them as he shall be advised, and throws himself on the protection of the court.20 But if such a defendant has any substantive defense, he should plead the same.21 § 191. Signature and seal to answer. The answer must be signed individually by one or more solicitors of record. It has been held that under the new rules the defendant need not sign the answer. If the former practice is followed, an answer must be signed by the defendant, making it; even, it seems, when an answer under oath has been waived, unless he answers by guardian, when the latter should sign it, or unless an order has been obtained dispensing with such signature on account of the defendant's absence, or for some other reason.5 A person answering in a dual capacity need sign but once. An answer by a corporation must be under its corporate seal. advisable to have the seal attested by one of the corporate officers. When an answer is made without oath, the signature of the defendant should also be attested. This is usually done by his solicitor, 10 1 In such a case it is § 192. Oath to answer. Under the former practice, unless an answer, under oath, was waived in the bill, a defendant, if a natural person, was obliged to swear; or if conscientiously scrupulous of taking an oath, in lieu thereof to make solemn affirmation to the truth of the facts stated by him. No oath was necessary to an answer by a corporation.3 20 Chancellor Kent in Mills V. Dennis, 3 J. Ch. (N. Y.) 367, 368. 21 Holden v. Hearn, 1 Beav. 445, 455; Lane v. Hardwicke, 9 Beav. 148, 149. $191. 1 Eq. Rule 24. 2 Kinney v. Rice, 238 Fed. 441. 3 Story's Eq. Pl., § 875; Davis v. Davidson, 4 McLean, 136; Bayley v. De Walkiers, 10 Ves. 441; Fulton Bank v. Beach, 2 Paige (N. Y.), 307; Denison v. Bassford, 7 Paige (N. Y.), 370. 4 Anon., 2 J. & W. 553; Daniell's Ch. Pr. (5th Am. ed.) 733. 5 Story's Eq. Pl., § 875; Lake, 6 Ves. 171; 6 Ves. 285. 6 Anon., 2 J. & W. 553. V. v. Gwillim, 7 Haight v. Proprietors Morris Aqueduct, 4 Wash. 601, 605; Monarch Vacuum Cleaner Co. v. Cacuum Cleaner Co., 194 Fed. 172. 8 Daniell's Ch. Pr. (5th Am. ed.) 735, note 2. 9 Daniell's Ch. Pr. (5th Am. ed.) 738. 10 Daniell's Ch. Pr. (5th Am. ed.) 738. § 192. 1 Fulton Bank v. Beach, 2 Paige (N. Y.) 307; Daniell's Ch. Pr., (5th Am. ed.) 735. 2 Eq. Rule 91 of 1842, which so far as it applies to cases in which an oath is required, re-enacted in Eq. Rule 78 of 1912. See U. S. R. S. § 5013. 3 Union Bank of Georgetown v. The present rules are silent upon the question as to whether an answer must be verified. They provide: "Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any State or Territory, or of the District of Columbia, or any clerk of any court of the United States, or of any Territory, or of the District of Columbia, or any notary public." 5 It has been held that under the new rules an answer need not be verified even when discovery is sought, the defendant's discovery being limited to the answers to his interrogatories which are not a part of the pleadings.6 An answer can be verified without the United States before commissioners appointed for that purpose; or probably before any secretary of legation or consular officer at the post, port, place, or within the limits of his legation, consulate, or commercial agency. The following form of oath or affirmation is given by Daniell in his valuable work on Chancery Practice: "You swear, or solemnly affirm, that what is contained in this your answer (or plea and answer), as far as concerns your own act and deed, is true to your own knowledge, and that what relates to the act or deed of any other person or persons, you believe to be true."9 When sworn to in a foreign country, it seems that it must be "administered in the most solemn form Geary, 5 Pet. 99, 110, 8 L. ed. 60, But 4 Although the English Judicature Act and orders and rules are silent upon the subject, the English courts do not require an oath to be annexed to the defense in equity, which is the pleading corresponding to our answer. The writer is indebted for this information to the courtesy of Francis A. Stringer, Esq., of the Central Office, Royal Courts of Justice, one of the editors of "An- 6 Kinney v. Rice, 238 Fed. 441, 8 U. S. R. S., § 1750. Read v. Consequa, 4 Wash. 335. 9 Daniell's Ch. Pr., ch. 15, § 2, p. 270; Story's Eq. Pl., § 872, note 4. observed by the laws and usages" of that country.10 Every alteration and interlineation in the answer should be authenticated by the initials of the officer who administers "the oath." When the verification of an answer is in the form of an affidavit, the name of the defendant making it must be subscribed at the foot of the affidavit. When in the form of a certificate of the officer administering the oath, the defendant's name should be subscribed at the foot of the answer.11 § 193. Motions to take answers off the file. When an answer is in any respect irregular,1 or is filed by a person not named as a defendant in the bill,2 or is filed too late, it may upon the plaintiff's motion be taken off the file. This may also be done when the paper purporting to be an answer is so evasive that it is in fact no answer. If it is taken off the file for an error in form, the court may allow the same paper to be corrected, and then filed anew.5 By setting the cause down for a hearing upon bill and answer, or by filing a reply or taking any other step in the cause without raising the objection, such a defect would be waived. A failure to enter an order taking a bill as confessed, does not authorize the filing of an answer after the prescribed time.8 "Exceptions for insufThe sufficiency of an § 194. Exceptions for insufficiency. ficiency of an answer are abolished."1 affirmative defense may be tested by a motion to strike out the same. It has been held that this rule does not apply to a defense by confession and avoidance. In case of insufficiency in admissions or denials, the matters not properly denied are deemed confessed, except as against a person non compos and not under 10 Read v. Consequa, 4 Wash. 335. 11 Daniell's Ch. Pr., (5th Am. ed.) 743; Hathaway v. Scott, 11 Paige (N. Y.) 173, 176; Pincers v. Robertson, 9 C. E. Green (24 N. J. Eq.) 348. § 193. 1 Bailey W. M. Co. v. Young, 12 Blatchf. 199. 2 Putnam v. New Albany, 4 Biss. 365, 367. 3 Allen v. Mayor and Board of Ed., 18 Blatchf. 239. 4 Tompkins v. Lethbridge, 9 Ves. Fed. Prac. Vol. I-71 178; Smith v. Searle, 14 Ves. 415, 5 Bailey W. M. Co. v. Young, 12 Blatchf. 199. 6 Besson & Co. v. Goodman, et al., 147 Fed. 887. 7 Fulton Bank v. Beach, 2 Paige (N. Y.), 307; Glassington Thwaites, 2 Russ. 458, 461. 8 Allen v. Mayor, 7 Fed. 483. 2 Eq. Rule 33; infra, § 237. V. 3 Churchward Int. Steel Co. V. Bethlehem Steel Co., 233 Fed. 322. guardianship. By the former practice, exceptions to the insufficiency of the discovery could be filed within a limited time,5 except in the case of an answer by an infant or other person under a disability. Where such an exception was sustained and a further answer put in, which the plaintiff deemed still insufficient, by the former English practice he had three weeks wherein to refer the same to a master upon the old exceptions; otherwise the further answer was deemed sufficient." If the further answer was found insufficient, the defendant was required to put in a third answer; and if that too was found insufficient, he was committed to the Fleet, and examined upon interrogatories.8 When an order was obtained after answer, allowing the plaintiff to amend his bill, and requiring the defendant to answer the amendments and the exceptions to the answer to the original bill together; upon such answer the plaintiff could only file new exceptions for a failure to fully answer the amendments.9 The insufficiency of a defense in an answer could not be thus determined.10 § 195. Supplemental answers. A supplemental answer was formerly filed to bring to the attention of the court some fact which was not inserted in the original answer through mistake or ignorance,1 or which had occurred subsequently to the filing of the same. They could only be filed by leave of the court, which might impose terms upon the applicant.3 4 Eq. Rule 30. 5 Read v. Consequa, 4 Wash. 335. Uhlmann v. Arnholt & S. B. Co., 41 Fed. 369; Colgate v. Compagnie Francaise, 23 Fed. 82. But see United States v. McLaughlin, 24 Fed. 823; McCormick v. Chamberlin, 11 Paige (N. Y.), 543; Sheppard v. Akers, 1 Tenn. Ch. 326. 6 Copeland v. Wheeler, 4 Brown, Ch. C. 256; Lucas v. Lucas, 13 Ves. 274; Micklethwaite v. Atkinson, 1 Coll. 173; Daniell's Ch. Pr. (5th Am ed.) 169. 7 Smith's Ch. Pr. (2d ed. 1836), 285. 8 Smith's Ch. Pr. (2d ed. 1836), 285, 286. 9 Partridge v. Haycraft, 11 Ves. 570, 581; Smith's Ch. Pr. (2d ed. 1836), 286. 10 Manhattan Tr. Co. v. Chicago El. Traction Co., 188 Fed. 1006. $195. 1 Smith V. Babcock, 3 Sumner, 583; Williams v. Gibbes, 20 How. 535, 15 L. ed. 1013; Caster v. Wood, 1 Baldw. 289; Suydam v Truesdale, 6 McLean, 459. 2 Kelsey v. Hobby, 16 Pet. 269, 277, 10 L. ed. 961, 963; Talmadge v. Pell, 9 Paige (N. Y.), 410, 413. 3 Smith v. Babcock, 3 Sumner, 583; Caster v. Wood, 1 Baldw. 289. The Equity Rules now provide: "Upon application of either party the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in controversy or a part thereof." This provides merely for supplemental answers of the second class. Such supplemental answers have been little considered in the books. Their functions might also be performed by cross-bills. It was too late after answer and decree to object to the regularity of a proceeding in which facts were set up by petition when crossbill or supplemental answer would have been the proper practice.5 §196. Disclaimers. A disclaimer by the defendant is a pleading by which he renounces all claim to property which the plaintiff seeks in his bill to obtain. It is said that it is distinct in its substance from an answer, although sometimes confounded with one. By the former practice, it must in most cases be accompanied by an answer, for where a defendant had been made. a party by mistake, having had an interest with which he has parted, the plaintiff might require an answer sufficient to ascertain what the facts were, and to whom he had transferred his interest. Moreover, a defendant, although he may disclaim an interest, cannot disclaim a liability. Under the present rules it has been so held where the bill charged conspiracy with other defendants to create a cloud on a title which the bill prayed to have removed. The only cases in which a disclaimer without an 3 4 Eq. Rule 34. 5 Kelsey v. Hobby, 16 Pet. 269, 277, 10 L. ed. 961, 963; Coburn v. Cedar V. L. & C. Co., 138 U. S. 196. 222, 34 L. ed. 876, 886. § 196. 1 Mounsey v. Burnham, 1 Hare, 15. 2 Story's Eq. Pl., § 838. 3 Story's Eq. Pl., § 838. See Ellsworth v. Curtis, 10 Paige (N. Y.), 105; Carrington v. Lentz, 40 Fed. 18. 4 Glassington v. Thwaites, 2 Russ. 458; Graham v. Coape, 9 Sim. 93, 102; s. c., 3 Myl. & Cr. 638. 5 McDonald v. McDonald, 203 Fed. 724. An averment that the defendant, prior to the beginning of the suit, had ceased selling an alleged infringing machine, and that it had no intention of using or selling any machines embodying the features of the patent, was held not to be such a disclaimer as would deprive the |