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148 SALMON v. CLAGETT.
eases where the act of Assembly allows the plaintiff to proceed on
the default of the defendant, it is provided, that whenever the bill
shall charge any matter as being within the private knowledge of
the defendant, the plaintiff may, on making affidavit, in open
court, that such matter does rest in the private knowledge of the
defendant, have the bill, as to such matter, the same being suf-
ficiently alleged, taken pro confesso, and have a final decree accord-
ingly, (t) But where the relief sought can be obtained without
the discovery of any fact by the defendant, the plaintiff may, at
once, have a decree, without either interrogating the defendant, or
making any affidavit of the truth of the facts alleged in the bill as
to which the defendant ought to have answered.
The meaning of a demurrer, or a plea, is to intercept, in an
early stage, a cause which must ultimately end in nothing; (u) or
to prevent a discovery, that may be prejudicial to the defendant.
It is, therefore, important, in most cases, that a defendant should
not, by any slip or mistake, lose the benefit 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 can-
not be thus sustained, the court, after argument, by special leave,
has permitted the defendant to demur to part of the bill only; con-
sidering it as a kind of amended demurrer; since a demurrer can-
not, like a plea, be held good in one part and bad in another; (w)
or a demurrer may be overruled, without prejudice to the defen-
dant's insisting by way of answer against making a particular dis-
covery, which is, in effect, allowing the demurrer to stand for so
much. (x) 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be incapable of amendment, that it may be withdrawn and an
entirely new one filed. The court upon this subject exercises a
sound discretion, 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. (y)
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(t) 1820, ch 161, s. 2.—(u) Freeland v. Johnson, 2 Anstr, 407.—(w) Baker v.
Mellish, 11 Ves, 68,(x) Suffolk v. Green, 1 Atk, 450— (y) Freeland v. Johnson,
2 Anstr. 411; Beam Plea. Equ, 329.
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