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 be 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.19 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

Where the

44 1 Barbour, Ch. Pr. 129; Waters v. Glanville, Gilb. 184. 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 Where a plea is to the whole of

overruled as too general.57

Where a

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.

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

551 Barbour, Ch. Pr. 115.

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

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

the relief sought by the bill, but it is necessary that the defendant should support his plea by an answer, the plea should not extend to the whole bill, but should be in the form of a plea to all the relief, and all the discovery sought by the bill, except certain parts of the discovery which are to be answered.58 The matter relied upon as an objection to the suit or bill generally follows, accompanied by such averments as are necessary to support it.59 Where the plea is of matter which shows an imperfection in the frame of the suit, it should point out in what that imperfection consists; as, for example, if a plea is for want of parties, it must not only show that there is a deficiency of parties, but should point out who are the parties that are wanting. The plea commonly concludes with a repetition that the matters so offered are relied upon as an objection. or bar to the suit, or so much of it as the plea extends to, and prays the judgment of the court whether the defendant ought to be compelled further to answer the bill, or such part of it as is thus pleaded to. When the plea is accompanied by an answer, the answer must follow the conclusion of the plea. If the answer is merely to support the plea, it is stated to be for that purpose, not waiving the plea. If the plea is to part of the bill only, and there is an answer to the rest, it is expressed to be an answer to so much of the bill as is not before pleaded to, and is preceded by the same protestation against waiver of the plea.62

60

§ 249. Signing and swearing to a plea.

A plea must be signed by counsel, except when taken under a commission, in which case it is held unnecessary.63 Where pleas are not to be sworn to, they need not be signed by the

1 Barbour. Ch. Pr. 116; Portarlington v. Soulby, 6 Sim. 356.

59 1 Barbour, Ch. Pr. 116; Mitford, Eq. Pl. 300.

60 1 Barbour. Ch. Pr. 116; Merrewether v. Mellish, 13 Ves. 438.

61 Mitford, Eq. Pl. 300; 1 Barbour, Ch. Pr. 116.

62 1 Barbour, Ch. Pr. 117; Mitford, Eq. Pl. 300; Leacraft v. Demprey,

4 Paige (N. Y.) 124.

63 1 Baibour, Ch. Pr. 117; Simes v. Smith, 4 Madd. 366.

defendant, the signature of counsel being sufficient. Pleas of matters in pais must be upon the oath of the defendant; but pleas to the jurisdiction of the court, or to the disability of the person of the complainant, or pleas in bar of any matter of record, or of matters recorded, or as of record in the court itself, or in any other court, need not be under oath.64 If there are necessary averments of matters in pais supporting a plea of record, it must be on oath.65 A plea of the statute of limitations, or of any other statute which requires averments to bring the defendant's case within its operation, must be upon oath. In all cases where a plea is accompanied by an answer, it must be put in upon oath." A plea must be verified by oath, although the complainant has expressly waived an answer fron the defendant on oath.68 If a plea necessary to be verified is not sworn to, the complainant may apply for an order to set it aside, or to have it taken from the files, but he cannot make the objection upon the argument of the plea. A plea need not

69

641 Smith, Ch. Pr. 231; Story, Eq. Pl. § 696; Dunn v. Keegin, 4 Ill. 292; 1 Barbour, Ch. Pr. 117; Urlin v. Hudson, 1 Vern. 332; Graham's Heirs v. Nelson, 5 Humph. (Tenn.) 605; Carroll v. Waring, 3 Gill & J. (Md.) 491; Harrison v. Farrington, 38 N. J. Eq. 359.

65 Mitford, Eq. Pl. 301; Wall v. Stubbs, 2 Ves. & B. 354. ee 1 Barbour, Ch. Pr. 118. A plea resting upon a statute alone is a plea of a matter of record; but if it be necessary to couple any mere matter of fact with a statute in order to constitute a complete defense, then the plea must be on oath, because the defense would be unavailable without an averment of such fact. Wall v. Stubbs, 2 Ves. & B. 354. Where the lapse of time appears upon the face of the bill without any allegation of an acknowledgment, payment, or other circumstance which can take the case out of the statute, the defendant may take advantage of the statute either by a plea or by a demurrer; and such plea or demurrer need not be sworn to, because the oath of the defendant cannot be required to verify facts which the complainant himself has stated to be true. Carroll v. Waring, 3 Gill & J. (Md.) 491.

671 Barbour, Ch. Pr. 118; Jefferson v. Dawson, 2 Ch. Cas. 208; Wall v. Stubbs, 2 Ves. & B. 354.

681 Barbour, Ch. Pr. 118; Heartt v. Corning, 3 Paige (N. Y.) 566. An "impure" plea must be sworn to. Anderson v. Walton, 35 Ga. 202. 691 Barbour, Ch. Pr. 118; Heartt v. Corning, 3 Paige (N. Y.) 566; Wall v. Stubbs, 2 Ves. & B. 354; Freidlander v. Pollock, 5 Cold. (Tenn.) 490; Harrison v. Farrington, 38 N. J. Eq. 359. See, also, Bassett v.

be verified before the court where the suit is pending. It may be sworn to before any officer in the state authorized to administer oaths, and, if the defendant is a nonresident, before any officer of any state who would be authorized by the laws of the forum to administer oaths in legal proceedings. An affidavit to a plea may be amended by leave of court.71

$ 250. Form of plea.

[Title of court and cause.]

70

The plea of the above-named defendant, C. D., to the bill of complaint of the above-named complainant, A. B.:

This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the complainant's said bill mentioned to be true, in such manner and form as the same are therein and thereby set forth and alleged, does plead thereunto, and for plea says that: [Here state the subject-matter of the plea, and conclude as follows:] All which matters and things this defendant avers to be true, and pleads the same to the whole of the said bill, and demands the judgment of this honorable court whether he ought to be compelled to make any answer to the said bill of complaint, and prays to be hence dismissed, with his reasonable costs in this behalf most wrongfully sustained. C. D., Defendant.

G. F.,

Solicitor for Defendant, C. D.

Salisbury Mfg. Co., 43 N. H. 249. It is said that a plea lacking the requisite affidavit may be disregarded. Central Nat. Bank of Baltimore v. Connecticut Mut. Life Ins. Co., 104 U. S. 54; Trower v. Bernard, 37 Fla. 226, 20 So. 241; Taylor v. Brown, 32 Fla. 334, 13 So. 957. An affidavit by a third person, who does not purport to be either agent or attorney of the defendant, that he is informed and believes that the plea is true, is not sufficient. Bank of Tennessee v. Jones, 1 Swan (Tenn.) 391. An affidavit that the facts in the plea are true, in substance and in fact, complies with a rule that the affidavit must be posi tive in form. Wrompelmeir v. Moses, 3 Baxt. (Tenn.) 470.

70 Carlisle v. Cowan, 85 Tenn. 170, 2 S. W. 26; Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080. United States Equity Rule 31 provides that no demurrer or plea shall be allowed to be filed to any bill unless upon the certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay, and, if a plea, that it is true in point of fact. Where the requisite affidavit is attached, the corporate seal of a defendant corporation need not be affixed. Fayerweather v. Trustees of Hamilton College, 103 Fed. 546.

71 Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080.