It was formerly thought that there was something incongruous in a plea and an answer in support of a plea. This seems to have arisen from the supposition that the answer in such case formed a part of the defense set up by the plea. But such answer is no part of the defense. The defense is the matter set up by the plea. The answer is that evidence which the complainant has a right to require and to use to invalidate the defense made by the plea, and the complainant is entitled to make use of it, not only upon the hearing of the cause upon the issue raised by the plea after the plea shall have been decided to be a good bar upon argument, but upon the argument of the plea itself, before any evidence can be given for the purpose of counter-proving the plea, by reading from it any facts or admissions which may negative the matters averred in the plea.3 Where there is any statement or charge in the bill which avers an equitable circumstance in favor of the complainant's case, against the matter pleaded, such as fraud or notice of title, that statement or charge must be denied by way of answer as well as by averment in the plea.40 The cases in which it is necessary that

39

39 Story, Eq. Pl. §§ 670, 671; 1 Barbour, Ch. Pr. 129; Hildyard v. Cressy, 3 Atk. 303; Hony v. Hony, 1 Sim. & S. 569; Foley v. Hill, 3 Mylne & C. 475; Bayley v. Adams, 6 Ves. 594.

401 Barbour, Ch. Pr. 128; Mitford, Eq. Pl. 239, 244; Taylor v. Duncan. son, 20 D. C. 505; Rouskulp v. Kershner, 49 Md. 516; Bellows v. Stone, 8 N. H. 280; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384; Souzer v. De Meyer, 2 Paige (N. Y.) 574; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Stuart v. Warren, 1 N. Y. Leg. Obs. 293; Seifred v. People's Bank, 1 Baxt. (Tenn.) 200. "In Adams, Eq. (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 be 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

a plea should be supported by an answer have been conveniently divided into: (1) Those where the complainant admits the existence of a legal bar, but charges some equitable circumstance to avoid its effect; as, for example, where a release is charged in the bill to have been obtained by fraud, the circumstances whereof are specially charged. In such a case a plea must rely on the release, and deny the fraud; and the accompanying answer must also make discovery as to all the circumstances charged as proof of the same." (2) Those where the complainant does not admit the existence of any legal bar, but states some cir

41

protect against discovery required to prove it. If, therefore, there be any statements in the bill tending to prove the disputed allegation distinct from such allegation itself, the discovery asked on these 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. Langdell, 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, 17 Beav. 532; Wilson v. Hammonds, L. R. 8 Eq. 323." Rhino v. Emery, 79 Fed. 483. "The plea, whether an affirmative, pure plea, or a negative plea, must be in itself perfect, and make an absolute bar, with a view not only to its legal operation, if no matters are stated in the bill to displace it, but with a view to the effect of all such matters upon it. But it should not go further. It should not proceed to meet special allegations of circumstances tending to prove the matter of equity relied on to destroy the legal bar. That must be done in the answer." Stuart v. Warren, 1 N. Y. Leg. Obs. 293. A learned writer has said: "If the defense which is set up by a plea has been anticipated by the bill, and evidence has been charged in disproof of the defense, the defendant must answer such charges of evidence, notwithstanding his plea, for an answer to that extent will be needed in trying the truth of the plea. The defendant, therefore, incorporates an answer with his plea, and then the answer is said to support the plea. Such an answer, it will be observed, contains discovery only, and it is called an 'answer in support of a plea,' to distinguish it from the case where a defendant defends by answer as to part of the bill, and by plea as to part." Langdell, Eq. Pl. (2d Ed.) 100.

41 Story, Eq. Pl. §§ 674, 675; 1 Barbcur, Ch. Pr. 128.

cumstance which may be true, and to which there may be a valid ground of plea, and also charges other circumstances which are inconsistent with the substantial validity of the plea; as, for example, where a bill is filed for an account of the dealings and transactions of a partnership, charging a partnership. and various transactions thereof. In such a case, if the defend

ant pleads that he is not a partner, the plea must be accompanied with an answer and a discovery as to all circumstances specially charged as evidence of the partnership.42 The answer in support of the plea must be full and clear; otherwise, it will not support the plea. The court will intend all mat ters charged in the bill to which the complainant is entitled to an answer, to be against the pleader, unless they are fully and clearly denied.43 But if equitable matters are charged, and fully and clearly denied, the answer will be sufficient to support the plea, though all the circumstances charged in the bill may not be precisely answered. The complainant, however, is not precluded by the court's holding, upon the argument

42 Story, Eq. Pl. §§ 674, 675; 1 Barbour, Ch. Pr. 128, 129; Hare, Disc. 30-34; Sanders v. King, 6 Madd. 61; Drew v. Drew, 2 Ves. & B. 159; Everitt v. Watts, 3 Edw. Ch. (N. Y.) 486; Crow v. Tyrell, 2 Madd. 409; Thring v. Edgar, 2 Sim. & S. 274. An anomalous plea denying a single part of the bill cannot avoid an answer to that part. The plea must be accompanied by an answer in support of it to so much of the bill as is denied. Dwight v. Central Vermont R. Co., 9 Fed. 785; Benson v. Jones, 1 Tenn. Ch. 498; Cox v. City of Griffin, 17 Ga. 249. Where a bill charges fraud or errors in an account, and defendant files a plea of an account stated, such plea, if traversing speci fications of the bill as to fraud only in general terms, must be sup ported by a full answer and discovery as to such specifications. Taylor v. Duncanson, 20 D. C. 505. An anomalous plea, partly affirmative and partly negative, must be supported by an answer in support as to the allegations which constitute the replication, and as to all charges in support of such allegations. Somerset Bank v. Veghte, 42 N. J. Eq. 39, 6 Atl. 278. For cases discussing pleas in support of an answer, see Hilton v. Guyott, 42 Fed. 249; Hagthorp v. Hook's Adm'rs, 1 Gill & J. (Md.) 270; Schwarz v. Wendell, Har. (Mich.) 395; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555; Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594; Boggs v. Forsyth, 2 Sandf. (N. Y.) 533; Conover v. Wright, 6 N J. Eq. 613.

431 Barbour, Ch. Pr. 129; Hildyard v. Cressy, 3 Atk. 303.

of the plea, that the charges in the bill are sufficiently denied, from afterwards excepting to the sufficiency of the answer in any point in which he may consider it defective.44 In an answer in support of a plea as to matters not alleged to be the acts of the defendant, or where, from the nature of the case, he cannot be supposed to have any personal knowledge, it is sufficient for him to deny the facts charged upon his belief only.45 No question can be raised by the answer in support of a plea which is not raised by the plea.46 Where the complainant waives the answer under oath, if the defendant puts in a plea to the bill he need not support it by answer.47 Where the defense of the statute of limitations is not anticipated by the bill, and some equitable circumstance is not alleged therein for the purpose of avoiding the statute, the plea of the statute is a pure plea, and need not be supported by an answer.48 But where the bill contains special matters in avoidance of the statute, there must be an answer in support of the plea.49 A plea to the jurisdiction, that one of the parties is a citizen of a state other than that alleged in the petition for removal to the federal court, need not be supported by an answer.50

§ 247. Plea overruled or waived by answer.

An answer overrules a plea to the same matter.51

441 Barbour, Ch. Pr. 129; Waters v. Glanville, Gilb. 184.

Where the

45 Bolton v. Gardner, 3 Paige (N. Y.) 273; Drew v. Drew, 2 Ves. & B. 159. See Heartt v. Corning, 3 Paige (N. Y.) 566.

46 Andrews v. Brown, 3 Cush. (Mass.) 130.

47 Heartt v. Corning, 3 Paige (N. Y.) 566; 1 Barbour, Ch. Pr. 129. 48 West Portland Homestead Ass'n v. Lownsdale, 17 Fed. 205; Conover v. Wright, 6 N. J. Eq. 613; Bloodgood v. Kane, 8 Cow. (N. Y.) 360. 49 Stearns v. Page, 1 Story, 204, Fed. Cas. No. 13,339; Chapin v. Coleman, 11 Pick. (Mass.) 331.

50 McDonald v. Salem Capital Flour-Mills Co., 31 Fed. 577.

51 Cottington v. Fletcher, 2 Atk. 155; Bank of Maryland v. Dugan, Bland (Md.) 254; Clark v. Saginaw City Bank, Har. (Mich.) 240; Bolton v. Gardner, 3 Paige (N. Y.) 273; Hudson v. Randolph, 23 U. S. App. 681, 66 Fed. 216; Grant v. Phoenix Life Ins. Co., 121 U. S. 105; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., $3 Fed. 26.

answer includes more than is necessary for the support of the plea, it overrules the plea.52 If an answer commences as an

answer to the whole bill, it will overrule a plea to any part of the bill, although the defendant did not in fact answer that part of the bill which is covered by the plea.53

§ 248. Frame of plea.

The plea should be entitled in the cause. The title must agree with that of the cause at the time when the bill was filed. A defendant is not allowed to alter or correct the name of the complainant or defendant, and, if his own name is misspelled in the bill, the title of his plea must agree with that of the bill. The correction should be made in the heading, thus: "The plea of the above-named defendant, John Jones (in the bill by mistake called William Jones)."54 Where a plea is accompanied by an answer, it must be headed "The plea and answer," or "The joint plea and answer," or "The joint and several plea and answer," according to the circumstances.55 A plea, like a demurrer, is introduced by a protestation against the confession of the truth of any matter contained in the bill. It next states how much of the bill it is intended to cover, and what part in particular; and this must be clearly and distinctly shown.56 Therefore, a plea "to such parts of the bill as are not answered" will be overruled as too general.57 Where a plea is to the whole of

52 Stearns v. Page, 1 Story, 204, Fed. Cas. No. 13,339; Corlies v. Corlies' Ex'rs, 23 N. J. Eq. 197; Dakin v. Union Pac. Ry. Co., 5 Fed. 665. 53 Leacraft v. Demprey, 4 Paige (N. Y.) 124; Summers v. Murray, 2 Edw. Ch. (N. Y.) 205; Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080. For practice in federal courts, see United States Equity Rule 37; Grant V. Phoenix Life Ins. Co., 121 U. S. 105; Mercantile Trust Co. v. Missouri, K. & T. Ry. Co., 84 Fed. 379. A plea is abandoned by the filing of an answer, and a hearing, by consent of all the parties. Miller v. Perks, 63 Ill. App. 140.

54 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 681.

551 Barbour, Ch. Pr. 115.

56 1 Barbour, Ch. Pr. 115; Mitford, Eq. Pl. 294, 300; Van Hook v. Whit lock, 3 Paige (N. Y.) 409.

57 Mitford, Eq. Pl. 294; 1 Barbour, Ch. Pr. 115; Anonymous, 3 Atk. 70.