rent charge, and the defendant pleaded the possession of the premises for twenty-six years, without accounting for or paying over to the plaintiff any part of the rents and profits, the plea was allowed.138 4344. To a bill brought upon a ground of equity by an heir at law against a devisee, to turn him out of possession, the devisee may plead his title under the will, and that it was duly executed.139 But in cases of this kind, where the bill has also prayed a receiver, a plea extending to that part of the bill has been so far overruled, as it might be necessary for the court in the progress of the cause to appoint a receiver. 140 4345. Upon a bill filed by an heir against a person claiming under a conveyance from the ancestor, the defendant may plead the conveyance in bar of the suit.141 And to a bill brought to set aside a deed for fraud, a plea of a title paramount, under a former conveyance, may be pleaded by the defendant as a bar.142 4346. Original bills not praying relief are bills of discovery, strictly so called, which ask no relief. The objections to these bills, which may be taken advantage of by pleas, are nearly the same for which a demurrer, to a bill of discovery, when the objection appears on the face of the bill, will be sustained; the difference is this, that a plea must be pleaded to bring the objection before the court, when the cause of such objection does not appear on the face of the bill; and when it does, the defendant may demur. The pleas to bills of discovery are either to the jurisdiction, to the person, to the bill or frame of the bill, or pleas in bar. 4347. When a bill seeks a discovery merely, if the plaintiff's case is not such as entitles a court of equity, in the exercise of its jurisdiction, to compel a discovery in his favor, though he falsely state a different case in his bill, and by that means avoid a demurrer, the defendant may by his plea bring forward the matter necessary to show the precise truth to the court.143 4348. Pleas to the person relate to the person of the plaintiff or the person of the defendant. A plea may be entered that the plaintiff has no right, title, or ability to call on the defendant for a discovery which may involve him in difficulties and expense, or perhaps be prejudicial to him in other cases. Thus, if a person states himself to be heir or administrator of a person dead intestate, and assumes a character which does not belong to him, the defendant may plead that another person is the heir or personal representative, or that the person alleged to be dead is living; or, if the fact be so, he may plead that the plaintiff is an alien enemy, or an infant, or a feme covert, or an idiot, or a lunatic disabled to sue." 145 A defendant may also protect himself by plea, by showing that he has no interest in the subject matter of the bill, when that fact does not appear on the face of that instrument, for if the objection be apparent there, he can protect himself by demurrer. He may plead to the discovery that he is a mere witness, or that he does not sustain the character in which he is sued, such as executor, administrator, heir, partner, or creditor, or that there is a want of privity between the plaintiff and himself to sustain the bill." 138 Baldwin v. Peach, 1 Younge & C. 453. 140 Mitford, Eq. Pl. Jeremy, ed. 263. 141 Mitford, Eq. Pl. Jeremy, ed. 263. 146 139 Anon. 3 Atk. Ch. 17. 142 Howev. Duppa, 1 Ves. & B. Ch. Ir. 511; Beames, Eq. Pl. 257. 143 Mitford, Eq. Pl. Jeremy, ed. 282; Cooper, Eq. Pl. 291. 14 Mitford, Eq. Pl. Jeremy, ed. 283. 145 Mitford, Eq. Pl. Jeremy, ed. 232. 146 Mitford, Eq. Pl. Jeremy, ed. 283; Hare, Disc. 63; Cooper, Eq. Pl. 294; Story, Eq. Pl. 819; Beames, Eq. Pl. 264. 4349. But a few objections can be taken advantage of by plea as to the frame of the bill; the principal seems to be that the value of the matter in controversy is beneath the dignity of the court;147 that the parties are not the same in equity as in the suit at law, in aid of which the discovery is sought, if not apparent on the face of the bill; or if the defendant was not a party to the suit at law, because in that case the discovery would be immaterial.148 4350. We have seen that when the objection appears on the face of the bill of discovery the defendant may demur; but when it does not so appear, advantage of the defect must be taken by plea; thus, for example, a former judgment, a former decree upon the merits, the statute of frauds and perjuries, the statute of limitations, a release, an account stated, or an award may be so pleaded. But in such cases the plea would be applicable only when no circumstances were stated in the bill to avoid the effect of the bar.' 149 When the defendant has a perfect title to the premises in himself, he may plead it in bar of any discovery sought by a bill in relation to it.150 A bill of discovery is filed for the purpose of ascertaining facts; when the discovery sought appears to be a mere question of law, it may be pleaded in bar of a discovery of any facts which might, if the pleadings had terminated in an issue in fact, have been important at the trial.151 The situation of the defendant may sometimes render it improper for a court of equity to compel a discovery. Most of the cases of this nature have already been considered under different heads. In these cases the defendant may plead such matters in bar to a discovery. These pleas are: That the discovery may subject the defendant to pains or penalties, or a criminal prosecution. That it will subject him to a forfeiture. That it will betray confidence reposed in him as counsel, attorney, solicitor, or arbitrator. That he is a purchaser for a valuable consideration, without notice of the plaintiff's title.152" 4351. Having considered the nature of pleas to original bills generally, as well in cases where relief is prayed as in those where none is sought, it remains to be ascertained in what cases pleas may be put in when the bill is not original. It may be observed that the same grounds of pleas will in many cases be valid in these bills, according to their respective nature, as are sufficient in original bills. It is only when the defence is peculiar that it will be here noticed.is 4352. When a plea of revivor is brought without sufficient cause to revive the 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. Or if the plaintiff is not entitled to revive the suit at all, though 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 plea.154 When there is a want of proper parties, and the objection does not appear upon the face of the bill, the defendant may take advantage of it by plea; as, when a suit is brought by tenants in common, and after decree one dies, and 147 Cooper, Eq. Pl. 193; Smets v. Williams, 4 Paige, Ch. N. Y. 364. 148 Story, Eq. Pl. & 820. 149 Upon this subject opinions vary. See Beames, Eq. Pl. 282; Hindman v. Taylor, 2 Brown, Ch. 7, note by Belt; Mitford, Eq. Pl. Jeremy, ed. 187; Story, Eq. Pl. 822, n. 150 Gait v. Osbaldiston, 1 Russ. Ch. 158, reversing the same case in 5 Madd. Ch. 428. 151 Stewart v. Nugent, 1 Keen, Ch. 201. 152 Mitford, Eq. Pl. Jeremy, ed. 284; Story, Eq. Pl. 825; Beames, Eq. Pl. 266-281. 153 Mitford, Eq. Pl. Jeremy, ed. 289. 154 Mitford, Eq. Pl. Jeremy, ed. 289. the survivor alone brings a bill of revivor, the defendant may plead the nonjoinder of the representatives of the deceased.155 If a person entitled to revive a suit does not proceed in due time, he may be barred by the statute for the limitation of actions, which may be pleaded to a bill of revivor afterward filed.156 4353. When the plaintiff is not entitled to a supplemental bill, if his defect of title does not appear upon the face of the bill, the defendant may plead the matter, so as to show the objection of the court; as, if a supplemental bill is brought upon matter which arose before the original bill was filed, and this is not apparent on the bill, the defendant may plead that fact.157 Matter which arose before the original bill was filed may be made the subject of an amendment, but not matter which arose since. If the bill is amended by stating a matter which has arisen subsequent to the filing of the bill, and, consequently, ought to have been the subject of a supplemental bill, advantage of the irregularity may be taken by way of plea, if it does not sufficiently appear upon the face of 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.158 4354. Cross bills are liable to all the pleas in bar to which original bills are subject, because they differ in nothing from original bills except that they are occasioned by former bills; and they are not liable to any plea which will not hold to the first species of bills. Pleas to the jurisdiction and to the person cannot be pleaded to a cross bill, because by pleading to the original bill the defendant has affirmed the sufficiency of the jurisdiction and of the right of the parties to sue and to be sued, unless the cross bill is exhibited in the name of some person alone, who alone is incapable of instituting a suit; as, an infant, a feme covert, an idiot, or a lunatic.159 4355. The constant defence to a bill of review for error apparent upon the decree is by plea of the decree. But when any matter beyond the decree, as, a purchase for valuable consideration, or any other matter is offered against opening the enrolment, that must be pleaded. If a demurrer to a bill of review has been allowed, and the order allowing it is enrolled, it is an effectual bar to a new bill of review on the same grounds, and may be pleaded accordingly. To a bill of review of a decree for the payment of money, it has been objected by plea that according to the rule of the court the money decreed ought to have been first paid, but the rule appears to have been dispensed with on security given; and as the bill of review would not stay the process for compelling the payment of the money, it may be doubted whether the objection was properly made,160 A bill of review upon the discovery of new matter seems to be liable to any plea which would have avoided the effect of that matter, if charged in the original bill.161 Upon a supplemental bill in the nature of a bill of review, of a decree not signed and enrolled, upon the alleged discovery of new matter, it has been said that if the defendant can show the allegation is false, he must do so by plea, and that it is too late to insist upon it by answer; but as the bill must allege the fact of discovery, and that fact must be the ground of the proceeding, it should 155 Story, Eq. Pl. 830. 156 Mitford, Eq. Pl. Jeremy, ed. 290. 157 See Lewellen v. Macworth, 2 Atk. Ch. 40; Baldwin v. Mackown, 3 Atk. Ch. 817. 168 Mitford, Eq. Pl. Jeremy, ed. 290; Cooper, Eq. Pl. 303; Story, Eq. Pl. 2 828; Beames, Eq. Pl. 306. 159 Mitford, Eq. Pl. Jeremy, ed. 291; Beames, Eq. Pl. 310. 160 Mitford, Eq. Pl. Jeremy, ed. 291, 292. 161 Mitford, Eq. Pl. Jeremy, ed. 292. VOL. IL-4 H 657 L seem that it is equally liable to traverse by answer and by evidence as any other fact stated in the bill.162 4356. If it is sought to impeach a decree on the ground of fraud, the proper defence seems to be a plea of the decree, accompanied by a denial of the fraud charged,163 4357. Any person interested under a decree may bring a bill to carry it into execution. Upon the same principle, any creditor may prosecute a decree for an account. But when the plaintiff, who has filed a bill to carry a decree into execution, happens to have no right or interest, and such fact is not so apparent on the bill as to admit of a demurrer, the defendant may offer the objection by way of a plea.' 164 16 Mitford, Eq. Pl. Jeremy, ed. 293. 163 Wichalse v. Short, 3 Brown, Parl. Cas. 558, Tomlin, ed. 164 Mitford, Eq. Pl. Jeremy, ed. 294; Cooper, Eq. Pl. 305; Story, Eq. Pl. § 837. 658 CHAPTER XIII. ANSWERS AND REPLICATIONS IN EQUITY. 4358-4383. Answers. 4362-4366. The general nature of answers. 4368. The title of the answer. 4369. The reservations of the answer. 4370. The answer to the charges of the bill. 4373. The denial of combination and a general traverse. 4375. The signature of the defendant to the answer. 4376. The oath of the defendant to the answer. 4378. The signature of counsel to the answer. 4379. The sufficiency of the answer. 4380. Further answers, and answers to amended bills. 4384. Replications and their consequences. 4358. Having considered in the preceding chapters the effects of disclaimers, demurrers, and pleas, and shown how far a defendant may protect himself from answering by adopting one or other of these modes of defence, it will now be proper to consider the fourth and last manner of defeating the plaintiff's claim, when unfounded. If the defendant has been unable, either wholly or partially, to defend himself from the charges in the plaintiff's bill by disclaimer, demurrer, or plea, he must answer the whole bill, if he has not disclaimed, demurred, or pleaded to any part of it; and if he has so defended himself as to a part, he must answer that part to which he has not demurred or pleaded. 4359. In general, the plaintiff has a right to be informed by the defendant's answer of the nature of the defence to be set up, and this right is not confined to the points as to which the defendant intends to produce evidence, but he may insist, even when the facts are uncontroverted, upon having notice upon the record, in a precise and unambiguous manner, of the nature of the conclusions to be drawn from them. Besides these reasons, the plaintiff may require the discovery he seeks, either because he cannot prove the facts, or in aid of proof and to avoid expense. When he is not protected by either disclaimer, demurrer, or plea, he is compelled to answer, and this answer must, in general, be full to all the charges in the bill not so covered. 4360. To this general rule there are some exceptions: He is not bound to answer matters which are purely scandalous, impertinent, immaterial, or irrelevant.2 He is not bound to answer any thing which may subject him to any penalty, forfeiture, or punishment. He is not bound to answer what would involve a breach of professional confidence. He is not bound to discover the facts respecting his own title, but merely those which respect the title of the plaintiff. |