the plea was negative in substance, though not in terms; as, for example, where the bill alleged that a deceased person had left no heirs on the part of his father, and that the complainant was an heir on the part of his mother, and alleged further that the defendants, by correspondence, had admitted the complainant's title, a plea that a specified person was an heir on the part of the father was overruled because it was not coupled with an answer as to the alleged correspondence.17 The answer is no part of the defense, but a discovery of that evidence which the complainant has the right to require, and to use, in order to invalidate the defense made by the plea, upon the argument of the sufficiency of the plea, before other evidence can be given.1

§ 239. Anomalous pleas.

18

There is a plea which is generally included under the head of pleas not pure, though by some writers assigned to a third class of pleas, and which may be termed the "anomalous plea," which is applicable when the complainant has anticipated a legitimate plea, and has charged an equity in avoidance of it; as, for example, when, having stated his original equity, he states that a subsequent release was given, or is pretended by the defendant to have been given, and charges fraud in obtaining such release. In this case the release or other original defense may be pleaded, with averments denying the fraud or other equity charged in avoidance. The term "anomalous" is applicable to such plea, because it does not tender an independent issue, but sets up anew the impeached defense, with averments in denial of the impeaching equity. It is obvious from the nature of the anomalous plea that it is only good against the original equity, and is ineffective against the equity charged in avoidance; and therefore the allegations which constitute that equity must not only be denied by

17 Adams, Eq. 338; Emerson v. Harland, 3 Sim. 490; Clayton v. Winchelsea, 3 Younge & C. Exch. 426.

18 Story, Eq. Pl. § 671; Foley v. Hill, 3 Mylne & C. 475; Bayley v. Adams, 6 Ves. 594; Mitford, Eq. Pl. 244, note. The origin, importance, and justice of pleas not pure are interestingly considered by Mr. Justice Story in his work on Equity Pleading, §§ 671-679

averments in the plea in order to render the defense complete, but must, in respect to the complainant's right of discovery, be the subject of a full answer in support.19

240. General rules as to requisites of pleas.

A plea in equity should aver distinctly and clearly all the facts necessary to render it a complete equitable defense to the case made by the bill, so far as the plea extends.20 It must be specific and distinct, and must be perfect in itself, so that, if true, it will make an end of the case, or that part of the case to which it applies.21 It must be positive, and not argumentative.22

241. Plea may be to whole or part of bill.

A plea, like a demurrer, may be either to the whole bill, or to a part only of the bill. If it does not go to the whole bill, it should definitely and exactly express to what parts it does extend; and if one defense is made by the answer, and another defense by the plea, the plea will be ordered to stand for an answer. Whenever a plea is to the whole of a bill, if it is a bar at all, an answer to any part of the bill overrules the plea. If the plea is to the whole of the bill, but does not extend to

19 Adams, Eq. 338; Foley v. Hill, 3 Mylne & C. 475; Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 50 Fed. 151; Henderson v. Chaires, 35 Fla. 423, 17 So. 574; Bayley v. Adams, 6 Ves. 594.

20 Cheney v. Patton, 134 Ill. 422, 25 N. E. 792; McCloskey v. Barr, 38 Fed. 165; Mount v. Manhattan Co., 41 N. J. Eq. 211, 3 Atl. 726; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Davison v. Schermerhorn, 1 Barb. (N. Y.) 480; Salters v. Tobias, 3 Paige (N. Y.) 338.

21 Cheney v. Patton, 134 Ill. 422, 25 N. E. 792; Whitthorne v. St. Louis Mut. Life Ins. Co., 3 Tenn. Ch. 147; Allen v. Randolph, 4 Johns. Ch. (N. Y., 693; Wood v. Mann, 1 Sumn. 506, Fed. Cas. No. 17,951; Meeker v. Marsh, 1 N. J. Eq. 198.

22 McDonald v. Salem Capital Flour-Mills Co., 31 Fed. 577. It is held that when a plea relates to the acts of third persons, to which defendant is not a party, it may be on information and belief. Parker v. Parker, Walk. (Mich.) 457, citing Drew v. Drew, 2 Ves. & B. 159; Cooper, Eq. Pl. 228; Heartt v. Corning, 3 Paige (N. Y.) 566.

or cover the whole, the plea is bad.23 It is said that, unlike a demurrer, a plea may be good in part, and not in the whole. Thus, if a plea covers too much, the court will allow it to stand for the part which it properly covers.24

§ 242. Strictness in pleas.

In pleas in equity there must, in general, be the same strictness and exactness as in pleas at law,-if not in matters of form, at least in matters of substance.25

§ 243. Pleas of matter subsequent to the filing of the bill.

Any matter arising between the filing of the bill and the plea may be pleaded. Matters arising subsequent to the filing of the plea must be presented by cross bill.20

§ 244. Duplicity in pleas.

It is a general rule that a plea ought not to contain more defenses than one, and that a double plea is improper.27 What

28 Mitford, Eq. Pl. 294, 295; Story, Eq. Pl. § 693, cited with approval in Snow v. Counselman, 136 Ill. 191, 26 N. E. 590; Milligan v. Milledge, 3 Cranch (U. S.) 220; Beard v. Bowler, 2 Bond, 13, Fed. Cas. No. 1,180. 24 Cooper, Eq. Pl. 230; Story, Eq. Pl. § 692; Dormer v. Fortescue, 2 Atk. 282; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555; Duncalf v. Blake, 1 Atk. 52; Kirkpatrick v. White, 4 Wash. C. C. 595, Fed. Cas. No. 7,850; Wythe v. Palmer, 3 Sawy. 412, Fed. Cas. No. 18,120; Rhino v. Emery, 79 Fed. 483.

25 Gage v. Smith, 142 Ill. 191, 31 N. E. 430, citing Story, Eq. Pl. §§ 652, 658, 665; Danels v. Taggart's Adm'r, 1 Gill & J. (Md.) 311; Whitlock v. Fiske, 3 Edw. Ch. (N. Y.) 131; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Mitford, Eq. Pl. 294.

26 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 606, 607; Ferris v. McClure, 36 Ill. 77; Rowe v. Wood, 1 Jac. & W. 315; Cross v. De Valle, 1 Wall. (U. S.) 5; Wood v. Rowe, 2 Bligh, 595; Wright v. Meek, 3 G. Greene (Iowa) 472; French v. Bellows Falls Sav. Institution, 67 Ill. App. 179; Miller v. Fenton, 11 Paige (N. Y.) 18. See post, §§ 305, 394, 889.

27 Mitford, Eq. Pl. 295, 296; Story, Eq. Pl. § 653; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 210; Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734; Gilbert v. Murphy, 100 Fed. 161; Farley v. Kittson, 120 U. S. 303; Mains v. Homer Steel-Fence Co., 116 Mich. 526. 74 N. W. 735; Whitbread v. Brockhurst, 1 Brown Ch. 404, 412;

ever be the nature of the plea, whether affirmative or negative, or of the anomalous nature before alluded to, the matter pleaded must reduce the issue between the complainant and defendant to a single point.28 A plea is not rendered double by the mere insertion therein of several averments that are necessary to exclude conclusions arising from allegations which are made in the bill to anticipate and defeat the bar which might be set up in the plea.29

§ 245. Filing more than one plea.

The rule that a defendant cannot plead double is not to be understood as precluding him from putting in several pleas to different parts of the same bill. It merely prohibits his pleading, without previous leave, a double defense to the whole bill or to the same portion of it. A defendant may plead different matters to separate parts of the same bill, in the same manner that he may plead to different portions of the bill.30 Although the ordinary course of practice does not admit of several pleas, yet, where a great inconvenience might otherwise be sustained in a particular case, the court will sometimes, in its discretion, allow several pleas. Thus, for example, a plea that the com

Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384; Briggs v. Stroud, 58 Fed. 717; Albany City Bank v. Dorr, Walk. (Mich.) 317.

28 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 607; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384; Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26.

29 1 Barbour, Ch. Pr. 116; Hazard v. Durant, 25 Fed. 26; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178. Where more than one point of defense is relied upon, such points should be stated by way of answer, and not of plea. Reissner v. Anness, 3 Ban. & A. 148, Fed. Cas. No. 11,686; Didier v. Davison, 10 Paige (N. Y.) 515. If a plea contains matter proper for a demurrer, for a plea in bar, for a plea in abatement, and for an answer, it is bad for duplicity. Gaines v. Mausseaux, 1 Woods, 118, Fed. Cas. No. 5,176.

30 1 Barbour, Ch. Pr. 117; Van Hook v. Whitlock, 3 Paige (N. Y.) 409; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 609; Benson v. Jones, 1 Tenn. Ch. 498; Moreton v. Harrison, 1 Bland (Md.) 493; Bunker Hill & Sulli van Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; McCloskey v. Barr, 38 Fed. 165.

plainant is not heir, and a plea of the statute of limitations, have been allowed to be pleaded together.31 Before a defendant can plead double, leave of court must be obtained.32 When several pleas are filed without leave of the court, the defendant will be put to his election as to which one he will stand on.33 It is not a matter of course to grant leave to the defendant to file more than one plea.34 Leave to file two or more pleas will only be granted on application made on notice to the complainant, and in cases where it is made to appear that the defendant might suffer inconvenience if it were not granted.35

§ 246. Pleas supported by answer.

In certain instances, a plea must be supported by an answer. Some confusion exists in regard to the necessity therefor. A pure plea need not be supported by an answer.36 A negative or anomalous plea must be supported by an answer.37 It was formerly a question of much discussion and controversy whether a purely negative plea to a bill was a legitimate mode of defense. It is now firmly established that such a plea is good.38

81 Story, Eq. Pl. § 657; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 608, 609; Van Hook v. Whitlock, 3 Paige (N. Y.) 409; Bampton v. Birchall, 4 Beav. 558; Kay v. Marshall, 1 Keen, 190; McCloskey v. Barr, 38 Fed. 165; Saltus v. Tobias, 7 Johns. Ch. (N. Y.) 214.

82 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 609; Benson v. Jones, 1 Tenn. Ch. 498; Wheeler v. McCormick, 8 Blatchf. 267, Fed. Cas. No. 17,498; Giant Powder Co. v. Safety Nitro Powder Co., 19 Fed. 509; Mount v. Manhattan Bank of New York, 44 N. J. Eq. 297, 18 Atl. 80; Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734; Briggs v. Stroud, 58 Fed. 717.

83 Noyes v. Willard, 1 Woods, 187, Fed. Cas. No. 10,374; Saltus v. Tobias, 7 Johns. Ch. (N. Y.) 214.

34 Benson v. Jones, 1 Tenn. Ch. 498; Wheeler v. McCormick, 8 Blatchf. 267, Fed. Cas. No. 17,498.

35 Underwood v. Warner, 3 Phila. (Pa.) 414; Kay v. Marshall, 1 Keen, 190; Mount v. Manhattan Co., 43 N. J. Eq. 25, 9 Atl. 114.

36 West Portland Homestead Ass'n v. Lownsdale, 17 Fed. 205; Goldsmith v. Gilliland, 24 Fed. 154.

87 Story, Eq. Pl. § 670; Beames, Pleas in Eq. 34, 35.

88 Story, Eq. Pl. § 668; Beames, Pleas in Eq. 123-128; Spangler v. Spangler, 19 Ill. App. 28; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 604; Rhino v. Emery, 79 Fed. 483; Sanders v. King, 2 Sim. & S. 277; Thring v. Edgar, 2 Sim. & S. 274.