as to meet it in all its terms, provided it is, with reference C. XVII. § 1. to the object of the bill, fairly and substantially answered.1 may be used to set forth general ac counts, or lists of documents, It is, however, the general practice, where the defendant is Schedules required to set forth a general account, or to answer as to moneys received, or documents in his possession, to set forth the account or list of the sums, or documents, in one or more schedules annexed to the answer, which the defendant prays may be taken as part of his answer; and such practice is very convenient, and in many cases indispensable. The defendant must, however, be careful to avoid any inconsistency between the body of the answer and the schedule: for if there is any, the answer will be insufficient, and the defendant may be required to put in a further answer. The defendant may also resort to a schedule for the or in aid of purpose of showing the nature of his own case, or of strengthening case. it even though there is nothing in the interrogatories which may render a schedule necessary." defendant's schedules will In general, a defendant must be careful not to frame his When schedule, in a manner which may be burdensome and oppressive be deemed to the plaintiff: otherwise, it will be considered impertinent. impertinent. Thus, where a bill was filed for an account, containing the following interrogatory, "whether any and what sum of money was due from the house of A. to the house of B., and how the defendant made out the same?" and the defendant, by his answer, set forth a long schedule, containing an account of all dealings and transactions between the two houses, the answer was held to be impertinent, and the Court said the defendant ought merely to have answered, that such a sum was due, and that it was due upon the balance of an account.5 In the last case, although there was an inquiry how the defendant made out that there was a balance, there were no particular inquiries in the bill as to the items, constituting the account, from which the defendant made out that there was a balance due to him; and even where there has been such an inquiry, the Court has gone the length of saying, that a schedule containing such items will be impertinent, if the items are set out with a minuteness not called for by the nature of the case. Thus, where the bill called upon a defendant to set forth an account of all and every the quantities of ore, metals, and minerals dug in particular mines, and the full value thereof, and the costs and expenses of working the mines, and the clear profits made thereby, and the defendant put in a schedule to his 1 Bally e. Kenrick, 13 Pri. 291; see also Reade v. Woodrooffe, 24 Beav. 421. 2 Bridgewater v. De Winton, 9 Jur. N. S. 1270; 12 W. R. 40, V. C. K. 3 Parker v. Fairlie, T. & R. 362; 1 S. & S. 295; Lowe v. Williams, 2 S. & S. 574, As 576; Story Eq. Pl. § 856, and notes. C. XVII. § 1. answer, comprising 3431 folios, wherein were set forth all the particular items of every tradesman's bill connected with the mines, the Court held the schedule to be impertinent. In like manner, it seems that in the case of an executor called upon to account for his disbursements, it is not necessary to set out every separate item. It is difficult, however, to point out any precise rules with regard to what will be considered impertinent in a schedule; much must depend upon the nature of each case, and the purposes for which the discovery is required. The cases above referred to, and the others which may be found in the books show, however, that even though the plaintiff, by the minuteness of his inquiries, in some measure affords an excuse for the defendant setting forth a long and burdensome schedule, the Court will not, unless in instances in which, from the nature of the case, great minuteness is required, permit a defendant to load the record with useless and impertinent matter, even though the introduction of such matter might be justified by the terms of the interrogatories. On the other hand, it is to be observed, that the Court will not, where the defendant, in complying with the requisitions in the bill, has bonâ fide given the information required, though in a manner rather more prolix than might perhaps be necessary, consider the answer as impertinent: for, although prolixity sometimes amounts to impertinence, whether the Court will deal with it as such depends very much upon the degree in which it occurs.*. 1 Norway v. Rowe, 1 Mer. 347, 356; see 4 Gompertz v. Best, 1 Y. & C. Ex. 114, allegation, Mr. Justice Story said, "It An exception to an answer for imperti amended bill. In answering an amended bill, the defendant, if he has answered C. XVII. § 2. the original bill, should answer those matters only which have been introduced by the amendments. In fact the answer to an Answer to amended bill constitutes, together with the answer to the original bill, but one record; in the same manner as an original and an amended bill; hence, it is impertinent to repeat, in the answer to the amended bill, what appears upon the answer to the original bill, unless by the repetition the defence is materially varied.2 Two or more persons may join in the same answer; and where Joint or their interests are the same, and they appear by the same solicitor, separate. they ought to do so. The Court will not, however, before the hearing, and at a time when it cannot be known how the defence should be conducted, visit the defendants with costs as a penalty for not joining in their answer; and it is only at the hearing, when all danger of prejudice to the parties is over, that the Court nence will be overruled, if the expunging of the matter excepted to will leave the residue of the clause, which is not covered by the exception, either false or wholly unintelligible. M'Intyre v. Trustees of Union College, 6 Paige, 240. The plain tiff cannot except to a part of the defendant's answer as impertinent, which refers to and explains the meaning of a schedule annexed to such answer, without also excepting to the schedule itself as impertinent. Ibid. If a bill against executors calls specifically and particularly for accounts in all their various details, a very voluminous schedule, containing a copy from the books of account, specifying each item of debt and credit, will not be impertinent. Scudder v. Bogert, 1 Edw. Ch. 372. If the plaintiff put impertinent questions, he must take the answer to them, though it be impertinent. Woods v. Morrell, 1 John. Ch. 103. But it seems it would have been impertinent if the bill had not thus called for it. Ibid. Copies of receipts taken by the defendant for moneys paid and charged in account and making an immense schedule to an answer, are impertinent. Scudder v. Bogert, 1 Edw. Ch. 372. An executor in setting forth in his answer the account and inventory of the estate which came to his hands, should not add copies of the appraiser's and executor's oaths, and of the surrogate's certificate. Such matter will be impertinent. Jolly v. Carter, 2 Edw. Ch. 209. An exception for impertinence must be supported in toto, or it will fail altogether. Wagstaff v. Bryan, 1 R. & M. 30; Tench v. Cheese, 1 Beav. 571; Van Rensselaer v. Brice, 4 Paige, 174. When an exception was taken to the jurisdiction, in the answer, it was properly struck out, on reference to a Master, for impertinence. Wood v. Mann, 1 Sumner, 579; but see Teague v. Dendy, 2 M'Cord Ch. 207, 210. As to impertinence, see further, Story Eq. Pl. § 863; Jolly v. Carter, 2 Edw. Ch. 209; Somers v. Torrey, 5 Paige, 54. As to scandal in an answer, see Story Eq. Pl. §§ 861, 862. As in a bill, so in an answer, nothing relevant can be deemed scandalous. Story Eq. Pl. § 862; Jolly v. Carter, 2 Edw. Ch. 209. Separate exceptions to the same answer, one for scandal and the other for impertinence, will not be allowed; as nothing in a pleading can be considered as scandalous which is not also impertinent. M'Intyre v. Trustees of Union College, 6 Paige, 240. 1 Ld. Red. 318; Hildyard v. Cressy, 3 Atk. 303. 2 Smith v. Serle, 14 Ves. 415. 3 Where two defendants answer jointly, and one speaks positively for himself, the other may, in cases where he is not charged with any thing upon his own knowledge, say, that he perused the answer and believes it to be true; but it is otherwise where the defendant answers separately. 1 Har. 185, ed. Newl. A defendant may sufficiently answer by adopting the answer of his co-defendant. Binney's Case, 2 Bland, 99: Warfield v. Banks, 11 Gill & J. 98. But an answer simply averring that the facts stated in a paper purporting to be the answer of another defendant in the cause, are substantially correct as far as these defendants are concerned," is formally and substantially defective. Carr v. Weld, 3 C. E. Green (N. J.), 41. 66 Costs of separate answers, solicitor: C. XVII. § 2. will make any order upon the subject. Where the same solicitor has been employed for two or more defendants, and separate answers have been filed, or other proceedings had by or for two or more of such defendants separately, the Taxing Master will filed by same consider, in the taxation of such solicitor's bill of costs, either between party and party, or between solicitor and client, whether such separate answers or other proceedings were necessary or proper; and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or improperly incurred, the same will be disallowed. No general rule can be laid down, determining when defendants, appearing by the same solicitor, may sever in their defence; practically, the Taxing Master has to exercise his discretion in each particular case. where allowed. Where one set of costs only allowed; trustees; cestui que trusts; other instances. Where costs of separate defences by trustees allowed. Who en titled, where only one set of costs. 8 Where defendants have a joint interest only, they will not, in general, be allowed to sever in their defence; and there are many cases where only one set of costs has been allowed by the Court to two defendants, whose interest was so far joint as to have made a severance of their defence unnecessary. Thus, trustees will not, in general, be allowed costs consequent upon their separate defences, unless some of them have a beneficial interest, or there is some special reason for their severance. So, trustees and cestui que trusts, if they have no conflicting interests, will, in general, be only allowed one set of costs. The same principle applies, as between a husband and his wife, a bankrupt and his assignees, and, in an administration suit, between an assignor and his assignee." The severance will, however, be justifiable where the suit is against two trustees, one of whom only is charged with a breach of trust; and, in some cases, where they reside at a distance from each other." 8 Where only one set of costs is allowed, the Court does not, generally, declare to whom it is to be given; 10 but where one trustee 1 Vansandau v. Moore, 1 Russ. 441, 454; 2 S. & S. 509, 512; and see Woods v. Woods, 5 Hare, 230; Story Eq. Pl. $869. 2 Ord. XL. 12; Woods v. Woods, 5 Hare, 229, 231. By the 62d Equity Rule of the United States Courts, it is provided, that in such a case costs shall not be allowed for such separate answers or other proceedings, unless a Master, upon reference to him, shall certify, that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together." 8 Greedy v. Lavender, 11 Beav. 417, 420; Remnant v. Hood (No. 2), 27 Beav. 613. 4 Gaunt v. Taylor, 2 Beav. 346; 4 Jur. 166; Dudgeon v. Corley, 4 Dr. & War. 158; Tarbuck v. Woodcock, 3 Beav. 289; Hodson v. Cash, 1 Jur. N. S. 864, V. C. W.; Course v. Humphrey, 26 Beav. 402; 5 Jur. N. S. 615; Prince v. Hine, 27 Beav. 345; Attorney-General v. Wyville, 28 Beav. 464; and see Morgan & Davey, 87; and post, Chap. XXXI., § 2, Costs. 5 Woods v. Woods, ubi sup. ; Farr v. Sheriffe, 4 Hare, 528; 10 Jur. 630; Remnant v. Hood, ubi sup. 6 Garey v. Whittingham, 5 Beav. 268, 270; 6 Jur. 545. 7 Remnant v. Hood (No. 2), 27 Beav. 613; Greedy v. Lavender, 11 Beav. 417, 420. 8 Webb v. Webb, 16 Sim. 55. 9 Aldridge v. Westbrook, 4 Beav. 212; Wiles v. Cooper, 9 Beav. 298; Commins v. Brownfield, 3 Jur. N. S. 657, V. C. W. 10 Course v. Humphrey, 26 Beav. 402; 5 Jur. N. S. 615; Attorney-General v. Wyville, 28 Beav. 464. only, in obedience to an order, paid a sum of money into Court, he C. XVII. § 2. was held entitled to the whole of the costs.1 If the defendants are permitted to sever, they will be allowed Separate the costs of separate counsel, though they take the same line of counse defence.2 allowed, where severance proper. Form of An answer must be divided into paragraphs, numbered consecutively, each paragraph containing, as nearly as may be, a sep- answer. arate and distinct statement or allegation. It must not refer to another document, not on the files of the Court, as containing the statement of the defendant's case.1 An answer must be intituled in the cause, so as to agree with Title. the names of the parties as they appear in the bill, at the time the answer is filed." A defendant may not correct or alter the names Correction of of the parties as they appear in the bill; if there is a mistake in his misnomer. own name, he must correct it in the part following the title of the cause, thus: "The answer of John Jones (in the bill by mistake called William Jones)." 7 of several defendants; of husband and wife; An answer is headed: "The answer of A. B., one of the above- Heading of named defendants, to the bill of complaint of the above-named answer to original plaintiff." If the bill has been amended after answer, the heading bill; states that the answer is "to the amended bill of complaint of the to amended above-named plaintiff." If two or more defendants join in the bill; same answer, it is headed: "The joint and several answer;" but if it be the answer of a man and his wife, it is headed "The joint answer." If a female defendant has married since the filing of the bill, but before answering, she must either obtain an order for leave to answer separately, or answer jointly with her husband, who, although not named on the record as a defendant, may join in the answer in which case, the answer should be headed "The answer of A. B. and C. his wife, lately and in the bill called C. D., spinster (or widow, as the case may be)." The answer of an infant, or by guardian. other person answering by guardian, or of an idiot or lunatic answering by his committee, is so headed." of female defendant, married since filing of bill; where a defect appears in heading, plaintiff may Any defect occurring in the heading of an answer, so that it does not appear distinctly whose answer it is, or to what bill it is an answer, is a ground for taking it off the file for irregularity. Thus, where an answer was intituled "the joint and several answer of A. B. and C. D., defendants, E. F. and G. H., complainants," off the file; omitting the words, "to the bill of complaint of," it was, on motion, 1 Prince v. Hine, 27 Beav. 345; and see Morgan & Davey, 87, 88. 2 Bainbrigge v. Moss, 3 Jur. N. S. 107, V. C. W. 3 15 & 16 Vic. c. 86, § 14; Ord. XV. 1; see forms of answers in Vol. III. 4 Falkland Islands Company v. Lafone, 3 K. & J. 267. 5 Braithwaite's Pr. 44. 6 Ibid.; Attorney-General v. Worcester Corporation, 1 C. P. Coop. t. Cott. 18. 7 Rigby v. Rigby, 9 Beav. 311, 313; see forms in Vol. III. 8 Braithwaite's Pr. 46. 9 For forms of headings of answers, see Vol. III. move to have answer taken |