the answer with the interrogatory, thinks it unsatisfactory, he supplies the defect by personal examination. It appears counsel may attend on behalf of the defendant on his examination. The defendant is not required to give notice when he will be under examination, nor is the plaintiff allowed to be present at such examination. The defendant is not entitled to be released from custody until the plaintiff has seen the examination; he then must apply upon notice, for his discharge, to which he will be entitled, unless his examination is insufficient, upon payment of costs, charges, and expenses occasioned by his insufficient answers.(1)

(1) Farquharson v. Balfour, Turn. 184.

21*

CHAPTER XIX.

DISCLAIMER.

WHEN the defendant disclaims all right, title, or interest to the matter in demand by the plaintiff's bill, or by any part of it, he puts in a disclaimer. A disclaimer can scarcely be put in alone, and is in practice accompanied by an answer.(1) The disclaimer is filed by the defendant's clerk in court in the same way as an answer. A disclaimer being accompanied with an answer, is put in upon oath; it must also be signed by the defendant, and in no case can such signature be waived with propriety, since no record will be received without signature, which tends to prejudice the rights of the defendant.

If a party has disclaimed in ignorance of his rights, and afterwards discovers the same, he may apply to the Court, to get rid of the effect of the disclaimer upon a distinct application, supported by affidavit, establishing a special case.(2)

A defendant cannot by a disclaimer deprive the plaintiff of his right of requiring a full answer from him, unless it is evident that the defendant ought not after such disclaimer to be retained as a party to the suit.(3)[a]

(1) Mitf. Pl. 253.

(3) Glassington v. Thwaites,b 2 Russ. 458.

(2) Sidden v. Lediard, 1 R. & M. 110.

[a] It may be laid down, as a general rule, that, in no case, can a party get rid of his liability to answer a suit, by a mere disclaimer, if his answer may, properly, under all the circumstances, be required. Thus, for example, if his disclaimer do not show, that he is under no liability in respect to the matters of the bill, it will be bad. As, if the bill allege some other facts, as, that the defendant has mixed himself up with the whole transaction, and has, by his personal conduct, made it necessary that the bill should be filed, a mere disclaimer will not entitle him to be dismissed from further answering to the suit; for, under such circumstances, justice might not be done to the other party. Graham v. Coape, 9 Sim. 102; S. C. 3 Myl. & Cr. 638; Story's Eq. Pl. 642-644. For form of disclaimer, see Eq. Draftsm. 451; 2 Grant's Ch. Pr. 480, 481.

Eng. Chan. Reps. iv. 345.

Eng. Chan. Reps. iii. 197.

CHAPTER XX.

ADVISING ON SUFFICIENCY AND AS TO EVIDENCE.

On the coming in of the answer of the defendant it is usual in all cases of difficulty to lay a copy of the bill and answer before counsel, to advise as to the sufficiency of the answer, and as to the necessity of going into evidence, and generally on the suit. If the answer admits the plaintiff's case, and the defendant is capable of using the admission, it is not necessary to reply to it,[a] and the cause is then set down to be heard upon bill and answer.(1) If the answer is insufficient, the counsel draws exceptions to it. If the bill requires amendment, the counsel amends the same accordingly. If, however, the answer is sufficient, and the bill does not require to be amended, but the answer does not admit the allegations in the bill, it must be replied to, by which step the defendant is put to the proof of the facts therein stated by the evidence of witnesses. The course of proceeding in each of these cases will be considered in their order.

(1) See Lord Coventry's Orders, 2 Beam. Ord. 70.

[a] See ante, 272, note [a].

CHAPTER XXI.

INSUFFICIENCY OF AN ANSWER.

Where answer considered insufficient, 278. Exceptions for insufficiency, 279. When plaintiff cannot except, 280. Time allowed to except, 280. How exceptions are prepared and proceeded with, 281. Submission to answer exceptions, 282. Reference of exceptions, 282. Exceptions to a second or third answer, 285. Exceptions to further answer after report of insufficiency and bill has been amended, 285. When an answer is to be deemed sufficient, 286. Exceptions to Master's report of insufficiency, 288. Costs of exceptions, 290.

AN insufficient answer is no answer.(1) If a defendant submits to answer, he is bound to give a full and sufficient disclosure to the questions asked by the plaintiff's bill, and he cannot by an answer refuse a discovery.(2)[a] Thus, if a purchaser for valuable consideration submit to answer, he must answer fully.(3) Neither can the defendant resist a disclosure by production of letters, &c., set forth in the schedule to his answer as in his possession.(4) Nor can a defendant by disclaimer

(1) Gregor v. Lord Arundel, 8 Ves. 87. (3) Ovey v. Leighton, 2 S. & S. 234.

(2) Somerville v. Mackay, 16 Ves. 382. (4) Taylor v. Milner, 11 Ves. 41.

[a] This is the general rule. Davis v. Mapes, 2 Paige, 105; Cuyler v. Bogert, 3 Paige, 186; Hagthorp v. Hook, 1 Gill & Johns. 272; Tradesmen's Bank v. Hyatt, 2 Edw. 195; Corbett v. Hawkins, 1 You. & Jerv. 425; Ogden v. Ogden, 1 Bland, 288. But, to this rule, there are some exceptions, among which may be stated to be, the objection, that the discovery would make the defendant liable to a penalty or forfeiture, or have a tendency thereto; (Slowman v. Kelly, 3 You. & Coll. 673; Northrop v. Hatch, 6 Conn. 361; Skinner v. Judson, 8 Conn. 528; Livingston v. Tompkins, 4 Johns. Ch. Rep. 432; Atterbury v. Knox, 8 Dana, 284; Wolf v. Wolf's ex'r, 2 Har. & Gill, 382; Livingston v. Harris, 3 Paige, 528; M'Intyre v. Mancius, 16 Johns. 592;) or would subject him to an indictment or criminal prosecution; (Leggett v. Postley, 2 Paige, 599; Patterson v. Patterson, 1 Hayw. 168; Butler v. Catling, 1 Root, 310; Leigh v. Everhart, 4 Monroe, 381;) unless the forfeiture, in the one case, be waived, or barred by the statute of limitations. Skinner v. Judson, 8 Conn. 528; Contra, Northrop v. Hatch, 6 Conn. 361; or unless, in either case, by statute, the discovery be required. So, an answer cannot be required, if it would involve the party in a breach of professional confidence, as counsel, solicitor or attorney (as to which, see Desborough v. Rawlins, 3 Myl. & Cr. 515;) or if the discovery would be immaterial; or if it would compel him to discover matters not applicable to the plaintiff's title, but solely applicable to his own title. Phillips v. Prevost, 4 Johns. Ch. Rep. 205, and cases there cited; Story's Eq. Pl. 466, 467; Hare on Disc. 247; 2 Dan. Ch. Pr. 45. 248; Bank of Utica v. Messereau, 7 Paige, 519, 520.

But a party may accompany an admission or denial with explanations by way of avoidance, and if the complainant require further information he must get it through the interrogatories, or charging part of the bill. Whitney v. Belden, 1 Edw. 486.

Eng. Chan. Reps. i. 433.

deprive the plaintiff of his right of requiring a full answer from him, unless it is evident that the defendant ought.not after such disclaimer to be retained as a party to the suit.(1)[6]

The Court has on several occasions expressed itself very strongly against an evasive answer.[c] In Thomas v. Lethbridge,(2) the Court declared, that an answer clearly evasive on the face of it, and no reason [ *278 assigned, should be considered in future a contempt. And in Smith v. Serle, (3) the Court seemed inclined to take an evasive answer off the file. Where the general traverse

(1) Glassington v. Thwaites, 2 Russ. 458. (3) 14 Ves. 415.

[b] Ante, 275, note [a].

(2) 9 Ves. 463.

[c] No particular form of words is necessary in an answer; it is sufficient if it be not evasive, and if the substance be preserved. Utica Insurance Co. v. Lynch, 3 Paige, 210; Story's Eq. Pl. 653, 654.

The answer should, in general, also, be full, to all the interrogatories, founded on the matters charged in the bill, unless, indeed, they be clearly immaterial. And one test of materiality is, to ascertain, whether, if the defendant should answer in the affirmative, the admission would be of any use to the plaintiff in the cause, either to assist his equity, or to advance his claim to relief. If so, it must be answered, for it is material; if not, it is immaterial, and need not be answered. Story's Eq. Pl. 655, 656, and notes. The defendant, however, is not bound to answer an interrogatory, unless it be founded upon some charge in the bill; and where a fact is stated by way of recital, merely, without any interrogatory calling for an answer as to such fact, the defendant is not bound, either to admit or deny the same. It is sufficient, however, if an interrogatory be founded upon a statement in the bill, though it be inserted therein, merely as evidence, in sup. port of the main charges. Mechanics' Bank v. Levy, 3 Paige, 606.

Where there is a general denial in the defendant's answer, which is clear and distinct, any ambiguity or apparent evasion, in a particular part, will not vitiate or destroy other parts: the whole answer is to be taken together, and if any particular part be ambiguous, it ought to be construed so as to compare with the general denial. Smith v. Fisher, 2

Desau. 275.

To so much of the bill, as is material and necessary for the defendant to answer, he must reply, directly, without evasion, and not by way of negative pregnant. An averment, in a plea or answer, "that a full and fair consideration was paid," is insuffi cient: the defendant must state what he has paid, or in what the consideration consisted; in order that the Court may judge whether the consideration was valuable. High v. Batte, 10 Yerg. 385.

To a bill for relief against a former decree, on the ground of fraud, an answer denying the fraud, generally, is insufficient: it should reply to the allegations, specifically. So, to a bill for discovery of assets and relief, an answer, controverting the claim, without answering as to assets, is insufficient. Carneal v. Wilson, 3 Litt. 80. Pettit v. Candler, 3 Wend. 618.

A denial, by a defendant, who is an executor, that his testator gave authority to A., to draw a bill of exchange, is not such answer to an averment of such authority, as will deprive the complainant of his remedy, unless the defendant also deny the subsequent assent of his testator to the drawing of such bill; for a subsequent assent is equivalent to an original authority. Clark's ex'rs v. Van Pimsdyk, 9 Cranch, 153.

A purchaser, claiming to be a bona fide purchaser, must deny notice, positively, though it be not charged; and he must deny fully and in the most precise terms, every circumstance from which notice could be inferred. Denning v. Smith, 3 Johns. Ch. Rep. 345.

Eng. Chan. Reps. iii. 197.