CHAPTER XIII.

PLEAS.

§ 647. HAVING thus considered the nature and office of a demurrer, and the various objections, which may be taken thereby to the different kinds of Bills, we shall next proceed to the consideration of the mode of defence by plea in Equity. We have already seen, that a demurrer lies only, when the objection to the Bill is apparent upon the face of it; either from the matter contained in it; or from the defects of its frame; or in the case made by it; and that, generally speaking, this is not only the appropriate, but, in many cases, it is the sole mode, in which the objection can be taken. But, when the objection is not apparent on the Bill itself, or, as the technical phrase is, when it arises from matter dehors the Bill, if the defendant means to take advantage of it, he ought to show the matter, which creates the objection, to the Court, either by plea, or by answer. In some cases, the objection can be taken only by plea; in others, again, it may be taken by plea, or by answer; and in others, again, it can be taken only by answer.

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1 Mitf. Eq. Pl. by Jeremy, 218; Ante, § 448, 449.

In

2 Ante, § 453; Billings v. Flight, 1 Madd. R. 230; Cozine v. Graham, 2 Paige, R. 177.

3 Mitf. Eq. Pl. by Jeremy, 219; Id. 13, 14; Beames, Pl. in Eq. 2. 4 Ante, § 439. Some cases, exhibiting this diversity, have been already incidentally stated. Many objections to the form and frame of a Bill can be taken only by demurrer. Mr. Cooper says; "That in most cases, what is a good defence by way of plea, is held to be also good by way of demurrer, if the matter sufficiently appears on the face of the Bill;

short, the defendant may demur to one part of the Bill, plead to another, answer to another, and disclaim as to another, if the nature of his case requires it, in the same manner as he may demur, or plead, or answer to the whole Bill, if his defence equally applies to all parts thereof.1

§ 648. In conformity to the method, which has been already pursued in regard to demurrers, we shall now proceed, in the first place, to make some observations upon the true nature, office, and frame of a plea; and in the next place, proceed to state the cases, in which this is an appropriate mode of defence; or, in other words, what objections may be taken, and usually are taken by way of plea.

although the rules of pleading, in Lord Hardwicke's time, required, that many grounds of defence should be taken advantage of by way of plea only." See also Mitf. Eq. Pl. by Jeremy, 216; Aggas v. Pickerill, 3 Atk. 226. If a plaintiff in a Bill of Revivor is not entitled to revive, the defendant must, in general, take the objection by demurrer, or by plea. If he does not, he cannot take it by answer, although if, at the hearing, it appears, that the plaintiff has no title to revive, the Bill will be dismissed. Harris v. Pollard, 3 P. Will. 348; Cooper, Eq. Pl. 302. Lord Chief Baron Gilbert, in his For. Rom. 53, has given another illustration. "The second sort of demurrer," says he, "is, where a plaintiff goes into a Court of Equity for damages, which are uncertain, and not to be settled but by a jury; there, the defendant may demur to the relief, after having first answered to the damages, because it is alieni fori, since the Court cannot settle the damages. But this must be ante litis contestationem; for if he answers, and contests with the plaintiff, there he can take no advantage of it at the hearing; for he has submitted to the jurisdiction of the Court, and the Court will try at law the quantum of the damages, by a feigned action of quantum damnificatus. So on the demurrer ante litis contestationem, if the plaintiff will go on for the damages confessed, the Court will retain the Bill, quoad those damages, allowing the demurrer as to any further relief." See also Gilb. For. Rom. 219. See Beames, Pl. in Eq. 7, 8; Rowe v. Teed, 15 Ves. 377, 378. If a matter, which has arisen subsequent to filing of a Bill, and which ought to be the subject of a supplemental Bill, or a Bill of Revivor, is introduced by way of amendment, it cannot be taken advantage of by answer; but only by demurrer. Mitf. Eq. Pl. by Jeremy, 116; Ante, ◊ 528, note.

1 Mitf. Eq. Pl. by Jeremy, 319.

§ 649. In the first place, then, as to the true nature, office, and frame of a plea. A plea has been usually described to be a special answer, showing or relying upon one or more things, as a cause, why the suit should be either dismissed, or delayed, or barred.1 Lord Bacon, in his Ordinances, has said, that a plea is of foreign matter, to discharge, or stay the suit. Lord Redesdale has also judicially said, that a plea is a special answer to a Bill, differing in this from an answer in the common form, as it demands the judgment of the Court in the first instance, whether the special matter, urged for it, does not debar the plaintiff from his title to that answer, which the Bill requires.

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§ 650. In this view, a plea bears a very close resemblance to an exception in the Civil Law; which has been described thus; Exceptio dicta est, quasi quædam exclusio, quæ (inter) opponi actioni cujusque rei solet ad excludendum id, quod in intentionem condemnationemve deductum est.1

§ 651. All these statements are sufficiently descriptive of the general nature and office of a plea. But that of Lord Bacon is far from being accurate, according to the present doctrine on this subject; for it is by no means true, that pleas are confined to foreign matter dehors the Bill, to discharge or stay the suit. On the contrary, pleas are now usually divided into two sorts; one commonly called pure pleas, which rely wholly on matters dehors the Bill, such as a release, or a settled account; and another, called in contradistinc

1 Mitf. Eq. Pl. by Jeremy, 219; Cooper, Eq. Pl. 223; Wyatt, Pr. Reg. 324; Curs. Cancell. 180; Harris. Ch. Pr. by Newl. 218. 2 Beam. Ord. in Chan. 26; Beam. Pl. in Eq. 1.

3 Roche v. Morgell, 2 Sch. & Lefr. 725; Beam. Pl. in Eq. 1. Throughout this whole chapter, I have freely used the materials collected in Mr. Beames's excellent work on Pleas in Equity.

4 Dig. Lib. 44, tit. 1, 1. 2; Beam. Pl. in Eq. 2; Gilb. For. Rom. 50.

tion to the other, pleas not pure, or anomalous pleas, and sometimes negative pleas, which consist mainly of denials of the substantial matters set forth in the Bill.1 Thus, for example, if a Bill should admit a release to have been made by the plaintiff, or an account to have been settled, and should aver, that either was procured by fraud; the defendant may plead the release, or account settled, in bar, negativing in his plea the averment of fraud, and supporting the plea by an answer, denying all the facts and circumstances, charged as matters of fraud in the Bill. This subject will come

1 Post, § 667.

2 Beam. Pl. in Eq. 2-7; Mitf. Eq. Pl. by Jeremy, 239-243; Bayley v. Adams, 6 Ves. 594, 595; Lord Redesdale has alluded to this subject in the following passage. (Mitf. Eq. Pl. by Jeremy, 221.) "Pleas in bar are commonly described as allegations of foreign matter, whereby, supposing the Bill, so far as it is not contradicted by the plea, to be true, yet the suit, or the part of it, to which the plea extends, is barred. But this description, perhaps, does not comprise every kind of plea, or does not mark the distinctions between the different kinds with sufficient accuracy.” Lord Redesdale has fully explained the origin of this second species of plea, in a note to his work on Equity Pleading, where he is treating of the subject of fraud, alleged in a Bill to set aside a decree. Mitf. Eq. Pl. by Jeremy, 243, note (e). This subject will be examined more fully hereafter. Mr. Beames too has discussed, at large, the propriety of allowing these pleas, and stated the reasons, on which they are founded, and the practice has been allowed. Beames, Pl. in Eq. 2-7. Indeed, as long ago as the time of Lord Talbot, a plea of this sort was pleaded, and an objection taken to it upon the ground, non potest adduci exceptio ejusdem rei, cujus petitur dissolutio. But the Lord Chancellor said, that it was every day's practice; and that otherwise, no release or award could be pleaded to a Bill, which was brought to set aside the same. Pusey v. Desbouvrie, 3 P. Will. 317. See also Bayley v. Adams, 6 Ves. 594, 595. The question, whether a mere negative plea, denying the title of the party, as alleged in the Bill, (such for example, as that he was heir,) was formerly matter of considerable doubt, and diversity of judgment. But it is now well settled, (as will be shown hereafter,) that such pleas are good. Faulder v. Stuart, 11 Ves. 302; Shaw v. Ching, 11 Ves. 305; Drew v. Drew, 2 Ves. & B. 159, 163; Sanders v. King, 6 Madd. R. 61; S. C. 2 Sim. & Stu. 276; Thring v. Edgar, 2 Sim. & Stu. 274. See Mitf. Eq. Pl. by Jeremy, 230-233, and notes ibid.; Id. 244, 245, and

more fully under consideration, in other connections in the subsequent pages.1

§ 652. But every defence, which may be a full answer to the merits of the Bill, is not, as of course, to be considered as entitled to be brought forward by way of plea. It has been well observed by Lord Hardwicke, that it is not à very good defence in Equity, that is likewise good as a plea. For, where the defence consists of a variety of circumstances, there is no use in a plea; the examination must still be at large; and the effect of allowing such a plea will be, that the Court will give their judgment upon the circumstances of the case, before they are made out by proof. The true end of a plea is to save to the parties the expense of an examination of the witnesses at large. And the defence, proper for a plea, is such, as reduces the cause, or some part of it, to a single point; and from thence creates a bar or other obstruction to the suit, or to the point, to which the plea applies. Hence, a plea, in

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note (g); Hardman v. Ellames, 2 Mylne & Keen, 740; Hall v. Noyes, 3 Bro. Ch. R. 483; 2 Daniell, Ch. Pr. 99, 100, 110, 111.

1 Post, § 667-680.

2 Chapman v. Turner, 1 Atk. 54; Mitf. Eq. Pl. by Jeremy, 219; Cooper, Eq. Pl. 223; 2 Daniell, Ch. Pr. 97, 99, 102, 103; Post, § 633. 3 Mitf. Eq. Pl. by Jeremy, 295-297; Cooper, Eq. Pl. 223; Chapman v. Turner, 1 Atk. 54; Ritchie v. Aylwin, 15 Ves. 82; Rowe v. Teed, 15 Ves. 378; Whithead v. Brockhurst, 1 Bro. Ch. R. 404, and note (1), and 405, note (g) by Belt; S. C. 2 Ves. & B. 153, note; Wood v. Rowe, 2 Bligh, R. 595, 614. In Rowe v. Teed, 15 Ves. 377, 378, Lord Eldon, in speaking of the case, where matter was brought forward by the answer, for the same purposes as a plea, said; "The office of a plea, generally, is, not to deny the Equity, but to bring forward a fact, which, if true, displaces it; not a single averment, as the averment in this answer, that no bill of sale was executed, but perhaps a series of circumstances, forming in their combined result some one fact, which displaces the Equity. There is this difference between law and Equity; that here, for the sake of convenience, that is, of justice, the denial of some fact alleged by the Bill, in some instances with certain averments, has been considered sufficient to constitute a good plea; although not per