WHITTEMORE V. PATTEN.
ground that the tax, or some portion, was not authorized bylaw, W'onld, I think, lead to most aIarmlIig results. It would be the direct opposite of one of the acknowledged sources of equIty jUrisdIction, whichls that it exists when necessary to prevent a great number of suits. This would, I think, inevitably cause an immense number."
There is in the statement of this motion that, in my judgment, shows any right of intervention. The motion will therefore be dismissed.
WHITTEMORE v. PATTEN et aL (CIrcuit Court, 8. D. Callfornia. May 10, 1897.)
EQUITY PLEADING-ExCEPTIONS TO ANSWER.
Exceptions will lie to an answer for insufllciency or Impertinence, even though answer under oath is expressly waIved; the bill being one for renef as well as for discovery.
This was a suit by Charles A. Whittemore against William H. Patten and Norman Stafford, copartners under the name and style of Patten & Stafford. The cause was heard on exceptions to the answer. Haines & Ward, for cornplainant. Trippet & Neale, for defendants. WELLBORN, District Judge. The question now under submission is, not whether the answer is insufficient or impertinent in the pointed out by the exceptions, but simply whether or not exceptions for insufficiency or impertinence will lie to an answer waives an anwhere the bill, being one for relief as well as swer under oath. If this question be determined negatively, of course the exceptions, for that reason, will be disallowed. If, however, the determination of the question is in the affirmative, then the parties are to have .further hearing as to the merits of the several exceptions. The authorities are not uniform on the question above stated. Defend:rnts' contention, that exceptions will not lie to an answer, for insufficiency or impertinence, where the oath is expressly waived in the complaint, finds support in the following cases: Sheppard v. Akers, 1 Tenn. Ch. 326; Smith v. Insurance Co., 2 Tenn. Ch. 599; Bartlett v. Gale, 4 Paige, 504; McCormick v. Chamberlin, 11 Paige, 543; U. S. v. McLaughlin, 24 Fed. 823. In Smith v. Insurance Co., supra, the court says: '
"An answer, where relief is sought, properly consists of two parts: First, of the defense of the defendant to the case made by the bill; and, secondly, of the 'lxamination of the defendant on oath as to facts charged in the bill, of which a discovery is sought. · · · "If this .dpuble office of an answer is kept In mind, the propriety of the rule which disallows exceptions to the sufficiency of an answer will be obvious. For, as has been observed by Chancellor Walworth, the answer of a corporatlon, without oath, where the complaInant does not require it to be sworn to, or supported by the sworn answers of the officers of the corporation, cannot be said to answer the double purpose of a pleading to put the material matters of the bill in Issue, and of an examination of the defendant for the purpose of obtaining ills evidence jn support of the complainant's allegations; and it is for this latter . purpose alone that the complainant makes a witness of his adversary in
81 r!lDJIlRAL REPOltTJllL
the cause. Lovett T. A..ssoclatlon, e Paige, 59. No except:fo!l.s wm De to the sufficiency of an answer as a pleading, as well as to its sufficienc:r .. a discovery. But, to use the 'words of the same great chancellor In another cue, as the general dental of all the matters of the bill not before answered, with which the answer usually concludes, Is Ilufficient as a pleading to put the BeVeral matters of the bill in Issue, the principal object of the objections for insutllclency ill to examine the defendant on oath for the purpose of the discovery merely. Stalford v. Brown, 4 Palge, 00. The general denial with which an answer usually concludes Is, 'without this, that any other matter in the bill contained Is true.' This traverse was at one time thought to be essential to an illsue, until otherwise ruled by Lord Macclesfield In an anonymous Calle, 2 P. Wms. 86. It exceptions were taken to the sufficiency of an answer not Ilworn to, as a pleading, the defendant, by adding the general traverse, would cover the defect, and nothing would be gained. Miller v. Avery, 2 Barb. Ch. :590. ExceptioDll of this character would con!lequently be of no advantage, and are never made. · · · . "1 am clearly of opinion, therefore, that exceptioDll to the answer of a corporation under it!! corporate seal 'alone,as a discovery, will not lle, and that exceptloDll to such an ansWel"as a pleading would be a useless form."
The concllUlions of the court announced in the last paragraph of the above quotation are not, in my opinion, well drawn; and I shall adopt the principle of the cases below cited, that all. answer may be objected to beeauseof insufficiency el"en though answer under oath be waived by the complaint. Uhlmann v. Brewing Co., 41 Fed 369. Equity we 41 does not provide that, where answer. under oath is waived in the bill, the answer shall not be evidence for any purpose; but the provision that, under the circumstances therein stated, the answer sliall not be evidence in the defendant's favor. Manifestly, the admission of the answer, however, may used by the complainantin support of his bill. And the federal courts have repeatedly held although not compellable to answer llnder oath, can qe requ;red to.answer fully every material allegation of the bill. Ganlewell }1l'e-Alarin Tel. Co. v. Mayor, etc., 31 Fed. 312; Colgate v. Compagnie du Telegraphe, 23 Fed. 82. Nor is the other of said con· clusions, that an exceptiop to an answer as a pleading would be a use· less form, tenable. On the' contrary, it has been well said that the complainant "is entitled to .an to every material allegation in his bill of complaint. iffor rio q±her reason; in order, that he may know exactly what is admitted, and what he. il'l,req.uired to prove." McClaskey v. Barr, 40 Fed. 559.. See, also;:Field' v.. Co., 65 Fed. 279. In the last-cited case, answer under .oath was expressly waived, anq,yetthe court considered the exceptions upon their merits; overruling them,'lt is'true, not, however, because exceptions were inaPIJropriate to a case,where answer under oath was waived, but in ;the la..n,guageof the C01,1rt, "the answers by admission ordeniaJ llleetJhe substantial allegations of fact contained in the bill, and, being sufficient as pleadings, cannot be held to be insufficient on any other grounds." , While it is trUe that,'''if the neither admits nor deniesthe of thebUI, they must be proved upon the final hearing" (1;oung v.. Grundy, 6 Cranch, 51, 7 Crt\nch, 549), yet where a denial is challenged on the groundthatit is evasive, or a negative pregnant, the complainant cannot certainly know what is thereby admitted or denied unless he can invoke a decision of the court on the controverted question in advance of the final hearing. There is no
I. I. CAllIlPLOW WOBD V. J'DfK1o
otlier proceC1ure for the attainment of this end than by exceptions to the answer. The other grounds urged by defendants against the consideration of the exceptions, I think, are not well taken. In this connection, however, it should be observed that whether or not the exceptions sufficiently point out the defects intended to be complained of are questions,to be determined when the exceptions are severally examined on their rel!lpective merits. I hold that exceptions to an answer for insufficiency or impertinence will lie, ,even though answer under oath be expressly waived by the bill. Further hearing on the exceptions is continued to such time as may be hereafter fixed by order of the court.
J. t. CASE PLOW WORKS et at v. FINKS.
(CIrcuit Court, of Appeals, Fifth CIrcuit. May 25, 1897.) No. 582.
'l'he provisions of the act Of August 13, 1888, authorizing the bringing of suits, without leave of court, against receivers appointed by federal courts, In respect to any act or ,transaction In carrying on the business connected with the property In their Charge, does not authorize the bringing of a SUit, , wttho'ut leave, against such a receiver, to establish a right to the property placed In hls custody, adverse to his right thereto.
AGAINST RECBlVEIU'l-LEAVE OF COURT.
'Appeal from 'the OircUit Court of the United States for the Ndrthern District of Texas. ' George Clark, D. O. Bolinger, and J. B. Scarb()rough, for appellants. ,A.P. McCormick, ,Jr., for appellee. " Before PARDEE and McOORMICK, CircUit Judges, and NEWMAN, District Judge! NEWMAN, District: Judge. This is an appeal from an interlocutorydeqreeof the United circl1itcourt for the Northern district December 5, 1896, on a bill filed by the Manser & Teband Washburn &,Moen Manufacturing betts Implement E. Dupree et a1. Frank F. Finks was appointed Company, property described in the bill, as well as the property receiver of all conveyed by ,vy.E. Dupree t9 one Birkhead, trustee, by chattel mortgage and deed of trust. 'j;he proper:ty embraced in this order, which passoothereby into the hands of Finks as receiver, consisted of a large stock of goods, wares, and merchandise, as well as certain real estate in Waco,'l'ex. Subsequently, on December 12, 1896, the presiding judge dli!pied an application to diss9lve the injunction, and to modify the . Order the receiver. The of Finks was confirmed, and he .as proceed with the administration of the trust. On February 6, 1897, Finks, as receiver, filed in the original case his interlocutory ,petitional- bill against the J. J. Case Plow Works et aI., in which he represented that the J. I. Case Plow Works and five other companies or firms had brought suit
. 8111'.-841 .