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becomes res judicata, and the defendant is not entitled, as a matter of right, to set up the same matter in his answer.1

9. Nature of Order Overruling or Allowing Plea. An order overruling a plea is not appealable, the question decided being merely one of pleading and settling no rights between the parties," and an order allowing a plea does not of itself determine the cause without entry of an order dismissing the bill.3

10. Amendment a. IN GENERAL. Where there is an obvious slip or mistake in a plea, but the material ground of the defense appears to be good, the defendant may be permitted to amend the plea, as, where the plea is argumentative, or otherwise irregular in form.

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Imposition of Terms. This may be upon terms, however, requiring the defendant to present the amendment, or that the amend

1. Pentlarge v. Pentlarge, 22 Fed. Rep. 412; Hubbell v. De Land, 11 Biss. (U.S.) 387. Contra, Ringgold v. Stone, 20 Ark. 526; Kelly v. McGuire, 15 Ark. 607, overruling Keatts v. Rector, I Ark. 391; Danels v. Taggart, I Gill & J. (Md.) 321, wherein the court, in holding that an order overruling a plea was not appealable, said: "The only conclusive effect of the decision then is that it drives the party to the necessity of asserting the same defense in a different form of proceeding."

Plea and Answer to Bill for Relief and Discovery. Where the statute of limitations was pleaded to a bill for an account and discovery with an accompanying answer and was overruled, and the defendant was ordered to answer fully and perfectly, he was not allowed to repeat in his second answer the same matter contained in the plea which had been overruled. Coster v. Murray, 7 Johns. Ch. (N. Y.) 170.

2. Danels v. Taggart, 1 Gill & J. (Md.) 311, holding that the only conclusive effect of such an order is to drive the defendant to answer.

3. Tarleton 2. Barnes, 2 Keen 632. 4. Bell v. Woodward, 42 N. H. 196; Driggs v. Garretson, 25 N. J. Eq. 178; Everitt v. Watts, 3 Edw. Ch. (N. Y.) 486; Greene v. Harris, II R. I. 5; Freeman v. State Bank, Harr. (Mich.) 311; Merrewether v. Mellish, 13 Ves. Jr. 435; Davies v. Davies, 2 Keen 534, I Jur. 446; Pope v. Bish, 1 Anstr. 59; Waters v. Mayhew, 1 Sim. & S. 220; Sergrove v. Mayhew, 14 Jur. 158, 2 Macn. & G. 97; Dobson v. Leadbeater, 13 Ves. Jr. 230; Cooper's Eq. Pl. 234. See also supra, III. 4. After Amendment of Bill. And see generally article AMENDMENTS, vol. 1, p. 458.

Second Amendment. - A plea having been once amended, a second amendment will not be allowed. Nabob v. East India Co., 3 Bro. C. C. 292.

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Plea Supported by Answer. Thompson v. Wild, 5 Madd. 82, it is held that where a plea is supported by an answer an amendment of the plea will not be allowed.

Where an answer covers the whole bill and a plea is overruled because it answers the whole bill, there is no necessity for permitting the plea to stand for answer or allowing it to be amended, the answer covering the whole ground upon which the plea depended for a defense. Summers v. Murray, 2 Edw. Ch. (N. Y.) 205.

5. Dobson v. Leadbeater, 13 Ves. Jr. 230.

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6. Plea to Part of Relief and Part of Discovery. Where a plea was to part of the relief and part of the discovery, it was held to be irregular in point of form and leave was given to amend. Davies v. Davies, 2 Keen 534. Informal Conclusion. A plea which is informal because it does not properly conclude may be amended. Merrewether v. Mellish, 13 Ves. Jr. 437. Duplicity. A plea which does not bring the cause to a single point may be amended by striking out special averments. Pope v. Bish, I Anstr. 59.

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ment shall be made within a certain time,1 or that it shall be of a certain character.2 And while the defendant may, as a matter of course, file a new plea where his first plea is taken off the files for irregularity, if the plea is overruled on the hearing the defendant cannot have the advantage of his plea without special leave from the court to amend.3

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b. LIBERTY TO AMEND BILL AND PLEAD DE Novo. Upon overruling the plea the court may at the same time permit the plaintiff to amend his bill and grant leave to the defendant to plead de novo.a And in some cases, though the plea may be good, the court will allow an amendment of the bill when the objection can be so obviated, as where the plea is for a want of parties.3

c. AMENDMENT OF BILL BEFORE ARGUMENT OF PLEA. - The plaintiff may be allowed upon application to amend his bill after a plea pleaded so as to charge facts which will require an answer in support of the plea.

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11. Exception to Answer Filed with Plea. Where a plea and an answer are filed at the same time and the plea is overruled, the plaintiff will be allowed time within which to except to the answer."

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12. Replication. — The object and effect of a replication to a plea in equity are treated in another article.

Wood v. Strickland, 2 Ves. & B. 150; Newman v. Wallis, 2 Bro. C. C. 147. See also Atty.-Gen. v. Brooksbank, 2 Y. & J. 37; Cooper's Eq. Pl. 234.

1. Nobkissen v. Hastings, 2 Ves. Jr. 85, 4 Bro. C. C. 253; Cooper's Eq. Pl. 234.

2. Taylor v. Duncanson, 20 D. C. 511. 3. Heartt v. Corning, 3 Paige (N. Y.) 569.

4. Chadwick v. Broadwood, 3 Beav. 316; Glover v. Weedon, 3 Jur. N. S. 903. See also supra, IV. Withdrawal of Plea.

5. A Bill Is Never Dismissed for Want of Parties, but stands over with liberty for the plaintiff to amend, so that instead of allowing a plea of this sort the court will give the plaintiff leave to amend upon payment of costs, or it will extend the liberty even after the allowance of the plea. Cooper's Eq. Pl. 289. See also article PARTIES TO ACTIONS, vol. 15, p. 456.

6. McClane v. Shepherd, 21 N. J. Eq. 76. See also Parker v. Alcock, 1 Y. & J. 195. And see generally article AMENDMENTS, vol. 1, p. 458.

Amendment of Bill After Plea Set Down. After a plea is put in the plaintiff

may amend his bill, paying the costs of the plea, but after the plea has been set down, if the plaintiff amends, the plea may come on to be argued and if the plaintiff does not appear the plea will be allowed with costs. Cooper's Eq. 233: Jennings v. Pearce, 1 Ves. Jr. 447.

7. Summers 7. Murray, 2 Edw. Ch. (N. Y.) 205.

Where a Plea Is Accompanied by an Answer to any part of the bill and is overruled, if the complainant wishes a further answer or discovery as to the matters attempted to be covered by the plea, he should except to the answer already put in. Kuypers v. Reformed Dutch Church, 6 Paige (N. Y.) 570.

Argument of Plea Before Exception to Answer. - When a plea and answer are put into different parts of the bill the plea should be argued before exceptions are taken to the answer, though where the plea is confined to the relief prayed, it seems that exceptions may be taken to the answer before the plea is set down. See also article ANSWERS IN EQUITY PLEADING, vol. 1, p. 901. 8. See article REPLICATION REPLY.

AND

PLEDGES.

BY CHARLES H. STREET.

L ACTIONS TO ENFORCE PLEDGEE'S RIGHTS, 630.
1. In General, 630.

2. Action on the Principal Debt, 631.

a. Not Barred by Possession of Collateral, 631.
b. Defenses, 632.

c. The Pleadings, 633.

d. Pledgee's Lien Not Waived, 635..

e. Attachment of Debtor's Property, 636.

3. Suit to Foreclose Pledge, 636.

a. In General, 636.

b. When Sale Will Not Be Decreed, 638.

c. The Pleadings, 638.

4. Action on Pledged Note, 639.

a. In General, 639.

b. Parties, 640.

c. The Pleadings, 640.

5. Assumpsit, 641.

6. Action on the Case, 641.

7. Trover, 642.

8. Detinue, 642.

9. Replevin, 642.

10. Action Against Sheriff for Wrongful Seizure, 643.
11. Miscellaneous Suits in Equity, 643.

a. In General, 643.

b. Parties, 644.

c. The Pleadings, 644.

IL ACTIONS TO ENFORCE PLEDGOR'S RIGHTS, 645.

1. In General, 645.

2. Bill in Equity, 645

a. When Bill Lies, 645.

b. Essential Averments, 647

3. Actions at Law, 648.

a. Forms of Action Available, 648.

b. Tender, 649.

c. Parties, 650.

d. The Pleadings, 650.

III. ACTIONS TO ENFORCE RIGHTS OF THIRD PERSONS, 651.

CROSS-REFERENCES.

As to Liens in General, see article LIENS, vol. 13, p. 122; and as to other matters of Pleading and Practice relating to the subject of Pledges, consult the General Index to this work. Matters of Substantive Law and Evidence, see the title PLEDGES, AM. AND ENG. ENCYC. OF LAW.

I. ACTIONS TO ENFORCE PLEDGEE'S RIGHTS 1. In General. Where a pledge is given to secure the payment of a debt the creditor, on the maturity of the obligation, may either proceed personally against the debtor, on the original debt, or procure satisfaction by enforcing the pledge; 1 or he may avail himself of both of these remedies at the same time, prosecuting both claims to judgment and collecting what is due him on either obligation.* If a Third Person Stands as Surety for the debt the pledgee may proceed against the surety personally, and at the same time seek to subject any collateral which he may hold.3

Sale of Pledge. Where the pledgee elects to enforce the pledge, he may do so by a sale of the pledged property on due notice to the pledgor, and without a judicial decree; or he may proceed in equity for a foreclosure of his lien, and obtain a decree for the sale of the pledge and for other necessary relief.

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Negotiable Paper Held in Pledge, according to some authorities, cannot be sold in this manner without the express authority of the pledgor, but it is the duty of the pledgee to collect such paper when it falls due, apply enough of the proceeds to pay his debt, and then return what remains to the pledgor.5

1. Barnes v. Bradley, 56 Ark. 105; Robinson v. Hurley, 11 Iowa 410; Comstock v. Smith, 23 Me. 202; Jervis v. Smith, 7 Abb. Pr. N. S. (Ň. Y. Super. Ct.) 217; Harlan v. Sweeny, I Lea (Tenn.) 682.

Pledgee's Right of Action Notwithstanding Power of Sale. The existence of a special agreement including a power to the pledgee to sell the pledge in case of the pledgor's default does not deprive the pledgee of power to enforce his rights by proceeding on the original debt or by seeking a foreclosure in equity. Robinson v. Hurley, 11 Iowa

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Pennsylvania. Smith v. Coale, 12 Phila. (Pa.) 177, 34 Leg. Int. (Pa.) 58.

Tennessee. Johnson v. Smith, 11 Humph. (Tenn.) 396; Arendale v. Morgan, 5 Sneed (Tenn.) 703.

Texas. — Luckett v. Townsend, 3
Tex. 119.
Vermont.
Vt. 628.

Taggart v. Packard, 39

5. Union Trust Co. v. Rigdon, 93 III. 458; Zimpleman v. Veeder, 98 Ill. 613; Fletcher v. Dickinson, 7 Allen (Mass.) 23, Roberts . Thompson, 14 Ohio St.. 1; Handy v. Sibley, 46 Ohio St. 9. But see contra, Davis v. Funk, 39 Pa. St. 243; Potter 7. Thompson, 10 R. I. 1; and Brightman v. Reeves, 21 Tex. 70, according to which authorities there are no good reasons to sustain such an exception. And see Comstock v. Smith, 23 Me. 202.

The

Express Contract of the Parties. authorities are uniform upon the question that the disposition to be made of such a pledge may be regulated by the

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2. Action on the Principal Debt-a. NOT BARRED BY POSSESSION OF COLLATERAL. In the absence of a statute or stipulation to the contrary, the possession of collateral security does not defeat, impair, or suspend the right of the pledgee to bring an action upon the principal debt; 1 but if his recovery is barred by the statute of limitations he may then be obliged to resort to the securities given in pledge."

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New York. Queens County Bank v. Leavitt, 56 Hun (N. Y.) 426. Pennsylvania. Pa. St. 13. Tennessee. Johnson v. Smith, II Humph. (Tenn.) 396.

Hunter v. Moul, 98

Wisconsin. Marschuetz v. Wright, 50 Wis. 175.

In California the pledgee may sell the pledge upon the default of the pledgor; and his right to sue upon the original debt for the balance remaining unsatisfied is not affected by Prac. Act, tit. 8, c. I, providing that a personal judgment cannot be obtained until after the subject of a lien or mortgage has been exhausted in the manner required by the statutes. Such an action is not an action for a debt secured by a lien or mortgage, but is an action for the balance due after the lien has been exhausted. Mauge v. Heringhi, 26 Cal. 577. See also Ehrlich v. Ewald, 66 Cal. 97.

Agreement Not to Sue for a Certain Time. The possession of collaterals is not a bar to a suit upon the principal debt, even though the collaterals were taken under an agreement not to sue upon the debt for a certain time.

Mendenhall (Ind.) 125.

v. Lenwell, 5 Blackf.

Injunction to Restrain Action on Debt. - Property was pledged to secure the payment of an accommodation note, the pledgee having no knowledge that the note was accommodation paper. The pledgee brought an action on the note against the maker. Thereupon the maker applied for an injunction to restrain the pledgee's action, but his bill for an injunction was dismissed on the ground that he had no right, as against the pledgee, to an application of the collateral securities to the pay. ment of the debt. Tyler v. Busey, 3 MacArthur (D. C.) 344.

Failure to Collect and Retention of Pledged Note. - If a creditor who has received the note of a third party as collateral security, without negligence on his part fails to collect the note, and retains it in the absence of a demand by the pledgor for its return, he can sue on the principal debt, and the possession of the pledged note will not prevent his recovering in full upon the original debt. Marschuetz v. Wright, 50 Wis. 175.

But Certain Equities May Exist which will compel the pledgee to proceed first against the collateral. Thus in Alexander v. Alexander, 64 Ind. 541, a pledgee held certain collaterals which were good, and more than sufficient to pay the debt, but instead of enforcing them he brought an action on the principal debt, against the estate of the pledgor. If his claim had been allowed, it would have been necessary to sell real property belonging to the estate in order to pay it. Under these circumstances it was held that the claimant was not entitled to a judgment, but must first proceed against the collaterals.

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