leave of the court be subsequently put in; 13 and an amendment of a demurrer confining it to a part of the bill may also be allowed.14

§ 123. Sustaining a demurrer.-If upon the hearing any demurrer be allowed, the defendant is entitled to his costs.1 But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. When a demurrer ore tenus is sustained, the defendant receives no costs, and perhaps may be ordered to pay costs. If the defect in the bill be clearly one that goes to the whole equity of the plaintiff's case, leave to amend will not be granted. According to Lord Cottenham, "it is not usual, upon allowing a general demurrer, to give leave to amend; but it may be done. It is in the discretion of the court so to do." And although courts are now very liberal in allowing amendments, leave to amend may be refused when the case of the defendant is a hard one, and he is free from wrong-doing, while the plaintiff has had an opportunity to plead the new matter when his bill was first drawn." Leave to amend is now usually granted upon payment of costs, and almost invariably when the defect in the bill consists in the misjoinder of parties, or the omission of those who can be served without ousting the court of jurisdiction." It has been held that a paper defective as a bill in equity may be sustained as a petition on an appeal from condemnation proceedings under a special statute.

13 Thorpe v. Macauley, 5 Madd. 218, 231.

14 Glegg v. Legh, 4 Madd. 193, 207; Baker v. Mellish, 11 Ves. 70; Atwill v. Ferrett, 2 Blatchf. 39, 49. § 123. 1 Rule 34.

2 Rule 34; infra, § 161.

3 Taylor v. Holmes, 14 Fed. R. 498; Brinkerhoff v. Brown, 6 J. Ch. (N. Y.) 149; Langdell's Eq. Pl., § 95; Story's Eq. Pl., § 464; Daniell's Ch. Pr. (2d Am. ed.) 672.

4 Langdell's Eq. Pl., § 95; Lord Clarendon's Orders, May 22, 1661; 1 Sanders' Orders, 298.

5 Langdell's Eq. Pl., § 96; Tyler v.

Where the court erroneously

Bell, 2 Myl. & Cr. 89; Lowe v. Farlie, 2 Madd. 101; Walker v. Powers, 104 U. S. 245.

Wellesley v. Wellesley, 4 Myl. & Cr. 554, 558.

7 Dowell v. Applegate, 8 Fed. R. 698; s. C., 7 Saw. 232.

8 Aylwin v. Bray, 2 Y. & J. 518, note; Tryon v. Westminster Imp. Com'rs. 6 Jurist (N. S.), 1324.

9 M'Elwain v. Willis, 3 Paige (N. Y.), 505. See Walker v. Powers, 104 U. S. 245, 252.

10 Cherokee Nation v. S. K. Ry. Co., 135 U. S. 641, 651.

ordered a demurrer and at the final hearing dismissed the bill, although the evidence showed equities in favor of the complainants, the Circuit Court of Appeals reversed the decree and directed that the bill be dismissed without prejudice." Where a bill is dismissed because there is an adequate remedy at law, the decree of dismissal should be without prejudice to a suit at law.12

11 Wood v. Collins, 60 Fed. R. 139. See infra, § 300.

12 Sanders v. Devereux, 60 Fed. R. 311; infra, § 300.

CHAPTER IX.

PLEAS.

§ 124. Definition and classification of pleas.- A plea is a pleading which sets up some reason not apparent upon the face of the bill why the defendant should not be obliged to answer the whole or a part thereof. Lord Redesdale defines a plea as a special answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether the special matter urged by it did not debar the plaintiff from his title to that answer which the bill required." A plea may be to the whole or to a part of the bill. Usually but a single ground of defense can be presented by a plea, which, though it may state more than one fact, must bring the matters in issue to a single point. Otherwise, it is open to the charge of duplicity and multifariousness, and will be overruled. If a bill contain different prayers for

§ 124. 1 Roche v. Morgell, 2 Sch. & Lef. 721, 725.

2 Rule 32.

3 Whitbread v. Brockhurst, 1 Brown, Ch. C. 404, 416, note 9; s. c., 2 Ves. & Bea. 154, note; Watkins v. Stone, 2 Sim. 49; Rhode Island v. Massachusetts, 14 Pet. 210, 259; Story's Eq. Pl., § 654. See Rhino v. Emery, 79 Fed. R. 483.

4 Rhode Island v. Massachusetts, 14 Pet. 210, 259; Gaines v. Mausseaux, 1 Woods, 118; Whitbread v. Brockhurst, 1 Brown, Ch. C. 404, 416, note 9; S. C., 2 Ves. & Bea. 154, note; London v. Liverpool, 3 Anst. 738; Watkins v. Stone, 2 Simons, 49; Saltus v. Tobias, 7 J. Ch. (N. Y.) 214; Giant Powder Co. v. Safety N. P. Co., 19 Fed. R. 509; M'Closkey v. Barr, 38 Fed. R. 165; Story's Eq. Pl., §§ 653–655. But see Reissner v. Anness, 12 Off. Gaz. 842; s. c., 3 Bann. & A. Pat. Cas. 148;

MacVeagh v. Denver C. W. W. Co., 85 Fed. R. 74; Societé Fabriques v. Lueders, 105 Fed. R. 632; Hazard v. Durant, 25 Fed. R. 26; Fayerweather v. Hamilton College, 103 Fed. R. 546. A plea to the jurisdiction which set up matters affecting the validity of the service, matters showing want of the requisite difference of citizenship, and pendency of a prior suit was overruled for duplicity. Briggs v. Stroud, 58 Fed. R. 717. So was a plea to a suit upon a bond of indemnity against loss by embezzlement, which set up, as a defense, misrepresentations as to the previous condition of the embezzler's accounts, and averred that the plaintiff knew or ought to have known that he was a defaulter. Supreme Council v. Fidelity & C. Co., 63 Fed. R. 48. And a plea to a bill for the infringement of a patent which alleged that, dur

relief based upon different grounds, the defendant may file a plea to each part of the relief." And in other cases, where great inconvenience can thus be saved, the court may upon motion, after notice to the complainant's solicitor, give special leave to file a double plea, or rather, according to Professor Langdell, two separate pleas, each containing a single defense. It has been held that the question whether a patent has been infringed cannot be raised by a plea, except under extraordinary circumstances. A plea must not contain inconsistent allegations, as "a plea of the Statute of Limitations and of liability never incurred." 10 Nor, it has been said, can a plea properly raise by averment an issue "not raised by the bill."" But, if the plea be otherwise good, immaterial allegations will not vitiate it.12 Matters that have occurred since the filing of the bill may be set up by plea provided the time for filing the plea has not elapsed." Otherwise, such matters can only be pleaded by a supplemental answer or cross-bill. A plea should state facts, not arguments and conclusions of law, which will be disregarded.15 Thus, it has been held that pleas which state that

ing part of the time described in the bill, the defendant made the patented device with the consent of the complainant, and that on other occasions he did not infringe. Knox R Co. v. Rairdon Stone Co., 87 Fed. R. 969. But a plea was held to make a single issue where it averred that the defendant never made, used or sold any article embodying the invention which he was charged with infringing, and that the alleged infringement was committed, if at all, by a foreign corporation of which he was an officer. Leatherbee v. Brown, 69 Fed. R. 590.

5 Emmott v. Mitchell, 14 Sim. 432. 6 Gibson v. Whitehead, 4 Madd. 241; Kay v. Marshall, 1 Keen, 190.

7 Langdell's Eq. Pl., § 98. Thus, in England, a defendant to a bill for an injunction against the infringe ment of a patent and for an account was allowed to file a double plea, "namely, first, that the invention was not useful, and secondly, that it

was not new." Kay v. Marshall, 1 Keen, 190, 192. But see Reissner v. Anness, 12 Off. Gaz. 842; s. c., 3 Bann. & A. Pat. Cas. 148.

8 Korn v. Wiebusch, 33 Fed. R. 50; Hubbell v. De Land, 14 Fed. R. 471, 474.

9 Union S. & S. Co. v. Phila. S. R. Co., 69 Fed. R. 833; Knox R. B. Co. v. Rairdon Stone Co., 87 Fed. R. 969; Germain v. Wilgus (C. C. A.), 67 Fed. R. 597; Leatherbee v. Brown, 69 Fed. R. 590.

10 Emmott v. Mitchell, 14 Sim. 432; Story's Eq. Pl., §§ 656, 657. 11 Emmott v. Mitchell, 14 Sim. 432, 436.

12 Ibid. But see Rhode Island v. Massachusetts, 14 Pet. 210, 270.

13 Rhode Island v. Massachusetts, 14 Pet. 210, 270; Claridge v. Hoare, 14 Ves. 59.

14 Earl of Leicester v. Perry, 1 Brown Ch. C. 305; Turner v. Robinson, 1 Sim. & S. 3.

15 Miller v. Fenton, 11 Paige (N. Y.),

defendant "is the sole owner in fee simple of the entire title of" the land which is the subject of the suit; "that, at the time of the bringing of this suit and long prior thereto, this defendant was and still is in the open, notorious, continuous, and exclusive possession of the said premises as the sole owner thereof, and claiming and holding adversely to the complainants and all the world; " and "that the said complainants were, at the time of bringing this suit and long prior thereto, ousted and disseized and out of possession of said premises," are bad.16 Pleas are either pure, negative, or anomalous. A pure plea sets up new matter as a defense which is not apparent upon the face of the bill." A negative plea, which is sometimes also termed an anomalous plea, merely denies certain allegations contained in the bill.18 An anomalous plea sets up a fact in avoidance of the bill, but one which the bill has anticipated and without confessing replied to.19 Now that the benefits of discovery can be obtained at common law, negative and anomalous pleas are rarely used; 20 and the learning and subtlety which have been displayed in discussing their characteristics are of little service, except as a means of mental discipline or for the gratification of an antiquarian taste. Those interested in studying their history and refinements are referred to the works of Beames on Pleas, Wigram on Discovery, and Langdell on Equity Pleading, where they will find the subject discussed at length, with full references to the cases. Pleas are either to the relief or to the discovery; and pleas to the relief are either pleas in abatement or pleas in bar.

§ 125. Pleas in abatement in general.-The books which recognize pleas in abatement include among them pleas to the

18; Daniell's Ch. Pr. (5th Am. ed.) 607; Westinghouse El. & Mfg. Co. v. Stanley, 65 Fed. R. 321.

16 Beames on Pleas, 22, 23; Jerrard v. Saunders, 2 Ves. Jr. 187; National Bank v. Insurance Co., 104 U. S. 54; Wood v. Mann, 1 Sumn. 506; McCloskey v. Barr, 38 Fed. R. 165; Emma S. M. Co. v. Emma S. M. Co. of N. Y.,

1 Fed. R. 39; Hudson v. Randolph, 66 Fed. R. 216.

17 McCloskey v. Barr, 38 Fed. R. 165. 18 Story's Eq. Pl., § 651; Rhino v. Emery, 79 Fed. R. 483.

19 Langdell's Eq. Pl., § 102; Story's Eq. Pl., § 651; McDonald v. Salem C. F. M. Co., 31 Fed. R. 577; McCloskey v. Barr, 38 Fed. R. 165; Hilton v. Guyott, 42 Fed. R. 249. But see Milligan v. Milledge, 3 Cr. 220.

20 See, however, Rhino v. Emery, 79 Fed. R. 483.