If a plaintiff conceives an answer to be insufficient to the charges contained in the bill, he may take exceptions to it, stating such parts of the bill as he conceives are not answered, and praying that the defendant may in such respects put in a full answer. These exceptions must be signed by counsel.

If the defendant conceives his answer to be sufficient, or for any other reason does not submit to answer the matters contained in the exceptions, one of the masters of the court is directed to look into the bill, the answer, and the exceptions, and to certify whether the answer is sufficient in the points excepted to or not. If the master reports the answer insufficient in any of the points excepted to, the defendant must answer again to these parts of the bill in which the master conceives the answer to be insufficient, unless, by excepting to the master's report,56 he brings the matter before the court, and there obtains a different judgment.7

When a defendant has insisted on a matter as a reason for not answering, though he does not except to the master's report, yet he is not absolutely precluded from insisting on the same matter in a second answer, and taking the opinion of the court, whether he ought to be compelled to answer further to that point or not.38

Scandal and impertinence in an answer must be disposed of before the reference is made as to the insufficiency of the answer, for such impertinence and scandal are waived by a reference for sufficiency.99

When the defendant pleads or demurs to any part of the discovery sought by the bill, and also answers, if the plaintiff takes exception to the answer before the plea or demurrer has been signed, he admits the plea or demurrer to be good; for, unless he admits it to be good, it is impossible to determine whether the answer is good or not. But if the plea or demurrer is only to the relief prayed by the bill, and not to any part of the discovery, the plaintiff may take exceptions to the answer before the plea or demurrer has been argued.40

When the demurrer is accompanied by an answer to any part of the bill, even a denial of combination merely, and the plea or demurrer is overruled, the plaintiff must except to the answer as insufficient." But if a plea or demurrer is filed without an answer, and is overruled, the plaintiff need not take exceptions, and the defendant must answer to the whole bill as if no defence had been made.42

4380. When a further answer is required, it is in every respect similar to, and indeed it is considered as forming part of, the first answer; and an answer to an amended bill is considered as part of the answer to the original bill.43 Therefore, if the defendant in a further answer, or an answer to an amended bill, repeats any thing contained in a former answer, the repetition will be considered as impertinent, unless it varies the defence in point of substance, or is otherwise necessary or expedient; and if, upon a reference to the master, such parts of the answer are reported to be impertinent, they will be struck out as such, with costs, which in strictness are to be paid by the counsel who signed the answer."

36 As to the form and effect of exceptions to a master's report, see Story v. Livingston,

43 See Slauson v. Englehart, 34 Barb. N. Y. 198. A supplementary answer cannot be filed after the cause is set down for hearing unless some good reason is shown for the delay. Smallwood v. Lenior, 2 Beasl. Ch. N. J. 123.

4381. The effect of an answer upon a defendant is, that it is taken to be true, and if false, he may be indicted for perjury; yet there are many cases in which an individual is allowed on application to the court to reform his answer, and, in some instances, to take it off the file; but that can be done only by a special application, satisfying the conscience of the court how it comes that a document which stands in the place of a solemn deposition is now alleged to be founded in mistake.45

46

4382. The facts which he admits by his answer are binding upon the defendant; but when there are several defendants, the answer of one is not in general evidence against the others; such answer is considered evidence for and against himself only. The reason of this is, that there is no issue between the parties, and there has been no opportunity for cross-examination." Where, however, a defendant in his answer said his memory was impaired by age, and referred to another person as having been his agent, and as possessing a more perfect knowledge of the matters inquired after than himself, the agent was made a party, and his answer was allowed to be read against the principal.

48

4383. Formerly, when a material fact was put in issue by the answer, the courts of equity followed the maxim of the civil law, responsio unius non omnino audiatur, and required the evidence of two witnesses as the foundation for a decree. But of late years the rule has been referred more closely to the equity on which it is grounded, namely, the equal right to credit which a defendant, when his oath, "positively, clearly, and precisely" given, and consequently subjecting him to the penalties of perjury, is opposed to the oath of a single witness. When this is the case, some corroboration is required; either the testimony of a second witness, or any circumstances which may give a turn to the balance; 9 because, so far as the answer of the defendant is strictly responsive to the bill, it is admitted as evidence in his favor, as well as against him. The reason is, that the plaintiff, by appealing to the conscience of the defendant, admits that the answer is worthy of credit as to the matter of the inquiry.50

But although the answer of the defendant is evidence in his favor as well as against him, this must be understood subject to this qualification, that when the answer of the defendant admits a fact, but insists on matter of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the matter in avoidance.51

4384. The plea and answer of the defendant are intended to set up a defence for him against the charges of the plaintiff as contained in his bill, or the answer may admit the charges in the bill to be true. In this last case there is no occasion for any altercation between the parties. If, on the contrary, the defendant denies the right of the plaintiff to relief or a discovery, the latter should consider, first, whether the answer is sufficient in point of law or not.

45 East India Company v. Keighley, 4 Madd. Ch. 27.

46 Hayden v. McIlvain, 4 Bibb, Ky. 57.

"Chevet v. Jones, 6 Madd. Ch. 248; Morse v. Royal, 12 Ves. Ch. 355; but see Perre v. Castro, 14 Cal. 519.

48 Anon. 1 P. Will. Ch. 100. See Wood v. Braddick, 1 Taunt. 104; Pritchard v. Draper, 1 Russ. & M. Ch. 191.

49

Gresley, Eq. Ev. 4; Walton v. Hobbs, 2 Atk. Ch. 19; Cooke v. Clayworth, 18 Ves. Ch. 17; Toole v. Medicott, 1 Ball & B. Ch. Ir. 402; Morphett v. Jones, 1 Swanst. Ch. 172; Kemeys v. Proctor, 3 Ves. & B. Ch. Ir. 58; Biddulph v. St. John, 2 Schoales & L. Ch. Ir. 532. But two witnesses are not required to overturn the answer of a defendant as to a fact of which he professes ignorance only, and calls for proof, but which might exist and not be known to him. Young v. Hopkins, 6 T. B. Monr. Ky. 22; see Cochran v. Evans, 1 Harr. Del. 200.

50 2 Story, Eq. Jur. 1528; Clark v. Reimsdyk, 9 Cranch, 166.

51 Clark v. White, 12 Pet. 178.

If insufficient, the objection ought to be made before any replication, because, by replying, the plaintiff admits the sufficiency of the answer, however imperfect it may be; secondly, if the answer is sufficient to defeat the plaintiff, he should ask leave of the court to amend his bill; and to this amended bill the defendant may make such defence as he shall think proper, whether required by the plaintiff to answer it or not.52 In some cases, however, the court will allow the plaintiff to withdraw his replication, he paying the costs which have been incurred.

4385. Formerly, replications were either general or special, but in modern times, special replications have been altogether disused, and, of course, rejoinders, surrejoinders, etc., have fallen with them. A general replication is a general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged in it, to bar the plaintiff's suit, and an assertion of the truth and sufficiency of the bill.

4386. The effect of a replication is to put the cause completely at issue. After the cause has come to a hearing, and the pleadings are carefully examined, it is sometimes found that a replication has never been filed; in such case, the court will permit the plaintiff to file a replication nunc pro tunc

52 Mitford, Eq. Pl. Jeremy, ed. 323.

53 Mitford, Eq. Pl. Jeremy, ed. 321; Storms v. Storms, 1 Edw. Ch. N. Y. 358; Story, Eq. Pl. 8 878. See Babb v. Mackey, 10 Wisc. 371.

54 Rodney v. Hare, Mosel. Ch. 396; Mitford, Eq. Pl. Jeremy, ed. 323; Gaskill v. Sine, 2 Beasl. Ch. N. J. 130.

667

CHAPTER XIV.

INCIDENTS TO PLEADINGS IN GENERAL.

4388. When an amendment may be made.

4391. Amendments by the plaintiff. 4393-4398. Amendments by the defendant.

4394. Amendment of demurrer.

4395. Amendment of pleas.

4396. Amendment of answers.

4387. Having considered the nature of the pleadings used in the equitable jurisdiction of courts of chancery, and the manner in which they are brought to a termination, it will next be requisite to ascertain what will be the effect of any error or mistake which may have occurred in the course of such proceedings. It would be contrary to the nature of equity if a party were to lose his suit in consequence of a mistake made in the course of pleadings; for this reason, matters of form are never allowed to prejudice a party, the real and substantial merits of the cause are always looked to. When an error has been discovered, and it is insisted on, the courts will either permit an amendment of the pleadings, that is, the correction of the error, or wholly overlook it, as being waived by the party making the objection by not excepting to it in a proper time.

4388. As to the time when amendments may be made, it may be observed that before their termination the courts will frequently permit the pleadings filed to be altered, for the purpose of effectuating justice, as the interests of the party may require, except in case of answers put in upon oath, in which no change will be allowed for very obvious reasons. After the witnesses have been examined no part of the pleadings can, in general, be altered or added to but under very special circumstances, or in consequence of some subsequent event, except that, if the plaintiff at any time discovers that he has not made. proper parties to his bill, he may obtain leave to amend it, for the special purpose of adding the necessary parties.

Though in general, with respect to the original parties and their interests, no amendment will be permitted after the cause is at issue and witnesses have been examined and publication passed, yet a plaintiff has been permitted, under such circumstances, to amend his bill by adding a prayer omitted by mistake. Even upon hearing, the court having the whole case before it, and being embarrassed in its decision by defects in the pleadings, has permitted amendments both to bills and answers under very special circumstances.2

4389. When new matter has been discovered by either plaintiff or defendant before a decree deciding on the rights of the parties has been pronounced, a

1 Amendments to pleadings to which the parties have deliberately made oath are allowed with great caution. Verplanck v. The Mercantile Insurance Company, 1 Edw. Ch. N. Y. 46. But in matters of form, or mistakes of dates, or verbal inaccuracies, courts of equity will permit amendments to answers. Smith v. Babcock, 3 Sumn. C. C. 410; Mitford, Eq. Pl. Jeremy, ed. 328.

2

Mitford, Eq. Pl. Jeremy, ed. 331;

Davison v. Davison, 2 Beasl. Ch. N. J. 238.

cross bill has been permitted to bring such matter before the court to answer the purposes of justice instead of allowing an amendment of a bill or answer, where the nature of the matter discovered would admit of its being so brought before the court; and after a decree upon a similar discovery, a bill of review, or a bill in the nature of a bill of review, has been allowed for the same purpose, both these forms of proceeding being in their nature similar to amendments of bills or answers calculated for the same purposes, and generally admitted under similar restrictions.3

Sometimes upon the hearing of the cause it has appeared that matter properly in issue, or at least stated in the proceedings, has not been proved against parties who have admitted it by their answers, although not competent so to do, for the purpose of enabling the court to pronounce a decree. In these cases the court has permitted the proper steps to be taken to obtain the necessary proof, and for this purpose has suffered interrogatories to be exhibited; and where the plaintiff has neglected to file a necessary replication, he has been allowed to supply the defect.*

4390. In most of these cases the indulgence given by the court is allowed to the mistakes of the parties, and with a view to save expense. But when injury may arise to others, the indulgence has been more rarely granted; and, so far as the pendency of a suit can affect either parties to it, or strangers, matter brought into a bill by amendment will not have relation to the time of filing the original bill, but the suit will so far be considered as pendent from the time of the amendment, except that where a bill seeks a discovery from a defendant; and having obtained that discovery, the bill is amended by stating the result, it should seem that the suit may, according to the circumstances, be considered as pendent from the filing of the original bill, at least as to that defendant, and perhaps to the other parties, if any, and to strangers also, so far as the original bill may have stated matter which might include, in general terms, the subject of the amendment."

4391. Amending the bill is useful for various purposes: for the correction of mistakes or the suppression of impolitic admissions in the original statement, for adding parties, for inquiring additional facts, or the further investigation of facts which have been partially disclosed, and for putting in issue new matter stated in the answer.

Amendments are allowed to correct errors occasioned by the omission of making proper parties, or where a bill is defective in its prayer for relief, or there has been an omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself, nor repugnant thereto. Or if, when the defendant has put in his answer, the plaintiff thereby obtains new light as to the circumstances of his case, he may amend his bill in order to shape his case accordingly. Imperfections in the frame of the bill may be remedied by amending as often as occasion may require; but the matter introduced by amendment must not be matter which has happened since the filing of the bill, unless the defendant has not put in his answer, in

Gresley, Ev. 21, 22.

7 Lyon v. Talmadge, 1 Johns. Ch. N. Y. 184; see Dodd v. Astor, 2 Barb. Ch. N. Y. 395; Cock v. Evans, 9 Yerg. Tenn. 287.

Verplanck v. The Mercantile Insurance Company, 1 Edw. Ch. N. Y. 46.

So too where facts are disclosed upon the examination before a committee which the defendant should have disclosed in his answer, an amendment will be allowed. Hoyt v. Smith, 27 Conn. 468.