CHAPTER XII. REPLICATIONS. *I. A general replication to a defendant's answer (1). The replication of A. B. complainant to the answer of C. D. defendant. This repliant saving and reserving unto himself all and all manner of advantage of exception to the manifold insufficiencies of the said answer, for replication thereunto saith that he will aver and prove his said bill to be true certain and sufficient in the law to be answered unto, and that the said answer of the said defendant is uncertain untrue and insufficient to be replied unto by this repliant; Without this, that any other matter or thing whatsoever in the said answer contained material or effectual in the law to be replied unto corfessed and avoided traversed or denied is true; All which matters and things this repliant is and will be ready to aver and prove as this honorable court shall direct, and humbly prays as in and by his said bill he hath already prayed. (1) A replication is the plaintiff's answer or reply to the defendant's plea or answer. Formerly if the defendant by his plea or answer offered new matter, the plaintiff replied specially, the consequence of which was a rejoinder by the defendant, but special replications are now out of use; if however a plaintiff is disposed to controvert a part of the case made by the defendant's answer, and to admit the rest, he may still put in a replication so far special that it is confined to the particular matter controverted, instead of being a general denial of the truth of the whole answer, and then the defendant is put only to proof of the matter replied to. Ld. Red. Tr. Pl. p. 321, 2, 4th ed. *II. A special replication to the answers of several The replication of John Marshall complainant to This repliant saving to himself all and all manner of advantage of exception to the manifold insufficiencies of the said answers, for and by way of replication saith that his said original and amended bill of complaint exhibited into this court against the said defendants and all and every the matters &c. therein contained are true certain and sufficient in the law to be answered unto by the said defendants, and that the answers of the said defendants are untrue uncertain and insufficient in the law to be replied unto by this repliant, save and except that this repliant doth admit to be true as in the said answers some or one of them is by the said defendants some or one of them alleged, that the mortgage in the said original and amended bill mentioned to be made by Philip Marshall deceased to Richard Newman and Robert Newman deceased and therein respectively named, and bearing date the 2d day of June 1754, was made and entered into between them of and concerning and comprehended all the said Philip Marshall's then plantations and meadows in Newfoundland and in the said original and amended bill and the said defendants' said answers respectively mentioned, and that the same plantations and meadows were or are all situate and being in St. John's Newfoundland aforesaid in the said bill also mentioned; and this repliant doth moreover admit it to be true as in the said answers of the said defendants some or one of them is alleged, that on or about the 2d day of October 1775 the said Philip Marshall did settle an account with an agent of or for the said Richard Newman then deceased and in the said bill named, or of or for his executors, of and concerning all and every sum and sums of money therefore due and owing from the said Philip Marshall to the said Richard Newman and Robert Newman or either of them their or either of their (2) This and the preceding form are taken from Hinde's Chancery Pr. 285, 6. A special replication is always signed by counsel. executors or administrators, and did by an agreement of that date in writing under his hand and seal admit, and this repliant doth now hereby admit and acknowledge, that on the said 2d day of October 1755 there was due and owing from the said Philip Marshall on the said security of all the said plantations and premises, and on the balance of such accounts the full sum of £577. 3s. in the said answers or some or one of them mentioned and claimed as the then balance of such accounts and payable with interest; Without that, that there is any other matter or thing in the said defendants' said answers contained material or effectual for this repliant to reply unto, and not herein and hereby well and sufficiently replied unto confessed and avoided traversed or denied is true; All which matters and things (save and except as aforesaid) this repliant is ready to aver and prove as this court shall award, and prays as in and by his said original and amended bill he hath prayed. John Heath. CHAPTER XIII. EXAMINATIONS. *L. Form of examination of a defendant in the Master's office upon interrogatories settled by a Master pursuant to a To the first interrogatory this examinant saith that &c. II. Examination of executors in the Master's office, referring to schedules annexed (1). In Chancery. Between &c. [naming all the parties, plain- The examination of the said complainants J.W. and A. G. the executors of S. P. deceased in the pleadings in this cause named, upon interrogatories exhibited by the said defendants before J. W. esq. one of the Masters of this honorable court pursuant to the decree made on the hearing of this cause bearing date the day of 1st. To the first interrogatory these examinants say that shortly after the decease of S. P. the testator in the pleadings in this cause named which happened on or about the 3d day of December which was in the year of our Lord these examinants em ployed T. N. then a licensed appraiser and auctioneer in the city of Bristol but now deceased, to take an inventory and make an appraisement, and the said T. N. did as these defendants believe take an inventory and make an appraisement, of all the household goods (1) In stating accounts, if a defendant has set forth in the schedules all the receipts and payments down to the time of filing his answer, he must in his examination state only the subsequent receipts and payments, and carry on the account from the foot of his answer to the time of putting in his examination; for although the interrogatories extend to a wide sweeping inquiry into all receipts and payments, a repetition of those comprised in the schedule to the answer might subject the examination to a reference for impertinence; so on the other hand a defective account, to a reference for insufficiency; and if for the purposes of spleen it runs into scandal, it might be referred and expunged. An examination is subject to all the infirmities of an answer; the admissions should be so framed that the receipt and application should be in the same sentence forming one transaction, and not distinct matters, and should be uno flatú, otherwise the admission would be evidence of the receipt, and the application must be proved by evidence; 1 Turn. Ch. Pr. p. 584, 6th ed.; Blount v. Burrow, 1 Ves. jun. 546; Ridgeway v, Darwin, 7 Ves. 404; Thompson v. Lumbe, ibid. 587; Robinson v. Scotney, 19 Ves. 582. Examinations do not require to be signed by counsel; Bonus v. Flack, 18 Ves. 287, 2d ed.; Jac. Rep. 224; and see Keene v. Price, 1 Sim. & Stu. 99. 123 |