from making a full answer of discovery. And, therefore, it is very far from being generally true, as is from the late English Rules adopted in Chancery upon the same subject. See Orders in Chancery, 1841, Orders 16 - 19,1 Phill. & Craig, 371-373. See Ante, Ø 606, 609, 610; 1 Howard, R. Introd. 53 ; 17 Peters, R. App'x, 67. 1 Hare on Discov. 255, 256 ; 2 Daniell, Ch. Pr. 248, 249; Bank of Utica v. Messereau, 7 Paige, R. 517. In this last case, Mr. Chancellor Walworth said (p. 518); "It is a general rule of pleading in this Court, that if the defendant attempts to make his defence by answer, instead of pleading or demurring to the Bill, he must answer fully; that is, he must answer the whole of the statements and charges contained in the Bill, and all the interrogatories legitimately founded upon them, so far as they are necessary to enable the complainant to have a complete decree against him. This was the ancient course of proceeding in this Court, as recognized by Lord Macclesfield, in Stephens v. Stephens, and followed by the decisions of Lord King, in Edwards v. Freeman, and in Richardson v. Mitchell, Sel. Cas. in Ch. 51. And it proceeds upon the principle, that the complainant is entitled to a full discovery of all facts alleged in the Bill, which may be important to the complainant in the suit, in case he should succeed in showing, that the particular defence attempted to be set up in the answer is false or unfounded. If the defendant pleads or demurs to the Bill, the complainant is not deprived of any part of his discovery if the defence intended to be insisted on is unfounded in law or untrue in point of fact. For, if the plea or demurrer is disallowed, the defendant may still be compelled to put in his answer and make the discovery sought by the Bill; and if the plea is overruled as false, at the hearing, the complainant will be entitled to a decree according to the case made by his Bill; and the defendant, if necessary, may be examined on interrogatories. But where the defendant puts in an answer denying some particular allegation, which is necessary to the complainant's title to relief, and puts every other allegation in the Bill in issue by a general trarerse in the usual form, it is evident, that the complainant at the hearing will be required to prove many things, as to which he was entitled to a discovery, if the particular defence set up in the answer should turn out to be false and unfounded. It is not a little surprising, therefore, that the ancient rule of pleading should ever have been departed from in the Court of Chancery in England, except in those cases, where the discovery sought was of such a nature, that the defendant could not, under any circumstances, be required to make it; as where it would be a breach of professional confidence, or would criminate himself, or subjeet him to a penalty of forfeiture. Shortly after the American Revolution, however, the ancient rule on this subject was attempted to be changed in the English Court of Chancery; or rather exceptions were introduced from time to time, which, if continued, would in the end have left but very sometimes alleged in the books, that a defendant may, by answer, avail himself of, and insist upon every little difference in substance between an answer and a plea. When Lord Eldon afterwards held the great seal, he became dissatisfied with this new practice, of permitting a defendant, by his answer, to refuse to give a full answer ; though I am not aware, that his Lordship repudiated it by any direct decision. The cases of Rowe v. Teed, 15 Ves. R. 372, and Somerville v. Mackay, 16 Ves. R. 382, show, however, that he was prepared to do so, whenever a case should come before him, presenting that point directly for his decision. And Sir John Leach, one of the best Equity judges who has occupied a seat upon the bench of the English Court of Chancery since the time of Lord Hardwicke, soon after, in the case of Mazarredo v. Maitland, 3 Madd. R. 70, declared in favor of the ancient rule on this subject ; saying, in terms, that he thought it so useful a rule, that he should always adhere to it. Since which time, the ancient rule of pleading appears to have been followed in England.” Mr. Daniell says; " It is to be observed, that this rule is applicable to all cases, where the defence, intended to be set up by the defendant, extends to the entire subject of the suit; such, for instance, as that the plaintiff has no right to equitable relief, - or that he has no interest in the subject, – or that the defendant himself has no interest in the subject, - or that he is a purchaser for a valuable consideration, - that the Bill does not declare a purpose, for which Equity will assume a jurisdiction to compel a discovery, - or that the plaintiff is under some personal disability, by which he is incapacitated to sue ; in all these cases, a defendant, who does not avail himself of the objection to answering, either by demurrer or plea, but submits to answer the Bill, must answer it fully (Hare on Discov. 256); unless he comes within any of the cases, which have been before pointed out, as affording a special ground for objecting to the discovery sought, either because the discovery may subject him to pains and penalties, or to a forfeiture, or to something in the nature of a forfeiture; or because it is immaterial to the relief prayed; or because it may lead to a disclosure of matters, which are the subject of professional confidence, or of the defendant's own title, in cases where there is not a sufficient privity between him and the plaintiff to warrant the latter in requiring a disclosure of it. The principle, upon which the Court proceeds, in exempting a defendant from a discovery under any of the above circumstances, has been fully discussed in considering the grounds, upon which a defendant, although he does not object to the relief, provided the plaintiff makes out a case, which may entitle him to it, may demur to the discovery sought. It is only necessary, therefore, to repeat in this place, what has been before stated, that if a defendant objects to a particular discovery upon any of the grounds above stated, he may, where the grounds upon which he may object appear upon the Bill, decline making such discovery by submission in his answer.” 2 Daniell, Ch. Pr. 248, 249; S. P. Hare on Discov. 255, 256. CHAPTER XVIII. ANSWERS. § 845. WE come, in the next place, to the fourth and last mode of defence; and that is by an answer. If the defendant does not demur or plead, he must answer to the Bill. The time, when he is to answer, is a matter fixed by the general regulations or practice of the particular Court. But it is a general rule, that the defendant is not bound to answer to a Cross Bill, until the other party has put in his answer to the original Bill. It has been already mentioned, that every plaintiff is entitled to a discovery from the defendant of the matters charged in the Bill, provided they are necessary or proper to ascertain facts, material to the merits of his (the plaintiff's) case, and to enable him to obtain a decree.3 The plaintiff may require this discovery, either because he cannot prove the facts, or in aid of proof, and to avoid expense. He is also en 1 Com. Dig. Chancery, K. 1. 2 Long v. Burton, 2 Atk. 218. 3 Mitf. Eq. Pl. by Jeremy, 9, 301, 307; Ante, § 572. The concluding part of every Bill requires this discovery. It is as follows: "To the end, therefore, that the said (the defendants) and their confederates when discovered, may, upon their several and respective oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, a full, true, direct, and perfect answer make to all and singular the premises, as fully and particularly as if the same were here repeated, and they interrogated thereto, and more especially whether," &c., &c. See 2 Grant, Ch. Pr. 369, edit. 1826. 4 Ante, § 319 and note, 324; Mitf. Eq. Pl. by Jeremy, 307; March v. Davison, 9 Paige, R. 580; Brereton v. Gamul, 2 Atk. 241; Finch v. Finch, 2 Ves. 492; Earl of Glengall v. Frazer, 2 Hare, R. 99, 105. is now settled, that a defendant cannot by answer set up as a defence to a Bill for discovery and relief, that he is a bonâ fide purchaser for a valuable consideration without notice; but if he means to insist upon it, he must do it by way of plea; because, if he answers at all, he must answer fully. On the other hand, it is equally clear, that the statute of limitations and lapse of time may be relied upon as a defence by answer, as well as by plea and demurrer. § 848. We shall now proceed to the consideration of the nature and form of an answer, premising, however, that, where there are several defendants, each is entitled, if he chooses, (subject to an ultimate question, when a Bill claimed the tithe of rabbits on an alleged custom, and the defendant denied the custom, it was determined, that the defendant was not bound to set forth an account of the rabbits, alleged to be tithable. And a like determination was made upon a claim of wharfage against common right, the title not having been established at law. But where a discovery is in any degree connected with the title, it should seem, that a defendant cannot protect himself by answer from making the discovery. And in the case of an account required, wholly independent of the title, the Court has declined laying down any general rule; deciding, ordinarily, upon the circumstances of the particular case. Thus, to a Bill stating a partnership, and seeking an account of transactions of the alleged partnership, the defendant by his answer denied the partnership, and declined setting forth the account required, insisting, that the plaintiff was only his servant; and the Court, conceiving the account sought not to be material to the title, overruled exceptions to the answer for not setting forth the account. And, where a plea has been ordered to stand for an answer, with liberty to except to it, as an insufficient answer, the Court has sometimes limited the power of excepting, so as to protect the defendant from setting forth accounts, not material to the plaintiff's title, where that title has been very doubtful.” Mitf. Eq. Pl. by Jeremy, 310 - 313. See Hare on Discov. 247 – 255; Id. 256 – 260, 298 – 300. See also Cooper, Eq. Pl. 315, 316; Ante, 681, a. i Portarlington v. Soulby, 7 Sim. R. 28; Ovey v. Leighton, 2 Sim. & Stu. 234; Ante, 603, 810. But see Ante, S 846, 847, where the present countervailing Rule of the Supreme Court is stated ; Post, 9 851. 2 Ante, $ 503, 751; 2 Story on Eq. Jurisp. $ 1520, 1521. See also Cholmondeley v. Clinton, 2 Jac. & Walk. 1, 138 - 152; Elmendorf v. Taylor, 10 Wheat. R. 168; Pratt v. Vattier, 9 Peters, R. 405, 416, 417; Boone v, Chiles, 10 Peters, R. 177, as to costs, if the proceeding is oppressive,) to put in a separate answer, although they have a common defence. But, under the latter circumstances, it is most common for them to put in a joint answer. It may also be here added, that a defendant need not generally answer to any part of the charges of a Bill, except what apply to, or concern himself.? § 849. And, in the first place, in relation to the nature of an answer. An answer generally controverts the facts stated in the Bill, or some of them, and states other facts to show the rights of the defendant in the subject of the suit. But sometimes it admits the truth of the case made by the Bill, and, either with, or without stating additional facts, submits the questions, arising upon the case thus made, to the judgment of the Court.3 If an answer admits the facts stated in the Bill, or such as are material to the plain*tiff's case, and states no new facts, or such only as the plaintiff is willing to admit, no further pleading is necessary. The answer is considered as true; and the Court will decide upon it. But, if the answer does not admit all the facts in the Bill, material to the plaintiff's case, or states any fact, which the plaintiff is not disposed to admit, the truth of the answer, or of any part of it, may be denied ; and the sufficiency of the Bill to ground the plaintiff's title to the relief, which he prays, may be asserted by a replication, which in this case also concludes the pleadings according to the present practice of the Court.5 1 Van Sandau v. Moore, 1 Russ. R. 441; S. C. 2 Sim. & Stu. 509. 2 Mitf. Eq. Pl. by Jeremy, 309, note (m); Cooper, Eq. Pl. 315; Newman v. Godfrey, 2 Bro. Ch. R. 332 ; Gresley on Evid. 17, 18; Hare on Discov. 160 - 162. 3 Mitf. Eq. Pl. by Jeremy, 15, 16. |