complainant must be careful not to amend his bill, or to except to the answer for insufficiency before the demurrer and plea have been disposed of: otherwise the validity of such plea or demurrer will be admitted.(r) If upon the argument the demurrer and plea, or either of them, are overruled, the complainant may file exceptions for insufficiency, extending not only to the answer, but to the parts of the bill which were intended to be covered by the plea and demurrer. But if the demurrer and plea, or either of them, are allowed, the exceptions must not extend to the parts of the bill covered by them.(s) Where a partial demurrer has been allowed, the proper course is to amend the bill, either by striking out the part demurred to, or by making such alteration in the bill as will obviate the ground of demurrer. Thus, after a partial demurrer has been allowed, ore tenus, for want of parties, the bill may be amended by adding the necessary parties, or stating them to be out of the jurisdiction of the court. And it seems that such an amendment will not preclude the complainant from excepting to the answer as to those parts of the bill which are not covered by the demurrer.(t) (r) 2 Dan. 219, 351. 3 Peer Wms. 326. Boyd v. Mills, 13 Ves. 85. 256. Mitf. (s) Cotes v. Turner, Bunb. 123. 222. CHAP. VII. PROCEEDINGS ON THE PART OF THE COMPLAINANT PREVI. OUS TO REPLYING. Sect. 1. ExCEPTING TO ANSWER. 2. AMENDING BILL OF COMPLAINT. 3. DISMISSING BILL BY COMPLAINANT. 4. MOTION FOR PRODUCTION AND INSPECTION OF DEEDS, &c. 5. MOTION FOR THE PAYMENT OF MONEY INTO COURT. SECTION I. EXCEPTING TO ANSWER. EXCEPTIONS to an answer are of two kinds-for insufficiency, and for scandal and impertinence. The former lie where the answer does not sufficiently respond to the allegations and charges in the bill; and the latter where the answer contains scandalous or impertinent matter. Exceptions are allegations in writing stating the particular points or matters with respect to which the complainant considers the answer insufficient, as a response to the bill, or scandalous or impertinent. And the object of exceptions is to direct the attention of the court to the points excepted to, and to take its opinion thereon, before further proceedings are had; to the end that, if the answer is insufficient, a better answer may be compelled, or if scandalous or impertinent, that the scandalous or impertinent matter may be expunged. 1. Exceptions for Insufficiency. In what cases they lie.] Exceptions for insufficiency can only be sustained where some material allegation, charge, or interrogatory in the bill is not fully answered. (a) They will not lie to the answers of cor (a) Stafford v. Brown, 4 Paige, 88. porations; (b) nor to an answer to which the oath of the defendant is waived;(c) because such answers are not evidence. Nor will exceptions lie to the answer of an infant, because he is not bound by it, but may put in a new answer when he becomes of age. (d) It would therefore be useless, and occasion unnecessary expense, to call upon an infant to put in a full answer to the complainant's bill. Neither can the answer of the attorney general be excepted to for insufficiency.(e) But the answers of lunatics or idiots, put in by their com mittees or guardians, may be excepted to.(ƒ) Exceptions founded on verbal criticism, slight defects, and the omis sion of immaterial matter, will be disallowed and treated as vexatious.(g) Where the matter of the bill is fully answered, and the defendant sets up new matter which is irrelevant, and forms no sufficient grounds of defence, the complainant may except to the answer for impertinence, but not for insufficiency.(h) Where a bill requires the defendant to view exhibits before putting in his answer, and he neglects to do so, the correct practice is to except to his answer on that ground.(i) If a plea is ordered to stand for an answer, it is to be deemed a sufficient answer, as far as it covers the bill; but the complainant may still except to the residue of the plea as an answer.(k) And if a plea is ordered to stand for an answer, with liberty to except, the complainant may of course file exceptions to the answer, or to that part of it to which he is, by the order, permitted to except.(1) But the complainant cannot except to the plea as an answer unless liberty to except be expressly given.(m) If a plea, or a demurrer to the whole bill not accompanied by an answer is overruled, the defendant must answer without the complainant's being driven to except; but where a partial plea or demurrer is overruled, the complainant must except; as, since there is already an answer on the file, the defendant is not bound to answer further till exceptions have been taken.(n) A complainant ma y also, where a partial demurrer is allowed, except to the answer to that part of the bill which is not covered by the demurrer. He must not, however, except to that part which is covered by the demurrer.(o) And where a plea is accompanied by an answer as to part of the bill, the complainant may, upon the allowance of the plea, except to the answer, as he must if a partial plea is overruled.(p) But when the answer is accompanied by a plea, the complainant cannot except to the answer until the plea is argued and an order obtained that it shall stand for an answer with liberty to except.(g) If he does so, the exceptions will have the effect of allowing the plea, in the same manner as a replication would do.(r) And the effect of taking exceptions pending a demurrer to discovery, is to admit the demurrer. (s) But if the plea or demurrer is only to the relief prayed by the bill, and not to any part of the discovery, the complainant may take exceptions to the answer before the plea or demurrer is argued.(t) The rule that the complainant must except to the answer as insufficient, applies even where the plea or demurrer is accompanied by an answer only as to a single fact—such as a mere denial of combination.(u) It is a general rule that if matters of avoidance are set up in an answer obscurely or imperfectly, the complainant cannot procure a more complete statement by exceptions, but must first amend his bill.(v) Exceptions to answers to amended bills. Exceptions will lie to answers to amended bills, as well as to those put in to original bills; but where a complainant takes no exception to the answer to the original bill, he cannot take an exception to the answer to the amended bill, upon a principle which would have applied equally to the answer to the original bill.(r) And upon a reference on such new exceptions alone, the master cannot inquire whether the old exceptions were fully answered, or whether any part of the original bill to which the old exceptions did not relate was answered by the first answer of the defendant.(s) If the new ex ceptions clearly relate to the original bill, and not to the amendments thereto, the defendant may move to take them from the files for irregularity; or if he has doubts on the subject, he may urge the objection before the master on the reference.(t) Where the reference on such exceptions has been proceeded in, if they do not relate to the amendments, the exceptions will be permitted to remain on the files; but the master's report allowing the new exceptions will be overruled.(u) But circumstances may occur which may render an occasional departure from the above rule necessary. Thus, where, after a defendant had answered, the complainant amended his bill, by stating an entirely new case, it was held that exceptions would lie, although some of the interrogatories embraced in them were contained in the original bill.(v) So if the defendant, in answering amendments, alleges facts similar to those contained in his first answer, and not called for by the amendments, but alleges them without the circumstances given in the first answer, and interrogated to by the bill, an exception will lie.(w) Leave to file such an exception must be applied for, however; as it cannot be done without it.(x) Exceptions founded upon the new matters of the amendment may be taken within the same time as exceptions to a first answer, and may be filed of course, whether exceptions have been taken to the first answer, or not. They should be entitled "Exceptions taken by the complainant to the answer of the defendant, C. D., to the complainant's amended bill of complaint," or "to the answer, &c. to the amendments to the original bill of complaint of the complainant."(y) Exceptions having been allowed to the answer, and the bill having been amended, and the usual order having been obtained that the defendant should answer the amendment and exceptions at the same time, the defendant put in a second answer. The complainant then took exceptions to the second answer, and entitled them "Exceptions to the further answer to the original bill and to the answer to the amended bill." The exceptions were held to be irregularly entitled, and were ordered to be taken off the file; because new exceptions cannot be taken to the further answer to the original bill; but if that answer be considered in (t) 2 Paige, 160. (u) Id. ib. (v) Mazzaredo v. Maitland, 3 Mad. 66. See also Glassington v. Thwaites, 2 Russ. 458. (w) Irvine v. Viana, McCle. & Young, 563. (x) Id. ib. (y) Bennington Iron Co. v. Campbell, 2 Paige, 161. 1 Hoff. Pr. 259. |