$681. Secondly; As to the answer in support of the plea. In order to require, or even to justify, such

which the bar is sought to be avoided, must be met by negative averments in the plea; because, without such averments, the plea would admit the decree to have been obtained by fraud, and would therefore admit that it formed no bar. When issue is joined upon such a plea, if the decree is admitted by the Bill, the only subject, upon which evidence can be given, is the fact of fraud. If that should be proved, it would open the plea on the hearing of the cause; and the defendant would then be put to answer generally, and to make defence to the Bill, as if no such decree had been made. The object of the plea is to prevent the necessity of entering into that defence by trying first the validity of the decree. If the evidence of fraud should fail, the decree, operating as a bar, would determine the suit, as far as the operation of the decree would extend. It has also been objected, that a plea of the decree is a plea of the matter impeached by the Bill. But the frame of a Bill in Equity necessarily produces, in various instances, this mode of pleading. If the Bill stated the title, under which the plaintiff claimed, without stating the decree, by which it had been affected, the defendant might have pleaded the decree alone in bar. If the Bill stated the plaintiff's title, and also stated the decree, and alleged no fact to impeach it; and yet sought relief founded on the title concluded by it, the defendant might demur; because upon the face of the Bill the title of the plaintiff would appear to be so concluded. But, as in the form of pleading in Equity, the Bill may state the title of the plaintiff, and at the same time state the decree, by which, if not impeached, that title would be concluded, and then avoid the operation of the decree, by alleging, that it had been obtained by fraud ; if the defendant could not take the judgment of the Court upon the conclusiveness of the decree by plea, upon which the matter, by which that decree was impeached, would alone be an issue, he must enter into the same defence, (by evidence, as well as by answer,) as if no decree had been made; and would be involved in all the expense and vexation of a second litigation on the subject of a former suit, which the decree, if unimpeached, had concluded. It is therefore permitted to him to avoid entering into the general question of the plaintiff's title, as not affected by the decree, by meeting the case made by the plaintiff, which can alone give him a right to call for that defence, namely, the fact of fraud in obtaining the decree. This has been permitted to be done in the only way, in which it can be done, by pleading the decree with averments, denying the fraud alleged; and those averments being the only matter in issue, they are necessarily of the very substance of the plea. The decree, if obtained by fraud, would be no bar; and nothing can be in issue on a plea, but that, which is contained in the plea ; and every charge in the Bill, not negatived by the plea, is taken to be true on argument of the plea. If, therefore, the decree merely were pleaded on argument of the plea, the

an answer, there must be some specific facts charged in the Bill, to which such an answer is a proper response. A Bill may be specific in two respects. It may allege a particular fact, and charge, that the evidence thereof is in the possession of the defendant; or it may be specific in charging a general fact, such as the fact, upon which the title of the plaintiff is founded, and charge particular circumstances to prove that general fact, and require discovery thereof from the defendant. It is necessary, in order to the allowance of an answer in support of a plea, that the Bill should contain some charge of one kind, or of the other. Therefore, where the Bill does not charge any specific fact, inconsistent with the plea, negativing, and avoiding, as it were, that plea by anticipation, but only alleges, generally, that the defendant holds papers and writings, by which the truth of the several matters charged in the Bill, or some of them, would appear, (which matters, is true, would not affect the validity of the plea, but would leave it with its full force,) it is not necessary to put in an answer in support of the plea ; for nothing is charged, which is specific in any point of view, to defeat the plea, and an accompanying answer is unnecessary; and indeed is improper, since it would overrule the plea.?

charge of fraud must be taken to be true, and the plea ought therefore to be overruled. But if on argument the plea were allowed, or if the plaintiff, without arguing, replied to the plea, no evidence could be given on the charges of fraud to avoid the plea; and the defendant proving his plea, that is, proving the decree and nothing more, would be entitled to have the Bill dismissed at the hearing.” Mitf. Eq. Pl.by Jeremy, 239 243 and note (8). See also 2 Ves. & Beam. 364 ; 6 Madd. R. 64; 2 Sim. & Stu. 279; Ante, § 671, note.

1 Hare on Discov. 36, 37; Macgregor v. East India Company, 2 Sim. R. 455; James v. Sadgrove, 1 Sim. & Stu. 4; Hindman v. Taylor, 2 Bro. Ch. R. 7; Post, $ 754.

2 Hare on Discov. 37; Macgregor v. East India Company, 2 Sim. R.

$ 681, a. But if the Bill should contain allegations, which, if true, would defeat the bar set up by the plea, in such a case the plea cannot be pleaded to the discovery prayed by the Bill, although the Bill merely charges in general terms, that the defendant has in his custody or power, divers books, papers, and writings, by which, if produced, the truth of the several matters aforesaid, or some of them, would appear. For in such a case there might be an answer, negativing the existence of such books, papers, and writings; or there might be a discovery, which, when made, might completely prove a case, which would displace the bar.

452 ; Hardman v. Ellames, 2 Mylne & Keen, 743, 744; Cooper, Eq. Pl. 228, 229 ; Mitf. Eq. Pl. by Jeremy, 269 - 272; Forbes v. Skelton, 8 Sim. R. 335.

1 Clayton o. Earl of Winchelsea, 3 Younge & Coll. 683; Lord Portarlington v. Soulby, 6 Sim. R. 356; James v. Sadgrove, 1 Sim. & Stu. 4; Macgregor v. East India Company, 2 Sim. R. 455. This last case may be thought to involve some qualification or contradiction of the doctrine. But perhaps, correctly considered, it is reconcilable with it; for the Court seemed to think, that the Bill contained no allegation, that there had been any promise within six years to pay the debt, and therefore a pure plea of the statute of limitations was proper; and that the general language of the Bill, that the defendant had books, papers, &c., in his custody, which would prove the allegations in the Bill, or some of them, did not call for any discovery, which would avoid the bar. Lord Abinger, in Clayton v. Earl of Winchelsea, 3 Younge & Coll. 683, 689, thought the case of Macgregor v. East India Company incorrectly decided; and that a plea of the statute of limitations was not maintainable to a Bill of Discovery. But this must be understood in a qualified sense ; for if none of the facts sought to be discovered would avoid the bar, then it would seem, that the plea was good. But his Lordship's opinion, that the general allegations in the Bill, as to papers and documents, &c., are sufficient to require a discovery by answer, seems well founded. On this occasion his Lordship said ; " It appears to me, that the question in this case rests on a simple point. In determining these cases, one would be desirous, if possible, to show, that the pleadings both at law and in Equity were reconcilable with common sense ; and I think, that, upon a careful examination of the principles, on which they rest, they will, generally speaking, be found to be so. Now, I think, that the distinction, which may serve to reconcile many of the cases on this subject, is that, EQ. PL.

82

682. So, unless it appears from the frame of the Bill, that some discovery is sought from the defendant, by which the existence of the title of the plaintiff is to be established, no answer is necessary or proper ; for, in order that a defendant may, in such a case, know, what is the particular discovery, which the plaintiff requires of him, it is incumbent upon the plaintiff distinctly to state it in his Bill. And the common form of doing this is, by the plaintiff's charging, as evidence of his title, the particular matters, as to which he seeks a discovery from the defendant.

which exists between a negative and affirmative plea. If you charge matters in the Bill, and demand discovery as to those matters, and the defendant pleads affirmative matter, the issue of which lies upon him to prove, and he then goes on to answer any matter charged in the Bill, the answer overrules the plea; because it is wholly immaterial to the plea. But if he plead a negative plea ; that is to say, if he traverses matters charged in the Bill, and the Bill not only alleges those matters, but also that the defendant has documents, which would prove them, the plea is not satisfactory, if he does not also deny the possession of those documents. The plaintiff has a clear right to a defence upon both points. No doubt, the defendant, by his plea, denies what the plaintiff puts in issue, and may do so conscientiously enough. But if the plaintiff calls on him to produce documents to prove the issue, it is not sufficient, if he do not make some statement, as to that, which relates to the proof of the allegation. It is said, indeed, by the learned counsel for the plaintiff, and very justly, that in this Bill there is no special charge, that the defendant has deeds, which would show that he had taken tithable matters ; but surely the general charge is sufficient to embrace that. It states, generally, that the defendant has documents in his possession, which would tend to show the truth of the matters charged in the Bill, or some of them. Suppose he had a book, showing the produce of corn for the last year; that would be a document. I think, that a plea, in order to be a good defence as a negative plea, ought to go on to meet that part of the Bill, which relates to the proof of the matter of the plea. An affirmative plea stands on a different ground." There does not however, seem to be any real distinction between the case of an affirmative plea, and that of a negative plea, where the Bill contains charges, anticipatory of the plea, and avoiding it, as has been remarked by the learned Reporters, (3 Younge & Coll. 689, note a); Mitf. Eq. Pl. by Jeremy, 270-273 ; Post, $ 754, 806; 2 Daniell, Ch. Pr. 112 - 128.

Unless the defendant is distinctly informed by the plaintiff, what are the particular matters affecting his title, as to which he seeks such discovery, the defendant, not knowing what he is expected to answer, is not to answer at all."

1 Thring v. Edgar, 2 Sim. & Stu. 274 ; Pennington v. Beechey, 2 Sim. & Stu. 282; Hare on Discov. 38, 39; 2 Daniell, Ch. Pr. 112 - 128. Mr. Hare (on Discov. 39, 40) has remarked on the language of the Court in the case of Thring v. Edgar, 2 Sim. & Stu. 274, cited in the text, as follows; " The form of expression here pointed out, it would seem, must be confined to those cases, where the defendant charges a particular circumstance in support of his title. It can scarcely, in any propriety of language, apply, where the Bill, having averred the specific facts, upon which the title is founded, charges in the common form, applying to books and papers, that by them the truth of the several matters aforesaid, or some of them, would appear;' and merely adding to that general charge, that a certain fact in particular would thereby be proved. For example, if the Bill insisted upon a certain agreement, and, as evidence thereof, charged, that the defendant had done some act, manifesting his sense of the existence of the agreement, the words in question may be aptly used, as indicating the matter to be discovered in the event of the defendant's pleading to the general fact. But if the plaintiff states his case, as he may do, without alleging any collateral matter as evidence of it, he may still entitle himself to an answer, notwithstanding the plea, if he adds to the usual charge, that the defendant holds papers and writings, from which the truth of the several matters would appear, an allegation, that thereby in particular some circumstance, which he specifies, inconsistent with the anticipated plea, would appear. The formal words, adverted to, are then inappropriate. The object of the charge is, to compel an admission, upon which the plaintiff might require the papers to be produced. The papers may constitute evidence favorable to the plaintiff; the mere possession of them of itself proves nothing." See Ante, 9 681, 4, and note; Clayton v. Earl of Winchelsea, 3 Younge & Coll. 683, 688. Mr. Justice Washington, in Sims v. Lyle, 4 Wash. Cir. C. R. 303, 304, made some remarks upon the nature and office of a plea, and when an answer should accompany the same, which deserve to be cited in this place. “A plea, being nothing more than a special answer to the Bill, setting forth and relying upon some one fact, or a number of facts, tending to one point, sufficient to bar, delay, or dismiss the suit, it would be a vice in the plea to cover any other parts of the Bill, than such as concern the particular subject of the bar; its office being to reduce the cause, or some part of it, to a single point, and thus to prevent the expense and trouble of an examination at large. It is true, that all facts essential to render the plea a complete defence to the Bill, so far as the plea extends,