Bellows vs. Stone & a, 8 N.H. 280

Parker, J. The questions presented for consideration at this time, relate solely to the form and effect of the pleadings. The defendants contend, that the plaintiff having filed a general replication to their plea, nothing is now in controversy but the truth of the matters alleged in the plea, and that it is too late for the plaintiff to except to the sufficiency of the plea ; and the authorities seem to us fully to sustain this position. Cooper’s Eq. Pl. 328; Barton's Eq. 143, note; Blake’s Ch. Practice 123; 2 Eq. Cas. Abr. 70, Parker vs. Blythmore; ditto 74; 3 P. Wms. 95, Harris vs. Ingledew.

It is like demurring after joining an issue of fact, at law. If the pleading does not contain a full answer to the matters charged in the bill, the course is to set it down to be argued, or to except to its sufficiency, and not to reply. As the case stands, therefore, the exception of the plaintiff to the plea must be overruled.

But as the plaintiff may, by leave, withdraw his replication, and then raise the question whether the plea is sufficient, we have considered this matter; and are of opinion that the defendant’s pleading is insufficient, because the plea does not contain a full answer to the matters set forth in the bill, and because there is no answer in support of the plea.

The plaintiff alleges, in substance, that Stone and Bellows, at his request, gave their note for a loan, for the plaintiff, of ,f2900, and to secure them he procured to be made to them a certificate, entitling them to receive from the effects of Thomas Carlisle & Co. the sum of $5300 — that he also procured Thomas Bellows to sign said note, as surety, and mortgaged his farm to secure the payment of the money mentioned in the certificate — that $2600 have been paid by him, and by means of the certificate — that a conditional judgment has been entered upon the mortgage for $5000, under an agreement by which that was to stand as a nominal judgment, subject to be reduced to the true sum, on report of an auditor — that by mistake, or accident, the agreement is so drawn, that the plaintiff, under the construction given to it by the auditor, cannot obtain any reduction of the amount — and that the defendants hold the farm and the certificate, and refuse to account.

The plea denies that the judgment is a nominal judgment, or that there is any mistake, or accident, in the entry of it, or in the agreement, or that the plaintiff has ever availed himself of the agreement by which it might be reduced, and alleges that it has become absolute and conclusive — that said Thomas Bellows has taken peaceable possession, and held the farm for a year, whereby the right to redeem is foreclosed, and then sets up the judgment and possession in bar of the bill. This is not sufficient.

As to the certificate nothing is said, and the plaintiff may perhaps be entitled to maintain his bill in relation to that, if the mortgage is foreclosed. And, moreover, the plea should not only have contained a full defence to the equity set up in the bill, so far as it professed to bar the plaintiffs claim, but it should have been supported by an answer, verifying the truth of the facts contained in it.

It is settled, that when a plaintiff in equity seeks to be relieved from a judgment, or decree, award, or release, &c. by reason of equitable circumstances, charged in the bill, and which will avoid it, and the defendant pleads the judgment, or decree, &c. in bar of the relief, he must not. only deny the allegations in the bill upon which it is sought to be impeached, but must accompany his plea with an answer, denying them as specially and particularly as they are charged. 6 Ves. 594, Bailey vs. Adams; 3 Johns. Ch. Rep. 391, Goodrich vs. Pendleton; 4 Johns. Ch. Rep. 693, Allen vs.

Randolph; 1 Vernon 185, Price vs. Price; 3 Atk. 303, Hildyard vs. Cressey; ditto 815, Radford vs. Wilson. Or, as the principle is stated in Bogardus vs.

Trinity Church, 4 Paige’s Rep. 178, 195, “ where the complainant states a variety of matters in his bill, which if admitted to be true would be evidence to counterprove the allegations of the plea, it is necessary to negative such matters by general averments in the plea, and to support the plea by an answer as to such matters.” The reason seems to be, that the plaintiff is entitled to have a particular discovery, on the oath of the defendant, in relation to such matters, and to have, also, an opportunity to contradict his statement, if untrue, by evidence.

Leave to withdraw the replication, and to file an answer.