TAFT, Circuit Judge
(after stating the facts). Three objections are made to the jilea: First, that it is double, and presents two defenses to the bill; second, that it contains a negative pregnant, in that it only denies that the complainant, Rhino, and defendant Sperry, are sole heirs at law of the intestate, James Berry, but does not deny that they are heirs; and, third, that the jilea is not supported by an answer, as it should be.
, This is a negative jilea. Such pleas are permitted. Mitf. Eq. Pl. (Smith’s Ed.) 270; 3 Brown, Ch. 489; 1 Madd. 194; 16 Ves. 264, 265; Sanders v. King, 2 Sim. & S. 277; Thring v. Edgar, 2 Sim. & S. 274. I do not think the jilea is double. The plea is filed to traverse the averment of heirship. That presents a single issue, and the plea is framed to meet it. It does not introduce two different defenses.
The objection to the second averment of the plea, that it contains a negative pregnant, is well founded. It would be quite consistent with this averment if the complainant were an heir, and entitled to a share of the estate of James Berry. Therefore the second averment in the jilea is bad. It is bad for another reason. The bill sets out a pedigree which shows that Rhino and Sperry are the sole heirs of James Berry on his maternal side. It is with reference to this part of the hill that this averment of the plea is made and its meaning is to be construed. The averments of pedigree in the bill as to the kinship of Rhino and James Berry on the maternal side, if mido nied, would defeat the plea in so far as the second averment in. it is concerned. It follows that, if the second averment is to he relied on as j)art of the plea, it was the duty of the defendant to support it by an answer denying the allegations of pedigree in the bill by which it ajypears that Rhino and Sperry were the heirs and next of kin of James Berry on his maternal side.
But it is well settled that a plea may be good In pari: and badinjyart. Mitf. Eq. Pl. (Smith’s Ed.) 343; Story, Eq. Pl. 692; Duncalf v. Blake, 1 Atk. 52; Huggins v. Buildings Co., 2 Atk. 44; Beach, Mod. Eq. Prac. § 294; Kirkpatrick v. White, 14 Fed. Cas. 685. I may therefore overrule so much of the plea as contains the second averment, and treat it as if the plea contained simply a traverse of the averment in the hill “that at the time of the death of the James Berry who died on May 13, 1891, the blood of the Berrys and Rolstons, his ancestors on the paternal line, became extinct.” This is the indispensable averment in the bill, upon which depends the right of the complainant to assert any interest in the property made here the subject of the controversy. There are no facts averred in the bill which, if admitted, would defeat this negative averment. Hence, under the modern rule, no answer is required to support such a plea. There is ■ no averment of evidence in the bill tending to show that the blood of the Berrys and the Rolstons was extinct. The case of the complainant in the bill stands solely on the bare averment of this as a fact. In such a case, it is not necessary for the defendant to file an answer in support of the plea.
Judge Wallace, in the case of Hilton v. Guyott, 42 Fed. 249, states the principle as follows:
“The rule is that a defendant must answer as to facts which would be evidence to dispute the plea, but ho is not required to answer to those things which may be well admitted consistently with the bar pleaded. If he does not answer interrogatories upon the argument of the plea, every fact which they would tend to prove is treated as proved in impeachment of the plea. But if a plea sets up a defense which appears to be a good bar, notwithstanding all these facts are admitted to be true, it is not necessary to support it by an answer.”
In Sims v. Lyle, 4 Wash. C. C. 301, 22 Fed. Cas. 184, Mr. Justice Washington said:
• “If the plea be only to a part of the bill, the rest of the bill ought to be answered, or else the court would consider the parts not embraced by tbe plea, or answered, as true. But there is no instance where the plea contains in itself a full defense to the bill, that an answer is necessary, unless it is rendered so, in order to negative some equitable ground, stated in the bill for avoiding the effect of the anticipated bar.” Story, Eq. Pl. § 674; 2 Daniell, Ch. Prac. (Ed. 1840) pp. 115, 119-122.
In Adams’ Equity (Ed. 1890, p. 61) the statement of the rule is as follows:
“It often happens, where a negative plea is used, that the bill contains allegations in evidence of the disputed statement. In this case the plea of its untruth will not protect from discovery of matters which would prove it true; and therefore these allegations must he excepted from the plea, and must be met by an answer in support.”
And again, on page 337:
“In order, therefore, to avoid such discovery, he must resort to a negative plea denying the allegations of partnership or heirship; and, until the validity of his plea is determined, he will be protected from giving discovery consequent on the allegation. It is, however, very seldom that a pure negative plea can be made available; for, although it protects against discovery consequent on the alleged equity, it does not protect against discovery required to prove it. If, therefore, there be any statements in the bill tending to prove the disputed allegations, distinct from such allegations itself, the discovery asked on those points must be .excepted from the plea, and must be given by an answer in support,”—citing Thring v. Edgar, 2 Sim. & S. 274; Denys v. Locock, 3 Mylne & C. 205.
I ought to add that the view expressed above with reference to the answer in support of the negative plea is not that, which meets the approval of Prof. Langdell in his Equity Pleading. Langd. Eq. Pl. pp. 116, 117. He traces the erroneous view to the decision of Sir John Leach in Thring v. Edgar, 2 Sim. & S. 274, but he admits the case has had its effect upon modern authorities, and that they support the conclusion I have stated above. See Hunt v. Penrice, 17 Beav. 525; Young v. White, Id. 532; Wilson v. Hammonds, L. R. 8 Eq. 323.
The order of the court will be that the plea is overruled so far as the second averment is concerned, and is held good so far as the first averment is concerned, and the defendant is given leave to file a replication.