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for in the bill will automatically be, granted as the court must still satisfy itself that such relief is proper on the facts pleaded in the bill. Under the unified practice of the code states, the defendant is served with a summons in all cases, and there is no difference in the effect of a failure to appear as between law and equity.

3. Appearance and pleading by defendant. If the defendant appeared, he had under the classical practice four options. He might (1) disclaim, (2) demur, (3) plead, (4) answer. If he did none of these, he was in default for want of an answer, and the bill might be taken pro confesso against him. Moreover, he had to proceed with his defense in the order just indicated: if he pleaded, he could not demur; if he answered, he could not plead; and if after demurring he pleaded or answered, or after pleading he answered, the plea or answer would overrule the demurrer or plea. It was however possible, as we shall see, to demur or plead to part of the bill and answer as to the rest of the bill in some cases:

4. Disclaimer. If the defendant claims no interest in the subject matter of the litigation, he may disclaim, and ask to be dismissed from the suit with his costs. For example, if the plaintiff sues to foreclose a first mortgage on Blackacre and makes the holder of a former second mortgage a party defendant believing that this mortgage is still outstanding, the former second mortgagee may file a disclaimer and thus by order of the court cease to be a party to the suit. The disclaimer is, of course, used only in special circumstances.

5. Demurrers. The demurrer in equity is an adaptation of the common law demurrer, and raises the question whether the bill states grounds for relief in equity. Like the demurrer at law, it admits the allegations of the bill for the purpose of the demurrer and denies the sufficiency of those allegations to sustain the plaintiff's case.1 The analogue to the general demurrer at law is the demurrer for want of equity which raises the question of the substantive sufficiency of the plaintiff's bill; other defects in the bill are taken advantage of by special demurrer pointing out the defect.

The Federal Equity Rules of 1912 abolished the demurrer in equity and substituted a motion to dismiss, which had the same effect in substance. Under the codes, a statutory demurrer or a motion. usually serves the same purpose.

In classical equity, although a demurrer was overruled, as the phrase was, by an answer, it was nevertheless possible to argue ob-. jections to the bill at the hearing after answer, and such objections

1 It does not admit, any more than does a demurrer at law, matters of fact alleged where judicial notice may be taken of their untruth, nor conclusions of law.

were frequently suggested in the answer itself. This practice came to be known as "demurring in the answer," and was recognized by the Federal Equity Rules of 1912. But a demurrer could not be joined with a plea in classical equity. Under the present Federal Rules of Civil Procedure, the defense that the complaint fails to state a cause of action may be made either by motion or in the answer, and must be made in one or the other of these ways. The practice in many code states is similar, as we have seen; but in some a demurrer cannot be joined with an answer.

The effect of a demurrer or motion to dismiss is to bring the cause on for hearing on an issue of law. The hearing is substantially similar to that on a demurrer at law. If the demurrer is sustained, the bill is dismissed unless the plaintiff obtains leave to amend; if it is overruled, the defendant must plead or answer, or the bill will be taken pro confesso against him.

At common law, as we have seen, a demurrer may be filed to any pleading; but in equity the only pleading which can be demurred to is the bill. We shall consider later how objections in point of law to the sufficiency of a plea or answer are raised.

The strict rules of the common law with respect to joinder of parties and causes of action did not apply in equity, and consequently a bill might set up several related matters with respect to which relief was sought. In such a case it was permissible to demur to part of a bill and plead or answer as to the rest of the bill.

6. Pleas. The plea in classical equity, while in some respects modelled on the corresponding pleading at law, was considerably different in its effect. Its purpose was to avoid the necessity of an answer by setting up a single decisive ground of defense to the plaintiff's bill. The original situation in which a plea was allowed was where the defendant had a single affirmative defense which would if valid decide the controversy. In such a case, it would save the time of the court and the parties to try the validity of this defense first, before compelling the defendant to answer and proceeding to trial; hence the defendant was allowed to raise the defense by a plea. This mode of defending if successful had the further, advantage to the defendant that it saved him from disclosing facts or evidence which he might wish to keep secret. For example, if the plaintiff sued for specific performance of a contract after giving a release to the defendant, the defendant might set up the release by plea, and thus avoid the necessity of answering the bill line by line.

Such an affirmative or pure plea would set up the affirmative defense by alleging new matter, and would admit the allegations of the bill. Later it came to be held that where the defendant had a single ground of defense which might be raised by denying certain

1 If, however, a bill sought relief as to two or more entirely unrelated matters, it was open to objection on the ground of being multifarious.

allegations of the bill, this defense also might be raised by plea. For example, if in the instance previously given the plaintiff had anticipated the defense of release and had alleged in his bill that the release had been obtained by fraud, the defendant might file a plea denying the fraud. Such a plea was called an anomalous plea and had to be supported by an answer which gave discovery as to the matters alleged in the bill with regard to the fraud which the plaintiff charged.1 If the plaintiff desired to object to the legal sufficiency of the plea, his proper course was to set the plea down for argument. This had the effect of a demurrer to a plea at law; the court heard argument and either allowed or overruled the plea. If the plea was overruled as bad in law, the defendant was required to answer; if the plea was allowed, it was still possible for the plaintiff to controvert the truth of the plea or to set up matter in confession and avoidance, which was done by filing a replication, or he might obtain leave to amend his bill. We shall consider hereafter the effect of these procedures.

In some cases it was possible to plead to part of the bill just as it was possible, as we have seen, to demur to a part. Moreover, there might be dilatory pleas in equity on much the same grounds as at law, going to the jurisdiction of the court or setting up matter in abatement. Such pleas were required to be pleaded before pleading in bar to the bill or answering it, and they were waived by a later plea in bar or answer.

The Federal Equity Rules of 1912 abolished pleas, and provided that every defense formerly made by plea should be made by answer, but permitted the court in its discretion to hear and dispose of such defenses before the trial; and there are similar rules in most of the states which still have a separate equity procedure.

7. The answer. The most important pleading available to the defendant in equity is the answer. Under the classical procedure, it was the only pleading of the defendant who proposed to defend on the merits unless he was able to demur or plead. Unlike a plea, which raised a single narrow defense in bar of the suit, the answer went to the whole bill. It had two functions: First, it stated the defendant's defenses, operating in this respect like a plea at law, or more accurately like all of a defendant's pleas at law, since a single answer might contain as many defenses as the defendant had. So far it was a pleading only. Second, the answer gave discovery, as the phrase was. It answered in detail the allegations of matters of evidence as well as of ultimate fact in the bill, and its contents became evidence both for and against the defendant at the trial of the suit. If special interrogatories were included in or filed with the bill, the answer was required to include replies to them. And it was required

1 It was also possible to have a purely negative plea. See Keigwin, Cases on Equity Pleading (2d ed. 1933) 487.

to be made on oath unless the oath were waived by the plaintiff in his bill.1

While an answer served the purpose of defensive pleadings at law, it was a very different document from a plea or set of pleas. In the first place, failure to deny an allegation of the bill did not admit it, as at law; the plaintiff still had to prove its truth. This rule was a result of the influence of the ecclesiastical court procedure which came from the civil law. Second, the answer was a narrative. It set forth in as much detail as the defendant wished his version of what actually happened, and did not follow any stock form. There was no general issue in equity, no plea of liberum tenementum or of son assault demesne. Third, and related to this, there was no necessity that the answer tender a specific narrow issue or set of narrow issues. "... a plurality of issues is quite likely, each branch of the controversy and each element of the transaction calling for different treatment in the way of denial, admission, rebuttal, or explanation.” 2 In consequence, an equity answer in a case of any complexity was likely to be a very lengthy document.

After the answer was filed, the plaintiff might wish to object to its sufficiency as a pleading or to its adequacy as a vehicle of discovery. To illustrate the first possibility, let us suppose that the defendant in his answer admits the allegations of the bill but sets up an affirmative defense which the plaintiff believes to be insufficient in law. If the analogy of common law pleading had been followed, the appropriate procedure would have been a demurrer to the answer. But this was not permitted in equity. What the plaintiff did was to set the cause down for hearing on bill and answer. On that hearing, everything in the bill not denied in the answer was taken to be true, as was everything alleged in the answer, and the resulting issue of law was decided by the court. If the court decided this issue for the plaintiff, he had still to prove the allegations of the bill; if for the defendant, he had still to prove the allegations of the


If the plaintiff's objection to the answer was not to its sufficiency as a pleading but to the extent of the discovery given, he might except to the answer, specifying those matters with respect to which the answer did not make sufficient disclosure. If his exceptions were deemed well taken by the court, the defendant would be required to answer further as to such matters. Exceptions were also used to expunge scandalous or impertinent matter from the answer.

1 There was a rule of equity practice that a statement under oath in an answer would be taken as true unless the contrary were proved by at least two witnesses or one witness and surrounding circumstances. See pp. 671–672, infra. In other words, if it was the plaintiff's oath against the defendant's, the defendant prevailed on the issue of fact involved. Hence the plaintiff sometimes deemed it advisable not to require that the defendant answer upon oath.

2 Keigwin, Cases on Equity Pleading (2d ed. 1933) 531.

The Federal Equity Rules of 1912 made extensive changes in the practice with regard to answers, and similar changes have been made in most states having a separate equity procedure. The provision for combining pleas with the answer has already been mentioned. The most important change, however, was the elimination from the answer (and, as we have seen, from the bill) of all matter of discovery. The rules severed the functions of the old equity answer, providing a separate collateral proceeding by interrogatories to give discovery, and making the answer serve the purposes of a pleading only. Moreover, the rules were interpreted as doing away with the procedure for testing the legal sufficiency of the answer by .setting the cause down for hearing on bill and answer, and as substituting therefor a motion to strike out affirmative matter in the answer as insufficient in law to constitute a defense to the bill. With the elimination of discovery from the answer, exceptions on this ground became inappropriate, and the elimination of impertinent or scandalous matter from bill or answer was accomplished by a motion to strike.

The codes generally have adopted the designation of "answer" for the first responding pleading of the defendant in all cases. The code answer is the equity answer under the Federal Rules of 1912 or similar state practice, rather than the classical equity answer or the common law plea. But objections to the sufficiency of the code answer are usually raised by motion for judgment on the pleadings, analogous to the common law demurrer to a plea, rather than by the procedure formerly used in equity cases.

8. Cross-bills. The cross-bill in equity is an analogue to the counterclaim at law. But while at law a cross-claim could be asserted only by way of recoupment in the absence of statutes of set-off or counterclaim, equity from the beginning permitted greater freedom. The practice of the Court of Chancery in this regard was borrowed from the earlier practice of the ecclesiastical courts, which permitted cross-actions but required that the pleadings in an action and crossaction should take the form of separate suits.1 A cross-bill as distinguished from an answer was necessary when the defendant desired affirmative relief on his own account. For example, suppose that the plaintiff sues for specific performance of a contract, and that the defense is fraud. The defendant may, by merely answering, defeat the suit on this ground; but if he wishes to have the contract cancelled for fraud, he must file a cross-bill. Moreover, a cross-bill for discovery might be desirable to enable the defendant to search the conscience of the plaintiff with respect to the subject-matter of the briginal bill.

The Federal Equity Rules of 1912 permitted cross-claims to be set up in the answer, and this is the usual state practice today where

1 See Langdell, Summary of Equity Pleading (2d ed. 1883) §§ 152-153.

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