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156 SALMON v. CLAGETT.
prove something which would take the case out of the statute,
when applied to the agreement disclosed, he was, therefore, enti-
tled to a discovery of the particulars of the agreement to enable
him to do so. But if the plaintiff fails to do so, then the defen-
dant would be allowed the benefit of the statute, notwithstanding
his disclosures, (x)
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 non-
descript. 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 per-
mitted to stand as altered by those reported cases; and that when
the question came for decision it would be infinitely better to
decide, that the objection to discovery should be made by plea
rather than by answer, (y)
The inconvenience of this new mode of pleading is, that the
defence is not judged of by the court, in the first instance, as it
would be, if it were presented in the regular form of a plea; but is
brought on, in the shape of exceptions to the answer, assuming a
new, and, in this respect, a different form, more indefinite and
more expensive. By a plea, the defendant puts in issue a single
fact, or several facts constituting one defence admitting all the
other facts of the bill, and upon that the parties go to trial; if it
Is found for the defendant, the bill is dismissed; if for the plain-
tiff he has a decree; or previously thereto further inquiry is directed,
if necessary. But, in this new mode, the defendant answering
just what he chooses, issue cannot be joined on the single fact sup-
posed to be the bar; but the plaintiff, if he replies, must reply to
the answer as he finds it; and must go into long expensive proof
(x) Cooth v. Jackson, 6 Ves. 37; Howe v. Teed, 15 Ves. 375; Givens v. Calder,
2 Desau. 172.—(y) Randal v. Head, Hard. 188; Selby v. Selby, 4 Bro. C. C. 12.
Dolder v. Huntingfield, 11 Ves. 283; Faulder v. Stuart, 11 Ves, 302; Shaw v. Ching,
11 Ves. 305; Rowe v. Teed, 15 Ves. 377; Somerville v., Mackay, 16 Ves. 387.
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