SALMON v. CLAGETT.—3 BLAND. 173

should, in every instance, be established before he has the discov-
ery. Newman v. Wallis, 2 Bro. C. C. 143. Yet, if a defendant
undertakes to set forth in his answer any matter which shews, that
the plaintiff has no title; or which, if put into the shape of a plea,
might have protected him from discovery, still having submitted
to answer, he shall answer fully. Richardson v. Mitchell, Sel. Ca.
Cha. 51; Hall v. Noyes, 3 Bro. C. C. 483. And, upon this ground,
it has also been held, that if the fact of partnership, being a com-
ponent part of the plaintiff's title, be denied in the answer; or
an averment be made therein, that the partnership had been de-
termined; it shall not protect the defendant from the discovery, or
the production of the books required of him; because it was a
proper subject for a plea, and he should have availed himself of it
in that form. Cartwright v. Hately, 3 Bro. C. C. 239; Hornby v.
Pemberton, Mosely, 57; ———— v. Harrison, 4 Mad. 252; Leonard v.
Leonard, 1 Ball & Bea. 323. And so too, where a plaintiff asked
for specific performance, and the defendant relied upon the
Statute of Frauds, still he was ordered to discover all he knew re-
specting the agreement; because, although as against a mere parol
agreement, the statute was a bar; jet as, alter he had stated the
agreement, the plaintiff might be able to * prove something
which would take the case out of the statute, when applied 156
to the agreement disclosed, he was, therefore, entitled to a discov-
ery of the particulars of the agreement to enable him to do so.
But if the plaintiff fails to do so, then the defendant would be
allowed the benefit of the statute, notwithstanding his disclo-
sures. Cooth v. Jackson, 6 Ves. 37; Rowe v. Teed, 15 Ves. 375;
Givens v. Colder, 2 Desau. 172.

The old rule was, either to demur, to plead upon something
dehors the bill, or by a negative plea, or to answer throughout.
And a wish has been expressed, even by one who seems to admit
the correctness of some of the exceptions to this rule, that when-
ever a party is not bound to answer the interrogatories put, he
should be obliged to take advantage of it by demurrer. But this
new mode of proceeding, for such it is said to be, although the
first instance of its allowance occurred as far back as the year
1661, has been stigmatized as a kind of incomprehensible nonde-
script. It is called a sort of illegitimate pleading; or a species of
plea, which is neither a plea, answer, or demurrer, but a little of
each: the various, and discordant opinions of some eminent men;
that it was impossible the forms of pleading could be permitted to
stand as altered by those reported cases; and that when the ques-
tion came for decision it would be infinitely better to decide,
that the objection to discovery should be made by plea; rather
than by answer. Randal v. Head, Hard. 188; Selby v. Selby, 4 Bro.
C. C. 12; Dolder v. Huntingfield, 11 Ves. 283; Faulder v. Stuart, 11