer: James v. Wilder, 25 Minn. 305; Cloon v. City Ins. Co., 1 Handy, 32; and it is certainly waived if not raised either by demurrer or answer: McCarthy v. Garroghty, 10 Ohio St. 438; Turner v. Althaus, 6 Neb. 54; Berry v. Carter, 19 Kan. 135; White v. Delschneider, 1 Or. 254; Jones v. Hughes, 16 Wis. 683; Marius v. Bicknell, 10 Cal. 217. The object of allowing a demurrer for this ground is to compel the plaintiff to elect upon which of two or more improperly united causes of action he will proceed: Sullivan v. N. Y. etc. R. R. Co., 1 Civ. Proc. 285. The complaint is demurrable on this ground where only one cause of action is stated but several forms of relief are asked, all obtainable under the facts stated: Lattin v. McCarthy, 41 N. Y. 107. If several causes of action are improperly joined, though set out in one count in the complaint and claimed to be one cause of action, the demurrer properly lies: Wiles v. Suy dam, 64 Îd. 173; Goldberg v. Utley, 60 Id. 427; Wright v. Conner, 31 Iowa,

240; Higgins v. Crichton, 63 How. Pr. 354; S. C., 2 Civ. Proc. R. 317. So the converse of the proposition is true, and if one cause of action be stated in several counts the demurrer on this ground will not be successful: Hillman v. Hillman, 14 How. Pr. 456; Ward v. Ward, 5 Abb. Pr., N. S., 145.

The demurrer should specify what causes are alleged to be improperly united: Haverstick v. Trudel, 51 Cal. 431. If the demurrer is sustained, the plaintiff must file an amended complaint: Cohen v. Ottenheimer, 13 Or. 220.

Facts not sufficient to constitute cause of action. — The complaint need state only sufficient facts to constitute a cause of action prima facie: Campbell v. Taylor, 3 Utah, 325. The criterion is, that the demurrer is proper and will be sustained whenever the complaint does not state a case upon which, if uncontradicted, the plaintiff would have a right to recover: Houghtaling v. Hills, 58 Iowa, 207; Pierson v. MeCurdy, 61 How. Fr. 134; Fleischmann v. Bennett, 23 Hun, 200; S. C., 87 N. Y. 231; People v. Mayor etc., 28 Barb. 240; S. C., 17 How. Pr. 56; S. C., 8 Abb. Pr. 7; Spear v. Down ing, 34 Barb. 522; S. C., 12 Abb. Pr. 437; S. C., 22 How. Pr. 30; Van Liew v. Johnson, 6 Thomp. & C. 648; White v. Brown, 14 Abb. Pr. 282; Johnston Harvester Co. v. Bartley, 94 Ind. 131; Tolnie v. Dean, 2 Wash. 46; Leak v. Commissioners etc., 64 N. C. 132. If any good cause of action appear, though it be not the one intended, the cause will be retained: Mackey v. Auer, 8 Hun; 180; Witherhead v. Alien, 3 Keyes, 562; Newbery v. Garland, 31 Barb. 121; People v. Mayor etc., 28 Id. 240; S. C., 17 How. Pr. 55; Roe v. Lincoln County, 56 Wis. 66; Williams v. Sexton, 19 Id. 42; Williams v. Warnell, 28 Tex. 612; Edgar v. Galveston, 46 Id. 421.

Demurrer is the proper mode of raising the objection that a cause of action is not stated, and a motion to strike out is not proper: Cüne v. Cline, 3 Or. 355. So the demurrer must be directed to the averments of a pleading taken together; they cannot be separated, and thus considered demurred to: Herfort v. Cramer, 7 Col. 483. The objection may properly be stated in the language of the statute: Kent v. Snyder, 30 Cal. 366; Howland v. Kenosha Co., 19 Wis. 217; Moncle