|
|
|
|
|
|
|
|
|
|
|
SALMON v. CLAGETT. 149
If the demurrer and the plea be entirely overruled, still the de-
fendant may, in general, advance and rely upon the same matter
in his answer; and have the benefit of it at tie hearing, (z) 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, (a)
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
liberality some of them may be amended so as to answer the pur-
poses 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, re-appear, accompanied with additional em-
barrassment. 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 matter of avoidance, embodied in an answer,
is admitted to be one of the ancient established modes of defence;
and the point is, whether a defendant who has omitted or failed,
by a demurrer, or plea, to protect himself from making the disco-
very required by the bill, shall, in any or what case, be allowed to
do so by means of this defence of a negation or matter in avoid-
ance relied upon only by way of answer. Consequently, the ques-
tion now to be decided is, whether this new use can, before the
hearing, be made of this ancient mode of defence.
Where the bill sets forth various facts as the constituent parts of
that case, which entitles the plaintiff to the relief he asks, it is ob
vious that if the defendant, by plea, denies and invalidates any
material one of them, he breaks up the plaintiff's whole case, and
destroys his right to recover. Thus, if the plaintiff avers his right
to a share in a certain trade as a partner; and, as such, calls for a
discovery and account. The fact of his being a partner is an
essentially constituent part of his case; it is the first or principal
(z) 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.—
(a) Hoare v. Parker, 1 Cox, 224,
|
|
|
|
|
|
|
|
|
|
|
|
|
 |
