murrer, if his time for answer has not expired, as if no demurrer had been filed.176 The distinction between taking a demurrer off the files and simply overruling it is that the former course is adopted in all cases where there has been an irregularity in the filing of the demurrer, and the latter whenever it has been properly filed, but the court is of the opinion that it is insufficient, or that it has been overruled by the answer.177 It is said that a court of chancery has inherent power, on motion, to strike a demurrer from the files, where it is clearly frivolous, or clearly intended for the sole purpose of delay.178

176 1 Barbour, Ch. Pr. 113; Cust v. Boode, 1 Sim. & S. 21.

1771 Barbour, Ch. Pr. 113; Curzon v. De la Zouch, 1 Swanst. 185. When, under United States Equity Rule 31, the demurrer is defective in not being verified by defendant nor certified by counsel, complainant may disregard it, and take a pro confesso at the proper time, or move to strike it from the files. American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598; Goodyear v. Toby, 6 Blatchf. 130, Fed. Cas. No. 5,585.

178 Stanbery v. Baker, 55 N. J. Eq. 270, 37 Atl. 351; Travers v. Ross, 14 N. J. Eq. 254; Bowman v. Marshall, 9 Paige (N. Y.) 78.

(269)

CHAPTER XII.

PLEAS.

§ 235. General nature of pleas.

Where an objection to the bill is not apparent on the bill itself, the defendant, if he wishes to take advantage of it, must show to the court the matter which creates the objection, by answer or plea. A plea is a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed, or barred. It has been said to differ 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 complainant from his title to that answer which the bill requires.2 A plea which sets forth nothing except what appears on the face of the bill is bad, and must be overruled, although the objection, if raised by demurrer, would have been valid, as the proper office of a plea is to bring forth fresh matter not apparent in the bill. Every defense which may be a full answer to the merits of the bill is not, as of course, to be considered as entitled to be brought forward by way of plea. Where a defense consists in a variety of circumstances,

1 Mitford, Eq. Pl. 218, 219; Cooper, Eq. Pl. 223; Story, Eq. Pl. §§ 647, 649; 1 Barbour, Ch. Pr. 114; Heartt v. Corning, 3 Paige (N. Y.) 566; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 603; Cowan v. Price, 1 Bibb (Ky.) 173, 4 Am. Dec. 627; Cockburn v. Thompson, 16 Ves. 321; Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734. See, for extensive consideration of pleas, Carroll v. Waring, 3 Gill & J. (Md.) 491.

2 Roche v. Morgell, 2 Schoales & L. 725; Beames, Pleas in Eq. 1; Story, Eq. Pl. § 649.

3 Cozine v. Graham, 2 Paige (N. Y.) 177; Phelps v. Garrow, 3 Edw. Ch. (N. Y.) 139; Billing v. Flight, 1 Madd. 230; Davis v. Davis, 57 N.

J. Eq. 252, 41 Atl. 353; Bicknell v. Gough, 3 Atk. 558; Supreme Lodge, K. & L. of H., v. Wing (Ala.) 31 So. 3.

there is no use in a plea. The examination must still be at large, and the effect of allowing such a plea will be that the court will give their judgment upon the circumstances of the case before they are made out by proof. The true end of a plea is to save to the parties the expense of an examination of the witnesses at large. The defense proper for a plea is such as reduces the cause, or some part of it, to a single point, and from thence creates the bar or other obstruction to the suit, or to the point to which the plea applies. Hence, a plea, in order to be good, whether it be affirmative or negative, 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 defense. But although the defense offered by way of plea would consist of a great variety of circumstances, yet, if they all tend to a single point, the plea may be good."

$236. Different kinds of pleas.

Pleas are divided into two sorts,-one, commonly called "pure pleas" or "affirmative pleas," which rely wholly upon matters not apparent upon the face of the bill, such as a release or a settled account; and another, called, in contradistinction to the

4 Mitford, Eq. Pl. 219; Cooper, Eq. Pl. 223; Story, Eq. Pl. § 652; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 603; Spangler v. Spangler, 19 Ill. App. 28; Farley v. Kittson, 120 U. S. 303; Anderson v. Audenreid, 8 Phila. (Pa.) 96; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26.

Mitford, Eq. Pl. 295; Story, Eq. Pl. § 652; 1 Barbour, Ch. Pr. 114; Spangler v. Spangler, 19 Ill. App. 28; Farley v. Kittson, 120 U. S. 303; Union Branch R. Co. v. East Tennessee & G. R. Co., 14 Ga. 327; Miller v. United States Casualty Co. (N. J. Eq.) 47 Atl. 509; Sperry v. Miller, 2 Barb. Ch. (N. Y.) 632; United States v. Peralta, 99 Fed. 618; Daniels v. Benedict, 97 Fed. 367; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26; Knox Rock-Blasting Co. v. Rairdon Stone Co., 87 Fed. 969.

Story, Eq. Pl. § 652; Saltus v. Tobias, 7 Johns. Ch. (N. Y.) 214; Robertson v. Lubbock, 4 Sim. 161.

7 Mitford, Eq. Pl. 296; Cooper, Eq. Pl. 225; Story, Eq. Pl. § 652; Hazard v. Durant, 25 Fed. 26; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26.

other, "pleas not pure," or "anomalous pleas," and sometimes "negative pleas," which consist mainly of denials of the substantial matters set forth in the bill.8 Thus, if a bill should admit a release to have been made by the complainant, or an account to have been settled, and should aver that either was procured by fraud, the defendant may plead the release or account settled in bar, negativing in his plea-which would be a negative or not pure 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."

§ 237. Pure pleas.

A pure plea usually proceeds upon the ground that, admitting the case stated by the bill to be true, the matter suggested by the plea affords a sufficient reason why the complainant should not have the relief prayed or discovery sought.10 Such a plea must follow the bill, and not evade it, or mistake the subject of it.11 It must be founded on new matter, not apparent on the bill,12 and not only reduce the cause to a single point, but to an issuable, material point.13 A pure plea should clearly and distinctly aver all the facts necessary to render the plea a complete equitable defense to the case made by the bill, so far as the plea extends, so that the complainant may, if he chooses, take issue upon it. Averments are also necessary to exclude intendments which would otherwise be made against the pleader, and the averments must be sufficient to support the plea.1

81 Barbour, Ch. Pr. 115; Story, Eq. Pl. § 651; Spangler v. Spangler, 19 Ill. App. 28.

9 Story, Eq. Pl. § 651; Bayley v. Adams, 6 Ves. 594.

10 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 604.

11 Story, Eq. Pl. § 659; Mitford, Eq. Pl. 294.

12 Story, Eq. Pl. § 660;

13 Mitford, Eq. Pl. 295; Ill. App. 28; Morison v.

Black v. Black, 15 Ga. 445.

Story, Eq. Pl. § 661; Spangler v. Spangler, 19
Turnour, 18 Ves. 175.

14 Mitford, Eq. Pl. 298; Story, Eq. Pl. § 665, cited with approval in Gage v. Harbert, 145 Ill. 535, 32 N. E. 543; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Brownsword v. Edwards, 2 Ves. Sr. 245, note; Roche v. Morgell, 2 Schoales & L. 727; Cheney v. Patton, 134 Ill. 422, 25 N. E. 792;

§ 238. Negative pleas.

A negative plea is one in which an allegation of the bill is denied. It is applicable when the complainant, by a false allegation on one point, has created an apparent equity, and asks discovery as a consequence; as, for example, where he alleges himself to be a partner or heir at law, and asks for an accoun of the business or particulars of the estate. In this case a de nial by answer would exclude the relief, but it would not protect the defendant from giving the required discovery, because a defendant who answers at all must answer fully. In order, therefore, to avoid such discovery, the defendant must resort to a negative plea, denying the allegation of partnership or heirship, and, until the validity of his plea is determined, he will be protected from giving discovery consequent on the allegation.15 A pure, negative plea can seldom be made available; for, though it protects against discovery consequent upon the alleged equity, it does not protect against discovery required to prove it. If, therefore, there be any statements in the bill tending to prove the disputed allegation, distinct from such allegation itself, the discovery asked on those points must be excepted from the plea, and must be given by an answer in support. Thus, if the equity alleged is that a testator was indebted to the complainant, and the bill asks discovery consequent on the debt, -for example, payment of interest,—a plea of no debt will cover all the discovery and relief sought, including the allega tion of debt, but excepting the discovery in evidence of the debt.16 And the same principle has been held applicable where

Da Costa v. Dibble, 40 Fla. 418, 24 So. 911. A plea to a bill for nonjoinder of parties is a pure plea, consisting of new matter, and does not require an answer in support of it. It admits the case made by the bill, but objects that complainant cannot have relief on account of the defect. Goldsmith v. Gilliland, 24 Fed. 154.

15 Adams, Eq. 337; Story, Eq. Pl. § 667; Champlin v. Champlin, 2 Edw. Ch. (N. Y.) 362.

16 Adams. Eq. 337; Thring v. Edgar, 2 Sim. & S. 274; Denys v. Locock, 3 Mylne & C. 205; Sanders v. King, 6 Madd. 61; Everitt v. Watts, 3 Edw. Ch. (N. Y.) 486; Rhino v. Emery, 79 Fed. 483.