SALMON v. CLAGETT.—3 BLAND. 167

that a defendant should not, by any slip or mistake, lose the ben-
efit of his demurrer or plea; or have it snatched from him by any
technical nicety. For these reasons he may be allowed to amend,
either his demurrer or plea, so as to make it as effectual as the
nature of his case will allow. Where the demurrer Is general to
the whole bill, but cannot be thus sustained, the Court, after argu-
ment, by special leave, has permitted the defendant to demur to
part of the bill only; considering it as a kind of amended demurrer,
since a demurrer cannot, like a plea, be held good in one part and
bad in another, Baker v. Mellish, 11 Ves. 68; or a demurrer may be
overruled, without prejudice to the defendant's insisting by way
of answer against making a particular discovery, which is, in effect,
allowing the demurrer to stand for so much. Suffolk v. Green, 1
Atk. 450. So, too. on shewing what the amendment is, and how
the slip happened, leave will be given to amend a plea; or if it be
incapable of amendment, that it maybe withdrawn and an entirely
new one filed. The Court upon this subject exercises a sound dis-
cretion, allowing to a defendant reasonable time to put his plea in
proper form, so that he may lose no advantage he can derive from
presenting his defence in that shape; at the same time taking care
that the plaintiff sustains no material injury by the delay. Free-
land v. Johnson, 2 Anstr. 411; Beam Plea. Equ,. 329.

* If the demurrer and the plea be entirely overruled, still
the defendant may, in general, advance and rely upon the 149
same matter in his answer; and have the benefit of it at the hear-
ing. Stephens v. Gaule, 2 Vern. 701; Suffolk v. Green, 1 Atk. 450;
Brownsword v. Edwards, 2 Ves. 246; Finch v. Finch, 2 Ves. 491;
Baker v. Mellish, 11 Ves. 68. But it seems to be settled, that the
same matter cannot be so relied upon to protect the defendant
from the disclosures prayed by a bill of discovery. Hoare v. Par-
ker, 1 Cox, 224.

How far such an answer can be made available against the dis-
covery sought by a bill praying relief, is a matter which I shall
now inquire into and determine.

We have considered the several ancient modes of defence which
a defendant may avail himself of; either for the purpose of inter-
cepting the litigation at an early stage of its progress, or of pro-
tecting himself from discovery, or of meeting his opponent upon
the merits at the final hearing; and we have seen with what liber-
ality some of them may be amended so as to answer the purposes
for which they were intended. The difficulty now before us is one
which occurs in a case anterior to the final hearing; and may, after
that, reappear, accompanied with additional embarrassment. It
is produced by a new use which a defendant attempts to make of
one of the ancient modes of defence. A positive negation, or mat-
ter of avoidance, embodied in an answer, is admitted to be one of
the ancient established modes of defence; and the point is, whether