text:
    King vs. Clark.
    December 20.
    Where an injunction has been granted upon a bill of discovery in aid of a do. fence at law, it is a matter of course to dissolve the injunction as soon as the answer of the defendant is perfected, whether the facts charged in the bill are admitted or denied.
    As a general rule, a party who has fully answered a bill of discovery is entitled to costs ; and costs are given against the plaintifij of course, if the charges in the bill are denied.
    Where the material allegations in a bill of discovery are admitted by the answer, and the defendant also admits that he was applied to by the complainant and refused to make the discovery previous to the filing of the bill, he will not be entitled to costs.
    The cause is never brought to a hearing upon a mere bill of discovery; but as soon as the answer is perfected, the defendant is entitled to move for posts,
    This was an application to dissolve an injunction, which had been obtained upon a bill of discovery to aid a defence at iaw, and also for the costs of the defendant in answering the • bill.

      Joseph Blunt, for the complainant.

      W. S. Johnson, for the defendant.
   The Chancellor.

An injunction granted upon a mere bill of discovery to aid a defence at law, is only intended to delay the trial until such discovery can be obtained. It is therefore a matter of course to dissolve the injunction as soon as the answer of the defendant is perfected, whether he admits or denies the facts charged in the bill. As the only object of this bill is to obtain the defendant's answer on oath, to be used on the trial at law, there can be no ground for restraining the party from proceeding at law after the discovery has been obtained.

As a general rule, the defendant who has fully answered a bill of discovery is entitled to costs. If the facts charged in the bill are denied, the plaintiff must pay costs, of course, as there is no way of contesting the truth of the answer. The case is never brought to a hearing, either upon bill and answer, or upon pleadings and proofs. But after the time for excepting has expired, the defendant is entitled to move for costs, to be taxed against the plaintiff. (Mosel. Rep. 185. Woodcock v. King, 1 Atk. 286.) If the complainant wishes to protect himself against costs, on a bill of discovery, he must apply to the defendant in the first place to give him the desired information, or to admit the facts of which a discovery is sought; and he should set out such application in his bill. In that case, if the defendant admits the facts stated in the bill, and that he refused to give the desired information, without showing any sufficient excuse for such refusal, he will not be entitled to costs. (Weymouth v. Boyer, 1 Ves. jun. 416. Bennet v. Sanders, 4 John. Ch. Rep. 503.)

There is nothing in the bill or answer in this case to entitle the complainant to claim an exemption from costs. The injunction must therefore be dissolved, and the complainant must pay the costs of the defendant in this suit, to be taxed.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Hunt vs. Holland & Miller.
    December 20.
    Where a party is entitled to amend his bill as of course under the rules of the court, he may enter an order of course to amend ; and it is not necessary to set out the amendments in the order.
    If a bill which has been sworn to is amended under the 190th rule, and a new engrossment of the bill and amendments is filed, the defendant is entitled to a copy of the bill as originally filed, as well as of the amended bill, unless the amendments are particularly designated in the copy of the latter which is served.
    This was an appeal from an interlocutory decision of tile vice chancellor of the eighth circuit. The complainant filed a bill as a judgment creditor, and obtained the usual injunction. A few days afterwards, and before either of the defendants had appeared, he discovered that certain allegations required by the 189th rule of the court had been omitted in the bill. His solicitor immediately applied to rhe clerk, and obtained a common order to amend his bill, in comformity to the 190th rule. The bill was amended by re-drawing the bill and incorporating therein the amendments, together with the matters stated in. the original bill, to which- the amendments were merely additions. The bill thus prepared was reswom, and endorsed “amended bill.” It was then filed, but the clerk did not actually attach it to the original which remained on file. Neither were the amendments particularly marked, so as to distinguish them from the original matter. The defendants afterwards appeared in the cause, and the complainant’s solicitor served a copy of the bill as amended, with a notice of tire order to answer the same. The defendants thereupon applied to the vice chancellor to set aside -the order to amend the bill, for irregularity, and to take the amended bill off the files of the court. The vice chancellor denied the application, with costs; from"which decision the defendants appealed to the chancellor.
    The following is the opinion of the vice chancellor, which was pronounced at the time the application was denied by him:
    Gardner, V. C. By the 43d rule, if a bill has not been sworn to, the complainant may amend, at any time before plea, answer' or demurrer put in, of course, without costs. By the 190th fuie, a creditor’s bill may be amended of course in the same manner as bills not sworn to, if the amendments are merely in addition to, and not inconsistent with the original bill.
    • By this rule, the complainant had a right to amend his bill at any time before answer. The amendments were in fact made before the appearance of the defendants. It does not distinctly appear from the affidavits whether the amendments were incorporated into the rule in lieec verba, or whether any reference was made in the rule to the amendments and to the original bill so as to enable the defendants, by the assistance of the rule, clearly to distinguish the precise amendments authorized by the rule. If this was necessary to prevent confusion in the records of the office, I am bound to presume it done in the present case.
    The practice in the supreme court at present is to enter a rule that the party have leave to amend his pleading without specifying particulars. In the case of bills sworn to, perhaps a stricter practice ought to prevail. I cannot perceive that the defendants could be prejudiced by the course adopted. They must answer the bill and amendments together. If the amendments and the bill were engrossed together, and thus served, it would seem that by thus presenting the whole matter to be answered at one view, the defendants would rather be aided than embarrassed. Perhaps the notice to answer ought in strictness to apprize the defendants that the bill had been amended, but this is not objected to upon the present njotion. Upon the whole, I am of opinion that the motion be denied, with costs.
    N. Bacon,

    for the complainant, insisted that he was entitled to an order of course to amend in this case under the 43d and the 190th rules of this court.

      H Gay,

    for the defendants. There should have been either an affidavit, or a special order of the vice chancellor, as the foundation of the order granting the complainant leave to amend; and the amendment should have been incorporated into the rule. The 190th rule of this court, permitting a judgment creditors bill to be amended, of course. does not dispense with the necessity and reason of an affidavit, See. as its foundation, to be filed, &c. or a special order for that purpose. It was intended only to dispense with notice to the opposite pai ty, as on bills not sworn to, under the 43d rule ; and the reason, if any, why a creditor’s injunction bill should be more favored than others, seems to be, that the party should not be obliged, as under the 43d rule, to give notice, &c. whereby the debtor might by stratagem transfer his choses in action or pay other debts, and thereby defeat the object of the complainant’s bill. The other reasons, which are applicable to sworn bills, apply to this : that parties shall not be permitted to intermeddle with papers on file, which they have deliberately sworn to, without reasonable cause shewn. There should also have been something here shewing-that this was a creditor’s bill, and what were the omissions, &c. In the amendments, of all bills not sworn to, it would seem to be the better practice, under the 43d rule, that there should be some foundation for the order entered by the clerk, other than the suggestion of the party. The amendments also should have been incorporated in the order. The vice chancellor was of this opinion, but in the absence of proof, he thought he was bound to presume it done. I think it satisfactorily appears from the affidavit of the defendant’s solicitor and the supposed amended bill, that this was not done; and it is not stated in the affidavit of the complainant’s solicitor that it was done. The supposed amended bill was not attached, nor did it refer to the original bill, or in the least distinguish wherein the amendment consisted, but was in form an original bill. This clearly was irregular. The complainant should have attached his amendment, if it were such as could not have been interlined in the original bill, to the original bill, and referred thereto, and clearly distinguished the parts of the original bill where the amendments were to be inserted. This practice seems not only to have been strictly required by the English court of chancery, but by our own court. The cases of Luce v. Graham, (4 John. Ch. Rep. 170,) and Willis v. Evans, (2 Ball & Beatly, 225,) are directly in point. The court unhesitatingly there adopt the general principle, and, in their own language, say that “ amendments should be distinctly shown, so that they may be easily perceived. They are either to be made by interlineation, or to be inserted in the margin, if short, or by being separately engrossed and "annexed to the original bill.” The same principle is contained, and the foregoing authorities cited in its support, in the case of The Barrington Iron Co. v. Campbell, (2 Paige, 159.) There the amendments were made in the usual manner, by attaching the amendments to the bill, and designating where they were to come in or be inserted; but the copy served contained the matter of the original bill, as well as the amendments, without any such designation.
    An original and amended bill are as one, and the records are always fixed together. (4 Brid. Dig. 77, sect. 65. 2 Atk. 119. 1 Paige, 124.) It may be said that the cases in Johnson and Paige, above cited, were where the defendants had put in their answer before the amendments, and that the reasons therefor are not applicable to the case before the court. The chancellor in both cases, in adopting the principle contended for here, does not proceed upon that ground at all, or in the least allude to it; but speaks of it in general terms, as the familiar and well established practice in all cases ; nor does the reason of the rule cease with those cases, but applies to the present case. Perhaps one reason, which might be urged in the case of an answer before amendment, that the party should be apprised of the new matter, to be answered in some significant manner without comparison, as a matter of convenience merely, does not exist in this case. Also one reason for the rule for which we contend, existing under the English practice, does not apply here; which was, that the defendant in England is obliged to procure an office copy of the bill at his own expense, and therefore to prevent the increased and unnecessary expense of taking copies of amendments, the complainant should not engross therein the original bill; still the same evil enters into our practice, which the English practice intended to remedy, on the final taxation of costs; and for that reason it is that an amended bill adopting all the allegations and charges of the originial bill may be referred for impertinence. (Hoff. Master, 323. 2 Ball & Beatty, 225.) The complainant having entered his order granting him leave to amend, should have pursued it, and not have filed an original bill. The defendants have a right to know, before they answer, whether the complainant has legally entitled himself to file such bill. The copy of the bill served purported in every respect to be an original, and the notice to answer did not designate it as an amended bill. The supposed amendment was inconsistent with the original bill.
    The vice chancellor improperly awarded costs against the defendants.
   The Chancellor.

It was not necessary in the order for amendment, under the 190th rule, to specify in the order the particular amendments which were intended to be made. As the complainant had a right in this case to make any amendments to the original bill, which were merely in addition thereto, and not inconsistent with what was contained therein, it was sufficient to enter an order to that effect; and it would have been an useless expense to set out the amendments at length in the order. The ordinary practice under the 43d rule, and in other cases where the complainant has a right of course to amend a bill not sworn to, is to enter a common order that he be permitted to amend his bill as he may be advised, without specifying the amendments in the order. The order entered under the 190th rule should be the same in substance, adding thereto the restriction contained in that rule. There is no pretence here that any part of the original bill has been left out, or that the additional matters are inconsistent with the original bill. It was probably necessary, in this case, to re-engross the original matter with the amendments, as the latter were numerous and long. And from an examination of the whole, it is evident the amendments could not have been verified by oath in such manner as to make them intelligible, without incorporating them in this manner with the original matter, or preceding them with recitals, which would have made them longer than the whole amended bill now is, including the original matter. ' If it was necessary to attach the amended bill to the original bill on file, it was the business of the clerk to do it. But in point of fact, it is seldom done, as all the papers in the cause are usually placed together in the same bundle, and without sealing the original bill and the amendments together where there has been a re-engrossment of the whole bill.

The amendment in the case of Luce v. Graham, (4 John. Ch. Sep. p. 172,) and the Bennington Iron Co. v. Campbell, (2 Paige's Rep. 160,) was in a different stage of the suit, and where it became necessary to discriminate between the original bill and the amendments. As no copy had been served, and no answer put in or appearance entered, at the time of the amendment in this case, there could have been no particular use or benefit to the defendants, or to any one, in having the amendments marked as such in the re-engrossment, or in the copy of the amended bill which was served. But as an in-j unction had been issued, which the defendants might apply to have dissolved, upon the matter of the original bill only, they might probably have compelled the complainant to furnish them with a copy of the bill, with the jurat annexed thereto, as originally filed, in addition to the copy of the bill as amended. An application to vacate the order to amend, and to take the amended bill off the files, however, was not the proper mode of effecting that object.

As the defendants founded their claim to relief upon a question of strict legal right, and not upon any merits in their application, they were very properly charged with the costs to which they had unnecessarily subjected the other party.

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


text:
    Leggett vs. Sellon and others.
    December 20.
    Infants cannot be made parties to a bill for the sake of discovery merely, as they do not answer on their own oaths.
    The answer of an infant, by his guardian, cannot be excepted to for
    This was a demurrer to a bill of revivor and supplement, filed against the infant heirs of John Sellon, deceased, and against the other defendants in the original suit. The object of the original bill was to compel a specific performance of an agreement between the complainant and John Sellon relative to a small piece of land in the city of New-York. The bill that at the time of the agreement, Sellon was the owner of the premises, although the legal title was in the defendant Walton, as his trustee. It was also alleged in the bill that previous to the filing of the same, Walton conveyed the premises to Dubois, another of the defendants, and that Sellon also executed á conveyance to Dubois of all his interest therein. Sellon died without property before he had his answer to the bill, and no person had taken out letters of administration on his estate. The infant defendants, by their guardian ad litem, demurred to the bill of revivor and on the ground that the complainant had not shown a case entitling him to a discovery, or to relief as against them.

      T. Fessenden, for the complainant.

      J. Lynch, for the infant defendants.
   The Chancellor.

I cannot discover that the children of John Sellon have any interest whatever in this controversy. If the allegations in the bill are true, and for the purposes of deciding this question they must be presumed to be true, had parted with all his legal and equitable interest in the premises in controversy before the commencement of the suit. The only object, therefore, of mating him a party was to a discovery, and personal relief against himself in case the agreement could not be specifically performed. The controversy, so far as it affected the right to the land, was between the complainant and the grantees of Sellon and of his trustee. « And upon the death of Sellon, his heirs at law took no estate, either legal or equitable, in the premises. It is at least doubtful whether the children of Sellon would be proper parties to this suit, even if their father had left other property which came to them by descent. And they could not be made liable in any case for the contracts of their ancestor, without shewing that they took some property by descent, and that his personal estate was insufficient to satisfy the claim. (2 R. S. 452.)

Infants cannot be made parties for the sake of discovery merely, where they have no interest, as they never answer on their own oaths. Neither can the answer of an infant be excepted to for insufficiency. In this case, if there were any papers in the possession of the heirs of Sellon, they might be compelled to produce them before the examiner, by subpoena duces tecum, in the usual manner.

The demurrer is well taken, and the bill of revivor and supplement, as to the infant defendants, must be dismissed with costs.


text:
    The People, ex rel. Griffith and others, vs. Elmer.
    Upon a proceeding by attachment to compel an answer, retaining fees for solicitor and counsel cannot be taxed.
    Where pleadings, depositions, reports or decrees do not contain more than a single page, they do not come within the 95th rule, requiring them to be paged.
    The amount of sheriff’s fees, stated in the return to an attachment, will be presumed correct until the contrary is shewn.
    The defendant in an attachment cannot be charged for proceedings against the sheriff to procure a return of the attachment.
    If the sheriff neglects to return the attachment by the return day thereof, an attachment may Forthwith be allowed against him. And he is also liable for the damages and costs sustained by such neglect.
    Where a party appealing from a taxation succeeds only as to part of the items as to which he appeals, neither party is allowed costs of the appeal; but where one of the parties is subjected to additional expense in repelling presumptions arising from affidavits on the other side which are deceptive and calculated to mislead the court, such additional expense will be allowod against such adverse party,
    December 20.
    This was an appeal from the decision of the vice chancellor of the eighth circuit upon the taxation of the relator’s costs in this case. The costs arose upon a proceeding by attachment against the defendant for not putting in an answer. The vice chancellor allowed retaining fees for solicitor and counsel on the attachment. Other items allowed on the taxation were also objected to, which are referred to in the decision of the chancellor.

      G. C. Bronson, for the relators.

      Julius Rhoades, for the defendant.
   The Chancellor.

The retaining fees were improperly allowed in this case. The proceeding by attachment against the defendant to compel an answer, is a proceeding in the original suit against him. The ordinary practice of this court to compel obedience to interlocutory orders and decrees is by attachment. .The legislature never contemplated an allowance of eight dollars to the solicitor and counsel as retaining fees in every proceeding of this kind. The case of The People v. Chapman, (1 Cowen’s Rep. 214,) was not like the present. That was a proceeding against an officer of the court, who was not a party to the original suit, to punish him for a neglect of official duty. It was neither in form or substance a proceeding between the parties in the original cause; and as against the defendant in that proceeding, it might perhaps be considered as a new suit. But even in that case, the court considered the relator as the real party, and the attachment as a proceeding to obtain a debt of less than $250. Common pleas costs were for that reason considered the proper rate of allowance, although the proceedings were nominally in behalf of the people, who were entitled to full costs in suits prosecuted by them in the supreme court.

The taxing officer was right in disregarding the objection that the petition and other papers were not paged in conformity to the 95th rule of the court. As none-of the papers contained more than a single page, they did not come within the spirit. of that rule, and the objection was frivolous. Even the decretal order, although it covers about five lines more than one page on the common sized paper upon which it is copied, could not have filled an entire page in the clerk’s minutes of decrees, where it was entered.

The sheriff’s fees, as returned on the attachment, must be presumed to be correctly charged by him until the contrary' is shown, unless it appears that they could not have amounted to so much. The sheriff is entitled to 50 cents for serving an attachment; and he is to be allowed for copy of the process, mileage, bail bond where bail is allowed, receiving the defendant in prison when he is committed for want of bail, and for returning the writ, as in other cases. There is nothing from which the court can be certain that the fees in this case did not amount to the sum charged. The affidavit produced before the taxing officer, that the attachment was returned without being served, is shown to be incorrect, both by the affidavit of the deputy sheriff, and by the return upon the attachment itself.

Some other charges, however, have been allowed in this case which were not taxable against this defendant, and, I presume, they would not have been allowed if they had been objected to, and the attention of the taxing officer had been called to the provisions of the statute on the subject. I allude to the charge by the solicitor of $1,26 for drawing and engrossing a bond to be sent to the sheriff with the attachment, and to the charge for proceedings against the sheriff to procure a return of the attachment. Where the process is bailable, and the defendant consents to give bail, it is the duty of the sheriff to prepare the bond in the same manner as on the arrest of a defendant upon a copias, varying the condition of the bond so as to conform to the provisions of the statute. (2 R. S. 537, § 13.) And for such bond, the sheriff is entitled to 37 i cents, only. In this case no bond was taken by the sheriff, as the defendant was in custody on a ca. sa.

The defendant was not answerable for the neglect of the sheriff to return the attachment. The statute makes it the special duty of the sheriff to return the attachment by the return day specified therein, without any previous rule or order for that purpose; and in case of default, an attachment may be forthwith allowed against him for such neglect. (1 R. S. 587, § 17.) The sheriff is bound to have the attachment returned to the court at the time and place appointed for the return thereof. And if life is ignorant of the duty which the law has imposed upon him, or wilfully neglects it, he must pay the damages and costs to which the parties have been subjected.

The objectionable items amount to $¡12,53. And in an ordinary case this sum would be deducted from the taxed bill, and neither party would be allowed costs, as the party appealing from the taxation has succeeded only as to a part of the items specifically objected to in the papers on which the appeal was founded. (2 Paige’s Rep. 354.) But in this case the relators have been subjected to at least $¡5 additional expense in producing affidavits and other documents to repel presumptions arising from the affidavits on the other side which were altogether deceptive, and calculated to mislead the court. The sum of $7,53 only must therefore be deducted from the costs as taxed by the vice chancellor; and the residue of the taxed bill, or so much thereof as still remains due, must be paid to the relators’ solicitor.


text:
    Winslow vs. Collins.
    January 3.
    An appeal will not lie from a decision of a vice chancellor as to the costs of an interlocutory proceeding, where such costs rest in discretion.
    But where costs are disposed of as matter of relief, or are given or refused contrary to a statute, or to the settled practice of the court, an appeal may he sustained as to such costs.
    The revised statutes authorize an appeal from a decree as to the general costs in a cause, provided the appeal is entered within fifteen days after notice of the decree.
    This was an appeal from so much of an interlocutory order of the vice chancellor of the 8th circuit as directed the complainant to pay the costs of the application.

      J. Rhoades, for the complainant.

      M. T. Reynolds, for the defendant.
   The Chancellor.

The object of this appeal is to review the decision of the vice chancellor, allowing costs to the defendant, upon setting aside a proceeding of the complainant for an irregularity. The costs in this court, and particularly on special motions, are so entirely in the discretion of the court, that it must be a plain and palpable case of injustice which would authorize an appellate court to interfere, even if an appeal as to costs were expressly allowed by law. But I apprehend the appellant’s solicitor has entirely mistaken the practice of the court in supposing that an appeal would lie, as to interlocutory costs which rest in discretion. By the English practice, neither an appeal or a rehearing will be sustained in relation to questions of costs which rest in discretion merely but where costs are disposed of as matters of relief; or where they are given or refused contrary to statute, or the settled practice of the court, an appeal may be sustained. Also, where a party appeals upon a substantial ground, as in a case where there is really a doubt as to the correctness of the decision of the judge a quo upon the merits of the cause, the appellate court may vary the decree as to costs, if it is clearly wrong; although the appellant should fail upon the substantial ground of appeal. (Owen v. Griffith, 1 Ves. sen. 250. Cowper v. Scott, 1 Eden’s Rep. 17. Wirdman v. Kent, 1 Bro. Ch. Cas. 140. Jenour v. Jenour, 10 Ves. Rep. 562. Taylor v. Popham, 15 id. 72. Fitzgibbon v. Scanlan, 1 Dow’s Rep. 270. Attorney-General v. Butcher, 4 Russell’s Rep. 180.) In Eastburn v. Kirk, (2 John. Ch. Rep. 319,) Chancellor Kent recognized the rule that a party cannot have a rehearing, or an appeal for costs merely, except in special cases. And in the state of South Carolina, where, as in this state, the appeal is given by statute, it has been decided that an appeal as to costs which are merely discretionary, cannot be sustained. (Lewis v. Wilson, 1 McCord’s Ch. Rep. 210.)

Under the revised statutes the legislature have authorized an appeal from a decree as to the general costs in a cause; provided such appeal is entered within fifteen days after notice of the decree. (2 R. S. 604, § 79.) And from this provision it is evident they never intended to encourage or authorize an appeal from every order of the court giving or refusing a few dollars costs, on a petition or special motion. In such cases the extra expense to the appellant would generally exceed the amount of the costs in controversy, even if he succeeded in his appeal. And neither the legislature or the court will encourage such useless litigation, where the suitors cannot possibly be benefitted thereby. (See Ashby v. Kiger, 3 Rand. Rep. 165.)

The appeal in this case does not lie upon the question of costs merely ; and it must be dismissed, with costs to be paid by the appellant»


text:
    Gregory & Selman vs. Dodge.
    February 6.
    Where two orders are made and entered in a cause on the same day, one of which substantially embraces the other, and the defendant appeals from both orders, but one appeal, and only one appeal bond are necessary.
    The practice of entering distinct orders in a cause, where several directions are given at the same time, with a view of increasing the costs, or rendering several appeals necessary, is not to be encouraged.
    A suit brought to compel the defendant to account for and pay over to the complainants a balance alleged to be due on certain joint dealings, comes within the 87th section of the title of the revised statutes relative to writs of error and appeals ; and upon an appeal from an interlocutory order in such a suit, the court may require the doing of such other acts and tilings by the appellant as is specified in that section, to make such appeal operate as a stay of proceedings.
    In all the cases coming within that section of the statute, the making the deposit, or giving the bond as required by the 80th section, and the filing the certificate of the vice chancellor, as required by the 116th rule, will stay the proceedings under the order appealed from in the .first instance ; but the respondent may afterwards apply to the court for an order requiring the appellant to give the further security specified in the 87th section.
    The bill in this case was filed by Gregory & Selman against the defendant Dodge, as the surviving partner of Dodge & Green, for an account and payment of what might be due to the complainants on account of a joint concern between themselves on the one part, and Dodge & Green on the other, for the purchase and sale of fish. At the hearing, before the late vice chancellor of the first circuit, he made an order suppressing the deposition of Levi H. Kingsbury, taken on the part of the defendant; with the costs of taking thereof and of the motion, to be paid by the defendant. He also ordered a reference to a master to take and state an account between the parties; and directed that in taking such account, the testimony of Kingsbury which had been thus suppressed, should be excluded by the master. The fil-st of these orders, although made on the 17th of January, 1831, the same day on which the decretal order of reference was made, was entered as a separate order by the complainants’ solicitor, and bore date three days afterwards. The defendant appealed from both orders, embracing them in the same notice of appeal, and executed one appeal bond only, in the sum of $100. The complainants’ solicitor, upon an affidavit of these facts, applied to the present vice chancellor of the first circuit for leave to the complainants to proceed upon the reference notwithstanding the appeal, unless further security should be given on such appeal. The vice chancellor denied this application ; and from that decision the complainants appealed to the chancellor.

      R. Sedgwick fy D. D. Field, for the complainants.

      John R. Hedley, for the defendant.
   The Chancellor.

Although the complainants entered two distinct orders which were appealed from by the defendant, yet, as the substance of the order suppressing the deposition of Kingsbury was contained in the decretal order of reference, it is substantially but one appeal, and only one bond was necessary. In Palmer’s Practice of the House of Lords in England on appeals and writs of error, it is laid down, that if evidence has been offered to the court below and been rejected, the appellant may make that a part of his complaint by his appeal; in which case the Lords will receive it, if they think it admissible. (Palmer’s Pr. 8.) Parties are not to be encouraged to enter separate and distinct orders in a cause, where several directions are given at the same time, either for the purpose of swelling the costs, or of rendering several appeals necessary; I therefore concur with the vice chancellor in his opinion, that there was no irregularity in the form or manner in which the defendant’s appeal was entered.

The vice chancellor was also right in supposing that this was not a case coming within any of the provisions of the statute, from the 82d to the 86 th sections inclusive, which require certain things to be done, or certain securities to be given, to render the appeal a stay of the proceedings in the first instance. (2 R. S. 606.) But he was incorrect, if he supposed this was not a case coming within the-87th section of the statute, which authorizes the court, in its discretion, to require security to be given, to render the appeal a stay of proceedings. This suit is brought to compel the defendant to account and pay over to the complainants a balance alleged to be due from him to them on certain joint dealings between the parties. The appeal is therefore an appeal from an interlocutory order, in a suit brought for the payment of money, or to compel the delivery or assignment of the portion of the securities which belong to the complainants, on that joint concern. The object of the 87th section was to give to the court a discretionary power, upon an appeal from any interlocutory order made in such suits as are mentioned in that section, to require the party appealing to give similar security, or to do similar acts, for the protection of the rights of the respondent, as are prescribed in the-previous sections relative to appeals from final decrees, The object of the legislature was to prevent appeals from interlocutory as well as final orders for delay merely, and without giving any security for the eventual performance of the final decree which might be made in the cause. But as it was impossible for the legislature to define what security, &c. should be given, before the extent of the indebtedness was ascertained by a decree, it was necessarily left to the discretion of the court to examine into the circumstances and to direct what was reasonable and proper to be done, by analogy to what would have been required on an appeal from the final decree in the same cause. This section embraces nearly every appeal from an interlocutory order, as the previous sections cover most of the final decrees in this court And the 89th section was only intended to provide for a few cases which were undefinable, and which could not otherwise be provided for by legislation. In all that numerous class of cases which come within the provision of the 87th section, the making the deposit, or giving the bond as required by the 80th section of the statute, and filing the certificate of the vice chancellor, as required by the 116th rule of this court, will stay the proceedings under the order appealed from, in the first instance. But the respondent may afterwards apply to the vice chancellor for an order requiring the appellant to give security for the payment of such sum as may finally be awarded against him, or to do such other acts or things as he may be directed to perform by the final decree. As this is left to the discretion of the court, it should be a matter of course to require security, in analogy to the proceedings in other cases on appeal and on writs of error, wherever there is a reasonable probability that the demand of the respondent may be endangered by the delay. In this case, however, there is nothing in the affidavit on which the application was founded, to enable the court to regulate its discretion, or to show that the complainants, or their solicitor, apprehended danger from the delay; or that the defendant was not fully responsible for the payment of any sum which might finally be adjudged against him. If he is a man of large property, and is litigating the question on the appeal in good faith, there is no necessity of requiring any further security in the mean time,

I have not been furnished with the pleadings, &c. which, by the notice annexed to the affidavit, appear to have been referred to on the motion before the vice chancellor. But from the abbreviation thereof, which I find among the papers, I presume there was nothing in them which could alter the case from that stated in the affidavit. For that reason the vice chancellor was right in refusing to stay the proceedings upon the mere suggestion of counsel that there would be danger from the delay.

The order appealed from in this case must therefore be a£, firmed, with costs.


text:
    Veeder & Clute vs. Fonda and others.
    February 21.
    Where land sold under a decree of the courtjvas described in the master’s notice as containing about twenty acres^ when in fact.it contained but thin- •• teen acres, "and one of the complainants who was present at the sale knew of the "deficiency, but concealed that fact from the master and the bidders, and encouraged them to bid, the sale was set aside on the application of the purchaser.
    The master who sells property should insert nothing in his description of the same in the notice of sale which may unduly enhance the value of the property or mislead the purchaser.
    It is the policy of the court of chancery to encourage a fair competition at a master’s sale; and to effect this object, it will not allow any deception whatever to be practiced upon bidders.
    A person who sells land, as containing a certain quantity, more or less, when he knows from an inspection of the title deeds in his possession, or otherwise, that it contains a much less quantity, in equity is bound to make good the difference.
    But where a contract has been consummated without any fraud, misrepresen-y •tation or concealment as to the real quantity of land sold, courts will not inquire whether there has been an actual mistake as to the supposed quan» tity."
    If there has been either fraud or concealment, or any thing beyond a mere mistake on both sides as to the quantity of land, the contract will not be enforced against the party who is deceived.
    This was an application to compel the purchaser, under the decree in this cause, to complete his purchase. The purchas—, er resisted the application, on the ground that he had been ! deceived by the notice of sale as to the quantity of land contained in the lot sold.

      Jj. C. Paige,

    for the complainants. It has been repeatedly •decided that masters’ sales do not come within the statute of frauds. The objection therefore that the purchaser is not bound, to complete his purchase, upon the ground that there was no memorandum in writing of the sale, cannot be sustained. The purchaser in this case is bound to complete the sale. The title is perfect, both at law and in equity. Where the vendor shows a prima facie title, against which there are no reasonable grounds of suspicion, a purchaser at a master’s sale is bound to complete the purchase. (In the matter of Brown
      ing, 2 Paige's Ch. R. 64. Morris v. Mowatt, 2 id. 586.) The biddings at a master’s sale will not be opened, except in very special cases. (Duncan v. Dodd, 2 Paige's Ch. R. 99.) The only objection urged against this motion is, that the purchaser was deceived as to the quantity of land in the lot sold. The advertisement describes it as “ containing about 20 acres, be he same more or less.” We contend that tnis description was of a character calculated to put the bidders upon inquiry as to the actual quantity. The lot in question is situated very near the residence of the purchaser. If he was ignorant of the actual quantity of land the lot contained, his ignorance is the result of Ms own neglect. Where land is sold by such a description, it is distinctly understood that the vendor covenants nothing as to the actual quantity, and that the purchaser takes the land, whether it-be more or less, running all the hazard as to the quantity. This is the umversal understanding between vendors and purchasers. Whenever land is purchased by such a description, the purchaser is presumed to relmquish all claim to a warranty from the vendor as to the actual quantity. The purchaser here, therefore, cannot now object to completing his purchase, upon the ground that he was deceived as to the actual quantity of the lot sold by the master.

      J. Rlwades,

    for the purchaser. There is nothing in the petition or report to take the case out of the statute of frauds. (2 R. S. 135, § 8.) There is no pretence of any memorandum in writing of the sale or of the purchase having been made at the time or signed either by the master or purchaser, or of any part of the purchase money having been paid. Even in England the case of a master’s sale is not taken out of the statute until after confirmation of the report of sale; (Sugden's Law of Vendors, 41 ; Hoffman's Pr. 216 ;) and there the bids-are always entered in writmg by the bidder in the master’s book. (2 Fowler's Exch. Pr. 307. 2 John. Ch. Cas. 154.) Our statute above referred to is general, and must overreach any previous practice, if any existed, contrary to its requisitions. The case in 1 Ves. sen. 221, also recognizes this doctrme, to wit, that it is not out of the statute until after confirmation of the master’s report. (Hoff. Pr. 217.) The motion is also premature. Proceedings (on a report not confirmed) against a purchaser cannot be sustained. (Hoff. Pr. 216, 17. 1 Vesey, sen. 221. Belt’s Supplement, 115.) Bul I waive all preliminary objections. As to the policy of masters’ sales, see Hoffman’s Pr. 212. As to masters’ duty in such a case as this, see Hoff. Pr. 215, also 2 R. S. 369, § 35, taken in connection with rule 139. Can it for a moment be pretended that it is an appropriate description of two parcels of land, one containing seven acres and nine perches, and the other five acres and three fourths, to call them the former homestead, &c. containing in the several lots about twenty acres, be the same more or less. By such a description, the grantor covenants to convey about 20 acres, and also covenants that we shall have all within the description, “ be it more or less.” It is the duty of buyers and sellers to disclose to each other all facts that would materially affect the price. (Livingston v. Peru Iron Company, 2 Paige’s Rep. 390.) Here was a technical fraud, to say the least, on the part of Clute, one of the complainants. There was a combination to run up the property to a high price, and then to let it be struck off to A. Craig; with the intention of taking him in. The well settled rule in chancery in relation to incumbrances is, that the purchaser will not be bound to pay the money until the incumbrances are removed. (Sergeant Maynard’s Case, Freeman’s Rep. in Chan. 2. Idem, 106.) The principle of the rule is, that if the owner conceals the fact of incumbrances from the purchaser, he commits a technical fraud upon him. And will it be pretended that it will not equally apply in a case of misrepresentation as to the quantity of the land 2 (Hoff. 229. Lord Thurlow’s Rule.) Suppose this had been sold by the same description, but by the acre, at one hundred dollars an acre ; could we have been compelled to pay for 20 acres 2 Certainly not. Suppose also incumbrances on 20 acres to the value of seven acres.
    The effect upon masters’ sales of granting this motion would be to prevent all from bidding who had not first surveyed the land and investigated the title¡ It is the policy of the court to encourage all persons to bid at masters’ sales. An immense amount of property would be annually sacrificed, if the complainant’s doctrine was once established. At law, the words “ containing so many acres, be the same more or less,” are merely words of description. (Mann v. Pearson, 2 John. R. 37.) In sheriffs’ deeds, the land must be defined. (13 John. 97, 537.) We are entitled to costs. The complainants ask them against us; and they make here a premature and improper motion. In case of a defect of title, the purchaser is entitled to costs. (Hoff. Pr. 232, 3. Hampson v. Brandwood, 1 Madd. Rep. 211, 215.) But if the court should be against us on the motion, we ask for time to investigate the title, and to raise objections thereto, if any exist. There may be objections to the title or to the regularity of the proceedings, or a want of parties. Judgments subsequent to the trust deed may exist. The plaintiffs in those judgments would certainly have equitable liens on all the property, after satisfying previous incumbrances. This court will not compel a party to take a title without investigation, nor an uncertain title, although its own opinion may be in its favor. (Abel v. Heathcote, 2 Ves. jun. 100. Stapleton v. Scott, 16 Ves. 272. Morris v. Mowatt, 2 Paige, 586.)
   The Chancellor.

As property to a vast extent is sold under the decrees and orders of this court, much of which property belongs to infants, and others who are not able to protect their own rights, it has always been an important object with the court to encourage a fair competition at masters’ sales.. For this purpose it is necessary that purchasers at suck sales should understand that no deception whatever will be permitted to be practiced upon them. That in a contract between them and the court, they will not be compelled to carry that contract into effect under circumstances where it would not be perfectly just and conscientious in an individual to insist upon the performance of the contract against the purchaser, if the sale had been made by such individual or his agent. It is, therefore, a principle of the court that the master who sells the property shall not, in the description of the same, add any particular which may unduly enhance the value of the property, or mislead the purchaser. (2 Atkinson on Conv. 71.) In this case the description, by which the property was advertised and sold, was false or mistaken in two particulars, although it corresponded. with the description in the deed of trust and in the complainants’ bilLjij'.'The first particular, which described it as “ the former homestead of Jellis Fonda,” would not be very likely to mislead, because the north line of the canal was described as the boundary. This was such a notorious designation of the extent of the lot in that direction, that a bidder could hardly be under the mistake of supposing it included that part of the homestead which extended south of the canal. The land ¡actually sold, however, was described as “ containing about 20 acres, be the same more or less.” This was, probably, ! about the quantity contained in the original homestead. But • the land actually sold has, upon measurement, been found to ¡ contain less than 13 acres. There is nothing in the particular situation of the land to induce a belief that the number of acres contained in the tract would not necessarily form a very important circumstance in the estimate of the value of the property. And the purchaser swears he had no knowledge of the quantity, except from what was contained in the notice of sale, and that he bid with reference to the supposed quantity as there described. Had it been a mill site, or other property of that description, in which the particular spot, and not the supposed quantity of the land formed the principal ground of value, the case would have been materially altered.

There appears to have been a considerable difference of opinion among judges in the different states upon the question whether a court of equity ought to relieve against a mistake as to the quantity of land, where it was afterwards found to be ‘ much less or much greater than the quantity mentioned in the deed or contract between the parties. (See 1 Peters’ C. C. R. 58; 4 Bibb's R. 215, and 1 Ves. Beam. 375, note 1, where most of the American cases are collected.) It seems now, however, to be generally understood that where the contract has been consummated, without any fraud, misrepresentation, or concealment as to the real quantity, the courts will not inquire whether there has been an actual mistake as to the supposed quantity contained within certain specified boundaries. But this result has been produced more from the necessity of quieting interminable litigation, than from the real equity of the principle established by the decisions. And wherever there-, $rhos been either fraud or concealment, or any thing beyond a mere mistake, on both sides, as to the quantity, a court of equi- ¡ : ty ought not to enforce the contract against the party who \ ’--has been deceived.

In this case the master undoubtedly supposed the description in the deed to the trustees, describing the several lots, together, as containing about 20 acres, to Jbe correct, or nearly so, as to quantity. But it appears from the affidavits produced that one of the complainants, who was a trustee for the persons interested in the fund to be raised, was present at the sale and suffered the property to be put up as containing about 20 acres, although be was then aware of the fact that it contained but 13 acres, or about that quantity. He also interfered actively at the sale, by urging the purchaser and others to bid, and without disclosing the fact,that the real quantity of land was less than two thirds of what was represented as being the probable contents of the premises. He had also previously informed another party to the suit, who was interested in the fund to be raised under the decree, that the land fell short of the quantity described in the notice. As the statement of the supposed contents of the lots was calculated to deceive the bidders, as to the real value of the property, it was the duty of these parties to the sale to disclose the fact to the master and to the bidders, so that the competition might be fair and equal, and that they might not be misled. I cannot sanction the suppression of such a material fact by the trustee who represented the parties interested in the sale ; and the purchaser having been actually deceived as to the quantity, he must, be discharged from the purchase. A man who sells land as-containing a certain quantity, more or less, when he knows, from an inspection of the title deeds in his possession, or otherwise, that it contains a much less quantity, in equity is bound to make good the difference to the purchaser. (Nelson v. Matthews, 2 Hen. & Mumf. 164. Duvals v. Ross, 2 Mumf. R. 290. Pringle v. Samuel, 1 Litt. R. 44.)

Under the circumstances of this case, as Glute was endeavoring to make the property produce the highest price for the benefit of his cestui que trusts, I do not feel disposed to charge the costs of this application on him personally. The petition must however be dismissed, with costs, to be paid out of the fund raised by the sale under the decree ; and this particular piece of property must be re-sold. Such re-sale, however, may be made upon a notice of two weeks.


text:
    Stafford vs. Mott & Comstock. S. & H, Stafford vs. The same.
    February 21.
    The allowance of interest on a judgment recovered at law for a tort is not a matter of course under a decree in equity ; although in a proper case a court of equity will direct interest to be allowed on such judgment.
    In an action of debt at law on a judgment for a tort, interest may be recovered by way of damages for the detention of the debt.
    Where a person is made a party to a creditor’s bill, to enable the complainant to obtain a debt due from him to the complainant’s judgment debtor, which debt such person is ready and willing to pay, he is entitled to his coats out of the fund.
    Where an appellant succeeded only as to part of the matters of the appeal, neither party was allowed any costs as against the other upon the appeal.
    This was an appeal from a decree of the vice chancellor of the 3d circuit. The bills in these suits were filed by the complainants respectively, as judgment creditors of the defendant Mott,, to reach his property and dioses in action which were not liable to execution at law, and particularly the amount of a judgment which he had recovered against the defendant Comstock, in an action of slander. Comstock by his answer claimed the right to set off a judgment recovered by him against Mott and others for a less sum, and which by an agreement between the defendants Was to be set off against the judgment in the slander suit. He offered to pay the balance, as the court should direct, after deducting therefrom such costs, charges and counsel fees as the court should deem reasonable. The complainants in these suits had agreed that whatever might be recovered therein should be applied towards their respective judgments rateably. The causes were therefore heard together, and a joint decree was made therein. The vice chancellor allowed the set off claimed by Comstock, and directed a reference to ascertain the amount due upon the judgment in the slander suit, and the amount due the defendant, Com-stock, on his judgment claimed as a set off; and that the master allow Comstock to retain out of the amount due on the judgment in the slander suit the amount of the principal and interest due on the last mentioned judgment, and that the master report the balance due. It was further ordered that the defendant Comstock pay the balance thus reported due, with interest thereon from the date of the report, to be applied in the first place to the payment of the complainants’ costs in each of these suits, and that the residue be applied rateably to the payment of their respective judgments. From this decree the defendant Comstock appealed. He alleged as the grounds of such appeal, that the vice chancellor had not directed the amount due on the judgment in the slander suit to-be computed without interest, and that the vice chancellor had directed him to pay the balance due thereon, with interest from the date of the master’s report; and also that the appellant had not been allowed to retain out of the fund the general costs of his defence of these suits.

      J. Lansing, for the complainants.

      James King, for the appellant.
   The Chancellor.

Upon an examination of the provisions of this decree, I am inclined to think the construction of it is, that the master is not directed to compute interest on the judgment in the slander suit. Whether he is authorized to allow interest on the balance due, after deducting Comstock’s judgment and the interest on the same up to the time when the defendants agreed it should be set off against the verdict in the slander suit, is a question not properly raised by this, appeal. If the master improperly allows interest on that balance, either because it is not authorized by the decree, or because it is not equitable that it should be allowed pending this suit and while the defendant was. prevented by the injunction from paying over the balance, it can only be corrected on exceptions to the master’s report. Strictly speaking, the amount due on a judgment in tort is the sum for which the judgment is entered, although a court or jury in an action of debt thereon may give interest by way of damages for the detention of the debt. A court of equity, in a proper case, may also direct interest to be allowed on such a judgment. But a direction to ascertain the amount due on a judgrrient which per se does not carry interest, is not a positive direction to the master to compute interest thereon. It is even doubtful whether the' master would be authorized to allow interest without a special authority, expressed in the decree, directing him to allow interest as should be just. The allowance of interest on such a judgment is not a matter of course under a decree in equity, (Lewes v. Morgan, 3 Young & Jervis, 394.)

After the balance is ascertained by the report of the master, I can see no valid objection to that part of the decree which directs Comstock to pay interest on such balance if the same is not immediately paid.

• The only remaining question is as to the refusal of the vice chancellor to allow the appellant his taxable costs, to be paid out of the fund. In this respect, I think the decision of the vice chancellor is erroneous. This defendant is made a party to these suits, not on account of any fault or misconduct on his part, but to enable the complainants to obtain a debt due from him to their judgment debtor, and which debt he was ready and willing to pay, after deducting what he had a legal right to retain by way of set ofF against Mott. He was properly made a defendant in this case, although he was not strictly a necessary party. It does not follow, however, that an innocent defendant is to lose his costs, although he is a necessary party to enable the complainant to obtain the relief to which he is entitled as against another defendant, or otherwise. The costs of such a party, according to the ordinary practice of the court, must be paid out of the fund, if there is a fund recovered in the suit. And where there is no fund, the complainant is frequently compelled to pay the costs himself; and is permitted to recover them over against the other defendants, whose default or misconduct has made such costs necessary. In this case great injustice will be done to this appeEant if he is-compelled to sustain the whole expense of putting in'his answers for the benefit of the complainants, and for the purpose of obtaining his equitable and legal claim to set off.

The decree of the vice chancellor must therefore be affirmed, except as to the costs of the appellant. And in that respect it must be modified in such manner as to direct those costs to be taxed, and to be deducted from the balance due on the judgment in favor of Mott against him ; and that the appellant only pay the residue of such balance, and interest thereon, to the solicitor of the complainants, to be applied as directed by the decree. As the appellant has only succeeded as to a part of the matters of his appeal, neither party is to be allowed costs as against the other on this appeal. But if he had appealed on account of the disallowance of the general costs of his defence only, he would also have been entitled to his costs here.

This case must be remitted to the vice chancellor, as it appears further proceedings have been had on the decree appealed from before the proceedings were stayed by perfecting the security on the appeal.


text:
    Sloan vs. Little.
    February 21.
    To a bill filed for relief against an usurious mortgage, charging the usurious acts as having been done by the defendant in person, he cannot answer that he has no knowledge, information, recollection or belief, other than that derived from the facts stated in the complainant’s bill, and therefore he neither denies or admits the same ; but the defendant, although the facts are not charged to have accrued within seven years, must at least admit or deny the facts according to the best of his knowledge and belief.
    Wherever the facts are charged in a bill as being the acts of the defendant, or within his own personal knowledge, he is bound to admit or deny the facts charged, either positively or according to his belief, whether they oc-' curred within seven years or at a greater distance of time.
    But if the defendant never heard of or knew the facts charged, except as they are stated in the complainant’s bill, he is not bound to admit or deny them, or to express any belief one way or the other.
    This was an appeal from the decision of the vice chancellor of the sixth circuit disallowing the defendant’s exceptions to the master’s report, on exceptions taken by the complainant to the answer. The bill was filed to restrain the defendant from proceeding by a sale, under the statute, to foreclose a mortgage given by the complainant, and which was alleged to be usurious. The bill charged that on the 18th of December, 1812, the complainant, and his brother, W. Sloan, applied to the defendant to borrow $60. That he declined loaning less than $100; which sum they borrowed of him, at the rate of 25 per cent, per annum, and gave their note for $125, payable in one year. That at the end of the year the defendant wrote to them, demanding payment; that he refused to wait on them any longer, unless they would give him $25 more for the use of the money the second year; that they accordingly gave him a new note, dated the 27th of January, 1814, for $150, payable at the end of the second year from the date of the first. That in the summer or fall of 1818, the defendant sued them for that note, which had been renewed from time to time; and that on the 18th of September of that year they met for ■a settlement. That the debt was then divided, and the defendant computed interest on the complainant’s half of the $150 note, at the rate of 7 per cent, per annum, for one year from the 27th of January, 1814, and at the rate of 14 per cent, per annum for thesresidue of the time; which interest thus cast amounted to $43,46; for which sum, together with the half of the $150 note, the defendant took the complainant’s note for $118,46, with interest thereon, payable in one year. That on the same 18th of September, 1818, he took the complainant’s note for his half of the costs, $8,29, payable in one year, with- . out interest. That on the 24th of March, 1819, the complainant applied to the defendant for the loan of $50, and he then loaned him that sum at a premium of $15 for sixty days, and took his note for $65, payable at the end of that period. That on the 18th of September, 1819, the parties met, and the defendant computed interest on the two notes of September, 1818, for one year at the rate of 14 per cent., and on the $65 note at the same rate from the date thereof, amounting in the whole to $213,71; but which, from an error in the footing, was stated by the defendant at $223,71. That the defendant agreed to throw off the 71 cents; and that the bond and mortgage in question, owing to the error in footing, was taken for $223 instead of the $213. The complainant offered to pay the principal and the legal interest of the several debts included in the bond and mortgage, and he prayed relief against the usurious interest included therein.
    To all, or nearly all of the charges on which the equity of the complainant’s bill rested, the defendant answered, in substance, that he had no knowledge, information, recollection or belief, other than from the statement of the facts in the complainant’s bill, and therefore he could not admit or deny the facts charged, but left the complainant to such proof as he could make of the facts thus charged.. To this answer the complainant filed 25 exceptions, all of which were allowed by the master. The defendant excepted to the master’s report, and on argument of the exceptions before the vice chancellor, the report was confirmed.
    The vice chancellor, in his opinion, after comparing the answer with the bill, and arranging the different charges contained in the bill, with the respective answers to the same, proceeds as follows:
    Monell, V. C.
    I have examined the answer of the defendant to all the material charges in the bill. There are some of minor importance which I do not deem it necessary to set forth. The great length of bill and answer, without abbreviations of either, renders it difficult to properly understand and compare them together. I have therefore placed the charges in the bill, and the answer to those charges in a situation that I might look at them together, and the better determine the validity of the different answers. I was further induced to do so by the desire expressed on the argument, that I would carefully examine the pleadings and understandingly pass upon the merits of the same.
    The complainants charge the defendant with having exacted from them, either jointly or severally, at twelve or fourteen different times, between the 18th December, 1812, and the 10th May, 1824, both days inclusive, large amounts of usury upon loans made to them by the defendant: and they charge these all to be within the knowledge of the defendant, and call for an answer to each specific charge. The bill sets forth with great certainty the different dates and amounts of loans at the different periods, as well as the amount of usury charged to have been exacted. And whenever papers are referred to, to show dates and amounts, they are stated to be in the possession of the complainant, ready to be produced to the court. The defendant, in answer to all, or nearly all of the charges, says he has no knowledge, recollection, information or belief of the transactions as stated, other than what is derived from the bill, and that they are of such ancient dates, that being now at the advanced age of 60 years, his memory does not retain the particulars respecting them. The complainants except to the answer as insufficient, principally because the defendant neither admits nor denies the allegations in the bill.
    It is contended by the defendant, 1. That he is not bound to answer any thing in the bill which is immaterial. 2. That when the defendant denies all knowledge of facts charged to be in his personal knowledge, or to be his own acts, he is not bound to answer positively; and as to acts of others, it is sufficient for him to say that he has no knowledge or belief. 3. That when facts in the bill are charged to be within the knowledge of the defendant, or are charged to be his own acts, he is not bound to answer positively and directly, nor to traverse or deny them, unless they are stated to have happened within seven years. 4. That if the answer is good to a common intent* it is sufficient. 5. That the defendant is only bound to answer the allegations in the bill, and if he goes out of it, and states any part of his defence, and makes statements not responsive to the bill, such parts cannot be excepted to as insufficient. The right of a master to judge of the materiality of a question is settled, and the rule adopted in the books is, that if the question is quite immaterial, the master disallows the exception but if the discovery can in any way assist the plain tifij he allows the exception. The test of materiality is whether the fact, if disclosed, can aid the plaintiff in obtaining the relief sought by the bill. Every plaintiff is entitled to a discovery from the defendant to enable him to obtain a decree, and to ascertain facts material to the merits. (Hoffman’s Pr. 262, 2 Ves. jun. 399, 492. Cooper, 212.)
    In the case of Wood v. Monel and others, (1 John. Ch. Rep. 193,) Chancellor Kent says, the general rules on the subject of exceptions to answers are founded in good sense and sound justice, and they cannot be too well understood or too strictly enforced; and if the defendant is not compelled to a full, frank and explicit disclosure of every thing properly required of him and resting in his knowledge, information or belief, one of the most salutary ends of the jurisdiction of this court would be defeated. With respect to the sufficiency of the answer, the general rule is that to so much of the bill as is material and necessary for the defendant to answer, he must speak directly, without evasion, and not by way of a negation pregnant. He must not answer the charges literally, but he must confess or traverse the substance of each charge positively and with certainty; and particular and precise charges must be answered particularly and precisely, and not in a general manner, even though the general answer may amount to a full denial of the charges. A general denial is not enough; there must be an answer to the sifting inquiries as to the matter charged. If a fact be charged which is in the defendant’s own knowledge, he must answer positively, and not to his remembrance or belief; and as to facts not within his knowledge, he must answer as to Ms information or belief, and not to his information merely, without stating his belief one way or the other. Several cases are cited by the chancellor in support of the rule laid down by him. In the case then under his consideration, he allowed forty-four exceptions to the answer. The next case, and one upon which the counsel for the defendant relied on the argument, is the case of Morris & Mowatt v. Land & Parker, (3 John. Ch. R. 297.) On examining the case, it will be found that it does not change the general rule laid down by Chancellor Kent; (1 John. Ch. R. 193 ;) nor did the learned chancellor by this decision intend to change the salutary rules established in that case.

      In my opinion the defendant in his answer was entirely misled by the decision in 3 John. Ch. R. 297; and there is no analogy between the two cases, although it is evident he has attempted to conform his answer to the supposed rules established in that case. Very certain I am, if the pleadings in this cause were now submitted to Chancellor Kent, he would see no analogy between them and those in the case of Morris & Mowatt v. Land & Parker. In that case the facts charged, and which the defendant was called upon to answer, took place in England; and it was not pretended that he knew any thing about them except by information from others. He states that he had heard that a commission of bankruptcy had been issued in England, and sets forth all that he had heard about it, both as to .the time it was issued and as to the proceedings under it; and then alleges that he is therefore ignorant of the facts charged in the bill. In conclusion of the opinion, the chancellor says no person can be more anxious than I am to procure to every proper inquiry in a bill, an explicit, frank and full answer; and I am exceedingly jealous of every thing that looks like evasion. My mind on this subject was fully declared in Wood v. Morrel, (1 John. Ch. R. 107.)
    In this case the transactions are alleged to have taken place in the immediate neighborhood, between the parties themselves, in a long course of dealing, and on numerous occasions ; and yet the defendant stultifies himself by answering that he has no knowledge, recollection, information or belief in relation to the numerous charges of unlawful exactions and usurious contracts, and covers himself under the plea of old age and the lapse of time. One would suppose that a respectable citizen, charged with so many legal frauds, would seize the first opportunity to positively and unequivocally repel the charges by a full answer. The lapse of time and old age might furnish an excuse, if the complainants charged only one single isolated case which had transpired many years since, and which might have escaped the recollection of the defendant. But when they exhibit charges of numerous and unmerciful yearly exactions, it is repugnant to common sense to suppose it possible that the .defendant can have no knowledge, recollection or belief of such transaction, charged explicitly to be in his own knowledge. Smith v. Lasher and another, (5 John. Ch. R. 247,) was also cited by the defendant’s counsel. Five exceptions were taken to the answer in that case for insufficiency, which were referred to the master; who reported against four. The chancellor allowed those which had been disallowed by the master. The first exception was to the defendants’ saying “ that it may be true, &c. but they have no knowledge of, and are strangers to the foregoing facts, and leave the plaintiffs to prove the same.” This the chancellor said is not a sufficient answer to facts which are not in the defendant’s own knowledge. He ought to answer as to his information and belief, if he has any information, &c. This was the rule stated in Wood v. Morrel. There was nothing said in Morris v. Parker in opposition to this rule. Although it is not expressly stated in that case how the bill charged the facts, yet it is evident from the opinion that they were not charged to be within the knowledge of the defendant. The same may be said of all the other exceptions allowed by the chancellor. The reasoning of Chancellor Walworth in the case of Platt v. Wood, (1 Paige, 404,) is relied upon to relieve the defendant from a positive answer. In my opinion it does not aid him. The chancellor, in examining one of Lord Clarendon’s orders, which is that an answer to a matter charged as the defendant’s own act, must be direct without saying that it is to his remembrance or as he believeth, if it be laid to be done seven years before, unless the court, upon exception taken, shall find special cause to dispense with so positive an answer, says, “the exception in the rule takes this case out of its operation. Certain facts and transactions make such an impression upon the mind of the defendant that he is presumed to be able to answer positively whether they were so or not, unless he set forth some reason or excuse from which it may appear possible that the circumstances have escaped his recollection. A non mi recorda answer as to such facts is always considered evasive.” The answer of the defendant was said on the argument to have been drawn up with great care. It certainly discovers much tact and talent, and ingeniously evades and avoids giving any answer that can avail the complainants on the hearing. Indeed, too much care has been bestowed upon it, as it bears upon its face more of a desire to keep within the supposed general rules, than to answer the complainants’ charges. Not being satisfied that all the numerous transactions charged in the bill can have escaped the recollection of the defendant, I cannot allow his answer as sufficient.
    The practice of reducing exceptions to writing is of modem use, and is little understood. Although the form of excepting by the complainants is not in accordance with the practice, I shall consider the reasons adopted by the complainants as exceptions. I allow the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth reasons as exceptions, and disallow the thirteenth. I also allow the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth, seventeenth, nineteenth and twenty-first exceptions, and disallow the fourteenth, fifteenth, eighteenth, and twentieth. I allow costs to the complainants, to be taxed.

      J. Seelye,

    for appellant. The 25th exception is supposed to be perfectly absurd and immaterial; and what in an answer is not responsive to the bill, is not matter of exception. (1 Paige’s Rep. 555.) The bill in this cause is filed for the purpose of having expunged from a bond and mortgage that portion of it which is alleged to be usury, and the bill contains an offer to pay the money really loaned with interest. The bill is one for discovery and relief, and the answer was intended to be full and explicit to every charge in the bill, as far as the defendant had any knowledge or recollection about them. It is supposed that most of the exceptions have been taken, because the defendant has neither admitted or denied the existence of these ancient transactions, directly and positively. And it is admitted that if the defendant is by law, or by the practice of the court, bound to answer these charges positively and directly, the answer is bad. It is impossible for the defendant to answer the bill in any other way. The transactian reaches as far back as 1812, or further. Almost 20 years have passed over the earlier parts of it.
    The defendant is now about 63 years of age, and is called upon to travel back 20 years upon his past life, and to answer directly and positively as to dates and sums, and to all the money transactions between these parties at that early period. And this rule is sought to be enforced against the defendant after the complainant has suffered so great a lapse of time to pass over these transactions without any complaint, and after he has refused to exhibit or shew to the defendant the notes and papers which are set forth in his bill, and which are alleged to be in the hand writing of defendant, and after the court has refused to grant an order to compel the complainants to do so, and after the defendant has been obliged to answer without them, and solely from his recollection of the transaction. For he swears that he has not been able to find among his papers any memorandum or paper writing which can furnish him with any information upon the subject. The operation of this rule, if it is to be enforced against the defendant, is wholly destructive of all his interest in this suit. For if these exceptions are to be sustained, the bill must be taken pro confesso against him. He can answer no further, for he swears that he has no further recollection on the subject. If he does not answer further, when ordered to do so, he may be attached and imprisoned, because he cannot recollect with precision all the minute parts of these early transactions. But this rule will not, and cannot be enforced in such a case. (Lord Clarendon's Orders, 54. Beame’s Orders, 179. Equity Draftsman, 381, 382. Cooper’s Pleading, 314. Harrison’s Ch. 181, 182. Hoffman’s Practice, 264. 3 John. Ch. Rep. 297.)

      JL. Stewart,

    for complainants. This is one of those cases where the facts and transactions are supposed to make such an impression upon the mind of the defendant that the law presumes he is not able to forget them ; and he must answer positively, whether they are so or not, unless he sets forth some reason or excuse, from which it may appear probable that the circumstances have escaped his recollection. (Vide Hall v.
      Woods, 1 Paige’s Ch. Rep. 404 ; Attorney-General v. Bank of Columbia, id. 515. American Chancery Digest, 406, sec. 28.)
    If a defendant submits to answer, he must answer fully. (1 John. Ch. R. 65. 7 id. 170, 173. Hammond’s Dig. 423, R.) There are only twelve exceptions to this rule, which are, 1. Where the answer would criminate-the defendant. (1 John. Ch. Rep. 65.) 2. Where he is a purchaser for a valuable consideration, without notice. (1 John. Ch. Rep. 65.) 3. Where the complainant has no title. (4 John. Ch. Rep. 205.) 4. Where executors are defendants, and the demand has become stale from the great lapse of time. (4 John. Ch. Rep. 205. 6 id. 137.) 5. Where the answer of the defendant will subject., him to a penalty. (4 John. Ch. Rep. 432.) 6. Where the defendant is a judgment creditor, and the bill is filed by a subsequent purchaser, and seeks to impeach the consideration or validity of the judgment. (6 John. Ch. R. 235.) 7. Where a defence is set up which meets and controverts the complainant’s title. (4 Cowen’s Rep. 641.) 8. Where the bill is filed for an account, and the defendant denies the partnership. (1 John. Ch. Rep. 65.) 9. Where the defendant is called upon to answer whether his transactions with third persons were usurious or not, at the instance of a creditor of that third person, who does not himself complain, or seek a discovery, especially if there is no charge of fraud. (Smith v. Fisher, 2 Dessaus. Rep. 275.) 10. Where certain documents are set forth historically in the stating part of the bill, the defendant is not bound to answer to the facts contained or stated in such documents, unless particularly stated, distinct from the documents, although he must answer to the fact of the existence of such documents according to his knowledge or his information and belief. (3 John. Ch. Rep. 297.) 11. Where the facts charged are not material or necessary for the plaintiff’s decree, (2 Paige’s Rep. 105.) 12. And where the matters sought to be answered were reposed in the defendant as counsel, attorney, solicitor, arbitrator, grand juror, physician, minister, &c„ (Mitford’s Pleadings, 224.) The above 12 exceptions are the only exceptions to be found in the books to the rule, that if the defendant submits to answer he must answer fully. The defendant’s case comes within neither of these exceptions.

      All the facts stated in the bill which are charged to be done by the defendant, or within the defendant’s own knowledge, must be answered positively ; and not to his remembrance or belief. (Woods v. Morell, 1 John. Ch. Rep. 104.) The defendant must" speak directly to the facts charged, and not by evasion, and by way of negative pregnant. ( Woods v. Morell, 1 John. Ch. Rep. 107. Hammond’s Digest, 422, U.) He must not answer the charges literally, but he must confess or traverse the substance of each charge positively and with certainty. He cannot answer in a general manner, even though the general answer may amount to a full denial of the charges; but the particular precise charges must be answered positively and particularly. Those facts which are not charged to be within the defendant’s own knowledge, nor as the defendant’s own acts, but as the acts of third persons, he must answer as to his information or belief, and not as to his information or hearsay merely, without stating his belief one way or the other. (Woods v. Morell, 1 John. Ch. Rep. 107.) It is not sufficient to answer to certain specific facts charged in the bill, that “ they may be true, but the defendant has no knowledge of the facts, but is a stranger to the foregoing facts, and leaves the plaintiff to prove the same.” Nor is it sufcient to say, “ the defendant has "not any knowledge of the foregoing matters, but from the statement thereof in the billbut the defendant should answer as to his information and belief, and admit or deny any information dehors the bill. (Smith v. Lasher, 5 John. Ch. Rep. 247.) The answer must not be argumentative. (Faulder v. Stewart, 11 Vesey's Rep. 296.) And it must be certain, not doubtful. (Hammond’s Digest, 421, F.) And if a defendant is charged with the receipt of a sum of money, he must deny or traverse that he hath not received that sum, or any part thereof, or else set forth what part he hath received, and deny the rest. So of money paid out. (1 Harrison’s Chancery Practice, 181. Hoffman’s Practice, 263. Mitford's Pleadings, 247.) The defendant dan derive no benefit from Lord Clarendon’s 54th order, which was in the following words : "An answer to a matter charged as the defendant’s own act, must be direct, without saying that it is to his remembrance, or as he believeth, if it is laid to be done some years before, unless the court, upon exceptions taken, shall find special cause to dispense with so positive an answer.” (Hoffman’s Prac. 264.) The fair construction of this order is this : admitting the defendant’s case to be such an one as will entitle him to the benefit of this order, still this order does not excuse him from admitting or denying the facts charged in the bill; but he must still answer every material fact, with all its attendant circumstances charged in the bill; but he may qualify it by saying as he believeth. (Vide Ch. Walworth’s explanation and application of this order, Hall v. Wood, 1 Paige’s Ch. Rep. 404.) The chancellor here holds, that it depends upon the discretion of the court, whether the benefit of this order is tobe extended to a defendant or not; and the discretion of the court will always be governed by the circumstances and facts of each particular case. If the facts and circumstances of the case are such as would be likely to make such an impression upon the mind of the defendant that he would not be likely to forget them, then the defendant will be denied the benefit of the whole order.
    Chancellor Kent’s rule as laid down in the case of Morris v. Parker, (3 John. Ch. Rep. 297,) does not apply to this case. In that case the defendant was called upon by the complainant to answer in relation to the acts of third persons. And the chancellor says, “ that in such cases, where the defendant answers that he has not any knowledge or information of a fact charged in the plaintiff’s bill, he is not bound to declare his belief one way or the other. It is only when he states a fact upon information or hearsay, that he is required to state his belief or unbelief; and where the defendant answers that he is utterly and entirely ignorant as to the fact to which he is interrogated, it is sufficient.” But in those cases where the complainant charges in his bill that the facts are the defendant’s own acts, the defendant must answer positively, yea or nay, unless the court, from the lapse of time, and from a belief that the facts are of such a nature that the defendant would have been likely to forget them, sees fit to grant him the benefit of Lord Clarendon’s 54th order.
    In this case the defendant is obliged to answer to all the facts charged to be within his personal knowledge positively; but in making positive answers he may, as to facts more than, six years old, use the terms remembrance and belief. There is no case to be found where the defendant, under circumstances like the present, was excused from making such an answer.
   The Chancellor.

The form of the exceptions which have been taken to the answer in this case is very objectionable, and if they had been referred for impertinence, the greater part of each exception would probably have been rejected, on that ground. The complainant should state clearly and distinctly those charges in his bill which are not sufficiently answered, and leave the arguments in favor of the exceptions for an oral discussion, before the master, on the reference. I believe, however, there is sufficient substance in the exceptions to raise the questions which have been discussed here, and before the vice chancellor.

The defendant’s counsel is under an entire mistake in supposing this is one of those cases in which he is excused from either admitting or denying the charges in the bill. Every fact to which these exceptions relate is charged as having been done by the defendant, or when he was present and transacting the business in person. It is not for the court to say it is impossible he should have no recollection of having from time to time for a series of years taken usury from this complainant, at the rate of twenty-five, or fourteen per cent, or at some other rate. He is at least bound to admit or deny the facts charged according to the best of his knowledge and belief. If he denies it in this manner, as it appears there are two witnesses in existence who could be received to testify on an indictment to the truth of the facts charged in the bill, it would be for a jury of his country to determine whether they were satisfied he had no recollection or belief that he ever exacted usury in these transactions. As the answer now stands, it probably may be true that the particular details of this transaction had passed from his recollection, until he saw them stated with such minuteness, and sworn to by the complainants in the several bills which have been filed against him. But the manner of answering here does not negative the idea that the bill has refreshed his recollection on this subject so that he is now able to form a pretty accurate belief as to the actual state of the facts which transpired some years since.

The counsel who advised this answer has undoubtedly confounded the exception in Lord Clarendon’s order with the decision of this court in Morris v. Parker, (3 John. Ch. Rep. 297.) The first relates to facts charged in the bill as being the acts of the defendant, or as having been within his own personal knowledge ; the last, as to facts which the defendant never knew or heard of, except as they were stated to him from the complainant’s bill. In the last case, if he swears he has no knowledge or information as to those facts, except from what is stated in the bill, he is not bound to admit or deny them, or to express any belief, one way or the other. But in the first case he is bound to admit or deny the fact charged, either positively or according to his belief'; whether that fact occurred within seven years or at a greater distance of time. By Lord Clarendon’s order, if it was charged to have occurred within seven years, the defendant was bound to answer positively, unless the transaction was of such a nature that it. might reasonably be presumed to have passed from his recollection ; in which case it was put upon the footing of facts charged as his own acts, &c. but which had occurred more than seven years previous. In such cases the defendant was permitted to admit or deny the facts on his belief only, without swearing positively whether it was so or not. (Hall v. Wood, 1 Paige’s Ch. Rep. 406.) This objection applies to all the matters complained of, in the exceptions, as insufficiently answered. Many parts of the answer are also objectionable, as being argumentative ; or as being a literal answer to the charge, and containing a negative pregnant. (Lube’s Eq. Pl. 364.)

The order of the vice chancellor must be affirmed with costs; and the defendant must pay the costs on this appeal, and the costs awarded in the court below. He must put in his further answer within forty days after service of the order of affirmance, or the complainant’s bill is to be taken as confessed against him. And the proceedings are to be remitted to the vice chancellor of the sixth circuit.