will dismiss the Bill with costs against the plaintiff.' But, if the plaintiff had probable cause or reason to exhibit his Bill against such defendant, he may, if he pleases, pray a decree against such defendant, and all claiming under him, since the Bill was exhibited ; and it is commonly granted without costs on either side.? As the Court will dismiss the Bill with costs, when it appears to have been vexatiously filed; so, if the defendant disclaims, the plaintiff must not file a replication to such disclaimer. If he does, and serves the defendant with a subpæna to rejoin, the defendant may have costs against the plaintiff for such vexation. But it is otherwise, if the disclaimer is only to a part of the Bill, and there is an answer to the other part. $ 813. On the other hand, the Court has sometimes refused costs to a defendant disclaiming. As, where a Bill of foreclosure was filed against the mortgagor, who by his answer stated, that he had made a subsequent mortgage; and the Bill being amended by adding such mortgagee a party, he disclaimed, stating, that after the Bill was filed; but before the amendment, he had made a second assignment; the Court refused costs to the defendant disclaiming, and laid it down as a principle, that, in such a case, the subsequent mortgagee can have no costs.5 $ 84. Although a disclaimer is in substance distinct from an answer; yet it generally adopts in most respects the formal parts of an answer, the words of course, preceding and concluding an answer, being I Cooper, Eq. Pl. 310, 311. + Cooper, Eq. Pl. 310, 311 ; Mitf. Eq. Pl. by Jeremy, 319; Hinde, Ch. Pr. 208. 5 Cooper, Eq. Pl. 311. used in a disclaimer. But Lord Redesdale has observed, that the form of a disclaimer alone seems to be simply an assertion, that the defendant disclaims all right and title to the matter in demand ; and that the forms given in the books of practice are all of an answer and disclaimer.2 1 Cooper, Eq. Pl. 311; Mitf. Eq. Pl. by Jeremy, 319; Hinde, Ch. Pr. 209. See Hare on Discov. 258, 259. The following form is given of a mere disclaimer, in Vanheythuysen's Equity Draftsman, p. 451. * The disclaimer of A. B., the defendant, to the Bill of complaint of C. D., complainant. This defendant, saving, &c. (here follow the words of course, which precede 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, &c., 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, &c., in the said complainant's Bill mentioned, and every part thereof. (Here follow the words of course, which conclude an answer.)" See also in 2 Grant, Ch. Pr. 480, 481, the form of an answer and disclaimer. 2 Ibid. sufficiency both of the person and of the jurisdiction.' But if a Cross Bill should be filed by a plaintiff, who is not capable of suing alone, as by an infant, a feme covert, an idiot, or a lunatic, it should seem, that a plea to the person would be good. A defendant cannot, by a Cross Bill, compel the plaintiff in the original Bill to discover the evidence of his (the defendant's) title; and, therefore, it should seem, that the objection may be taken by plea; and it may also be insisted on by answer.3 § 833. Fourthly; As to pleas to Bills of Review, and Bills in the nature of Bills of Review. It has been already mentioned, that a part of the constant defence to a Bill of Review, for error apparent on a decree, has been by a plea of the decree and a demurrer against opening the enrolment. But a demurrer seems to be the proper defence only, where the decree is fairly stated; and the books of practice give the form of a demurrer only to such a Bill. Where any matter beyond the decree, such as length of time, a purchase for a valuable consideration, or any other matter, is to be offered against the opening of the enrolment, that matter must be pleaded. If a demurrer to a Bill of Review has been allowed, and the order, allowing it, is enrolled, it is an effectual bar to a new Bill of Review on the same grounds, and may be pleaded accordingly. To a Bill of Review of a decree for 1 Ibid. 2 Ibid. 3 Bellwood v. Wetherell, 3 Younge & Coll. 211; Glegg v. Legh, 1 Bligh, (N. S.) R. 302; Cherry v. Legh, Id. 306. 4 Ante, § 634; Mitf. Eq. Pl. by Jeremy, 203, 291; Webb v. Paige, R. 368. 5 Ibid. 6 Ibid. Pell, 3 titled to a discovery of the matters necessary to substantiate the proceedings, and to make them regular and effectual in a Court of Equity." $ 846. When, therefore, a defendant is called upon by a Bill to make a discovery of the several charges contained in the Bill, he must do so by a general answer to those charges, unless he can protect himself from it either by a demurrer, or by a plea, or by a disclaimer. For, if a defendant is compelled to answer, he must in general answer fully to all the charges of the Bill not so covered by a demurrer, or a plea, or a disclaimer. But when we say, answer fully, the lan 1 Mitf. Eq. Pl. by Jeremy, 307. 3 Cooper, Eq. Pl. 312; Ante, $ 606; Mitf. Eq. Pl. by Jeremy, 307, note (A), 316, note (9) ; Hare on Discov. 247 – 262; Wigram on Points of Discov. 85 - 122, 190, 192-195, 347, 348, 1st edit. The rule, that if a defendant answers, he must answer fully, is a rule, that exists in the Court of Chancery only in England; and it does not extend to cases in the Exchequer. Mr. Hare has given the reasons of this difference at large in his work on Discovery, p. 298 - 301. “The rule in Chancery,” says he, " that a defendant, who submits to answer, must answer fully, does not apply generally in the Court of Exchequer. The inconvenience and inconsistency, which have been adverted to, as the consequences of the temporary innovation upon the ancient practice of the former Court, do not occur in the latter ; for, in the Exchequer, the exceptions for insufficiency are argued before the Court in the first instance. There seems, however, to be some want of uniformity in the principle, upon which the sufficiency of answers has been determined. The statement of the present rule in the Exchequer will be much assisted, by referring to that, which was adopted in the Court of Chancery during the suspension of the usual practice there. It is to be observed, that the distinction in the two Courts of Equity is a distinction of form, and not of substance. The principle expressed by Sir J. Leach, Vice-Chancellor, is universally applicable to the jurisdiction ; ' A defendant cannot by answer deny the plaintiff's title, and refuse to answer as to facts, which may be useful evidence in support of that title.' And the same may, with equal truth, be said of a plea. The cases, in which the difference of practice chiefly prevails, are, where the defendant denies the title, which the plaintiff alleges, and upon that denial resists the discovery of matters, which are merely a consequence of the alleged title. It was held by Lord Chief guage must be understood with this qualification, that he must answer fully to all matters in the Bill, which Baron Parker, that where the Bill sought an account or discovery of assets, if the fact, upon which the plaintiff founded his title, were denied, and if it were a fact, lying in the knowledge of the defendant, the plaintiff was not entitled to a discovery of assets. But if the fact did not lie in his knowledge, though he denied it, yet he should set out an account. This decision imports, that a defendant cannot protect himself from setting forth an account, unless he possesses a personal knowledge of the facts insisted upon as a foundation of the title. But the distinction does not appear to have been taken in subsequent cases. It seems to have been considered in a recent judgment, that the defence to discovery by way of answer is more particularly adapted to the case of objections, which do not extend to the entire Bill. It was said by Graham Baron, that there is often great inconvenience in a plea; and a defendant ought not to be unnecessarily driven to plead in a case of this nature. In the cases cited, there must have been some grave point of Equity raised, and to be determined, which, it was supposed, if established, would operate as a bar to the suit; and, in such a case, a plea may be very proper and needful, in order to bring the question distinctly before the Court.' — 'In a late case, we held, that there was no necessity for splitting the record by insisting on a plea, where a party could sufficiently protect himself by answer from answering certain parts of the Bill. That is a sufficient reason for holding, that he might do so in this Court, without being driven to put his objections on the record by plea, where they do not go to the entire suit. Where, indeed, the objection would affect the whole merits, it may be very proper to compel the party to put the case upon that single issue by means of a plea.' And Lord Chief Baron Alexander observed ; .We must take, what appears to us to be the most convenient course under the circumstances, in every case. There are, undoubtedly, many occasions, on which a defendant must plead his defence, in order to give it the operation of a bar to the whole Bill; as in the instance of a partnership. But that is not applicable to such a defence as this, where the matter insisted on only goes to a small part of the Bill. I must say, that I consider the exception should be disallowed.'” See also the cases in 11 Ves. 305, 2 Sim. & Stu. 275, and Capon v. Mills, 13 Price, R. 770, and other cases cited by Mr. Hare, in support of his text. See also Gresley on Evidence, 17, 18; Cooper, Eq. Pl. 315, 316; Wigram on Points of Discor. 192 – 198, 1st edit. ; Id. 190 - 199, 2d edit.; Bank of Utica v. Messereau, 7 Paige, R. 517. The rule is now qualified by the English Orders in Chancery of 1841, (1 Craig. & Phill. 379,) Order 38, which provides; “ That a defendant shall be at liberty by answer to decline answering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demurrer; and that he shall be at liberty so to decline, notwithstanding he shall answer other parts of the Bill |