2 D § 336. Exceptions to answers to amended bills. Exceptions will lie to answers to amended bills as well as to those put in to original bills; but where the complainant takes no exception to the answer to an original bill, he cannot take an exception to the answer to the amended bill upon an objection which would have applied equally to the answer to the original bill.20 Circumstances may occur which may render a departure from the above rule necessary. Thus, where, after a defendant had answered, the complainant amended his bill by stating an entirely new case, it was held that exceptions would lie, although some of the interrogatories embraced in them were contained in the original bill. So, if the defendant, in answering amendments, alleges facts similar to those contained in his first answer, and not called for by the amendments, but alleges them without the circumstances given in the first answer, and interrogated to by the bill, an exception will lie.27 Exceptions founded upon the new matters of the amendment should be entitled "Exceptions taken by the complainant to the answer of the defendant, C. D., to the complainant's amended bill of complaint," or "to the answer," etc., "to the amendments to the original bill of complaint of the complainant."28 $337. Exceptions for impertinence and scandal. What constitutes scandal and impertinence has been heretofore considered.20 Scandal and impertinence in answers are of the same nature, and subject to the same rules and the same method of practice, as when found in bills of complaint." Matter responsive to the bill cannot be excepted to as imperti 30 1 Barbour, Ch. Pr. 178; Ovey v. Leighton, 2 Sim. & S. 234; Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 160; Chazournes v. Mills, 2 Barb. Ch. (N. Y.) 466; Eager v. Wiswall, 2 Paige (N. Y.) 369. 27 1 Barbour, Ch. Pr. 179; Mazarredo v. Maitland, 3 Madd. 66; Irving v. Viana, McClel. & Y. 563. See Williams v. Davies, 1 Sim. & S. 426. Bennington Iron Co. v. Campbell, 2 Paige 281 Barbour, Ch. Pr. 179; (N. Y.) 161. 29 See supra, §§ 117, 316. nent, though it may be, in fact, impertinent.31 An exception for impertinence must be supported in toto, and will fail if it covers any part of the answer which is relevant and material.32 An exception to an answer for impertinence, which, if allowed, would render the residue of the answer false or wholly unintelligible, will be overruled.33 Where an exception for impertinence, if allowed, would mutilate the answer unnecessarily, by breaking up sentences and clauses which ought to stand or fall together, such exception should be disallowed.34 If the defendant, by his answer, sets up a distinct matter by way of avoidance, which is not called for by the bill, if the fact so stated is wholly immaterial, it may be excepted to for impertinence.35 The introduction of scandalous and impertinent matter in a bill does not authorize or justify similar matter in an answer to meet such improper allegations; and if exception be taken to it, the court will order that such matter be expunged.36 An exception for impertinence, otherwise untenable, will sometimes be allowed, if the matter excepted to might, if put in issue, lead to the introduction of improper evidence.37 Nothing relevant can be deemed scandalous.38 Scandal and impertinence in an answer must be disposed of, before its suffi 31 Lownsdale v. Portland, Deady, 1, Fed. Cas. No. 8,578. 32 Chapman v. School District, Deady, 108, Fed. Cas. No. 2,607; Bush v. Adams, 22 Fla. 177; Goodrich v. Parker, 1 Minn. 195 (Gil. 169); Desplaces v. Goris, 1 Edw. Ch. (N. Y.) 350; Buloid v. Miller, 4 Paige (N. Y.) 473; Van Rensselaer v. Brice, 4 Paige (N. Y.) 174; Curtis v. Masten, 11 Paige (N. Y.) 15. 33 McIntyre v. Trustees of Union College, 6 Paige (N. Y.) 239; Clute v. Bool, 8 Paige (N. Y.) 83; Franklin v. Keeler, 4 Paige (N. Y.) 382. 34 Franklin v. Keeler, 4 Paige (N. Y.) 382; Bush v. Adams, 22 Fla. 177. 35 Spencer v. Van Duzen, 1 Paige (N. Y.) 555; Clissold v. Powell, cited in 2 Maddock, Ch. Pr. 355. 36 Langdon v. Pickering, 19 Me. 214; Burr v. Burton, 18 Ark. 215. 37 Gleaves v. Morrow, 2 Tenn. Ch. 592; Hawley v. Wolverton, 5 Paige (N. Y.) 525; McIntyre v. Trustees of Union College, 6 Paige (N. Y.) 239. 38 Mitford, Eq. Pl. 314; Cooper, Eq. Pl. 318; Story, Eq. Pl. § 862. ciency can be considered. After a reference for inst fficiency, an answer cannot be referred for impertinence, but it may be for scandal.39 The court, in cases of impertinence, ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as ought to be struck out of the record, for the reason that the error on one side is irremediable; on the other, not.40 The part of an answer excepted to for impertinence must, for the purpose of determining the exceptions, be taken as true. But, after a replication has been filed by the complainant, he cannot, in general, either refer the answer for impertinence, or take exceptions on the ground of its insufficiency.42 § 338. Frame of exceptions. Exceptions must be in writing, and signed by counsel.48 They must be properly entitled; otherwise, they will be suppressed or taken off the file for irregularity.44 Exceptions for insufficiency should state the charges in the bill, the interrogatory applicable thereto to which the answer is responsive, and the terms of the answer, verbatim, so that the court may see whether they are sufficient or not.45 They must be founded on some allegation, charge, or interrogatory in the bill, and must state the particular points wherein the answer is defective, and pray that the defendant may put in a full and perfect answer 39 Cooper, Eq. Pl. 321; Story, Eq. Pl. § 867. 40 Davis v. Cripps, 2 Younge & C. 443; Barrett v. Twin City Power Co., 111 Fed. 45; Wilkinson v. Dodd, 42 N. J. Eq. 234, 7 Atl. 327; Bush v. Adams, 22 Fla. 177; Brill v. Mary A. Riddle Co. (N. J. Eq.) 47 Atl. 223; Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029; Von Schroder v. Brittan, 98 Fed. 169. 41 Van Rensselaer v. Brice, 4 Paige (N. Y.) 174. 42 Cooper, Eq. Pl. 322; Story, Eq. Pl. § 867. 431 Barbour, Ch. Pr. 181; De La Torre v. Bernales, 4 Madd. 396; Yates v. Hardy, Jac. 223. 441 Barbour, Ch. Pr. 181; Williams v. Davies, 1 Sim. & S. 426. 45 Crouch v. Kerr, 38 Fed. 549; Whittemore v. Patten, 84 Fed. 51; Brooks v. Byam, 1 Story, 296, Fed. Cas. No. 1,947; Fuller v. Knapp, 24 Fed. 100; Bower Barff Rustless Iron Co. v. Wells Rustless Iron Co., 43 Fed. 391; Jackson v. Kraft, 186 Ill. 623, 58 N. E. 298; Mix v. People, 116 Ill. 265, 4 N. E. 783. in those respects.46 If they do not clearly point out the parts of the bill which are not sufficiently answered, they may be struck off the file on motion, or it seems the objection may be taken when the exceptions are noticed for argument on the master's report.47 An objection on the ground that the answer is without fullness and particularity, and not according to the best of the defendant's knowledge, information, remembrance, or belief, is too general. 48 An exception alleging in general terms that the answer contains inconsistent defenses, without any attempt at specification of the defenses supposed to be inconsistent with each other, is insufficient. 19 Where an exception made no point, and would compel the court to find out what was required to be answered, it was disallowed.50 Exceptions for impertinence or scandal should point out the objectionable passages with such clearness and precision as to enable the adverse party and the officers of the court to ascertain precisely what parts are objectionable, and, if several parts of an answer are objectionable, each part must be the subject of a separate exception.51 Pray 46 Buloid v. Miller, 4 Paige (N. Y.) 473. 47 Baker v. Kingsland, 3 Edw. Ch. (N. Y.) 138. See Sandusky v. Faris, 49 W. Va. 150, 38 S. E. 563. 48 Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686. 49 Peck v. Osteen, 37 Fla. 427, 20 So. 549. See Conway v. Wilson, 44 N. J. Eq. 457, 11 Atl. 734; Arnold v. Slaughter, 36 W. Va. 589, 1 S. E. 250. 50 McKeen v. Field, 4 Edw. Ch. (N. Y.) 379. Under the English practice, where the complainant complained that a particular interrogatory in his bill had not been answered, he must state the interrogatory in the terms of it, and not throw upon the court the trouble of determining whether the expressions of the exceptions could be reconciled with the interrogatory. But this rule did not apply to trifling verbal alterations in the interrogatory. Hodgson v. Butterfield, 2 Sim. & S. 236; Brown v. Keating, 4 Jur. 477. Under the practice of the New York courts of chancery, it was unnecessary to state the precise words of the allegation, charge, or interrogatory in the bill claimed to be not fully answered. It was sufficient to state the substance. Stafford v. Brown, 4 Paige (N. Y.) 89. 51 Whitmarsh v. Campbell, 1 Paige (N. Y.) 645; Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. 250. Where impertinent matter is referred to only as set forth on certain specified pages and lines of the answer, ers of exceptions may be amended.52 Separate exceptions for scandal and impertinence cannot be taken to the same matter.58 If the defendants answer separately, exceptions must be taken to each answer.54 To a joint and several answer, only one set of exceptions can be filed.55 An exception for impertinence must be allowed in whole, or not at all.56 § 339. Form of exceptions for insufficiency. [Title of court and cause.] Exceptions taken by the said complainant to the answer put in by the defendant, C. D., to the said complainant's bill of complaint: First exception: For that the said defendant, C. D., has not, to the best and utmost of his knowledge, remembrance, information, and belief, answered and set forth whether [set forth the interrogatory in the bill which is not answered, in haec verba]. Second exception: For that the said defendant, C. D., has not in manner aforesaid answered and set forth whether, etc. [as before]. In all which particulars the answer of the said defendant, C. D., is, as the said complainant is advised, imperfect, insufficient, and evasive, and the said complainant therefore excepts thereto, and prays that the said defendant, C. D., may put in a further and better answer to the said bill of complaint. J. D., Solicitor for Complainant. $340. Form of exceptions for scandal and impertinence. [Title of court and cause.] Exceptions taken by the complainant to the answer of the defendant, C. D., to the bill of complaint in this cause, for scandal and impertinence: and the paging has not been preserved on appeal, it is certainly insufficient on appeal to enable the appellate court to determine whether the exceptions were properly sustained or disallowed. Mix v. People, 116 Ill. 265, 4 N. E. 783. 52 Whittemore v. Patten, 84 Fed. 51. 53 McIntyre v. Trustees of Union College, 6 Paige (N. Y.) 239. 54 Sydolph v. Monkston, 2 Dickens, 609; 1 Barbour, Ch. Pr. 182; Story, Eq. Pl. § 864. 55 Thornly v. Jones, 2 Fowler, Exch. Pr. 10. 56 Conway v. Wilson, 44 N. J. Eq. 457, 11 Atl. 734; Stokes v. Farnsworth, 99 Fed. 836. |