expressly and in terms deny, by proper averment, notice of the fraud charged in the bill. Wood v. Mann, 1 Sumn., 506.

§ 1607. Answer setting up dismission of former bill.— An answer in chancery setting up as a defense the dismission of a former bill filed by the same complainant is not sufficient unless the record be exhibited. United States Bank v. Beverly, 1 How., 134.

§ 1608. Answer to injunction bill, how treated.—An answer to an injunction bill, though filed without a rule, will be treated as an answer on a motion to grant or continue an injunction. Brooks v. Bicknell, 3 McL., 250.

$1609. Answer admitting acceptance of proposal but denying contract.- If an answer in chancery admits that a proposal for insurance was made and accepted, but adds that no contract was made, the court will not intend that this denial includes any new matter of fact, but will treat it only as containing respondent's view of the legal consequences of the facts admitted. Union Mutual Ins. Co. v. Commercial Mutual Marine Ins. Co., 2 Curt., 524.

§ 1610. Answer not responsive to bill.- Where a bill alleged than an agreement of compromise was made, and the answer goes into a history of the dispute compromised, it is not responsive to the bill. Sargent v. Larned, 2 Curt., 340.

§ 1611. Want of jurisdiction, parties or equity-Objection for, how taken.— An objection to jurisdiction for want of parties, of equity in the bill, or of there being a remedy at law, need not be made by demurrer, plea, or in the answer; it may be made at the hearing or on appeal. Baker v. Biddle, 1 Bald., 394.

§ 1612. The staleness of a demand may be relied on at the hearing, though there is no plea or demurrer, or the answer does not insist on it. Ibid.

§ 1613. Infringement of patent- Requisites of answer.- Where a bill alleges an infringement of a patent the respondent must answer it distinctly and unevasively. Jordan v. Wallace,* 1 Leg. Gaz. R., 354.

§ 1614. issue of fraud, how raised. The issue of fraud, in a patent case, can be raised only by distinct and special allegations in the plea or answer. Blake v. Stafford, 6 Blatch., 195. § 1615. pleadings must be single.- Pleadings in equity, as well as at law, should be single, clear and free of evasion: and in a patent case the respondent cannot set up as a defense that if the complainant's patent be so construed as to cover the machine made and sold by him, then the invention embraced in said patent was known and used prior to the invention thereof by the patentee. More than one defense, however, may be presented in the answer, provided each is separately and clearly alleged, without any conditions or undefined qualifications. Graham v. Mason, 4 Cliff., 88.

§ 1616. denial must be unequivocal. In a suit to restrain infringement of a patent, if the defendant wishes to deny the infringement, he must do so distinctly and unequivocally. Jordan v. Wallace,* 8 Phil., 165.

§ 1617. If the defense of the statute of limitations, set up in an answer to certain parts of a bill, is well taken, no further answer need be made to such parts of the bill. Samples v. The Bank, 1 Woods, 523.

§ 1818. Bill to set aside conveyance for duress Insufficient answer.- A bill in equity to set aside a conveyance on the ground of duress, brought against the grantee and a judg. ment creditor of the grantee claiming a lien on the land, set up title in the complainant, and alleged that the conveyance to the respondent was made under duress. The answer of the judgment creditor set up that the title was in the grantee without further particulars; did not deny the duress; alleged that the respondent was informed and believed that the complainant was in possession of the land as tenant only; but set up no other title. Held, the allegation in the answer of title in the grantee must be taken to refer to the title derived through the deed sought to be set aside, since no other title was set up; the answer is evasive and insufficient, and, the grantee having put in no answer, the conclusion is inevitable that the title was in the complainant and that he parted with it under duress. Brown v. Pierce, 7 Wall., 205.

§ 1619. Bill filled by agreement, but void for champerty -Objection to, how taken.- An objection that the bill was filed under an agreement made between the plaintiffs and certain other parties, which is void for champerty, ought to be raised formally by answer, and not by motion to take the bill from the files. Sperry v. Erie R'y Co., 6 Blatch., 425.

§ 1620. Patent suit-Extent of admission as to infringement.- Where in a patent suit the answer admitted that defendants had manufactured locks as described in the plaintiff's patent, this admission need go no further than its terms necessarily imply, and the court may assume that the smallest number of locks were made, consistent with the use of that word in the plural. Jones v. Morehead, 1 Wall., 155.

§ 1621. averments unnecessary to let in evidence. In a patent case in equity the answer need not make averments as to the state of the act in question in order to let in evidence of it. Brown v. Piper, 1 Otto, 37.

§ 1622. insufficient answer.- An averment in an answer to a suit on a patent for infringement, that. after rejection of the application for want of novelty in the invention, the plaintiffs "abandoned said application for over two years, well knowing that a certain company were making and using this pretended invention, and that the patent afterwards granted was obtained upon false and fraudulent representations by the plaintiffs, or some of them, made to the commissioner of patents, and is wholly void in law," is frivolous and void, because abandonment to the public is not set up, and the averment of false representations is too general to raise a triable issue. Clark v. Scott,* 5 Fish. Pat. Cas., 245.

§ 1623. The statute of limitations, if relied on in equity as a defense, must be set up in the plea or answer. Sullivan v. Railroad Co., 4 Otto, S06.

§ 1624. Allegation in answer of fraud in sale wrongfully stricken out. An action was brought in the United States circuit court of Louisiana against the sheriff of New Orleans, to recover the value of a steamboat sold by him under an execution as the property of A., one of the defendants in the execution, B., the plaintiff, alleging the boat was his property. The defendant in his answer alleged that the sale of the steamboat by A. to B. was fraudulent, and that it was made to defraud the creditors of A. Before the jury was sworn, the court, on motion of counsel for the plaintiff, struck out all that part of the defendant's answer which alleged fraud in the sale from A. to B. Held, that there was error in this order of the court. Hozey v. Buchanan, 16 Pet., 215.

§ 1625. Verification of auswer, waiver of, by bill.- The waiver by the bill of the oath of the respondent to his answer does not amount to anything unless accepted by the respondent. Amory v. Lawrence, 3 Cliff., 523.

§ 1626. Defendants have a right to answer a bill upon oath, although the plaintiff has waived such an answer; the waiver amounts to nothing unless the defendants accept it; and the tender of the waiver is no ground of demurrer to the bill. Heath v. Erie R'y Co., 8 Blatch., 347.

§ 1627. Complainant cannot deprive a defendant in a bill in equity of his right to answer under oath by waiving such oath; and if, after a waiver, the defendant nevertheless answers under oath, he is entitled to the benefit of such an answer. Clements v. Moore, 6 Wall., 299. § 1628. Answer as evidence.- An answer responsive to the bill is evidence in favor of the defendant. Russell v. Clark, 7 Cr., 69; Hough v. Richardson, 3 Story, 659; Morgan v. Tipton, 3 McL., 339; Lenox v. Notrebe, Hemp., 251. See EQUITY.

§ 1629. The answer of a defendant is evidence against the plaintiff, although it be doubtful whether a decree can be made against such defendant. Field v. Holland, 6 Cr., 8.

§ 1630. The answer of a defendant in chancery is not evidence of new matter set up by way of defense, and not responsive to any allegation in the bill. Robinson v. Cathcart, 3 Cr. C. C., 377.

§ 1631. An allegation in an answer which is not responsive to the bill is not evidence; and the onus probandi is on the defendant to establish it. Flagg v. Mann, 2 Sumn., 486. § 1632. An answer of the defendant, in order to be evidence in his favor, to a fact averred in the bill, and not an answer to a mere inference of law. cart, 2 Cr. C. C., 590.

must be an answer Robinson v. Cath

§ 1633. The answer of a defendant in chancery, who has no personal knowledge of the facts he states, and whose conscience cannot be affected thereby, is not evidence in the cause, although responsive to the allegations in the bill. The only effect of such an answer is to present an issue and to put the plaintiff to the proof of his allegations. Dutilh's Adm'r v. Coursault, 5 Cr. C. C., 349.

§ 1634. If a matter charged in a bill in equity is one within the defendant's own knowledge he must answer positively; and it is not sufficient for him to answer that he has no recollection of doing a certain thing with which he is charged, and that he does not believe he did it. Upon such an answer the testimony of a single witness is sufficient to establish the fact alleged in the bill. Slater v. Maxwell, 6 Wall., 268.

§ 1635. The sworn answer of a defendant in equity, when responsive to material allegations in the bill, must be taken as true, unless overcome by the testimony of two witnesses, or of one witness and corroborative circumstances equivalent to another witness. Lenox v. Prout, 3 Wheat., 520; Union Bank of Georgetown v. Geary, 5 Pet., 99; Tobey v. Leonards, 2 Wall., 423; Voorhees v. Bonesteel, 16 Wall., 16; Vigil v. Hopt,* 14 Otto, 441; Delano v. Winsor, 1 Cliff., 50; Clark v. Hackett, 1 Cliff., 269; Tobey v. Leonard, 2 Cliff., 40; Parker v. Phetteplace, 2 Cliff., 70; Badger v. Badger, 2 Cliff., 137; Gilman v. Libbey, 4 Cliff., 447; Daniel v. Mitchell, 1 Story, 173; Langdon v. Goddard, 2 Story, 267; Gould v. Gould, 3 Story, 515; Cushing v. Smith, 3 Story, 556; Higbee v. Hopkins, 1 Wash., 230; Gernon v. Boecaline, 2 Wash., 199; Harper v. Dougherty, 2 Cr. C. C., 284; Pomeroy v. Manin, 2 Paine, 476; Jones v. Brittan, 1 Woods, 667; Towne v. Smith, 1 Woodb. & M., 115; Walker v. Derby, 5 Biss., 134.

§ 1636. When the complainant in a bill offers to receive an answer without oath, and the VOL. XXIV-49 769

defendant accordingly files the answer without oath, denying the allegations of the bill, the complainant is not put to the necessity, according to the general rule, of contradicting the answer by the evidence of two witnesses, or of one witness and corroborating circumstances. The answer being without oath is not evidence, and the usual rule does not apply. Patterson v. Gaines, 6 How., 550.

§ 1637. An answer of a defendant in equity cannot be used as evidence against his codefendant. Clark v. Van Reimsdyk,* 9 Cr., 153.

§ 1638. It is a general rule that an answer in equity will prevail unless contradicted by two witnesses, or by one witness and corroborating circumstances. This must be taken with qualifications, however. The reason of the rule is that plaintiff, by calling upon defendaut to answer, admits his answer as evidence. As the burden of proof is upon plaintiff, it will require more than one witness to turn the balance. But circumstantial evidence is sometimes strong enough to outweigh the testimony of any single witness, especially as in this case, where the answer of defendant, though positive in its terms, asserted a fact which could not in the nature of things be within the actual knowledge of defendant. Ibid.

§ 1639. The rule that when a defendant, by his answer under oath, expressly negatived the allegations of the bill, and the testimony of one witness only has affirmed what has been negatived, the court will not decree in favor of the complainant, does not extend to averments not directly responsive to the allegations of the bill. Seitz v. Mitchell, 4 Otto, 580.

§ 1640. Where a defendant in equity discredits his own answer by contradictory and unreasonable statements, or by positive denials of matters as to which he could have no personal knowledge, the testimony of one disinterested witness will be sufficient to sustain the bill against the answer. Parish v. Gear,* 1 Burn. (Wis.), 99.

§ 1641. An answer in equity supported by positive testimony of one witness will outweigh an allegation in the bill supported only by circumstantial and argumentative evidence. Parker v. Phetteplace, 1 Wall., 684.

§ 1642. If there is an absolute denial contained in the answer to a bill in equity, the complainant should not have a decree upon the uncorroborated testimony of one witness, certainly not where such witness has bias, prejudice or interest adverse to the respondent. Andrews v. Hyde, 3 Cliff., 516.

§ 1643. Where a bill alleged a sale to be in fraud of creditors, and joined vendor and vendee as defendants, and both the latter denied the fraud, alleging payment of consideration, the circumstances of the case, together with the fact that the details were peculiarly within their knowledge, and were not shown in evidence, were allowed to rebut the truth of the answer. Callan v. Statham, 23 How., 477.

§ 1644. A positive denial in the answer to a bill in equity must be overcome by the plaintiff's proofs; and in this case, it seems, the circunstances which it was claimed tended to establish the allegations of the bill did not overcome such answer. Roots v. Shields, Woolw.,

340.

§ 1645. The answer of one defendant in equity is not evidence in behalf of another defendant. Morris v. Nixon, 1 How., 118; Texas v. Chiles, 10 Wall., 127; Dexter v. Arnold, 3 Sumn., 152; Robinson v. Cathcart, 2 Cr. C. C., 590; Lenox v. Notrebe, Hemp., 251.

§ 1646. The separate answer of one defendant in equity is not evidence to sustain the complainant's case against a co-defendant except when the defendants stand in such a relation to each other that the admission of each, if not under oath, would be evidence against the others; as, for instance, in the case of copartners. Dick v. Hamilton, Deady, 322.

§ 1647. The answer of one defendant in equity cannot be used as evidence against his codefendant, nor the answer of an agent as evidence against his principal. Leeds v. Marine Insurance Co.,* 2 Wheat., 380.

§ 1648. Where a case is set for hearing upon bill, answer and exhibits, the answer must be taken as true. Ibid.

§ 1649. The plaintiffs cannot avail themselves of the answer of a defendant who is substantially a plaintiff; and it is not evidence against a co-defendant. Field v. Holland, 6 Cr., 8. § 1650. The answer of one defendant is evidence against other defendants claiming through him. Ibid.

§ 1651. In general the answer of one defendant in equity cannot be read in evidence against another. But where one defendant succeeds to another, so that the right of the one devolves upon the other, and they become privies in estate, the rule does not apply. Osborne v. United States Bank, 9 Wheat., 738.

§ 1652. In general, in a bill in equity, the answer of one defendant is not evidence against another; but this rule does not apply to the case where the defendants are all partners in the same transaction, for in such case the answer or confession of either is evidence against the others. Van Reimsdyk v. Kane, 1 Gall., 630.

§ 1653. In equity, where an answer which is put in issue admits a fact and insists upon

another fact by way of avoidance, the former fact is established, but the latter fact must be proved. Clements v. Moore, 6 Wall., 299.

§ 1654. If an answer sets up matter in avoidance of the complaint such answer is not evidence, but its allegations must be proved, and the burden is upon the respondent. Howe v. Williams, 2 Cliff., 245.

§ 1655. If new facts are set forth in an answer to a bill in equity, and are relied on to effect a discharge or avoidance or as a defense, which are not responsive to the bill, they must be established by independent proof. The answer is not evidence to support them. Randall v. Phillips, 3 Mason, 378.

§ 1656. New matter set up in the answer to a bill strictly and purely of revivor is impertinent, and no formal replication is necessary to avoid its effect as evidence. Gunnell v. Bird, 10 Wall., 304.

§ 1657. When a cause is set down for hearing on bill and answer the answer is taken as true. If, therefore, the bill rely on a fraudulent conveyance, and the answer deny fraud and aver good faith, the bill will be dismissed. United States v. Scott,* 3 Woods, 334.

§ 1658. A court cannot render a decree for plaintiff on a bill which is denied by the answer, when no replication has been filed and there is no evidence on the record contradicting the answer. Gettings v. Burch,* 9 Cr., 372.

§ 1659. The answer of a corporation under its seal, denying the material allegations of the bill, and sworn to by its president according to the best of his knowledge and belief, imposes an obligation on the complainant to prove the facts alleged by something more than the testimony of one witness. Carpenter v. Providence Washington Ins. Co., 4 How., 185.

§ 1660. If notice is alleged by a bill in chancery and is denied by the answer, it must be proved by two witnesses, or one witness and strong circumstances. Smith v. Shane, 1 McL., 22; Piatt v. Vattier, 1 McL., 146.

§ 1661. The rule of equity pleading, that allegations in the bill which are neither admitted nor denied must be sustained by proof, does not prevail when the statements in the answer can be construed into an admission of or acquiescence in the allegations of material facts. Surget v. Byers, Hemp., 715.

§ 1662. After the answer to a bill for an injunction is put in issue new matter set up by way of avoidance must be proved by the defendant; but on a motion for, or to dissolve, an injunction it is deemed evidence in favor of the defendant, as his affidavit or sworn statement. Tobin v. Walkinshaw, McAl., 26.

§ 1663. A general allegation in a bill against an executor, that he retains the money of the estate in virtue of a pretended claim from the testator by a pretended contract, which the bill denies, and the prayer of the bill is generally for an answer to the matters charged therein, does not make the answer of the executor evidence to support such debt, when he admits there is money of the estate in his hands for which he must account if he does not establish the debt. Tilghman v. Tilghman, 1 Bald., 464.

§ 1664. An answer denying the right of the complainant is evidence in favor of the defendant. But if he admits the right and sets up new matter in bar; if he admits the charge, and avers a discharge at a different time by a distinct transaction, or sets up an affirmative claim in his own right to the subject-matter claimed by the complainant, it is not evidence in his favor; the defendant must make out his case as a complainant ought to do. Ibid.

§ 1665. In the state courts of Connecticut an answer in chancery stands on the same footing as a plea, and is not evidence unless the complainant seeks a disclosure by an appeal to the conscience of the defendant. Pomeroy v. Manin, 2 Paine, 476.

5. Replication.

§ 1666. The purpose of the general replication is to put in issue any new matter set forth in the answer; and it does not nullify the effect of an admission in the answer of an allegation of the bill. Cavender v. Cavender, 8 Fed. R., 642.

§ 1667. Admissions by. By replying to a plea in equity the plaintiff admits its sufficiency if the facts it sets up are established. Myers v. Dorr, 13 Blatch., 22.

§ 1668. A replication in equity admits the legal sufficiency of the plea, and if the latter is proved the bill will be dismissed. Hughes v. Blake,* 6 Wheat., 453.

§ 1669. If a replication be inadvertently filled the court would have no difficulty in permitting it to be withdrawn. Ibid.

§ 1670. Special replications setting up new matter have quite gone out of use, and if plaintiff wishes to do more than deny the allegations of the answer he should move to amend his bill, and introduce his new matter in that way. If, however, such a replication contain the essential qualities of a general replication, denying such parts of the bill as are not in

tended to be admitted, and the parties go to a hearing, the new matter will be considered as surplusage, and the plaintiff will lose the benefit of it, though supported by proof. Duponte v. Mussy,* 4 Wash., 128.

§ 1671. By a general replication every allegation not responsive to a bill is denied, and must be proved before it can be taken as true. Hence good matter in bar first appearing in the answer was held not to prevent a bill from being dismissed under a decree based upon the pleadings alone. Humes v. Scruggs, 4 Otto, 22.

§ 1672. Replication omitted. When a case had been set down for hearing upon bill and answer through mistake of counsel, in a state where equity practice was unfamiliar, the court allowed plaintiff to file a replication. Pierce v. West,* Pet. C. C., 351.

§ 1673. When the plaintiff files no general replication in a suit in equity, but the parties proceed to take testimony as if such replication had been filed, and no motion is made to dismiss for want of a replication, it may be considered as filed and the case considered on its merits, or a replication may be filed instanter. Jones v. Brittan, 1 Woods, 667.

§ 1674. Effect of on new matter in answer.- If a general replication is filed, new matter in avoidance, set up in the answer to a bill in equity, must be proved. Seymour v. Osborne, 11 Wall., 516.

§ 1675. Where a replication denies all the matter of a plea the latter must be supported by evidence. Gernon v. Boecaline,* 2 Wash., 199.

§ 1676. Replication merely to deny answer, unnecessary. According to the practice in this district the formality of a replication merely denying the truth of the answer is not necessary. Taber v. Jenny, 1 Spr., 315; 9 Law Rep., N. S., 27.

§ 1677. Failure to file replication in time.— Under the sixty-sixth United States equity rule a failure to file a replication within the proper time entitles the defendant to an order to have the bill dismissed, and such order may be entered by the clerk without action of the judge. Robinson v. Satterlee, 3 Saw., 134.

§ 1678. The court may, under rules 66 and 69 in equity, allow a replication filed late to stand as if filed in time. Fischer v. Hayes, 19 Blatch., 26.

§ 1679. Supreme court rules as to.- Under rule 66 of the rules in equity prescribed by the supreme court, the answer of every defendant, when sufficient, must be replied to without reference to the state of the cause or of the pleadings in regard to any other defendant. The replication must be a general one. Rule 45 abolishes special replications. Any defendant whose answer is sufficient has a right to have the cause, as to him, put at issue, so that he may, under rules 67, 68 and 69, proceed to take his testimony if he wishes to. But where the cause is not at issue as to all the defendants, and where it is not proper to compel the plaintiff to go to proofs until it is at issue as to all of them, the court will, on a proper application, enlarge the time, under rule 69, for the plaintiff to take proofs in respect of the defendants as to whom the cause is at issue. Coleman v. Martin,* 6 Blatch., 291.

§ 1680. Statute of limitations, replication to plea of. Where the statute of limitations is pleaded at law or in equity, and the plaintiff desires to bring himself within its savings, it would be proper for him in his replication, or by an amendment of his bill, to set forth the facts specifically. Miller v. McIntyre, 6 Pet., 61.

§ 1681. Replication cannot ask for relief other than that claimed in bill.- A plaintiff who has set forth a claim in his bill, and prayed for the conveyance to him by the defendant of a certain tract of land, cannot, in his replication, ask for the conveyance of a part of the tract upon a different claim than that in the bill, in case the court should not make a decree in his favor in accordance with the prayer of the bill. Warren v. Van Brunt, 19 Wall., 646. § 1682. An objection that there is no replication in the record of an equity court cannot be made in the supreme court. A replication need not be filed to an answer setting up new defenses to a bill of revivor intended to make a deceased defendant's executor and sole legatee a party defendant, as such new defenses are not pertinent. Fretz v. Stover, 22 Wall., 198.

§ 1683. The want of a replication cannot be assigned for error on appeal when leave to file one was granted by the court and the cause was heard on bill, answer and proofs, although the transcript does not show that a replication was filed. National Bank v. Insurance Co., 14 Otto, 54.

772