Page:Federal Reporter, 1st Series, Volume 9.djvu/803

I88 FEDERAL REPORTER. �directors is a part of their case which they must establish, and not a faet on which the jurisdiction of the court, or their ability to sue, at all depends. If they can establish the fact of refusai, together with the other facts necessary to make out a case for the relief asked, then they have a case on which they can rest ; otherwise, not. They have the right to a full answer and discovery from the defendants as to their whole case, this part as well as the rest, unless there is some outside fact which would show that they have no right to maintain the suit at all; or some single fact on which the whole case depends is objected to by plea, and full answer and discovery are made to that part of the case. Pure and proper pleas in equity were auch as set up some fact outside of the bill which would show that the bill should not be answered at all. T'^ese pleas required no answer to support them, for they would not be ineluded in that which the party was called upon to answer. Anomalous pleas, denying a single part of the case, may, by the bill on which the whole case depended, come to be allowed, for convenience, to save trying the whole case, when the fail- ure of that part would be fatal, and for safety against enforced dis- covery in a suit by those not in any manner entitled to the discovery ; but, as the, ground of the plea would be ineluded in what the defend- ant was called upon to answer, he could not avoid the right to have at least that part answered by merely pleading to it. He must an- swer that, although the plea raising the objection and the answer supporting it might show that no answer to the rest of the case ought to be required. If this plea should be allowed, the orators would be deprived of the discovery on oath to which they are entitled, as to this part of the case, as evidence upon the traverse of the plea, if they should traverse it, as they would have a right to do. This would be con- trary to sound principles and to authority. Story, Eq. PL § 372 et seq. These views are not contrary to the decision in Memphis v. Dean, 8 Wall. 64, cited and much relied upon in behalf of the de- fendants. There was an answer by the party pleading, as well as the plea, denying refusai of the directors to prosecute, and the cause appears to have been decided in both courts in chief, and not upon the plea alone. �The plea of John Gregory Smith depends solely upon the effect of the pendency of the suit in the state court of chancery in favor of himself and other security-holders, of which James R. Langdon is the foremost plaintiff iu the title to the suit against the Vetmont & Canada Eailroad Company, through whose rights the orators here ��� �