§ 1414. Bill laying a foundation for some relief not demurrable.— A bill is not as a whole demurrable if it lay a foundation for some of the discovery and relief asked for. Buerk v. Imhaeuser,* 8 Fed. R., 457.

§ 1415. A demurrer for multifariousness cannot be filed by one who is not affected by the fault. Ibid.

§ 1416. Lapse of time, etc., cannot be considered on demurrer.- No circumstance such as lapse of time, statute of limitations, or any other defense, can be taken into consideration on demurrer. Burnley v. Jeffersonville, 3 McL., 336. (Overruled.)

§ 1417. A defense depending upon a state statute should be set up by plea or answer, and not by demurrer. Griffing v. Gibb,* 2 Black, 519.

§ 1418. Capacity of assignee in bankruptcy cannot be questioned by demurrer. The defendant cannot raise by demurrer to the plaintiff's bill the question whether the plaintiff is the lawful assignee of a bankrupt, the plaintiff having brought the bill in that capacity; but such defense must be set up in a plea. Nicholas v. Murray, 5 Saw., 320.

§ 1419. Demurrer to allegation in bill of discovery, an answer to which would subject defendant to penalty. If an answer to an allegation in a bill for discovery may subject the defendant to a penalty or forfeiture under United States statutes concerning copyrights, the defendant may demur to such allegation; and such demurrer will be sustained. Chapman v. Ferry, 12 Fed. R., 693.

§ 1420. Evidence cannot be forced into pleadings for the sake of demurring to it.— Bill for injunction against a bankrupt to prevent him from collecting and applying to his own use the debts. The bankrupt prays oyer of the petition in bankruptcy, recites it at large, and demurs to it. This is an endeavor to force evidence into the pleadings and demur to it, which is not allowable. The demurrer will therefore be taken to apply to the bill only, and the recital of the bankruptcy petition will be rejected as surplusage. Blackburn v. Stannard,* 5 L. R., 250.

3. Plea.

SUMMARY- Requisites of a good plea, § 1421.— Plea to jurisdiction, when heard, §§ 1442-23.Dilatory plea not different from any other, § 1424.- Plea to jurisdiction, when without oath, § 1425.- What facts are to be sworn to, §§ 1426-27.- Unsupported plea must answer whole bill, § 1428.— Plea of good faith and valuable consideration must state consideration, § 1429.— Substance of plea not to be questioned by motion to strike out, § 1430.

§ 1421. A plea is a special answer to the bill, relying upon one point sufficient to bar, delay or dismiss the suit. It need not admit or deny all allegations of the bill, and, when it professes to go to the whole bill, does not require to be supported by an answer covering the allegations irrelevant to the point relied upon. If it go only to a part of the bill the remainder must be answered. Sims v. Lyle, § 1431.

§ 1422. The pendency of a plea to the jurisdiction precludes all action of the court till it is decided. Ewing v. Blight, §§ 1432-33.

§ 1423. An immediate hearing of a dilatory plea will be ordered if necessary in aid of justice. Ibid.

§ 1424. A plea to the jurisdiction need not be filed within four days, as in actions at law, there being no distinction in equity between dilatory and other pleas. Ewing v. Blight, SS 1434-37.

§ 1425. A plea to the jurisdiction or in bar of any matter of record may be put in without oath, provided the truth of the plea appear by some record. Ibid.

§ 1426. When the facts averred in the plea are of defendant's own knowledge they must be sworn to positively; if they are not necessarily within his knowledge, they need not be sworn to positively, but an affidavit of belief will be sufficient. Ibid.

§ 1427. Domicile of plaintiff is not a fact to which defendant must necessarily swear positively. Ibid.

§ 1428. When a bill charges fraudulent misrepresentations, and avers also an agreement on part of defendant to execute a mortgage of real estate, and a failure to perform this agreement, it is not sufficient for defendant merely to plead the statute of frauds, but he must also answer the charges and allegations of the bill. Bailey v. Wright, § 1438.

§ 1429. To a bill by one claiming to be owner of a patent-right against one who is alleged to have obtained the title thereto fraudulently, a plea that defendant is a bona fide purchaser for a good and valuable consideration must state the consideration and the amount thereof. Secombe v. Campbell, § 1439.

§ 1430. If a plea be regular in form its sufficiency cannot be inquired into upon motion to strike out. Tyler v. Hyde, § 1440.

[NOTES.-See SS 1441-1496.]

SIMS v. LYLE.

(Circuit Court for Pennsylvania: 4 Washington, 301-304. 1822.)

STATEMENT OF FACTS.-A plea being filed which professed to go to the whole bill, a motion was made to overrule the plea upon grounds appearing in the opinion.

Opinion by WASHINGTON, J.

The ground of the present motion is that the plea does not admit or deny all the allegations stated in the bill, and therefore an answer to that extent is so indispensable that the court must overrule the plea, whether the matter pleaded amount to a bar or not.

§ 1431. What is a good plea in bar in equity.

The court can by no means accede to this proposition. The practice of the courts of equity is quite otherwise. A plea, being nothing more than a special answer to the bill, setting forth and relying upon some one fact, or a number of facts, tending to one point, sufficient to bar, delay or dismiss the suit, it would be a vice in the plea to cover any other parts of the bill than such as concern the particular subject of the bar, its office being to reduce the cause, or some part of it, to a single point, and thus to prevent the expense and trouble of an examination at large. It is true that all facts essential to render the plea a complete defense to the bill, so far as the plea extends, must be averred in it or it will be no defense at all. If the plea be to the whole of the bill it must cover the whole; that is, it must cover the whole subject to which the plea applies and which it professes to cover, or it will be bad. As if the bill respect a house and so many acres of land, and the plea, professing to cover that charge, pleads only in bar as to the house; but if it cover the whole subject, and contains a full defense in relation to it, there is no necessity, nor would it be proper, to notice other parts of the bill not involved in the subject to which the plea applies. If the plea be only to a part of the bill the rest of the bill ought to be answered, or else the court would consider the parts not embraced by the plea, or answered, as true.

But there is no instance where the plea contains in itself a full defense to the bill that an answer is necessary, unless it is rendered so in order to negative some equitable ground stated in the bill for avoiding the effect of the anticipated bar; as where fraud, combination, facts intended to avow the force of the statute of frauds, or to bring the plaintiff within some of the exceptions to the act of limitations, as the one or the other of these defenses may be expected; and in those and similar cases the defendant is bound not only to deny those charges in his plea, but to support his plea by an answer also denying them fully and clearly. If every plea required an answer to accompany it there would be no use for the twentieth rule lately established by the supreme court (which is conformable to the English practice), which declares that, if the plea be overruled, the defendant shall proceed to answer the bill, since the argument supposes that the bill has already been answered.

In this case the plea professes to go to the whole bill and does not, in fact, cover the whole subject to which the plea applies, and if the matter of it be a full defense to the suit it is unnecessary to answer other parts of the bill not involved in the subject which forms the ground of the defense.

The plaintiff's counsel will be at liberty to argue the plea on its merits, or to reply to it, as he may think proper.

EWING v. BLIGHT.

(Circuit Court for Pennsylvania: 3 Wallace, Jr., 139, 140. 1885.)

STATEMENT OF FACTS.- During the pendency of a plea to the jurisdiction an application was made for an injunction and a receiver.

1432. The court will not grant an injunction or appoint a receiver while its jurisdiction is in question.

Opinion by GRIER, J.

The pendency of a plea to the jurisdiction of the court necessarily precludes all further action of the court till it is decided. This rule of practice is

founded on reason as well as fortified by authority. 13 Ves., 164.

While the jurisdiction of the court or the equity of the bill is in doubt by the pendency of a plea or demurrer, it would be highly improper for the court to interfere by the exercise of such high powers over men's property.

§ 1433. An immediate trial of the dilatory plea will be ordered if necessary. The court have it always in their power to guard against the abuse of dilatory pleas. If any irremediable mischief should impend, which it is absolutely necessary to meet with promptness, or if there be any just suspicion that the plea or demurrer is merely intended for delay, the court will order an immediate hearing or trial of the plea.

If an issue be desired to try the plea of jurisdiction in this case it will be ordered, or any other rule which complainant may desire, for the purpose of expediting the final hearing in case the jurisdiction should be found to exist.

EWING v. BLIGHT.

(Circuit Court for Pennsylvania: 3 Wallace, Jr., 134-138. 1855.)

STATEMENT OF FACTS.- Plea to the jurisdiction was filed twenty-five days after the bill was filed. The plea denied that complainant was a resident of another state as alleged in the bill.

§ 1434. Rules at law in the matter of dilatory pleas.

Opinion by GRIER, J.

The rules in courts of law, with regard to dilatory pleas, are very stringent, and require them to be put in within four days after the term to which the declaration is filed, counting both days inclusive. They require also that the affidavit to the truth of the plea be positive and not according to the belief of the deponent. In the practice of those courts, also, a dilatory plea, not filed in time or subsequently authenticated, may be treated as a nullity, and the party making it defaulted for want of a plea.

$1435. Equity practice as to dilatory pleas.

But such is not the course of practice in courts of equity. By the rules of this court the defendant may enter his plea, demurrer or answer to the bill at any time before or on the next rule day succeeding that of his appearance. There is no distinction made between pleas to the jurisdiction, or that called dilatory pleas and any other pleadings. Nor can the complainant treat the plea filed as a nullity and enter an order taking the bill pro confesso, where the plea is not sufficiently verified. The proper mode of taking advantage of a formal defect of this description is by an application for an order setting aside the pleading, or to take it off the files for irregularity. Wall v. Stubbs, 2 Ves. & B., 385; Heart v. Corning, 3 Paige, 570.

Entry in clerk's office rescinded.

Upon motion to set aside the plea because it was not adequately verified the following opinion was delivered:

§ 1436. Rule for verification of pleas to the jurisdiction — and exception to that rule.

Opinion by GRIER, J.

It has been said by Lord Redesdale "that pleas to the jurisdiction of the court, or in disability of the person of the plaintiff, as well as pleas in bar of any matter of record, may be put in without oath." But this is true only where the truth of the plea appears by some record. For it is now well settled that wherever the plea puts in issue matter in pais, or which may be established on the hearing by the testimony of witnesses, it should be verified by oath.

The principle upon which the court acts in requiring pleas to be put in upon oath is that it will not permit a defendant to delay or evade the discovery sought unless he will first pledge his oath to the truth (or at least to his belief of the truth) of the facts upon which he relies in all cases where the facts are those of which the court does not take official notice.

Where the facts averred in the plea are of the defendant's own knowledge, or acts done by himself, they must be sworn to positively. If they are acts done by others, not necessarily within his knowledge, they need not be sworn to positively. It is sufficient if he swears to his belief of their truth, and this more especially where the plea is negative and denies some fact alleged affirmatively in the bill; as where the bill alleges that the complainant is heir, executor, or partner. Drew v. Drew, 2 Ves. & B., 169; Heart v. Corning, 3 Paige, 570. There is no distinction in equity between pleas to the jurisdiction or other pleas.

1437. Domicile of opposing party need not be sworn to as of knowledge. The bill in this case avers that the complainant is a citizen of New Jersey, and of course not a citizen of Pennsylvania. This averment is necessary to give the court jurisdiction. The plea denies the fact as averred, and affirms the negative inference assumed from it. Although in strictness it may be said to deny the allegation of the bill by affirming a positive fact, inconsistent with such averment, it may, nevertheless, be considered a negative plea taking issue on an averment of the bill necessarily within the personal knowledge of defendant. Domicile or citizenship depends not only on the acts, but the secret or declared intentions, of the party of whom it is averred. It is the predicate often of very nice legal distinctions, as well as facts and intentions of which another may not be cognizant. It is generally an opinion of belief founded partly on facts known, and partly on information from others. In many cases one man may have such a thorough knowledge of the birthplace and residence of another, and the acts of his whole life, that he may conscientiously swear to his citizenship or domicle absolutely and positively. But in many cases a defendant cannot have such knowledge, and can only swear to his belief.

Where an answer sets forth a detail of numerous facts, some on the knowledge of the defendant and others on information, the oath usually makes such distinction. But a plea denying the citizenship of the complainant, being to a single fact, never sets forth the particular facts or reasons which enter into the result. Hence the form of the oath to an answer is not usually found attached to a plea denying a single fact.

If the fact denied be not within the personal knowledge of the deponent

he can but swear to his belief, and the rules of pleading in chancery require no more. It is not necessary to set forth the reasons of such belief, or to distinguish between how much of it is founded on information, how much on personal knowledge, and how much on legal investigation or instruction of counsel. Few persons are capable of such an analysis of their own faith. The law should not compel a party to swear rashly, under penalty of losing his rights. The motion to strike out the plea for want of a sufficient verification is therefore refused.

BAILEY v. WRIGHT.

(Circuit Court for Ohio: 2 Bond, 181-183. 1868.)

Opinion of the COURT.

STATEMENT OF FACTS.-The bill in this case alleges, in substance, that upon certain false and fraudulent representations by the defendants the complainant was induced to make an advance to them of $20,000, to be invested in the purchase of cotton for the benefit of all the parties. It is averred, also, that as an inducement for making said advance, and an indemnity therefor, the defendant Wright represented himself as the owner of valuable real estate in Cincinnati, which he promised to mortgage to the complainant to secure him against loss for said advance in money. The bill contains direct allegations of fraud on the part of defendants, prays for an account, and for a decree requiring the defendant Wright to execute a mortgage on the real estate in Cincinnati, according to his promise.

The defendant Wright has filed a plea to the bill, denying all the allegations of fraud, and averring, as to the averment of the bill that he promised to execute a mortgage of real estate, that if any such promise was made it was verbal, and therefore void under the statute of frauds.

§ 1438. When a bill shows facts which tend to take a parol contract out of the statute of frauds the defendant cannot merely plead the statute, but must answer the charges of the bill.

The pending motion in the case is for an order to withdraw the plea from the files, and to require an answer to the merits. The only question intended to be presented on this motion is whether, under the allegations of the bill, the defendant Wright can rely on his averment that the promise to execute the mortgage was void under the statute of frauds, without an answer in response to the charges of fraud in obtaining the advances of money by the complainant.

The defendant has an undoubted right to set up that the agreement to mortgage was by parol, and therefore void. But the law seems now to be well settled, that where facts are asserted in a bill, the effect of which may be to take a verbal agreement out of the operation of the statute of frauds, it is incumbent on the respondent to respond by answer to such facts. This would seem to be the fair construction of the thirty-second rule of the rules of practice in chancery, adopted by the supreme court for the guidance of the courts of the United States. And such seems to be the law applicable to the question as laid down by Judge Story. Story's Eq. Plead., 591.

It is clear that a plea merely setting up the invalidity of an agreement under the statute of frauds, where other facts are averred in the bill in support of the complainant's equity, and which may be of a character to require a court to ignore the plea of the statute, the defendant should be required to file his answer to such facts. Such, it seems to the court, is in accordance with