be allowed to remain in the answer, and the effect thereof, if found to be true, determined on the final hearing." It has been held that a short sentence inserted out of abundant caution will not be expunged as impertinent. Neither is new matter

not responsive to the bill, setting up an insufficient defense, the proper subject of an exception for impertinence; although such matter has been expunged by motion. A demurrer to an answer is not permitted.10 Exceptions to answers for scandal and impertinence are taken and disposed of in substantially the same manner as exceptions to bills for the same reasons.11 Exceptions for impertinence should be filed and disposed of before exceptions for insufficiency are filed.12

§ 148. Discovery. - Discovery, or answer under oath, which was formerly one of the principal grounds of equitable jurisdiction, is now of little practical importance. For the statutes of the United States, as well as those of all of the individual members of the American Union with which the writer has any acquaintance, allow the full benefits of discovery to be obtained by the oral examination of any party or person otherwise interested in the cause on trial. Moreover, a recent amendment to the equity rules provides that, "if the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as heretofore upon a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2, 1864." 2

6 Deady, J., in Chapman v. School District No. 1, Deady, 108, 110.

7 Desplaces v. Goris, 1 Edward's Ch. (N. Y.) 350.

8 Adams v. Bridg. Iron Co., 6 Fed. R. 179; Bower Barff Rustless Iron Co. v. Wells Rustless Iron Co., 43 Fed. R. 391. But see Ford v. Douglas, 5 How. 143, 165.

9 Armstrong v. Chem. Nat. Bank, 37 Fed. R. 466; Adams v. Bridg. Iron Co., 6 Fed. R. 179; Gilchrist v. Helena, &c. R. Co., 47 Fed. R. 593.

(U. S. R. S.

10 Crouch v. Kerr, 38 Fed. R. 549.

11 See Rules 26 and 27; Hood v. Inman, 4 J. Ch. (N. Y.) 437; Langdon v. Goddard, 3 Story, 13; § 68.

12 Patriotic Bank v. Bank of Washington, 5 Cranch C. C. 602.

§ 148. 1 U. S. R. S. § 858.

2 Amendment of December, 1871, to Rule 41. See Woodruff v. Dubuque & S. C. R. R. Co., 30 Fed. R. 91.

Sec. 858.) Consequently, an answer under oath is now usually waived by the complainant. When no such waiver is made, however, the old rule still prevails; and the sworn statement by the defendant in direct response to an allegation in the bill is deemed to be true, unless contradicted by two witnesses, or a single witness and corroborating circumstances. Irresponsive allegations are not evidence. Neither are allegations upon information and belief," nor allegations sworn to positively, concerning facts of which it is evident that the respondent can have no personal knowledge. The admissions of the defendant are binding upon him; and unless he can obtain leave to amend his answers by withdrawing them, he cannot disprove them at the hearing.8 When discovery is required, the defendant must answer every allegation in the bill which is material to the plaintiff's case, and an answer admitting which would not expose him to a penalty, forfeiture, or criminal prosecution, or expose a privileged communication." "It is not a sufficient foundation of exception that a fact charged in a bill is not answered, unless the fact is material and might contribute to support the equity of the plaintiff's case, and induce the court to give the relief sought by the bill." 10 The former practice required that if a defendant submitted to answer, he must in general answer fully; and that he could usually protect himself from a full discovery only by a plea or demurrer to the objectionable part of the bill." Now, however, the Equity Rules provide that "the rule that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of defense (not being matters of abate

3 See Slessinger v. Buckingham, 17 9 Cranch, 153, 161; Allen v. O'Donald, Fed. R. 454, 456. 28 Fed. R. 17.

4 Clark's Executors v. Van Riemsdyk, 9 Cranch, 153, 160; Union Bank of Georgetown v. Geary, 5 Pet. 99, 110; Seitz v. Mitchell, 94 U. S. 580, 582; Vigel v. Hopp, 104 U. S. 441; Slessinger v. Buckingham, 17 Fed. R. 454, 456.

5 Sargent v. Larned, 2 Curt. 340;

Seitz v. Mitchell, 94 U. S. 580.

8 Gold & Silver Ore Separating Co. v. U. S. Disintegrating Ore Co., 6 Blatchf. 307, 310. See Troy Iron & Nail Factory v. Corning, 6 Blatchf. 328, 336.

9 Atwill v. Ferrett, 2 Blatchf. 39. 10 Chief Justice Taney in Hardeman v. Harris, 7 How. 726.

11 Hare on Discovery, pp. 247, 296, 297;

6 Berry v. Sawyer. 19 Fed. R. 286; Story's Eq. Pl. §§ 605, 606, 609, 846; Allen v. O'Donald, 28 Fed. R. 17.

7 Clark's Executors v. Van Riemsdyk,

VOL. I.- -17

Mazarredo v. Maitland, 3 Madd. 66, 72;

v. Harrison, 4 Madd. 252.

ment, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. Thus, for example, a bona fide purchaser for a valuable consideration without notice, may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea." 12 "A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an interrogatory, from answering which he might have protected himself 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." 18 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. 14 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.17 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.21 But it has been held that, although a corporation can

12 Rule 39.

18 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.

19 Micklethwaite v. Atkinson, 1 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 Mutual Life Ins. Co., 2 Tenn. Ch. 599; Burpee v. First National Bank, 5 Biss. 405. But see Kittredge v. Claremont Bank, 3 Story, 590; s. c. 1 W. & M. 245.

21 Davison v. Attorney-General, 5 Price, 398, note; Attorney-General v. Lambirth, 5 Price, 386, 398; U. S. v. McLaughlin, 24 Fed. R. 823.

1

not be compelled to answer under oath, it can be compelled to answer, and to answer fully 22 The defendant must answer specifically and categorically, 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.24 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.27 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." 2 It is insufficient to deny any "recollection or belief as to a transaction in which the defendant is said to have been personally engaged." "" 29 "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 had also to answer as to his future intentions.32 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 admis

22 Hale v. Continental Life Insurance Company, 16 Fed. R. 718; s. c. 20 Fed. R. 344.

23 Brooks v. Byam, 1 Story, 296; Kittredge v. Claremont Bank, 3 Story, 596; s. c. 1 W. & M. 244.

24 Brooks v. Byam, 1 Story, 296; Kittredge v. Claremont Bank, 1 W. & M. 244. 25 Burpee v. First National Bank, 5 Biss. 405.

26 Burpee v. First National Bank, 5 Biss. 405; Kittredge v. Claremont Bank, 1 W. & M. 244.

28

27 Kittredge v. Claremont Bank, 1 W. & M. 244.

28 Wheeler, J., in Hale v. Continental Life Insurance 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.

81 Poppenhusen v. N. Y. Gutta-Percha Comb Co., 4 Blatchf. 185; s. c. 2 Fisher,

74.

32 Poppenhusen v. N. Y. Gutta Percha Comb Co., 4 Blatchf. 185; s. c. 2 Fisher, 74.

sions without also reading the latter's own explanation and account of the controversy.

--

§ 149. Proceedings to compel Answer. The defendant must file in the clerk's office on the rule-day next succeeding that of entering his appearance, an answer to so 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."

§ 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, Aldermen, and commonalty in the bill called the Mayor, Aldermen, and citizens of the city of New York."2 The answer should begin substantially thus: "The answer of John Aber, one of the above-named defendants, to the bill of complaint of the above-named plaintiff;" if the bill has been amended after answer, "to the amended bill of com

§ 149. 1 Rule 18. See Chapter VI. 2 Suydam v. Beals, 4 McLean, 12. 3 Rule 18.

4 Boudinot v. Symmes, Wall. C. C. 139; Smith's Ch. Pr. (2d ed. A. D. 1837), 183-186.

5 Smith's Ch. Pr. (2d ed. A. D. 1837) 183-188.

§ 150. 1 Daniell's Ch. Pr. (5th Am. ed.) 731.

2 Attorney-General v. Worcester Corporation, 1 C. P. Cooper, 18; Daniell's Ch. Pr. (5th Am. ed.) 731.