THIS was an appeal from a decree of the vice chancellor of the first circuit allowing a demurrer to the complainants' bill, and dismissing the bill with costs. The bill was filed by the complainants, in behalf of themselves and of the other descendants of Annetje Jans Bogardus, and the heirs at law of her children, grand children, and devisees, for the recovery of certain tracts of land in the city of NewYork, in the possession of the defendants; and for an account of the rents and profits of the same. Various objections were raised by the demurrer to the complainants' right to discovery or relief; and among others, that it was not alleged in the bill that the complainants, or those under whom they claimed title to the lands in the possession of the defendants, had been in possession of any part of such lands, since 1785; nor was it alleged that the defendants since that period had ever admitted or acknowledged that the complainants, or those under whom they claim title, had any right, title, estate, or interest therein, or in the rents and profits thereof; but on the contrary, that it appeared from the face of the bill that from 1785, down to the time of the commencement of this suit, the defendants had been in the exclusive and uninterrupted possession of the premises, under claim of title.1

THE CHANCELLOR [Walworth]. Various objections to the bill in point of form are raised by the demurrer, some of which I think are well taken; but as these might probably be obviated by amendments of the bill, I prefer to put my decision in this case upon an objection which goes to the merits, and which unquestionably cannot be obviated in any form of proceeding which can be adopted, either in this court or elsewhere. That objection is that the rights of the complain

the above facts be demurrable? Nunn v. Boal, 29 Ohio App. 141 (1928). Cf. Leathers v. Deloach, 140 Tenn. 259, 266 (1918).

In Soltau v. De Held, 2 Sim. N. s. .133 (Ch. 1851), Kindersley, V. C., said (p. 151): “... Equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law: there is no such thing as an equitable nuisance but it is no ground of demurrer that the matter has not been tried at law. It very often is a ground for refusing an injunction; but it is not ground of demurrer." See, accord, Sprague v. Rhodes, 4 R. I. 301, 304-308 (1856). Contra: Varney v. Pope, 60 Me. 192 (1872). See also Coe v. Winnepisiogee Lake C. & W. Mfg. Co., 37 N. H. 254 (1858).

1 For the history of this famous litigation, see 2 Fiske, Dutch and Quaker Colonies in America (1899) 258-259; Bogardus v. Trinity Church, 4 Sandf. Ch. 633 (N. Y. 1847).

ants, if those under whom they claim title had such rights as stated in the bill, are barred by lapse of time.

It is evident from the complainants' own showing that the defendants had been in the exclusive possession of the premises in controversy, claiming the same as their own, for more than forty years previous to the commencement of this suit; and no sufficient excuse is shown to take the case out of the general rule, that a suit in equity is barred by lapse of time if it is not instituted within twenty years after the complainants' right to commence proceedings in this court accrued. This rule is so well settled that it would be a useless waste of time to review all the decisions in this country and in England on the subject.1 . . . Here if the complainants would have had a right to come into this court, upon the case made by the bill, had such bill been filed in time, they still had a concurrent remedy in a court of common law. And in cases of that kind, time is as absolute a bar to discovery or relief in equity as it would be in a suit at law, in analogy to the statute of limitations.

It was formerly doubted whether a defendant in equity could by demurrer make the objection that the remedy was barred by lapse of time, or whether he must not resort to his plea. But it now seems to be settled, that if it appears upon the face of the bill that the suit is barred by lapse of time the defendant may demur; and that if the case is within any of the exceptions of the statute the complainant must state the fact in his bill. (Dunlap v. Gibbs, 4 Yerg. Rep. 94. Hoare v. Peck, 6 Sim. Rep. 51. Cuthbert v. Creasy, 4 Bligh's Rep. O. S. 125. Wisner v. Ogden, 4 Wash. C. C. Rep. 631. Fyson v. Pole, 3 Young & Coll. Rep. 266.) Whether the complainants' case, therefore, is one of concurrent jurisdiction, or of equitable cognizance only, the remedy was barred by lapse of time long before the filing of this bill. And the decision of the vice chancellor, allowing the demurrer and dismissing the bill, must be affirmed with costs.2

CLARK v. PHELPS.

COURT OF CHANCERY, NEW YORK. 1822.

6 Johnson Chancery 214.

CASE submitted upon the bill and answer, and demurrer, on the points presented by the demurrer. ·

1 Citations omitted.

2 See, accord, Maxwell v. Kennedy, 8 How. 210, 222-223 (U. S. 1850). So also as to laches appearing on the face of the bill. See City of Logansport v. Uhl, 99 Ind. 531, 542-543 (1884); Phillips v. Piney Coal Co., 53 W. Va. 543, 546-547 (1903). See also a valuable Note, 3 Brown, Chancery Cases (5th ed. 1820) 632, n. 1. Compare Sprague v. Rhodes, 4 R. I. 301, 308–310 (1856). As to the defense of the Statute of Frauds, see Cozine v. Graham, 2 Paige 177 (N. Y. 1830); Douma v. Powers, 92 N. J. Eq. 25 (1921).

THE CHANCELLOR [Kent] said, that the answer and the demurrer each went to the whole bill; and it is a settled rule in pleading, that a defendant cannot plead or answer, and demur to the same matter; the former will overrule the latter. It is inconsistent for a defendant to say, he ought not to answer to a bill; and yet to answer it fully. The rule appears in all the books that treat on the subject. Wms. 80, 81. 2 Atk. 284. Cooper's Tr. of Pl. 113. Beames' Plead. 40.) The demurrer was consequently overruled, and the question of costs reserved. Order accordingly.'

(3 P.

SECTION 3

PLEAS, ANSWERS AND REPLICATIONS

In FARLEY V. KITTSON, 120 U. S. 303 (1887), GRAY, J., said (pp. 315-316): "The distinction between a demurrer and a plea dates as far back as the time of Lord Bacon, by the 58th of whose Ordinances for the Administration of Justice in Chancery, 'a demurrer is properly upon matter defective contained in the bill itself, and no foreign matter; but a plea is of foreign matter to discharge or stay the suit, as that the cause hath been formerly dismissed, or that the plaintiff is outlawed or excommunicated, or there is another bill depending for the same cause, or the like.' Orders in Chancery (Beames's ed.)

1 See, accord, Droop v. Didenour, 9 App. D. C. 95, 101–102 (1896); Young v. Jameson, 307 I. 71 (1923).

But, as we have seen [pp. 623-624, supra], the defendant after answering might object to the sufficiency of the bill at the hearing, and might suggest his objections in the answer. See Campbell v. Campbell's Adm'r., 8 N. J. Eq. 738, 741-742 (1851). This practice was frequently called “demurring in the answer." But the objections thus suggested were available only upon final hearing, and not as a preliminary to final hearing as in the case of a demurrer proper.

The Federal Equity Rules of 1912, Rule 29, which abolished demurrers, provided as follows: "Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing, at the discretion of the court." A similar practice prevails in some of the states which retain a separate equity procedure.

In most of the code states demurrers are still permitted, and in some of these the defendant may both demur and answer. See pp. 200-204, supra. See also Hendler Creamery Co. v. Lillich, 152 Md. 190, 192 (1927). For the practice under the Federal Rules of Civil Procedure, Rule 12 (b) (c) (d), see pp. 212-213, 454, supra,

Even under the classical practice, a defendant might in some cases demur to part of a bill and plead or answer as to the rest. See Story, Equity Pleadings (10th ed. 1892) § 442.

26. Lord Redesdale, in his Treatise on Pleadings, says: 'A plea must aver facts to which the plaintiff may reply, and not, in the nature of a demurrer, rest on facts in the bill.' Mitford Pl. 297. And Mr. Jeremy, in a note to this passage, commenting on the ordinance of Lord Bacon, observes, 'The prominent distinction between a plea and a demurrer, here noticed, is strictly true, even of that description of plea which is termed negative, for it is the affirmative of the proposition which is stated in the bill;' in other words, a plea, which avers that a certain fact is not as the bill affirms it to be, sets up matter not contained in the bill. That an objection to the equity of the plaintiff's claim, as stated in the bill, must be taken by demurrer and not by plea is so well established, that it has been constantly assumed and therefore seldom stated in judicial opinions; yet there are instances in which it has been explicitly recognized by other courts of chancery, as well as by this court."

SALTUS v. TOBIAS.

COURT OF CHANCERY, NEW YORK. 1823.

7 Johnson Chancery 214.

THE bill sought to charge the defendants, as administrators of J. E. Seaman, (who died intestate, and who was one of the firm of Seaman & Rhind,) with the payment of several promissory notes, given by the firm, and upon the allegation that Rhind, the surviving partner, was insolvent, and that the defendants had sufficient assets. The defendants pleaded, 1st. The statute of limitations. 2d. The discharge of Seaman, in his lifetime, and subsequently to the giving of the notes, from all his debts, under the insolvent act of this state.

THE CHANCELLOR [Kent]. 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 Nottingham, 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 would 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, having no dependence on each other, was inconsistent with all 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 modern

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.1

In SIMS v. LYLE, 4 Wash. C. C. 301 (C. C. D. Pa. 1822), WASHINGTON, J.,2 said (pp. 303–304): "A plea, being nothing more than a

1 But the defendant may plead to one part of the bill and answer to the rest. See Story, Equity Pleadings (10th ed. 1892) § 693.

No attempt will be made here to treat of what defenses might be raised by plea in classical equity. For a full discussion of pleas to bills for relief, see Story, Equity Pleadings (10th ed. 1892) §§ 702-815a. As to the plea of purchase for value without notice, see Snelgrove . Snelgrove, 4 Desauss. 274, 286-289 (S. C. 1812); Langdell, Summary of Equity Pleading (2d ed. 1883) §§ 182-194.

2 Bushrod Washington, Associate Justice of the Supreme Court of the United States.