Coster v. Murray

The exceptions to the answer were well taken. It was not a full and perfect answer to the bill, within the terms or meaning of the order of the 11th • of December, 1821. It was nothing more, in substance and effect, than a repetition of the plea of the statute of limitations, after that plea had been overruled, and the decretal order *171overruling it, and requiring the defendants to put in “ a full and perfect answer to the bill,” affirmed in the Court of Errors. If it had been intended that the statute of limitations should appear again in the answer as a positive bar to the whole discovery and relief, and that the merits of the bill might go unanswered, the order would not have thus absolutely overruled the plea, but wouldhave allowed it to stand for an answer, with liberty to except. After a plea of the statute has been once technically pleaded, and formally discussed, considered and overruled, and again solemnly discussed and overruled upon appeal, and a full and perfect answer required by the order of both Courts, and an effort to have the decretal order of this Court modified, so as to allow the plea to stand for an answer, has failed, it surely cannot, upon any reasonable principle, be permitted to the party to escape from the order in this way, and bring the very same matter again into discussion. It is conformable to the good sense of pleading, that a defendant should not twice refuse to answer the bill. If a plea be overruled, you may move for a rehearing, or for leave to amend, but you cannot again plead the same plea. If a plea could be re-pleaded, it would not, as Chief Baron MacDonald observed, in Freeland v. Johnson, (2 Anst. 407.) do its office. It would not have the effect of saving litigation, but would encourage the defendant to try it as an experiment to save time. It was held, upon the same ground, in Baker v. Mellish, (11 Vesey, 68.) that a defendant could not demur a second time, without leave specially given, even though it should be a more restricted demurrer. It would be calling upon the Court to rehear the former judgment, in a manner contrary to the usual course and settled practice.

I do not know of any case in which, bnder such circumstances, such an answer has been held good. If a second plea be not admissible, I should apprehend it must be equally inadmissible, when it comes varied only in point of form, but with the same matter and the same preten*172sion, in point of substance. There is no foundation in authority for such an answer, in any of the cases which have a bearing on the question.

In Harris v. Ingledew, (3 P. Wms. 94.) the Master of the Rolls, when speaking of a plea’ of purchase for a valuable consideration, which had omitted to deny notice, said, that “ if it was overruled, the defendant might still help himself, by putting all his defence in his answer.” This observadon^ has no application to the case before me; for it does not appear that the Court would not have required the answer to meet fully all the charges in the bill, and which might have been done consistently with the averment of notice. Again, in Finch v. Finch, (2 Ves. 491.) an answer was reported insufficient, and the defendant submitted to the report, and put in a further answer, insisting on the same matter. Lord Hardwicke held, that the defendant was not absolutely precluded, “ for the matter had not undergone the judgment of the Court.” He there observed, that “ a plea could not be put in a second time, if once overruled;” but he observed, that “ the Court frequently allowed a defendant, after a plea was overruled, to insist lipón the same matter by answer.” In Hoare v. Parker, (1 Cox, 224.) Lord Thurlow said, “ there was no instance, after a plea to a bill for discovery only was overruled, of the same thing being allowed to be insisted upon by answer.” I apprehend that there is no case where it is allowed, even to a bill for relief, without the leave of the Court; and, perhaps, even this distinction of Lord Thurlow may 'well be doubted. Where the discovery would lead to a forfeiture, or to corporal punishment, a demurrer to the discovery, after a plea had been overruled, was allowed, in the case of the East India Company v. Campbell, (1 Ves. 246.) And in the case of the Earl of Suffolk v. Green, (1 Atk. 450.) a demurrer to so much of the bill as charged usury, was overruled; not because the demurrer could not have been sustained, if it had been confined to *173that part of the bill; butbecause, it was extended to inadmissible ground, and was overruled in toto, upon the principle that if it be bad in part, it is bad in the whole; but it was especially declared to be without prejudice to the right to insist, by way of answer, against making any discovery touching the charge of usury. Whatever exception there might be to the rule in such special cases, there is none applicable to this case, and the defendant must make a full answer and discovery as to the charges in the bill.

I shall, accordingly, overrule the exceptions to the Master’s report, allowing the exceptions to the answer, and direct the defendants to answer the six first exceptions to the answer, within three weeks, and pay to the plaintiffs their costs of all the exceptions, and of the reference and argument upon the exceptions to the Master’s report, to be taxed; and that the Master strike out that part of the answer reported by him to be irrelevant and impertinent.

Order accordingly. •