[L.R.]	79
3 Ch.App.

[COURT OF APPEAL IN CHANCERY]

UNITED STATES OF AMERICA v. MCRAE.

1867 Nov. 25; Dec. 3, 4, 10, 13.

LORD CHELMSFORD, L.C.

Pleading - Plea - Discovery - Relief - Forfeiture - Penalty under Foreign Law.

To a bill filed by the United States of America, alleging that they had succeeded to the rights of the late Confederate States of America, and praying an account and relief in respect of money received by the Defendant, as agent for the Confederate States, the Defendant pleaded that by a law of the United States the property of all persons who had acted as agents for the Confederate States was liable to confiscation, and that proceedings were actually pending in America for confiscation of his property there on the ground of his having so acted as agent, and that he could not answer without exposing himself to such confiscation, and that the Plaintiffs could not have relief without waiving the right to confiscate:-

Held, that the plea was bad so far as related to the relief, but good as to the discovery, and that the Plaintiffs must be allowed to proceed and prove their case if they were able to do so without the answer of the Defendant.

King of the Two Sicilies v. Willcox (1) distinguished.

Order of Wood, V.C., affirmed in part and reversed in part.

THE bill in this case was filed by the United States of America,and asked for an account and payment of moneys received by the Defendant in this country as agent for the government of the late Confederate States of America, to whose rights the United States of America had succeeded; and interrogatories to the bill were filed. The Defendant pleaded that a law had been passed in the United States confiscating the property of all persons who had acted as agents for the late Confederate States, under which law proceedings had been taken in America to recover property there which belonged to the Defendant, and that the Defendant was, therefore, not bound to answer, and that the Plaintiffs were not entitled to proceed in this suit without waiving the forfeiture of his property.

The Vice-Chancellor Wood allowed the plea, as reported (2), where the pleadings are fully set out.

The Plaintiffs appealed.

Sir Roundell Palmer, Q.C., for the Plaintiffs:-

The case made by this plea is, in substance, that because the Defendant has committed an offence against the laws of his own country he is to be at liberty to refuse in the Courts of this

(1) 1 Sim. (N.S.) 301.

(2) Law Rep. 4 Eq. 327.

[L.R.]		80
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

country a discovery of the Plaintiffs' property. The Vice-Chancellor went on two grounds:- 1. That the rule that he who comes into equity must do equity was applicable. 2. That the analogy of the cases as to election whether to proceed at law or in equity governed the present. The maxim that he who comes into equity must do equity has no application. The principles according to which it is applied are explained in Hanson v. Keating (1), where it is shewn that it does not extend to settling unconnected matters between the parties; and this is recognised as a sound exposition of the law in Gibson v. Goldsmid (2). The cases as to election only apply where a double remedy is given by the laws of this country. The present case is somewhat analogous to that of an agent having a lease from his employer determinable on his failing to render account properly. He never would be allowed to say that he would not account unless the landlord waived the forfeiture. The case of King of the Two Sicilies v. Willcox (3) shews that this plea is no defence even to discovery, the penalty not being one imposed by the laws of this country. Green v. Weaver (4), approved of in Robinson v. Kitchin (5), is a very analogous case.

Mr. G. M. Giffard, Q.C., with Sir Roundell Palmer:-

The bill merely asks for property which certainly belongs to the Plaintiffs, and never belonged to the Defendant; the proceedings in America relate to property which belonged to the Defendant and has been forfeited to the Plaintiffs because the Defendant has committed a statutable offence. The Plaintiffs cannot be deprived of their own property because the Defendant has committed a criminal act which enables the Plaintiffs to take his. There is no analogy to the cases of a foreclosure bill, a tithe bill, or a bill for waste, because in those cases there are two remedies for the same property, and the Court merely says that the Plaintiff shall not pursue both.

Then, as to the discovery, it is impossible to distinguish this case from King of the Two Sicilies v. Willcox (6). We understand

(1) 4 Hare, 1.

(2) 5 D. M. & G. 757, 765.

(3) 1 Sim. (N.S.) 301.

(4) 1 Sim. 404.

(5) 8 D. M. & G. 88; 2 Jur. (N.S.) 294.

(6) 1 Sim. (N.S.) 301; 15 Jur. 214.

[L.R.]		81
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

penalties imposed by the law of England, but not those imposed by foreign law, and the privilege of not answering cannot be extended to that case.

Mr. Wickens, on the same side:-

Suppose that a man commits a forgery in a foreign country, and then gets possession of property of a foreign government and brings it to this country, can it be said that the foreign government is not to sue for its own property because it has done its duty, and has punished the forger? Can the foreign government be asked to waive the penalty, or, in other words, not to punish the man, as a condition precedent to recovering its own property in a Court of equity? In Emperor of Austria v. Day (1), it was never suggested that the Emperor of Austria could be put to terms, and be made to promise not to punish Kossuth for treason. The principle of not answering because the answer might expose the Defendant to penalties, is inapplicable to a foreign country; for this Court cannot say that the answer would be evidence in the foreign country.

[The LORD CHANCELLOR:- If the plea is held bad as to the relief, but good as to the discovery, what would be the consequence?]

There is no record of such a case, but probably the Defendant would not be obliged to answer, and the Plaintiff would be allowed to go on and prove his case in any other way if he could.

Mr. W. M. James, Q.C., in support of the plea:-

Where there are penalties attached, this Court has always refused to allow the Plaintiff to proceed unless he waives the penalties, and there is no difference in the case of a foreign sovereign being Plaintiff. Suits for foreclosure, for tithes, for waste, and for usury, are all on that principle. It is not correct to say that the property is the same in those cases; the suit is for the property, the penalty is only measured by the amount of the property. Where waste had been committed by cutting timber, the remainderman might sue in trover for the timber, and at the same time sue for the penalties. The Plaintiffs here say:

(1) 3 D. F. & J. 217.

[L.R.]		82
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

"You were agents for the late Confederate States, and as such you got possession of this property, and as such we proceed to punish you by taking your property in America." The grounds are the same for both proceedings. Green v. Weaver (1), and Paxton v. Douglas (2), are authorities, and the Plaintiff cannot both approbate and reprobate. In King of the Two Sicilies v. Willcox (3)the qualification introduced as to a foreign country was unnecessary for the determination of the case, was never before adopted, and cannot be maintained. No man can be called upon to criminate himself for the benefit of a foreign sovereign.

Mr. Marten, with Mr. W. M. James:-

The Plaintiffs must waive their rights of forfeiture before they come here: Phelps v. Prothero (4); Lord Uxbridge v. Staveland (5); Inman v. Wearing (6), and there is no difference as to a foreign country. It is often difficult, if not impossible, for the Judge to see what injury the Defendant can sustain by answering, still the privilege is always allowed, and must, therefore, be allowed though, the penalty being incurred in a foreign country, the Judge may not be able to know the injury sustained. In Welby v. Duke of Rutland (7), and Harrison v. Southcote (8), pleas seem to have been allowed to the discovery, but not to the relief.

Mr. Benjamin, with them:-

Two proceedings are pending by the same Plaintiff against the same Defendant in the same right, one for a penalty, and that cannot be allowed. The Plaintiffs allege that the Defendant was a lawful agent, and at the same time that his agency was unlawful: Bristow v. Whitmore (9). Let the Plaintiffs proceed at law if they have a right: Spargo v. Brown (10); but they cannot proceed both civilly and criminally. If the Plaintiffs claim to be the principals, they must indemnify their agents. There is no analogy between this and the case of a private person who cannot waive a punishment, for the Plaintiffs can do so. The Plaintiffs say, because you

(1) 1 Sim. 404.

(2) 19 Ves. 225.

(3) 1 Sim. (N.S.) 301.

(4) 7 D. M. & G. 722.

(5) 1 Ves. Sen. 56.

(6) 3 De G. & Sm. 729.

(7) 2 Bro. P. C. 39.

(8) 1 Atk. 528, 539.

(9) 9 H. L. C. 391; 8 Jur.(N.S.) 291.

(10) 9 B. & C. 935.

[L.R.]		83
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

are our agents we claim our property, and for the very same reason we forfeit yours. This bill is, in fact, an attempt to obtain evidence in aid of a political prosecution in a foreign country.

Sir Roundell Palmer, in reply:-

The question whether this is a proper case for a suit in equity cannot be raised by plea. The doctrine in cases of waste and tithe is, that if a man comes into equity he must waive his legal forfeiture, but that does not apply here. If the crown jewels of France had been stolen and brought here, it would be absurd to say that the French government could not institute proceedings to recover them without promising not to punish the thieves. The plea follows the old form, adapted to bills which prayed discovery, but probably must be taken to apply to the discovery asked for by interrogatories, and the effect of allowing a plea to the discovery and not to the relief, appears from Mitford on Pleading (1).

Dec. 13. LORD CHELMSFORD, L.C., after stating the case, continued:-

The questions raised upon this appeal are, first, whether the plea is a good plea to the whole bill; and, secondly, whether it is good so far as the Plaintiffs seek to compel a discovery from the Defendant, but bad as to the relief prayed for by the bill.

I will consider, first, the validity of the plea, so far as it applies to protect the Defendant from answering. The Defendant relies in support of it on the well known rule, applying both to the examination of witnesses and to interrogatories of Defendants in equity, that no person is compellable to answer any question which has a tendency to expose him to a criminal charge, penalty, or forfeiture. If, therefore, the Defendant, by answering the interrogatories in the present suit, could render himself liable to danger of forfeiture of his property for a breach of some law of this country, there could be no question that he might refuse to answer. Nor is this disputed by the Plaintiffs, but they say that this protection from answering applies only where a person might

(1) 4th Ed. p. 285.

[L.R.]		84
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

expose himself to the peril of a penal proceeding in this country, and not to the case where the liability to penalty or forfeiture is incurred by the breach of the laws of a foreign country. In support of this distinction the Plaintiffs rely upon the opinion of Lord Cranworth, V.C., in the case of King of the Two Sicilies v. Willcox (1). That case has a very close resemblance to the present. The King of the Two Sicilies instituted the suit for the purpose of obtaining possession of a steam vessel purchased in England by two of the Defendants for a revolutionary government, which had usurped the Plaintiff's authority and regal functions in Sicily, and had transmitted sums of money contributed by a large number of Sicilians for the purchase of a steam vessel, which steam vessel was then in the Port of London;and the bill charged that the Defendants had in their possession or power divers deeds, documents, accounts, papers, and writings, from which, if produced, the truth of the matters would appear. The Defendants, by their answer, so far as the present point is concerned, stated that the production of the required particulars would, as they believed, and had been advised, expose and render them subject to criminal prosecution, punishment, and penalties in Sicily. Lord Cranworth held that the Defendants were bound to answer; that the rule which they relied upon was one which existed merely by virtue of our own municipal law, and must have reference exclusively to matters penal by that law, to matters which, if disclosed, the Judge would be able to say, as matter of law, whether they would or would not entail penal consequences; that no Judge could know as matter of law what would or would not be penal in a foreign country, nor form any judgment as to the force or truth of the objection of a witness when he declined to answer such a question.

I quite agree in the general principles stated by Lord Cranworth,and in their application to the particular case before him. There was nothing on the face of the proceedings to inform the mind of the Judge whether there was any, and, if any, what, foreign law applicable to the case, or, whether the Defendants had incurred any penalty or forfeiture by acting in this country as the agents of the revolutionary government in Sicily. The only ground upon

(1) 1 Sim. (N.S.) 301; 15 Jur. 214.

[L.R.]		85
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

which the Defendants objected to produce the documents in their possession was stated in their answer to be, that they believed and had been advised that the production of them would "expose and render them subject to criminal prosecution, punishment, and penalties in Sicily." This did not furnish the least information what the foreign law was upon the subject, though it was necessary for the Judge to know this with certainty before he could say whether the acts done by the persons who objected to answer had rendered them amenable to punishment by that law or not. Upon the particular circumstances of the case of King of the Two Sicilies v. Willcox (1) I have no doubt that it was most correctly decided. But in giving judgment Lord Cranworth went beyond the particular case, and expressed his opinion that the rule upon which the Defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment which he pronounced, and he certainly could not have contemplated a case where the presumed ignorance of the Judge as to foreign law is completely removed by the admitted statements upon the pleadings, in which the exact nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated, and where the Plaintiffs calling for an answer are the sovereign power by whose authority and in whose name the proceedings for the forfeiture are instituted, and who have the property to be forfeited within their reach. What would have been Lord Cranworth's opinion upon such a state of circumstances it is impossible for me to conjecture; but it is very different from that which was before his mind in that case, an I cannot feel that there is any judgment of his which ought to influence my decision upon the present occasion.

The plea in this case sets out the Act of Congress under which the forfeiture is said to have been incurred. That being admitted, it is the same as if it were proved as a fact in the case. Having it thus brought before him, is the Judge competent to construe the Act for himself, or does he (as it has been argued) require the further aid of a person learned in American law to inform him

(1) 1 Sim. (N.S.) 301.

[L.R.]		86
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

whether the case of the Defendant is brought within it? In the case of Di Sora v. Phillipps (1) the House of Lords had to consider, in the case of an agreement made in a foreign country, in the language of the country, what degree of assistance was required by the English Judge in its construction, and it was laid down that the Judge, in the first place, must have a translation, a translator being a witness as to the meaning and also the grammatical construction of the words. He must then have the way cleared for him by explanatory evidence of any words which are of a technical description, or which have a peculiar meaning different from that which, literally translated into our language, they would bear; and if there is any established principle of construction of the particular instrument by the foreign tribunal, proof of it must be given. But the witnesses having supplied the Judge with all these facts, they must retire and leave his sufficiently-informed mind to his own proper office, that of ascertaining for himself the intention of the parties; or, in other words, of construing the language of the instrument in question.

In this case the assistance of a translator is not required, nor id it suggested that there are any words in the Act of Congress which bear a peculiar meaning different from the ordinary one, or that the Acts of the American Legislature have a construction peculiar to themselves. I do not see that there is any impediment to an English Judge with the Act of Congress before him construing it for himself without further aid, just as he would an English Act of Parliament. But the only material question upon this Act of Congress is, whether it applies to the case of the Defendant, and it is said to be very far from clear that he is "a person holding an office or agency under the government of the so-called Confederate States of America either national, state, or municipal," within the 5th Article of the Act. As to this point, however, the Plaintiffs have themselves put their own interpretation upon the Act, for it is stated in the plea, and is admitted, that by virtue of the Act of Congress proceedings in rem have been instituted to secure the condemnation of the Defendant's property, on the ground of his being one of the persons specified in the Act whose property is liable to confiscation. It appears to me that it is not competent to

(1) 10 H. L. C. 624.

[L.R.]		87
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

the Plaintiffs, while thus proceeding, to allege in reply to the Defendant's objection to answer, that the Act of Congress does not apply to his case, and that, consequently, he is exposed to no risk of forfeiture.

The case, therefore, stands thus:- The United States, to whose existing law of forfeiture the Defendant is alleged to have rendered himself amenable, are proceeding against him to obtain from him an account of moneys and goods which have come into his possession in the very character of agent to the Confederate States by which his landed property in the United States has become liable to forfeiture. He cannot state any of the circumstances connected with his agency without his answer having a tendency to expose him to the forfeiture. It is a case entirely distinguishable from King of the Two Sicilies v. Willcox (1). There it was not shewn that the Defendants had rendered themselves liable to criminal prosecution. Here the plea alleges the particular ground of liability to forfeiture, and that proceedings have actually been taken and are pending to enforce it. There it was doubtful whether the Defendants would ever be within the reach of a prosecution, and their being so depended on their voluntary return to their own country. Here the subject of the forfeiture is within the power of the United States, and the proceedings against the Defendant will be equally effectual whether he remains here or returns to the country where his property is situate.

Under these peculiar circumstances I cannot distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law. The United States coming into our Courts must be subject to every rule of evidence which prevails in them, and, amongst others, to that which protects a witness from exposing himself to penalties by his answer. And it appears to me that it would be most unjust not to extend this protection to a case where the party seeking the disclosure has the power to proceed for the forfeiture and the means of enforcing it. I am of opinion that the plea, so far as it applies to the discovery, must be allowed.

(1) 1 Sim. (N.S.) 301.

[L.R.]		88
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

Before proceeding to consider the plea as it applies to the relief prayed by the bill, I must notice an objection which was made by the Defendant to my entering upon this question at all after holding the plea to be good to the extent which has been just stated. It was contended that if the Plaintiffs are not entitled to a discovery their right to relief must fail, because (as I understood the argument) there would be nothing left for equity, as the Plaintiffs might obtain the remaining objects of their bill by an action at law. But I think this objection is not maintainable. What the Plaintiffs seek by their bill is an account - and nothing appears upon the face of the bill to shew that it is not fit for equity; so that the question is not open to the Defendant upon this plea. Why, then, the Plaintiffs should lose their right to have an account because they are deprived by the Defendant's own objection of part of the evidence by which they proposed to establish their case, I am at a loss to understand, and the plea is therefore open to further consideration.

The Vice-Chancellor held that the plea was good to bar the right to the relief sought by the bill, because, from the matter which it disclosed, the Plaintiffs were not entitled to institute the suit against the Defendant without waiving the forfeiture for which they were proceeding against him in America. The rule upon which His Honour proceeded, and which he considered to be applicable to the case, is the trite and familiar one that "he who seeks equity must do equity;" and in support of the Vice-Chancellor's judgment it was contended before me that the Plaintiffs were, on the one hand, insisting that the Defendant, as agent to the Confederate Government, was to account to them; and on the other, that in respect of that very agency they were seeking to take away the whole of the property; that it therefore came within the principle of those cases in which the Court has held that a person cannot claim both a debt and a penalty in respect of the same subject matter, and illustrations of the rule in question were drawn from proceedings for tithes or for waste.

Before proceeding to decide upon the application of the rule or maxim, it will be right to ascertain its precise limit and extent; and it will, I think, be found, both upon principle and from authority, that the equity to be observed by a person seeking

[L.R.]		89
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

equity must be some equity which is involved in the subject of the suit. The boundaries of the maxim were very clearly defined by that most able and careful Judge Vice-Chancellor Wigram, in the case of Hanson v. Keating (1), and his definition was adopted by an equally able and careful Judge, Lord Justice Turner, in Gibson v. Goldsmid (2).

Vice-Chancellor Wigram said: "The rule decides, in the abstract, that the Court giving the Plaintiff the relief to which he is entitled, will do so only upon the terms of his submitting to give the Defendant such corresponding lights (if any) as he also may be entitled to in respect of the subject matter of the suit." And again: "A party does not, by becoming Plaintiff in equity, give up any of his rights, or submit those rights to the arbitrary disposition of the Court. He submits only to give the Defendant his rights in respect of the subject matter of the suit, on condition of the Plaintiff obtaining his own." And Lord Justice Turnersaid: "The rule does not go so far as to entitle the Court arbitrarily to impose terms upon a Plaintiff who may be driven to ask for its assistance. It is restricted in its operation; and the true meaning of it, as I apprehend, is this, that those who ask for the assistance of the Court must do justice as to the matters in respect of which that assistance is asked."

All the illustrations which the Vice-Chancellor employed in support of his opinion that the Plaintiffs must do equity by waiving the forfeiture fall precisely within the limits of the rule as above expounded. Take the case of waste - the Plaintiff could not file a bill for a discovery and account without waiving his right to an action for treble damages. Why? - Because he wanted the assistance of equity, and equity would not assist him except upon condition of his foregoing his right to resort to a severe proceeding to recover a penalty. This is clearly an equity which is exacted in respect of the identical subject matter of the suit. So in the case of tithes, the tithe-owner filing a bill for the single value of the tithes, was formerly compelled to waive the treble value in his bill, but afterwards the filing of the bill was held to be an implied waiver. This shews most plainly that the equity required to be done was involved in the suit itself.

(1) 4 Hare, 1, 5, 6.

(2) 5 D. M. & G. 757, 765; 1 Jur. (N.S.) 1.

[L.R.]		90
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

What is the ground of relief sought by the present bill? It is to obtain money and goods belonging to the Plaintiffs in the hands of the Defendant, which he admits to be their absolute property. The Vice-Chancellor, adopting the argument and the language of Mr. Benjamin, says: "The Plaintiff's say, on the one hand, 'Give us all the moneys which you have acquired by the agency,' and, on the other, 'Give us all your estate and property because you have acted as agent."' The proposition of the Plaintiffs is not here stated with perfect accuracy, for they do not ask for moneys which the Defendant has acquired by the agency, but for moneys admitted to be their property which the Defendant has in his hands, and which he holds for them. The Defendant has no colour of light to keep this property from the Plaintiffs, nor does he pretend to the slightest claim upon it. But he says, by reason of the agency through which the property came into my hands I have exposed myself to the forfeiture of my property in America, and you ought not to be allowed to obtain your own property without abandoning the endeavour to procure the forfeiture of mine. What connection is there between the demand of their own property by the Plaintiffs and the forfeiture of the Defendant's by a totally different proceeding? Prior to any proceeding either here or in America, were not the United Statesentitled to their own property, and also to proceed against the Defendant for an infraction of their law?

It is said that the agency of the Defendant is the foundation of the proceedings in both instances. But this is not correct. The present suit is not instituted in respect of the agency of the Defendant. The statement of his agency to the Confederate Statesis merely descriptive of the way in which the money and goods came into the Defendant's hands, and the Plaintiffs would have been entitled to them in whatever character they were received by him. The Vice-Chancellor says the Plaintifffs are actively insisting upon a claim against the Defendant, while they are seeking equitable relief here on the same grounds. But I am at a loss to perceive the similar grounds of the two proceedings. In the one, the Plaintiff's say: "Give an account of our money and goods of which you have possessed yourself." In the other - "Answer to the charge of having acted in a particular character or employment

[L.R.]		91
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

which renders you liable by our law to a forfeiture of your lands." Can it be within the rule of equity upon which the Vice-Chancellor proceeded, that the Defendant should be allowed to say: "I will not give you your property, which I have not a shadow of right to retain, unless you will waive a prosecution to which I am exposed solely because the employment which constitutes my offence was the means by which I got possession of your property."

Suppose, before any bill had been filed by the United States,they had prosecuted the Defendant to conviction, and had obtained a forfeiture of his property, and that they afterwards came to the Court claiming, as they do now, to have an account of their property. Would the Court have said to them - "No! you have chosen your remedy: you have got the Defendant's estate by means of a penal proceeding, and, therefore, he may keep your property, and we will give you no relief." There can be but one answer to the case put in this way, and yet, if the Vice-Chancellor is right in saying that the suit and the prosecution are on the same grounds, a plea in bar ought equally to be allowed in the case I have supposed as in the present.

It appears to me that to hold with the Vice-Chancellor in this case would be stretching the rule of equity upon which he founded himself beyond its proper limits: that the examples of the application of the rule on which he relied were instances where the party had a double remedy, as in tithes and waste: that in this case the Plaintiffs have not a double remedy for the same thing, but distinct and separate claims and demands for different things, and the equity sought and the equity required of the Plaintiffs have no relation to, or connection with, each other.

I am of opinion that the plea of the Defendant is not a good plea in bar to the relief sought by the bill.

It was argued on the part of the Plaintiffs that if the plea was bad as to any part of it, it must be entirely set aside. But that is not so. A plea to a bill in equity may be good in part and bad in part, and accordingly, as Lord Redesdale says in his treatise (1), may be allowed in part, and overruled in part, but he adds: "yet there does not appear any case in which two defences offered

(1) 5th Ed. p. 343.

[L.R.]		92
3 Ch.App.	UNITED STATES OF AMERICA v. MCRAE.	LORD CHELMSFORD, L.C.

by a plea have been separated, and one allowed as a bar." That is not the present case, for here there is one defence offered to the whole bill, the entire plea being good as to the part of the bill which calls for an answer, and bad as it applies to the relief which it prayed. It was admitted on both sides that the case is entirely new, and that there is no precedent to direct me to the proper mode of dealing with this plea. I think the course suggested by Mr. Marten will be the best for me to adopt; and I shall accordingly allow the plea as to the discovery - overrule it as to the relief, leaving the Defendant at liberty to put in a voluntary answer.

Solicitors for the Plaintiffs: Messrs. Field, Roscoe, & Francis.

Solicitors for the Defendant: Messrs. Thomas & Hollams.