CHAPTER XX PROCEDURE IN THE ORDINARY FEDERAL COURTS OF ORIGINAL JURISDICTION (Continued)—COURTS OF EQUITY (Continued) 162. The Defense (Continued)-The Answer. 163. 164. 165. 166. 167. 168. 169. Same-Same-Joinder of Issue on. The Proofs. Same-Testimony by Deposition, before Examiners. The Decree-Form of. Same-Its Enforcement. Same-Reopening of Decree. THE DEFENSE (Continued)-THE ANSWER 162. The answer is the method of setting up defenses of fact, and also such defenses of law as may be made by motion to dismiss, and are not required to be set up by a special appearance. An answer, so far it is responsive to the bill, has probative force, if under oath, and is conclusive unless contradicted by two witnesses or one witness and strong corroborating circumstances. Equity rule 30 provides: "The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. "The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims." An answer in equity, if under oath, and responsive to the charges of the bill, is more than a simple pleading putting facts in issue. It has probative force in itself, and is conclusive unless overcome by the testimony of two witnesses, or one witness and corroborating circumstances. This rule, coming from the doctrines of the civil law, is firmly established in chancery practice.1 But this rule ceases where the reason for it no longer exists, and hence even an answer under oath, professing not to be on personal knowledge, has no probative force, and merely puts the matter in issue.2 There is nothing in the new rules indicating any intention to abrogate the pre-existing law as to the probative force of a sworn answer, unless it might be inferred from the allowance of inconsistent defenses (which would be a right hard answer to swear to); but this is hardly enough 1 LATTA v. KILBOURN, 150 U. S. 524, 14 Sup. Ct. 201, 37 L. Ed. 1169; Kennedy v. Custer, 174 Fed. 972, 98 C. C. A. 584. See "Equity," Dec. Dig. (Key-No.) § 345; Cent. Dig. §§ 715-724. 2 Hanchett v. Blair, 100 Fed. 817, 41 C. C. A. 76; Savings & Loan Soc. v. Davidson, 97 Fed. 696, 38 C. C. A. 365. See "Equity," Dec. Dig. (Key-No.) § 341; Cent. Dig. 8 687. to warrant an intent to change a rule of such long standing, and hence it is believed that this is still the law. Prior to the new rules, statements in the bill neither admitted nor denied by the answer were not considered as impliedly admitted but had to be proved.3 But rule 30, above quoted, changes this, except as to averments of value or amount of damage. Another material change made by new rule 30 is the allowance of inconsistent defenses in the answer. Heretofore it was not allowed.* Under rule 43, want of parties may be set up by an swer. An important effect of rule 30 is the allowance of many defenses or counterclaims to be set up by answer which heretofore could be asserted only by cross-bill." SAME-SAME-JOINDER OF ISSUE ON 163. The joinder of issue on an answer is made Usually no formal reply is necessary. Under the former practice the method of questioning the sufficiency of an answer, whether in point of law or in respect of its being a full answer to the charges of the bill, was by exception. But new rule 33 provides: "Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, set-off or 3 Lovell v. Johnson (C. C.) 82 Fed. 206; Butterfield v. Miller, 195 Fed. 200, 208, 115 C. C. A. 152. See "Equity," Dec. Dig. (Key-No.) $ 325; Cent. Dig. §§ 641-647. 4 Ozark Land Co. v. Leonard (C. C.) 24 Fed. 660; Von Schroder v. Brittan (C. C.) 98 Fed. 169. See "Equity," Dec. Dig. (Key-No.) § 184; Cent. Dig. § 425. 5 Mitchell v. International Tailoring Co. (C. C.) 169 Fed. 145. See "Equity," Dec. Dig. (Key-No.) § 196; Cent. Dig. §§ 450–454. counterclaim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the suffi ciency of the same by motion to strike out. If found insufficient but amendable the court may allow an amend ment upon terms, or strike out the matter." The language of this rule makes it manifest that a motion to strike out will lie only to new or affirmative matter in the answer, and not for its failure to fully answer the bill or to set up a sufficient defense of a merely negative nature. If defendant fails to answer fully, plaintiff under new rule 30 can treat this as an admission of the truth of the unanswered part. If he wishes a discovery he can propound interrogatories and compel a reply under the provisions of new rule 58. If on the other hand the answer fails to set up a good defense in law, the plaintiff is not hurt, but can contend for his relief with the greater confidence. So the abolition of the old practice of exceptions does no harm. If the answer was not subject to exception for insufficiency, the method of putting in issue the facts set up in it was under the former practice by replication. Now new. rule 31 provides: "Unless the answer assert a set-off or counterclaim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counterclaim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counterclaim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counterclaim may be entered as in default of an answer to the bill." Hearing on Bill and Answer Another step, which practically amounts to joining issue on the answer, is by going to trial on bill and answer. This is tantamount to the position that the answer is so insufficient as not to amount to a legal defense-in other words to a demurrer to the answer." But when this step is taken, the sufficiency of all the facts well pleaded in the answer, whether they consist of mere denials of the bill, or of defenses of new matter, is admitted; and the plaintiff, by resorting to it, runs the risk of making his case rest upon the position that he is entitled to a decree upon bill and answer; and, if he should turn out to be mistaken, he has no further right to insist upon joining issue and taking proofs. Amendments of Answers. Under the former practice, amendments of answers were allowed with reluctance. This was the old doctrine of the English chancery courts, and was emphasized by old equity rule 60. But the new rules are more liberal in this respect. New rule 19 allows the amendment of any pleading in furtherance of justice, and new rule 30 makes special provision for the amendment of answers. THE PROOFS 164. The evidence in equity cases is taken in open court as a rule, the other methods being the exception and requiring a special showing to authorize their use. By section 862 of the Revised Statutes it is provided that "the mode of proof in causes of equity and of admiral 6 Banks v. Manchester, 128 U. S. 244, 9 Sup. Ct. 36, 32 L. Ed. 425. See "Equity," Dec. Dig. (Key-No.) § 213; Cent. Dig. § 486. 7 U. S. Comp. St. 1901, p. 661. |