§ 285. Form of order that plea stand for an answer.

[Title of court and cause.]

The plea of the defendant, C. D., to the bill of complaint in this cause, having heretofore come on to be argued, and the solicitors for the respective parties having been heard thereupon, and the court being fully advised in the premises,

It is ordered that the said plea do stand for an answer, with liberty to the complainant to except thereto.

§ 286. Overruling plea.

If, upon argument, the court is of opinion that the plea cannot under any circumstances be made use of as a defense, it is overruled.194 After a plea is overruled, the defendant may make a new defense.195 Where a plea has been fully discussed and overruled on the merits, the same matter cannot be set up in the answer, though in conjunction with other matter, except by special permission of the court.196 Where a plea has been overruled for informality, or where it may be a good answer to part of the bill only, the same matter may, by special leave, be insisted on by answer in bar of the relief only, but not in bar of discovery. 197 When the plea is set down for argument as to

lin, 11 Paige (N. Y.) 545; Brien v. Marsh, 1 Tenn. Ch. 629; Stuart v. Warren, 1 N. Y. Leg. Obs. 293; Maitland v. Wilson, 3 Atk. 814; Kirby v. Taylor, 6 Johns. Ch. (N. Y.) 242; Pearse v. Dobinson, L. R. 1 Eq. 241.

1941 Barbour, Ch. Pr. 123; Coster v. Murray, 7 Johns. Ch. (N. Y.) 167; Jarvis v. Palmer, 11 Paige (N. Y.) 650.

195 Tison v. Tison, 14 Ga. 167; Flagg v. Bonnel, 10 N. J. Eq. 82; Bush v. Bush, 1 Strob. Eq. (S. C.) 377. United States Equity Rule 34 requires that, on overruling a plea, defendant shall be allowed to answer. Wooster v. Blake, 7 Fed. 816.

196 Murray v. Coster, 4 Cow. (N. Y.) 617; Townsend v. Townsend, 2 Paige (N. Y.) 413; Tison v. Tison, 14 Ga. 167; Pentlarge v. Pentlarge, 22 Fed. 412; Sharon v. Hill, 26 Fed. 337. See, however, Goodrich v. Pendleton, 4 Johns. Ch. (N. Y.) 549; Coster v. Murray, 7 Johns. Ch. (N. Y.) 167; Ringgold v. Stone, 20 Ark. 526; Hoare v. Parker, 1 Cox, 228.

197 Murray v. Coster, 4 Cow. (N. Y.) 617; Jarvis v. Palmer, 11 Paige (N. Y.) 650; Townsend v. Townsend, 2 Paige (N. Y.) 413. If the defendant has a substantial defense, which cannot avail him under his plea, by reason of inaccuracy in pleading, he may have full benefit of it in his answer. Matthews v. Roberts, 2 N. J. Eq. 338.

its sufficiency, and the lower court holds the plea insufficient, the defendant may abide by his plea, and the court may thereupon. enter a decree on the bill. In such a case the only question presented on an appeal from the decree is as to the sufficiency of the plea, 198

§ 287. Form of order overruling plea.

[Title of court and cause.]

The plea of the defendant, C. D., to the bill of complaint in this cause, coming on to be argued before the court, and the solicitors for the respective parties having been heard thereupon, and the court, being fully advised in the premises, does hold the said plea to be insufficient, and therefore,

Orders that the same be overruled, and that the said defendant, C. D., answer the bill of complaint herein within days from this

date.

§ 288. Reference to a master.

Pleas of a former decree, or of another suit pending, are gen. erally referred to a master to inquire into the facts, and, if the master reports the plea true, the bill will be dismissed. The complainant may except to the master's report, and bring on the matter to be argued before the court.199 Though the usual prac

tice is, in case of a plea of another suit pending, to obtain an order of reference to a master to examine and ascertain whether the plea be true, yet, if set down for a hearing, it must be allowed, if not defective in form.200

§ 289. Form of order of reference.

[Title of court and cause.]

A plea having been filed in this cause averring that there is a former

198 Gage v. Harbert, 145 Ill. 530, 32 N. E. 543.

199 Story, Eq. Pl. § 700; 1 Hoffman, Ch. Pr. 225; Emma Silver Min. Co. v. Emma Silver Min. Co. of New York, 1 Fed. 39; Battell v. Matot, E8 Vt. 271, 5 Atl. 479; Morgan v. Morgan, 1 Atk. 53; Wild v. Hobson,

2 Ves. & B. 110; Tarleton v. Barnes, 2 Keen, 632.

200 Mitford, Eq. Pl. 305; Rowley v. Williams, 5 Wis. 151. Where a for mer suit pending is pleaded, complainant may take issue on the facts of the plea, or a reference to a master to ascertain whether both suits are for the same matter. McEwen v. Broadhead, 11 N. J. Eq. 129.

suit depending in this court for the same matters as are involved in the present suit, thereupon, on motion of G. H., solicitor for the defendant, A. B., it is ordered that it be referred to G. C., one of the masters in chancery of this court, to look into the bill and the said plea in this cause, and the bill in said plea mentioned to have been exhibited by the complainant against the defendant, and the proceedings therein, and to certify whether the said bill, formerly exhibited, is for the same matters as the complainant's bill in this cause, and whether the same is now depending.

§ 290. Hearing on plea.

If, at the hearing, the plea is not found to be true, it will be overruled as false, and the complainant will be entitled to a decree as on a bill taken as confessed.201 In such case the complainant will not lose the benefit of an answer if a discovery is necessary, and he may have an order to examine the defendant on interrogatories before a master as to the discovery sought by the bill.202 Where the complainant takes issue on the plea which, on the hearing, is not found to be true, he will be entitled to only the same decree as if the bill had been taken as confessed, and, if the allegations of the bill do not entitle complainant to any relief whatever, the bill should be dismissed. 203 Where a plea contains several distinct averments or allegations of fact, all the allegations must be supported by the proof, or the plea will be overruled as false.204 When a plea which meets and satisfies all the claims of the bill is put in issue, and the facts are found as therein stated, the bill must be dismissed.205

2011 Barbour, Ch. Pr. 125; Ferry v. Moore, 18 Ill. App. 135; Bell v. Simonds, 14 Mo. 100; Hunt v. West Jersey Traction Co. (N. J. Eq.) 49 Atl. 434; Miller v. United States Casualty Co. (N. J. Eq.) 47 Atl. 509. For a full consideration of this question, see Kennedy v. Creswell, 101 U. S. 641; Earll v. Metropolitan St. Ry. Co., 87 Fed. 528; Farley v. Kittson, 120 U. S. 303; Rouskulp v. Kershner, 49 Md. 516.

202 Mitford, Eq. Pl. 302; Dows v. McMichael, 2 Paige (N. Y.) 345; Kennedy v. Creswell, 101 U. S. 641; Brownsword v. Edwards, 2 Ves. Sr. 247.

203 Hurlbut v. Britain, 2 Doug. (Mich.) 191.

204 1 Barbour, Ch. Pr. 125; Dows v. McMichael, 6 Paige (N. Y.) 139; Flagg v. Bonnel, 10 N. J. Eq. 82; Miller v. United States Casualty Co. (N. J. Eq.) 47 Atl. 509.

205 Horn v. Detroit Dry Dock Co., 150 U. S. 610; Kennedy v. Creswell, 101 U. S. 641; Hunt v. West Jersey Traction Co. (N. J. Eq.) 49 Atl. 434; Miller v. United States Casualty Co. (N. J. Eq.) 47 Atl. 509.

CHAPTER XIII.

ANSWERS.

§ 291. In general.

An answer is the most usual defense to a bill. If the case is not such as to render a resort to a demurrer or plea advisable or necessary, or if the demurrer or plea is overruled, either wholly or in part, the defendant, unless he disclaims, must put in an answer to the bill. An answer generally controverts the facts stated in the bill, or some of them, and states other facts to show the rights of the defendant in the subject of the suit. But sometimes it admits the truth of the case made by the bill, and, either with or without stating additional facts, submits the questions arising upon the case thus made to the judgment of the court.2 It is capable of embracing more circumstances than a plea, and may therefore be used with greater propriety in cases where the defendant is not anxious to prevent a discovery, although the plea might be a complete bar. Where, by introducing additional circumstances, the complainant has an opportunity of showing his case in a more favorable light, the answer is the best mode of defense. Resort is frequently had to an answer in order to set up a defense which would be proper in a plea, for the reason that less certainty and precision are required in an answer than a plea.* Defense

11 Barbour, Ch. Pr. 130; Story, Eq. Pl. §§ 845, 846.

2 Story, Eq. Pl. § 849; Mitford, Eq. Pl. 15, 16.

1 Barbour, Ch. Pr. 130; Adams, Eq. 342; Story, Eq. Pl. §§ 849, 851; Mitford, Eq. Pl. 308, 309.

McCabe v. Cooney, 2 Sandf. Ch. (N. Y.) 314; Loud v. Sergeant, 1 Edw. Ch. (N. Y.) 164.

by plea and demurrer was originally unknown in equity pleading, and did not come into general use until comparatively recent times, and was borrowed from the common law.5

§ 292. Twofold nature of answer.

An answer in cases where relief is sought, properly consists of two parts, and serves a double purpose: First, that of answering the case as made by the bill; and, secondly, that of stating to the court the nature of the defense on which the defendant means to rely."

$293. Answering complainant's case.

The complainant is entitled to a discovery from the defendant of the matters charged in the bill, provided they are necessary or proper to ascertain facts material to the merits of the complainant's case, and to enable him to obtain a decree. If a defendant is called upon to make a discovery of the several charges contained in the bill, he must do so by a general answer to those charges, unless he can protect himself from it either by demurrer or plea or disclaimer. If he answers, he must, in general, answer fully to all the charges of the bill not covered by a demurrer or a plea or disclaimer. It is not sufficient to answer fully the special interrogatories in the bill, unless they extend to all the facts stated or charged in the bill

Langdell, Eq. Pl. § 92.

1 Barbour, Ch. Pr. 130; Story, Eq. Pl. § 850; Mitford, Eq. Pl. 15, 16; Langdell, Eq. Pl. § 79; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599; Whittemore v. Patten, 81 Fed. 527.

7 Cooper, Eq. Pl. 313; Story, Eq. Pl. § 845; Mitford, Eq. Pl. 9, 307.

8 Mitford, Eq. Pl. 308; 1 Barbour, Ch. Pr. 130; Story, Eq. Pl. § 846; Champlin v. Champlin, 2 Edw. Ch. (N. Y.) 362; Robertson v. Bingley, 1 McCord, Eq. (S. C.) 333; Atterbury v. Knox, 8 Dana (Ky.) 282; Woot ten v. Burch, 2 Md. Ch. 190; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Bank of Utica v. Messereau, 7 Paige (N. Y.) 517; Swift v. Swift 13 Ga. 140. He may answer in part, and by his answer state reasons why he should not be compelled to make further answer. Hunt v. Gookin, 6 Vt. 462; Fuller v. Knapp, 24 Fed. 100. See, however, Weis man v. Heron Min. Co., 57 N. C. 112. See post, § 294.