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SALMON v. CLAGETT, 155
litigation, but encourage defendants to try it as a daily experiment
to gum time, (r) The case referred to, of the purchaser without
notice, was, in fact, one of that kind. The defendant, in that
very case, had pleaded the fact of his being a purchaser without
notice; and having failed to sustain his plea, as a protection
against the discovery required of him, he presented the same mat-
ter in his answer for that purpose, and succeeded, (s)
The adjudications upon which these exceptions to the rule rest,
stand opposed, however, by high and venerable authority. They
have never been respectfully acquiesced in; nor passed by, at any
time, without question, or impeachment. They have introduced
an anomalous form of pleading; and, have, to the extent of their
bearing, distracted the principles by which proceedings in Chan-
cery had been previously well regulated. According to the orderly
and regular course, a defendant is always expected to resort to
a plea as a means of introducing any negation or new matter on
which he proposes to rely, for the purpose of putting a stop to
further litigation, or of protecting himself from any useless, or
injurious disclosures; since it is much to be wished, that the plain-
tiff's title should, in every instance, be established before he has
the discovery, (t) 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, (u) And, upon this ground, it has also been held,
that if the fact of partnership, being a component part of the
plaintiff's title, be denied in the answer; or an averment be made
therein, that the partnership had been determined; it shall not pro-
tect 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, (w.) 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 respecting the agreement; because, although
as against a mere parol agreement, the statute was a bar; yet as,
after he had stated the agreement, the plaintiff might be able to
(r) Freeland v. Johnson, Antr, 410.—(s) Jerrard v. Saunders, 2 Ves,, jun., 187,
454,—(t) Newman v. Wallis, 2 Bro. C. C. 143.—(u) Richardson v. Mitchell, Sel.
Ca, Cha. 51; Hall v. Noyes, 3 Bro. C. C. 488 —(10) Cartwright v. Hately, 3 Bro. C.
C. 239; Hornby v. Pemberton, Mosely, 57; ———v, Harrison, 4 Matt, 252; Leon-
ard v. Leonard, 1 Ball & Bea. 323
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