§ 316. Impertinence and scandal in an answer.

Any matter in an answer which is fairly responsive to the bill is not impertinent.120 An answer is impertinent if it goes beyond the allegations of the bill to state matter not material to the cause, and not constituting a defense.121 The test of impertinence is to inquire whether the subject of the allegations could be put in issue.122 Matter in the answer complaining of acts of the complainant, but which cannot avail the defendant, is impertinent, as are reiterations in the answer.123 Averments relating to facts entitling the defendant to affirmative relief are only proper in a cross bill, and may be expunged from an answer.124 In deciding whether matters objected to are pertinent or not, all substantial doubts are to be resolved in favor of their pertinency, and nothing should be expunged which the defendant has a right to prove, and which, if proved, can have any influence either in deciding whether the complainant is entitled to any relief whatever, or the nature, character, and extent of the relief to which he may be entitled, even down to the question whether he shall have relief with or without costs.125 An answer ought not to go out of the bill to state matters not ma

For other cases concerning responsiveness in answer, see Prentiss Tool & Supply Co. v. Godchaux, 30 U. S. App. 68, 66 Fed. 234; Rowley's Appeal, 115 Pa. 150, 9 Atl. 329; Eaton's Appeal, 66 Pa. 483.

120 Monroy v. Monroy, 1 Edw. Ch. (N. Y.) 382; McIntyre v. Trustee of Union College, 6 Paige (N. Y.) 239; Mercantile Trust Co. v. Missouri, K. & T. Ry. Co., 84 Fed. 379.

Eq. Pl. §§ 856-860.

121 Commissioners of Highways v. Deboe, 43 Ill. App. 25; Armstrong v. Chemical Nat. Bank, 37 Fed. 466; Florida Mortgage & Investment Co. v. Finlayson, 74 Fed. 671; Chapman v. School District, Deady, 108, Fed. Cas. No. 2,607.

122 Woods v. Morrell, 1 Johns. Ch. (N. Y.) 103; Hutchinson v. Van Voorhis, 54 N. J. Eq. 139, 35 Atl. 371.

123 Lawrence v. Lawrence, 4 Edw. Ch. (N. Y.) 357; Norton v. Woods, 5 Paige (N. Y.) 260; Rees v. Evans, 1 Chan. Sentinel (N. Y.) 6; Langdon v. Goddard, 3 Story, 14, Fed. Cas. No. 8,061.

124 Armstrong v. Chemical Nat. Bank, 37 Fed. 466.

125 Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029; Van Rensselaer v. Brice, 4 Paige (N. Y.) 174; Tucker v. Cheshire R. Co., 21 N. H. 29; Desplaces v. Goris, 1 Edw. Ch. (N. Y.) 350.

terial to the decision, and long recitals, and stories; and if they are reproachful, they are scandalous.126 The repetition. of an allegation in different parts of an answer is impertinent.127 Generally, an answer ought not to set forth deeds in haec verba. It is sufficient to set forth so much as is material to the point in question. Any further recital will be deemed impertinence.128 Where pertinent matter is so mixed up with that which is impertinent and irrelevant as to render it impossible to separate it therefrom, the whole may be rejected for impertinence.129 Neither suitors nor solicitors should be allowed to manifest their personal feelings in an answer; and where an answer is impertinent, or unnecessarily reflects on the complainant, the objectionable part should be stricken out, at the cost of the offending solicitor.130 A disclaimer of all interest in the subject-matter renders any statements not responsive to the bill impertinent.131

§ 317. Joint or several answers.

Two or more persons may join in the same answer; and where their interests are the same, and they appear by the same solicitor, they ought to do so, unless some good reason exists for their

126 Hutchinson v. Van Voorhis, 54 N. J. Eq. 439, 35 Atl. 371, Woods v. Morrell, 1 Johns. Ch. (N. Y.) 103. An allegation, in an answer, that defendant believes that his character is much better than that of complainant, or of the solicitor who drew the bill, is scandalous and impertinent, although the charges in the bill impeach the conduct of the lefendant or of his solicitor in reference to the subject of the suit. Rees v. Evans, 1 Chan. Sentinel (N. Y.) 6. Where a bill is filed to subject property to the satisfaction of a judgment, a paragraph of the answer which states a conclusion, and asks the court, on certain supposed general principles, to declare a result in relief of defendant "from a most unjust, a la Shylock, proceeding," is scandalous. son v. Tucker, 2 Tenn. Ch. 244.

127 Norton v. Woods, 5 Paige (N. Y.) 260.

128 Hood v. Inman, 4 Johns. Ch. (N. Y.) 437. See supra, § 99.

129 Norton v. Woods, 5 Paige (N. Y.) 260.

180 McConnell v. Holobush, 11 Ill. 61.

John

181 Saltmarsh v. Hockett & Knoxville Iron Co., 1 Lea (Tenn.) 215. See, for impertinence, Barrett v. Twin City Power Co., 111 Fed. 45. See, also, supra, § 117; post, § 337.

An

[Ch. 13 answering separately.132 As a general rule, the defendants should answer jointly, unless their titles are different.183 It is the general rule that, where a joint fiduciary character exists, a joint defense should be adopted; but this rule does not apply where the joint parties are liable to account and incur responsibility, as in the case of executors and trustees.184 answer put in as the joint answer of five defendants cannot be sworn to as the answer of three only, but it ought to be amend ed.185 One defendant may make the answer of a co-defendant his own by referring to and adopting it.188 In a suit against twelve defendants, an answer was filed, purporting to be the joint and several answer of all, but was in fact not sworn to or signed by one, who, after the cause was set down for hear ing, filed a separate answer without leave of the court. It was held that the separate answer was filed irregularly, and it was ordered to be taken off the files.1 137 A joint answer of the husband and wife must be sworn to by both, unless the complainant consents to receive such answer upon the oath of the husband only.138

§ 318. Answer by infant.

In most cases the guardian ad litem appointed for the infant puts in a general answer, submitting the rights of the infant

1821 Barbour, Ch. Pr. 158; Van Sandau v. Moore, 1 Russ. 441; Story, Eq. Pl. § 869; Davis v. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631.

133 Cooper, Eq. Pl. 323; Story, Eq. Pl. § 869; Griffiths v. Wood, 11 Ves. 62.

134 Reade v. Sparkes, 1 Molloy, 8. See Kinney's Ex'rs v. Harvey, 2 Leigh (Va.) 70.

135 Cooper, Eq. Pl. 323; Story, Eq. Pl. § 869; Bailey Washing Machine Co. v. Young, 12 Blatchf. 199, Fed. Cas. No. 751.

180 Binney's Case, 2 Bland (Md.) 99; Warfield v. Banks, 11 Gill & J. (Md.) 98.

187 Fulton Bank v. Beach, 2 Paige (N. Y.) 307.

188 New York Chemical Co. v. Flowers, 6 Paige (N. Y.) 654. See, for joint or several answers, Robbins v. Abrahams, 5 N. J. Eq. 16, 51; Freelands v. Royall, 2 Hen. & M. (Va.) 575; Chinn v. Heale, 1 Munf. (Va.) 63.

to the court. If a special answer is necessary or advisable for the purpose of bringing such rights before the court, the same should be put in. If the infant is a nominal party, or has no defense to the bill, and no equitable rights against his co-defendants, a general answer is sufficient.139 It is the duty of a court to see that the rights of infants are not prejudiced or abandoned by the answers of their guardians.140 Upon his arriving at full age, an infant is entitled to put in a new answer.141 Application to do so must be made as early as possible after attaining majority, and must be supported by an affidavit that he can make a better defense than that previously put in.142 The answer of an infant by his guardian ad litem is considered a pleading, merely, and not an examination for the purpose of discovery. It is not evidence in his favor or against him, though responsive to the bill and sworn to by his guardian ad litem.143

§ 319. Form of general answer of infant by guardian ad litem. [Title of court and cause.]

The answer of C. D., an infant under the age of twenty-one years, by M. H., his guardian ad litem, one of the defendants, to the original bill of complaint of A. B.:

This defendant, answering by his guardian, says that he is an infant of the age of years or thereabouts, and he therefore submits his rights and interests in the matters in question in this cause to the protection of this honorable court.

G. H.,

State of

C. D.,

By M. H., His Guardian ad Litem.

Solicitor for M. H., Guardian ad Litem for Said C. D., an Infant,

County of

SS.

M. H., the guardian ad litem of the above-named infant, was, on this

139 1 Barbour, Ch. Pr. 148; Knickerbacker v. De Freest, 2 Paige (N. Y.) 304. See supra, § 11.

140 Barrett v. Oliver, 7 Gill & J. (Md.) 191; Davidson v. Bowden, 5 Sneed (Tenn.) 134.

141 Stephenson v. Stephenson, 6 Paige (N. Y.) 353.

142 Bennet v. Leigh, 1 Dickens, 89.

143 Stephenson v. Stephenson, 6 Paige (N. Y.) 353; Bulkley v. Van Wyck, 5 Paige (N. Y.) 536; Chaffin v. Heirs of Kimball, 23 Ill. 33.

day of

A. D.

sworn before me, that he had read the foregoing answer, and that he is informed, and believes, that the matters therein stated are true.

Subscribed, etc.

M. H.

§ 320. Answer of persons non compos mentis, or under physical

disabilities.

The answer of an idiot or lunatic is similar to that of an infant, and should be sworn to by his committee in the same manner as the answer of an infant is verified by his guardian ad litem. The same course of proceeding seems proper where the defendant is deaf and dumb.144 Where a defendant is blind, some other person must swear that he has truly, distinctly, and audibly read over the contents of the answer to the defendant, who must also swear to the answer.145

§ 321. Answer of an illiterate person.

If the defendant is unable to read, the regular course of practice in England was for his solicitor to read the answer to him, and to make oath before the officer taking it that he has read it truly. The officer states this in his certificate.146

§ 322. Answer of a foreigner.

In the case of a foreigner not familiar with the English language, an order is obtained for an interpreter, and the answer, being engrossed in the foreign language, a translation thereof must be made by the interpreter and annexed. The foreigner is required to be sworn to his answer, in order to do which the interpreter attending is previously sworn to interpret truly, and conveys to the defendant the language of the oath. At

144 Mitford, Eq. Pl. 315; Cooper, Eq. Pl. 324; 1 Barbour, Ch. Pr. 154, 155. See supra, § 13. Unless the court has ordered a commission to issue to take the answer of such a person. 1 Barbour, Ch. Pr. 155. 145 1 Barbour, Ch. Pr. 155.

146 1 Hoffman, Ch. Pr. 240; Attorney General v. Malim, 1 Younge,

376; Pilkington v. Himsworth, 1 Younge & C. 612; 1 Barbour, Ch. Pr. 155; Hayes v. Lequin, 1 Hogan, 274. See supra, § 309.