is sufficient equity upon the facts of the bill to require an answer.1 § 279. Sustaining a demurrer - Leave to amend.-Formerly upon the allowance of a demurrer to the whole bill the bill was out of court and no subsequent proceedings could be taken in the cause. The rigor of this rule was subsequently relaxed, and the practice is now regulated in most jurisdictions by express provisions in the statutes or rules of the court. A United States equity rule provides that if upon the hearing any demurrer or plea shall be allowed, "the court may in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable." Such amendments are only allowed when they are necessary to promote or attain the ends of justice in the case. If the court sees that the frame of the bill, as it then stands, is not such as entitles the plaintiff to relief as against the demurring party leave to amend will be refused." And where a demurrer going to the merits of the whole bill is sustained for want of equity, an amendment should not be allowed so as to make a new case with new parties." § 280. The same subject continued. Upon an application to amend after the sustaining of a demurrer for defect in substance, the defendant should present the proposed amendments or otherwise apprise the court of what they are, so that the 1 Jourolmon v. Massengill, 86 Tenn. 81, 90; Battle v. Street, 85 Tenn. 282. 2 Mercantile Nat. Bank v. Carpenter, 101 U. S. 567; Hays v. Heatherly (West Va.), 15 S. E. Rep. 223. An order allowing or sustaining a demurrer is not a final decree unless, in terms or effect, it dismisses the bill and puts the case out of court. Forbes v. Tuckerman, 115 Mass. 115, 119. 3 Equity Rule 35. Hunt v. Rousmaniere, 2 Mason, 305; Dowell v. Applegate, 8 Fed. Rep. 698, where leave to amend so as to enforce a technical claim against a bona fide purchaser was denied, the plaintiff having also had ample opportunity to bring the matter before the court by proper allegations in the amended bill to which the demurrer was taken. Tyler v. Bell, 2 Myl. & Cr. 89. March v. Mayers, 85 Ill. 177. Under the Code of West Virginia, section 12, chapter 125, amendments are permitted liberally as far as promotive of the ends of substantial justice, and upon overruling a demurrer leave is always given the defendant to file his answer. Hays v. Heatherly (West Va.), 15 S. E. Rep. 223; Bank v. Nelson, 1 Gratt. 108; Sutton v. Gatewood, 6 Munf. 398. court may intelligently determine the propriety of allowing or disallowing them. It is not the duty of the chancellor, upon sustaining a demurrer to a bill for the reason that the facts upon which the complainant claims relief are not formally and sufficiently pleaded, of his own motion to allow the complainant to amend. If liberty to amend is desired, it should be applied for, otherwise the bill may be dismissed." 1 Campbell v. Powers (Ill. Sup.), 28 N. E. Rep. 1062, affirming &. C., 37 Ill. App. 308, and holding that an order sustaining a demurrer and granting leave to amend may be modified at a subsequent term, since it is not a final order. 2 M'Dowell v. Cochrane, 11 Ill. 31. Where a demurrer to a bill is sustained upon the ground that it is not formally and technically drawn and the complainant does not apply for leave to amend, the decree should dismiss the bill without prejudice. Alexander v. Moye, 38 Miss. 640. On demurrer to one part of a bill, answer and plea to other parts, it is error to sustain the demurrer and dismiss the bill; leave should be granted to amend the bill. Beauchamp v. Gibbs, 1 Bibb (Ky.), 481. CHAPTER IX. DISCLAIMERS. § 281. Nature of a disclaimer. 283. Form of a disclaimer. 287. Disclaimer by one of several § 288. Remedy of defendant disclaiming by mistake. 289. Dismissal of defendant upon disclaimer. 290. Costs on disclaimer in foreclosure suit. 291. Replication, hearing and costs. 292. Exceptions for insufficiencyTaking off the file. § 281. Nature of a disclaimer.- A disclaimer is where the defendant denies that he has or claims any right to the thing in demand by the complainant's bill and renounces all claim thereto. It partakes of the nature of an answer and may be included in the word "answer" in an order of court. If the defendant had an interest but has it no longer he cannot demur, but should come in and disclaim,3 unless it clearly appears from the bill that he has parted with his interest. A defendant may file a demurrer, plea, answer and disclaimer in the same suit, provided each refers to a separate and distinct part of the bill. If a disclaimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer. The effect of a disclaimer is not to enlarge the plaintiff's estate, but it merely extends to the matters which are at issue in the suit." 11 Daniell's Ch. Pr. (5th ed.) 706; Story's Equity Pleading (10th ed.), 838; Bentley v. Cowman, 6 Gill & J. (Md.) 152. 2 Anon., 3 L. J. Ch. 94. Worthington v. Lee, 2 Bland (Md.), 678, 680; Crane v. Deming, 7 Conn. 887. 4 Crane v. Deming, 7 Conn. 887. Where a statement in an answer amounts to a disclaimer any further statement therein not responsive to the bill is irrelevant and impertinent. Saltmarsh v. Hockett, 1 Lea (Tenn.), 215. 5 Story's Equity Pleading (10th ed.), § 839. 6 Story's Equity Pleading (10th ed.), § 839; 1 Daniell's Ch. Pr. (5th ed.) 709. 7 Burrell v. Smith, L. R. 7 Eq. 899, 466. § 282. Strict rules of pleading applied to disclaimers.— Pleadings in equity are founded in the purest principles of ethics, and especially in a disclaimer evasions and negatives pregnant will not be tolerated.' Thus, where creditors sought to reach and subject the real estate of a deceased debtor, alleging that the defendants were heirs, a disclaimer denying to themselves all claim as "the heirs" was deemed open to objection; for it not only left the defendants at liberty to claim as devisees, but if it were literally construed it would be only an averment that they were not all the heirs.2 $283. Form of a disclaimer. The form of a mere disclaimer is as follows:- The disclaimer of A. B., the defendant, to the bill of complaint of C. D., complainant. This defendant [here follow the words, of course, which precede an answer] saith that he doth not know that he, this defendant, to his knowledge or belief, ever had, or did he claim, or pretend to have, nor doth he now claim, any right, title or interest of, in or to the estates and premises situate, etc., in the said complainant's bill set forth, or any part thereof; and this defendant doth 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.]" 3 § 284. Oath and signature. A disclaimer is regarded as in the nature of an answer, and is therefore to be put in under oath, when the defendant is required to answer under oath, but not otherwise. And being designed to operate as a release, it must be signed by the defendant himself, and his signature attested by some person competent to be a witness." $285. Disclaimer at the hearing. Where a person does not disclaim on the record he may do so by his counsel at the bar, in which case the fact should be noticed in the decree. 1 Bentley v. Cowman, 6 Gill & J. (Md.) 152. 4 Dickerson v. Hodges, 43 N. J. Eq. 45, 46. See Ladbroke v. Bleaden, 16 2 Bentley v. Cowman, 6 Gill & J. Jur. 629. 152, 154. 5 Dickerson v. Hodges, 43 N. J. 3 Story's Equity Pleading (10th ed.), Eq. 45. § 844, n. Upon such a disclaimer he may be dismissed, but without costs; and circumstances may render it expedient to retain him on the record, as, for instance, if he have documents in his possession relating to the suit which ought to be delivered up, in which case the master will be directed to make inquiry.' But in proceedings by petition, under a statute, for the appointment of a new trustee, there is some doubt whether a disclaimer at the bar by the original trustee will divest his estate.2 § 286. Answer accompanying disclaimer.-A disclaimer can rarely be put in alone. For if the defendant has been made a party by mistake, never having had an interest in the matter in question, yet as he may have had an interest which he afterward parted with, the plaintiff may require an answer sufficient to ascertain whether that is the fact or not;3 and if such is the fact, an answer may be necessary to enable the complainant to make the proper party, instead of the defendant disclaiming. So an agent charged with personal fraud, or a married woman under the same circumstances, cannot by disclaiming interest avoid answering fully. A party to an account cannot by disclaiming an interest in the account protect himself by such disclaimer from setting out his account. And generally a defendant cannot, by a disclaimer, deprive the plaintiff of the right of requiring a full 1 Teed v. Carruthers, 2 Y. & Coll. Oxenham v. Esdaile, McL. & Y. 540. 31, 40, 41. Generally speaking, a mere disclaimer is scarcely to be deemed sufficient or proper, except where the bill simply alleges that the defendant claims an interest in the property in dispute, without more Story's Equity Pleading (10th ed.), § 838a. 2 In re Ellison's Trust, 2 Jur. (N. S.) 62, where Wood, V. C., said such a disclaimer was not like a disclaimer on a bill, as the latter is entered of record and the former is not. But it was held in Foster v. Dawber, 1 Dru. & Sm. 172, a petition under the same statute, that a renouncing trustee could make an effective disclaimer at the bar. 3 It was said by Alexander, L. C. B., in Oxenham v. Esdaile, McL. & Y. 540, that almost every question upon a disclaimer depends upon the particular circumstances of the case. 41 Daniell's Ch. Pr. (5th ed.) 706; Bulkeley v. Dunbar, 1 Anst. 37. Or the principal himself. Bromberg v. Heyer, 69 Ala. 22. 6 Whiting v. Rush, 2 Y. & Coll. Ex. 546. "Whether her answer may ultimately be made evidence in the cause is another question." Per Alderson, Baron, S. C. 552. 7 Glassington v. Thwaites, 2 Russ. 458. |
