ticular discovery which we ought not to be compelled to make: and if a plea is accompanied by an answer, and is ordered to stand for an answer without liberty to except, the plaintiff may yet except to the answer as insufficient to the parts of the bill not covered by the plea." 12 Where one defense is made by the plea and another by an answer filed with it, the plea may be ordered to stand for an answer.13

A plea formerly might have been overruled for three reasons; because it was bad, as defective in form, or insufficient in point of law; because, though good as to a part of the bill, it was filed to more than it could cover; and because the defendant anwered some or all of the matters covered by it.14 Now, however, a pure plea, though filed to the whole bill, may be sustained as to a part only.15 But an answer to the whole bill will overrule a plea in bar filed by the answering defendant.16 "The rule that no plea is to be held bad only because the answer may extend to some part of the same matter as may be covered by the plea, is not applicable where the answer extends to the whole of the matter covered by the plea." 17 If upon the hearing any plea is overruled, the plaintiff is entitled to his costs in the cause up to that period, unless the court is satisfied that the defendant has good ground, in point of law or fact, to interpose the same, and it was not interposed vexatiously or for delay. And upon the overruling of any plea, the defendant is assigned to answer the bill, or so much thereof as is covered by the plea, the next succeeding rule-day, or at such other period as, consistently with justice and the rights of the defendant, the same can in the judgment of the court be reasonably done; in default whereof, the bill is taken against him pro confesso, and the matter thereof proceeded in and decreed accordingly.18 Under this rule it has been held that permission to answer cannot be

12 Mitford's Pl. ch. 2, § 2, part 2. 18 Lewis v. Baird, 3 McLean, 56, 62. 14 Wigram on Discovery (1st ed.), 172– 181; Story's Eq. Pl. §§ 688, 693; Thring v. Edgar, 2 Sim. & S. 274; Salkeld v. Science, 2 Ves. Sen. 107; Chamberlain v. Agar, 2 V. & B. 259; Stearns v. Page, 1 Story, 204; Ferguson v. O'Harra, Pet. C. C. 493.

15 Rules 36, 37; Wythe v. Palmer, 3 Saw. 412; Kirkpatrick v. White, 4 Wash.

denied the defendant. 19 Upon the overruling of a plea, permission to amend it may be given; 20 or a second plea upon a different ground may be interposed, but only by leave of the court.21 If put in without leave, such a new plea will, on motion, be taken off the file.22 It seems that after his plea is overruled, the defendant may demur, at least to a part of the bill, by leave of the court.23

§ 141. Motion for a Reference of a Plea. There are some pleas upon which no issue is taken. Such were pleas of outlawry and excommunication, which were always pleaded sub sigillo, that is, under the seal of the court which had pronounced the sentence. The truth of the fact pleaded in them could, therefore, be ascertained from the form of pleading. The plaintiff was, however, at liberty to show that the plea was defective in form, or that it did not apply to the particular case; and for these purposes he might have the plea argued." Pleas of a former decree, or of another suit depending, are generally in the same predicament, being referred to a master to inquire into the fact. If in any of these cases, the master reports the fact true, the bill stands. instantly dismissed, uuless the court otherwise orders. But the plaintiff may except to the master's report, and bring on the matter to be argued before the court; and if he conceives the plea to be defective, in point of form or otherwise, independent of the mere truth of the fact pleaded, he may set down the plea to be argued as in the case of pleas in general." 2 Where it is manifest upon the face of the plea that the two suits are not alike, no reference will be ordered.3 By the English practice, if the plaintiff set down a plea for argument, he admitted its truth; and if good in form it was sustained.*

§ 142. Hearing upon Pleas. If the complainant deems a plea sufficient in form, or it has been so held by the court, he can

19 Wooster v. Blake, 7 Fed. R. 816. 20 Sanders v. King, 6 Madd. 61; Loving v. Fairchild, 1 McLean, 333; U. S. R. S. § 954.

21 McKewan v. Sanderson, L. R. 16 Eq. 316; Chadwick v. Broadwood, 3 Beav. 316; Lamb v. Starr, Deady, 350; Wheeler v. McCormick, 8 Blatchford, 267.

22 McKewan v. Sanderson, L. R. 16 Eq. 316.

bel, 1 Ves. Sen. 246; Daniell's Ch. Pr. (5th Am. ed.) 702.

§ 141. 1 Mitford's Pl. ch. 2, § 2, part 2. 2 Mitford's Pl. ch. 2, § 2, part 2. See also Emma Silver Mining Co. v. Emma Silver Mining Company of New York, 1 Fed. R. 39; Jones v. Segueira, 1 Phillips, 82; Story's Eq. Pl. §§ 700, 743, 744.

Loring v. Marsh, 2 Cliff. 311.

4 Tarleton v. Barnes, 2 Keen, 632.

23 The East India Company v. Camp- See Story's Eq. Pl. §§ 743, 744.

still test its truth by taking issue upon it. He does this by filing the general replication.2 The proceedings in taking testimony, and bringing the cause to a hearing, are substantially the same as after an issue raised upon an answer. At the hearing, the defendant has the right to open and close the argument, and the burden of proof rests upon him. If the plea be then found false, the plaintiff may, if he so choose, have the bill taken pro confesso.5 "Having put the plaintiff to the trouble and delay of an issue, the defendant cannot, after it has been found against him, claim the right to file an answer, although, if the complainant desires a discovery, which the plea is sought to avoid, he may undoubtedly insist upon it." In an extraordinary case, however, the court might still allow the defendant to answer. If the plea were found true, according to the former practice the plea was held a complete defense to so much of the bill as it was intended to apply to; and if filed to the whole bill, the bill would be dismissed as of course, irrespective of the sufficiency of the plea. Now, however, the equity rules provide that "if, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him." Under this rule, it has been held that after a replication has been filed and testimony taken, the court may, without examining the testimony, overrule the plea for insufficiency and allow the defendant to answer.10 If, however, the truth of a plea upon which issue has been joined is not estab

§ 142. 1 Mitford's Pl. ch. 2, § 2, part 2; Rhode Island v. Massachusetts, 14 Pet. 210, 257.

2 Hughes v. Blake, 6 Wheat. 453.

3 Reissner v. Anness, 13 Off. Gaz. 7; Lilienthal v. Washburn, 8 Fed. R. 707; Hughes v. Blake, 6 Wheat. 453, 472; Farley v. Kittson, 120 U. S. 303.

4 Stead's Executors v. Course, 4 Cranch, 403, 413; Gernon v. Boecaline, 2 Wash. 199; Farley v. Kittson, 120 U. S. 303; Lilienthal v. Washburn, 8 Fed. R. 707; Sharon v. Hill, 22 Fed. R. 28.

5 Kennedy v. Creswell, 101 U. S. 641, 644; Mitford's Pl. ch. 2, § 2, part 2.

6 Mr. Justice Bradley in Kennedy v. Creswell, 101 U. S. 641, 644.

7 In the language of Chief Justice

Taney, in Poultney v. City of La Fayette, 12 Pet. 472, 474.

8 Hughes v. Blake, 6 Wheat. 453; s. c. 1 Mason, 515; Rhode Island v. Massachusetts, 14 Pet. 210, 257; Myers v. Dorr, 13 Blatchf. 22; Theberath v. Rubber & Celluloid Harness Trimming Co., 5 Bann. & A. 584; Cottle v. Krementz, 25 Fed. R. 494; Birdseye v. Heilner, 26 Fed. R. 147; Bean v. Clark, 30 Fed. R. 225.

9 Rule 33. But see Myers v. Dorr, 13 Blatchf. 22.

10 Matthews v. Lalance & G. Manuf. Co., 2 Fed. R. 232. But see Myers v. Dorr, 13 Blatchf. 22; Theberath v. Rubber & Celluloid Harness Trimming Co., 5 Bann. & A. 584; Cottle v. Krementz, 25 Fed. R. 494.

lished, the bill cannot before answer be dismissed for want of equity. Leave to withdraw the replication and amend or to set down the plea for argument may under special circumstances be obtained.12 By replying to a plea, objections to its form or for a failure to support it by answer are waived.13

§ 143. General Remarks upon Pleas. In conclusion, it may be remarked that the cautious practitioner will act wisely in eschewing the use of pleas, unless he desires to plead matter in abatement, or in extraordinary cases. For it is as true now as in the time of Beames, that the subject of pleas in equity is one concerning which so much still remains to be elucidated, that it may be said of them, maxima pars eorum quae scimus est minima eorum quae ignoramus.” 1

11 Farley v. Kittson, 120 U. S. 303.

12 Cottle v. Krementz, 25 Fed. R. 494; Hughes v. Blake, 6 Wheat. 453, 473: Rules 29 and 35.

66

13 Stead's Executors v. Course, 4 Cranch, 403; Farley v. Kittson, 120 U. S. 303.

§ 143. Beames on Pleas, 61.

CHAPTER X.

ANSWERS AND DISCLAIMERS.

§ 144. Pleading Defenses in an Answer. An answer in equity serves two purposes, the setting up of the defenses to the suit, and discovery. It cannot ordinarily pray relief against the complainant, and never against a co-defendant. If a defendant desires. such relief he must ordinarily file a cross-bill.2 The defendant is entitled in all cases by answer to insist upon all matters of defense (not being matters of abatement, or to the character of the parties, or matters of form), in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar. Matters in abatement, such as lis pendens, which do not affect the jurisdiction, cannot be set up by answer. An answer may contain defenses which have been previously raised by plea or demurrer and overruled. Facts that have occurred since the filing of the bill may be pleaded in an answer. The defenses must not be inconsistent with each other. If so, it seems, that both will be disregarded, unless the inconsistent allegations are trifling, when they may be treated as surplusage.9 It is not considered inconsistent for a defendant both to deny the complainant's title and to allege that he has waived a right which he claims under it.10 The defense of a license from the plaintiff to commit the acts complained of is, in the absence of special covenants or recitals in the license, not inconsistent with other defenses impugning the validity of

Ch. C. 305; Turner v. Robinson, 1 Sim. & S. 3.

7 Chapman v. School District No. 1, Deady, 108, 115; Jesus College v. Gibbs, 1 Y. & C. 145, 147; Leech v. Bailey, 6 Price, 504; Daniell's Ch. Pr. (5th Am. ed.) 714.

8 Jesus College v. Gibbs, 1 Y. & C. 145; Daniell's Ch. Pr. (5th Am. ed.) 714. 9 Jenkinson v. Royston, 5 Price, 496, 510; Daniell's Ch. Pr. (5th Am. ed.) 714.

10 Carte v. Ball, 3 Atk. 496, 499; Comstock v. Herron, 45 Fed. R. 660; Daniell's Ch. Pr. (5th Am. ed.) 714.