ant appears not to have sufficiently supported his plea by his answer, the plea must be overruled, or ordered to stand for an answer only.1 A plea is usually ordered to stand for an answer, where it states matter, which may be a defence to the Bill, although 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 order, liberty is given to except.3 But that liberty may be qualified, so as to protect the defendant from any particular discovery, which he 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. If a plea, accompanied by an answer, is allowed, the answer may be read at the hearing of the cause to counterprove the plea.5 §700. There are some pleas, which are pleaded with such circumstances, that their truth cannot be be disputed; and others, being pleas of matter of fact, the truth of which may be immediately ascertained by mere inquiry, it is usually referred to one of the Masters of the Court to make the inquiry. These pleas, therefore, are not usually argued. Thus, pleas of outlawry, or of excommunication, being always pleaded 1 Mitf. Eq. Pl. by Jeremy, 303; Hildyard v. Cressy, 3 Atk. 304. 2 Mitf. Eq. Pl. by Jeremy, 303. 3 Mitf. Eq. Pl. by Jeremy, 304; Sellon v. Leawn, 3 P. Will. 239; Maitland v. Wilson, 3 Atk. 814; Orcutt v. Orms, 3 Paige, R. 459; Leacroft v. Dempsey, 4 Paige, R. 124. 4 Mitf. Eq. Pl. by Jeremy, 304. 5 Mitf. Eq. Pl. by Jeremy, 303, 304; Cooper, Eq. Pl. 233; Souzer v. De Meyer, 2 Paige, R. 574; Ante, § 690. sub sigillo, the truth of the fact pleaded is ascertained by the form of pleading; and the suit is consequently delayed, until the disability shall be removed; unless the plaintiff can show, that the plea is defective in form; or, that it does not apply to the particular case; and for these purposes he may have the plea argued.' Pleas of a former decree, or of another suit depending, are generally referred to a Master to inquire into the fact; and if the Master reports the fact true, the Bill stands instantly dismissed, unless 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 § 701. Pleas also may in some cases be amended; as where there has been an evident slip or mistake, and the material ground of defence seems to the Court to be good. Yet the Court always expects to be told precisely, what the amendment is to be, and how the slip happened, before it will allow the amendment to take place. The defendant will also be tied down to a short time in which to amend. And in a case, in which a plea seemed incapable of amendment, the defendant had leave to withdraw his plea, and to plead de novo in a fortnight. Where a plea is clearly good in substance, but is objectionable in point of form, as not concluding either in bar, or otherwise, leave will sometimes be given to amend the plea." 1 Mitf. Eq. Pl. by Jeremy, 304, 305. 2 lbid. 3 Cooper, Eq. Pl. 234; Newman v. Wallis, 2 Bro. Ch. R. 143, 147; Merrewether v. Mellish, 13 Ves. 435, 439; Mitf. Eq. Pl. by Jeremy, 281, note; Id. 324, note. CHAPTER XIV. PLEAS TO RELIEF. § 702. HAVING stated these considerations applicable to pleas in general, we shall now proceed to the examination of the different sorts of defences, which either may be, or must be, insisted upon by way of plea. We have already had occasion to notice, that some matters of defence can only be taken by demurrer; some only by plea; others again only by answer; and others again may be taken in either mode, where they go to the very substance of the Bill, and the Equity asserted in it.1 2 § 703. In our subsequent inquiries respecting the different kinds of defences, which may be taken by plea, the same method will be observed, as has been already pursued in regard to demurrers. In the first place, then, we shall consider the appropriate pleas, as matters of defence, to original Bills; and next, those to Bills not original. § 704. Original Bills, so far as the present inquiries are concerned, are either Bills praying for relief, or Bills not praying for relief. A plea may either be to the relief, or to the discovery, or to both. If the plea is good to the relief, it is (as we have already seen) held in England (perhaps it is or may be different in America3) to be good to the discovery also sought by the 1 Ante, § 439, 558, note, 647; Mitf. Eq. Pl. by Jeremy, 233, 234; Cooper, Eq. Pl. 235; Cozine v. Graham, 3 Paige, R. 177. 2 Ante, § 440, 466. 3 Ante, § 312, 441; Post, § 751, note. Bill; in like manner as a demurrer, which is good to the relief, is held to be good to the discovery. If, however, instead of a plea to the relief and discovery in such a case, the defendant puts in a plea to the relief only, he professes that he will give the discovery, and he must give it. § 705. First, then, let us consider those pleas, which constitute an appropriate defence to Bills for relief. These may be divided into four kinds. (1.) Pleas to the jurisdiction ; (2.) Pleas to the person ; (3.) Pleas to the frame or form of the Bill; (4.) Pleas in bar to the Bill. 1 Ante, 0 312 and note, $ 545, 546; Cooper, Eq. Pl. 117, 236. 2 King v. Heming, 9 Sim. R. 59. 3 Mr. Beames (Pl. in Eq. 53) has proposed a similar classification. “We should observe,” says he, “that pleas in Equity have generally been classed under three heads ; 1st, to the jurisdiction ; 2dly, to the person of the plaintiff or defendant; and 3dly, in bar: whilst pleas at law have been usually arranged under five heads; Ist, to the jurisdiction ; 2dly, to the person of the plaintiff or defendant; 3dly, to the count; 4thly, to the writ ; and 5thly, in bar, or to the action. And, as each subsequent plea at law abandons the preceding plea, if the order of pleading be inverted, the defendant loses the advantage of the plea, which he had an anterior right to; for ordine placitandi servato, servatur et jus. It is not, perhaps, absolutely necessary to consider, whether there are any pleas in Equity, which correspond in strictness with pleas to the count, or pleas to the writ, or whether there are not some demurrers in Equity, which are analogous in principle to such pleas at law. But the distribution of all pleas in Equity just alluded to, is certainly not correct; and the consequence of that distribution has been, that some pleas in Equity, which unquestionably could not, with propriety, be described as falling under either of these three heads, have been thrust into one or other of them. In the present work, therefore, although the three heads, under which pleas have been generally arranged, will be adopted as classes of distribution, another, or fourth class, will be added to them, namely, of pleas not properly falling under any of those three heads, and which, for the sake of distinction, may be termed pleas to the Bill. And as such pleas to the Bill are both analogous and equivalent to pleas in abatement at law, they will be discussed after pleas to the person, and previously to pleas in bar to the relief." Lord Redesdale has included the two last classes under the head of pleas in bar. (Mitf. Eq. Pl. by Jeremy, 219, 220.) But Mr. Beames's division is manifestly more correet. EQ. PL. 85 § 706. Those pleas, which are commonly termed pleas to the jurisdiction of the Court, do not dispute the rights of the plaintiff in the subject matters of the suit, or that they are fit objects of the cognizance of a Court of Equity; but simply assert, that the Court of Chancery is not the proper Court to take cognizance of those rights. Pleas to the person of the plaintiff, also, do not dispute the validity of the rights, which are made the subject of the suit; but they object to the plaintiff, that he is by law disabled to sue in a Court of Justice; or, that he cannot institute a suit alone; or, that he is not the person he pretends to be; or, that he does not sustain the character he assumes. Pleas in bar are commonly described (as has been already suggested) as allegations of foreign matter, whereby, supposing the Bill, as far as it is not contradicted, to be true; yet the suit, or the part of it, to which the plea extends, is barred. This description is plainly applicable only to what are called pure pleas. In our subsequent inquiries, the other class of pleas in bar (pleas not pure) will be equally included." § 707. This classification of pleas bears a strong analogy to that, which is known in the Civil Law. In that law, exceptions (the nature and definition of which have been already stated 5) were commonly divided into two kinds, dilatory, and peremptory. Exceptiones aut perpetuæ et peremptoriæ sunt, aut temporales et dilatoria. Peremptory exceptions were a perpetual bar. Perpetua atque peremptoriæ sunt, quæ semper lo i Mitf. Eq. Pl. by Jeremy, 221; Beames, Pl. in Eq. 56 - 60. 4 Wigram on Points of Discov. 35, 37, 40, 45, 50, 1st edit.; Id. 57 - 78, 2d edit. 5 Dig. Lib. 44, tit. 1, 1.2; Ante, $ 650. |