that to refer such exceptions to a master on a day not a rule-day "is to do what is not authorized by the rules, and, unless affirmed or cured by some subsequent action of the court, is a nullity." 21 If, at the hearing, the exceptions are allowed, the defendant is bound to put in a full and complete answer thereto on the next succeeding rule-day; otherwise the plaintiff will, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such writ, cannot be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct.22 If, upon argument, the plaintiff's exceptions are overruled, or the answer adjudged insufficient, the prevailing party is entitled to all the costs thereby occasioned, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions.23 An exception for insufficiency may be allowed in part and overruled in part.24 Where an exception for insufficiency was sustained, and a further answer put in, which the plaintiff deemed still insufficient, by the former English practice he had three weeks wherein to refer the same to a master upon the old exceptions; otherwise the further answer was deemed sufficient.25 If the further answer was found insufficient, the defendant was required to put in a third answer; and if that too was found insufficient, he was committed to the Fleet, and examined upon interrogatories.26 When an order was obtained after answer, allowing the plaintiff to amend his bill, and requiring the defendant to answer the amendments and the exceptions to the answer to the original bill together; upon such answer the plaintiff could only file new exceptions for a failure to fully answer the amendments.27 A further answer is in every respect similar, and is considered a part of the original answer. If, therefore, it repeats any matter contained in a former answer, the repetition, unless it varies the

21 La Vega v. Lapsley, 1 Woods, 428, 247; Hoffmann v. Postill, L. R. 4 Ch. 432, Woods, J. App. 673.

22 Rule 64.

28 Rule 65.

24 E. I. Co. v. Campbell, 1 Ves. Sen.

25 Smith Ch. Pr. (2d ed. 1836), 285.

26 Smith Ch. Pr. (2d ed. 1836), 285, 286. 27 Partridge v. Haycraft, 11 Ves. 570, 581; Smith Ch. Pr. (2d ed. 1836), 286.

defence in point of substance, or is otherwise necessary, is considered as impertinent.28 The criterion of the materiality of an interrogatory is not whether an affirmative answer will prove the bill, but whether it will tend to prove the bill.29

§ 154. Supplemental Answers. A supplemental answer is filed to bring to the attention of the court some fact which was not inserted in the original answer through mistake or ignorance, or which has occurred subsequently to the filing of the same. They can only be filed by leave of the court, which may impose terms upon the applicant.3 The rules regulating supplemental answers of the former class will be found in the chapter upon Amendments. Those of the second class have been little considered in the books. Their functions may also be performed by cross-bills. It is too late after answer and decree to object to the regularity of a proceeding in which facts were set up by petition when a cross-bill or supplemental answer would have been the proper practice.5

§ 155. Disclaimers. - A disclaimer is a pleading by which the defendant renounces all claim to property which the plaintiff seeks in his bill to obtain.1 It is said that it is distinct in its substance from an answer, although sometimes confounded with one.2 It must, however, in most cases be accompanied by an answer, for where a defendant has been made a party by mistake, having had an interest with which he has parted, the plaintiff may require an answer sufficient to ascertain what the facts are, and to whom he has transferred his interest.3 Moreover, a defendant, although he may disclaim an interest, cannot disclaim a liability. The only cases in which a disclaimer without an answer is sufficient seem to be those where the bill simply

28 Story's Eq. Pl. § 868. See Gier v. Gregg, 4 McLean, 203.

29 Uhlmann v. Amholt & S. Brewing Co., 41 Fed. R. 369. See supra, § 82. § 154. 1 Smith v. Babcock, 3 Sumner, 583; Williams v. Gibbes, 20 How. 535; Caster v. Wood, Baldwin, 289; Suydam v. Truesdale, 6 McLean, 459.

2 Kelsey v. Hobby, 16 Pet. 269, 277; Talmage v. Pell, 9 Paige (N. Y.), 410, 413. 3 Smith v. Babcock, 3 Sumner, 583; Caster v. Wood, Baldwin, 289.

Kelsey v. Hobby, 16 Pet. 269, 277; infra, § 171.

alleges that the defendant claims an interest in the property in question without specifying the claim.5 Under very special circumstances, a disclaimer may be withdrawn, and an answer filed setting up a claim. Where a disclaimer is made, and it appears that the defendant was made a party without apparent reason, the bill will be dismissed with costs. Otherwise, a decree may be entered without costs against the defendant and all claiming under him since the filing of the bill.8 The plaintiff should not file a replication to a disclaimer alone. When the disclaimer is insufficient it may be stricken off the file upon motion, or exceptions to it for insufficiency, if filed, will be sustained.10 A disclaimer may be accompanied by a plea, answer, or demurrer, or all of these, provided that each refers to a separate part of the bill." If a disclaimer and answer by the same defendant are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer.12 The following is a form of a mere disclaimer: "The disclaimer of Richard Flagg, the defendant, to the bill of complaint of Robert Aber, complainant. This defendant, saving and reserving to himself [here follows the usual general reservation in an answer], saith, that he doth not know that he, this defendant, to his knowledge and belief, ever had, nor did he claim or pretend to have, nor doth he now claim, any right, title, or interest of, in, or to the estates and premises, situate [describing them], in the said complainant's bill set forth, or any part thereof; and this defendant doth disclaim all right, title, and interest to the said estate and premises in [naming their situation], in the said complainant's bill mentioned, and every part thereof." A disclaimer concludes in the same way as an answer. 13

5 Story's Eq. Pl. § 838. See Graham Coape, 9 Simons, 93, 102; s. c. 3 Myl. & Cr. 638.

v.

Story's Eq. Pl. § 841. 7 Story's Eq. Pl. § 842. Story's Eq. Pl. § 842. 9 Story's Eq. Pl. § 842.

10 Graham v. Coape, 9 Simons, 93, 102;

s. c. 3 Myl. & Cr. 638.

11 Story's Eq. Pl. § 839; Mitford's Pl. ch. 2, § 2, part 3.

12 Mitford's Pl. ch. 2, § 2, part 2.

18 Story's Eq. Pl. § 844, note 6.

CHAPTER XI.

REPLICATIONS.

§ 156. Definition and History of Replications.

A replication is a pleading by which the plaintiff puts in issue the matters pleaded in a defendant's answer or plea. No replication can be filed to a demurrer.1 Replications were formerly of two kinds, general and special. A general replication consists of a general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged therein to bar the plaintiff's suit, together with an assertion of the truth and sufficiency of the bill.3 A special replication sets up new matter in avoidance of a substantive defence contained in the answer or plea. To this the defendant was obliged to file a rejoinder, giving the discovery required in it.5 This might then be succeeded by a surrejoinder and a rebutter. Special replications and their consequences were, on account of the inconvenience therefrom resulting, almost obsolete by the time of Lord Eldon.7 special replication to an answer is forbidden by the Equity Rules, which provide that "no special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court or a judge thereof may in his discretion direct." It has been held, that a special replication is equally improper to a plea.9 Allegations of new matter in a replication. will therefore be disregarded, and the pleading, if allowed to remain upon the file, will be given no more effect than if it were simply general.10 The proper course, however, is for the de

8

§ 156. Mason v. Hartford, Providence, & Fishkill R. R. Co., 10 Fed. R.

334.

2 Mitford's Pl. ch. 3.

3 Story's Eq. Pl. § 878. 4 Story's Eq. Pl. § 878.

5 Mitford's Pl. ch. 3; Story's Eq. Pl. § 878.

A

6 Mitford's Pl. ch. 3; Story's Eq. Pl. § 878.

7 Mitford's Pl. ch. 3; Story's Eq. Pl. § 878.

8 Rule 45.

9 Mason v. Hartford, Providence & Fishkill R. R. Co, 10 Fed. R. 334.

10 Vattier v. Hinde, 7 Pet. 252, 273;

After the

fendant to move the special replication off the file. disuse in England of special replications, it was customary for the plaintiff to sue out and serve upon the defendant a subpoena to rejoin.12 This practice never prevailed generally in the United States; 13 and the Equity Rules provide that "in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side." 14

§ 157. When a Replication should be Filed. -The equity rules provide that if the plaintiff does not reply to any plea, or set it down for argument on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose.1 Whenever the answer of the defendant is not excepted to, or is adjudged or deemed sufficient, the plaintiff must file the general replication thereto on or before the next succeeding rule-day thereafter. If the plaintiff omits or refuses to file such replication within the prescribed period, the defendant is entitled to an order, as of course, for a dismissal of the suit; and the suit is thereupon dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause and to such other terms as may be directed. It has been held that such an order may be entered by the clerk without any application to the judge. No replication need or should be filed when the cause is set down for hearing upon bill and answer,5 Where there are several defendants a replication should be filed within the prescribed time after one of them has filed an answer or plea, although the others may not have done so.6 It is the safer practice to file a separate replication after the other answers have come in. The court may grant leave to withdraw a replication, and amend, or have the cause set down.

Duponti v. Mussy, 4 Wash. 128; Wren v. Spencer Optical Manuf. Co., 18 Off. Gaz. 857.

11 Mason v. Hartford, Providence & Fishkill R. R. Co., 10 Fed. R. 334.

12 Story's Eq. Pl. § 879.

13 Story's Eq. Pl. § 879, note 5.

14 Rule 66.

§ 157.1 Rule 38.

2 Rule 66.

8 Rule 66.

4 Robinson v. Satterlee, 3 Saw. 134: 5 Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405; Gaines v. Agnelly, 1 Woods, 238.

6 Coleman v. Martin, 6 Blatchf. 291. 7 See Smith's Ch. Pr. (2d Eng. ed.) vol. i. p. 336.