matters so offered are relied upon as an objection to the jurisdiction, or to the person of the plaintiff or defendant, or to the frame of the bill and suit, or in bar of the suit; praying the judgment of the court, whether the defendant ought to be compelled to make any further or other answer to the bill, or so much thereof as the plea extends." It does not appear that any particular form of conclusion is necessary to a plea in equity. Every plea must be supported by a certificate of counsel, that in his opinion it is well founded in point of law, and by the affidavit of the defendant, that it is not interposed for delay, and that it is true in point of fact. When the facts alleged in the plea are within the defendant's knowledge, he must swear to them positively. Otherwise, upon information and belief.15 Whether the certificate of counsel is required when the defendant defends in person has never been decided.16 If the affidavit or certificate are omitted, the former remedy was a motion to take the paper purporting to be a plea off the file; but, according to the language of an opinion of the Supreme Court, the plea might then be disregarded.18 By setting down the plea for argument, such a defect is waived.19 Like all other proceedings in equity, a plea must contain no scandalous or impertinent matter. If it does, the same proceedings may be taken upon it as when scandal or impertinence is contained in an answer.20 Only one plea can be filed unless by special leave of the court.21

17

§ 137. Answers with pleas.- Although the purpose of a plea is usually to avoid discovery, yet in certain cases it must be accompanied by an answer. If the plea be to a part only

12 Story's Eq. Pl., § 694; Mitford's Pl., ch. 2, § 2, part 2.

13 Daniell's Ch. Pr. (5th Am. ed.) 688. 14 Equity Rule 31. The seal of a corporate defendant is not required. Fayerweather v. Hamilton College, 103 Fed. R. 546.

15 Ewing v. Blight, 3 Wall. Jr. 134. 16 See U. S. R. S., § 747; 1 Hoffman's Ch. Pr. 97; Daniell's Ch. Pr. (5th Am. ed.) 311, note 7.

17 Ewing v. Blight, 3 Wall. Jr. 134. 18 National Bank v. Insurance Co., 104 U. S. 54; supra, § 111.

19 Goodyear v. Toby, 6 Blatchf. 130; Griswold v. Bacheller, 77 Fed. R. 857.

20 Daniell's Ch. Pr. (2d Am. ed.) 686. See Dixon v. Olmius, 1 Cox, Eq. 412; infra, § 141.

21 Wheeler v. McCormick, 8 Blatchf. 267; Lamb v. Starr, Deady, 351; Noyes v. Willard, 1 Woods, 187; Reissner v. Anness, 12 Off. Gaz. 842; s. c., 3 Bann & A. 148. See Elgin W. P. & W. P. Co. v. Nichols, 65 Fed. R. 215, 216; supra, § 124.

of the bill, it must ordinarily be accompanied by an answer or demurrer to the residue. The equity rules provide that "In every case where the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying the fraud and combination, and the facts on which the charge is founded." It seems that this only applies when discovery concerning the fraud or combination is prayed for. Negative and anomalous pleas must usually be accompanied by an answer giving the discovery required by the bill. This subject is now of comparatively little importance, as the objections raised by such pleas can now be taken by answer with more safety and convenience. The clearest statement and explanation of the rule with which the writer is acquainted, is that by Professor Langdell. "If the defense which is set up by a plea has been anticipated by the bill, and evidence has been charged in disproof of the defense, the defendant must answer such charges of evidence, notwithstanding his plea, for an answer to that extent will be needed in trying the truth of the plea. The defendant, therefore, incorporates an answer with his plea; and then the answer is said to support the plea. Such an answer, it will be observed, contains discovery only, and it is called an answer in support of a plea, to distinguish it from the case where a defendant defends by answer as to part of the bill, and by plea as to part. "If a bill anticipates a defense, and, without admitting its truth, replies to it affirmatively, and the defendant wishes to set up the defense by plea, it is obvious that he must traverse the anticipatory replication; for otherwise,

996

§ 137. 1 Equity Rules 18, 32; Langdell's Eq. Pl., § 99; Ferguson v. O'Harra, Pet. C. C. 493.

2 Equity Rule 32; Piatt v. Oliver, 1 McLean, 295; Lewis v. Baird, 3 McLean, 56; Bailey v. Wright, 2 Bond, 181.

3 Hilton v. Guyott, 42 Fed. R. 249. Where to a bill for an accounting the defendant filed a plea in abatement which averred that the amount in dispute was less than $2,000, he was required to answer the interrogatories attached to the bill con

cerning the amounts which he had collected. Playford v. Lockard, 65 Fed. R. 870. But ordinarily an answer accompanying a plea is not subject to exceptions for insufficiency because it fails to answer interrogatories annexed to the bill. Hatch v. Bancroft-Thompson Co., 67 Fed. R. 802; infra, § 134.

4 Dwight v. Central Vt. R. Co., 9 Fed. R. 785; Langdell's Eq. Pl., §§ 101114.

5 Equity Rule 39.

6 Langdell's Eq. Pl., § 100.

in the event of issue being taken upon the truth of the plea, the affirmative replication will be admitted to be true. A negative rejoinder, therefore, must be incorporated with the affirmative plea. Such pleas have become common in modern times; and being partly affirmative and partly negative, they are distinguished by the name of anomalous pleas. If the defendant should not be prepared to deny the truth of the affirmative replication, and should wish to set up an affirmative answer to it, of course both branches of his plea should be affirmative; but no instance of such a plea has been found in the reported cases. If an anomalous plea be put in issue, it will be seen that each party has something to prove; namely, the defendant his affirmative defense, and the plaintiff his affirmative replication; and the plaintiff is, therefore, entitled to discovery as to the latter. Consequently, an anomalous plea must always be supported by an answer as to the allegations which constitute the replication, and as to all charges of evidence, if any, in support of such allegations." Such an answer is usually prefaced by an averment that the defendant does not thereby waive his plea, but wholly relies thereon. An answer to the whole bill, which extends to the whole of the matter covered by the plea, will overrule a plea in bar filed by the answering defendant." "The rule that no plea is to be held bad only because the answer may extend to some part of the same matter as may be covered by the plea is not applicable where the answer extends to the whole of the matter covered by the plea." 10

8

§ 138. Proceedings of the plaintiff when a plea is filed.— If the allegations in a plea are sufficient and true, but the plaintiff can produce new matter which will avoid its effect, he must amend his bill, introducing by way of pretense or otherwise a statement of the matters contained in the plea, and also a substantive allegation of the new matter by which

"Langdell's Eq. PL., § 101. See also Langdell's Eq. PL., §§ 102–114; Story's Eq. Pl., § 668-674; Foley v. Hill, 3 Myl. & Cr. 476.

8 Story's Eq. Pl., § 695.

9 Grant v. Phoenix L. Ins. Co., 121 U. S. 105, 115; Dakin v. Union Pac. Ry. Co., 5 Fed. R. 665; Crescent C. L. S. Co. v. Butchers' U. L. S. Co., 12 Fed.

R. 225; Hudson v. Randolph (C. C. A.), 66 Fed. R. 216. But see Hayes v. Dayton, 8 Fed. R. 702, 706; Mercantile Tr. Co. v. M., K. & T. Ry. Co., 84 Fed. R. 379, 383.

10 Grant v. Phoenix L. Ins. Co., 121 U. S. 105, 115; Huntington v. Laidley, 79 Fed. R. 865.

he avoids it. In such a case, at common law or by the earlier chancery practice, he would reply by confession and avoidance; but special replications are no longer used in equity, their purpose being sufficiently answered by the practice of amendment.2 Otherwise, the plaintiff may either move to take the plea off the file for irregularity, or set down the plea to be argued, or move for a reference to a master," or take issue upon the plea. If he neither amends nor takes any of these proceedings before the rule-day next after that on which the same was filed, he is deemed to admit the truth and sufficiency of the plea, and his bill will be dismissed as of course unless a judge of the court shall allow him further time for the purpose. More indulgence in this respect will be allowed to States than to individuals,8 and the plaintiff is not obliged to take notice of a plea until it has been entered in the order book or served upon him." In case of a motion to take the plea off the file, it will be more prudent to obtain an extension of time wherein to reply or set down the plea, in case it should be allowed to remain.10 No one, except the defendant who files a plea, can take advantage of the failure of the plaintiff to act upon it." Where the plaintiff had taken no action upon the plea for eight months, it was held that the defendant might withdraw it and file an answer.12 Otherwise, neither party is, in general, at liberty to take any step in a cause after the filing of a plea, until the plea is disposed of.13 If the defendant pleads to the relief only, and proposes to answer the whole discovery required, the plaintiff may file exceptions to the answer. This, it was formerly held, he could not do unless by special leave of the court, without thereby admitting the truth of a plea which extended to any

13

part of the discovery.15 It has been held that in such a case the answer is not subject to exceptions for insufficiency because it does not answer specific interrogatories as to matters answered by the plea.16 By filing exceptions to the sufficiency of an answer the plaintiff waives all objections to the plea." In an extraordinary case, a motion for an injunction might be made while a plea was pending; but the more usual course is to pray the court to expedite the hearing of the plea. When a plea and a demurrer were filed at the same time, it was held that action on the plea should be postponed till the hearing on the demurrer.19

18

§ 139. Motion to take a plea off the file.- A motion to take a plea off the file is, it seems, the proper remedy, when the plea was filed too late,' or has such an irregularity in form as the omission of the requisite affidavit and and certificate.2 In a patent case, a plea which simply denied infringement was stricken from the files as improper in form.3 But this is an improper method to test the sufficiency of a plea, although when the sufficiency of the plea had been fully argued without raising this objection the court determined it upon such a motion. When two pleas are filed without special leave, the defendant will be obliged to elect between them within ten days. Otherwise, both will be ordered to stand for an answer, or possibly be stricken out. Unless, however, an objection to such a defect is specifically made, it will be considered waived.*

6

§ 140. Argument of a plea.-"If the plaintiff conceives a plea to be defective in point of form or substance, he may take

15 Darnell v. Reyny, 1 Vern. 344; Brownell v. Curtis, 10 Paige (N. Y.), 210.

But see National Bank v. Insurance Co., 104 U. S. 54, 76; Secor v. Singleton, 9 Fed. R. 809; s. c., 3 McCrary,

16 Hatch v. Bancroft-Thompson Co., 230. 67 Fed. R. 802.

17 Ibid.

18 Ewing v. Blight, 3 Wall. Jr. 139; Humphreys v. Humphreys, 3 P. Wms.

395.

19 Cambell v. Mayer, 33 Fed. R. 795. § 139. 1 McKewan v. Sanderson, L. R. 16 Eq. 316; Ewing v. Blight, 3 Wall. Jr. 134.

2 Ewing v. Blight, 3 Wall. Jr. 134; Sharp v. Reissner, 20 Blatchf. 10, 13; Griswold v. Bacheller, 77 Fed. R. 857.

3 Sharp v. Reissner, 20 Blatchf. 10, 13; supra, § 124.

4 Hatch v. Bancroft-Thompson Co., 67 Fed. R. 802, 804.

5 Union S. S. Co. v. Phila. & R. R. Co., 69 Fed. R. 833.

6 Reissner v. Anness, 12 Off. Gaz. 842; s. C., 3 Bann. & A. 148; Noyes v. Willard, 1 Woods, 187.

7 Newby v. Oregon Central Ry. Co., 1 Saw. 63, 67.

8 Sharon v. Hill, 22 Fed. R. 28.