PLEADIXG. 



PLEADING. 



favourable to himself from the defendant. The plaintiff 

 may inrnit or nuggwt a> much fala* matter as he pleaiet, but it inuot 

 be matter of that kind, which, if true, would give him a right to that 

 which he demand* of or against the defendant Mow the defendant 

 must, if required, answer all that the plaintiff distinctly alleges in his 

 bill, provided it be material to the plaintiff'! case, or be must demur 

 or plead to it ; and he cannot demur, in the case supposed, because he 

 thereby admit* the plaintiff's case to be true, and therefore he must 

 admit that the plaintiff is entitled to the relief which he prays. Thus 

 the plaintiff, by means of the right which he has to compel an answer, 

 incidentally may obtain the discovery, that is, the evidence, which he 

 wishes to "hare. If the defendant can plead to the bill, he is not 

 bound to answer beyond the plea; for a good plea is a complete 

 answer to the whole bill, or to such part of the bill as it extends to. 



Formerly, the charging part of a bill was followed by interrogatories, 

 in which the whole of the matter stated and charged was repeated, and 

 the defendant called upon to say yes or no, or give some explanation 

 to every item. The recent Act has forbidden the insertion of inter- 

 rogatories in the bill, and the plaintiff, if his bill be such as requires an 

 answer, must file interrogatories for the examination of the defendants 

 separately. The defendant need not answer except thus called upon, 

 he may however do so spontaneously if he chooses. 



"An answer is that which the defendant pleadeth or saith in barre 

 to avoid the plaintiff's bill or action, cither by confession and avoiding, 

 or by denying and traversing the material parts thereof." (West, 194.) 

 Thus it appears that on answer in equity is in form the same as a plea 

 to the action at law. It must be a complete answer to everything 

 sufficiently alleged and charged in the bill, at least to everything that 

 is material to the plaintiff's claim. By the recent Act it is enacted, 

 that " the answer may contain not only the answer of the defendant 

 to the interrogatories, but such statements material to the case as the 

 dftnylni may think it necessary or advisable to set forth therein, 

 and such answer shall bo divided into paragraphs numbered con- 

 secutively, each paragraph containing as nearly as may be, a separate 

 and distinct allegation." 



A defendant, as already observed, must in proper form and in due 

 time, as prescribed by the rules of the court, answer the interrogatories 

 upon oath, unless be has privilege of peerage, or be a Quaker, or other 

 person who is excused from taking an oath, in which case his statement 

 on honour in the case of those who have privilege of peerage, and in 

 the other case his solemn affirmation, is sufficient. But the plaintiff 

 may consent to take the answer without the defendant's oath or signa- 

 ture, which is sometimes done. Those who are not Christians must 

 (wear to the truth of tin ir answer in such form as the religion which 

 they profess declares to be a binding form. 



A plaintiff may by leave of the court amend his bill either before 

 answer or after ; that is, be may strike out parts and insert new parts ; 

 and it is not easy to say what are the limits to the amount of altera- 

 tion. A defendant is rarely permitted to amend his answer. 



A demurrer in equity needs little explanation further than what lias 

 been given. [EQUITY.] When it is a demurrer to the whole bill, 

 which is the most usual kind of demurrer, the object generally is to 

 get rid of the suit, and to avoid an answer which may give the plaintiff 

 some discovery. If the demurrer is allowed, the suit is properly at on 

 end ; but leave is often given to the plaintiff to amend his bill, parti- 

 cularly where the demurrer is for want of proper parties. If the 

 demurrer is overruled, the suit proceeds. 



A plea in equity may require a few words of explanation. A plea 

 in bar to the whole bill, which is the common kind of plea, is an 

 averment which is offered aa a substantial answer to all the statements 

 and charges in the bill, though it is not in form such an answer. In 

 fact, a plea in equity is the same thing as a plea at law : it is the 

 defendant's answer to the whole of what U adversely alleged, and as 

 it does not in terms answer all that is adversely alleged, it must be 

 taken to admit that to be true which it does not in terms answer, 

 because the averments of the plea are offered as a complete answer to 

 the bilL In the old books there is no distinction mode between a plea 

 in equity and an answer in equity ; nor is there any difference sub- 

 stantially. " A plea is a special answer to a bill, differing in this from 

 an answer in the common form, as it demands the judgment of the 

 court in the first instance whether the matter urged by it does 

 not debar the plaintiff from his title to that answer which the bill 

 requires." (Lord Kedesdale, in Itorht v. Ifargett, 2 8. and L., p. 724.) 

 Mow, as a complete answer is that which the plaintiff requires, and is 

 entitled to if his bill is good in substance and form, and as discovery 

 is in many oases his chief object, and in some cases his only object, it 

 U evident that before any further proceedings can be taken in the 

 matter of a bill to which a defendant pleads, It must be determined 

 whether the plea U good in form : and for this purpose the averments 

 of the plea must be considered as true ; and all that part of the 

 bill must also be considered as true to which the plea is no direct 



Mow, the plea is good in form if it contains averments which either 

 dbectly negative all the allegations in the bill that give the plaintiff a 

 title to relief against the defendant, or positive averments which 

 destroy the effect of such allegations. The plea is bad in form if the 

 averments of the plea, though true (as on arguing the formal good- 

 ness of the plea they are assumed to be), are not a complete answer 



either by negation or affirmation or both, to all the allegations in the 

 bill which give the plaintiff a title to that which he demands of or 

 against the defendant. The formal badness of such plea is a neces- 

 sary consequence of the admitted truth of all those parts of the bill 

 to which the averments of the plea do not extend. In order therefore 

 that a plea may be taken as a sufficient answer to the whole bill, it 

 must contains sufficient averments to negative or displace all the 

 allegations in the bill which, if true, gave the plaintiff a title to relief. 

 But inasmuch as a plea is an answer, the defendant must, in addition 

 to the averments, give an answer upon oath to all those statements 

 and charges in the bill upon which he is interrogated, which, if true, 

 would destroy the effect of the matter pleaded; and this is called 

 supporting a plea by an answer, which is generally necessary. If the 

 plea is decided to be good in form, then the truth of the plea alone is 

 in issue between the plaintiff and defendant, and the cause is heard 

 on the issues so joined : just aa, in the case where the bill is answered, 

 the cause is heard upon all the issues of law and fact joined by such 

 bill and answer. If a plea is simply overruled, the defendant must 

 answer the bill. If it is overruled, the answer in support of the 

 plea, if there is one, may serve for an answer as far as it goes, 

 and the court may accordingly order it to stand for on answer to such 

 part of the bill, with liberty to except to it or not, according as it 

 may bo an insufficient or sufficient answer to that part of the bill to 

 which it extends. 



The matter pleaded as an answer to the bill must be one thing, and 

 such a thing as is an answer to the whole of the plaintiff's demand, or 

 to so much of the bill as the plea extends to. The defendant < 

 according to the rules of equity pleading, plead in bar several and 

 distinct matters, any one of which would be an answer to the liill. 

 But if the averments are averments of separate facts which form one 

 material fact, such averments make a good plea; which is thus ex- 

 pressed by Lord Eldon : "The office of a plea generally is n.-t t . 

 deny the equity, but to bring forward a fact which, if true, displaces 

 it : not a single averment, as the averment in this answer, that no 

 bill of sale was executed, but perhaps a series of circumstances forming 

 in their combined result one fact which displaces the equity " (Lord 

 Eldon, Rove v. Teed, 15 Ve. 877). 



The definition of a plea "not denying the equity, but bringing 

 forward a fact which, if true, displaces it," is in substance the same as 

 the definition of an exceptio by Gains (iv. 119) : "Omnes exceptional 

 in contrarium concipiuntur, quia adfirmat is, cum quo agitur." 



A defendant may disclaim all interest, right, or title in or to the 

 matter of the plaintiff's bill ; but it will nearly always happen that 

 such disclaimer will be an insufficient answer by itself, and that there 

 will be parts of the bill to which it will bo necessary to give an 

 answer. 



A defendant may demur to a part of a bill as well as to the whole 

 bill : he may also plead to a part of a bill as well as to the whole biU : 

 and he may demur, plead, answer, and disdain, with respect to the 

 some bill. But it is very rare that any two of these ways of pleading 

 are united, except on answer and disclaimer, on account of the practical 

 difficulty attendant on such a mode of defence. For it follows from 

 the nature of these ways of pleading that they must severally apply to 

 substantially different parts of the bill. A man cannot plead to that 

 matter to which he demurs ; for to plead is to offer something as an 

 answer sufficient in substance, though it may not be so in form, and to 

 demur is to allege that he ought not to answer. For the same reason 

 he cannot answer, in the formal manner of an answer, to that to which 

 ho has either pleaded or demurred, having by pleading already offered 

 something as a sufficient answer, and having by demurrer alleged that 

 he ought not to answer. " A plea or answer will therefore overrule a 

 demurrer, and on answer a plea ; and if a disclaimer and answer are 

 inconsistent, the matter will be taken most strongly against the defen- 

 dant upon the disclaimer." (Mitford, p. 820.) 



Pleadings in equity were formerly continued, like pleadings at law, 

 beyond the bill and answer. The plaintiff replied t.. th.- .1. undaut's 

 answer by his replication, which is defined to be " the plaint lie's speech 

 or answer to the defendant's answer, which must affirm and pursue his 

 bill, and confesse and avoid, denie or traverse the defendant's answer." 

 (West.) Thus if the answer denied the plaintiffs chum as stated in 

 the bill, and suggested or stated some new matter, it was necessary for 

 the plaintiff to moke a special reply which was analogous to the 

 defendant's answer. To meet this special replication, the defendant 

 put in a rejoinder, which is defined to be " the answer which the 

 defendant maketh to the plointifs replication, which must pursue and 

 confirm his answer and not swarve from the name, and sufficiently 

 confesse and avoid, denie or traverse each material part of the plaintif's 

 replication. If the parties be not at issue by reason of some new 

 matter disclosed in the defendant's rejoynder that requireth answer, 

 then may the pUintif surrejoyne to the said rejoynder, and the defen- 

 dant in like manner to the surrejoyndcr, if there be cause, which 

 hapneth verie seldome." (West.) 



This method of pleading by special replications and rejoinders is 

 now disused, and all the objects of such proceedings are at present 

 attained by the |x>wcr which the plaintiff has of amending his bill and 

 stating his case in a better form after he has seen the defendant's 

 answer. The disuse of special replications has also led to the pr.-i tiei- 

 of frequently stating the plaintiff's case more completely in hi* bill in 



