Answer and Pleas in Chancery. mined, without essentially affecting the interests of absent persons, it may be the duty of the court to decree as between the parties before them. But where parties are essential, and their interests may be affected by a decree, the court cannot proceed to a final decision of the cause until they are parties. Russell v. Clark's Ex'rs. et al., 7 Cranch, 69; 2 Cond. Rep. 417. 581. In all bills in equity, in the courts of the United States, the citizenship should appear on the face of the bill, to entitle the court to take jurisdiction, otherwise the bill will be dismissed. If the citizenship be properly averred, and the defendant means to deny the fact of citizenship, he must take the exception by way of plea, and cannot do it by general answer, for it is a preliminary inquiry. Dodge v. Perkins, 4 Mason's C. C. R. 435. 582. A bill in equity, to enjoin a judgment, lies in the circuit court where the judgment is given; although the original plaintiff resides in, and is a citizen of another state. Such a bill is not an original suit within the sense of the 11th section of the judiciary act of 1789, ch. 20. Ibid. 583. A release to a third person of the right to the land in controversy in the original suit, is not an extinguishment of the right to maintain a bill in equity for an injunction and relief, where the equity is a mere possibility or constructive equitable trust, created by the decree of the court of equity. Such an equity is not assignable, for it has no existence, but by the decree of the court subsequently made. Ibid. 584. Whether a bill in chancery is open to the objection of multifariousness or not, will depend on all the circumstances of the particular case. No general rule can be laid down upon the subject; and much must be left to the discretion of the court. Oliver v. Piatt, 3 Howard, 333. 585. Multifariousness in a bill can be taken by a party to the bill only by demurrer, or plea, or answer, and cannot be taken at the hearing of the cause. But the court itself may take the objection at any time, at the hearing or otherwise. The objection cannot be taken by a party in the appellate court. Ibid. 586. General objections to an original bill, grounded on its not showing a proper case for the interference of a court of chancery, should be reserved until after the revivor of the bill. Bettes v. Dana, 2 Sumner, C. C. R. 383. 587. Matters may be inquired into under a bill in equity, notwithstanding they are open at law, where the bill is brought for other purposes, as for discovery, an injunction to stay proceedings at law, and for other general relief upon the merits, which a court of law is incompetent to administer. Gass v. Stinson, 2 Sumner, C. C. R. 454. 588. Under a bill in equity, proof is not admitted in respect to matters not alleged in the bill or answer; and, therefore, one of the parties who claimed to be an original purchaser for a valuable consideration without notice, not having so stated in his answer, it was held that evidence in regard to the fact was not admissible. Barque Chusan, 2 Story, C. C. R. 456. 5. Answer and Pleas in Chancery. 589. A plea in bar to a bill in chancery, denying only part of the material facts stated in the bill, is not good. A mere denial of facts is proper for an answer, but not for a plea. Milligan, Adm'r. of Milligan, v. Milledge and Wife, 3 Cranch, 280; 1 Cond. Rep. 503. 590. The answer of a defendant in chancery, though he may be interested in the whole amount in controversy, is conclusive evidence, if uncontradicted by any witness in the cause. Lenox v. Prout, 3 Wheat. 520; 4 Cond. Rep. 311. 591. If an account stated be pleaded in bar to a bill in equity, such bill will be sustained, except so far as the complainant shall show it to be erroneous. Chappedelaine et al. v. Decheneaux, 4 Cranch, 306; 2 Cond. Rep. 116. 592. The answer of one defendant is evidence against other defendants claiming through him. Field et al. v. Holland et al., 6 Cranch, 8; 2 Cond. Rep. 285. 593. The answer of a defendant is evidence against the plaintiff, although it be doubtful whether a decree can be made against such defendant. Ibid. 594. The plaintiffs cannot avail themselves of the answer of a defendant who is substantially a plaintiff; it is not evidence against a co-defendant. Ibid. 595. If the answer neither admits nor denies the allegations of the bill, they must be proved in the final hearing; but upon a question of dissolution of an injunction, they are to be taken to be true. Young v. Grundy, 6 Cranch, 51; 2 Cond. Rep. 300. 596. An answer, responsive to the bill, is evidence in favour of the defendant. Russel v. Clark's Executors, 7 Cranch, 69; 2Cond. Rep. 417. 597. The answer of one defendant in chancery is not evidence against his co-defendant; nor is his deposition, although he had been discharged by the insolvent act of assembly of Rhode Island, of 1757, from all debts and contracts, prior to the date of the discharge; and although the debt in suit was a debt contracted prior to such discharge, the debt having been contracted in a foreign country. Clark's Ex'rs. v. Van Riemsdyk, 9 Cranch, 153; 3 Cond. Rep. 319. 598. An answer in chancery, although positive, and directly responsive to an allegation in the bill, may be outweighed by circumstances; especially if it be respecting a fact which, in the nature of things, cannot be within the personal knowledge of the defendant. Ibid. 599. A denial by the defendant, that his testator gave authority to A. to draw a bill of exchange, is not such an answer, to an averment of such authority, as will deprive the complainant of his remedy; unless the defendant also deny the subsequent assent of his testator to the drawing of such bill. For a subsequent assent is equivalent to an original authority. Ibid. 600. It is a general rule that either two witnesses, or one witness with probable circumstances, will be required to outweigh an answer Answer and Pleas in Chancery. asserting a fact responsively to the bill. The reason is, the plaintiff calls upon the defendant to answer the allegation he makes, and thereby admits the evidence; if it is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the balance of proof be not in his favour, he must have circumstances in addition to his single witness in order to turn the balance. But there may be evidence, arising from circumstances, stronger than the testimony of any single witness. lbid. 601. The weight of an answer must, also, from the nature of evidence, depend in some degree upon the fact stated. Ibid. 602. A defendant having, perhaps incautiously, used terms indicating a knowledge of what in the nature of things he could not know, cannot give to his answer more effect than it would have been entitled to, had he been more circumspect in his language. Ibid. 603. If a plea to a bill in chancery be, in the apprehension of the complainant, good in matter, but not true in fact, he may reply to it, and proceed to examine witnesses as in case of a replication to an answer; but such a proceeding is always an admission of the sufficiency of the plea itself, as much so as if it had been set down for argument and allowed; and if the facts, relied on by the plea, are proved, a dismission of the bill, on the hearing, is a matter of course. Hughes v. Blake, 6 Wheat. 453; 5 Cond. Rep. 140. 604. After an answer and discovery, the rule is, that a suit brought merely for discovery cannot be revived. The object is obtained, and the plaintiff has no motive for reviving it. Greenleaf v. Queen, 1 Peters, 148. supreme court, at February term, 1822, for the regulation of proceedings in the circuit courts in equity causes, prescribes, "if a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received; and the defendant shall proceed to answer the plaintiff's bill; and if he fail to do so, within two calendar months, the same, or so much thereof as was covered by the plea or demurrer, may be taken for confessed; and the matter thereof decreed accordingly." Bank of the United States v. White et al., 8 Peters, 262. 610. By the terms of this rule, no service of any copy of an interlocutory decree, taking the bill pro confesso, is necessary before the final decree; and therefore it cannot be insisted on as a matter of right, or furnish a proper ground for a bill of review. If the circuit court should, as matter of favour and discretion, enlarge the time for an answer, or require the service of a copy before the final decree, that may furnish a ground why that court should not proceed to a final decree, until such order was complied with. But any omission to comply with it, would be a mere irregularity in its practice; and if the court should afterwards proceed to make a final decree without it, would not be error for which a bill of review lies; but it would have to be redressed, if at all, by an order to set aside the decree for irregularity, while the court retained possession and power over the decree and the cause. Ibid. 611. A bill was filed in the circuit court of Ohio, for a conveyance of the legal title to certain real estate in the city of Cincinnati, and the statute of limitations of Ohio was relied on by the defendants. The complainant claimed the benefit of an exception in the statute, of nonresidence and absence from the state; and evi 605. If a bill charges a defendant with notice of a particular fact, an answer must be given without a special interrogatory to the matter. But a defendant is not bound to answer an inter-dence was given, tending to show that the perrogatory, not warranted by some matter contained in a former part of the bill. Mechanics Bank of Alexandria v. Lynn, 1 Peters, 383. 606. It is a well-settled rule that, in a bill praying relief, when the facts charged in the bill, as the ground for 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 when 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. The Union Bank of Georgetown v. Geary, 5 Peters, 99. 607. An injunction bill was filed, upon the oath of the complainant, against a corporation, and an answer was put in, under their common seal, unaccompanied by an oath. The weight of such an answer is very much lessened, if not entirely destroyed, when it is not sworn to. Ibid. 608. The supreme court is inclined to adopt it as a general rule, that an answer, not under oath, is to be considered merely as a denial of the allegation in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegation. Ibid. 609. The 20th of the rules made by the VOL. I. - 28 son under whom he made his claim in equity was within the exception. The non-residence and absence were not charged in the bill, and of course were not denied or put in issue in the answer. Held, That the supreme court can take no notice of the proofs; for the proofs, to be admissible, must be founded upon some allegations in the bill and answer. If the merits of the case were not otherwise clear, the court might remand the cause for the purpose of amending the pleadings. Piatt v. Vattier et al., 9 Peters, 405. 612. It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant's bill by several modes of defence. He may demur, answer and plead to different parts of the bill; so that if a bill for discovery contain proper matter for the one, and not for the other, the defendant should answer the proper, and demur to the improper matter; and if he demur to the whole bill, the demurrer must be overruled. Livingston v. Story, 9 Peters, 632. 613. The principle is unquestionable, that all the parties to the original decree ought to join in the bill of review. Bank of the United States v. White, 8 Peters, 252. 614. No admissions in an answer to a bill in Answer and Pleas in Chancery. chancery can, under any circumstances, lay the foundation for relief, under any specific head of equity, unless it be substantially set forth in the bill. Jackson v. Ashton, 11 Peters, 229. 615. The 22d rule for the regulation of equity practice in the circuit courts of the United States does not allow a defendant, instead of filing a formal demurrer or a plea, to insist on any special matter in his answer, and have also the benefit thereof, as if he had pleaded the same matter and demurred to the bill. In this respect, the rule is merely affirmative of the general rule of the court of chancery, in which matters in abatement, and to the jurisdiction, being preliminary in their nature, must be taken advantage of by plea, and cannot be taken advantage of in a general answer, which necessarily admits the right and capacity of the party to sue. Livingston v. Story, 11 Peters, 351. 616. Under special circumstances, as if the defendant to a bill for an injunction be merely nominal, the court will, on the application of the party really interested, though not a party on the record, direct the answer of the nominal party to be taken under a commission; and notice of such an application to the court is not necessary. Wilkins v. Jordan, 3 Wash. C. C. R. 226. 617. If the plaintiff finds it necessary, from the answer, to prove new matter, the practice is now to amend the bill. But if a special replication is filed, denying all the material parts of the answer, and also charging new matter, the new matter will be considered as surplusage, at the hearing. Duponti v. Mussey, 4 Wash. C. C. R. 128. 618. A plea to a bill in equity may be good in part, and not so in the whole; and the court will allow it as to so much of the bill as it is properly applicable to, unless it has the vice of duplicity in it. Kirkpatrick v. White et al., 4 Wash. C. C. R. 595. 619. An answer in chancery by a defendant beyond sea, must be taken and sworn to by a commission, under a dedimus issued by the court, directing him to administer the oath in the most solemn forms observed by the laws and usages of that country. Read v. Consequa, 4 Wash. C. C. R. 335. 620. An answer from China being objected to as not responsive to all the charges in the bill, the circuit court directed the plaintiff to file his exceptions in ten days; and if the new answer was clear of those exceptions, no new exceptions to it would be listened to. lbid. 621. Where a bill in equity states a case to which the act of limitations applies, without bringing it within some of the savings, the defendant may take advantage of the bar, by demurrer. Wisner et al. v. Barnet et al., 4 Wash. C. C. R. 631. 622. It is a good cause of exception to an answer, that to the denial that the defendant has no knowledge of the facts charged, it is not added that he had no information or belief of them. Bradford v. Geiss, 4 Wash. C. C. R. 513. 623. On exception to an answer for impertinence and scandal, courts of equity give the an swer a liberal consideration, having regard to the nature of the case as made by the bill. Griswold v. Hill, 1 Paine's C. C. R. 390. 624. If the answer of the defendant be responsive to a bill, and deny the allegation contained in it, the plaintiff must support his averment by a witness, and corroborating circumstances, to avoid the effect of the answer. Higbee v. Hopkins, 1 Wash. C. C. R. 230. 625. If a plea be set down for argument by the complainant, without replication, the matter of it must be taken as true. Gallagher's Exr's. v. Roberts, 1 Wash. C. C. R. 320. 626. A verdict and judgment at law are no bar to relief in equity, if an equitable ground of relief be laid, and this not denied by the plea. Ibid. 627. If it be denied, plaintiff may reply generally, and go into proof to support the bill; if he fail in his proof, the plea will be a good bar in the same manner as if no replication had been put in. Ibid. 628. If the bill contain no ground for relief, the defendant should demur. Ibid. 629. A replication to a plea is an admission of the sufficiency of the plea, as much as if it had been set down for argument, and allowed; and all that the defendant has to do, is to prove it in point of fact; and a dismission of the bill on the hearing is then a matter of course. Hughes v. Blake, 6 Wheat. 453; 5 Cond. Rep. 136. 630. In general, the answer of one defendant in equity cannot be read in evidence against another. But where one defendant succeeds to another, so that the right of the one devolves on the other, and they become privies in the estate, the rule does not apply. Osborn v. Bank of the United States, 9 Wheat. 738; 5 Cond. Rep. 741. 631. A general answer in chancery overrules the pleas. Taylor v. Luther, 2 Sumner's C. C. R. 228. 632. Where the plaintiff, in his bill in chancery, directly charged upon the defendant, that he had made and entered into a certain agreement, a simple denial by the defendant in his answer, "according to his recollection and belief," is insufficient, and must be treated as a mere evasion. Ibid. 633. An allegation in any answer, which is not responsive to the bill, is not evidence; and the onus probandi is on the defendant, to establish it. Flagg v. Mann, 2 Sumner's C. C. R. 487. 634. The administratrix of the defendant in the original bill, and his infant son and sole heir, are proper parties against whom a bill of revivor may be exhibited. Bettes v. Dana, 2 Sumner's C. C. R. 383. 635. If the complainant in a bill in chancery does not file a general replication to the answer of the defendant, the answer is to be taken as true, and no evidence can be given by the complainant to contradict it. Pierce v. West's Ex'rs., Peters' C. C. R. 351. 636. After a cause was set down for hearing, on bill and answer, and a reference to the auditor, the plaintiff was allowed to file a general repli cation. Ibid. 637. The general rule is, that if the defendant Answer and Pleas in Chancery.-Process in Chancery. to a bill in equity answer to the same matter which is covered by his plea, and which, by his plea, he contends he is not bound to answer, the latter overrules the former. Ferguson v. O'Hara, Peters' C. C. R. 493. 638. If the plea is only to some part of the bill, the defendant must answer to the residue, unless the matter be proper for a demurrer. Ibid. 639. The answer of one defendant to a bill in chancery, cannot be used as evidence against his co-defendant; and the answer of an agent is not evidence against his principal, nor are his admissions in pais, unless where they are a part of the res gesta. Leeds v. Marine Ins. Co. of Alexandria, 2 Wheat. 380; 4 Cond. Rep. 170. 640. Where a cause is set down for hearing, on the bill, answer, and exhibits, without other pleadings, the whole of the answer must be taken as true. Ibid. 641. The rule in chancery is, if the answer of the defendant admits a fact, but insists on matter by way of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the matter in avoidance. Clarke et al. v. White, 12 Peters, 178. 642. The answer of a defendant in another suit, though good evidence against him, is not admissible against a co-defendant. Dexter v. Arnold, 3 Sumner's C. C. R. 152. 643. In matters of form, or mistakes of dates, or verbal inaccuracies, courts of equity are very indulgent in allowing amendments of answers; but they are slow to allow amendments on material facts, or to change essentially the grounds taken in the original answers. Smith v. Babcock, 3 Sumner's C. C. R. 350. as may be practicable, it differs from that an nexed to the original answer in the case. Ibid. 646. An exception to an answer for insufficiency should state the charges in the bill, the interrogatory applicable thereto to which the answer is responsive, and the terms of the answer verbatim, so that the court may see whe ther it is sufficient or not. Brooke v. Byam, 1 Story's C. C. R. 296. 647. Whenever the defendant does not deny any particular allegations stated in the bill, but states his belief thereof, he either admits that it is true, or that he does not mean to controvert it. But a mere statement by a defendant in his answer, that he has no knowledge of the fact as stated, without any answer as to his belief concerning it, is not such an admission as to be evidence of the fact. Ibid. 648. The defendant in equity is bound to answer in direct and unequivocal terms, as to the state of his mind regarding every fact stated in the bill on which he is interrogated; either, that he does believe the matters inquired of, or that he cannot form any belief, or has none concerning it; and according as the answer may be, he must state that he calls on the plaintiff for proof, or that he admits the particular fact, or that he waives all controversy concerning it. Ibid. 649. Held, That where an answer contains more than is strictly applicable to the support of the plea, it overrules the plea. Stearns v. Page, 1 Story's C. C. R. 204. 650. The rule of equity is, that an answer responsive to the allegations and charges made in the bill, and containing clear and positive denials thereof, must prevail, unless overcome by 644. Where the object is to let in new facts the testimony of two witnesses; or by one witand defences, wholly dependent on parol evi- ness and other attendant circumstances, supply. dence, the reluctance of the court to allowing the want of another witness. Daniel v. amendments is much increased; since it would Mitchell, 1 Story's C. C. R. 172. encourage carelessness and indifference in making answers, and open the door to the introduction of testimony manufactured for the purpose. The whole matter is in the discretion of the court. Ibid. 645. When a party sought to amend his answer, by showing that the instrument annexed to the answer was not the original instrument, executed at the time of the conveyance, or a copy thereof, but that it varied from that instrument in some important particulars, material to the present controversies; that the original was lost or mislaid by the person (not the defendant) to whom it belonged; that the contents, so far as they were material in this application, as well as the existence and genuineness of the paper, could be established by satisfactory evidence; and that the mistake in the answer was not dis covered until long after the answer was sworn to and filed; and that its materiality was wholly unsuspected, until it was recently brought as a point of objection on the other side: Held, That under the circumstances a supplementary answer might be filed, which should fully, positively, and accurately state all the attendant circumstances, and the substantial contents of the lost instrument; and in what particulars, as far 651. An answer responsive to the allegations and charges in the bill, will prevail in favour of the defendant as evidence, unless it be overcome by the testimony of two witnesses, or by one witness, and corroborative circumstances. Langdon v. Goddard, 2 Story's C. C. R. 267. 652. An answer in equity to facts charged in the bill, is to be taken as true until the contrary is clearly established. Hough v. Richardson, 3 Story's C. C. R. 659. (Gould v. Gould, Ibid. 576.) 653. Exceptions were taken to the answer, on the ground that the statements of the defendants therein contained, "were not, to the best of their remembrance, information, and belief," as required by the bill, and were imperfect and insufficient, and the exceptions were allowed by the court. It was held, that the defendant was bound to answer as to his information, and remembrance, and belief, as well as to his knowledge. Ibid. 6. Process in Chancery. 654. If a judgment at law be obtained, the service of the subpoena on the attorney of the plaintiff in the suit, he being absent from the state, will be good, where the subject in controversy is the same with the matter in the suit for which the judgment was rendered. Suckley, 2 Wash. C. C. R. 465. Relief in Chancery. Specific Performance, Trust, Mistake, Fraud. Hitner v. 655. A circuit court, sitting as a court of equity, cannot award a writ of habere facias possessionem to enforce its decree. Wallen v. Williams, 7 Cranch, 602; 2 Cond. Rep. 622. 7. Relief in Chancery. Specific Performance, Trust, Mistake, Fraud. SPECIFIC PERFORMANCE. cific execution. And it has been almost as much a matter of course for a court of equity to decree a specific execution of a contract for the purchase of lands, where in its nature and circumstances it is unobjectionable, as it is to give damages at law, where an action will lie for a breach of the contract. But this power is to be exercised under the sound discretion of the court, with an eye to the substantial justice of the case. King v. Hamilton, 4 Peters, 328. 663. When a party comes into a court of chancery seeking equity, he is bound to do justice, and not ask the court to become the instrument of iniquity. When a contract is hard and desti tute of all equity, the court will leave parties to their remedy at law; and if that has been lost by negligence, they must abide by it. Ibid. 664. It is a settled rule in a bill for specific 656. Although it seems to be a general rule, that a court of chancery will not decree a specific performance of contracts, except for the purchase of lands, or things which relate to the realty, and are of a permanent nature; and that where contracts are for chattels, and compensation can be made in damages, the parties may be left to their remedy at law; yet, notwith-performance of a contract, to allow a defendant to standing this distinction between personal contracts for goods and contracts for lands, there are many cases to be found where specific performance of contracts, relating to personalty, have been enforced in chancery; and courts will only weigh with greater nicety, contracts of this description, than such as relate to lands. The Mechanics Bank of Alexandria v. Louisa and Maria Seton, 1 Peters, 305. show that it is unreasonable, or unconscientious, or founded in mistake, or other circumstances leading satisfactorily to the conclusion that the granting of the prayer of the bill would be inequitable and unjust. Gross negligence on the part of the complainant, has great weight in cases of this kind. A party, to entitle himself to the aid of a court of chancery for a specific execution of a contract, should show himself ready and desirous to perform his part. Ibid. 657. Time is material as to the specific performance of a contract, wherever, from the 665. The right of a vendor to come into a change of circumstances, a specific perform-court of equity to enforce a specific performance, ance, such as would answer the ends of justice between the parties, has become impossible. Pratt et al. v. Law et al., 9 Cranch, 456; 3 Cond. Rep. 460. 658. The execution of instruments, fairly and legally entered into, is one of the peculiar branches of equity jurisdiction; and a court of equity will compel a delinquent party to perform his agreement, according to the terms of it, and to the manifest intention of the parties. Hunt v. Rousmanier's Adm'r., 1 Peters, 13. 659. Courts of equity have jurisdiction to enforce a specific performance of an award respecting real estate. But he who seeks performance, must show a readiness to perform all the award on his own part. M'Neil v. Magee, 5 Mason's C. C. R. 244. 660. After long delay and laches, a court of equity will not decree a specific performance of an award, especially where there has been a material change of circumstances, and injury to the other party. Ibid. 661. A court of equity ought not to decree a specific performance of a contract to the letter, where, from change of circumstances, mistake, or misapprehension, it would be unconscientious so to do. The court may so modify the agreement as to do justice, as far as circumstances will permit, and refuse specific execution, unless the party seeking it will comply with such modifications as justice requires. The Mechanics Bank of Alexandria v. Lynn, 1 Peters, 382. 662. The powers of a court of chancery to enforce a specific execution of contracts, are very valuable and important. For in many cases where the remedy at law for damages is not lost, complete justice cannot be done without a spe. is unquestionable. Such objects are within the settled and common jurisdiction of the court. It is equally well settled, that if the jurisdiction attaches, the court will go on to do complete justice; although in its progress it may decree on a matter which is cognisable at law. Cathcart et al. v. Robinson, 5 Peters, 264. 666. Excess of price over value, if the contract be free from imposition, is not of itself sufficient to prevent a decree for a specific performance. But though it will not, standing alone, prevent a court of chancery enforcing a contract, it is an ingredient which, associated with others, will contribute to prevent the interference of a court of equity. Ibid. 667. The difference between that degree of unfairness which will induce a court of equity to interfere actively by setting aside a contract, and that which will induce a court to withhold its aid, is well settled. It is said that the plaintiff must come into court with clean hands, and that a defendant may resist a bill for specific performance, by showing that under the circumstances the plaintiff is not entitled to the relief he asks. Omission or mistake in the agreement; or that it is unconscientious or unreasonable; or that there has been concealment, misrepresentation, or any unfairness; are enumerated among the causes which will induce the court to refuse its aid. If to any unfairness a great inequality between the price and value be added, a court of chanoery will not afford its aid. Ibid. 668. A decree of a specific performance of a contract to purchase a tract of land was refused, in consequence of delay and defect of title. Watts v. Waddle, 6 Peters, 389. |