§ 644. So, where a Bill was preferred to establish the plaintiff's right of common, and to set aside several former decrees, the defendant demurred to the whole Bill, and the demurrer was allowed; for if there were any errors in the former decrees, they ought to have been brought before the Court by a Bill of Review, and not by this method. So, where a decree was passed, settling the rights of the parties upon all the points raised in the cause; and, afterwards, an original Bill was brought to supply some omissions in the original decree; it was deemed a valid objection, that it was contrary to the practice of the Court to allow such an original Bill upon the same matter, as was put in issue in the original cause, even supposing, that a direction, which ought to have been given at that time, was omitted.2

§ 645. So, where a Bill was brought, seeking a decree, inconsistent with a former decree, which had been rendered on the same matters between the parties; it was held, that the former decree could not be thus impeached collaterally, but only upon a Bill of Review, or a Bill to set it aside for fraud. And if the objection appeared on the face of the new Bill, it would be demurrable.

§ 646. Upon a similar ground, (as has been already stated,) if a supplemental Bill is brought against a person, not a party to the original Bill, praying, that he may answer the original Bill; and no reason is suggested, why he could not be made a party to the original Bill by amendment ; he may demur. If an

1 Granville v. Ramsden, Bunb. R. 56; Darlington v. Pultney, 3 Ves. 384, 386.

2 Darlington v. Pultney, 3 Ves. 384, 386.

3 Ogilvie v. Herne, 13 Ves. 563.

4 Ante, § 614.

irregularity arises in any alteration of a Bill by way of amendment, it may also be taken advantage of by demurrer. As, if a plaintiff amends his Bill, and states a matter, arisen subsequent to the filing of the Bill, which consequently ought to be the subject of a supplemental Bill, or of a Bill of Revivor. But if a matter, arisen subsequent to the filing of the Bill, and properly the subject of a supplemental Bill, is stated by amendment, and the defendant answers the amended Bill, it is too late to object to the irregularity at the hearing. For, as the practice of introducing, by supplemental Bill, matter arisen subsequent to the institution of a suit, has been established merely to preserve order in the pleadings, the reason, on which it is founded, ceases, when all the proceedings to obtain the judgment of the Court have been had without any inconvenience arising from the irregularity.'

1 Mitf. Eq. Pl. by Jeremy, 207, and cases there cited; Ante, § 528,

note.

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.1 In

2

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

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.' 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.3

§ 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.