Page:Federal Reporter, 1st Series, Volume 5.djvu/217

 ALLIS V. STOWELL. ���a05 ���strike the amended answer from the files as sucn an act of non-conformity to correct practice as leaves the complainant in default, and as entitles the defendant to a dismissal of the suit for want of a replication. Eule 66 provides that "when- ever the answer of the defendant shall. not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeed- ing rule day thereafter, * * • if the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit." �So it appears that if the answer shall be excepted to, or shall be adjudged or deemed insvfficient, a replication is notto be filed. And I do not think that the only method that may be pursued to test the sufQciency or regularity of an answer, is that of filing exceptions. Where a question is presented lîke that here involved, I am of opinion that it mày be raised by. motion to strike the answer from the files, and the rule does not necessarily exclude such a course of procedure. �Whether or not, in a given case, exceptions should be filed, or a motioto shotild be made to strike the pleading from the files, may depend upon the character of the objections which are made to the pleading. Authority upon the correct course of practice is meager, but in Strange v. CoWifta, 2 Veasey & Beames, 162, it was held by Lord Eldon that where a sùpple- mental answer contained not only the new matter which the party had obtained leave to allege, but also other matter which was contained in a former answer, the supplemental answer conld be ordered off the file, on motion. In the case at bar, the pleading involved is an amended and not a sup- plemental answer, but that ought not to make any difference in the application of a rule of practice. �It is understood to be true, as claimed by counsel for defendant, that exceptions to this answer could not, in the present aspect of the case, be filed without leave. Barnes v. Tweddle, 10 Simons, 481. But I hardly think that leave of the court was a necessary prerequisite to a motion to strike the pleading from the files. On the whole, I am of opinion ����