CHAPTER X.

THE DIFFERENT SORTS OF DEFENSE.

190. In general.

The defense to a suit in equity is usually presented by demurrer, by plea, by answer, or by disclaimer. By demurrer the defendant demands the judgment of the court whether he shall be compelled to answer the bill or not. This species of defense is resorted to when it appears upon the bill itself that there is no equity in the case upon the part of the complainant. By a plea, the defendant may show some cause why the suit should be dismissed, delayed, or barred. A plea sets up matter of defense not appearing in the bill. By answer controverting the case stated by the complainant, the defendant may confess and avoid, or traverse and deny the several parts of the bill, or, admitting the case made by the bill, may submit to the judgment of the court upon it, or upon a new case made by the answer, or both. By a disclaimer disclaiming all right or interest in the matter sought by the bill, the defendant may terminate the suit.1

A cross bill may also be considered as a species of defense.

11 Barbour, Ch. Pr. 105; Mitford, Eq. Pl. 106, 107; Galatian v. Erwin, Hopk. Ch. (N. Y.) 58; Livingston v. Story, 9 Pet. (U. S.) 632. See, also, Story, Eq. Pl. § 436; Cooper, Eq. Pl. 108, 110, 223, 309, 312; Ocean Ins. Co. v. Fields, 2 Story, 59, Fed. Cas. No. 10,406. Mr. Justice Story divides matters of defense into two classes: (1) Dilatory defenses; (2) peremptory and permanent defenses. Dilatory defenses are divided into the following sorts: (a) That the court in which the suit is brought has no jurisdiction; (b) that the bill is brought by or against an improper person, not competent to maintain or defend it; (c) that the suit is irregularly brought, or defective in its allegations or parties; (d) that another suit is pending for the same controversy. Peremptory defenses are of two kinds: (a) Those insisting complainant never had any right to institute the suit, under

$191. Defenses to different kinds of bills.

2

Every species of bill requires its own peculiar ground to support it, and its own peculiar form to give it effect. A deficiency, therefore, in either of these points, is a good ground of defense to it. The same objections do not always lie to a bill of discovery as lie to a bill of discovery and relief. And matters of defense may be made against bills not original which are inapplicable to original bills or to bills in the nature of original bills.3

§ 192.

Joinder of several defenses.

All or any of the customary modes of defense may be joined, provided each relates to a separate and distinct part of the bill. Thus, a defendant may demur to one part of the bill, plead to another, and disclaim as to another. He may also put in separate demurrers to separate and distinct parts of a bill for separate and distinct causes, and he may also plead different matters to separate parts of the same bill.* All these defenses must clearly refer to separate and distinct parts of a bill, for a defendant cannot plead to that part to which he has already demurred. Neither can he answer to any part to which he has either demurred or pleaded,—a demurrer demanding the judgment of the court whether he shall make any answer; and the plea, whether he shall make any other answer than what is con

which may be included the following defenses: First, that complainant has not a superior equity to defendant; second, that defendant has no interest; third, lack of privity between complainant and defendant, or of any other right to institute the suit. (b) Those insisting that the original right, if any, is extinguished or determined, under which may be included the following defenses: First, that the right is determined by the act of the parties; or, second, that it is determined by operation of law. Story, Eq. Pl. §§ 434, 435; 1 Montagu, Eq. Pl. 88, 89.

2 Story, Eq. Pl. § 438; Mitford, Eq. Pl. 106, 107.

3 Story, Eq. Pl. §§ 439, 440; Mitford, Eq. Pl. 106, 107, 109.

4 Story, Eq. Pl. §§ 437, 442; Mitford, Eq. Pl. 13, 106; 1 Barbour, Ch. Pr. 173; Holt v. Daniels, 61 Vt. 89, 17 Atl. 786; Wade v. Pulsifer, 54 Vt. 45; Bennett v. Bennett (N. J. Eq.) 49 Atl. 501; Strang v. Richmond, P. & C. R. Co., 101 Fed. 511; Livingston v. Story, 9 Pet. (U. S.) 638.

tained in the plea. Nor can the defendant, by answer, claim what, by disclaimer, he has declared he had no right to. A plea or answer will therefore overrule a demurrer, and an answer a plea, and, if the disclaimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer.5 Where a defendant adopts different modes of defense, it is necessary, not only that each defense should, in words, be applicable to the distinct part of the bill to which it professes to apply, but that it should be so in substance; and if the defense, though in words applicable to part of the bill only, should, on the face of it, be applicable to the whole bill, it will not be good, and cannot stand in conjunction with another distinct defense which is applicable, and applied to another distinct part of the bill.

§ 193. Incorporating demurrer or plea in answer.

A demurrer is often incorporated into an answer, and no violation of the rule that a party cannot demur to and answer the same matter is occasioned if the demurrer is left for consideration as if it stood alone. In the old precedents, instances may be found of demurrers and pleas incorporated into answers; but in each case the answer was provisional, the plea ending with a demand for judgment, and then proceeding: "And if this defendant shall, by order of this honorable court, be compelled to make any other answer to the said bill," etc., "then, and not otherwise, the defendant saving," etc., "answereth and saith,"-going through the answer as if no plea had been put in. The more modern practice, however, and the one sanctioned by Lord Redesdale and other standard writers, is to file each pleading by itself. But in all cases the demurrer should be brought to a hearing before the cause is tried on its merits. Where a demurrer in connection with a plea or an

1 Barbour, Ch. Pr. 173; North v. Strafford, 3 P. Wms. 148.

1 Barbour, Ch. Pr. 174; Crouch v. Hickin, 1 Keen, 385.

Holt v. Daniels, 61 Vt. 89, 17 Atl. 786; Wade v. Pulsifer, 54 Vt. 45. See Bird v. Magowan (N. J. Eq.) 43 Atl. 278. In Bennett v. Bennett (N. J. Eq.) 49 Atl. 501, it is held that an answer to a bill in equity

answer, or either of them, has been put in, the first step to be taken is to dispose of the demurrer, and also of the plea, if there is one (unless it is intended to admit that it is a valid defense, if true), and for this purpose the demurrer and plea must be noticed for argument in the usual way. If there should be any impertinence in the plea, however, it should be expunged before setting down such plea, as the setting down a plea for argument is a waiver of the impertinence.8

admitting its substantial allegations, but denying complainant's right to equitable relief, and claiming the benefit of such objection as though raised by demurrer, is, in effect, a demurrer to the bill. The statement in the answer that defendant reserves all just exceptions to the many deficiencies by demurrer to a bill exhibited, etc., is not sufficient to attack the bill as on demurrer. Matney v. Ratliff, 96 Va. 231, 31 S. E. 512. See O'Neill v. Cole, 4 Md. 107. The reservation by the defendant in his answer of an exception to the sufficiency of the bill for want of equity has the effect of a deinurrer. Lovette v. Longmire, 14 Ark. 339; Teague v. Dendy, 2 McCord, Eq. (S. C.) 207, 16 Am. Dec. 643. See on this point Schack v. McKey, 97 Ill. App. 460; Meux v. Anthony. 11 Ark. 411, 52 Am. Dec. 274; Black v. Miller, 173 Ill. 489, 50 N. E. 1009. 81 Barbour, Ch. Pr. 174; Dixon v. Olmius, 1 Cox, 412. If the defendant in his answer demurs, he can have the benefit of such demurrer at the hearing, but not before. Reed v. Cumberland Mut. Fire Ins Co., 36 N. J. Eq. 146.

(232)

CHAPTER XI.

DEMURRERS.

§ 194. In general.

Whenever any ground of defense is apparent upon the bill itself, either from the matter contained in it, or from a defect in its frame or in the case made by it, the proper mode of taking advantage of it is by demurrer. The word "demurrer" comes from the Latin word "demorari,"-to abide,-and therefore he that demurs in law is said to abide in law. The defendant will go no further until the court has decided whether the other party has shown sufficient matter in point of law to maintain the suit. The office of a demurrer is to determine whether the facts as stated constitute grounds for equitable relief. It must be founded on some dry point of law which goes to the absolute denial of the relief sought, and it demands the judgment of the court whether the defendant shall be compelled to answer the complainant's bill, or some certain part thereof. An objection to the equity of the complainant's bill must be taken by demurrer, and not by plea." Where it is perfectly apparent from the

1 Story Eq. Pl. §§ 446, 453, 454; Barton, Suit in Eq. 113; 1 Barbour, Ch. Pr. 105; Mitford, Eq. Pl. 107; Evertson v. Ogden, 8 Paige (N. Y.) 275; Chipman v. Thompson, Walk. (Mich.) 405; Billing v. Flight, 1 Madd. 230; Hovenden v. Annesley, 2 Schoales & L. 638; Goodrich v. Thompson, 88 Ill. 206.

2 Cooper, Eq. Pl. 110; Story, Eq. Pl. § 441; 1 Barbour, Ch. Pr. 106; Mitford, Eq. Pl. 107, 108; State of New Jersey v. People of New York, 6 Pet. (U. S.) 323.

Johnson v. Roberts, 102 Ill. 655; Gallagher v. Roberts, 1 Wash. C. C. 320, Fed. Cas. No. 5,194.

4 Verplank v. Caines, 1 Johns. Ch. (N. Y.) 57.

51 Barbour, Ch. Pr. 106; Stroup v. Chalcraft, 52 Ill. App. 608.

Cooper, Eq. Pl. 111; Story, Eq. Pl. § 453; Farley v. Kittson, 120 U. S.