Garrison, V. C.
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 subject-matter 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[80]*80capacitated 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 Land, ed.) 258, *219, 262, *223, 263, *224, 265, *226; Story Eq. PI. § 705; Beam. Eq. PI. 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.
[81]*81There 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 sajq 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 [82]*82the 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.
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Garrison, V. C.
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 subject-matter 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[80]*80capacitated 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 Land, ed.) 258, *219, 262, *223, 263, *224, 265, *226; Story Eq. PI. § 705; Beam. Eq. PI. 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.
[81]*81There 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 sajq 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 [82]*82the 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 Barrow 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.
[83]*83I have had occasion to point ont 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 sited 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 ease 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[84]*84fendant from the suit, as was done by the court of errors and appeals in Wilson v. American Palace Car Co., 65 N. J. Eq. (20 Dick.) 730.
Were such an order entered it would, in my view, be a bar to-the complainant. The only theory on which such an order could be entered would be that the defendant had pleaded and proven matter which barred the complainant from the further prosecution of the suit by showing that the court had not jurisdiction thereof. I cannot conceive that this court, merely because of an error in the course of pleading, would ever enter"what might be termed a self-stultifying order of that nature. I so term it because it would be an order that, with respect to a subject-matter cognizable by this court, a party within the jurisdiction of this court could never be made amenable to its compulsory process-so that the jurisdiction of the court might be exercised over such party if that party had been improperly served and entered a plea to the jurisdiction of the court.
Each of the counsel in this suit shaped his course' in accordance with what he conceived to be the law as enunciated in the case of Wilson v. American Palace Car Co., supra. They each conceived that that case, and those which followed it in this court, decided that whenever a defendant in a suit in equity desired to object to the method pursued to bring him into court' the proper practice was by plea to the jurisdiction of the court. They also conceived that the plea filed in that case, and approved by the court, was the model plea to be used. It was, because the complainant’s solicitor was of this impression that he did not pursue the hearing upon the bill and plea but replied to the plea.
The embarrassment produced by the course of pleading in this suit has been heretofore alluded to; and, in addition to those embarrassments already mentioned, the court must consider the. effect upon the defendant if such a plea were, upon trial, found not to be true. The authorities are that under such circumstances the complainant is entitled to proceed as if upon a decree pro confesso. Hunt v. West Jersey Traction Co., supra; Fletch. Eq. & Pl. 316. It surely cannot be a proper course of pleading which would result in subjecting a defend[85]*85ant to a decree against l;im on the merits merely because he ■objected to the manner or effect of the service of the subpoena upon him.
The court now finds it is in a position where the defendant has proven that it was not served with process, as it pleaded it was not, but cannot, with any proper regard to the due administration of justice, make the order prayed for by the defendant. Under these circumstances, I conceive that there can be no question of the right and power of the court in the premises. I conceive that this court has the right and power to permit the ■complainant to withdraw the replication upon terms which shall do justice to the defendant, to whom the full benefit of all that has taken place shall be secured. Dan. Eq. Pl. & Pr. (6th ed.) 417, 482, 483; Fletch. Eq. Pl. 381; Story Eq. Pl. § 877; Coop. Eq. Pl. 328; Swayze v. Swayze (Chancellor Williamson, 1853), 9 N. J. Eq. (1 Stock.) 273. In this latter case, the chancellor held that tjae court could, of its own motion, dismiss a bill to which no objection had been taken by demurrer or plea, and concerning which the defendant had lost all right to make any objection; and that looseness of pleading which embarrassed the court and interfered with the administration of justice would not be encouraged, but would be controlled by the court in the exercise of its discretion whenever occasion required.
The next consideration is whether, after the replication is withdrawn, the complainant should be permitted to move to strike out the plea, or to have a hearing upon its sufficiency, or-to have the matter adjudged upon the plea properly framed as a plea in abatement.
Since the court will mould the pleading so as to effectuate the ends -of justice and give to the defendant all of the benefit to which it is entitled by reason of the erroneous course of the complainant in not earlier objecting to the plea, the next question involves the whole matter of practice in this respect.
The subject is one which is involved in great confusion, and should be clearly and definitely settled, for which reason I go more fully into the matter than the circumstances might otherwise warrant, in the hope that if I have misconceived, or do not [86]*86correctly state the practice, the court of ultimate decision will take occasion to point out what the proper practice is.
The unfortunate results arising out of an incorrect practice in this respect are numerous. The plea (if it be found that a plea is the proper form) is without a model, and one must be created; and the order which shall be made upon such a plea is without precedent, and its phraseology and effect must be carefully considered and determined. If, on the other hand, a plea be an improper method, then it should bo never permitted, because of £he delay incident to a hearing upon that form of pleading, to the embarrassment with respect to the form of pleading^ itself, and to the order to be made thereon.
A similar confusion was found to exist in the federal courts on the equity side with respect to this subject-matter; and Judge Hammond, of the district- court of Tennessee, took occasion to study the matter with great care, and to express his conclusions with clearness, and to set forth the authorities and precedents at length. Romaine v. Union Insurance Co. (1886), 28 Fed. Rep. 625. Since he is speaking of the English practice at a time when it applied to our courts (as it did to his court), what he says is with respect to the authorities by which we are bound, and is, therefore, directly in point. I cannot, therefore, better elucidate the matter than by quotation. He says: “We can have no trouble in any case if we distinguish between a substantive objection to the jurisdiction, technically considered, and one for mere irregularity of the service of the process, because, as was said in Drummond v. Drummond, 2 Ch. App. Cas. 35, ‘much confusion has arisen by treating want of power to enforce jurisdiction as tantamount to want of jurisdiction.’ ” He points out that in the federal courts jurisdiction over the subject-matter very often depends upon diversity of citizenship an"d other questions concerning the person, and that great care should be taken in studying the federal cases by reason of this fact; because, in such cases, jurisdiction of the subject-matter does depend upon jurisdiction of the person (concerning which see Funck v. Smith (Supreme Court, 1884), 46 N. J. Law (17 Vr.) 484). He says, after pointing this matter out: “Except, therefore, in that class of cases peculiar, perhaps, to the federal [87]*87courts, where, in certain situations of residence or citizenship, the power to proceed against the particular persons is wholly-denied under all circumstances whatever, the objection that the defendants to a bill- in equity have not been effectually served with process to bring 'them within the presence of the court for judgment, is not. as at law, one of jurisdiction to be pleaded by formal plea to the writ, but one of mere irregularity of process, properly cognizable on motion, according to the practice always prevailing for that especial purpose.”
(It will be found that this practice is the one pointed out by Dan. Ch. Pl. & Pr. *536, and note.)
He then reviews the English cases and finds a uniform practice as above indicated; finds that in the federal courts there liad been unfortunate departures from the proper practice, and concludes: “But, if we are to have technical practice in making the objection, it must be done, in a federal court of equity, in the way I have indicated; for that was the uniform method in the English court of chancery at the time our equity rules were adopted. There is no doubt of this, * * * and this practice must be followed, if insisted upon, no matter how much the practice has been disregarded by our courts.”
It is, perhaps, suggestive to point out that in that case the objection was made by motion, and the objection thereto was that it should have been made by a plea to the jurisdiction of the court, the motion proceeding upon the. ground that the return to the subpoena should be quashed upon the ground that it appeared that the defendants had no residence in the jurisdiction, and no agent, and had not been properly subpoenaed.
The practice of raising the objection by motion was followed in our earlier cases. Wagner v. Blanchet, 27 N. J. Eq. (12 C. E. Gr.) 356; Harrison V. Farrington (Chancellor Runyon, 1882), 35 N. J. Eq. (8 Stew.) 4; Hervey v. Hervey (Vice-Chancellor Emery, 1897), 56 N. J. Eq. (11 Dick.) 166. And this is the practice in the federal courts. Goldey v. Morning News Co. (Supreme Court, 1894), 156 U. S. 518. And I can find no case in New Jersey in which a resident defendant ever raised this question or objection by a plea to the jurisdiction of the court.
[88]*88It will be found by reference to the English precedents on the subject, many of which are cited in Romaine v. Union Insurance Co., supra, that the objection to jurisdiction over his person asserted by one attempted to be brought in by publication or substituted service was taken by motion, and, therefore, in my view, in Kirkpatrick v. Post (Court of Errors and Appeals 1895), 53 N. J. Eq. (8 Dick.) 641, and in Puster v. Parker Mercantile Co. (Vice-Chancellor Stevens, 1903), 64 N. J. Eq (19 Dick.) 599, the court should have passed upon the question of whether the objecting defendant was in court.
It was thought by counsel in the case at bar that the case of Wilson v. American Palace Car Co., supra, and the cases which followed and relied upon it, sanction such a practice even with respect to resident defendants — that is, that the theory and reasoning of those cases leads to the conclusion that a plea to the jurisdiction of the court is proper wherever the defendant has not been regularly brought before the court so that its judgment might be pronounced against the defendant.
First, it should be observed that there is not, in my view, any warrant whatever for such a deduction from the cases in question. In each of them the pleading defendant was a non-resi dent individual or corporation, not amenable at that time to the compulsory process of the court; and it was found in each case that the procedure adopted to bring such pleading defendant before the court, was not effectual for that purpose.
But with all deference to the learned judge who pronounced the opinion in the case of Wilson v. American Palace Car Co., I am led to say that unless the subject-matter was one that was not within the jurisdiction of the court of chancery of New Jersey, I think that the proper practice would have required the objection, with respect to the method adopted to bring the defendant before the court, to be made by a motion and not by a formal plea to the jurisdiction of the court. Groel v. United Electric Co., supra. A plea to the jurisdiction of the court is undoubtedly proper in those cases in which the court has no jurisdiction over the subject-matter, and the distinction to be drawn is between such cases and those in which it has jurisdiction of the subject-matter but cannot enforce it until it obtains juris[89]*89diction over the person; but no useful purpose will be served by stopping to analyze the cases above cited upon this point, or to attempt to determine into which class these cases fall if the distinction is applicable to them. Whatever may have been the course of practice adopted in different cases in this state, I think that it is clear, from the reasoning which should be applied, and the precedents which do apply, that in every case in which the court of chancery has jurisdiction of the subject-matter which it can enforce if it obtains jurisdiction of the party, there is no propri&ty in a plea to the jurisdiction of the court based upon an allegation that the court has not obtained jurisdiction of the person, but that, in such case, the objection should be made by motion based upon a conditional appearance.
If, however, it should be determined that in this state, by reason of the decisions, the distinction just alluded to will not be made in cases where the defendant is, at the time of pleading, a non-resident person or corporation not amenable to compulsory process, the innovation in practice thus effectuated should not be further extended. It surely should not be extended so as to include a resident defendant, individual or corporate, who is amenable to compulsory process, and whose only objection is. that such compulsory process -has not as yet been properly served upon such defendant. That is the precise question raised in the case at bar; and my conclusion is that the plea in this case is defective in form and is improper pleading — that is to say, that the matter therein contained is available to the defendant for the purpose for which he may be permitted to use it; but that it is not available in a plea to the jurisdiction of the court, and is defective because it contains matter in abatement only and pleads it in bar.
I have concluded, therefore, since the replication is withdrawn by permission of the court, that it is within the power of the court to strike out this defective and improper plea.
The right of the court in this respect is affirmed by authority. 16 Encycl. Pl. & Pr. 621; Stanbery v. Baker (Vice-Chancellor Emery, 1897), 55 N. J. Eq. (10 Dick.) 270; Mount Pleasant Cemetery Co. v. Erie Railroad Co. (Supreme Court, 1906), 65 Atl. Rep. 192.
[90]*90I am aware that if my finding were that the matter set up by the plea is insufficient, proper practice would require that such insufficiency should be adjudged upon a hearing upon the bill and plea, and not upon a motion to strike out; it is likewise true that if the case had been set down for hearing on bill and plea, and such hearing had been had, it would be proper to overrule the plea; but where the question is not of sufficiency of the matter, but defects in the plea and the form in which the matter set up should be pleaded, I conceive that it is proper for the court to strike out the pleading (if a plea is an improper method'of presenting the matter to the court) and to permit the party to restate the matter in a proper form.
I will, therefore, in this case, permit the defendant to raise the same question upon a motion, and will require the complainant to submit the same upon the evidence taken already in the suit. All of the evidence upon the subject has been submitted to the court, and the defendant should not lose the benefit of this.
If the defendant does not desire to avail itself of the right to make such a motion under the circumstances, I will grant the motion of the complainant to set aside the service of the subpoena, upon the defendant in question, upon the condition that he pay to such defendant all of the costs accruing to such defendant to date under the plea filed by such defendant.
The defendant may elect which course it prefers, and the final order will be made accordingly.
After the formulation of the above portion of the opinion, and before its promulgation, a new rule was adopted concerning pleas. The necessity of such a rule undoubtedly arose out of just such cases as the one now being dealt with. The rule reads as follows :
“209a. If issue be joined upon a plea, its validity shall not be thereby admitted, neither shall the plea be overruled as false for failure of the defendant to prove immaterial averments thereof. Upon the hearing of such issue the question shall be whether upon the material facts pleaded, so far as substantiated by the proof, the complainant ought to be precluded from having the discovery or relief prayed for in the bill. If the facts pleaded be determined in favor of the defendant, they shall avail him only so far as in law and in equity they ought to avail him; if they be determined against the defendant, such determination shall avail [91]*91the complainant only so far as in law and in equity it ought to avail him, and shall not, as heretofore, entitle the complainant as of course and without proof to the discovery or relief prayed for by the bill, or shall the defendant be debarred as of course,from the privilege of answering the bill.”
If this rule be applied to the decision of this case, the result is exactly similar to that reached by me and stated above. The facts pleaded being determined in favor of the defendant, the rule prescribes that they shall avail him only so far as in equity they ought to avail him.
The extent to which the facts proven in this case ought, in equity, to avail the defendant, is a setting aside of the process which was improperly served.
The form of the order may be settled upon notice.