In this case our attention has been again called by the counsel for the complainant to certain portions of his brief, and some authorities which they suppose we may have overlooked, and although an order has been entered, we have still thought best to consider them again.
The respondent had made the defence of stated accounts by answer, and subsequently after bill amended put in a formal plea to that effect. If it had been intended to object to this, the proper time was when the order was made allowing it.
But if the objection grows out of the fact that after the amended plea was filed, July 2d, the respondent, on July 11th, filed an answer containing certain statements more or less relating to the same defence, it may be well to consider it.
The respondent, who to a bill of the character of the present bill, alleging that the complainant anticipates that a certain defence is to be made, and setting up his grounds for avoiding or setting it aside if made, sets up by plea the defence so anticipated, is required not only to deny in his plea the fraud or the matter set up by way of avoidance but also to file an answer containing in substance the same denials.
The reasons for this we have before stated. By an established rule, a plea cannot be excepted to. And the complainant therefore is entitled to have the same denials made by answer in order that he may except to them.
Has the respondent done anything more than this in his answer?
It might have been sufficient, in making the necessary denials, to have mentioned the accounts by referring to the plea, but we cannot see any objection to the form adopted.
Has the respondent in his answer given any discovery or answered any matter which by his plea he objects to answering? In this case the plea would be so far overruled. He was obliged to make the denials. We cannot see that he has done anything more.
The complainant is entitled, notwithstanding the plea, to a discovery and answer as to everything which might be of use in *Page 35 deciding on the plea, and as to everything which, if true, would displace the plea. Story Eq. Plead. §§ 684, 686, 687.
It is not every answer which overrules the plea, but only answering what the respondent has objected to answering. Wigram on Discovery, § 219; Gilbert, Forum Rom. 58. A defendant may demur to the relief, and yet give all the discovery. Wigram, 2d ed. p. 151. While it must be allowed that especially in the early cases, before many points of practice were settled, there were many decisions of which it is difficult from the report of them to see the reasons, the tendency of the courts lately, both in rules and decisions, has been to do away with mere technicalities, and to enable the parties to separate out the real matters in dispute and present them for decision as soon as possible.
And nothing is gained to either party by overruling the plea. When that has been done, the benefit of it has generally been saved to the respondent at the hearing, or it has stood for an answer. Even in a case (Cooth v. Jackson, 6 Ves. Jun. 12, 17) where a respondent made one defence by his plea and another by answer, Lord Loughborough, while overruling the plea, ordered it to stand for an answer.
We have said in a previous opinion that even where the defence is entirely by answer, if the court can see that the decision of any particular point may end the case, they might and would require the parties to take up and settle that in the first place before going into the case at large.
And where the defence is by answer, if the court are required to frame issues for the jury, they must be guided by substantially the same rules as have guided them in the present case. They must, as we have done here, distinguish between what are disputed matters of fact proper for issues, and other matters which, though having a bearing on the case as evidence, yet are not proper for issues, because they would decide nothing if found for either side.
We see no reason for reconsidering our former opinion.
Subsequently, by agreement between the parties, the case was submitted to referees under a rule of the court. *Page 36