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its substance from an answer, although sometimes confounded with one. It must, however, in most cases be accompanied by an answer, for where a defendant has been made a party by mistake, having had an interest with which he has parted, the plaintiff may require an answer sufficient to ascertain what the facts are, and to whom he has transferred his interest.3 Moreover, a defendant, although he may disclaim an interest, cannot disclaim a liability. The only cases in which a disclaimer without an answer is sufficient seem to be those where the bill simply alleges that the defendant claims an interest in the property in question without specifying the claim. Under very special circumstances, a disclaimer may be withdrawn, and an answer filed setting up a claim.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. The plaintiff should not file a replication to a disclaimer alone. When the disclaimer is insufficient it may be stricken off the file upon motion, or exceptions to it for insufficiency, if filed, will be sustained.10 A disclaimer may be accompanied by a plea, answer, or demurrer, or all of these, provided that each refers to a separate part of the bill." If a disclaimer and answer by the same defendant are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer.12 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

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. R. 18.

4 Glassington v. Thwaites, 2 Russ. 458; Graham v. Coape, 9 Sim. 93, 102; S. C., 3 Myl. & Cr. 638.

5 Story's Eq. Pl., § 838. See Graham v. Coape, 9 Sim. 93, 102; s. c., 3 Myl. & Cr. 638.

6 Story's Eq. PL., § 841.

7 Story's Eq. PL, § 842.
8 Story's Eq. Pl., § 842.
9 Story's Eq. Pl., § 842.

10 Graham v. Coape, 9 Sim. 93, 102; s. C., 3 Myl. & Cr. 638.

11 Story's Eq. Pl., § 839; Mitford's Pl., ch. 2, § 2, part 3.

12 Mitford's Pl., ch. 2, § 2, part 2.

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.13

13 Story's Eq. Pl., § 844, note 6.

CHAPTER XI.

REPLICATIONS.

§ 156. Definition and history of replications.- A replication is a pleading by which the plaintiff puts in issue the matters pleaded in a defendant's answer or plea. No replication can be filed to a demurrer. Replications were formerly of

Special repli

two kinds, general and special. A general replication consists of a general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged therein to bar the plaintiff's suit, together with an assertion of the truth and sufficiency of the bill. A special replication sets up new matter in avoidance of a substantive defense contained in the answer or plea. To this the defendant was obliged to file a rejoinder, giving the discovery required in it." This might then be succeeded by a surrejoinder and a rebutter. cations and their consequences were, on account of the inconvenience therefrom resulting, almost obsolete by the time of Lord Eldon. A special replication to the answer is forbidden by the Equity Rules, which provide that "no special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court or a judge thereof may in his discretion direct." It has been held, that a special replication is equally improper to a plea." Allegations of new matter in a replication will therefore be disregarded, and the pleading, if allowed to remain upon the file, will be given no more effect than if it were simply general. The proper course, however,

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6 Mitford's Pl., ch. 3; Story's Eq. Pl., v. Spencer O. Mfg. Co., 18 Off. Gaz.

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is for the defendant to move the special replication off the file." After the disuse in England of special replications, it was customary for the plaintiff to sue out and serve upon the defendant a subpoena to rejoin.12 This practice never prevailed generally throughout the United States; and the Equity Rules provide that "in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side." "

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§ 157. When a replication should be filed.-The Equity Rules provide that if the plaintiff does not reply to any plea, or set it down for argument on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose. Whenever the answer of the defendant is not excepted to, or is adjudged or deemed sufficient, the plaintiff must file the general replication thereto on or before the next succeeding rule-day thereafter.' If the plaintiff omits or refuses to file such replication within the prescribed period, the defendant is entitled to an order, as of course, for a dismissal of the suit; and the suit is thereupon dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause and to such other terms as may be directed. It has been held that such an order may be entered by the clerk without any application to the judge. No replication need or should be filed when the cause is set down for hearing upon bill and answer. Where there are several defendants a replication should be filed within the prescribed time after one of them has filed an answer or plea, although the others may not have done so. It is the safer practice to file a separate replication after the other answers have come in. The court may grant leave to withdraw a rep

11 Mason v. Hartford, P. & F. R. Co., 10 Fed. R. 334.

12 Story's Eq. PL., § 879.

13 Story's Eq. PL, § 879, note 5. 14 Rule 66.

157. Rule 38; Heyman v. Uhlman, 34 Fed. R. 686. 2 Rule 66.

3 Rule 66.

Robinson v. Satterlee, 3 Saw. 134. Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405; Gaines v. Agnelly, 1 Woods, 238.

6 Coleman v. Martin, 6 Blatchf. 291. 7 See Smith's Ch. Pr. (2d Eng. ed.), vol. i, p. 336.

lication, and amend, or have the cause set down for a hearing upon bill and answer. It has been held that the pendency of a motion affecting the plea or answer will excuse the plaintiff from replying before the motion has been decided. Only a party whose plea or answer has received no proper reply can have a bill dismissed for a failure to comply with these rules.1o The court exercises great liberality in allowing a replication to be filed nunc pro tunc," or in allowing one filed too late to stand.12 The taking of testimony by the defendant, or any other proceeding taken by him in the cause, would probably be held a waiver of his right to have a bill dismissed for want of a replication.13 An objection upon this ground cannot be raised for the first time upon appeal.1 After a cause has been heard upon bill and answer, the court will rarely allow a replication to be filed.15

§ 158. Effect of a replication. The complainant by filing a general replication admits the sufficiency as regards discovery,' and as regards the form of pleading, but not the sufficiency as a defense,3 of the plea or answer to which it is filed, and denies every allegation in the plea or answer which is not directly responsive to the bill.'

§ 159. Frame of a replication.-The full title of the cause, as it stands at the time the replication is filed, must be set forth

8 Rogers v. Goore, 17 Ves. 130; Brown v. Ricketts, 2 J. Ch. (N. Y.) 425; Daniell's Ch. Pr. (2d Am. ed.) 479; Ibid. (3d Am. ed.) 830.

9 Allis v. Stowell, 5 Fed. R. 203. 10 Chicago & A. R. Co. v. Union R. M. Co., 109 U. S. 702, 717.

11 Peirce v. West's Ex'rs, Pet. C. C. 351; Sayles v. Erie Ry. Co., 2 N. J. L. J. 212; Fischer v. Hayes, 6 Fed. R. 76; S. C., 19 Blatchf. 26; Jones v. Brittan, 1 Woods, 667.

12 Fischer v. Hayes, 6 Fed. R. 76; S. C., 19 Blatchf. 26.

13 Jones v. Brittan, 1 Woods, 667; Fischer v. Hayes, 6 Fed. R. 76; s. c., 19 Blatchf. 26; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405.

355; Peirce v. West's Ex'rs, Pet. C. C. 351.

$158. 1Story's Eq. PL, § 877; Hughes v. Blake, 6 Wheat. 453.

2 McKim v. White Hall Co., 2 Md. Ch. 510.

3 Equity Rule 33; Everts v. Agnes, 4 Wis. 343; Rule 33; Matthews v. Lalance & G. Mfg. Co., 2 Fed. R. 232. But see Myers v. Dorr, 13 Blatchf. 22; Theberath v. Rubber & C. H. T. Co., 5 Bann. & A. 584.

4 Humes v. Scruggs, 94 U. S. 22. It was held that the general replication put in issue the validity of a deed set up in the answer although not questioned by the bill. Boyd v. Hawkins, 2 Dev. (N. C.) Eq. 195. But see McClane's Adm'x v. Shepherd's Ex'x,

14 Clements v. Moore, 6 Wall. 299; 21 N. J. Eq. 76; Cowart v. Perrine, 21 Fretz v. Stover, 22 Wall. 198.

15 Bullinger v. Mackey, 14 Blatchf.

N. J. Eq. 101.

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