30 FEDERAL. nnrourmu.
‘ setting up, a contract alleged to have never been entered into. It
is sought to have the pretended contract decreed to be void ab initio,
as a forgery anda fraud. An alleged valid and subsisting contract
is, therefore, the basis and cause of one suit; and forgery and fraud,
the basis and cause upon which the other rests. These, certainly,
do not constitute the same causes of suit. The causes of suit are
clearly not identical. It is also bad on another ground: that the suit
set up is not pending in a court of the same jurisdiction. Id. It is
well settled by the supreme court of the United States that a suit -
pending in another jurisdiction for the same cause cannot be pleaded
in abatement of a suit in the United States courts, and that the courts
of the states and of the United States are courts of different jurisdic-
tions. Stanton v. Embrrey, 93 U. S. 548, 550; Gordon v. Gttfoil, 99
U. S. 169, 178. Here there are two jurisdictions—jurisdictions of two
distinct governments. One is state jurisdiction, and the other is the
jurisdiction of a national court. If it were a fact that a suit is pend-
ing for the same cause in the state court,—a court of a different sov-
ereign jurisdiction,-it would not abate the suit here. The plea is
bad in substance on that ground, and this objection is taken in the
replication. This plea, conceding the facts set up to be true in fact,
still affords no ground for abating the suit.
But a replication having been Bled, taking issue on the plea to the
t jurisdiction, the case is submitted for decision on the pleadings with-
out any evidence. The plea was Bled April 24, 1884. The plaintiff
joined issue by Bling his replication on May 3, 1884, taking issue on
the facts alleged in the plea. The party, under equity rule 69, pre-
scribed by the supreme court of the United States, had a certain pre-
scribed time within which he could take testimony. "Three months,
and no more, shall be allowed for the taking of testimony after a
cause is at issue, unless the court, or a judge thereof, shall, upon
special cause shown by either party, enlarge the time; and no testi-
mony taken after such period shall be allowed to be read in evidence
at the hearing. " No extension of time was given or even applied for.
That rule is speciBc. The Bling of this plea to the jurisdiction that
Mr. Sharon is a citizen of California, and the replication to it, pre-
sented issues of fact. The plea was Bled early in May. Over Bve
months have elapsed since the case was at issue on the plea. No
testimony has been taken and no application for an extension of time
was made. The three months having expired, no testimony can now
be taken. It was on that ground that the case was submitted on the
pleadings without evidence by complainants counsel on yesterday, as
he had a right to do, it having been regularly set down for hearing
on the calendar for that day, and having been regularly called in its
order for hearing. The burden of proof is on the party making the
allegations of the plea. As she has no testimony, necessarily, her
plea is not supported. The plea must, therefore, be overruled on that
ground, there being no testimony to support it. These are the points