14 by demurrer; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer." 13 If the plaintiff is the only person who can enforce a penalty or forfeiture, and he waives it in his bill, the defendant may be compelled to answer disclosing his liability thereto. There has been much controversy as to whether the defendant to a bill demanding an account can be obliged to give discovery as to the account when he answers denying the equity of the bill and the complainant's right to an account.15 The better opinion seems to be that he can. Such is the doctrine of Professor Langdell,16 and of the last English case upon the subject.1 No discovery can be required of an infant,18 or other person under a disability; 19 nor, it seems, of a corporation,20 or a public officer when sued in his official capacity." But it has been held that, although a corporation cannot be compelled to answer under oath, it can be compelled to answer, and to answer fully." The defendant must answer specifically and catégorically, distinguishing between matters within his personal knowledge and those within his information and belief.23 If he asserts ignorance as to any matter, he must aver that he is ignorant both of his own knowledge and as to information and belief." 13 Rule 44. 14 Lord Uxbridge v. Staveland, 1 Ves. Sen. 56; Atwill v. Ferrett, 2 Blatchf. 39. 15 The authorities have been well collected by Chancellor Cooper in French v. Rainey, 2 Tenn. Ch. 640. 16 Langdell's Eq. Pl., §§ 70-73. 17 Elmer v. Creasy, L. R. 9 Ch. 69, 71. 18 Copeland v. Wheeler, 4 Brown, Ch. C. 256; Lucas v. Lucas, 13 Ves. 274; Daniell's Ch. Pr. (2d Am. ed.) 214. 21 Davison v. Atty. Gen., 5 Price, 398, note; Atty. Gen. v. Lambirth, 5 Price, 386, 398; U. S. v. McLaughlin, 24 Fed. R. 823. 22 Hale v. Continental L. Ins. Co., 16 Fed. R. 718; s. C., 20 Fed. R. 344; Gamewell F. A. Tel. Co. v. City of New York, 31 Fed. R. 312. 23 Brooks v. Byam, 1 Story, 296; Kittredge v. Claremont Bank, 3 Story, 596; s. c., 1 W. & M. 244. It has been said that the defendant must answer not only as to all facts 19 Micklethwaite v. Atkinson, 1 within his knowledge, but to all Coll. 173. 20 Union Bank of Georgetown v. Geary, 5 Pet. 99, 110; Wallace v. Wallace, Halst. (N. J.) Dig. 173; Smith v. St. Louis M. Ins. Co., 2 Tenn. Ch. 599; Burpee v. First Nat. Bank, 5 Biss. 405. But see Kittredge v. Claremont Bank, 3 Story, 590; s. c., 1 W. & M. 245. which he can ascertain from an inspection of books and papers in his possession or under his control. Davis v. Mapes, 2 Paige (N. Y.), 105. 24 Brooks v. Byam, 1 Story, 296; Kittredge v. Claremont Bank, 1 W. & M. 244. It has been held that when the bill asks for testimony concerning his recollection he must give it 27 He cannot deny that he has no knowledge as to a subject which the bill charges as a personal transaction in which he took part.25 This last rule, it has been said, applies to officers of corporations.26 If new officers have succeeded those in office at the time when the matters charged are said to have occurred, it is their duty, when called upon for discovery, to ascertain the facts by searching the records of the corporation and by inquiry of their predecessors. It has been said that "a corporate answer should be made by the principal officer of the corporation, who should be able to admit or deny the facts charged and interrogated about, or to state want of knowledge clearly and truly as a reason for not doing it." 28 It is insufficient to deny any "recollection or belief" as to a transaction in which the defendant is said to have been personally engaged. "The defendant in his answer must state the facts as they then are." 30 But where a bill charged that the defendant would in future infringe a patent as he was charged to have done before, it was held insufficient for him to merely deny that he had done so since the trial of an action at law which established the complainant's rights." He has also to answer as to his future intentions. In drawing such an answer, it is usual and often advantageous to interweave the discovery with a narrative of the transactions from the defendant's point of view in a continuous statement, so that it will be hard for the plaintiff to read as evidence the defendant's admissions without also reading the latter's own explanation and account of the controversy. 29 32 accordingly. Brooks v. Byam, 1 Story, 296. In extraordinary cases, answers as to the defendants' remembrance have been allowed, even when there was no request for the remembrance upon the subject. Hall v. Bodily, 1 Vernon, 470; Carey v. Jones, 8 Ga. 516; Hall v. Wood, 1 Paige (N. Y.), 404; Story's Eq. Pl., § 855. But see Talbot v. Sebree's Heirs, 31 Ky. 56. 25 Burpee v. First Nat. Bank, 5 Biss. 405. It has been held that it is insufficient to deny fraud charged to have been committed by an agent upon the information of the agent and the belief of the principal. Mason v. Jones, 1 Hayw. & H. 329; 26 Burpee v. First Nat. Bank, 5 Biss. 405; Kittredge v. Claremont Bank, 1 W. & M. 244. 27 Kittredge v. Claremont Bank, 1 W. & M. 244. 28 Wheeler, J., in Hale v. Continental L. Ins. Co., 16 Fed. R. 718, 719. 29 Taylor v. Luther, 2 Sumner, 228. 30 Sir Thomas Plumer, V. C., in Knight v. Matthews, 1 Madd. 566. 31 Poppenhusen v. N. Y. G. P. C. Co., 4 Blatchf. 185; s. c., 2 Fish. 74. 32 Poppenhusen v. N. Y. G. P. C. Co., 4 Blatchf. 185; s. c., 2 Fish. 74. The defendant § 149. Proceedings to compel answer. must file in the clerk's office on the rule-day next succeeding that of entering his appearance, an answer to as much of the bill as he does not cover by a plea or demurrer. In default thereof, unless his time to answer has been enlarged, for cause shown by a judge of the court, upon motion for that purpose, the bill may be taken against him pro confesso.1 When a plea or demurrer is overruled, with leave to the defendant to answer within a certain time, and he fails so to do, the bill may then also be taken pro confesso. Otherwise the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, is entitled to process of attachment against the defendant to compel an answer, and the defendant, when arrested upon such process, is not discharged therefrom unless upon filing his answer, or otherwise complying with such order as the court or judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge and undertaking to speed the cause. If the attachment is returned non est inventus, a commission of rebellion will issue. If this proves insufficient, it will be followed by a writ of sequestration.5 § 150. Frame of answer. An answer should be entitled in the cause, so as to agree with the names of the parties as they appear in the bill at the time the answer is filed. It seems that the defendant may not correct or alter the names of the parties as they appear in the bill, and that if there is a mistake he must correct it in the part following the title of the cause; thus, "The answer of the defendants, the mayor, alderman, and commonalty in the bill called the mayor, alderman and citizens of the city of New York." The answer should begin substantially thus: "The answer of John Aber, one of the above-named defendants, to the bill of complaint of the abovenamed plaintiff;" if the bill has been amended after answer, "to the amended bill of complaint." If two or more defend $149. 1 Equity Rule 18; Heyman v. Uhlman, 34 Fed. R. 686. 2 Suydam v. Beals, 4 McLean, 12. 3 Rule 18. 4 Boudinot v. Symmes, Wall. C. C.139; Smith's Ch. Pr. (2d ed., 1837), 183, 186. 5 Smith's Ch. Pr. (2d ed., 1837), 183 2 § 150. 1 Daniell's Ch. Pr. (5th Am. ed.) 731. 2 Atty. Gen. v. Worcester Corp., 1 C. P. Cooper, 18; Daniell's Ch. Pr. (5th Am. ed.) 731. 3 Daniell's Ch. Pr. (5th Am. ed.) 731; Rigby v. Rigby, 9 Beav. 311, 313. ants join in the same answer, it usually begins, "The joint and several answer;' " unless they are husband and wife, when it is "The joint answer;" but an answer is not defective if put in by several as a joint answer merely. When discovery is required, all of the defendants who join in an answer must swear to the same. When the same solicitor is employed for two or more defendants, and separate answers are filed, or other proceedings had by two or more defendants separately, costs are allowed for such separate answers or other proceedings, unless a master, upon reference to him, certifies that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. A female defendant who has married since the filing of the bill usually begins: "The answer of John Aber and Anna, his wife, lately in the bill called Anna Brown, spinster," or widow, as the case may be." A title, "the several answer of John Peck, Esq., one of the defendants to the bill of complaint of Anna Baines, alias Green, assuming to herself the name of Anna Peck, as pretended wife of John Peck, Esq., deceased, and of Anna Maria Green, assuming to herself the name of Anna Maria Peck, as daughter of the said John Peck, Esq., deceased," was held scandalous.1o An answer by a person defending by guardian or next friend should state that fact: "James Fifield by Edward Jennings, his next friend." When an answer and another pleading are united, it should so state: "The demurrer, plea, and answer of," etc." Next followed formerly a clause reserving to the defendant any and all advantages that might be taken by exception to the bill. This always was and still is useless," although many practitioners still use it. Then comes the substantive part of the answer, setting up the matters of affirmative defense and giving the discovery required. The answer usually closes with a general traverse inserted out of abundant caution, denying the unlawful combination charged in the bill, and all other matters therein contained. 4 Davis v. Davidson, 4 McLean, 136. 5 Daniell's Ch. Pr. (5th Am. ed.) 731. ❝ Davis v. Davidson, 4 McLean, 136. 7 Bailey W. M. Co. v. Young, 12 Blatchf. 199. 8 Rule 62. In the answers of infants 11 Daniell's Ch. Pr. (5th Am. ed.) 731. 12 Mitford's Pl., ch. 2, § 2, part 3; Story's Eq. Pl., § 870. 13 Story's Eq. Pl. §870; Rules 39, 44. 9 Daniell's Ch. Pr. (5th Am. ed.) 731. Story's Eq. PL., § 870. and other persons under a disability, the reservation and general traverse have always been deemed properly omitted. The answer in such cases generally is that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but leaves the plaintiff to prove them as he shall be advised, and throws himself on the protection of the court." But if such a defendant has any substantive defense, he should plead the same.18 § 151. Signature and oath to answer. An answer must be signed by the defendant making it; even, it seems, when an answer under oath has been waived,' unless he answer by guardian, when the latter should sign it,2 or unless an order has been obtained dispensing with such signature on account of the defendant's absence, or for some other reason. A person answering in a dual capacity need sign but once. An answer by a corporation must be under its corporate seal. 3 In such a case it is advisable to have the seal attested by one of the corporate officers. When an answer is made without oath, the signature of the defendant should also be attested. This is usually done by his solicitor. The answer, unless it is taken by commissioners, should also be signed by counsel. Unless an answer under oath is waived in the bill, the defendant, if a natural person, must swear; 10 or, "if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him." The oath or affirmation may be taken before a justice or judge of any court of the United States, or before a commissioner appointed by a Circuit 16 Story's Eq. PL., § 871. 17 Chancellor Kent in Mills v. Dennis, 3 J. Ch. (N. Y.) 367, 368. 18 Holden v. Hearn, 1 Beav. 445, 455; Lane v. Hardwicke, 9 Beav. 148, 149. § 151. 1 Story's Eq. Pl., § 875; Davis v. Davidson, 4 McLean, 136; Bayley v. De Walkiers, 10 Ves. 441; Fulton Bank v. Beach, 2 Paige (N. Y.), 307; Denison v. Bassford, 7 Paige (N. Y.), 370. 4 Anon., 2 J. & W. 553. 5 Haight v. Proprietors Morris Aqueduct, 4 Wash. 601, 605; Daniell's Ch. Pr. (5th Am. ed.) 735, and note 2. 6 Daniell's Ch. Pr. (5th Am. ed.) 735, note 2. 7 Daniell's Ch. Pr. (5th Am. ed.) 738. 8 Daniell's Ch. Pr. (5th Am. ed.) 738. 9 Davis v. Davidson, 4 McLean, 136; Story's Eq. Pl., § 876. 10 Fulton Bank v. Beach, 2 Paige (N. Y.), 307; Daniell's Ch. Pr. (5th 2 Anon., 2 J. & W. 553; Daniell's Am. ed.) 735. Ch. Pr. (5th Am. ed.) 733. 11 Rule 91. See U. S. R. S., § 5013. |