30 F. 523 | U.S. Circuit Court for the District of Massachusetts | 1887
The defendant moves for leave to filo a demurrer to the whole hill, and at the same time several pleas. Equity rule 32 provides that “the deiendant may, at any time before the bill is taken for confessed, or afterwards, with the leave of tlie court, demur or plead to the whole bill, or to part of it, or he may demur to part, plead to part, and answer as to the residue.” According to the practice of English courts of chancery, “a defendant may demur to one part of a bill, plead to another, answer to another, and disclaim as to another. But all these defenses must clearly refer to separate and distinct parts of the bill. For the defendant cannot plead to that part of the bill to which he lias already demurred; neither can he answer to any part to which ho has either demurred or pleaded, the demurrer demanding the judgment of the court whether lie shall make any answer, and the plea whether ho shall make any other answer than what is contained in the plea.” Mitf. & T. Eq. PI. 411.
It was held in Crescent City Co. v. Butchers’ Co., 12 Fed. Rep. 225, that there was no rule which allows a defendant to demur to the whole bill, plead to the whole bill, and answer to the whole bill at the same time, that the effect of such pleading is that the plea is taken as waiving the demurrer, and the answer as waiving the plea. 1 Daniell, Ch. Pl. 787, 788. It may be said, therefore, that to grant this motion would bo contrary to the regular and orderly course of pleading in equity causes.
But it is urged by the defendapt that it is within the discretion of the court to grant this motion; that, under the authority of Poultney v. City of La Fayette, 12 Pet. 473, every court of equity possesses the power to mould its rules in relation to the time and manner of answering, so as to prevent the rule from working injustice: and that it is not only in the power of tlie court, but it is its duty to exercise a sound discretion upon the subject when the purposes of justice require it; and further, that the rules prescribed by the supreme court ivere not intended to deprive the courts of the United States of this well-known and necessary power. Assuming the power of the court to grant the motion now asked for, (upon which I am not entirely free from doubt,) I am clear it should not be exeicised unless for good and sufficient reasons, and to prevent injustice.
A proper plea is a defense such as reduces the cause, or some part of it, to a single point, and from thence creates a bar to the suit', or to the part of it to which the plea applies. 1 Daniell, Ch. PI. 603. So far as this plea proposes (and this seems to be the main ground of the motion) to set up prior litigation respecting these patents, no bar or es-toppel is shown such as would constitute a good plea, because it does