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SALMON v. CLAGETT 151
The plaintiff claimed tithes according to a particular custom. The
custom being denied by the answer, it was held to be sufficient;
and to preclude the right to the discovery prayed, (e) A plaintiff
claimed as next of kin; the answer denied his being next of kin;
and it was considered as sufficient, and a bar to the discovery called
for. (d) A plaintiff claimed as a partner; a denial of the partner-
ship, by way of answer, was deemed sufficient, and a bar to the
discovery, (e) The plaintiff alleged, that his claim arose from a
specified mode of dealing, the answer denied the mode of dealing;
and it was held to be sufficient, and a bar to the discovery, (f)
These are all the cases, that have fallen under my observation in
which the exception was produced by a negation in the defendant's
answer.
I have met with two cases, furnishing but one instance of an ex-
ception, arising from an averment of some new matter in avoid-
ance; and that is, where the defendant alleged, that he was a pur-
chaser for a valuable consideration without notice. In the first of
them, the answer was held to be sufficient, and a bar to the dis-
covery required by the bill, (g)
Such have been the adjudications upon this subject; but, as it is
the reason and spirit of cases which make law, and not the letter of
particular precedents, we may be permitted to investigate the
solidity of the reasons of these decisions. The reports of some of
them furnish no reason of any kind; and therefore, I shall not ven-
ture to guess at what might have been the reasons on which the
judgment of the court was founded.
In the one of these cases in which the plaintiff demanded tithes
according to a particular custom, the court is reported to have said,
that where there is a full answer given to the thing in demand, till
that be tried, the defendant is not obliged to discover; otherwise,
any plaintiff might, upon a feigned suggestion, compel a defendant
to discover what writings he has, or what goods, or other thing
whatsoever, upon pretence, that he is joint-tenant with him; and
so what he has gained by his trade, which would be strangely in-
convenient, (h) In another of them, where the alleged partnership
was denied only in the answer; in reply to the argument, that the
defendant could only have protected himself from the discovery by
(c) Randal v. Head, Hardr. 188,—(d) Sweet v. Young, Amb. 353.—(e) Hall v.
Noyes, 3 Bro. C. C. 487; Jacobs v.Goodman, 2 Cox, 282.—(f) Donnegal v. Stew-
art, 3 Ves, 446.—(g) Jerrard v. Saunders 2 Ves., jun., 458; Ovey v. Leighton, 1
Cond, Cha. Rep, 433.—(h) Randal v. Head, Hardr. 188.
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