$ 873. A married woman generally answers with her husband; but sometimes she answers separately by order of the Court; in which case she answers by her next friend.' Where a marriage has clearly taken place only to defraud creditors, a feme covert may be made to answer, as if she were sole. And it has been held, that, where a husband and wife have answered jointly, and the Bill is afterwards amended, and then the husband goes abroad, the wife remaining in this country, and being the material defendant, there must be an order upon her to answer separately, or it will not be any contempt of the Court in her, if she refuses to answer.

874. An answer is always under oath, unless the plaintiff chooses to dispense with it; and then the Court will order the answer of the defendant to be taken without oath. If, indeed, the defendant is entitled to the privilege of peerage, or he is a Lord of Parliament, (which, since the union with Ireland, has been held to extend to Irish peers,) or if the defendant

affirmation administered to a defendant on putting in his answer, is as follows:- . You swear (or solemnly affirm), that what is contained in this your answer (or plea and answer), as far as concerns your own act and deed, is true to your own knowledge, and that what relates to the act and deed of any other person or persons, you believe to be true.'” 2 Daniell, Ch. Pr. ch. 15, 92, p. 270.

I Cooper, Eq. Pl. 325; Ante, 9 71. 2 Ibid.

3 Cooper, Eq. Pl. 325; Thorold v. Hay, 1 Dick. R. 410; Carlton v. McKenzie, 10 Ves. 442.

4 Cooper, Eq. Pl. 325, 326. The 59th Rule of the Equity Rules of the Supreme Court of the United States, January Term, 1842, declares; “Every defendant may swear to his answer before any justice or judge of any Court of the United States, or before any commissioner appointed by any Circuit Court to take testimony or depositions, or before any Master in Chancery appointed by any Circuit Court, or before any judge of any Court of a State or Territory." 1 Howard, R. Introd. 59; 17 Peters, R. App'x, 71. EQ. PL.

106

is a corporation aggregate, no oath is required ; and in such first mentioned case, the answer is upon the honor of the defendant, and in the last under the seal of the corporation. A Quaker is allowed to put in his answer upon his solemn affirmation and declaration. Where a defendant files an answer as a Quaker without oath, he undertakes that he is a Quaker; so that, if he should be indicted for perjury upon it, he will not be permitted to contradict the assertion.? A Jew is sworn on the Pentateuch, and generally with his hat on. In the case of a foreigner, not acquainted with the English, an order must be obtained for an interpreter ; and the answer being engrossed in a foreign language, a translation of it must be made by the interpreter, and such translation must be annexed to it. The foreigner must be sworn to his answer. The interpreter attending is previously sworn to interpret truly, and conveys to the foreigner the language of the oath, and at the same time he swears to the translation as just and true to the best of his ability.”

§ 875. When an oath is not required, generally there must be the signature of the defendant to the answer. But, where the defendant to a Bill of foreclosure was an officer in the army, and had gone abroad under orders, immediately after service of the subpoena and appearance, and before he had time to put in his answer, the answer was, by the consent of

parties, ordered to be received without signature.' The same order was made where the defendant was appointed to a judicial situation in the East Indies, and in the hurry of going abroad had forgotten to sign his answer. So, where a person abroad had given a general power of attorney to another person, residing here, to defend suits, &c., in his absence, the answer was directed to be received without any signature at all, rather than to take the signature of any other person for the defendant. Upon the same principle, where a father had authority to act for his two sons, who were out of the jurisdiction, their answers were ordered to be taken without any oath or signature. But a similar permission was refused in the case of a mere trustee, who was in such an infirm state, both of body and mind, as to be wholly incapable of putting in her answer. The proper course in such a case would be, to appoint a guardian to put in the answer ; for it is much better, where there is no commission of lunacy, to throw around a person, under such circumstances, the protection of some other person, who is capable, than to let the defendant answer at all hazards, without any oath or signature.

$ 875, a. We have already seen, that an answer is generally required to be under oath, unless it is dispensed with by the plaintiff;6 and that when under oath, if it is responsive to the allegations in the Bill, it is evidence for the defendant, and as evidence it will prevail, unless overcome by the testimony of two witnesses, or of one witness and clear corroborating circumstances. But suppose an oath to an answer is

Cooper, Eq. Pl. 326, 327. 4 Ibid. 7 Ante, $ 849, a.

2 Ibid. 5 Ibid.

3 Ibid. 6 Ante, 9 874.

dispensed with, and yet it is responsive to facts charged in the Bill, and which the defendant is required to answer, what is the effect of the answer when given, it not being under oath ? This point does not seem definitely settled. It may perhaps be true, that it is not entitled to all the privileges of an answer under oath. But it is by no means clear, that it is not evidence in favor of the defendant as to all facts, which are not fully disproved by the other evidence and circumstances in the case; and that it ought not to prevail where the other evidence is either defective, obscure, doubtful, or unsatisfactory. And it may well be suggested, whether the plaintiff has a right to dispense with the oath, and yet to make the answer evidence in his own favor as to all the facts, which it admits, and exclude it as evidence as to all the facts, which it denies.

1 Lord Eldon, in Curling v. Townshend, 19 Ves. R. 628, 629, said ; “ The answer to the original Bill was put in without oath or attestation of honor; and was accepted without either of those sanctions; but my opinion is, that with regard to a question of this nature, the defendant gives the same authority to the Court to look at the circumstances, denied or admitted in the answer so put in, for the purpose of administering civil justice between the parties, as if it was put in upon the attestation of honor, or upon oath.':

2 In the case of The Union Bank of Georgetown v. Geary, 5 Peters, R. 99, 110–112, Mr. Justice Thompson, in delivering the opinion of the Court, said ; “ It is certainly a well settled rule, that on a Bill praying relief, when the facts charged in the Bill, as the grounds for obtaining the decree, are clearly and positively denied by the answer, and proved only by a single witness, the Court will not decree against the defendant. And it is equally well settled, that where the witness on the part of the complainant is supported and corroborated by circumstances sufficient to outweigh the denial in the answer, the rule does not apply. 9 Cranch, 160 ; 3 Condens. Rep. 325. What are the circumstances in this case to meet and outweigh the denial in the answer? It is to be borne in mind, that the Bill does not charge the agreement to have been made with the bank, but with their attorney. The denial by the bank is not therefore of any matter charged to have been within their own knowledge. They could, therefore, only speak of their belief, or from information received

$ 876. An answer must be signed by counsel, unless it is taken by commissioners, in the country, under the authority of a commission issued for the purpose. In the latter case, the signature by counsel is not required,

from their attorney, and not from their own knowledge of the transaction. The denial of their ever having authorized or directed their attorney to hold out any inducements to the complainant to confess judgment, or to make to her any such promise as is set forth in the Bill, is not in answer to any allegation in the Bill. The bank is not charged with having specially authorized or directed the agreement to be made. But it is charged as the act of their attorney; and whether this was within the scope of his authority as attorney in the suit, will be hereafter noticed. There are other circumstances which go very far to take this case out of the application of the rule which requires corroborating evidence to support the testimony of a single witness against the answer. This is an injunction Bill, filed upon the oath of the complainant. An answer in all cases, according to the course and practice of Courts of Chancery, must be sworn to; unless dispensed with by order of the Court under special circumstances. In the present case, the answer being by a corporation, it is put in under their common seal, unaccompanied by an oath. And although the reason of the rule, which requires two witnesses, or circumstances to corroborate the testimony of one, to outweigh the answer, may be founded in a great measure upon the consideration that the complainant makes the answer evidence by calling for it; yet this is in reference to the ordinary practice of the Court, requiring the answer to be on oath. But the weight of such answer is very much lessened, if not entirely destroyed, as matter of evidence, when unaccompanied by an oath : and indeed we are inclined to adopt it as a general rule, that an answer not under oath is to be considered merely as a denial of the allegations in the Bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations." Mr. Chancellor Walworth, in Smith v. Clarke, 4 Paige, R. 504, held an answer not sworn to not to be of any weight as evidence in the case. Can the oath of the defendant to his answer be dispensed with by the plaintiff without the consent of the Court? See i Grant's Pract. p. 107, edit. 1820. Mr. Daniell, on this subject, says ; ** An answer put in without oath or attestation of honor, and accepted without either of those sanctions, gives the same authority to the Court to look to the circumstances denied or admitted in the answer so put in, for the purpose of administering civil justice between the parties, as if it was put in upon attestation of honor or upon oath. It seems, however, that no exceptions can be taken to an answer so put in." 2 Daniell, Ch. Pr. ch. 15, $ 2, p. 272.

Mitf. Eq. Pl. by Jeremy, 315; Cooper, Eq. Pl. 327; Com. Dig. Chancery, K. 2.