The present rules are silent upon the question as to whether an answer must be verified. They provide: "Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any State or Territory, or of the District of Columbia, or any clerk of any court of the United States, or of any Territory, or of the District of Columbia, or any notary public." 5 It has been held that under the new rules an answer need not be verified even when discovery is sought, the defendant's discovery being limited to the answers to his interrogatories which are not a part of the pleadings.6 7 An answer can be verified without the United States before commissioners appointed for that purpose; or probably before any secretary of legation or consular officer at the post, port, place, or within the limits of his legation, consulate, or commercial agency. The following form of oath or affirmation is given by Daniell in his valuable work on Chancery Practice: "You swear, or solemnly affirm, that what is contained in this your answer (or plea and answer), as far as concerns your own act and deed, is true to your own knowledge, and that what relates to the act or deed of any other person or persons, you believe to be true. When sworn to in a foreign country, it seems that it must be "administered in the most solemn form Geary, 5 Pet. 99, 110, 8 L. ed. 60, 64; Wallace v. Wallace, Halst. (N. J.) Dig. 173; Smith v. St. Louis M. Ins. Co., 2 Tenn. Ch. 599; Burpee v. First Nat. Bank, 5 Biss. 405; Coca Cola Co. v. Gay-Ola Co., C. C. A., 200 Fed. 720, 726. But see Kittredge v. Claremont Bank, 3 Story, 590; s. c., 1 W. & M. 245. 4 Although the English Judicature Act and orders and rules are silent upon the subject, the English courts do not require an oath to be annexed to the defense in equity, which is the pleading corresponding to our answer. The writer is indebted for this information to the courtesy of Francis A. Stringer, Esq., of the Central Office, Royal Courts of Justice, one of the editors of "An- 6 Kinney v. Rice, 238 Fed. 441, 443. See §§ 347, 348, infra. 7 Read v. Consequa, 4 Wash. 335. 8 U. S. R. S., § 1750. But see Read v. Consequa, 4 Wash. 335. 9 Daniell's Ch. Pr., ch. 15, § 2, p. 270; Story's Eq. Pl., § 872, note 4. observed by the laws and usages" of that country.10 Every alteration and interlineation in the answer should be authenticated by the initials of the officer who administers "the oath." When the verification of an answer is in the form of an affidavit, the name of the defendant making it must be subscribed at the foot of the affidavit. When in the form of a certificate of the officer administering the oath, the defendant's name should be subscribed at the foot of the answer.11 § 193. Motions to take answers off the file. When an answer is in any respect irregular, or is filed by a person not named as a defendant in the bill,2 or is filed too late, it may upon the plaintiff's motion be taken off the file. This may also be done when the paper purporting to be an answer is so evasive that it is in fact no answer. If it is taken off the file for an error in form, the court may allow the same paper to be corrected, and then filed anew.5 By setting the cause down for a hearing upon bill and answer, or by filing a reply or taking any other step in the cause without raising the objection, such a defect would be waived." A failure to enter an order taking a bill as confessed, does not authorize the filing of an answer after the prescribed time.8 § 194. Exceptions for insufficiency. "Exceptions for insufficiency of an answer are abolished."1 The sufficiency of an affirmative defense may be tested by a motion to strike out the same. It has been held that this rule does not apply to a defense by confession and avoidance. In case of insufficiency in admissions or denials, the matters not properly denied are deemed confessed, except as against a person non compos and not under 10 Read v. Consequa, 4 Wash. 335. 11 Daniell's Ch. Pr., (5th Am. ed.) 743; Hathaway v. Scott, 11 Paige (N. Y.) 173, 176; Pincers v. Robertson, 9 C. E. Green (24 N. J. Eq.) 348. $193. 1 Bailey W. M. Co. v. Young, 12 Blatchf. 199. 2 Putnam v. New Albany, 4 Biss. 365, 367. 3 Allen v. Mayor and Board of Ed., 18 Blatchf. 239. 4 Tompkins v. Lethbridge, 9 Ves. Fed. Prac. Vol. I-71 178; Smith v. Searle, 14 Ves. 415. 5 Bailey W. M. Co. v. Young, 12 Blatchf. 199. 6 Besson & Co. v. Goodman, et al., 147 Fed. 887. 7 Fulton Bank v. Beach, 2 Paige (N. Y.), 307; Glassington Thwaites, 2 Russ. 458, 461. 8 Allen v. Mayor, 7 Fed. 483. 2 Eq. Rule 33; infra, § 237. V. 3 Churchward Int. Steel Co. v. Bethlehem Steel Co., 233 Fed. 322. 6 guardianship. By the former practice, exceptions to the insufficiency of the discovery could be filed within a limited time,5 except in the case of an answer by an infant or other person under a disability. Where such an exception was sustained and a further answer put in, which the plaintiff deemed still insufficient, by the former English practice he had three weeks wherein to refer the same to a master upon the old exceptions; otherwise the further answer was deemed sufficient." If the further answer was found insufficient, the defendant was required to put in a third answer; and if that too was found insufficient, he was committed to the Fleet, and examined upon interrogatories.8 When an order was obtained after answer, allowing the plaintiff to amend his bill, and requiring the defendant to answer the amendments and the exceptions to the answer to the original bill together; upon such answer the plaintiff could only file new exceptions for a failure to fully answer the amendments.9 The insufficiency of a defense in an answer could not be thus determined.10 § 195. Supplemental answers. A supplemental answer was formerly filed to bring to the attention of the court some fact which was not inserted in the original answer through mistake or ignorance, or which had occurred subsequently to the filing of the same. They could only be filed by leave of the court, which might impose terms upon the applicant.3 4 Eq. Rule 30. 5 Read v. Consequa, 4 Wash. 335. Uhlmann v. Arnholt & S. B. Co., 41 Fed. 369; Colgate v. Compagnie Francaise, 23 Fed. 82. But see United States v. McLaughlin, 24 Fed. 823; McCormick v. Chamberlin, 11 Paige (N. Y.), 543; Sheppard v. Akers, 1 Tenn. Ch. 326. 6 Copeland v. Wheeler, 4 Brown, Ch. C. 256; Lucas v. Lucas, 13 Ves. 274; Micklethwaite v. Atkinson, 1 Coll. 173; Daniell's Ch. Pr. (5th Am ed.) 169. 7 Smith's Ch. Pr. (2d ed. 1836), 285. 8 Smith's Ch. Pr. (2d ed. 1836), 285, 286. 9 Partridge v. Haycraft, 11 Ves. 570, 581; Smith's Ch. Pr. (2d ed. 1836), 286. 10 Manhattan Tr. Co. v. Chicago El. Traction Co., 188 Fed. 1006. $195. 1 Smith V. Babcock, 3 Sumner, 583; Williams v. Gibbes, 20 How. 535, 15 L. ed. 1013; Caster v. Wood, 1 Baldw. 289; Suydam v Truesdale, 6 McLean, 459. 2 Kelsey v. Hobby, 16 Pet. 269, 277, 10 L. ed. 961, 963; Talmadge v. Pell, 9 Paige (N. Y.), 410, 413. 3 Smith v. Babcock, 3 Sumner, 583; Caster v. Wood, 1 Baldw. 289. The Equity Rules now provide: "Upon application of either party the court or judge, may, upon reasonable notice and such. terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in controversy or a part thereof." This provides merely for supplemental answers of the second class. Such supplemental answers have been little considered in the books. Their functions might also be performed by cross-bills. It was too late after answer and decree to object to the regularity of a proceeding in which facts were set up by petition when crossbill or supplemental answer would have been the proper practice.5 §196. Disclaimers. A disclaimer by the defendant is a pleading by which he renounces all claim to property which the plaintiff seeks in his bill to obtain.1 It is said that it is distinct in its substance from an answer, although sometimes confounded with one. By the former practice, it must in most cases be accompanied by an answer, for where a defendant had been made. a party by mistake, having had an interest with which he has parted, the plaintiff might require an answer sufficient to ascertain what the facts were, and to whom he had transferred his interest. Moreover, a defendant, although he may disclaim an interest, cannot disclaim a liability. Under the present rules it has been so held where the bill charged conspiracy with other defendants to create a cloud on a title which the bill prayed to have removed.5 The only cases in which a disclaimer without an 3 4 Eq. Rule 34. 5 Kelsey v. Hobby, 16 Pet. 269, 277, 10 L. ed. 961, 963; Coburn v. Cedar V. L. & C. Co., 138 U. S. 196. 222, 34 L. ed. 876, 886. § 196. 1 Mounsey v. Burnham, 1 Hare, 15. 2 Story's Eq. Pl., § 838. 3 Story's Eq. Pl., § 838. See Ellsworth v. Curtis, 10 Paige (N. Y.), 105; Carrington v. Lentz, 40 Fed. 18. 4 Glassington v. Thwaites, 2 Russ. 458; Graham v. Coape, 9 Sim. 93, 102; s. c., 3 Myl. & Cr. 638. 5 McDonald v. McDonald, 203 Fed. 724. An averment that the defendant, prior to the beginning of the suit, had ceased selling an alleged infringing machine, and that it had no intention of using or selling any machines embodying the features of the patent, was held not to be such a disclaimer as would deprive the answer was deemed to be sufficient seem to have been those where the bill simply alleged that the defendant claimed an interest in the property in question without specifying the claim.6 Under very special circumstances, a disclaimer may be withdrawn, and an answer filed setting up a claim.” Where a disclaimer is made, and it appears that the defendant was made a party without apparent reason, the bill will be dismissed with costs. Otherwise, a decree may be entered without costs against the defendant and all claiming under him since the filing of the bill.9 If a disclaimer and answer by the same defendant are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer.10 The following is a form of a mere disclaimer: "The disclaimer of Richard Flagg, the defendant, to the bill of complaint of Robert Aber, complainant. This defendant, saving and reserving to himself [here follows the usual general reservation in 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 [describing them], 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 [naming their situation], in the said complainant's bill mentioned, and every part thereof." A disclaimer concludes in the same way as an answer.11 It has been held that without special authority an attorney has no power to bind his client by a disclaimer or retraxit.12 complainant of the right to an injunction. Deere & Webber Co. v. Dowagiac Mfg. Co., C. C. A., 153 Fed. 177. 6 Story's Eq. Pl., 838. See Graham v. Coape, 9 Sim. 93, 102; s. c., 3 Myl. & Cr. 638. 7 Story's Eq. Pl., § 842. See Eq. Rule 30. 8 Story's Eq. Pl., § 842. 10 Mitford's Pl., ch. 2, § part 2. 12 Glover v. Bradley, C. C. A., 233 Fed. 721; McFarland v. Curtin, C. C. A., 233 Fed. 728. |