tion to putting in a plea, but the demurrer must be actually taken off the file before the plea can be filed.(1) If a plea coupled with an answer is overruled, the plaintiff is entitled to taxed costs thereof from the defendant, [ *238 ] but *before he can compel an answer from the defendant, or it is prudent to amend his own bill, he must except to the answer which was coupled with the plea, and upon the defendant submitting to answer the exceptions, or upon their being allowed, the plaintiff is entitled as of course to an order to amend, and that the defendant may answer the amendments and exceptions together. On the argument of a plea, the Court will frequently order the plea to stand for an answer, with liberty for the plaintiff to except, in which case, upon the defendant's submitting to answer exceptions, or upon their being allowed, the plaintiff is entitled to an order to amend, and that defendant may answer amendments and exceptions together.[a] If a plea to the whole bill is ordered to stand for an answer, without saying one way or the other whether the plaintiff might except, the plaintiff cannot except, for that the Court in saying that the plea shall stand for an answer, must be intended to have meant a sufficient (1) Cust v. Boode, 1 S. & S. 21. [a] Where the plea is overruled, the Court may either order it to stand for an answer, with liberty to the plaintiff to except; or it may be overruled altogether, and the defendant ordered to answer. Goodrich v. Pendleton, 3 Johns. Ch. Rep. 394. If a plea is bad in form only, but good in substance, as to the whole or any part of the relief sought by the bill, and be not pleaded in bad faith, it will be permitted to stand as a part of the defendant's answer, or the defendant may be permitted to insist upon the same matters in his answer. Souzer v. De Meyer, 2 Paige, 574. The Court may permit a plea to stand for an answer, if it contains matter, which, if put in the form of an answer, would have constituted a valid defence to some material part of the matter to which it is pleaded in bar. By allowing the plea to stand for an answer, the Court decides that it contains matter of defence; but that it is not a full defence to all that it professes to cover, or that it is informally pleaded, or that the defence cannot properly be made by way of plea, or that the plea is not properly supported by the answer. If the plea to the whole bill unaccompanied by an answer, is allowed to stand for an answer, without reserving to the plaintiff the right to except, it is to be deemed a full answer, though not necessarily a perfect defence. Where a plea is ordered to stand for an answer, with liberty for the complainant to except, or the plea is accompanied by an answer, which will enable the complainant to except, without special leave, the Master, upon a reference of the exceptions, must decide as to the sufficieney of the answer, considering the plea as a part thereof. Orcutt v. Orms, 3 Paige, 459; Kirby v. Taylor, 6 Johns. Ch. Rep. 254. Where a plea, which constituted a full defence to a particular part of the bill, was disallowed, on the ground of a technical defect or informality in the manner of pleading, the Court permitted it to stand for an answer, and prohibited the complainant from calling for a further answer, by exceptions as to that part of the bill. Leacraft v. Demprey, 4 Paige, 124. See also Story's Eq. Pl. 543. Eng. Chan. Reps. i. 12. answer, an insufficient answer being as none.(1) Whenever a plea is supported by an answer, the Court, on the overruling the plea, will not give leave to amend the plea, but order the same to stand for an answer, with liberty to except.(2) A plea to a bill of discovery filed after a demurrer to a plea at law was allowed.(3) AMENDMENT OF PLEA. A plea is sometimes allowed to be amended, but the order must be obtained upon a special application.(4) It is not enough to show that there has been an evident slip or *mistake, and that the material ground of [ *239 ] defence seems to be sufficient, but the Court always expects to be told precisely what the amendment is to be, and how the slip happened, before they allow the amendment to take place.(5) The defendant, under circumstances, is allowed to amend a plea at the hearing of the same, but is limited by the Court to a short time for so doing, and where it is inconvenient to amend the plea, the Court will permit the defendant to plead de novo within a given time.(6) Leave was given at the hearing of a plea to amend the same, which was wrong in form, it being a plea to a bill of revivor on the marriage of a female plaintiff," that there was a settlement," the plea not naming the additional parties who were necessary.(7) So also leave was given at the hearing of a plea to amend a plea of outlawry, to which neither an office copy of the record of the outlawry, nor of the capias utlagatum was annexed, but only a certificate from the clerk of the outlawries, because the defect was caused by a mistake of the clerk of the outlawries.(8) Where the frame of the defendant's plea and answer was incorrect, the same was ordered to be taken off the file, with liberty to file a new plea.(9)[a] (1) Sellon v. Lewen, 3 P. W. 239. (3) Stewart v. Lord Nugent, 1 K. 201. [a] But permission will not be given to amend, where the plea has been once amended before. 2 Dan. Ch. Prac. 232; and see, generally, as to amendments of pleas, Ibid. 230-232. Eng. Chan. Reps. i. 111. Eng. Chan. Reps. i. 588. EFFECT OF PLEA ON THE OTHER PROCEEDINGS OF A SUIT. The defendant, by pleading to a part of a bill and answering the remainder of the bill, is not entitled to an [*240 ] *order to put the plaintiff suing at law to his election; a plea is not considered as an answer for such a purpose.(1) Pending a plea, the plaintiff is not entitled to move for an injunction to stay proceedings at law ;(2) but in another case, the plea was ordered to come on the next day, with leave, if the plea was overruled, to move at the same time for an injunction.(3) During the pendency of a plea, the defendant cannot move to dismiss the plaintiff's bill for want of prosecution, but must himself set down the plea for argument if he wishes to dispose of the suit. Where there is an answer to part, and a plea to the residue of the plaintiff's bill, the plaintiff cannot except to the answer till the plea is argued, or an order obtained that it shall stand for an answer, with liberty to except.(4) (1) Fisher v. Mee, 3 Mer. 45. (2) Cousins v. Smith, 13 Ves. 164. Anon. 2 Atk. 113. (3) Humphreys v. Humphreys, 3 P. W. 395. (4) Darnell v. Reyny, 1 Vern. 344. CHAPTER XVIII. ANSWER. Defendant may answer by a separate solicitor, 241. Where costs of separate answers disallowed, 242. Office copy bill, 242. Instructions for answer, how answer prepared and intituled, 243. And sworn, 244. How taken by dedimus, 247. Separate answer of a wife, 253. Answer of an infant, 254. How guardian assigned to infant, 255. Where infant abroad, 256. By special dedimus, 258. Answer of lunatic or person of unsound mind, 260. Of a prisoner who is a lunatic, idiot or of unsound mind, 262. Answer of a Quaker, 263. Of a corporate body, 263. Of defendant residing abroad, 264. Of foreigner residing in England unable to speak English, 265. Answer without oath or signature, 266. When answer taken off the file, 268. When defendant allowed to file a supplemental answer, 269. Evidence for and against answer, and effect of admission in an answer, 272. To take examination of defendant after a third answer reported insufficient, 274. HAVING Considered the manner in which a defendant by demurrer may demand the judgment of the Court, whether he shall be compelled to answer a bill or not; and how by plea he may set forth some cause, why the suit should be dismissed, delayed or barred; I now proceed to the most frequent mode of defending a suit, viz. by putting in an answer to the plaintiff's bill. In treating of a bill in Chancery, I explained that the interests of all the plaintiffs must be joint, and that they must, as far as the suit was concerned, unite in employing one solicitor, and co-operate in all proceedings towards the progress of the cause. No such rule applies to defendants, whose interests are frequently conflicting, and who in all cases are entitled to appear and answer separately and independently of each other. True it is, if two or more defendants choose to appear by the same solicitor, the Master *may then disallow the costs of more [ *242 ] than one answer, if he considers separate answers to have been unnecessary ;(1) but the Court has never assumed a power of compelling one defendant, however connected in interests with another defendant, to unite with him by appearing and defending the suit by the same solicitor, and even where two or more defendants appear by the same solicitor, the only control which the Court exercises as to (1) 27 N. O. their putting in separate answers, is confined to the question of costs.[a] In Vansandau v. Moore,(1) the Lord Chancellor reversed an order of the Vice Chancellor which had directed a reference to the Master to inquire whether it was necessary or expedient, with a view to the defence, that separate answers should have been filed in a case where the plaintiff swore that fourteen answers of great length had been put in by different directors in nearly the same words, with a view to harass him and prevent the progress of the suit. The defendant's solicitor procures an office copy of the bill from his own clerk in court, from which a close copy is usually made. As a general rule, no defendant is allowed to file either a plea, answer or demurrer, until he has taken an office copy of the bill; but by 1 Will. 4, c. 36, Rule 14, it is provided, that where a defendant is in custody for contempt in not answering, and shall be able to put in his answer by borrowing or obtaining a copy of the bill, without taking an office copy of the bill, he shall not be compellable to take any such copy; but the clerk in court may (if he think the defendant is of sufficient ability to pay for an office copy) require him, before the answer is filed, to make an affidavit denying his ability in consequence of poverty to pay for an office copy of the bill. In preparing instructions for the answer, the defendant's solicitor will find it convenient to have the interrogating [ *243 ] *part of the close copy of the bill made in half margin, and the defendant's answer to each question set opposite to the particular interrogatory to which it applies. Too much care cannot be bestowed in properly arranging the instructions, and there is no practice more slovenly than to furnish counsel with a mass of undigested papers and documents through which he is to grope his way to (1) S. & S. 509.* [a] " Where several persons are defendants, who have a fiduciary character only, or have that character, and also beneficial interests in no way conflicting with each other, they ought to answer together; and, according to the rule of the court, whether they answer together or not, only one set of costs will be allowed. On the other hand if they have not a fiduciary character, or if they have such a character, but have also conflicting interests, or if one of them can admit facts to be true which the others cannot admit to be true, in all these cases, it might be improper for them consistently to answer together. And whether, in any case, it would be right to deprive them of their costs, would depend on the circumstances of each case." Per Lord Langdale, M. R., in Gaunt v. Taylor, 4 Lond. Jurist, 166, 167. Eng. Chan. Reps. i. 564. |