§ 304. Other defenses proper by answer.

64

Where the subject-matter of the controversy is already in the possession of a court of competent jurisdiction, such defense may be taken by answer. An objection to a bill on the ground of want of equity may be so taken.65 A defense that the complainant has a perfect remedy at law must be presented by the pleadings. It may be presented by answer. If not raised by the pleadings, it is not available at the hearing.66 If improper and untrue allegations are inserted in the bill for the purpose of preventing a demurrer, and to give the court apparent jurisdiction, the defendant may, by answer, deny those allegations, and insist that, as to the other matters in the bill, the complainant has a remedy at law; and such an objection in the answer, while not a bar to discovery, will be a bar to the relief.67 An objection that there is an adequate remedy at law may be taken by answer after a demurrer on that ground has been overruled.68

(N. Y.) 452; Watson v. Conkling, 24 N. J. Eq. 230; Curtis v. Masten, 11 Paige (N. Y.) 15, asserting contract to be usurious under foreign law; Clarke v. Hastings, 9 Gray (Mass.) 64. For effect of evasive answers to bills charging usury, see Scott v. Hume, Litt. Sel. Cas. (Ky.) 378; Sallee v. Duncan, 7 T. B. Mon. (Ky.) 382.

64 Withers v. Denmead, 22 Md. 135; Macey v. Childress, 2 Tenn. Ch. 25. See, also, Brooks v. Delaplaine, 1 Md. Ch. 351; Albert v. Winn, 7 Gill (Md.) 446; Dunnock v. Dunnock, 3 Md. Ch. 141; High v. Batte, 10 Yerg. (Tenn.) 335; Connell v. Furgason, 5 Cold. (Tenn.) 401. That such defense should be asserted by plea, and not by answer, see Battell v. Matot, 58 Vt. 271, 5 Atl. 479; Murray v. Shadwell, 17 Ves. 353; Hertell v. Van Buren, 3 Edw. Ch. (N. Y.) 20; Pierce v. Feagans, 39 Fed. 587. See supra, § 258; post, § 365.

65 Harley v. Sanitary District of Chicago, 54 Ill. App. 337.

66 Livingston's Ex'rs v. Livingston, 4 Johns. Ch. (N. Y.) 287, 8 Am. Dec. 562; Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372, 36 N. E. 88; Creely v. Bay State Brick Co., 103 Mass. 514.

67 Fulton Bank v. New York & Sharon Canal Co., 4 Paige (N. Y.) 127. 68 Black v. Miller, 173 Ill. 489, 50 N. E. 1009; Anderson v. Olsen, 188 Ill. 502, 59 N. E. 239. By an act of congress it is provided that certain defenses may be set up in the answer in patent cases. Rev. St. U. S. § 4920; Hendy v. Golden State & Miners' Iron Works, 122 U. S. 370; Beach, Mod. Eq. Pr. § 342; Woodbury Patent Planing-Machine Co. v. Keith, 101 U. S. 479; Roemer v. Simon, 95 U. S. 214; Meyers v. Busby, 32 Fed. 670; Parks v. Booth, 102 U. S. 96; Saunders v. Allen, 53 Fed. 109.

§ 305. Matters occurring since the filing of the bill.

Facts that have occurred since the filing of the bill, and before the putting in of the answer, may be pleaded in such answer. 69 It is held that a defense of payment, even though made after bill filed, is properly made in the answer.70 But matter of defense which arises after the cause is at issue cannot be availed of by plea or answer, but must be asserted by a cross bill.71

$ 306. Frame of answer.

It

No particular form of words is necessary in an answer. is sufficient if it be not evasive, and if the substance is preserved.72 It is headed by a title as follows: "The answer of C. D., the defendant, to the bill of complaint of A. B., complainant." If two or more defendants join in the answer, it is entitled: "The joint and several answer of C. D. and E. F., defendants," etc., unless it be the answer of a man and his wife, in which case, in the absence of statutory changes in the status of married women, it is called "the joint answer."73 When any defect occurs in the title, so that it does not appear distinctly whose answer it is, or to what bill it is an answer, it will be a ground for taking it off the files for irregularity.74 An answer commences by reserving to the defendant all manner

69 Foster, Fed. Pr. § 144; Lyon v. Brooks, 2 Edw. Ch. (N. Y.) 110; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 713; Beach, Mod. Eq. Pr. § 331; Turner v. Robinson, 1 Sim. & S. 3.

70 Raelble v. Goebbel (N. J. Eq.) 6 Atl. 21.

71 Mills v. Larrance, 186 Ill. 635, 58 N. E. 219; Dunham v. Dunham, 162 Ill. 589, 44 N. E. 841, 35 L. R. A. 70; Burdell v. Burdell, 2 Barb. (N. Y.) 473; Jenkins v. International Bank, 111 Ill. 470; Story, Eq. Pl. § 393; Miller v. Fenton, 11 Paige (N. Y.) 18; Ferris v. McClure, 36 Ill. 77. See, however, French v. Bellows Falls Sav. Institution, 67 Ill. App. 179. See supra, § 243; post, § 889.

72 Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210.

73 1 Barbour, Ch. Pr. 140.

74 Griffiths v. Wood, 11 Ves. 62; Fulton County Sup'rs v. Mississippi & W. R. Co., 21 Ill. 338. See Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291.

of advantage which he might take by exception to the bill, for the purpose of avoiding the conclusion that the defendant, submitting to answer, must thereby be taken to admit everything which he does not controvert in express terms. The answers to the several matters in the bill, together with such additional matter as may be necessary for the defendant to show to the court, either to qualify or add to the case made by the bill, or to state a new case on his own behalf, next follow. This part of the answer is succeeded by a general denial of that combination which is usually charged in the bill, and the answer concludes by a general traverse or denial of all the matters alleged in the bill. An infant, being entitled to every exception to a bill, in a suit against him, without expressly saving it, the general saving at the commencement, the denial of combination, and the concluding traverse or denial are omitted in an answer by him."

75

$ 307. Signing the answer.

By the settled practice of the court of chancery in England, the answer of the defendant must be signed by him, unless an order has been obtained to take it without signature. Such order appears to have been necessary even where both parties consented, by their solicitors, that the answer might be put in without the signature of the defendant. To obtain such an order, where the defendant was abroad, the court required his written consent, or the evidence of a power from the defendant to his attorney or solicitor to put in an answer for him. Where an answer was put in without the defendant's signature, it was ordered to be taken off the files for irregularity; and as there was no suggestion that there was any defense to the suit, the answer

75 Cooper, Eq. Pl. 323; 1 Barbour, Ch. Fr. 140, 141; Mitford, Eq. Pl. 314; Davis v. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631; Story, Eq. Pl. §§ 869-873. There is no federal equity rule requiring a certificate of counsel that an answer to the merits is well founded in law. McGorray v. O'Connor, 87 Fed. 586. For frame of answer upon removal to federal court of case brought in state court, see City of Detroit v. Detroit City Ry. Co., 55 Fed. 569.

having evidently been put in for mere delay, it was made a part of the order that the complainant's bill be taken as confessed for want of an answer.76 An answer must be signed by counsel, unless it is taken by commissioners, in the country, under the authority of a commission issued for that purpose. In the latter case the signature of counsel is not required, the commissioners being responsible for the propriety of its contents, as it is supposed to be taken by them from the mouth of the defendant.77 If the answer is not signed by counsel, it will be taken off the file, on application of the complainant;78 but an answer will not be taken from the files where the interest of the complainant may be prejudiced by the proceeding.79 Where a joint, or joint and several, answer is interposed on behalf of several defendants, it can be considered as the answer only of those who signed it, unless verification is waived.so

§ 308. Swearing to answer.

In the absence of statute or rule of court, it is a general rule that answers must be put in upon oath, but, by consent of the par

76 Davis v. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631; Denison v. Bassford, 7 Paige (N. Y.) 370; Bayley v. De Walkiers, 10 Ves. 441; Rogers v. Cruger, 7 Johns. (N. Y.) 558; Van Valtenburg v. Alberry, 10 Iowa, 264; Kimball v. Ward, Walk. (Mich.) 439; Cook v. Dews, 2 Tenn. Ch. 496. The court has, under special circumstances, directed the clerk to receive an answer where it was not signed by the defendant; as where the defendant went abroad, forgetting or not having had time to put in his answer. v. Lake, 6 Ves. 171; Dumond v. Magee, 2

Johns. Ch. (N. Y.) 240.

77 Mitford, Eq. Pl. 315; Story, Eq. Pl. § 876; 1 Barbour, Ch. Pr. 142. But see May v. Williams, 17 Ala. 23.

78 Wall v. Stubbs, 2 Ves. & B. 358; Davis v. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631.

79 Bull v. Griffin, 2 Anstr. 563.

80 Ballard v. Kennedy, 34 Fla. 483, 16 So. 327. In some jurisdictions it is not necessary that an individual defendant should write his own name to an answer. Fulton County Sup'rs v. Mississippi & W. R. Co., 21 Ill. 338; Hatch v. Eustaphieve, Clarke Ch. (N. Y.) 63. An answer is sufficiently signed by defendant where he subscribed and executed an affidavit verifying the same. Ballard v. Kennedy, 34 Fla. 483, 16 So. 327.

ties and an order of court first obtained, an answer may be taken without oath. If the parties agree, however, that the answer shall be put in in this manner, it is a matter of course for the court so to order. This order should be applied for by the defendant on filing the written consent of the complainant's solicitor. The order cannot be obtained without such consent. When applied for by the complainant, the defendant's consent is not required, unless he is abroad, in which case the court requires the consent of counsel, and to be satisfied that the party instructing the counsel to consent is properly authorized by the defendant.81 The filing of a replication is evidence of a waiver of the oath of the defendant.82 Statutes or rules of court in most jurisdictions authorize an express waiver of the oath by the complainant in his bill, and in such case an answer may be put in without oath, and will have no other or further force as evidence than the bill.83 If the complainant waives an answer on the oath of the defendant, it should be distinctly so stated in the bill.84 According to the former English practice, it seems that the defendant was required to appear in person and swear to his answer before one of the masters in chancery.85 The practice is gen

81 Cooper, Eq. Pl. 325; 1 Barbour, Ch. Pr. 142, 143; Fulton Bank v. Beach, 6 Wend. (N. Y.) 36; Bayley v. De Walkiers, 10 Ves. 441; Billingslea v. Gilbert, 1 Bland (Md.) 566; Codner v. Hersey, 18 Ves. 468; Paige v. Broadfoot, 100 Ala. 610, 13 So. 426; Nesbitt v. Dallam, 7 Gill & J. (Md.) 494; Pincers v. Robertson, 24 N. J. Eq. 348.

82 Fulton Bank v. Beach, 2 Paige (N. Y.) 307.

88 1 Barbour, Ch. Pr. 143; Rev. St. Ill. c. 22, §§ 20, 21; United States Equity Rule 41.

841 Barbour, Ch. Pr. 143. Where defendants are not jointly interested in the claim brought against them in the bill, an answer on oath may be waived as to one defendant without such waiver as to the others. Bulkley v. Van Wyck, 5 Paige (N. Y.) 536.

85 Snowden v. Snowden, 1 Bland (Md.) 550. United States Equity Rule 59 provides that any defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory, or before any notary public.