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and it has been held that the right to put in such demurrer ore tenus applies only to those cases where the demurrer is to the whole bill, and not to cases where it is to part only, notwithstanding it is co-extensive with the demurrer to that part.""
Having assigned the cause or causes of demurrer, the demurrer then proceeds to demand judgment of the court, whether the defendant ought to be compelled to put in any further or other answer to the bill, or to such parts thereof as is specified as being the subject of the demurrer, and concludes with a prayer that the defendant may be dismissed with his reasonable costs in that behalf sustained.
As the demurrer does not assert any fact, it is not necessary that it should be put in on oath, but, to prevent the abuse of putting in frivolous demurrers, it is required that the demurrer should be signed by counsel.
4273. As a demurrer relies merely upon matter apparent on the face of the bill, so much of the bill as the demurrer extends to is taken for true ; thus, if a demurrer is to the whole bill, the whole is taken for true; if it is to any particular discovery, the matter sought to be discovered, and to which the demurrer extends, is taken as stated in the bill; and if the defendant demurs to relief only, the whole case made by the bill to ground the relief prayed is considered
as true. 112
111 Shepherd v. Lloyd, 2 Younge & J. Exch. 490; 2 Daniell, Chanc. Pract. 73; Story, Eq. Pl. 8 464.
112 Richards v. Richards, 9 Gray, Mass. 313; Tuolumne Water Co. v. Chapman, 8 Cal. 392; Commercial Bank v. Buckner, 20 How. 108; Paterson R. R. Co. v. Jersey City, 1 Stockt. Ch. N. J. 434; Redmond v. Dickerson, 1 Stockt. Ch. N. J. 507; Maddox ö. White, 4 Md. 72.
PLEAS IN EQUITY.
4275-4279. The general nature of pleas.
4278. Pure pleas.
4279. Pleas not pure, or anomalous pleas.
4281. The plea must consist of new matter.
4286. Pleas must follow the bill. 4287–4295. Requisites of anomalous pleas.
4288. What a plea not pure should contain and what omit. 4289-4295. The answer required to support the plea.
4289. In what cases required.
4296. The effect of the plea.
4302. Because the subject matter is not cognizable in any court. 4303. Because the court has not jurisdiction.
4304. Because other courts possess jurisdiction. 4306-4313. Pleas to the person.
4307. Pleas to the person of the plaintiff.
4312. Pleas to the person of the defendant. 4314-4322. Pleas to the frame or form of the bill.
4315. Plea of another suit depending.
4322. Plea of multifariousness. 4323-4345. Pleas in bar to relief sought. 4324-4329. Pleas of statutes when a bar.
4325. Plea of the statute of limitations.
4329. Plea of other statutes.
4330. Pleas of matter of record. 4331-4335. Pleas of matter as of record.
4332. Judgments of foreign courts and courts not of record.
4335. Pleading the decree of a court of equity. 4336-4345. Pleas of matter purely in pais.
4337. Plea of a stated account.
4342. Plea of title in the defendant.
4347. Pleas to the jurisdiction.
4350. Pleas to discovery in bar.
4352. Pleas to bills of revivor.
4274. The subject matter of this chapter is naturally considered under four branches, and these branches will be considered successively and in the following order: first, the general nature of pleas; second, the particular requisites of pleas; third, pleas to original bills; fourth, pleas to bills not original.
4273. When the objection to a bill is apparent upon its face, the proper mode of defence is to demur to it; and this may be either from matter contained in it, or from the defects of its frame, or because the case made out by it is not sufficient in law. But when the objection is not so apparent, but is dehors the bill, the only way to take advantage of it is by plea or answer. A plea is defined to be a special answer showing or relying upon one or more things why the cause should be either dismissed, delayed, or barred. It differs from an answer in the common form in this, that it demands judgment of the court in the first instance, whether the matter urged by it did not debar the plaintiff from his title to that answer which the bill required.?
4276. A plea bears a resemblance to an exception in the civil law; the exception has been thus called as being a species of exclusion, or a bar opposed to the demand which is made against the exceptor, so as to destroy the intention of the plaintiff and to avoid the condemnation. Exceptio dicta est quasi quædam ecclusio, quæ inter opponi actioni cujusque rei solet ad excludendum id quod in intentionem condemnationemve deductum est.
4277. The defence proper for a plea is such as reduces the cause, or some part of it, to a single point, and thereby creates a bar to the suit, or to the part to which it applies. It has been observed that the end of the plea is to save to the parties the expense of an examination of witnesses at large, and that therefore it is not every good defence in equity that is good as a plea; for when a defence consists of a variety of circumstances, there is no use of a plea, as the examination must still be large; and the effect of allowing a plea would be that the court would give judgment on the circumstances of the case before they were made out by proof.*
The plea must reduce the case or some part of it to a single point. For this reason a plea ought not to contain more defences than one, and a double plea is considered informal, multifarious, and therefore improper; but a variety of
1 Mitford, Eq. Pl. Jeremy, ed. 219; Lubé, Pl. 238; Cooper, Eq. Pl. 219; Wyatt, Pr. Reg. 324; Story, Eq. Pl. 2649; Carroll v. Waring, 3 Gill & J. Md. 91 ; Beames, Pl. in Eq. 1; Fremont v. Merced Mining Co., 1 McAll. C. C. 267; Southern L. Ins. Co. v. Larrier, 6 Fla. 110. * Roche v. Morgell, 2 Schoales & L. Ch. Ir. 721. Dig. 44, 1, 2. Mitford, Eq. Pl. Jeremy, ed. 219.
facts may be pleaded in one plea when they are all conducive to a single point.
Pleas in their nature are considered as pure pleas, and pleas not pure or anomalous.
4278. Pure pleas are those which rely wholly on some matters dehors the bill; as, for example, pleas of a release or of a settled account. A pure plea in bar, if not in every instance, yet generally, admits all the facts of the bill, interposing, however, new matter, which, if true, destroys the effect of all the facts stated in the bill.
4279. Pleas not pure, or anomalous pleas, are so called in contradistinction to pure pleas; they are sometimes also denominated negative pleas. They consist mainly of denials of the substantial matters set forth in the bill. For example, should a bill admit a release to have been made by the plaintiff or an account to have been settled, and 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.?
4280. The chief requisites of a pure plea in equity are that it consist of new matter, that it be single, that it be material, that it be direct and positive, that it aver a complete equitable defence to the case made by the bill, and that it follow the bill.
4281. The first and most important requisite of a pure plea is, generally speaking, that it must bring new matter before the court. A plea in equity must state this new matter not found in the bill as a special plea at law is required “always to advance some new fact not mentioned in the declaration." Relying upon the new matter it contains as a defence, which displaces the equity of the bill, generally speaking a plea does not deny that equity. In other words, a plea is intended to prevent further proceeding at large by resting on some point founded on matter stated in the plea; and as it rests on that point merely, it admits, for the purposes of the plea, the truth of the facts contained in the bill, so far as they are not controverted by the matter contained in the plea.
A mere denial of facts, although very proper for an answer, is insufficient for a plea; and, therefore, a plea in bar to a bill in equity, merely denying part of the facts stated in the bill, is insufficient.
4282. In general, a plea in bar ought not to contain more defences than one; it must reduce the cause to a single point, constituting a ground why the suit should be dismissed, delayed, or barred.10 For it has been properly observed that if two matters of defence could be offered by way of plea, any number of defences might be tendered in the same way, which would be productive of all the delay, expense, and inconvenience which pleas in equity are expressly intended to prevent." A plea of, first, an accord and compromise of a disputed
• See Whitebread_v. Brockhurst, 1 Brown, Ch. 404, 415, note by Belt; 2 Ves. & B. Ch. Ir. 154; London v. Liverpool, 3 Ánstr. Exch. 738. See, as to duplicity in pleading in equity, Story, Eq. Pl. 8 653 to 657 ; Cooper, Eq. Pl. 224; Beames, Pl. in Eq. 10.
A plea of purchase for a valuable consideration, without notice, is, perhaps, to some extent, an exception to the rule.
Story, Eq. Pl. & 651 ; Beames, Pl. in Eq. 2–7; Bayley v. Adams, 6 Ves. Ch. 594.
Mitford, Eq. Pl. Jeremy, ed. 14; Billing v. Flight, 1 Madd. Ch. 230; Cozine v. Graham, 2 Paige, Ch. N. Y. 177; 2 Daniell, Chanc. Pract. 98, 109.
* Milligan v. Milledge, 3 Cranch, 220. 10 Goodrich v. Pendleton, 3 Johns. Ch. N. Y. 384; Chapman v. Turner, 1 Atk. Ch. 54; Moreton v. Harrison, 1 Bland, Ch. Md. 496 ; Rhode Island v. Massachusetts, 14 Pet. 211; Driver v. Driver, 6 Ind. 286. 11 Mitford, Eq. Pl. Jeremy, ed. 296, 297.
an issue. 16
right, and, secondly, prescription or an unmolested possession from the time of the agreement, is multifarious.12
Whether it be in the affirmative or negative, in order to be good a plea must be either an allegation or a denial of some leading fact, or of matters which, taken collectively, make out some general fact, which is a complete defence. But although a defence offered by way of plea should consist of a variety of circumstances, yet if they all tend to a single point, the plea may be good."
The objection is still stronger where two facts are pleaded which are inconsistent with each other.14
4283. Not only must the plea reduce the cause to a single point on which the plaintiff may take issue, but it must be such an issue as is material to delay, dismiss, or bar the bill; and the issue as to the truth of the plea is to be referred to the state of the facts at the time the plea is filed. If the point tendered by the plea is not material, it cannot in equity, any more than at law, constitute
4284. Every plea in equity should be direct and positive, and not by way of argument, inference, and conclusion, which have a tendency to create unnecessary prolixity and expense. Upon this ground, where there was a charge of constructive notice in a bill, and the defendant in his plea averred that there was not any notice, either constructive or actual, the plea was held bad, because the defendant should have denied the facts charged in the bill from which the constructive notice was deducible.17
But though, in general, a plea must be positive and direct, yet sometimes a defendant is allowed to aver according to the best of his knowledge and belief; as, that an account is just and true; and in all cases of negative averments, and of averment of facts not within the defendant's immediate knowledge, he can scarcely ever make a positive assertion.18 Unless, however, the averment is positive, the matter in issue appears to be not the fact itself, but the defendant's belief of it; and the conscience of the defendant is saved by the nature of the oath administered, which is, that so much of the plea as relates to his own acts is true, and that so much as relates to the acts of others he believes to be true.19
4285. A plea must distinctly aver all the facts necessary to render a plea a complete and equitable defence to the case made by the bill, so far as the plea extends, so that, if he chooses, the plaintiff may take issue upon it. Averments
, are likewise necessary to exclude intendments, which would otherwise be made against the pleader; and the averments must be sufficient to support the plea.? This rule is, in its principles, analogous to that prevailing at law, when, as every man is supposed to make the best of his own case, a defendant's plea, when it can be taken into two intents, shall always be construed most strongly against himself: ambiguitas placitum interpretari debet contra proferentem. 21
"Rhode Island v. Massachusetts, 14 Pet. 211; see Taylor v. Luther, 2 Sumn. C. C. 230; Didier v. Davison, 10 Paige, Ch. N. Y. 515.
13 Mitford, Eq. Pl. Jeremy, ed. 296; Cooper, Eq. Pl. 225; Bogardus v. Trinity Church, 4 Paige, Ch. N. Y. 178.
Cooper, Eq. Pl. 224. 15 Cook v. Mancius, 4 Johns. Ch. N. Y. 166.
Coke, Litt. 126, a; Morrison v. Turner, 18 Ves. Ch. 175. 17 Beames, Pl. in Eq. 22.
18 See Kirkman v. Andrews, 4 Beav. Rolls, 554; Small v. Attwood, 1 Younge & C. Exch. 39.
19 Mitford, Eq. Pl. Jeremy, ed. 297; Hancock v. Carleton, 6 Gray, Mass. 39; Andrews v. Huckabee, 30 Ala. N. s. 143; Mad. Road Co. v. Wat. Road Co., 5 Wisc. 173. 20 Mitford, Eq. Pl. Jeremy, ed. 298. Coke, Litt. 303, b; Beames, Pl. in Eq. 27, 28.