CHAPTER IV. PLEAS AND DEMURRERS. 111, We now come to those pleadings which are used on the defence, and which either submit to answer and contest the suit, or which show some reason why the defendant is not called upon to answer; as that the court has notjurisdiction ,‘ or that the suit has abated, or is.de- fectire, or barred. When the defendant submits to con- test the suit, he puts in an answer; he shows cause against answering by either demurrer or plea. As the plea in bar likewise contests the suit, so far as it insists that the cause CHAPTER IV. of action either never existed, or is gone; so, in many cases, where the defendant does not require to protect PLEAS .AND DEMURRERS. himself from discovery, or that he must answer as to other particulars, he may insist upon the bar by answer, as 111. We now come to those pleadings which are , effectually as by plea. [a] As pleas and demurrers are used on the defence, and which either submit to answer used as objections to the being compelled to answer, we shall commence our observations with them, and after- and contest the suit, or which show some reason why the wards treat of the form and general requisites of' an- swers. defendant is not called upon to answer; as that the court Sncrron I. has notjurisdiction; or that the su~t has abated, or is.de­ Of the General Nature of the Defence by Plea or ' Demurrer, fective, or barred. When the defendant submits to con .. 112, In a preceding chapter we have pointed out the test the suit, he.put.sin an answer,· he shows cause against distinction between pleas and demurrers in.‘ equity, and their analogy to the same species of defence at common answering by either demurrer or plea. As the plea in bar law; and it there appears that the essential difference be- likewise contests the suit, so far as it insists that the cause [a] Mitf. 249. 1 Atk. 54. 2 P. Wms. 145. of action either never existed, or is gone ; so, in many cases, where the defendant does not require to protect himself from discovery, or that he must answer as to other particulars, he may insist upon the bar by answer, as . effectually as by plea. [a] As pleas and demurrers are used as objections to the being compelled to answer, we shall commence our observations with them, and after­ wards treat of the form and general requisites of an­ swers. SECTION I. Of the General NatMre of the .Defence by Plea or .Demurrer. 112. In a preceding chapter we have pointed out the distinction between pleas and demurrers in .. equity, and their analogy to the same species of defence at common law; and it there appears that the essential difference be- [a] Mitf.. 249. 1 Atk. 54~ 2 P. Wms. 14'5 . • Generated for mpgreen (University of Michigan) on 2014-06-11 17:23 GMT / http://hdl.handle.net/2027/mdp.35112104452406 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 80 EQUITY PLEADING. EQUITY PLEADING. tween a plea and a demurrer is, that the latter is merely 80 an issue in law on the complainant’s own showing; the former always puts matter of fact, as well as of law, in tween a plea and a demurrer is. that the latter is merely issue. Hence, wherever the objection to answer is founded on a matter of fact not admitted by the bill, and which, an issu,e in law on the complainant's own showing; the therefore, may be disputed, advantage of‘ such objection former always puts matter of _fact, as well as of law, in must be taken by plea, in order that the complainant may have an opportunity to reply, and so take issue upon it. issue. Hence, wherever the objection to answer is founded If the objection is apparent on the face of the adverse pleading, and therefore no question of fact can arise, the on a matter of fact not admitted by the bill, and which, defendant may-demur. With the restriction just men- therefore, may be disputed, advantage of such objection tioned; the objections taken, both by plea and demurrer, are the same; so that in this point of view, the ensuing must be taken by plea, in order that the complainant may observations will apply equally to both. have an opportunity to reply, and so take issue upon it. 113, The student will recollect that we formerly laid down the propositions of a bill to be: 1st, That from If the objection is apparent on the face of the adverse the relation stated accrues the right to disc0r;er_1/, and such pleading, and therefore no que::ltion of fact can arise, the relief as is prayed for; 2d, That the relation stated is that which actually exists, and that these propositions admit defendant may. demur. With the restriction just men­ of any defence which either, first, denies the right either to discovery, or relief, or both ; or second, denies the rela- tioned; the objections taken, both by plea and demurrer, tion ; or third, invalidates the relation, or bars the right. are the same; so that in this point of view, the ensuing 114, First, as to the denial of the right. This is analogous to the first mode of defence at law, mentioned observations will apply equally to both. in the chapter before alluded to, which. admitting the facts of the case, denies the inference or the rule of law sought 113. The student will recollect that we formerly ‘ , as we have seen, constitute a de- laid down the propositions of a bill to be: 1st, That from murrer. ner, this defence in equity, while it takes this ent in the bill as true, yet insists that the relation stated accrues the right to discmJery, and such the facts, even as stated by the complainant himself, do relief as is prayed for; 2d, That the relation stated is that not give him a right to discovery or to relief. which actually exists, and that these propositions admit 115, In equity there are many cases where, though of any defence which either, nrst, denies the right either the court will not assume a jurisdiction to give relief, yet the complainant will be entitled to a discovery in aid of to discovery, or relief, or both; or second, denies the rela­ I / 1/ tion ; or tliird, invalidates the relation, or bars the right. 114. First, as to the denial of the right. This is analogous to the first mode of defence at law, mentioned in the chapter before alluded to, which. admitting the facts of the case, denies the inference or the rule of Jaw sought to be established, w~, as we have seen, constitute a de- murrer. In Ji T ri'.'fur, this defence in equity, while it takes t ie s at ent irl the bill as true, yet insists that the facts, e~en as Rtat:ed by the complainant himself, do not give him a right to discovery or to relief. 115. In equity there are many cases where, though the court will not assume a jurisdiction to give relief, yet the complainant will be entitled to a discovery in aid of • Generated for mpgreen (University of Michigan) on 2014-06-11 17:23 GMT / http://hdl.handle.net/2027/mdp.35112104452406 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google DEFENCE BY PLEA on DEMURRER. 81 thejurisdiction of other courts. [a] In such cases, how- DEFENCE BY PLEA -OR DEMURRER . 81 ever, the bill must be a bill of discovery only; and if it should seek any relief beyond the mere collateral relief of an injunction, or a commission to examine witnesses, . the jurisdiction of other courts. [a] In such cases, how­ [b] and the like, it may be demurred to. [c] In other in- ever, the bill must be a bill of discovery only; and if it stances the court will not interfere even for the purpose of discovery; and if the bill should state a case not en- should seak any relief beyond the mere collateral relief titling the complainant to discovery, it may be demurred to as a bill of discovery merely. [/1] But discovery being, of· an injrinctiOn, or a commission to examine witnesses, as before stated, incidental to relief where the complain- [b] and tlie like, it may be demurred to. [o] In other in­ ant has a right to the assistance of the court, no demurrer will hold to the discovery, [e] unless, indeed, it be to a stances the court will not interfere even for the purpose point which might subject the defendant to penalties or of discovery; and if the bill should state a case not en­ ‘ forfeiture, which is a good ground of demurrer: or if he does not think proper to defend himself from the discov- titling the complainant to discovery, it may be demurred ery, by demurrer or plea, according to the circumstances to as a bill of discovery merely. [d] But discovery being, of the case, he may by answer insist that he is not obliged to make the discovery. [f] as before stated, incidental to relief where the complain­ 116, Second: The defence in equity, which denies the relation assumed, or, in other words, denies the truth ant has a right to the assistance of the court, no demurrer of the facts stated in the bill, is analogous to the plea of will hold to the discovery, [e] unless, indeed, it be to a the general issue stated at common law, and is taken ad- vantage of by way of answer, which puts the complain- point which might Embject the defendant to penalties or ant on the necessity of proving the allegations denied, if .