Majority
p. 3Henry McCormick v. Calvin T. Chamberlain et al.
T. T. Sherwood, for appellant;
A. S. Diven, for respondents.—
Headnote
Effect of allowing plea to stand for an answer.Appeal from a decree of the vice chancellor of the eighth circuit dismissing the complainant’s bill. In this case the chancellor decided that where answer upon oath is not ed, if a simple plea to the whole bill is allowed to stand an answer without giving to the complainant liberty to except to the same, and where the plea is not accompanied by an answer so as to entitle the complainant to except without
p. 4
Special leave, the order of the court necessarily implies that the plea is deemed sufficient as an answer, though not necessarily a full and perfect defence. But that -when the complainant is allowed to except to the answer for insufficienCy; ¡n sucp a casej orc|ei. al]0wing the plea to stand for an answer with leave to except thereto for insufficiency only implies that the plea contains matters which if put in the form of an answer would have been available as a defence to the whole or a part the matters which it professes to Cover. But that the complainant is permitted to except to it as an answer because he is- entitled to a further discovery in reference to matters .of the bill That tire complainant is not obliged to except to such an answer, although the order allowing the plea to stand for an answer gives hint liberty to call for a further answer by exceptions for insufficiency ; but ho may file his replication and proceed to take proofs as to-all the material facts charged in the bill, in the same manner as if the plea had been put in as an answer originally.— That liberty to except, to an answer for insufficiency is never , / , . . , , iX , . granted where arr answer on- oath is waived by the compJai-nant’s bill. And that allowing a plea to such a bill to stand for an answer, without any provision in the order that the complainant be at liberty to except for insufficiency, is no evidence that the court consider the allegations of the plea as p full and perfect defence-to'the suit. But.that’as- an answer to such a bill is sufficient as a pleading to put i,it issue every material allegation-in the bill which is not- answéíe'd and admitted by the defendant, under the provisions of the 40th rule of this court, allowing a plea to a bill in which the answer upon oath is waived, to stand as- an answer, must necessarily have the same effect as if the same defence had been put in by the defendant in the form of an answer originally.
Sf 10⅞1"⅝ thereto.,
tAoity to ex-ceptto answers for insufficiency ■waived.
Decree appealed from affirmed, with costs.