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.61 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.67 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.69 A plea need not

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 unavail able 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.

68 1 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. 69 1 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.70 An affidavit to a plea may be amended by leave of court.71

$ 250. Form of plea.

[Title of court and cause.]

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.

C. D., being duly sworn, deposes and says that the matters set forth in the foregoing plea are true, in substance and in fact.

Subscribed and sworn to before me, etc.

§ 251. Plea to part, and answer to residue, of bill.

[Title of court and cause.]

The plea of C. D., defendant, to part, and the answer of the same defendant to the residue, of the bill of complaint of A. B., complainant:

This defendant, to all the relief sought by the said bill, and also to all the discovery thereby sought, except the discovery sought, or in respect of [so much of the said bill as prays that this defendant may answer, and set forth] whether, etc., [here the language of the interrogatories which it is necessary to answer must be introduced], does plead in bar, and for plea says [here follows matter of plea]. All which matters and things this defendant does aver to be true, and does plead the same in bar to the whole of the said bill, except such part of the discovery thereby sought as aforesaid; and this defendant humbly prays the judgment of this honorable court whether he ought to be compelled to make any further or other answer to so much of the said bill as is hereby pleaded to, and he prays to be hence dismissed, with his costs in this behalf most wrongfully sustained.

And for answer to such parts of the said bill as are excepted, this defendant says that: [Here insert answer.]72

§ 251a. Form of plea supported by answer.

The plea of A. B., defendant, to part, and his answer to the residue, of the bill of complaint of C. D., complainant:

This defendant, by protestation, not acknowledging or confessing all or any of the matters or things in the said bill contained to be true in such sort, manner, and form as the same are therein and thereby alleged, to so much of said bill as seeks to compel this defendant specif. ically to perform the agreement in the said bill mentioned to have been made and entered into between the said complainant and this defendant for sale by this defendant unto the complainant of a certain messuage or tenement in the bill mentioned. or as seeks to compel this defendant to execute a conveyance of such messuage and tenement unto

72 For forms of pleas, see Curtis, Eq. Prec. 157-175; 3 Daniell, Ch. Pl. & Pr. (4th Ed.) 2094-2108.

the said complainant, pursuant to any such agreement, or as seeks any other relief relating to such messuage and tenement, or as seeks any discovery from this defendant of and concerning any agreement made or entered into between the complainant and this defendant for sale by this defendant unto the said complainant of the said messuage and tenement, and not reduced into writing and signed by this defendant, or some person by him, this defendant, lawfully authorized, this defendant doth plead in bar, and for plea saith that by an act of parlia ment made in the 29th year of his majesty, King Charles II., entitled "An act for prevention of frauds and perjuries," it was (among other things) enacted that, from and after the 24th of June, 1677, no action should be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action should be brought, or some memorandum or note thereof, should be in writing, and signed by the party charged therewith, or by some other person thereunto by bim lawfully authorized, as by the said act may appear; and this defendant, for further plea, saith that neither he, this defendant, nor any person by him lawfully authorized, did ever sign any contract or agreement in writing for making and executing any sale or conveyance to the said complainant of the said messuage or tenement, or any part thereof, or any interest thereof, or to any such effect, or any memorandum or note in writing of any such agreement, all which matters and things this defendant doth aver to be true, and is ready to prove as this honorable court shall award; and therefore he doth plead the same in bar to so much and such parts of the said bill as aforesaid, and humbly prays the judgment of this honorable court whether he shall be compelled to make any further and other answer to so much and such parts of the said bill as are herein and hereby pleaded unto as aforesaid. And this defendant, not waiving his said plea, but wholly relying and insisting thereon, and in aid and support thereof, for answer to the residue of the said complainant's bill not hereinbefore pleaded unto, or to as much thereof as he, this defendant, is advised it is in any way material or necessary for him to make answer unto, answering, saith, etc.

§ 252. Division of pleas.

A plea may be either to the relief or to the discovery, or both. If it is a good plea to the relief, it will be good to the discovery. If, instead of a plea to the relief and discovery, the defendant puts in a plea to the relief only, he must give the discovery.73

78 Cooper, Eq. Pl. 235; Mitford, Eq. Pl. 218; Story, Eq. Pl. § 704; King v. Heming, 9 Sim. 59; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 625; Chapin v. Coleman, 11 Pick. (Mass.) 331; Welford v. Liddel, 2 Ves. Sr. 400; Baillie v. Sibbald, 15 Ves. 185.