, 1877-05-12

the plaintiffs allegations were true
Now, to demand that the defendant al
ways knows beforehand what facts aver.
red by plaintiff are true and what false
or what deter sive facts can be maintain
ed by himself and what cannot, seems to
require of him prcscicnce and M ON
niscience which he, being perhaps nm ILL.,
informed and unsagacions person, may
not possess, and the absence of which
ought not to place him at the mercy OF
the plaintiff. The very abundance Of
letenccs at his command, il only
his proof do not fail him, might,
were he compelled to elect, be the
occasion OF his ruin; for he might
unfortunately elect the one where his
evidence would show itself the weakest.
Justice forbids, when facts are true,
which if true do in some application or
other afford deiendanta complete shelter
against the plaintiffs assault, that the
defendant should he barred the benefit
of them merely because he is ignorant Of
what application of them, or Of whether
any application OF them Al all, can under
the evidence which is yet to be disclosed
properly be made.
Every good defence alleging new mat.
ter is calculated to combine with and
change Or counterbalance the real facts
of the plaintiffs demand in such way
that the combined or net result will show
no right OF recovery in the plaintiff.
This result cannot appear before the trial.
| Then, in the concurrence of evidence,
fact will meet fact, they will c0alesce,
they will fuse, and he revealed as in
separable compOnents of one single fabric
| of truth. Until this combination or
balance and fusion is effected, the way
in which it is possible to be effected is
often matter of hypothesis or assumpt.
ion. Every defence, by way of confession
and avoidance or countcrclaim thus ap-
pears, when carefully scanned, to be
partly fact, partly conjecture partly
fact which the defendant knows or be.
lievcs to he true, and partly conjecture,
which induces him to plead the fact in
order that, if the fact and the conjecture
I've both true, he may I've entitled to the
benefit of the fact for his defence. 1t is
noteworthy, however, that it is not the
conjecture that at the last operates as
his shield it ia the fact. The fact turns
out at the crisis to be all that aids in
his defence, nay, all that really is de-
fence, for it is that which unites init.
mately and incontrollingly with the
other facts in the case: and the conjunct-
ure, having served the purely temporary
purpose Of suggesting true affinity,
slips away, volatilizei amid the heat
and light of actual combination.
This analysis of the defence contain
ing new matter gives us the true line Of
distinction between what matters of de-
fence can and what cannot stand to-
gether in the same pleading--those de-
.ences can stand together, the facts
in which are not contradictory, no
matter on what hypothesis they may
severally be held well pleaded. Those
defenccs cannot stand together, the facts
in one of which are SO repugnant to the
facts in the other, that they cannot be
believed true by the same person who
believes the facts in the other to be true.
The propriety of this distinction does
not, nor, as some opinions mistakenly
suppose, does any impropriety Of incon-
sistent defences, rest upon a statutory
requirement that pleadings be verified.
Verihcation does rot make truth more
precious. Truth is-with or without
oaths-the end of the action. Oaihs
are for truth; not truth for Oaths.
Better that man should lose his goods
or land CT liberty, than that orally or in
writing, by simple statement or by depo.
sition, on record or off record, he should
preserve any one of them by sacrifice
of truth. For that same truths sake, the
law both opens wide the door to every
defence which seeks truth by the light
of truth, but locks it against any defence,
which protesting to seek truth comes
darkling bearing the shadow of lie.
The facts pleaded in this equitable de-
fence may well be true and yet the de-