the plea for argument, such a defect is waived.19 Like all other proceedings in equity, a plea must contain no scandalous or impertinent matter. If it does, the same proceedings may be taken upon it as when scandal or impertinence is contained in an answer.20 Only one plea can be filed unless by special leave of the court.21 § 137. Answers with Pleas. Although the purpose of a plea is usually to avoid discovery, yet in certain cases it must be accompanied by an answer. If the plea be to a part only of the bill, it must ordinarily be accompanied by an answer or demurrer to the residue.1 "In every case where the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying the fraud and combination, and the facts on which the charge is founded."2 Negative and anomalous pleas must usually be accompanied by an answer giving the discovery required by the bill.3. This subject is now of comparatively little importance, as the objections raised by such pleas can now be taken by answer + with more safety and convenience. The clearest statement and explanation of the rule with which the writer is acquainted, is that by Professor Langdell. "If the defence which is set up by a plea has been anticipated by the bill, and evidence has been charged in disproof of the defence, the defendant must answer such charges of evidence, notwithstanding his plea, for an answer to that extent will be needed in trying the truth of the plea. The defendant, therefore, incorporates an answer with his plea; and then the answer is said to support the plea. Such an answer, it will be observed, contains discovery only, and it is called an answer in support of a plea, to distinguish it from the case where a defendant defends by answer as to part of the bill, and by plea as to part." "If a bill anticipates a defence, and, without admitting its truth, replies to it affirmatively, and the defendant 19 Goodyear v. Toby, 6 Blatchf. 130. 20 Daniell's Ch. Pr. (2d Am. ed.) 686. See Dixon v. Olmius, 1 Cox, Eq. 412. 21 Wheeler v. McCormick, 8 Blatchf. 267; Lamb v. Starr, Deady, 351; Noyes v. Willard, 1 Woods, 187; Reissner v. Anness, 12 Off. Gaz. 842; s. c. 3 Bann. & A. 148. § 137. Rules 18, 32; Langdell's Eq. Pl. 99; Ferguson v. O'Harra, Pet. 16 VOL. I. wishes to set up the defence by plea, it is obvious that he must traverse the anticipatory replication; for otherwise, in the event of issue being taken upon the truth of the plea, the affirmative replication will be admitted to be true. A negative rejoinder, therefore, must be incorporated with the affirmative plea. Such pleas have become common in modern times; and being partly affirmative and partly negative, they are distinguished by the name of anomalous pleas. If the defendant should not be prepared to deny the truth of the affirmative replication, and should wish to set up an affirmative answer to it, of course both branches of his plea should be affirmative; but no instance of such a plea has been found in the reported cases. If an anomalous plea be put in issue, it will be seen that each party has something to prove; namely, the defendant his affirmative defence, and the plaintiff his affirmative replication; and the plaintiff is, therefore, entitled to discovery as to the latter. Consequently, an anomalous plea must always be supported by an answer as to the allegations which constitute the replication, and as to all charges of evidence, if any, in support of such allegations." 6 Such an answer is usually prefaced by an averment that the defendant does not thereby waive his plea, but wholly relies thereon." § 138. Proceedings of the Plaintiff when a Plea is filed If the allegations in a plea are sufficient and true, but the plaintiff can produce new matter which will avoid its effect, he must amend his bill, introducing by way of pretence or otherwise a statement of the matters contained in the plea, and also a substantive allegation of the new matter by which he avoids it. In such a case, at common law or by the earlier chancery practice, he would reply by confession and avoidance; but special replications are no longer used in equity, their purpose being sufficiently answered by the practice of amendment.1 Otherwise, the plaintiff may either move to take the plea off the file for irregularity,2 or set down the plea to be argued, or move for a reference to a master, or take issue upon the plea.5 If 6 Langdell's Eq. Pl. § 101. See also Langdell's Eq. Pl. §§ 102-114; Story's Eq. Pl. §§ 668--674; Foley v. Hill, 3 Myl. & Cr. 476. 7 Story's Eq. Pl. § 695. § 138. 1 Mason v. Hartford, Providence & Fishkill R. R. Co., 10 Fed. R. 334; Rules 29, 66; Story's Eq. Pl. chs. xix., xx. 2 Ewing v. Blight, 3 Wall. Jr. 134. 3 Rule 33. 4 Tarleton v. Barnes, 2 Keen, 632. 5 Rule 33. he neither amends nor takes any of these proceedings before the rule-day next after that on which the same was filed, he is deemed to admit the truth and sufficiency of the plea, and his bill will be dismissed as of course, unless a judge of the court shall allow him further time for the purpose. More indulgence in this respect will be allowed to States than to individuals, and the plaintiff is not obliged to take notice of a plea until it has been entered in the order book or served upon him.8 In case of a motion to take the plea off the file, it will be more prudent to obtain an extension of time wherein to reply or set down the plea, in case it should be allowed to remain. No one, except the defendant who files a plea, can take advantage of the failure of the plaintiff to act upon it.10 Where the plaintiff had taken no action upon the plea for eight months, it was held that the defendant might withdraw it and file an answer.11 Otherwise, neither party is, in general, at liberty to take any step in a cause after the filing of a plea, until the plea is disposed of.12 If the defendant pleads to the relief only, and proposes to answer the whole discovery required, the plaintiff may file exceptions to the answer.13 This, it was formerly held, he could not do unless by special leave of the court, without thereby admitting the truth of a plea which extended to any part of the discovery.14 In an extraordinary case, a motion for an injunction might be made while a plea was pending; but the more usual course is to pray the court to expedite the hearing of the plea.15 When a plea and a demurrer were filed at the same time, it was held that action on the plea should be postponed till the hearing on the demurrer.16 § 139. Motion to take a Plea off the File. A motion to take a plea off the file is, it seems, the proper remedy, when the plea was filed too late, or has such an irregularity in form as the 6 Rule 38. 13 Pigot v. Stace, 2 Dickens, 496; Sid 7 Rhode Island v. Massachusetts, 14 ney v Perry, 2 Dickens, 602. Pet. 210. 14 Darnell v. Reyny, 1 Vern. 344; 8 Newby v. Oregon Central Ry. Co., 1 Brownell v. Curtis, 10 Paige (N. Y.), 210. Saw. 63, 65. 9 See Rule 38. 10 Chicago & Alton R. R. Co. v. Union Rolling Mill Co., 109 U. S. 702, 717. 11 Oliver v. Decatur, 4 Cranch C. C. 458. 12 Daniell's Ch. Pr. (5th Am. ed.) 691; Buchanan v. Hodgson, 11 Beav. 368. 15 Ewing v. Blight, 3 Wall. Jr. 139; Humphreys v. Humphreys, 3 P. Wms. 395. 16 Cambell v. Mayer, 33 Fed. R. 795. § 139. McKewan v. Sanderson, L. R. 16 Eq. 316; Ewing v. Blight, 3 Wall. Jr. 134. omission of the requisite affidavit and certificate. In a patent case, a plea which simply denied infringement was stricken from the files as improper in form.3 When two pleas are filed without special leave, the defendant will be obliged to elect between them within ten days. Otherwise, both will be ordered to stand for an answer, or possibly be stricken out.5 Unless, however, an objection to such a defect is specifically made, it will be considered waived.6 § 140. Argument of a Plea." If the plaintiff conceives a plea to be defective in point of form or substance, he may take the judgment of the court upon its sufficiency. And if the defendant is anxious to have the point determined, he may also take the same proceeding." A plea is set down for argument in the same manner as is a demurrer, and the proceedings at the argument are also substantially the same. A plaintiff has been allowed, although the practice is irregular, to file a demurrer to a plea; in which case the demurrer presents the question of the sufficiency of the bill as well as the plea. The sufficiency of the bill as to substance is also tested when the plea is set down for argument; but it has been said that the allegations therein are not taken so strictly against the complainant as in case of a demurrer. It has been said that when a plea is set down for argument, the complainant cannot take any exception to its regularity or form. For the purpose of the argument, all allegations in the plea which are not inconsistent with. each other are presumed to be true; 5 but if a document is referred to in the plea and annexed thereto, its language will control the description of it set forth in the body of the plea. Upon argument, a plea may be allowed, or the benefit thereof may be reserved to the hearing, or it may be ordered to stand for an answer, or it may be 2 Ewing v. Blight, 3 Wall. Jr. 134; Sharp v. Reissner, 20 Blatchf. 10, 13. But see National Bank v. Insurance Co., 104 U. S. 54, 76; Secor v. Singleton, 9 Fed. R. 809; s. c. 3 McCrary, 230. 13. 2 Beard v. Bowler, 2 Bond, 13; Goodyear v. Toby, 6 Blatchf. 130. See Stead's Executors ». Course, 4 Cranch, 403, 410. 3 Rumbold v. Forteath, 2 Jur. N. s. 686. 4 Green, J., in Kellner v. Mutual Life 3 Sharp v. Reissner, 20 Blatchf. 10, Ins. Co., 43 Fed. R. 623, 626. 4 Reissner ". Anness, 12 Off. Gaz. 842; s. c. 3 Bann. & A. 148; Noyes v. Willard, 1 Woods, 187. 5 Mellus v. Thompson, 1 Cliff. 125; Ex'rs of Gallagher v. Roberts, 1 Wash. 320; Farley v. Kitson, 120 U. S. 303; Kellner v. Mutual Life Ins. Co., 43 Fed. 5 Newby v. Oregon Central Ry. Co., 1 R. 623, 626. Saw. 63, 67. 6 Sharon v. Hill, 22 Fed. R. 28. § 140. Mitford's Pl. ch. 2, § 2, part 2. 6 Wheeler v. McCormick, 8 Blatchf 267. overruled. "In the first case the plea is determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, are true."8 If, therefore, a plea is allowed upon argument the plaintiff may take issue upon it, and have a trial of the truth of the facts upon which it is sought to be supported.8 "If a plea accompanied by an answer is allowed, the answer may be read at the hearing of the cause to counterprove the plea."8 If upon the hearing any demurrer or plea be allowed, the defendant is entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable.9 "If, upon argument, the benefit of a plea is saved to the hearing, it is considered that so far as appears to the court it is a full defence, but that there may be matter disclosed in evidence which would avoid it, supposing the matter pleaded to be strictly true; and the court therefore will not preclude the question." 10 In such a case, the truth of the plea must be established, and at the hearing the plaintiff may avoid it by other matter, which he is at liberty to prove.11 "When a plea is ordered to stand for an answer, it is merely determined that it contains matter which may be a defence, or part of a defence; but that it is not a full defence, or it has been informally offered by way of plea, or it has not been properly supported by answer, so that the truth of it is doubtful. For if a plea requires an answer to support it, upon argument of the plea the answer may be read to counterprove the plea; and if the defendant appears not to have sufficiently supported his plea by his answer, the plea must be overruled, or ordered to stand for an answer only. A plea is usually ordered to stand for an answer where it states matter which may be a defence to the bill, though perhaps not proper for a plea, or informally pleaded. But if a plea states nothing which can be a defence, it is merely overruled. If a plea is ordered to stand for an answer, it is allowed to be a sufficient answer to so much of the bill as it covers, unless by the bill liberty is given to except. But that liberty may be qualified, so as to protect the defendant from any par 7 Mitford Pl. ch. 2, § 2, part 2; See R. I. v. Mass., 14 Pet. 210, 257-259. 8 Mitford's Pl. ch. 2, § 2, part 2. 9 Rule 35. 10 Mitford's Pl. ch. 2, § 2, part 2. 11 Story's Eq. Pl. § 698; Rhode Island v. Massachusetts, 14 Pet. 210, 257–259. |