WILCOX &; GIBBS GUANO CO. V. PHOENIX INS. CO.
scription had been made by the county, except that the bonds shall show on their face the precinct or precincts for which they are issued, and such precinct or precincts shall be alone bound to pay said bonds and their interest." While the district subscribing is the debtor, yet in form the COUlity is the obligor. ']'hrough the county the indebted district is to act, and through the same agency the indebted district is to be coerced by the assessment of the tax essential to meet its obligations. Such a district becomes, for the purposes of the subscription, a corporation quoad hoc. Kreiger v. Railroad Co., 84 Ky. 66; Hancock v. Railroad Co., 145 U. S. 409, 12 Sup. Ct 969. It is suable only through the county, which, in respect to the subscription, the issuance of the bonds, and the assessment of a special levy, stands for and represents the debtor. The judgment was properly rendered against the county, collectible only from tax levied on property in the indebted district. The charter, in this respect, is substantially like the provision construed in Davenport v. Dodge Co., 105 U. S.237. The special judgment rendered by the circuit court was like that approved in the same case. The result is that the judgment of the circuit court in each case must be affirmed.
WILCOX & GIBBS GUANO CO. v. PHOENIX INS. CO. OF BROOKLYN.
(Circuit Court, D. South Carolina.
Aprll 16, 1894.)
PLEADING-EQUITABLE DEFENSE-ACTION AT LAW.
In an action at law In the federal court on an Insurance policy, It was alleged in defense that a suit was pending in the state court for the refor· mation of the polley. and defendant prayed that lIll proceedings be stayed until that suit was determined. Beld, that this was an equitable defense, only. and should be stricken from the answer. as not admissible In an action at law.
ABATEMENT-FoRMER SUIT-STATE AND FEDERAL COURTS.
An action on an ihsurance polley was removed to the federal court, and defendant answered therp.in, alleging that a suit was pending In the state court for the rtformatlon or the policy. Held. that this was not good as a .plea in abatement, for the pendency of the prior suit In the state court Is no bar to-the action In the federal court. ,
Action by the Wilcox & Gibbs Guano Company against the Phoenix Insurance Company of Brooklyn, N. Y. On motion to strike out answer. Bryan & Bryan, for the motion. Trenholm, Rhett & Miller, opposed. SIMONTON, Circuit Judge. This is a motion to strike out a part of an answer constituting a further defense to a complaint. 'The plaintiff brought its action in the court of common pleas for Charleston county, upon a policy of insurance, against the defendant. The summons and complaint were served 27th January, 1894. On the 6th February, 1894, Hon. D. A. Townsend, a circuit judge of the state of South Carolina, granted an extension of time to defendant, within which to file its answer, to 10th :March, 1894. On the 8th day of March, of the same month, the defendant filed its petition, with bond for removal into this court On 17th March it presented this
cotirti'aJid 'order the petition and. bond wl;!re On 2M March the plaintiff the record in thisc6urt, ahd, made a motion to remand, which was refused. The defendant filed the record 'in this court on the first day of the present term. The removal having been perfected, the cause proceeds in this c0.urtas int origipated here. Henning v. Telegraph Co., 40 Fed. 658;'Th9mpson v. Railroad Co., 6 Wall. 134. 'fhe actiOn is at law. It appears that on 17th February, 1894, for removal, and before answering the complaint, before the the defendant in this 811it filed an original complaint in the court of commoIl.pleas for Charleston county, setting forth the fact that, when the policy in, this 'case sued on, was originally issued, it had attached t(dt a coinsurance clause, the result of which was, that the ineuredand'insurer shared proportionately the, risk insured against, and that, Cln, the first renewal of the policy the same clause was attached,but that on tile third renewal of the policyit was either attached, and8ubsequeritly became detached, or it was inadvertently omitted. ,The that the policy be reformed, and that in the mean time the suit on the policy be stayed. The defendant has filed its answer in this court, which sets up as a further defense the pendency of this last-named complaint in the state court, its prayer ,for a reformation of the policy and for an injunction, and ends with a prayer in the answer that all proceedings in the present cause be stayed until the determination of the action in the state court. The plaintiff now moves to strike this defense oU11 of the answerj 'as irrelevant. This is in accord with the practice Car;oHpa. Statev. Norris,15 S. C. 256. This being a case at.1.a,w, be interposed which is not strictly a legal defense. Railroad Co. v. Paine, 119U. S. 562, 7 Sup. Ct. 323. If, therefore, we treat this as a defense, it is wholly inadmissible. The ,seeks precisely the same relief which he would seek by ip.,equfty. In effect, he seeks the relief which he would have if an injunction in the state court, and if such in· junction'could operate in this court. If we consider it as a plea 0:1' a suit pending, it would be equally inadmissible. The pendency ev:en of a prior suit in another jurisdiction is not a bar to a subseq11-ent suit in this court. Stanton v. Embrey, 93 U. S. 554. It could not operate even as a plea in abatement. Gordon v. Gilfoil, 99 U. S. 178; Insurance Co. v. Brune, 96 U. S. 593. If the defendant has a right to equitable relief, he must seek it in the circuit court of the United States, on its equity side. The motion to strike out this defense in the answer is granted.
UNITED ST,i\TES v. CHEW CHEONG. (DIstrict Oourt, N. D. California.
April 12, 1894.)
, ,i\ Chinelle, laborer, conv.icted of feloJ;lY, is not entitled to register under '. the' act (Nov. 3; 1893) extending the time for registration, and such person
,1 J!.EGULATION OF CHINESE-DEPORTATION OF FELON.