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.
FEDERAL REPORTEr.. SINGER MANUF'G CO.
HESTER and others.
(Oircuit Oourt, W. D. Mi88ouri, W. D. --,1881J
SEWING MACHINE AGENT'S BONDS-CONSTRUCTION OJ!' CONTEMPORANEOUS WRITINGS.
Where there is nothing in the bond or the contract of agency to show that the two instruments were to be taken as part of the same transaction, and both instruments can stand together and have full effect, parol proof cannot be introduced to limit the liabilities of the sureties in the bonds to tranflactions growing out of the agent's em· ployment under the particular contract alone.
RELEASE OF BOND BY AGENT.
The expression of opinion by aLn of the plaintiffs that the execution of a new agreement between the principal and agent, by which the character of the employment was changed, released the sureties, did not amount to a contract of release, in the absence of au,)' aut-hority to make such a contract.
Submitted upon Motion for New Trial. Action was brought upon a bond executed by defendants to plaintiff in the penal sum of $2,000, dated the fifteenth of May, 1872, and conditioned as follows: "The condition of the above obligation is such that if the above.bounden Joel Hester, Levi Oren, M. Saville, andZimri Hester, their heirs, executors, or administrators, shall well and truly pay, or cause' to be paid, every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of said Joel Hester to the said Singer Manufacturing Company, whether such indebtedness or liability shall exist in the shape of book-accounts, notes, renewals, or extension of notes or accounts, acceptances, indorsements, or otherwise, (hereby waiving presentments for payment, notice of non-payment, protest and notice of protest, and diligence upon all notes now or hereafter indorsed, transferred, guar. antied, or assigned by the said Joel Hester to the said Singer Manufacturing Company,) then this obligation to be void, but otherwise to remain in full force and effect." The petition alleges a breach of the condition of the bond, in that defendant Joel Hester did contract. certain debts to