First exception: For that the said answer is scandalous from and including the word "they," in the third line of the second page, down to and including the word "appear," in the eleventh line of the third page thereof.

Second exception: For that the said answer is impertinent from and including, etc. [as before].

In all which particulars this complainant excepts to the said answer put in by the said defendant, C. D., to the said bill of complaint, as scandalous or impertinent, and he humbly insists that the same ought to be expunged from the said answer.

J. D.,

Solicitor for Complainant.

§ 341. When exceptions should be filed.

The question of when exceptions should be filed is regulated by statute or rule of court.57 Exceptions for insufficiency can be filed after exceptions for impertinence have been filed and disposed of.58

§ 342. Waiver of exceptions.

Where a complainant files exceptions to an answer, and afterwards files a replication, and the cause is set down for hearing, the exceptions will be considered as waived.59 A complainant moving to amend his bill, after he has taken exceptions to the answer, will be regarded as having waived his exceptions, unless he moves specially for liberty to amend without prejudice to the exceptions.60 The principle of waiver does not apply where the amendment of the bill extends only to the addition of another party, and requires no answer from the other defendants;61 or where the complainant, after answer to his original bill, changed his name, and amended his bill by substituting his new name for his old one, and adding another defendant, and after

57 See United States Equity Rule 27; Rev. St. Ill. c. 22, § 27; Hendrickson v. Bradley, 55 U. S. App. 715, 85 Fed. 508.

58 Foster, Fed. Pr. § 153; Patriotic Bank v. Bank of Washington, 5 Cranch, C. C. 602, Fed. Cas. No. 10,806.

59 Berry v. Mathewes, 7 Ga. 457.

60 De La Torre v. Bernales, 4 Madd. 396.

61 Taylor v. Wrench, 9 Ves. 315.

wards took exceptions to the answer;62 or where the amendment is confined to the prayer of the bill, as for an injunction.63 It is held that, if the complainant takes the bill as confessed as to those points not responded to, the exceptions are waived; and that where an answer is not responsive to a statement in the bill, and no exception is taken to the answer, the bringing of this point to issue is abandoned, and it is as if it had never been mentioned in the bill.65

§ 343. Effect of exceptions.

Where exceptions to an answer are filed, they must be disposed of before any proceedings can take place in the cause."" If any of the exceptions to an answer are not well taken, the defendant must have that question settled in the first instance, and before he submits to answer further, or he will be compelled to answer these exceptions fully, unless the court thinks proper to relieve him on terms from the consequences of his neglect.67

§ 344. Procedure upon exceptions.

The method of procedure upon exceptions varies in the different jurisdictions, and the statutes obtaining in the particular jurisdiction, and the rules of court governing the procedure in the court where the cause is pending, should be consulted. If the defendant conceives the objections to be well taken, he may submit to them, and, if the exceptions are filed for insufficiency in the answer, he may obtain leave to file a further answer within such time as the court may direct; or if the exceptions are filed for impertinence, and the defendant

62 Miller v. Wheatley, 1 Sim. 296.

68 Jacob v. Hall, 12 Ves. 458.

64 Griffith v. Depew, 3 A. K. Marsh. (Ky.) 179.

65 Teil v. Roberts, 3 Hayw. (Tenn.) 139. For other cases on waiver of exceptions, see Frownell v. Curtis, 10 Paige (N. Y.) 210; American Loan & Trust Co. v. East & West Ry. Co., 40 Fed. 384.

661 Barbour, Ch. Pr. 181; Clarke v. Tinsley's Adm'r, 4 Rand. (Va.) 250; Glassington v. Thwaites, 2 Russ. 458.

67 Eager v. Wiswall, 2 Paige (N. Y.) 369.

submits thereto, the court will usually order the same to be expunged.68 If the defendant conceives the answer to be sufficient, or the part excepted to not impertinent or scandalous, the court, in some jurisdictions, will refer the matter to a master. This was the practice in the English court of chancery and in the New York court of chancery.69 If the defendant's solicitor does not attend before the master, the master may proceed upon the reference ex parte.70 Formerly, the master reported the answer insufficient generally, upon the complainant establishing one exception without entering into the others; but Lord Eldon disapproved of this practice, and held that on the argument of the exceptions the master's judgment ought to be given upon each.71 The master, having heard the arguments, and looked into the bill, answer, and exceptions, certifies his opinion as to the sufficiency or in

68 1 Barbour, Ch. Pr. 185-206.

69 Mitford, Eq. Pl. 316; Cooper, Eq. Pl. 320; 1 Barbour, Ch. Pr. 186; 1 Hoffman, Ch. Pr. 247; Beach, Mod. Eq. Pr. § 417; Gibson, Suits in Ch. § 422. United States Equity Rules 61-65 provide for the practice in the federal courts. For procedure in other jurisdictions, see Woods v. Morrell, 1 Johns. Ch. (N. Y.) 103; Mackie v. Cairns, Hopk. Ch. (N. Y.) 10; First Nat. Bank of Cumberland v. Parsons, 42 W. Va. 137, 24 S. E. 554; Wyckoff v. Cochran, 4 N. J. Eq. 420; Satterwhite v. Davenport, 10 Rich. Eq. (S. C.) 305; Burrell v. Nicholson, 6 Sim. 212. For exhaustive consideration of this question, see 1 Hoffman, Ch. Pr. 244-283. It is said that exceptions to a defendant's answer may be heard and determined by the court without the intervention of a master. Satterwhite v. Davenport, 10 Rich. Eq. (S. C.) 305. Under the New York practice, exceptions to an answer for impertinence were referred to the master at the same time and in the same manner as those for insufficiency. This was different from the English chancery practice. Woods v. Morrell, 1 Johns. Ch. (N. Y.) 103. In New York, in proceedings upon exceptions before a master, the complainant's solicitor stated the subject, shape, and prayer of the bill, and read the first exception. The defendant's solicitor then read from the answer such parts as he insisted were an answer thereto, and each counsel argued upon the point. The master then allowed or disallowed it, or suspended his opinion, and thus all the exceptions were gone through with. 1 Barbour, Ch. Pr. 187.

70 1 Barbour, Ch. Pr. 187; Byington v. Wood, 1 Paige (N. Y.) 146.

711 Barbour, Ch. Pr. 188; Rowe v. Gudgeon, 1 Ves. & B. 331; Agar v. Gurney, 2 Madd. 389.

sufficiency of the answer, in a report to the court.72 Usually, either party may except to the master's report.73 Such exceptions must be signed by counsel, and are in the nature of a special demurrer, and should point out the error.74 If various exceptions are taken to an answer, and allowed by the master, a single exception to the report, insisting upon the sufficiency of the answer generally, cannot be sustained if any of the exceptions is well taken.75 The complainant, in his exceptions to a report on a reference for scandal or impertinence, must show on what line or page, and how far, the answer is scandalous or impertinent, if the master has reported the answer not to be scandalous or impertinent.76 The argument of the exceptions to the master's report is then heard by the court." If, on the hearing of the master's report, reporting exceptions for insufficiency or impertinence or scandal to be not well founded, the court confirms the same, or if the court itself hears such exceptions without the intervention of a master, and concludes that the same are not well taken, it will disallow such exceptions. If, on the hearing of the master's report or on the hearing of the exceptions by the court, the court deems the exceptions to be well taken, in the event of the exceptions being based on the insufficiency of the answer, it will order the defendant to answer further, and, in the event of the exceptions being based on impertinence or scandal, it will order the objectionable matter to be expunged.78 If a party chooses to abide by his exceptions to an answer, which are disallowed, the answer is properly taken for true.79 Where an answer is held to be insufficient on exceptions thereto, it is to

721 Barbour, Ch. Pr. 189; Corning v. Cooper, 7 Paige (N. Y.) 587; Watkins v. Redmond, 2 Jur. 152.

731 Barbour, Ch. Pr. 190.

74 Wilkes v. Rogers, 6 Johns. (N. Y.) 566.

75 Candler v. Pettit, 1 Paige (N. Y.) 427; Hodges v. Salomons, 1 Cox, 249.

76 Craven v. Wright, 2 P. Wms. 181.

771 Barbour, Ch. Pr. 192, 193.

781 Barbour, Ch. Pr. 192-206.

79 Prettyman v. Barnard, 37 Ill. 105.

be regarded as no answer; and if the defendant neglects to file a sufficient answer after the former is adjudged insufficient, the bill may be taken pro confesso, and a final decree entered.80 Where an injunction has been granted, and an answer and exceptions thereto have been filed, the court will hear argument upon such exceptions at the same time that it hears the motion to dissolve the injunction.81 In England it was the practice to order impertinence in a plea or answer to be expunged, and leave it to the objecting party to see that the order was actually executed.82 It is held, however, that where no immediate appeal lies from an interlocutory order, it would seem to be the better practice to make the order, considering it as executed until reversed, or, at most, to expunge it by drawing lines around the impertinent matter, or otherwise designating it, without, in fact, striking it out, though in a case of clear scandal the court would direct actual expunging, leaving the opposite party to his remedy by bill of exceptions.83

§ 345. Form of order of reference on exceptions.

[Title of court and cause.]

Exceptions for insufficiency [or impertinence or scandal] having been filed to the answer of the said defendant, C. D., and the said defendant not having submitted to any of the said exceptions, on motion of 0. R., solicitor for complainant,

It is ordered that it be referred to G. B., one of the masters in chancery of this court, to look into the bill of complaint, the answer of the said defendant, and such exceptions, and to report whether such exceptions are well taken or not.

80 Mayer v. Tyson, 1 Bland (Md.) 559; Buckingham v. Peddicord, 2 Bland (Md.) 447. See Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599; Marsh v. Crawford, 1 Swan (Tenn.) 116.

81 Sandusky v. Faris, 49 W. Va. 150, 38 S. E. 563; O'Conner v. Starke, 59 Miss. 481; High, Inj. § 1602.

82 Davis v. Cripps, 2 Younge & C. 443; Raphael v. Birdwood, 1 Swanst. 232; Johnson v. Tucker, 2 Tenn. Ch. 244.

83 Johnson v. Tucker, 2 Tenn. Ch. 244; Beach, Mod. Eq. Pr. § 418.