and others v.
(CirtlUit Oourt, D. Minn680ta. December 29,1880.)
1. GRABT OF LAND TO THE TERRITORY OF MINNESOTA TO Am IN
CoNSTRUCTION OF RAn.ROADs-INDEMNITY CLAus:m-Act OF MARCH 3, 1857-BELlIlCTION OF INDEMNITY LANDs-Act OF MARCH 3, 1865, ACT OF JULY 13, 1866.
In Equity. MILLER, C. J. 1. I am of opinion that, by the true construction of the act of congress of March 3, 1857, (11 St. at Large, 195.) granting lands to the territory of Minnesota, the indemnity clause was intended to include alternate section!! within the prescribed limit which had bE1en by the United States or lost by pre"emption prior to the date of the grant, as well as such as might be sold between that time and the location of the road. And, without further comment on the cases of L., L. et G.. R. v. U. S. 92 U. S. 733, and B. et M. R. R. Co. v. Same, 98 U. S. 339, I do not believe the court in those cases intended to establish a different doctrine. 2. I am of opinion that, in the selection of these nity lands, there is no restriction to coterminous sections of 20 miles in length of the road except as that may have been affected by the short period between the passage of the act of March 3, 1865, which .did appropriate the lands in place to the consilrnction of coterminous road, and the passage of the act of July 13, 1866, which exempted from that rule lands selected in lieu of those deficient anywhere. If any of the lands now claimed were certified or patented to the company for work done during that period, tp.ey cannot be treated as patented in lieu of lands deficient in other sections of 10 or 20 miles. I thiuk the other questions were settled by Judge Dillon, and Judge Nelson can settle a decree accordingly. NELSON, D. J. I concur.
UNITED STATES V. GILLESPIE.
UNITED STATES 11. GILLESPIE
and another, Executors, etc.
(Oircuit Oourt, D. New
April 22, 1881.)
EQUITY PRACTICE-FEDERAL CoURTS-PLEA IN ABATEMENT.
, Under the rules of equity practice, matters in abatement may be pleaded in the federal courts, and need not be set up in the answer.
Under such rules, however, the want of proper parties cannot be pleaded by the defendant, but such defect must be suggested in the answer, as provided by the fifty-second equity rule.-lED.
In Equity. A.Q. Keasbey, for complainant. Gilchrist If Parker, for defendants. By THE COURT. This is an application to the court by the defendants, executors of Joseph L. Lewis, deceased, for leave to plead various pleas. The matters specified in the notice, and sought to be 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 all 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 all matters in abatement, which, in the judgment of counsel, render the action preIJ?ature under the provisions of the statutes of the state of New Jersey.