In this case, on a demurrer to the bill, the court, by a decree entered at the March Term for the County of Kent, A.D. 1873, 10 R.I. 382, 393, sustained the demurrer so far only as it related to any claim for profits or joint interest, and the respondent now moves for a decree supplemental to and explanatory of that decree, specifying the portions of the bill eliminated from and stricken out of said bill by said former decree.
The allegation in the bill as to promises of profits and joint interest are so mixed up with the general narrative of facts from which the complainant claims the right to draw certain inferences as to the mutual relations of the contracting parties, — relations as he expresses it of trust and confidence, throwing more or less light upon the subsequent agreement, that we do not see how they can very well be separated.
The complainant has a right to allege such facts and grounds of complaint as he considers will support his claim to relief; and while the court adheres to its former decision that certain grounds for relief, which the complainant thinks he has stated, are not sufficiently stated, we doubt the propriety of eliminating any particular passages from the bill.
In the course of the argument on the present motion, it is intimated in one of the printed briefs that several previous decisions of the court made in this case are erroneous.
First. It is said, referring, we suppose, to the decision of April 6, A.D. 1874, that contrary to the practice in equity the court has allowed an amendment of a plea where an answer has been filed, and reference is made to Daniel Ch. Pr. 4th ed. 703, which cites only one case, Thompson v. Wild, 5 Madd. 82.
If the person who prepared the brief had looked beyond his text-book, he would have discovered that the case cited does not go the length stated in the text; and that there are numerous *Page 19 cases where, when a plea has been supported or accompanied by an answer, the plea, and sometimes both, have been allowed to be amended.
In the case cited, Thompson v. Wild, 5 Madd. 82, a plea of release was supported by an answer. Leave had been given to amend the plea; and besides amending the plea the sworn answer was also altered in some material passages. Sir John Leach[1] observed that there was so much inconvenience in allowing any alteration in an answer that he should not, as a general rule, in future give leave to amend a plea supported by an answer. He overruled the plea, but let it stand for an answer.
Sir John Leach himself afterwards, in Watkins v. Stone, 2 Sim. Stu. 560, where a plea was accompanied with an answer, allowed the respondent to withdraw the plea and file a new one.
In Davies v. Davies, 2 Keen, 534, which was a plea of settled accounts, accompanied by an answer to the excepted parts, denying the fraud, Lord Langdale allowed the plea to be amended.
In Phelps v. Sproule, 1 Myl. K. 231, 237, was a plea of settled accounts and release, supported by an answer. The chancellor allowed the plea to be amended. The plea lacked the averments denying the collusion charged in the bill.
In Bayley v. Adams, 6 Ves. Jun. 586, 598, 599, which was so thoroughly discussed, where a plea was supported by an answer, Lord Eldon gave leave to amend the plea, or both plea and answer, as counsel might choose.
In Allen et al. v. Randolph et als. 4 Johns. Ch. 693, a release was pleaded without averments denying the fraud charged in the bill. The plea was accompanied by an answer supporting the plea and denying the fraud. Chancellor Kent allowed it to be amended.
In Leaycraft v. Dempsey, 4 Paige, 124, there was a plea of stated account, with an answer. Chancellor Walworth held the plea defective, but said it would be of course to amend it; but ordered it to stand for an answer, and declared it a good defence if proved. The decree was subsequently confirmed by the Court of Appeals, 15 Wend. 83, but no question was raised in the appellate court upon this point. *Page 20
In Foley v. Hill, 3 Myl. C. 475, 483, was a plea supported by an answer denying part of the charges. Lord Cottenham held the answer not sufficient, but said if respondent's counsel could effect their object by amending, he might permit it. But he thought it could not be done in that case.
In Portarlington v. Soulby, 6 Sim. 356, was a plea supported by an answer. The vice-chancellor overruled the plea, but allowed the respondent to plead de novo, and the respondent put in both plea and answer anew. When these came on, the vice-chancellor again overruled the plea, but let it stand for an answer, with liberty to except.
In Meeker v. Marsh, Executor, 1 Saxt. 198, was a plea of stated account supported by an answer. The Court of Chancery of New Jersey allowed both to be amended. The bill prayed for an account and to set aside a stated account and a receipt given upon it.
These cases ought to be sufficient. Two general principles may be traced through all the cases: a. To use great caution in allowing amendments of a sworn answer or other pleading; b. To consider whether the plea was so defective in substance that an amendment would be of no use; and even in such cases leave has often been given to withdraw the plea and file a new one.
But, subject to these considerations, courts of equity have always exercised the right to allow amendments of pleas in all cases.
Second. The counsel ask in their brief for a precedent where, to a bill to open and correct an account, the account itself has been pleaded in bar.
With proper averments of course it may be, and in this case the court allowed the averments to be added.
Pleas of stated account (where the bill seeks to open and correct) are regulated by the same principles which regulate all similar anomalous pleas.
To a bill to impeach a decree for fraud the decree itself is pleaded.
To a bill to set aside an award the award is pleaded. So to a bill alleging circumstances to take an account out of the statute of limitations the statute is pleaded. So as to a release. InPusey v. Desbouvrie, 3 P. Wms. 315, A.D. 1734, to a bill alleging *Page 21 that though a release had been given, there was property not covered by the release, and asking for an account, the respondent pleaded the release. The complainant objected that the release could not be pleaded in bar, as the very object of the bill was to set it aside. Lord Talbot replied that it was every day's practice.
The books are full of cases of bills filed to open settled accounts for either fraud or error, in which the account itself is pleaded in bar with proper averments. The principle is the same in regard to accounts stated, but not actually settled.
In Knight v. Bampfeild et als. 1 Vern. 179, A.D. 1683, before Lord Keeper Guilford, the bill claimed relief against a stated account as not fairly stated, alleging that by collusion more had been allowed than was really due. The stated account was pleaded.
In Willis v. Jernegan, 2 Atk. 251, to a bill to set aside an agreement and to open an account, a stated account was pleaded.
In De Montmorency v. Devereux, 1 Dr. Wal. 119, 127, to a bill to set aside a deed so far as it confirmed a former deed, and operated as a release, the deed was pleaded in bar. (Same case in 2 Dr. Wal. 410.)
The doctrine as to pleas of account stated is so recognized and laid down by Chancellor Walworth in Weed v. Smull et als. 7 Paige, 573. It is difficult to see how it could be otherwise without changing the whole system regulating what are called anomalous pleas or pleas not pure. The bill claims an account, and, instead of reserving it for a replication, charges that the respondent sets up a pretended stated or settled account as an excuse for not accounting, and then goes on to allege circumstances of fraud or error as reasons why this pretended bar should be set aside or not avail him. The respondent has in most cases no other defence, except to rely in his plea on the stated account, and to deny the fraud or error charged as Sir John Leach says in Cork v. Wilcock, 5 Madd. 328, 330: "Where the plaintiff in equity seeks to avoid a legal bar upon equitable grounds, there the defendant in equity pleading the legal bar must of necessity accompany his plea with averments generally denying the equitable matter; for otherwise there would be no fact to be tried upon his plea, because the bill admits the legal bar." See also Foley v. Hill, 3 Myl. C. 475, 480, 483. *Page 22
And that even in cases where the defence is made by formal plea supported by answer, and not by answer alone, the plea itself should contain these averments, has only been settled in comparatively modern times.
If the bill is for an account generally, the respondent may then plead a stated or settled account or release, and the complainant may indeed dispute the fact, but he cannot ask to set it aside for error or fraud without amending his bill and specifying the particular errors. Weed v. Smull et als. 7 Paige, 573; Dawson v. Dawson, 1 West, Temp. Hardwicke, 171; also in 1 Atk. 1; Sumner v. Thorpe, 2 Atk. 1. See alsoTaylor v. Hayling, 1 Cox, 435; and Knight v. Bampfeild etals. 1 Vern. 179.
Third. The brief states that the respondent had submitted "stated accounts without allegations denying the charges in the bill. The court held them to be necessary, but by a confessednovelty in equity pleading considered the denials of the answer as part of the plea."
This is a criticism on the decision of July 16, 1870,9 R.I. 401, 408. If the statement of facts in the brief was correct, the decision would have been a novelty in equity pleading as it has been settled in modern times. But there was no plea in the case. The defence set up in the answer was for convenience' sake spoken of by both the court and counsel as a plea, and in order to settle the legal questions before going into evidence was argued as such; but it was really an answer; and it was on this ground that the decision in 9 R.I. 408 was based. The counsel did not then, nor do they now, refer to any authority on the point. It was merely, as the court thought, a common sense application of old principles to a new case.
A plea must be complete in itself, because that generally makes the issue to be tried. In case of an answer, the replication is to the whole answer, and not to any special defence set up in it; and if issues are needed for the jury the court must frame them, taking both bill and answer into consideration.
If the counsel had desired a reargument or reconsideration of either of those questions, it would no doubt have been cheerfully granted; and that, if asked for in time, would have been the better course.
Motion denied. *Page 23
A jury trial of the questions of fact in this case was under the Rhode Island statute claimed by the complainant, and the case came before the court on the form of the issues to be sent to the jury.