to which the complainant has a right to require an answer. If any facts are stated in the bill which are material to the complainant's case, they must be answered, even though the complainant does not call the defendant's attention to them by specific interrogatories.10 A defendant is not bound to answer an interrogatory unless it is founded on some allegation or charge in the bill. It is sufficient, however, if the interroga. tory is founded upon a statement in the bill which is inserted therein merely as evidence in support of the main charges.11 Where a fact is stated by way of recital, merely, without any interrogatory calling for an answer as to that fact, the defendant is not bound to admit or deny the same. If he admits the main fact charged in the bill, he need not answer to other matters which are stated merely as evidence of that fact.12 It is not sufficient for the defendant to state facts which, if true, would defeat the complainant's right to relief, but he must either admit or deny the charges in the bill.13 Where a charge in the bill embraces several particulars, the answer should be disjunctive, denying or admitting each particular statement.14

1 Barbour, Ch. Pr. 130, 131.

An

101 Barbour, Ch. Pr. 131; Hagthorp v. Hook's Adm'rs, 1 Gill & J. (Md.) 270; Miles v. Miles, 27 N. H. 440; Trustees of Methodist Episcopal Church v. Jaques, 1 Johns. Ch. (N. Y.) 65; Tucker v. Cheshire R. Co., 21 N. H. 29; McClaskey v. Barr, 40 Fed. 559; Supervisors of Fulton County v. Mississippi & W. R. Co., 21 Ill. 338; Chappell v. Funk, 57 Md. 465. Under United States Equity Rule 40, prior to its amendment, defendant was not bound to answer specifically, unless specific interrogatories were put in the bill. Treadwell v. Cleaveland, 3 McLean 283, Fed. Cas. No. 14,155; Wilson v. Stolley, 4 McLean, 272, Fed. Cas. No. 17,839; Parsons v. Cumming, 1 Woods, 461, Fed. Cas. No. 10,775. 11 Mechanics' Bank v. Levy, 3 Paige (N. Y.) 606; Mechanics' Bank of Alexandria v. Lynn, 1 Pet. (U. S.) 376; Grimm v. Wheeler, 3 Edw. Ch. (N. Y.) 334; Fuller v. Knapp, 24 Fed. 100. See McGarel v. Moon, L. R. 10 Eq. 22.

12 Mechanics' Bank v. Levy, 3 Paige (N. Y.) 606; 1 Barbour, Ch. Pr. 131; Newhall v. Hobbs, 3 Cush. (Mass.) 274. An express denial, in the answer, of a fact of the truth of which defendants admit themselves to be ignorant, is not a satisfactory denial of complainant's equity. Bailey v. Stiles, 3 N. J. Eq. 245.

13 Hopkins v. Medley, 97 Ill. 402.

14 Davis v. Mapes, 2 Paige (N. Y.) 105; King v. Ray, 11 Paige (N. Y.)

answer simply averring that the facts stated in a paper purporting to be the answer of another defendant in the cause "are substantially correct as far as these defendants are concerned" is defective in form and substance.15

§ 294. What must be answered.

Whatever the complainant is bound to state in his bill the defendant is bound to admit or deny in his answer to the bill.16 The rule for determining whether an answer to any particular averment in a bill is necessary is to ascertain whether it is material to the complainant to enable him to obtain the relief he seeks, to have the proof or admission of such averment. If the proof will avail the complainant in obtaining relief, he is entitled to an answer; otherwise, he is not.17 It is held in some jurisdictions that, if the matter charged be not material, the defendant need not answer it.18 But it has been said that the general rule requires the defendant to answer every question, without reference to whether it is or is not material, and that the court will take care that it shall not be applied in such a way as to be oppressive to the parties.19 To matters of law or inferences of law drawn from facts, he need not answer. 20 A defendant is not bound to answer matters which are purely scandalous,

236; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 146; Hepburn v. Durand, 1 Brown Ch. 503.

15 Carr v. Weld, 18 N. J. Eq. 41. While the general rule is that, where a defendant submits to answer, he must answer fully, this rule is subject to exception and modification according to the circumstances of the case; as where the defendant objects to discovery because the complainant has no title. Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205, where the question is fully discussed by Chancellor Kent. See, also, French v. Rainey, 2 Tenn. Ch. 640; Beach, Mod. Eq. Pr. § 337. 16 Van Cortlandt v. Beekman, 6 Paige (N. Y.) 492.

17 Batterson v. Ferguson, 1 Barb. (N. Y.) 490.

18 Dinsmoor v. Hazelton, 32 N. H. 535; Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210; Wootten v. Burch, 2 Md. Ch. 190; Hardeman v. Harris, 7 How. (U. S.) 726; Dyer v. Martin, 5 Ill. 146.

19 Wootten v. Burch, 2 Md. Ch. 190; Hogencamp v. Ackerman, 10 N. J. Eq. 267.

20 Story, Eq. Pl. § 846: 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 719.

or impertinent, or immaterial, or irrelevant ;21 nor anything that would subject him to penalty, forfeiture, or punishment.22 The rule that, where a defendant answers, he must answer fully, does not apply where the defendant is a purchaser for a valuable consideration without notice; nor where the complainant has no title; nor where executors are defendants, and the demand has become stale from lapse of time; nor where the defendant is a judgment creditor, and the bill is filed by a subsequent purchaser, and seeks to impeach the consideration or validity of the judgment; nor where a defense is set up which meets and controverts the complainant's title; nor where a bill is filed for an account of partnership transactions, and the defendant denies the partnership;23 nor where the defendant is called upon to answer whether his transactions with a third person are usurious or not, at the instance of a creditor of that third person who does not himself complain or seek discovery, especially if there is no charge of fraud.24 Where certain documents are set forth historically in the stating part of the bill, the defendant is not bound to answer to the facts contained or stated in such documents unless particularly stated, distinct from the documents, but he must answer to the fact of

21 Mitford, Eq. Pl. 307; 1 Barbour, Ch. Pr. 132; Story, Eq. Pl. § 846; Hagthorp v. Hook's Adm'rs, 1 Gill & J. (Md.) 270; Butler v. Catling, 1 Root (Conn.) 310; Kisor v. Stancifer, Wright (Ohio) 323; Davis v. Mapes, 2 Paige (N. Y.) 105.

22 Mitford, Eq. Pl. 307; Story, Eq. Pl. § 846; Champlin v. Champlin, 2 Edw. Ch. (N. Y.) 362; Butler v. Catling, 1 Root (Conn.) 310; Wolf v. Wolf's Ex'r, 2 Har. & G. (Md.) 382, 18 Am. Dec. 313; Winsor v. Bailey, 55 N. H. 218; Leggett v. Postley, 2 Paige (N. Y.) 599; Bank of United States v. Biddle, 2 Pars. Eq. Cas. (Pa.) 31; Atterberry v. Knox, 8 Dana (Ky.) 282; Wootten v. Burch, 2 Md. Ch. 190. Where a defendant's answer is, by legislation, made inadmissible against him, when he is charged with a misdemeanor, he will be compelled to answer the bill. City of Philadelphia v. Keyser, 10 Phila. (Pa.) 50; Ex parte Cohen, 104 Cal. 524, 38 Pac. 364, 26 L. R. A. 423; Bradley v. Clark, 133 Cal. 196, 65 Pac. 395. But see Counselman v. Hitchcock, 142 U. S. 547; Emery's Case, 107 Mass. 172; Cullen v. Com., 24 Grat. (Va.) 624.

23 Cooper, Eq. Pl. 312; Mitford, Eq. Pl. 307; 1 Barbour, Ch. Pr. 132. 24 Smith v. Fisher, 2 Desaus. (S. C.) 275; 1 Barbour, Ch. Pr. 132.

(321)

the existence of the documents, according to his knowledge or his information and belief.25 He is not bound to answer where the matters as to which the answer is sought would, if answered, involve a breach of professional confidence, 26 nor where the discovery sought respects the defendant's own title.27 In those cases where the defendant does not think proper to defend himself from a discovery by a demurrer or plea, he is permitted, by answer, to insist that he is not obliged to make the discovery. The complainant may thereupon except to the defendant's answer as insufficient, and upon such exception it will be deter mined by the court whether the defendant is or is not obliged to make the discovery. 28

§ 295. Allegations of fraud.

Fraud must be answered if charged in the bill in such manner as to enable the court to grant relief.29 Where transactions are charged involving fraud, either actual or constructive, and especially where direct interrogatories are put in relation to particular facts, the court will not be satisfied with a general answer, or one in any way evasive.30

§ 296. Answering only own case.

Where a defendant has answered all the circumstances of his own case, and as far as he has any concern in the matter of the

25 1 Barbour, Ch. Pr. 132.

26 Story, Eq. Pl. § 846; Champlin v. Champlin, 2 Edw. Ch. (N. Y.) 362; Robertson v. Bingley, 1 McCord, Eq. (S. C.) 333; Jones v. Pugh, 12 Sim. 470; Greenough v. Gaskell, 1 Mylne & K. 98.

27 Story, Eq. Pl. § 846; Cuyler v. Bogert, 3 Paige (N. Y.) 186. Defendant is not bound to answer to an allegation as to his own insolvency. Mayer v. Galluchat, 6 Rich. Eq. (S. C.) 1.

28 Cooper, Eq. Pl. 312; Story, Eq. Pl. § 846; Mitford, Eq. Pl. 307, 308. 29 Hentz v. Delta Bank, 76 Miss. 429, 24 So. 902; Box v. Stanford, 13 Smedes & M. (Miss.) 93, 51 Am. Dec. 142; Burnley v. Jeffersonville, 3 McLean, 336, Fed. Cas. No. 2,181; Siffkin v. Manning, 4 Edw. Ch. (N. Y.) 37; Mechanics' Bank v. Levy, 1 Edw. Ch. (N. Y.) 316; Bell v. Henderson, 6 How. (Miss.) 311; Pettit v. Candler, 3 Wend. (N. Y.) 618; Smith v. Loomis, 5 N. J. Eq. 60.

80 Scull v. Reeves, 3 N. J. Eq. 84.

bill, he will not be compelled to answer the further matters or circumstances of the bill; yet, if he does answer a part of the circumstances, or state a part of the conversation, he will be compelled to state the whole.31

§ 297. Answer as defense.

Under United States Equity Rule 39, the defendant is entitled in all cases, by answer, to insist upon all matters of defense (not being matters of abatement, or to the character of the parties, or matters of form), in bar of or to the merits of the bill, of which he may be entitled to avail himself by plea in bar.32 As a general rule, he can pray nothing but to be dismissed, and, if he has any relief to pray or discovery to seek, he must do so by cross bill.33 Besides answering the case made by the bill, the defendant must state in his answer all the circumstances of which he intends to avail himself by way of defense; for he is bound to apprise the complainant by his answer of the nature of the case he intends to set up, and he cannot avail himself of any matter which is not stated in his answer, even though it should appear in his evidence.34 A complainant has a right to be informed by the answer, not only of all the facts to be proved, but of the use to be made of them, and of the nature of the conclusions intended to be drawn

31 Story, Eq. Pl. § 857; Cooper, Eq. Pl. 315; Cookson v. Ellison, 2 Brown Ch. 252; Jones v. Wiggins, 2 Younge & J. 385.

32 Foster, Fed. Pr. (3d Ed.) § 144. See Story, Eq. Pl. § 847. Defendant, by a reservation in his answer, may have the same benefit of matters that he would be entitled to if he had adopted the more concise mode of defense by demurring or pleading, in all cases where vital defects exist as to the merits of the case. Meux v. Anthony, 11 Ark. 411, 52 Am. Dec. 274.

33 Beach, Mod. Eq. Pr. § 331; Miller v. Gregory, 16 N. J. Eq. 274; Armstrong v. Chemical Nat. Bank, 37 Fed. 461; Beck v. Beck, 43 N. J. Eq. 39; Duryee v. Linsheimer, 27 N. J. Eq. 366; Leicester Piano Co. v. Front Royal & Riverton Improvement Co., 55 Fed. 190.

341 Barbour, Ch. Pr. 137; Van Dyke v. Davis, 2 Mich. 144; Warren v. Warren, 30 Vt. 530; Stanley v. Robinson, 1 Russ. & M. 527; Moores v. Moores, 16 N. J. Eq. 275; Crone v. Crone, 180 111. 599, 54 N. E. 605; Amberg v. Nachtway, 92 Ill. App. 608.