bar. If so, the plea ceases to be a pure plea, and the allegation must be met by an averment in the plea, denying the fraud, and the plea must be supported by an answer responsive to and denying the fraud charged.115

§ 266. Plea of other statutes.

In the same manner, any other statute which creates a good bar to the demand of the complainant asserted in his bill may be pleaded, with the averments necessary to bring the case within the statute, and to avoid any equity which may be set up against the bar created by the statute. In the latter case there must also be an answer discovering and denying the matters of equity so set up to avoid a bar. An instance of such a statutory bar is the statute of usury.11 116 A plea setting up usury must distinctly set forth the terms of the usurious agreement.117

An instance of such a plea is that of the plea of a judgment at law in a court of record. If such judgment has finally decided the rights of the parties, it may, in general, be pleaded in bar of a bill in equity.118 Such a plea will be equally good, not only to a bill founded upon the same original cause of action, but also to a bill to set aside a verdict and judgment as obtained against conscience, unless it contains some allegations of fact impeaching the verdict and judgment, which would avoid

115 Story, Eq. Pl. § 765; Mitford, Eq. Pl. 268. It is held that, where a defendant has admitted a contract without setting up the statute, he will not be permitted to insist upon it in answer to the bill as amended. Battell v. Matot, 58 Vt. 271, 5 Atl. 479, citing Pomeroy, Cont. § 141; Spurrier v. Fitzgerald, 6 Ves. 548; Patterson v. Ware, 10 Ala. 444.

116 Cooper, Eq. Pl. 258; Story, Eq. Pl. § 769; Mitford, Eq. Pl. 274; Beames, Pleas in Eq. 182, 183.

117 Vroom v. Ditmas, 4 Paige (N. Y.) 526; Crane v. Homeopathic Mut. Life Ins. Co., 27 N. J. Eq. 484; Goodwin v. Bishop, 145 Ill. 421, 34 N. E. 47.

118 Cooper, Eq. Pl. 264; Story, Eq. Pl. § 780 et seq. For form of such a plea, see Beames, Pleas in Eq. 341.

it, and require an answer.119 Upon a plea of a former decree, so much of the former bill and answer must be set forth as is necessary to show that the same point was then in issue, and it should aver that the allegations as to the title to relief against the defendant were substantially the same in the second suit as in the first.120 A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dismission was upon the hearing, and not in terms directed to be without prejudice. But it is a bar only where the court has determined that the complainant had no title to the relief sought by the bill; and therefore an order dismissing a bill for want of prosecution is not a bar to another bill.121

§ 268. Pleas of matter as of record.

The sentence or judgment of a foreign court, which is deemed to be a court not of record, upon the same matter put in controversy by the bill, may be pleaded in bar. Such a plea will be good if such foreign court had jurisdiction, with the like exception of such circumstances as would invalidate a domestic judgment.122 If any fraud or if other circumstances are shown in the bill as a ground for relief, the sentence or judgment cannot be pleaded by a pure plea, but must be set up by a plea supported by a full answer to the specific charges in the bill.123 A decree of a court of equity is for most purposes, if not all, of as high dignity as a judgment in a court of law, and it may be a decree in the same court or in another court of equity. Such a decree, if duly entered, may be pleaded in bar to the

119 Mitford, Eq. Pl. 253-255; Story, Eq. Pl. § 781; Williams v. Lee, 3 Atk. 223.

120 Story, Eq. Pl. § 791; Mitford, Eq. Pl. 237; Marvin v. Hampton, 18 Fla. 131; Da Costa v. Dibble, 40 Fla. 418, 24 So. 911.

121 Mitford, Eq. Pl. 253; Story, Eq. Pl. § 793; 1 Barbour, Ch. Pr. 126, 127; Keller v. Stolzenbach, 20 Fed. 47; Gardner v. Raisbeck, 28 N. J. Eq. 71; Hughes v. United States, 4 Wall. (U. S.) 232; Garrett v. New York Transit & Terminal Co., 29 Fed. 129. See post, §§ 579, 694.

122 Mitford, Eq. Pl. 255; Story, Eq. Pl. § 783.

123 Mitford, Eq. Pl. 256; Story, Eq. Pl. §§ 784, 785; Ricardo v. Garcias, 12 Clark & F. 368.

new suit, if it is substantially between the same parties and for the same subject-matter, and in its nature final, or afterwards made so by order of the court.124 A plea setting up the record of a former suit as a prior adjudication is not double because it embraces the judgments of the court of original jurisdiction and of the appellate courts, but a bill setting up judgments in two separate suits is bad for duplicity.125

§ 269. Pleas of matters purely in pais.

Pleas of this sort go sometimes both to the discovery sought and to the relief prayed by the bill, or to some part of it; sometimes only to the discovery, or a part of the discovery; and sometimes only to the relief, or a part of the relief.128 The principal, though not the only, pleas of this nature are: (1) A plea of release; (2) a plea of account stated; (3) a plea of a settled account; (4) a plea of an award; (5) a plea of purchase for a valuable consideration; (6) a plea of title in the defendant.127

$270. Plea of release.

If the complainant, or any person under whom he claims, has released the subject of his demand, such fact may be pleaded in bar by a plea of release. If fraud, surprise, inadequacy of consideration, or other objection to the release is charged by the bill, the plea must meet these charges by averments in its body,

124 Mitford, Eq. Pl. 237-239; Story, Eq. Pl. §§ 790, 791; Jones v. Smith, 13 Ill. 301; Matthews v. Roberts, 2 N. J. Eq. 338; Moor v. Welsh Copper Co., 1 Eq. Abr. 39. It is sufficient in a plea to a bill in the name of a company and A. and B., alleging an assignment of the property of such company to A. and B., to aver that they are not the assignees of such company, and that by a decree of a court, remaining in full force, such assignment has been set aside, and the property placed in the hands of a receiver. Southern Life Ins. & Trust Co. v. Davis, 4 Edw. Ch. (N. Y.) 588, where are set forth a form of plea, and order allowing same and giving complaint leave to amend.

125 Fayerweather v. Trustees of Hamilton College, 103 Fed. 546; Fayerweather Will Cases, 103 Fed. 548.

126 Story, Eq. Pl. § 795; Mitford, Eq. Pl. 258.

127 Story, Eq. Pl. § 795; Mitford, Eq. Pl. 258; Cooper, Eq. Pl. 276.

and be supported by an answer denying them.128 If a release. is pleaded to a bill for any matter, it must be under seal. If the bill is for an account, and the release not under seal, it may be pleaded as an account stated.129 The defendant must set out the consideration upon which the release was made. Such a plea cannot extend to a discovery of the consideration, and, if that is impeached by the bill, the plea must be assisted by averments and also an answer covering the grounds on which the transaction is so impeached.130 Where a bill charges that a release of the complainant's demand was procured by fraud and without consideration, it is not sufficient for the defendant to plead such release in bar, if it recites a good consideration, as such plea must contain an averment of the truth of the recital, so that the facts may be put in issue by a replication.1

§ 271. Pleas of stated account and settled account.

account.

131

These pleas depend upon, for the most part, the same considerations. A stated account properly exists only where accounts have been examined, and the balance admitted as the true balance between the parties, without having been paid. When the balance thus admitted is paid, the account is deemed a settled Each of them may be pleaded in bar to a bill for account.132 If an account stated be pleaded in bar to a bill, it will be sustained, except when palpable errors in the account, which cannot be misunderstood, are shown by the complainant.183 The plea of account stated must show that it was in writing, and the balance likewise in writing; or, at least, it must set

128 Mitford, Eq. Pl. 261, 262; Story, Eq. Pl. § 796; Schwarz v. Wendell, Har. (Mich.) 395; Pusey v. Desbouvrie, 3 P. Wms. 315; Phelps v. Sproule, 1 Mylne & K. 231; Bolton v. Gardner, 3 Paige (N. Y.) 273. 129 Story, Eq. Pl. § 796; Mitford, Eq. Pl. 263.

130 Mitford, Eq. Pl. 261; Story, Eq. Pl. § 797; Brooks v. Sutton. L. R 5 Eq. 361.

131 Fish v. Miller, 5 Paige (N. Y.) 26.

132 Story, Eq. Pl. § 798; Greene v. Harris, 11 R. I. 5, 29; Knight v. Bampfield, 1 Vern. 179; Bullock v. Boyd, 2 Edw. Ch. (N. Y.) 293; Weed v. Smull, 7 Paige (N. Y.) 573.

133 Chappedelaine v. Dechenaux, 4 Cranch (U. S.) 306.

forth what the balance was, and that the settlement was final.184 A receipt in full for all demands is only evidence of payment, and is of itself no bar to a bill for account.135 Courts will not open a settled account, when it has been signed, unless for fraud or for errors distinctly specified in the bill and supported by evidence.136 In a plea of a stated or settled account to a bill charging error or fraud, these charges must be met by averments in the body of the plea, and by an answer in support of the plea denying such charges.137 Where the bill charges fraud or errors in an account, and the defendant files a plea of an account stated, it is sufficient if such plea traverse in general terms the averments of the bill, but the plea must be supported by a full answer and discovery as to the specifications of fraud in the bill.138 If neither error nor fraud is charged, the defendant must, by plea, aver that the stated or settled account is just and true to the best of his knowledge and belief.139

§ 272. Plea of an award.

An award may be pleaded to a bill to set aside the award and open the account. It is good to the merits of the case, and also to the discovery sought by the bill. If fraud, partiality, or any other objection to the award is charged, such charge must be denied by the plea, and the plea must be supported by an answer showing the untruth of the charge.14 Where the bill is

134 Mitford, Eq. Pl. 259; Story, Eq. 'l. § 798; Harrison v. Farrington, 38 N. J. Eq. 359.

135 Cooper, Eq. Pl. 278; Story, Eq. Pl. § 799.

136 Cooper, Eq. Pl. 278;

Story, Eq. Pl. § 800.

137 Cooper, Eq. Pl. 279; Mitford, Eq. Pl. 259; Story, Eq. Pl. § 802.

138 Taylor v. Duncanson, 20 D. C. 505.

139 Mitford, Eq. Pl. 260; Story, Eq. Pl. § 802; Driggs v. Garretson, 25 N. J. Eq. 178; Maddock, Ch. Pr. 101. A plea of a stated account must aver that the accounts settled all dealings between the parties, and that they were just and fair and due; and these averments must be supported by an answer to the same effect. Schwarz v. Wendell, Har. (Mich.) 395; Roche v. Morgell, 2 Schoales & L. 726.

140 Story, Eq. Pl. § 803; Mitford, Eq Pl. 260; Cooper, Eq. Pl. 280.