
    McCormick vs. Chamberlin and Moore.
    Where an answer on oath is not waived, if a simple plea to the whole bill is allowed to stand for 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 plaintiff to except without special leave, the order of the court necessarily implies that the plea is deemed sufficient as an answer, although not necessarily a full and perfect defence.
    Bat where the complainant, in such a case, is allowed to except to the answer for insufficiency, the order allowing the plea to stand for an answer, wiffi leave to except thereto, 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 of the matters which it professes to cover; and that the complainant is permitted to except to it, as an answer, because he is entitled to a further discovery in reference to the matters of the bill.
    The complainant, however, is not obliged to except to a plea which is allowed to stand for an answer; although the order, allowing the plea to stand for an answer, gives him liberty to call for a further answer, by exceptions for insufficiency; but he 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 defence, set up in the plea, had been put in as an answer originally.
    Liberty to except to an answer, for insufficiency, is never granted where an answer on oath is waived by the complainant’s bill.
    Allowing a plea to stand for an answer, without any provision in the order that the complainant have liberty to except’ for insufficiency, in a case where an answer on oath has been waived, is no evidence that the court considered the allegations of the plea as a full and perfect defence to the suit.
    This was an appeal, by the complainant, from a decree of the vice chancellor of the eighth circuit, dismissing the complainant’s bill. The bill contained various charges in relation to the dealings between the complainant, through his alleged agent, D. McCormick, and the defendants Chamberlin and Moore; but the principal claims were founded upon alleged dealings with the defendants as copartners in business, at Cuba, in the county of Allegany, previous to 1828, and upon an alleged copartnership between the complainant and the defendants, at Mill Grove, in the adjoining county, subsequent to that time. An answer upon oath from the defendants was waived by the complainant. And each of the defendants pleaded in bar of the whole bill, that there was no copartnership, either as between themselves, or as between them and the complainant, as stated in the bill. These pleas, upon argument before a former vice chancellor of the eighth circuit, were overruled as pleas, but were allowed to stand as answers. Replications were afterwards filed, and testimony was taken as to all the allegations in the bill. The cause was subsequently heard, upon pleadings and proofs, before the present Vice-chancellor, who decided that the only questions in issue in the case were as to the alleged copartnerships.; and that the bill must be dismissed‘if the partnerships were .disproved.
    
      
      T. T. Sherwood, for the appellant.
    
      A. S. Diven, for the respondents.
   The Chancellor.

I think the vice chancellor mistook the legal effect of allowing the pleas of the defendants to stand for answers in this case. Where an answer upon oath is not waived, if a simple plea to the whole bill is allowed to stand for 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 special leave, the order of the court necessarily implies that the plea is deemed sufficient as an answer; though not necessarily á full and perfect defence. But where the complainant is allowed to except to the answer for insufficiency, in such a case, the order allowing the plea to stand for an answer, with leave to except thereto, 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 of the matters which it professes to cover. But 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. The complainant, however, is not obliged to except to such an answer, although the order, allowing the plea to stand for an answer, gives him liberty to call for a further answer, by exceptions for insufficiency. But he 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. Liberty to expept to an answer, for insufficiency, is never granted where ah answer on oath is waived by the complainant’s bill. 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 therefore no evidence that the court considered the allegations of the plea asa full and perfect defence to the suit. But as an answer to such a bill is sufficient, as a pleading, to put in issue every material allegation in the bill which is not answered and admitted by the defendants, under the provisions of the 40th rule of this court, the allowing of the 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 originally been put in, by the defendants, in the form of an answer. The complainant in the present case, therefore, had a right, under his replication, to prove every material allegation in his bill, and to claim the same benefit of such proof as if the answers of the defendants had put such allegations in issue, in the first instance, by a direct denial thereof, by an answer without oath.

The result, however, is the same to these parties, from the conclusions to which I have arrived- from the testimony in this case. There is not a particle of proof to support the allegation, in the bill, that Chamberlin and Moore were in partnership as to their business^at Cuba, or that the defendant Moore had any interest whatever in that business, other than as an ordinary clerk of Chamberlin. It is true D. McCormick swears that the defendant Chamberlin told him that any arrangements which he should make with Moore, in relation to their deal, was equally well as if made with himself. But that is no evidence that Moore was interested in the business; but only that he was entrusted by Chamberlin, in the absence of the latter, to transact his business for him, at his store in Cuba.

Again; I am.satisfied, from the evidence, that no copartnership ever existed between the complainant and the defendants, either at Mill Grove or elsewhere; and that if there was a co-partnership existing between .these two defendants and any other person, in the business which was commenced in the names of Moore & McCormick, at Mill Grove, in the fall of 1828, it was a copartnership between them and D. McCormick, upon his own account and for his own benefit.

The evidence is such as to satisfy me, beyond all reasonable doubt, that after the commencement of the new account upon the complainants’ books, in September, 1826, the property in the hands of D. McCormick, at Mill Grove, was held and used by him for his own benefit exclusively. The acts and declarations of the complainant, subsequent to that time, are wholly inconsistent with the supposition that he considered himself as the real party in interest, in the dealings between his brother and Cham-berlin subsequent to September, 1826, or as one of the copart-ners in the business which was carried on at Mill Grove, after Moore went there, in the fall of 1828. It is not necessary, therefore, that I should examine the question, whether the sworn deposition of D. McCormick could be used as evidence to contradict his testimony in this suit, as to the complainant’s being the copartner instead of himself, without first calling upon him and inquiring whether he had not sworn differently upon a former occasion. ,

The fact being satisfactorily established, that D. McCormick, and not the complainant, was the person who was interested in the business which was commenced at Mill Grove, in the fall of 1828, it is very evident that this suit was not properly instituted, in the name of H. McCormick, for an account of that business ; but that D. McCormick, the real party in interest, should have filed a bill in his Own name. Without taking up time to comment at length upon the testimony in this case, it is sufficient to say that there is nothing, established by the proofs, which would have authorized the vice chancellor to give any relief whatever to the complainant upon the bill, in this cause, which he has permitted to be filed in his name.

The decree of the vice chancellor must therefore be affirmed, + with costs.  