CHAPTER XV.

DISCLAIMERS.

§ 353. Nature and office of disclaimer.

A disclaimer is where the defendant renounces all claim to the subject of the demand made by the complainant's bill,1 not merely in a representative character, or to the full extent charged, while the right to claim in a different character or to a more limited extent is in nowise abandoned, but in any capacity, and to any extent.2 It is distinct from an answer, although sometimes confounded with it. It cannot often be filed alone, but is usually put in under the title of an answer. Though a defendant may not at the time he disclaims possess any interest in the matter, yet he might have had an interest which he has parted with, and this would entitle the complainant to an answer to ascertain whether that is the fact or not, and if in truth it is so, an answer seems necessary to enable the complainant to make the proper party instead of the defendant disclaiming. A defendant cannot, by disclaimer, deprive the complainant of the right of requiring a full answer from him, unless it is evident that the defendant should not, after the disclaimer, be continued a party to the suit. In no case can a party get rid of his liability to answer a suit by mere disclaimer, if his answer may be properly required. If his disclaimer does not show that he is under no liability in

3

1 Story, Eq. Pl. § 838; Cooper, Eq. Pl. 309; Mitford, Eq. Pl. 318, 319. 2 Bentley v. Cowman, 6 Gill & J. (Md.) 152.

8 Oxenham v. Esdaile, McClel. & Y. 540; Story, Eq. Pl. § 838; Ellsworth v. Curtis, 10 Paige (N. Y.) 105; Mounsey v. Burnham, 1 Hare, 15; Isham v. Miller, 44 N. J. Eq. 61, 14 Atl. 20.

4 Ellsworth v. Curtis, 10 Paige (N. Y.) 105; Isham v. Miller, 44 N. J. Eq. 61, 14 Atl. 20.

respect to the matter of the bill, it will be bad. A party cannot shelter himself from answering by alleging that he has no interest in the matter of the suit, in cases where, though he may have no interest, others may have an interest against him. Thus, a party to an account cannot, by disclaiming an interest in the account, protect himself from setting out the account." It is held that a defendant who has improperly interfered with a person's rights, so as to make a suit necessary, may be compelled to answer the whole bill, with a view to charge him with costs, notwithstanding a disclaimer. If a fraud be charged against a defendant, he must answer as to the fraud, and cannot put in a disclaimer only.8 A disclaimer by one of several defendants cannot be permitted to prejudice the complainant's rights as against the other defendants." Where the defendant claims any rights against his co-defendants, he should reserve them by his disclaimer, for, if his disclaimer is absolute, the court will only determine the rights and interests of the other parties, and not consider any questions arising between him and his co-defendants.10 If he puts in a disclaimer, and afterwards discovers that he had an interest which he was not apprised of at the time when he disclaimed, the court will, upon the ground of ignorance or mistake, permit him to make his claim, but the defendant must show a strong ground, by affidavit, to get rid of the disclaimer upon the record.11 If a defendant disclaims, and it appears that the bill was exhibited for vexation only, the court will dismiss

Story, Eq. Pl. § 838a; Glassington v. Thwaites, 2 Russ. 458; Whiting v. Rush, 2 Younge & C. 546.

• Glassington v. Thwaites, 2 Russ. 458; Story, Eq. Pl. § 840; Isham v. Miller, 44 N. J. Eq. 61, 14 Atl. 20.

7 Hutchinson v. Reed, Hoff. Ch. (N. Y.) 315.

• Bulkeley v. Dunbar, 1 Anstr. 37.

Williams v. Jones, 1 Younge, 252.

101 Daniell, Ch. Pl. & Pr. (4th Ed.) 707; Beach, Mod. Eq. Pr. § 287; Jolly v. Arbuthnot, 26 Beav. 283. In a suit brought by heirs, a disclaimer by one or more of the heirs to any interest in the premises in controversy does not vest the interest so disclaimed in the remaining heirs. Kane County Sup'rs v. Herrington, 50 Ill. 232.

11 Cooper, Eq. Pl. 310; Story, Eq. Pl. § 841; Sidden v. Lediard, 1 Russ. & M. 110; Seton v. Slade, 7 Ves. 267.

the bill, with costs against the complainant.12 A disclaimer, though in substance distinct from an answer, is in point of form an answer, and is put in and filed in the same general way, and the same formal words to precede and conclude the one are pursued as to the form of the other. The form of a disclaimer is simply that the defendant disclaims all right and title to the matter in demand.13 A disclaimer must be full and explicit in all respects, and be accompanied by an answer denying the facts deemed necessary to be denied.14 Should there appear any inconsistency between the answer and disclaimer, the matter will be taken more strongly against the defendant upon the disclaimer than upon the answer.15 If a defendant disclaims when he should answer, or accompanies his disclaimer by an insufficient answer, the complainant may except to it in the same manner as to an answer.16 If the defendant, under pretense of putting in a disclaimer and answer, puts in a mere disclaimer, without any answer, such proceeding will be considered evasive, and the pretended disclaimer and answer taken from the file. If the complainant excepts to the disclaimer, he will be precluded afterwards from moving to take it from the file.17 Exceptions cannot be filed to a simple disclaimer. The only remedy of the complainant who is entitled to an answer in such a case is to move to take the disclaimer off the file.18 Where a disclaimer to the whole bill has been filed, the complainant should not reply to it. He should either dismiss his bill, as against

Story, Eq. Pl. § 842.

12 Cooper, Eq. Pl. 310; 13 Story, Eq. Pl. § 844; Mitford, Eq. Pl. 319; 1 Barbour, Ch. Pr. 171. 14 Worthington v. Lee, 2 Bland (Md.) 678; Beach, Mod. Eq. Pr. § 282; Bentley v. Cowman, 6 Gill & J. (Md.) 152.

151 Barbour, Ch. Pr. 171; Mitford, Eq. Pl. 320; Story, Eq. Pl. § 839. For instances of disclaimers considered by the courts, see Spofford v. Manning, 2 Edw. Ch. (N. Y.) 358; Tompkins v. Anthon, 4 Sandf. Ch. (N. Y.) 97; Tooker v. Slosson, 4 Edw. Ch. (N. Y.) 114; Meade v. Finley, 47 Ill. 406; Campbell v. Campbell, 130 Ill. 466, 22 N. E. 620.

16 Glassington v. Thwaites, 2 Russ. 458; Ellsworth v. Curtis, 10 Paige (N. Y.) 105.

171 Barbour, Ch. Pr. 172; Glassington v. Thwaites, 2 Russ. 458. 18 Ellsworth v. Curtis, 10 Paige (N. Y.) 105.

the party disclaiming, with costs, or amend it.

He may also set the case down upon the disclaimer, in which case, if he can satisfy the court that he had probable cause or reason to file his bill against such defendant, he may have a decree against such defendant and all claiming under him, without costs on either side. If it should appear that there was not probable cause or reason, the complainant will be ordered to pay his own costs.19 If a complainant replies to a general disclaimer, and serves the defendant with a subpoena to rejoin, the defendant may have costs against the complainant for such vexation. It is otherwise if the disclaimer is only to a part of the bill, and there is an answer to the other part.20 If the defendant thinks that he has been made a defendant vexatiously, he may apply for costs by motion on notice to the complainant as soon as the complainant's time for amending the bill has expired.21 A disclaimer is put in upon oath.22 It is said, however, that a disclaimer is regarded as in the nature of an answer, and is to be put in under oath when the defendant is required to answer under oath, but not otherwise.23 It must also be signed by the defendant himself, and in no case can such signature be waived with propriety, since it is a rule that no record will be received without signature which tends to prejudice the rights of the defendant.24 A defendant may

19 Mitford, Eq. Pl. 319; Cooper, Eq. Pl. 310; 1 Barbour, Ch. Pr. 172; Isham v. Miller, 44 N. J. Eq. 61, 14 Atl. 20; Spofford v. Manning, 2 Edw. Ch. (N. Y.) 358.

20 Cooper, Eq. Pl. 310; 1 Barbour, Ch. Pr. 172; Story, Eq. Pl. § 842; Williams v. Longfellow, 3 Atk. 582.

211 Barbour, Ch. Pr. 172.

221 Barbour, Ch. Pr. 171.

23 Dickerson v. Hodges, 43 N. J. Eq. 45, 10 Atl. 111.

241 Smith, Ch. Pr. 275; Beach, Mod. Eq. Pr. § 284; Dickerson v. Hodges, 43 N. J. Eq. 45, 10 Atl. 111; 1 Barbour, Ch. Pr. 171. It is said that, when a disclaimer is filed without oath, the defendant's signature should be attested by some person competent to be a witness. Dickerson v. Hodges, 43 N. J. Eq. 45, 10 Atl. 111, citing 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 407. The disclaimer should be signed by counsel. Where the distinction between the office of counsel and solicitor does not prevail, it is sufficient if it be signed by a solicitor. Dickerson v. Hodges, 43 N. J. Eq. 45, 10 Atl. 111; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 407.

A dis

also, in a suit, disclaim by his counsel at the bar.25 claimer may be ordered taken from the file when a defendant is not entitled to disclaim.26

§ 354. Form of general disclaimer.

[Title of court and cause.]

The disclaimer of A. B., the defendant, to the bill of C. D., complainant:

This defendant [here follow the words of course which precede an answer, being the part extending to in form of answer, supra, § 310], says that he does not know that he, this defendant, to his knowledge or belief, ever had nor did he claim or pretend to have, nor does he now claim, any right, title, or interest of, in, or to the estate and premises situate, etc., in the said complainant's bill set forth, or any part thereof; and this defendant does disclaim all right, title, and interest to the said estate and premises in, etc., in the said complainant's bill mentioned, and every part thereof. [Here follow the words of course which conclude an answer.]

The answer and disclaimer of C. D., defendant, to the bill of complaint of A. B., complainant:

[A disclaimer being in point of form an answer, the words of course at the commencement of the latter are to be pursued in the former, (see supra, § 310), after which the defendant's answer to the bill must be inserted, with the exception of the formal conclusion; then add the disclaimer, as follows:]

And this defendant, further answering, says that he never had or pretended or claimed to have, nor has he now, nor does he claim or pretend to have, any right, title, or interest of, in, or to the said bond and mortgage, or in and to the moneys due thereon or secured thereby, or to the said mortgaged premises, or any part thereof, or to the equity of redemption in the same, or any part thereof, and this defendant disclaims all right and title of, in, or to the same, and every part thereof. And this defendant denies all, etc.

[Conclude as in an answer.] 27

25 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 706; Beach, Mod. Eq. Pr. § 285; Teed v. Carruthers, 2 Younge & C. 31, 38. See, also, In re Ellison's Trust, 2 Jur. (N S.) 62; Foster v. Dawber, 1 Drew. & S. 172.

26 Isham v. Miller, 44 N. J. Eq. 61, 14 Atl. 20.

27 Lord Redesdale has said that the form of a disclaimer alone seems to be simply the assertion that the defendant disclaims all right and title to the matter in demand, and that the forms given in the books of practice are all of an answer and disclaimer. Story, Eq. Pl. § 844; Mitford, Eq. Pl. 319.