rule of equity practice established by the United States supreme court. Wickliffe v. Owings, 17 How., 47.

§ 1495. A plea in abatement to a suit brought in a circuit court of the United States by a citizen of Massachusetts, that all the defendants are not citizens of California or of the United States, but several, naming them, are each and all aliens and citizens of China, excepting one, "who is an alien," is bad on demurrer - first, for uncertainty; secondly, because the court has jurisdiction over suits between citizens of the United States and aliens; thirdly, because the words "who is an alien" do not disclose the party's citizenship. Hinckley v. Byrne, Deady, 224.

§ 1496. The twenty-third rule of the United States supreme court for the regulation of equity practice in the federal circuit courts is understood to apply to matters applicable to the merits, and not to mere pleas to the jurisdiction; and, especially, to those founded on any personal disability or personal character of the party suing, or to any pleas merely in abatement. The rule does not allow a defendant, instead of filing a formal demurrer or a plea, to insist on any special matter in his answer, and have also the benefit thereof, as if he had pleaded the same matter or had demurred to the bill. In this respect the rule is merely affirmative of the general rule of chancery practice, in which matters in abatement and to the jurisdiction, being preliminary in their nature, must be taken advantage of by plea, and cannot be taken advantage of in a general answer, which necessarily admits the right and capacity of the party to sue. Livingston v. Story, 11 Pet., 351.

4. Answer.

[See EQUITY.]

SUMMARY-Information and belief, §§ 1497-99, 1501, 1502.— Insufficient answer, § 1500.— Answer under thirty-ninth equity rule, §§ 1503–1506.— Answer, joint and several, § 1507.Signature, § 1508.— Answer to interrogatories by corporation, §§ 1509–10.— Answer when no note is appended, § 1511.- Exceptions to part, § 1512.- Whether part of answer may be heard separately, § 1513.— Impertinence, §§ 1514-15.— Answer to interrogatory, when necessary, § 1516.— Answer as evidence, § 1517.

§ 1497. When defendant is required to answer as to his knowledge, remembrance, information and belief, it will not be sufficient for him to answer as to his knowledge only. Brooks v. Byam, SS 1518-22.

§ 1498. If the answer state that defendant believes an allegation of the bill to be true it will be taken as true. If the statement be that defendant has no knowledge of the fact there will be no such admission, but the answer will be insufficient. Ibid.

§ 1499. No universal rule can be given as to answers upon information and belief, as there may be many shades of doubt and uncertainty in defendant's mind. In every case he must answer conscientiously as to his state of mind, and as fully as circumstances permit. Ibid. § 1500. A plaintiff is not obliged to accept a doubtful or insufficient answer, though it would be interpreted favorably to him. Ibid.

§ 1501. When defendants are required to answer an interrogatory it is not sufficient for them to state that they are ignorant; they must give their information and belief. Kittredge v. Claremont Bank, §§ 1523-24.

§ 1502. Officers of a bank, when required to answer upon their information and belief, must ascertain, as nearly as may be, the truth of the matters, by consulting records, asking their predecessors, etc. Ibid.

§ 1503. Under the thirty-ninth equity rule of the supreme court a defendant need not answer further than he would be obliged to answer upon filing a plea, and an answer supporting it, provided he sets out in his answer the matter of such plea in bar to the merits of the bill. Gaines v. Agnelly, §§ 1525-31.

1504. If the bar set up be sufficient it is immaterial whether or not the defendant answer the allegations of the bill. If he does notice allegations outside of the strict line of his defense he is not held thereby to have waived his bar, and to be obliged to answer fully, as under the former practice, in case of an answer supporting a plea. Ibid.

§ 1505. Under the thirty-ninth rule, if defendant sets up a bar in his answer plaintiff must prove his bill, and has not the benefit of a full answer from defendant, but he has a right to call defendant as a witness. Ibid.

§ 1506. If the bar set up in the answer be insufficient, plaintiff may either except, when defendant would require leave of court before amending, or he may go to proofs, in which case he must prove his bill; or he may set the cause down for hearing on bill and answer,

when the answer would be taken as true, the bar as proved, and the bill would be dismissed unless the answer admitted those allegations on which the prayer for relief was grounded. Ibid.

§ 1507. A joint answer of defendants need not be made several also, though such is the general practice. Davis v. Davidson, §§ 1532-33.

§ 1508. An answer in equity must be signed by counsel, unless the answer is taken by commissioners. Ibid.

§ 1509. In an equity suit against a corporation, where the note appended to the interrogatories only requires the officers of the corporation to answer, the corporation need not answer, nor the officers, unless they are parties defendant. French v. First National Bank, §§ 1534–36. § 1510. A corporation required to answer interrogatories may answer them under seal and without oath, the answer being stated to be according to the knowledge, information and belief of its officers. Ibid.

§ 1511. Where, under the equity rules, a defendant is obliged to answer only such interrogatories as by note he is required to answer, and no note is appended, a general answer to the stating part of the bill is all that is necessary from him. Buerk v. Imhaueser, § 1537. •

§ 1512. When the answer contains, among other things, a single substantive defense, not responsive to the bill, plaintiff cannot except to this part alone of the answer. Adams v. Bridgewater Iron Co., §§ 1538-39.

§ 1513. Quære, whether a defense set up in a part of the answer may be heard separately, without going into the whole case. Ibid.

§ 1514. An allegation in an answer impeaching the due execution of a codicil already probated by the proper court is impertinent. Langdon v. Goddard, § 1540-42.

§ 1515. An allegation in an answer setting up an attempted settlement by defendant, which was never accepted by plaintiff, is impertinent. Ibid.

§ 1516. Though an interrogatory be not as full as it might have been made, yet, in so far as it states the plain import and object of the question, the defendant will be required to give a full and direct answer. Ibid.

§ 1517. An answer in equity will prevail in favor of defendant, unless overcome by the testimony of two witnesses, or of one witness and corroborating circumstances. Hayward v. Eliot National Bank, § 1543. See EQUITY.

[NOTES.-See §§ 1544-1665.]

BROOKS v. BYAM.

(Circuit Court for Massachusetts: 1 Story, 296–307. 1840.)

STATEMENT OF FACTS.- Bill in equity for an injunction against the further prosecution of a suit at law brought by present defendants against present plaintiff. Plaintiff excepts to the answer of one of the defendants.

§ 1518. Proper method of excepting for insufficiency of answer. Opinion by STORY, J.

The question arising in this case is upon the exception taken by the plaintiff in equity to the answer of Prentiss Whitney, one of the defendants, "because, in stating in his answer what he has been informed of by Byam (another defendant), he does not say whether he actually believes the same to be true." Certainly this exception is taken in a form and manner entirely too general to be upheld by the court. The exception should have stated the charges in the bill, and the interrogatory applicable thereto to which the answer is addressed, and then have stated the terms of the answer verbatim, so that the court without searching the bill and answer throughout, might at once have perceived the ground of the exception and ascertained its sufficiency. It is very properly observed by the vice-chancellor, Sir John Leach, in Hodgson v. Butterfield, 2 Sim. & Stu., 236, that, "if the plaintiff complains that a particular interrogatory of the bill is not answered, he must state the interrogatory in the very terms of it, and cannot impose upon the court the trouble of first determining whether the varied expressions of the interrogatory and the exception are to be reconciled." See, also, Gresley on Evid., 21. To which it may be added, that the same rule applies in respect to the necessity of stating

the charge or fact in the bill on which the interrogatory is founded; for, if the interrogatory be irrelevant to the matters charged in the bill, the defendant need not answer the interrogatory at all. Mitford, Eq. Pl. by Jeremy, 45; Cooper, Eq. Pl., 12; Gilb. For. Roman, 91, 218; Story on Equity Plead., § 36; Gresley on Evid., 17 to 20, Am. edit. 1837; Story on Equity Plead., § 853; Harrison, Ch. Pract. by Newland, ch. 31, p. 181. The court ought, therefore, without searching through the whole bill, from the form of the exception, to have the materials fully before it by which to ascertain at once its competency and propriety. In this respect the exception is in itself insufficient and exceptionable. The objection, however, has not been insisted upon at the bar. 1519. When defendant is required to answer as to his knowledge, remem brance, information and belief, it is not sufficient for him to answer as to his knowledge alone.

Nothing is more clear in principle than the rule that, in the case of an interrogatory pertinent to a charge in the bill, requiring the defendant to answer it "as to his knowledge, remembrance, information and belief" (which is the usual formulary), it is not sufficient for the defendant to answer as to his knowledge; but he must answer also as to his information and belief. The plain reason is that the admission may be of use to the plaintiff as proof if the defendant should answer as to his belief in the affirmative without qualification. Thus, although a defendant should state that he has no knowledge of the fact charged, if he should also state that he has been informed and believes it to be true, or simply that he believes it to be true, without adding any qualification thereto, such as that he does not know it of his own knowledge to be so, and therefore he does not admit the same, it would be taken by the court as a fact admitted or proved; for the rule in equity generally (although not universally) is that what the defendant believes the court will believe. 2 Daniell, Chan. Prac., 257; id., 402; Gresley on Evid., 19, 20; Potter v. Potter, 1 Ves., 274; Carth v. Jackson, 6 Ves., 37, 38; Story on Eq. Plead., § 854. The rule might, perhaps, be more exactly stated as to its real foundation by saying that whatever allegation of fact the defendant does not choose directly to deny, but states his belief thereof, amounts to an admission on his part of its truth, or that he does not mean to put it in issue as a matter of controversy in the cause. But a mere statement by the defendant, in his answer, that he has no knowledge that the fact is as stated, without any answer as to his belief concerning it, will not be such an admission as can be received as evidence of the fact. 2 Daniell, Ch. Pr., 257; id., 402; Coop. Eq. Pl., 314; Harris, Ch. Pract. by Newl., ch. 31, p. 181. Such an answer is insufficient; and, therefore, the defect properly constitutes a matter of exception thereto, since it deprives the plaintiff of the benefit of an admission to which he is justly entitled. Ibid. However, courts of equity do not, in this respect, act with rigid and technical exactness as to the manner in which the defendant states his belief or disbelief, if it can be fairly gathered from the whole of that part of the answer what is, according to the intention of the defendant, the fair result of its allegations. 2 Daniell, Ch. Pr., 257; Amhurst v. King, 2 Sim. & Stu., 183.

§ 1520. No universal rule as to answers upon information and belief. How in general they should be framed.

It is obvious that, in answers as to the information and belief of the defendant, there may be, and, indeed, ordinarily will be, partial admissions and partial denials of every shade and character, some of which may be delivered in terms of great ambiguity and uncertainty, and some mixed up with various

qualifications and attendant circumstances. Gresley on Evid., 2d edit., 1837. No general rule, therefore, can be laid down which will govern all the different classes of cases which may thus arise as to the sufficiency or insufficiency of an answer in this respect. A man may have an undoubting belief of a fact, or he may disbelieve its existence, or he may believe it highly probable, or merely probable, or the contrary, or he may have no belief whatsoever, as to it. In each of these cases he is bound to answer conscientiously as to the state of his mind in the matter of his belief; and if he does, that is all which a court of equity will require of him. If a man truly states that he cannot form any belief at all respecting the truth of the fact or information, that is sufficient, and it puts the plaintiff upon proof of it. If, on the other hand, the defendant should state (as in the present case the defendant does in effect state) that he "has no knowledge, information or belief that the fact or information inquired about is not true," or if he states (as in the present case) that he has been informed by a party, and verily believes, that such party did not possess any knowledge, information or belief of the fact which the interrogatory points out,-in each of these cases it seems to me that the answer, if expressive of the true state of mind of the defendant, might at least, for some purposes, be held sufficient. But then, if such language were unaccompanied by any other qualifications or explanations, I should understand that the defendant did mean to assert his belief of the truth of the information or statement of fact, because, if he had no knowledge, information or belief that it is not true, he must be presumed to give credit to it; and if he did not intend so to be understood, it would be his duty to say in express terms that he had no belief about the matter; and he ought not to be allowed to shelter himself behind equivocal or evasive or doubtful terms, and thereby to mislead the plaintiff to his injury.

§ 1521. Plaintiff is not bound to accept a doubtful answer, though it would be interpreted favorably to him.

And this leads me to remark, and it is the real and only point of difficulty which I have felt upon the exception, whether, although the plaintiff may agree to take and accept such an admission, interpreting it as affirmative of the defendant's belief, if in that sense it would be beneficial to himself, he is positively bound to receive it, when it is clearly susceptible of a different, or even of an opposite, interpretation, which may affect the nature and extent of his proofs at the hearing of the cause. Upon full reflection, I think that he is not positively bound to receive it, although certainly I should interpret it as an affirmative, if it would be favorable for the plaintiff; but he has a right to require that the defendant should state in direct terms, or, at least, in unequivocal terms, either that he does believe, or that he does not believe, the matter inquired of, or that he cannot form any belief, or has not any belief concerning the matter; and according as the answer shall be the one way or the other, that he calls upon the plaintiff for proof thereof, or he admits it, or he waives any controversy about it.

Upon this ground my opinion is that the exception is well founded, at least, as to some of the allegations in the answer. It may, perhaps, be sufficient for the court merely in this general manner to intimate its present opinion upon the case; and it will be easy for the counsel to make its application to the various parts of the answer complained of. But to make myself more clearly understood, I wish to give an illustration of the principle, drawn from the

present bill and answer, especially as the nature of the objection may thereby be seen in a more strong and exact light.

§ 1522. Illustration drawn from the present state of facts.

The object of the bill is to obtain, among other things, a perpetual injunction to a suit now pending on the law side of this court, brought by the defendants in the bill (Byam and others) against the plaintiff (Brooks), for a violation of a patent, which they claim title to as assignees of the patentee; and, among other charges, the bill for this purpose alleges that the original patentee (Alonzo D. Phillips) had before his assignment to these parties assigned a limited right therein to one John Brown, under whom the defendant claims a still more limited title, as a sub-purchaser, pro tanto, and insisted that his acts done in supposed violation of the patent are rightfully done under this sub-title. The patent is alleged to bear date on the 24th of October, 1837; the assignment to Brown on the 2d of January, 1837; the assignment to Brooks on the 18th of September, 1837; but it was not recorded until the 15th of July, 1839; and the assignment to Byam on the 28th day of July, 1838, under whom the other defendants (Whitney and others) derive title, which only was recorded within the time prescribed by law, whereas the assignment to Brown was not. Under these circumstances the bill charges that Byam, at the time of the assignment to him, and the other defendants (and among them Whitney), at the time of the assignment to them by Byam, had knowledge and information and good cause of belief of the prior assignment to Brown. And in the interrogatory part of the bill the defendants are required "full, true, direct, particular and perfect answer and discovery to make, and that not only according to the best of their knowledge, but to the best of their respective information, hearsay and belief, to all and singular the matters and allegations and charges aforesaid."

Now, the answer of the defendant Whitney (which is excepted to) states that he (the defendant) does not of his own knowledge know whether, at the time of the assignment to Byam, he (Byam) had any information or knowledge, or had any cause to believe, that Phillips had previously made any conveyance to Brown, or Brown to the plaintiff (Brooks), as alleged in the bill; but this defendant has been informed by said Byam that, at the time when the said Phillips conveyed and assigned to him all his right and interest in and to the patent-right, the said Byam had no knowledge, information or cause to believe that the said Phillips had made any conveyance to the said Brown, or that the said Brown had made any conveyance to the complainant; and this defendant has no knowledge, information or belief that the information so derived from the said Byam is not true." Now, it is to the matter and form of this last clause (and a like allegation is to be found in other parts of the answer) that the objection is taken by the exception. The argument is that the clause is ambiguous; that it does not assert, in direct terms, that the defendant believed or disbelieved the statement of Byam; or that the defendant had no belief, or was unable to form any belief, about the matter, and, therefore, required the plaintiff to prove the knowledge, information or belief of Byam at the time of the assignment to him. So that, in fact, the defendant, by the form of his allegation, does not positively put the asserted fact in controversy, as to the knowledge, information or belief of Byam, by affirming his own belief of Byam's statement; neither does he dispense with the proof thereof by denying his own belief thereof; neither does he assert that he is unable to