3 Johns. Ch. 384 | New York Court of Chancery | 1818
This plea, with its attendant answer, is insufficient.
1. In the first place, it is multifarious, and contains distinct points. It states that the cause of action did not arise within six years, and that the plaintiff was barred by the statute of limitations; it also states, that the sole acting executrix of Phineas Miller, deceased, made her will, and appointed her daughter, Louisa Shaw, executor, and that the daughter bad proved the will. This last point seems to be wholly unconnected with any fact forming the plea
2. But I perceive a more important and stronger objection to the plea.
The defendant is charged as a trustee, and with a breach of his trust, and with fraud in the execution of it. These charges formed an equitable bar to the plea of the statute, and they ought to have been fully, particularly, and precisely, denied in the answer, put in as an auxiliary, to the plea.
The bill contains the following charges, viz. that the estator, Phineas Miller, had a large demand against the
Upon such a case, as stated by the bill, and not denied by the answer, I might well say, with Lord Hardwicke, in Brereton v. Gamul, (2 Atk. 240.) when he overruled a plea of the statute, as not being particular enough, that 6< the case was of such a nature as entitled the plaintiff to all the favour the court could show her.”
The rule is, that the equitable circumstances charged' in the bill, and which will avoid the statute, must be denied by the answer, as well as by the general averment in the plea; and the answer in support of the plea, (and which is indispensable to its support,) must be full and clear, and contain a particular and precise denial of the charges, or it will not be effectual to support the plea. The court will intend that the matters so charged against the pleader, are true, unless they be fully and clearly denied. The facts requisite "to render the plea a defence, must be clearly and distinctly averred, so that the plaintiff may take issue upon them; and the answer in support of the plea must contain particular and precise averments, to enable the plaintiff to meet them, as the object of the answer is to give the plaintiff an opportunity of taking exceptions to the traverse of the facts and circumstances charged in the bill, which, if true, would destroy the bar set up. These general principles of pleading are laid down in Lord Redes dale's Treatise of Pleading, (p. 212. 214. 236. 237.) a work of great authority on the subject; they are also to be met with in other treatises of established character. (Cooper's Eq. Pl. 227, 228. Gilbert's For. Rem. 58. Van Heythuysen's Equity Draftman, p. 443.) They are, indeed, plain, elementary rules, which I should have apprehended could not well be mistaken by the equity pleader; but we will, for a moment, look into the cases in which they have been declared and applied.
In Price v. Price, (1 Vern. 185.) the pefendant pleaded that he was a bona fide purchaser for a valuable consideration, but there being several badges of fraud stated in the bijl, though the defendant in his plea had denied them, yet, beca/use he had not denied them, by way of auswer, so that the plaintiff might be at liberty to except, the plea
Lord Hardwicke frequently noticed and supported these rules of pleading. Thus, in Brereton v. Gamul, already cited, the plea of a fine levied and of five years with non-claim, was overruled, as not being particular enough. So, in 3 Atk. 70. Anon, the bill charged, that since the death of the intestate, the administratrix had promised to pay the note as spon as she had effects, and the administratrix pleaded the statute of limitations, and that she made no promise. But the Chancellor held the plea to be too general, as there was a special promise charged; and he ordered the plea to stand for an answer, with liberty to except. Again; in Hildyard v. Cressy, (3 Atk. 303.) the defendant pleaded a fine and non-claim to a bill for a discovery whether the defendant were a bona fide purchaser, for a valuable consideration, and it appearing that the defendant had not made a complete answer, and therefore not properly supported his plea, the plea was ordered to stand for an answer, with liberty to except. In Radford v. Wilson,
The modern cases before Lord Eldon, contain the same rules.
Thus, in Jones v. Pengree. (6 Vesey, 580.) there xvas a plea of the statute of limitations, and an answer. The former.xvas objected to as multifarious, and as not covering enough; and the answer was objected to as overruling the plea by answering to the very parts to which the plea xvent, and as not answering the material charge which, if admitted, would have taken the case out of the statute. It xvas observed, upon the argument, that the plea ought to go to every thing, except the charges introduced into the bill to take the case out of the statute, and which it xvas necessary to answer. The plea was overruled as covering too much, and ordered to stand for an answer, with liberty to except; and though that case (as well as the one which followed) does not strike me as distinguished either for precision or clear distinctions, yet it is important in this respect, that Lord Eldon adopts and approves of the rule, in the very words of Mil ford, “that if any matter is charged by the bill, which may avoid the bar created by the statute, that matter must be denied generally, by way of averment in the plea; and it must be denied particularly and expressly, by xvay of answer to support the. plea.” The reason of the rule his lordship stated to be, that the plaintiff was entitled, by exceptions, to compel the defendant to ansxver precisely to all the cases put in the bill as exceptions to the statute. In the next case of Bayley v. Adams, (6 Vesey, 586.) there was a plea of the statute of limitations, sup
The result is, that a plea of the statute is bad, unless accompanied with an answer aiding and supporting it, by a particular denial of all the facts and circumstances charged in the bill, and which form an equitable bar to the plea of the statute. The plea in this case has no such accompanying answer, and it must be overruled. The usual order in such cases is, that the plea stand for an answer, with liberty to the plaintiff to except; but in some ot the cases the plea was declared to be overruled, and the defendant ordered to answer, saving to himself the liberty to insist on the statute in the answer. That is the better course in this case; for to order the plea to stand for an answer, with liberty to the plaintiff to except, would be prolonging the litigation, as we may take it for granted, from the palpable insufficiency of the plea as an answer, that the plaintiff would except, and the defendant be finally compelled to a fuller answer.
I shall, therefore, overrule the plea, with costs, and order
Order accordingly.
Vide Decouche v. Savetier, ante, p. 190—216.