will expose the defendant to penalties and forfeitures, it should distinctly appear, that the penalties and forfeit Eq. Appendix, 333-336, being the actual plea in Hutchins v. Landar, Cooper, Eq. R. 34, allowed by Lord Eldon. Mr. Hare (Hare on Discov. 290-292) has made some important remarks on the subject of pleas to discovery, and the difficulty in many cases of so framing them, as to avoid the necessity of an answer. "The validity of a plea," says he, "is frequently determined upon considerations apart from the merits of the case; and it may be objected, that the judgment against the plea on a point of form should not be conclusive upon the discovery. It might impose upon the defendant the necessity of disclosing important matters, with regard to which the plaintiff may, after all, have no concern. This argument seems to possess peculiar force, where the Bill seeks discovery in aid of a trial at law. The rules with regard to pleading are so essentially different at law and in Equity, that it is more easy to point out distinctions, than to suggest analogies. The important question of duplicity affords a pregnant example of the difficulty of reconciling their respective forms. The defendant is entitled to be protected from discovery of matters, which are not in issue at law; and for this purpose he must resort to a plea. But it is often impossible to frame his plea in Equity sufficiently extensive to cover all such matters, without rendering it double, and therefore bad. The defence,' it was argued in one case, 'consists of a great number of facts, not of one short fact, that might be pleaded, or of a combination of facts involving one point.' In law, there would be no difficulty; the rule there is reciprocal: it applies both to the plaintiff and defendant; to the declaration, as well as to the plea. In Equity, it is an obstacle to the defendant, and not to the plaintiff; an objection to the plea, and not to the Bill. In support of the strictness of equitable pleas, it is said, that a plea is not the only mode of defence in Equity. But this argument is inapplicable, where the Bill is for discovery; for then the plea is the only defence; and in such cases discovery is frequently given, in which the event of the cause proves the plaintiff not to have had any interest. This, however is an inconvenience attending the administration of justice, rather than a defect in the system of Equity. The determination of the rights of property, which are in dispute, is the end; discovery is but the means of eliciting truth, for the attainment of that end. It is incidental to litigation, that parties must be sometimes harassed by inquiries with respect to subjects, which in the result appear to have been unnecessarily agitated. But against this evil there are many circumstances, which operate as safeguards; and the objections, which may be taken to the discovery of matters, that are immaterial to the question in dispute, or the disclosure of which would be dangerous or prejudicial to the defendant, afford, when they are properly insisted upon, the means of an ample protection." See also Robertson v. Lubbock, 4 Sim. R. 101; Ante, § 503-526, 565 - 604. ures would accrue, if not apparent on the Bill. If the defendant should answer generally, he must answer fully; and if he means to object in any answer, that particular discoveries will expose him to penalties and forfeitures, he must set up that in his answer, as a specific ground of objection to answering. In relation also to the plea, that the defendant is a purchaser for a valuable consideration without notice of the plaintiff's title, it may, for the purpose merely of adding another illustration, be repeated, that a Court of Equity will not, in general, compel him to make any discovery, which may affect his own title. Thus, if a Bill is filed for a discovery of goods purchased of a bankrupt, the defendant may plead, that he is a purchaser bonâ fide for a valuable consideration, paid before the commission of bankruptcy issued, and without. any notice of the bankruptcy.3 1 Sloman v. Kelly, 3 Younge & Coll. 573. See Post, 846-848. 2 Mitf. Eq. Pl. by Jeremy, 288; Cooper, Eq. Pl. 300; Beames, Pl. in Eq. 277, 278; Hare on Discov. 89-104; Perrat v. Ballard, 2 Ch. Cas. 72, 73. 3 Ibid. CHAPTER XVI. PLEAS TO BILLS NOT ORIGINAL. § 826. HITHERTO we have been considering pleas with reference to original Bills only; and of these a Bill of Interpleader rarely gives rise to any plea; and a Bill of Certiorari, from the nature of the proceedings upon it, will not, in general, admit of a plea. Let us now proceed to the consideration of pleas to Bills not original, which will detain us but for a short time; since the same grounds of plea will in many cases hold to these kinds of Bills, according to their respective natures, as do to original Bills. Some of them, however, as we have already seen, admit of a peculiar defence; and that defence may sometimes be urged by way of plea. We shall pass rapidly over the subject, as no extended notice of these Bills seems necessary. 2 § 827. First; As to pleas to supplemental Bills, and Bills in the nature of supplemental Bills. If a plaintiff is not entitled to file a supplemental Bill, and the objection does not appear upon the face of it, so that the defendant may demur, he must state his objection by way of plea. Thus, as has been already mentioned, if a Bill is filed by or against a tenant in tail, in respect of the estate tail, the remainder-man will in general be bound by the proceedings, and a supplemental Bill, therefore, will be sufficient to make him a 1 Mitf. Eq. Pl. by Jeremy, 288-290; 1 Mont. Eq. Pl. 240, 241, 245. party to them.' But, if there are special circumstances in the case, as, that the Bill was filed, not in respect of charges, created upon the inheritance by the donor, but in respect of contracts by the tenant in tail, such particular circumstances may, it should seem, be offered by way of plea to the supplemental Bill.2 § 828. If a supplemental Bill is brought upon matter, which arose before the original Bill was filed, and might be inserted into it by way of amendment, and this is not apparent on the Bill, the defendant may plead that fact, to defeat it. On the other hand, if a Bill is amended by stating a matter, which has arisen subsequent to the filing of the Bill, and which consequently ought to have been the subject of a supplemental Bill, advantage may be taken of the irregularity by way of plea, if it does not sufficiently appear on the Bill to found a demurrer. But if the defendant answers, he waives the objection to the irregularity, and cannot make it at the hearing.* § 829. Secondly; As to pleas to Bills of Revivor, or Bills in the nature of Bills of Revivor. If a Bill of Revivor is brought without sufficient cause, to revive a suit against the defendant, and this is not apparent on the Bill, the defendant may plead the matter necessary to show, that the plaintiff is not entitled to revive the suit against him.5 Or, if the plaintiff is not entitled to revive the suit at all, although a title is stated in the Bill, so that the defendant cannot demur, the objection to the plaintiff's title may also be taken by way 1 Cooper, Eq. Pl. 303; Beames, Pl. in Eq. 298-302; Ante, § 612 616. 2 Ibid. 3 Mitf. Eq. Pl. by Jeremy, 290, 293, 294; Cooper, Eq. Pl. 303, 304. 4 Ibid. 5 Mitf. Eq. Pl. by Jeremy, 289, 290. of plea. Indeed, it seems to have been thought, that a defendant could only object to a Bill of Revivor by way of plea or demurrer. And there may be great convenience in thus making the objection; for, if the defendant objects by answer merely, the point can only be determined by bringing the cause regularly to a hearing. But if the objection is taken by plea or by demurrer, it may in general be immediately determined in a summary way. However, if a defendant objects by answer only, or does not object at all; yet, if it appears to the Court, that the plaintiff has no title to revive the suit against the defendant, he can take no benefit from it.5 6 § 830. The want of proper parties may also be objected to a Bill of Revivor. As, if a suit is by tenants in common, and one dies, the representative of the deceased tenant in common must make the surviving tenant in common a party to a revivor by him; and if the objection does not sufficiently appear on the face of the Bill to ground a demurrer, it may be taken advantage of by way of plea." If a Bill of Revivor is filed in a case, requiring a supplemental Bill, it seems, that the defendant may plead such supplemental matter; for although such a plea has been overruled in one case; yet it was so only on account of a defect in form, the Court admitting it to be clearly good in sub 1 Mitf. Eq. Pl. by Jeremy, 289, 290. 2 Mitf. Eq. Pl. by Jeremy, 289-294; Cooper, Eq. Pl. 302, 303; Beames, Pl. in Eq. 293-298; Id. 350, 351; Ante, § 617-627. 3 Ibid. 4 Ibid. 5 Ibid. 6 Bettes v. Dana, 2 Sumner, R. 383. 7 Cooper, Eq. Pl. 302, 303; Beames, Pl. in Eq. 296; Fallowes v. Williamson, 11 Ves. 306; Merrewether v. Mellish, 13 Ves. 435; Ante, § 358, |