Saltus v. Tobias & Seaman

The Chancellob.

The old books are said to abound

with instances of double pleas allowed. In Bohuns’ Cur. Can. p. 187. and Wyatt’s P. R. 328. it is stated that all or several matters pleadable in bar, as the statute of limitations, of frauds, &c. might be pleaded together. So in a MS. of Lord Jfottingham, cited by Mr. Hargrave, (1 Jurid. Arg. 482.) it seems to be implied that several pleas in bar might be pleaded at the same time.

This is, perhaps, the amount of the authorities on that side of the question, for the case of Ashurst v. Eyres, (3 Atk. 341.) is a very loose report, from which it xvould appear, several distinct matters of defence were all thrown together in one single plea, and the plea held good. I should apprehend that a plea filled with such multifarious matters, havingno dependence on each other, was inconsistent with alt the rules of good pleading. The question is, whether two distinct pleas, each of which contains matter well pleaded, and constituting a bar to the relief, be admissible in this Court, without any previous leave, or order, to warrant them. The modern books, and the modem cases, seem uniformly to condemn double pleas, and to require that the plea in bar shall reduce the matter to a single point.

The question was much discussed before Lord Thurlow, in Whitbread v. Brockhurst, (1 Bro. 404. 2 Ves. & Bea. 153. note, S. C.) and he held, that two pleas, applying to cases of different natures, and distinct, not only in the form of the plea, but in the point of equity raised by them, were inadmissible. The reason why this Court does not admit such pleas, containing different and distinct points, is, that you may put all the different circumstances together in your answer, which you cannot do at common law. There is, therefore, not the same reason in equity as at law, for pleading double. The use of a plea here is to save time, expense and vexation. If one point will put an end to the whole cause, it is important to the administration of justice, that it should be pleaded; but if you are to state many matters, the answer is the more commodious form to do it in. If the defendants might be permitted to bring two points, on which the cause depends, to issue, by his plea, he might bring three, or twenty, and so on, until all the matters in the bill are brought to issue by the plea.

The reasoning of Lord Thurlow, is supposed to be weighty and decisive; and since that time, it has. been the constant language of the Court, that the plea must reduce the defence to a single point, and that a defendant can never plead double. (2 Ves. jun. 84. 6 Ves. 17. 2 Ves. & Bea. 150. 3 Madd. Ch. Rep. 8.) There is not the same necessity here, as at law, for this kind of pleading, as the plea is not the only mode of defence.

In the recent case of Gibson v. Whitehead, (4 Madd. Ch. Rep.) the Vice Chancellor said, it was not the ordinary practice, to admit a double plea; but it lay with the Court, upon special application, to allow it, and such a favour was granted, upon motion, in that case.

The result, then, is, that the defendants must be put to their election in eight days, to take the plea they will abide by, and that the other be overruled.

Order accordingly.