Sutherland, J.
(after stating the case.) The first and principal question which arises, is, whether the appellants, after their plea of the statute of limitations had been overruled, were at liberty to insist on the same matter by way of ansiuer. If it should be held that they were not, then the exceptions to the answer are clearly well taken; as the appellants, being deprived of their bar to the relief sought, were bound to answer fully to all the matters contained" in the bill.
The point stated.
But if they were entitled to set up the same defence by way of answer, which had been passed upon and overruled, when offered by way of pica, it still remains to be considered, whether, having undertaken to answer, they were not bound to make discovery, and answer fully as to every thing that would not take away or destroy the defence of the statute of limitations.
The general position, that if a plea is overruled, the defendant may insist on the same matter by way of answer, is certainly to be found in treatises on the practice and proceedings in Chancery, of high and established character. But, like most other general propositions, it is subject to limitations and exceptions; and the extent to which it is true, can only be accurately understood by an examination of the cases from which it professedly derives its authority, and from a consideration of its bearing and effect upon other general principles of fundamental truth and importance in the administration of every system of justice. The cases which were cited and relied on by the defendant’s counsel [621] to sustain their position, are Harris v. Ingledew, (3 P. Wms. 91,) Stephens v. Gaule, (2 Vern. 701,) Finch v. Finch, (2 Ves. Sen. 491,) East India Co. v. Campbel, (1 Ves. Sen. 246,) and The Earl of Suffolk v. Green, (1 Atk. 450.)
Harris v. Ingledew, 3 P. Wms. 91.
Harris v. Ingledew, (3 P. Wms. 91,) was a case of a bill filed by the simple contract creditors of William Ingledew, after his death, to compel a sale of his real estate for payment of his debts ; he having devised his real estate subject to the payment of his debts. The bill' was filed against the devisees and others who had purchased portions of the real estate from them. One of the defendants who had thus purchased, pleaded that he was a purchaser for a full and valuable consideration, but omitted in his plea to deny notice of the will of William Ingledew. The plaintiff replied, and took issue on the plea; and the question was, whether the plaintiff, by replying to the plea, instead of setting it down to be argued, and excepting to it, had not admitted it to be a good defence in law, provided it was true in fact. And the counsel of the defendant, among other reasons which he urged in support of his position, contended that if the legal efficacy of the plea was not admitted by the replication, “ the defendant might be tricked by the plaintiff, who having found that the defendant had made a slip in his plea, might decline setting it down for argument, and reply to it, in which case the defendant would be without remedy ; for he could do no more than prove his plea; whereas, if such plea had been set down to be argued, on its being overruled, the defendant might still have helped himself by putting all his defence in his answer. The Master of the Rolls, in deciding this point, simply says, the constant course is, in case a plea be replied to, that the defendant need only prove his plea, &c.; and takes no notice of the consideration which had been urged by counsel. He neither adopts nor repels it. This case, therefore, furnishes no authority in support of the position for which it was cited. But if the language of the counsel in that case had in truth been the language of the Court, as the Chancellor, in his opinion, seems to suppose it was, it would not affect this case : first, for the reason assigned by the Chancellor, “ that it does not appear that the Court would not [622] have required the answer to meet fully all the charges in the bill.” But, secondly, and I think principally, because a purchase for a valuable consideration, -without notice of a previous charge, is both in form and substance a very different defence from a purchase for a valuable consideration, merely. In overruling the latter, therefore, when offered by way of plea, the Court would not have passed upon and decided the former. No reason, therefore, could exist, why it should not be put forth as a defence, by way of answer, if it was originally proper matter for an answer.
Finch v. Finch, 2 Ves. Sen. 491.
In Finch v. Finch, (2 Ves. Sen. 491,) all the Court decided was, that a defendant, whose answer had been reported to be insufficient, and who, without excepting to the report, had submitted to answer again, was not precluded from insisting on the same matter in his second answer. Lord Hardwicke said that it was not a proper manner of bringing the matter before the Court; but that the defendant was not absolutely precluded by the forms of the Court from doing it; that where there are several exceptions, the Court has always said, that as this matter has not undergone the judgment of the Court, they shall be suffered to go into it. If it was a single exception, perhaps it would be another matter. That it was not like a second demurrer, or a second plea, which can not be put in a second time, if overruled. - Yet, he remarked, “ the Court frequently allows the defendant, after it has overruled a plea, to insist on the .same matter by answer ; and that comes on ■the merits at hearing the cause;” taking the well established distinction, that the Court will not, after a demurrer , or a plea is overruled, grant leave to put in a second demurrer or a second plea, containing the same matter; but that it will sometimes, after a plea is overruled, permit the defendant to insist on the same matter by answer. And if he answer fully, his right again to insist on the same matter maybe reserved for discussion on the hearing upon the merits, instead of being determined upon exceptions. But if he set up the same matter in order to protect him from discovery, his right to avail himself of it ought to be determined upon excéptions, and not upon the hearing on the merits. In the first case, it may, perhaps, be put in without [623] leave having been first obtained in the latter, it clearly ought not. The case of Finch v. Finch, therefore, decides nothing that has any application to this case; and the illustration used by Lord Harwicke seems to me very clearly to show that, in a case like this, he would not have listened to a defence by way of answer, which had under gone the judgment of the Court, and been overruled by way of plea.
E. India Co. v. Campbel, 1 Ves. Sen. 246.
The East India Company v. Campbel, (1 Ves. Sen. 246,) was an information brought in the name of the attorney general, to compel .the defendant to discover how he came by the possession of certain goods in the East Indies; whether it was not by fraud.or violence; and whether they were not the property of the Indians. The defendant pleaded that he could not discover how the goods came to his possession, because it would subject him to a fine or corporal punishment, or to the penalties in the act of parliament, for carrying on trade within the jurisdiction of the East India Company. The plea having been overruled, he put in a demurrer, which was in substance, the same as his plea. The Court sustained the demurrer, but evidently upon the particular circumstances of the case. They say, it was an out of the way bill, and of a dangerous nature, by persons having no right, and founded on supposition. And after contending that a demurrer after a plea was not within the notion of two dilatories, they conclude by saying, “ but supposing it to be dilatory, a court of equity must not, merely for form’s sake, be a court of inquisition to do great injustice.” And by way of illustration, they remark, that a plea may be overruled, as a plea of purchase, without notice for want of form, covering too much, and yet it may be insisted on in the answer. This is the only observation that .has any relation to a case like this ; and the distinction between the case put and this will at once be perceived. If a plea be overruled for want of form, its merits have not been considered, or passed upon by the Court, and if it was originally proper for an answer, there may be no objection to its being presented in that shape after it has been overruled as a .plea, on some collateral point of form.
[624] Earl of Suffolk v. Green, 1 Atk. 450.
The Earl of Suffolk v. Green, (1 Atk. 450,) was the casu of a bill filed to perpetuate the testimony of witnesses to a bond, given by the plaintiff’s ancestor. The bill charged that the defendant, Green, who was the obligee in the bond, was very aged, and infirm, and that the bond was usurious. The defendant demurred to so much of the bill as sought discovery, and also to perpetuate the testimony. The demurrer was held to be bad so far as it related to perpetuating the testimony, though good as to the discovery. But a demurrer that is bad in part, is void in toto. It was therefore overruled, but liberty was expressly reserved to the defendant to insist by way of answer, against making any discovery touching the usurious contract, charged by the bill. So far, therefore,' as any inference is to be drawn from this case, it is against the right to insist by way of answer, upon any defence which has been overruled on demurrer, even on the ground of informality, unless liberty to insist on it is expressly reserved.
Stephens vGaule, 2 Vern. 701
In Stephen v. Gaule, (2 Vern. 701,) the plaintiff filed his bill to redeem a mortgage, and charged that the defendant pretended to be a jointress, and in nature of a purchaser from her husband; whereas, her husband was only an assignee of a mortgage and had no other title. The defendant pleaded her title, and denied notice of the mortgage ; but did not answer whether her husband had any other title than as assignee of a mortgage; and the plea was overruled by Lord Harcourt. Exceptions being taken to this answer, on the ground that it omitted to state whether the husband of the defendant had any other title than as assignee of the mortgage, Lord Chancellor Cowper allowed the answer to be sufficient.
The first observation to be made upon this case is, that the plea was overruled by Lord Harcourt, and the answer was decided to be sufficient by Lord Chancellor Cowper. He probably thought the plea had been improperly overruled. But the decisive objection to the case as an authority upon the point now under discussion, is, that the objection does not appear to have been taken, that the defence set up in the answer had already been overruled in tjie plea. [625] For aught that appears, liberty to insist upon the same defence may have been reserved when the plea, was overruled, or subsequently granted; or it may have been permitted simj ly, because it was not objected to.
Mitf, Plead 244.
These are all the cases cited by Lord Kedesdale, (Mitf. Plead. 244,) to support the position, that if a plea is overruled, the defendant may insist on the same matter by way of answer. They certainly show that under certain circumstances, it is admissible. But there is not one of them that countenances the idea, that a defence which is proper for a plea, after it has been presented in that shape, and discussed and maturely considered by the Court, and finally overruled upon the merits, may again be presented by way of answer. The remark of the Chancellor is therefore just, “ that there is no foundation in authority for such an answer in any of the cases which have a bearing on the question.”
Object of a plea.
The object of a plea, is to prevent further proceedings, at large, by resting on some point founded on matter stated in the plea ; (Mitf. Plead. 15 ;) and the defence proper for a plea must be such as reduces the cause to a particular point, which will bar the plaintiff’s demand, and then it is of use; because, by having the judgment of the Court upon that point, the parties are saved the expense of the examination of witnesses: (2 Madd. 299 :) or, as Chief Baron Macdonald expresses it, in Freeland v. Johnson, (2 Anstr. 410:) “ The meaning of a demurrer or plea is to intercept, in an early stage, a cause which must ultimately end in nothing; a demurrer, by something in the bill; a plea, by matter de hors. If a plea could be repeated, he observes, it would not do its office; it would not have the effect of saving litigation, but would encourage defendants to try it as a daily experiment to save time.” It is therefore an' established principle in chancery, that the same matter can not be a second time pleaded, although the first plea was overruled on a ground of form. You may move for a rehearing, or for leave to amend ; but you cannot again plead the same plea. The reason or principle on which this rule is estabfished is, that a plea is, in truth, only an excuse for not an[626] swering, on. the ground of some conclusive bar. If it is decided- to be insufficient, the ■ effect- and the presumed object" putting it in, is delay. It shall not therefore be repeated. gut jf jt pe overruled- on a point of form^- the- Court- may grant leave to amend, or the defendant may avail himself of the same matter- in his-answer,, if his answer is full and Pel'fect h1 other- respects’. He will then have the benefit of it on the-hearing: and if it should, be decided against him,, the complainant will not be' again delayed. And it may be' that- it. would- not be ground of exception to an answer,, that it contained, the same matter, which had been overrun in a previous plea, even -on the merits. If the answer was full, the- question might be reserved to the hearing, But the Court, I apprehend, would not again take the-matter into consideration, if it had already been-solemnly decided upon the plea. However this may be,, it is most manifest-,, that there is no distinction in principle, between a second, plea, which contains the' same defence that had- been overrúled in a former plea,, and an answer containing merely the same matter. The effect is- the same, if it be decided-that the matter in the answer is not sufficient to bar relief, or protect the defendant from- discovery,, and he be directed to make a full.'aild perfect answer, and the complainant is a second time- delayed, upon the same ground-, which is the, precise objection to a second plea. I. should- therefore • apprehend;, with the Chancellor,. that if a second plea.be not. admissible, it must be equally inadmissible, when it comes in a varied, shape in point of form, but in- the same shape,, and with the same pretensions in point of substance.
[625] Same matter second be time pleaded.
[626] Though it may dlfondant may of it by answer, bo fuii' other respects, too ^morits ”f the answer bo full
These' general- considerations have & peculiar force when applied to this particular casé. The decree or order of December, 1821, overruled the plea of the statute of limitations, and-, the answer accompanying it, and directed the defendant to put in-a full and-perfect answer to the bill. Ic certainly was the intention of the Chancellor, by that decree, finally to dispose of the statute, as a bar to the discovery and relief sought by the-bill.. If it had not been, he would, according to the established course of the Court, instead of' overruling. the-plea,.have directed it to stand on answer. [627] with liberty to the respondents to except. The appellants supposed that if that decree was sustained, the defence of the statute of limitations was gone. If not, why did appeal from the decree ? If, according to its terms and spirit, its only operation was to strike from the records of the cause the paper on which the plea was written, and not to dispose of the defence itself, and to leave them at liberty again to present it in the shape of an answer, why did they not put in their answer at once 1 Why appeal from the decree, when it was a matter of perfect indifference to them whether it was affirmed or reversed; as it only affected the form and not the substance of their defence ? If they have now a right to set up the statute of limitations' by way of answer, they had a right to do it the moment the decree of December, 1821, was pronounced. That decree was simply affirmed without being altered or modified by this Court. The proceedings of this Court also showed that they supposed that, by affirming the decree of the Chancellor, the question of the statute of limitations was put at rest, and that such was their intention.
After the decree of affirmance was pronounced, on the ground that the answer of the appellants contained such an admission of the respondents’ debt as to defeat the operation of the statute of limitations, their counsel moved the Court so to modify the decree, as that the cause might be sent back to the Court of Chancery, without prejudice on the point on which the Court had grounded their decision; and so that the defendants might amend their answer upon that point. The motion was denied, and Spencer, Ch. J. whose opinion upon this motion prevailed, said, “ Independent of all that relates to the negotiation between the counsel of the parties, the answer contains a sufficient admission of the debt to take it out of the operation of the statute. An amendment, therefore, of the answer would avail nothing. If the Court had the power, he should not, be for exercising it, in order to let in the statute of limitations in this case, where the party has made such a clear admission of the debt as is contained in the answer.” Ch. J. Spencer, therefore, supposed that the object and effect of the application, if [628] granted, would be to enable the appellants again to set up. ^6 defence of the statute of limitations; and he was for denying the motion on the very ground that they ought not agajn to be permitted to set up the statute. And such undoubtedly was the opinion of a majority of the Court who concurred with him. Under such circumstances, I fully assent to' the correctness of the observation of the Chancellor, “ that after a plea of the statute has been once technically pleaded, and formally discussed, considered and overruled, and again solemnly discussed and overruled upon appeal, and a full and perfect answer required by the order of both Courts, and an effort to have the decretal order so modified as to allow the plea to stand for an answer, denied, it surely cannot, upon any reasonable principle, be permitted to the party to escape from the order in this way, and bring the very same matter into discussion.” I am, . r . _ . . .-. thereiore, oí opinion upon this ground, without considering ^he other point in the cause, that the decree of his honor the Chancellor should be aifirmed.
Sutherland, J. concludes that decree should be affirmed,
Woodworth, Justice, concurred.
The point to be decided.
Colden, Senator. The most material question to be deci¿e¿) appears to me to be embraced by the second point submitted by the counsel for the appellants, to wit, “ that the answer (that is the last answer) is a bar to the relief sought.” If it be so, then, unquestionably, the appellants are right in their conclusion, that it protects them from an account, and from a discovery as to all such parts of the bill as are referred to in the first six exceptions to the answer. If they are so protected, the master was wrong in allowing these exceptions ; and the order or decree of the Chancellor, requiring a further answer from the appellants, cannot be sustained.
If the last answer be a bar to an account and discovery, as the appellants contend, it must be so, because they have a right, in this second answer, again to set up the statute of limitations; and to insist on new or explanatory matter to show that in their former answer they had made no admission which would prevent the statute from being a bar, [629] The Chancellor decided that they having first’ pleaded the statute and that plea having been overruled, they wore thereby precluded from insisting on the statute a second time by way of answer, or at least that they could not do this without leave.
After statute of limitations has been overruled in a plea, it cannot be insisted on by answer, without leave.
I cannot doubt the correctness of the Chancellor’s decision. If, in this case, the statute may, as a matter of course, be insisted on by way of answer, after it has been overruled as a plea, it will follow that in every case a party may first plead any matter in bar, and when that is overruled, or (as in case before us) even after an appeal to this Court, and a decree against it, he may, at the end of all this litigation, send his adversary nearly back to the commencement of the suit.
There is, in my opinion, no necessity for allowing a course which must lead to so much delay, vexation and expense. If, after a plea has been overruled, it should happen that the plea or the answer by which the party intended to support it was insufficient, through some omission or mistake, he might apply in the Court below for leave to amend. So, in this case, if the matter set up in the second answer would afford just grounds to support the plea of the statute, the appellants ought to have applied to the Court of Chancery for liberty to bring them under its consideration.
I do not think the suggestions of the appellants well founded, that this course could not have been pursued, because the plea and answer were overruled, and therefore could not have been amended. The whole matter was under the control of the Chancellor, and there was nothing to prevent his modifying the decree as he might think right.
The appellants asked for a modification of the former decree of this Court after it had been pronounced, and this Court would have had no hesitation in making the modification, if it had appeared to them that justice required that they should do so.
But I put my opinion in this case on other grounds. Let it be admitted, and I take the fact to be so, that the appellants, in their first answer, made admissions, in order to support their plea, which clearly deprived them of the benefit of the statute : Can they be permitted in their second an[630] swer again to set up the statute and to allege new matter, which is entirely to do away the force of their first admissions ?'
Subsequent confessions not admissible to explain former ones.
And after a defendant has, in answering a bill, admitted what does away his plea of the statute of limitations, he ought not to be allowed to explain awayhis admissions by a subsequent ' answer.
Especially, if, on overruling this plea, the chancellor orders that he should put in a full and perfect answer.
If a person in conversation, or in writing, make declarations which are an admission of the validity of a claim against him, he will not be permitted to give evidence of subsequent declarations or writings which may contradict or explain away his first .admissions. And most assuredly a party cannot be, permitted to do this, after, in a course of litigation, he has been made to feel the force of his original declarations.
It seems to me extraordinary, that the appellants should insist that they have a right, as a matter of course, by a second answer, to cancel the admissions which they put on. record under oath in their first answer. There can be no rule of law which will authorize so great a violation of justice and common sense. To allow a party, when he may find that he has made an incautious admission, to contradict himself by a new answer, would be to hold out too great a limitation in the consciences of men. To adopt the words of Lord Nottingham, in answer to an application to enlarge publication, “ it would be of dangerous consequence, if people, after seeing where a cause pinched, should then be at liberty, to bolster up the faulty part.”
The appellants cannot expect to be allowed, by their •second answer, to vary or control their admissions in the first answer, unless they can succeed in establishing the position so strenuously urged by their counsel, that the overruling the plea and the first answer, annihilated that answer, so far that it must be entirely overlooked, although it forms part of the record before the Court. 1 do not believe there is any technical rule which obliges justice to be so blind to matters which are spread before her, by those whose controversy she is to decide.
But again, the order of the Court of Chancery, and the decree of this Court requires that the appellants should put in a full and perfect answer. Why were this order and this decree made 1 Because the appellants had never answered the bill. They had pleaded the statute, and set [631] forth certain facts m support of their plea: This, though it be technically called a plea and answer, is, in fact, no answer to the bill. The whole amounts only to a plea; and so far from being an answer, it is but a claim, on the part of the appellants, to be exempt from any obligation to answer.
After it has been decided that they are not entitled to this exemption, how do they comply with the order to make a full and perfect answer ? They do it in no other way, than by again setting up their right to be exempt from answering; and attempting to support that right by allegations in explanation or contradiction of their former averments. In the one case, they set up the statute by plea, and in the other by answer. But, in truth, they are, in the latter, but repeating their former defence. The first and second answers are in fact the same. They both insist that the appellants ought not to be compelled to answer. It is not possible, in my opinion, that this variance in form can so essentially change the effect of two things between which there is no substantial difference.
Suppose the appellants had, under the order to put in. a full and perfect answer, again pleaded the statute, and that in other respects their second answer had been as it now is, I presume it would not be contended for a moment, that they had complied with the order. In the first and second answer, so far as respects the statute, they put it forward as a bar, substantially in the same words ; but in the former .instance they claim the benefit of it as a plea, and in the latter “ they pray that they may have the benefit of the said statute in the same manner, and to the same extent, as if they had pleaded the said statute in bar to the relief, discovery and account sought for, and prayed in the said bill.”
I think, therefore, the Chancellor was well warranted in saying as he has done in his opinion, “ that the second answer was nothing more, in substance and effect, than a repetition of the plea of the statute of limitations, after that plea had been overruled, and the decretal order overruling it, requiring the defendants to put in a full and perfect answer to the bill, affirmed in the Court of Errors.”
This reasoning brings me to a conclusion which enables [632] me to render my judgment in this case. But I should not treat the distinguished counsel who were engaged in this case with due respect if I did not more particularly notice their learned and elaborate arguments, and the authorities they cited. I have looked into all the cases to which we were referred, that were within my reach, and I can find no authority that appears to me inconsistent with the opinion I entertain.
Not true, as a general rule, that when a plea is overruled, the same matter may bo insisted on by answer.
, I admit, as has been said in our own Courts, as well as in the English Courts, that the statute of limitations may be a very conscientious plea; and I admit that it may be so in this case. But if it be, its conscientiousness must arise from matters not disclosed by the pleadings. 1 agree with a senator who, in giving an opinion in this case on a former occasion, said, that the claim on the part of the respondents, as presented to the consideration of the Court, addresses itself to the moral sense in a character of strong and prevailing equity; but I admit, as he did, that the appellants are entitled to the benefit of this defence, however technical it may be, if founded upon principles which are established for the government of a Court of Chancery.
The position taken by the appellants’ counsel, and in support of which many authorities were cited, that after a plea is overrruled, a defendant may insist on the same matter by way of answer, cannot be true as a general rule, and in the full meaning of the terms in which it is expressed. For example, it cannot be contended that one who has in due form pleaded the statute of limitations, and whose plea has been overruled, can answer that he had not promised within six years.
I take the rule and the meaning of the authorities to be this: that where a matter which might be a sufficient bar has been informally pleaded, and the plea has been overruled on that account, the defendant may, with leave of the Court, insist on the same matter by way of answer. Where a plea is overruled for some informality or insufficiency in the plea itself, or in the answer to support the plea, then the matter pleaded, in the language of the books has never undergone the judgment of the Court ;