depriving the complainant of relief, the plea must deny them.15 It is not sufficient to deny them in an answer in support of the plea.15 The statute of frauds will be followed by the federal courts.16 If the bill shows that the complainant's case is repugnant to the statute of frauds, it is demurrable.16 This, however, is rarely the case, and the statute is usually referred to by plea or answer.17 The rule is thus stated by Lord Chancellor Cranworth: "It was argued that the statute of frauds was not open to the defendant, by reason of his not having insisted upon the statute as a defence; but this is a mistake. Where a defendant admits the agreement, if he intends to rely on the fact of its not being in writing and signed, and so being invalid by reason of the statute, he must say so; otherwise he is taken to mean that the admitted agreement was a written agreement good under the statute, or else that on some other ground it is binding on him; but where he denies or does not admit the agreement, the burden of proof is altogether upon the plaintiff, who must then prove a valid agreement capable of being enforced." 18 The facts which show that the statute applies must be stated specifically.19 Otherwise the plea is bad.19 An act of Congress ratifying the construction of an otherwise illegal structure will, if constitutional, abate a suit for an injunction against the further maintenance of the structure, although not set up by plea, answer, or demurrer.20 § 132. Pleas of Matter of Record. - A plea founded upon matter of record sets up the judgment or decree of a court of record. upon the same matter and between the same parties, or those in privity with them, in a cause of which it had jurisdiction. Pleas of matter of record are in some of the books distinguished from pleas of matter as of record. This distinction was due to the fact that, in England, the Court of Chancery in its equitable jurisdiction, the Court of Admiralty and ecclesiastical courts were deemed courts not of record, although their decrees had Dutch Church, 16 Pet. 455; West Portland Homestead Assoc. v. Lownsdale, 17 Fed. R. 205; Story's Eq. Pl. § 752. 15 Stearns v. Page, 1 Story, 204. 16 Randall v. Howard, 2 Black, 585, 589. 17 For an illustration of the plea, see Jackson v. Oglander, 2 H. & M. 465. 18 Ridgway v. Wharton, 3 De G. M. & G. 677, 689. But see Heys v. Astley, 9 19 Bailey v. Wright, 2 Bond, 181; M'Closkey v. Barr, 38 Fed. R. 165, 169. 20 The Clinton Bridge, 10 Wall. 454. But see Griffing v. Gibb, 2 Black, 519; Liverpool, New York, & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 38. the same effect as the judgments of courts of record.1 Judge Curtis held at circuit, that a judgment in a court of a foreign country cannot be pleaded in bar;2 but in the present state of the law, the soundness of his decision may be doubted.3 A decree of a court of equity dismissing a bill to remove a cloud on title is not so far res adjudicata as to prevent the plaintiff from succeeding in a subsequent action of ejectment against the same defendant, although the court of equity in its opinion stated that the title of plaintiff was bad.4 A decree of a court of equity declaring void a conveyance of land beyond its jurisdiction, but not directing a reconveyance of such land, is void, and does not bind a court within the jurisdiction of which such land is situated. A decree of a court of equity will not be a bar if it resulted in the dismissal of a bill without prejudice; 6 or for want of prosecution; 7 or for a slip in practice; or by the former English practice, if it had not been signed and enrolled, although it could then be insisted on by answer as a good defense. No judgment or decree rendered after a proceeding not in rem, in which the defendant therein was not served with process; 10 or in which the unsuccessful party was denied a hearing, or some such other gross injustice was perpetrated as to render the socalled judicial proceeding not due process of law, is of any effect. Judgments or decrees obtained by fraud are not conclusive when properly impeached.12 It seems that a decree upon a bill taken as confessed concludes the defendant in another suit.13 In pleading a judgment or decree, it is not necessary to set it forth, or the § 132. 1 Story's Eq. Pl. § 778. 2 Lyman v. Brown, 2 Curt. 559. See Burnham v. Webster, 1 W. & M. 172. 3 See Hilton v. Guyott, 42 Fed. R. 249; Martin v. Nicolls, 3 Simons, 458; Story, Conflict of Laws, §§ 606-608. 4 Phelps v. Harris, 101 U. S. 370. But see State v. Buller, 47 Fed. R. 415. 5 Carpenter v. Strange, 141 U. S. 87. 6 Durant v. Essex Co., 7 Wall. 107; House v. Mullen, 22 Wall. 42, 46; Northern Pacific Ry. Co. v. St. Paul, M. & M. Ry. Co., 47 Fed. R. 536; infra, § 600. 7 American Diamond Rock Boring Co. v. Sheldon, 17 Blatchf. 208; s. c. 4 Bann. & A. 551; Keller v. Stolzenbach, 20 Fed. R. 47; Conn v. Penn, 5 Wheat. 424, 427; Badger v. Badger, 1 Cliff. 241. 11 8 Durant v. Essex Company, 7 Wall. 107, 109; House v. Mullen, 22 Wall. 42, 46; Walden v. Bodley, 14 Pet. 158; Gist v. Davis, 2 Hill Ch. (S. C.) 335; Grubb v. Clayton, 2 Hayw. (N. C.) 378. See, however, Starr v. Stark, 1 Saw. 270. 9 Anon., 3 Atk. 809; Sto. Eq. Pl. § 790. 10 Pennoyer v. Neff, 95 U. S. 714; Life Insurance Co. v. Bangs, 103 U. S. 780; St. Clair v. Cox, 106 U. S. 350. 11 Bischoff v. Wethered, 9 Wall. 812; Windsor v. McVeigh, 93 U. S. 274; Bradstreet v. Nept. Ins. Co., 3 Sum. 601. 12 Pac. R. R. of Mo. v. Mo. Pac. Ry. Co, 111 U. S. 505. 18 Thompson v. Wooster, 114 U. S. 104, 111, 112; Ogilvie v. Herne, 13 Ves. 563. proceedings upon which it was founded, at length; but so much of the decree and pleadings should be set forth as will show that the same point was then in issue,15 and the court may require the decree to be pleaded at length; 16 or if the plea sets up matter of record in the same court, to show the record before the plaintiff is required to take action upon the plea.17 § 133. Pleas of Matter in Pais. Pleas founded upon matter in pais state some other reason, for example, a release, or an account stated, or a purchase without notice for a valuable consideration, why the plaintiff should not have relief.1 A plea of purchase without notice for a valuable consideration should deny notice positively, and should state the amount of the consideration.3 It is insufficient to plead that the defendant paid a "good and valuable consideration, to wit, a certain sum of money." A plea to a bill for an injunction to restrain the infringement of a reissued patent, which set up that the claim had been unlawfully expanded so as to embrace subsequent improvements covered by later patents, was held good. A plea to a bill filed under § 4918 of the Revised Statutes against the owner of a patent interfering with that of the complainant, which set up that the invention described in the complainant's patent was described in a previous English patent published in the United States, and filed in the Patent Office here before the issue of the complainant's patent, was held bad and overruled.5 § 134. Pleas to the Discovery. Pleas to the discovery set up new matter, showing (1) that the plaintiff's case is not such as entitles a court of equity to assume jurisdiction to compel a discovery in his favor; (2) that the plaintiff has no such interest in the subject-matter of the action as entitles him to call upon the defendant for a discovery; (3) that the defendant has no such interest in the subject-matter of the action as will entitle the plaintiff to call upon him for a discovery; (4) that the situation of the defendant renders it improper for a court of equity to com 14 Ricardo v. Garcias, 12 Cl. & F. 368; Story Eq. Pl. § 783. 15 Garcias v. Ricardo, 14 Simons, 265; Story Eq. Pl. § 791; Emma Silv. Min. Co. v. Emma Silv. Min. Co. of N. Y., 1 Fed. R. 39. § 133. 1 Story's Eq. Pl. §§ 795-8152 Wood v. Mann, 1 Sumner, 506. 3 Secombe v. Campbell, 18 Blatchf 108. 4 Hubbell v. De Land, 14 Fed. R. 471. 5 Pentlarge v. Pentlarge, 19 Fed. R. 16 Emma Silv. Min. Co. v. Emma Silv. 817; s. c. 22 Fed. R. 412. But see FosMin. Co. of N. Y., 1 Fed. R. 39. ter v. Lindsay, 3 Dill. 126, 131. 17 Ibid. pel him to make a discovery.1 Of them, Professor Langdell says: "But it should be added that, while demurrers to discovery are common, there are few instances of pleas of that kind; and the cases are few in which it would be advisable to resort to such a plea, since the question can be raised equally well by answer, and then the defendant's own statement of the facts will be equally conclusive." 2 § 135. When a Plea must be filed. Unless the defendant's time has been enlarged, for cause shown, by a judge of the court, upon motion for that purpose, the plea should be filed on the rule-day next succeeding that of entering the defendant's appearance.1 § 136. Frame of a Plea. - A plea is entitled in the cause, and is headed as follows: "The plea of the above-named defendant (or, of A. B., one of the above-named defendants) to the bill of complaint of the above-named plaintiff (or plaintiffs)." When put in by more than one defendant, the heading runs as follows: "The joint and several plea of the above-named defendants (or of A. B. and C. D., two of the above-named defendants):"1 but if filed by husband and wife in the wife's interest only, the words "and several" should be omitted; though their use, being mere surplusage, will not vitiate the plea. The title of the plea should agree with that of the cause as stated in the bill. Any corrections which are desired to be made must be put in the heading, thus: "The plea of the above-named defendant, John Aber (in the bill, by mistake called Henry Aber);" or, "The plea of Henry Curtis and Mary his wife, lately, and in the bill called Mary Robinson, spinster" (or widow, as the case may be).3 When accompanied by an answer or demurrer, it should be headed: "The plea and answer;" or "The joint," or "joint and several plea and answer;" or "The joint and several plea, answer, and demurrer," &c., according to the circumstances.1 Like a demurrer, it is usually, but not necessarily, introduced by a useless protestation against the confession of the truth of any matter contained in the bill.5 After the protestation, the defendant should state in the plea the extent to which it goes; as whether it is to the whole bill, or to part only, and in the latter case the part to which it is intended to apply. Next should come the substance of the plea together with such averments as are necessary to support it. If these matters are within the defendant's knowledge he should state them positively. Otherwise, upon information and belief. The allegations must be made with certainty and not by way of argument, inference, or conclusion.10 The plea cannot properly allege and rely upon matters all of which are apparent upon the face of the bill. The conclusion of the plea is usually a repetition that the 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 to.12 It does not appear that any particular form of conclusion is necessary to a plea in equity.18 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.14 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 proper remedy would seem to be a motion to take the paper purporting to be a plea off the file ; but, according to the language of a recent opinion of the Supreme Court, the plea might then be disregarded.18 By setting down 6 Mitford's Pl. ch. 2, § 2, part 2; Story's Eq. Pl. § 694. 7 Mitford's Pl. ch. 2, § 2, part 2; Story's Eq. Pl. § 694. 8 Foster v. Vassall, 3 Atk 587; Boone v. Chiles, 10 Pet. 176, 210-213; Story's Eq. Pl. § 662. 9 Bolton . Gardner, 3 Paige (N. Y.), 273; Story's Eq. Pl. § 662. 10 Emma Silver Mining Co. v. Emma Silver Mining Company of New York, 1 Fed. R. 39; Nabob of Arcot v. East India Co., 3 Brown, Ch. C. 292; Story's Eq. Pl. § 662. 17 11 Billing r. Flight, 1 Madd. 230; Story's Eq. Pl. § 660. 12 Story's Eq. Pl. § 694; Mitford's Pl. ch. 2, § 2, part 2. 13 Daniell's Ch. Pr. (5th Am. ed.) 688. 14 Rule 31. 15 Ewing . Blight, 3 Wall. Jr. 184. 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. |