170 SALMON v. CLAGETT.—3 BLAND.

tected himself from the discovery by * plea, or demurrer, the
152 Judge is made to say, you are not entitled to an account
unless there be a partnership; and your position is much too wide;
at that rate, if an utter stranger were to file a bill against Child's
shop, (then a great London banker,) alleging a partnership, it could
not be sufficient to deny that any such partnership existed. There
may be cases where the Court will require an account although the
principal point in the bill is denied; but not in a case like this.
Jacobs v. Goodman, 2 Cox, 282. In a third case the plaintiff, after
setting out his title, prayed a discovery; the defendant answered, that
he was a purchaser without notice; exceptions were taken to the
answer, as being insufficient; upon which the Chancellor, among
other things, is reported to have said, that this Court will never
extend its jurisdiction to compel a purchaser, who has fully and
in the most precise terms denied all the circumstances, men-
tioned as circumstances from which notice may be inferred, to
go on to make further answer as to all the circumstances of the
case that are to blot and rip up his title. To do so would be to
act against the known established principles of the Court. Jcr-
rard v. Saunders, 2 Ves. Jun., 458. In one other of these cases
some reasons are given; but they are very obscurely expressed; and,
perhaps, convey no other idea than the supposed inconvenience to
the defendant alleged in some of the other cases in which reasons
for the decision are given. Sweet v. Young, Amb. 353.

Here then, we have before us all the reasons, that have ever been
given in favor of these exceptions to the rule. Now, it is perfectly
manifest, that in each of these cases the reasons given are based
upon an assumption of that, against the plaintiff, and in favor
of the defendant, which is the very fact about the truth of which
they are at issue. This assumption does, in effect, contrary to the
general rules of pleading, treat an answer as being as conclusive
as a plea. Carttwright v. Hateley, 1 Ves. Jun., 292. The custom, the
partnership, or the notice, was the very fact put in issue between
the parties; and therefore, it would seem to be exceedingly rash to
pronounce any judgment founded on the truth or falsehood of such
fact, before the issue was tried and determined. Wigram on Dis-
covery, 8. To say, that a party might feign a suggestion to war-
rant a call for discovery is tantamount to saying, he might commit
a fraud. Either party, any one may commit a fraud; but the law
presumes every one to be innocent until the contrary appears; and

the Court is bound to act upon that presumption. *An
153 allegation of this description, of a defendant in his answer,
not being responsive to the bill, cannot be allowed, before a deci-
sion, to go for any more than an allegation in the bill; if not proved
at the hearing, they will, both of them, be disregarded. The Court
then, ought not to say, that the defensive negation or affirmation,
of the defendant in his answer, should be assumed as true; or as so