source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Brown vs. Haff & Lyon.
    Upon a motion to dissolve an injunction, if the complainant relies upon affidavits, annexed to the bill under the 37th rule of the court of chancery, to contradict the answer, the defendant has a right to read affidavits, or other evidence, in support of his answer.
    The act to abolish imprisonment for debt has not deprived the court of chancery of the power to issue a writ of ne exeat, in cases of equitable cognizance, where such writ would have been allowed previous io the passage of that act But a ne exeat will not be granted upon a mere legal demand, upon which the complainant would not have been entitled to equitable bail in this court before the passing of that act, although the defendant is about to remove from the state.
    The court of chancery has jurisdiction, upon a bill filed by the vendor, to decree a specific performance of a contract for the purchase of real estate, and to compel the vendee to pay the purchase money, although the complainant has a remedy at law upon the contract.
    The court of chancery will not compel a purchaser to take a defective title, except where the purchase has been made at his own risk as to title, or where he has agreed to accept such a title as the vendor is able to give. It is sufficient, however, if the complainant can make a good title at the time of the decree, or when the master makes his report upon the title.
    But to entitle the complainant to a writ of ne exeat, upon a bill for a specific performance of a contract, against the vendee, he must show a debt actually due; and must therefore show affirmatively that ho is able to make a good title to the premises agreed to be sold.
    The bill in this cause was filed to compel the specific performance of a contract to purchase land of the complainant, by the defendant Haff, and to compel the latter to apply $550 on the contract; which sum, it was alleged, had been advanced by Haff to the defendant Lyon, on account of such ■contract, although Lyon had given a note, or ¡accountable receipt therefor. The bill alleged that the defendant Haff refused to complete his purchase, and was proceeding by a suit at law to recover back the money advanced to Lyon; and that he threatened to leave the state. An answer -on oath was waived; and several affidavits were annexed to the bill, for the purpose of showing that Haff had admitted that he liad advanced money to Lyon towards his contract with the complainant, and also to show that he intend» ed to remove from the state. Upon filing this bill, and the affidavits, a ne exeat was granted. An injunction was also issued to restrain the defendant Haff from collecting the $550 from Lyon ; but with liberty to proceed to judgment in the suit already commenced, without prejudice to the complainant’s equitable rights. The answer of the defendant Haff denied that he made, or agreed to make, the advance of $550 to Lyon on account of the contract with the complainant ; but stated that the same was advanced to him as a mere loan, for which Lyon gave a note, or accountable receipt, payable to him with interest. Haff further alleged that the complainant defended the suit at law, in the name of Lyon, and upon the-trial thereof) called as witnesses the persons whose affidavits are annexed to the bill, for the purpose* of proving that the $550 was advanced to be applied on the contract. Haff also called witnesses, who were present at the time Lyon received the money and gave his note therefor, to show that the fact was otherwise ; and that upon this testimony the jury found a verdict for the plaintiff in that suit. Haff admitted that he intended to remove from this state to the stale of Illinois to reside. He also admitted that he had refused to complete the purchase ; because he discovered that the complainant had defrauded him in making the contract, and could not give a perfect title to the land. Upon this answer, and upon an affidavit, and the certificate of the clerk, showing the result of the trial at law and the names of the persons who were sworn as witnesses, the defendant Haff moved to dissolve the injunction, and to discharge the ne exeat,

      J. Rhoades, for the complainant.
    According to the terms of the defendants’ agreement, and the reference therein to the joint bargain of the complainant and his associates, with Lyon, the defendant was bound to pay the purchase money, at the time stipulated, as a condition precedent to obtaining his deed. (Fuller v. Hubbard, 6 Cowen’s Rep, 13.) And having omitted to do so, or to tender the money, but having, on the contraiy, [refused to pay the game, or to fulfil the bargain, the injunction and ne exeat ought not to be dissolved. The defendant cannot deny notice of the original agreement with Lyon, which is expressly referred to in his agreement with the complainant; and therefore the latter agreement must be construed in connection with the former. And the payment made by the defendant to Lyon, must be taken to have been made in accordance therewith.
    In any event, as no want of responsibility is pretended, the court will retain the injunction and ne exeat until the hearing, unless the defendant shall give satisfactory security to perform the decree. This is necessary for the complainant’s safety, inasmuch as the defendant has no real estate within the jurisdiction of this court upon which the decree could operate, if his personal property should be removed out of its jurisdiction. The alleged incumbrances against Lyon form no objection, inasmuch as the same have been in part removed, and may be wholly removed before a decree; and the decree may be so framed as to render the defendant perfectly secure. (Clute v. Robinson, 2 John. Rep. 595.)
    The verdict of the jury, in the trial at law, was contrary to the evidence; and a case has been made for the purpose of obtaining a new trial on that ground, and also on the ground that the judge improperly excluded the testimony of David Brown. For which purpose we rely upon the cases of Young v. Black, (7 Cranch, 565,) Slade v. Halsted, (7 Cowen, 322,) Harden v. Gordon, (2 Mason, 541,) Hills v. Bannister, (8 Cow-en, 31,) Maze v. Miller, (1 Wash. C. C. Rep. 328,) Wardell v. Hughes, (3 Wend. 418,) Thompson v. Faussat, (1 Peters’ C. C. Rep. 182.) Denison v. Bacon, (10 John. Rep. 198,) Rumsey v. Leek, (5 Wend. 20,) People v. Howell, (4 John. Rep. 298,) Pearson v. Pearson, (7 John. Rep. 26,) and Schoonmaker v. Roosa, (17 John. Rep. 301.)
    ¡S'. Cheever, for the defendant Huff.
    The affidavits and bill do not shew sufficient to authorize a ne exeat, even before the statute to abolish imprisonment for debt. The complainant does not shew any indebtedness, except, for property of the defendant in the complainant’s own hands. And that the defendant could not take out of the state with him. He shews no balance of indebtedness. (Hoffm. Pr. 94.)
    A ne exeat should be granted only in cases purely equitable ; and not in cases where a remedy can be had at law. (Gardner v.-, 15 Ves. 444; 3 Atk. 501.) But had there been a positive debt due, and sworn to, the defendant could not have been holden to bail, since the act to abolish imprisonment for debt. And if the defendant had been brought up on a warrant issued under the third and fourth sections of that act, and .'shewn on his examination what he has shewn by his answer here, he would have been discharged by the judge. The legislature, by that act, has prohibited the imprisonment of a debtor, except by the mode therein pointed out. The statute virtually takes away the power from this court of issuing a writ of ne exeat for a simple indebtedness; otherwise the provisions of the act could be evaded by filing a bill for a debt, and thus doing by a ne exeat what could not be done at law.
    The injunction should be dissolved, because the equity of the bill is denied by the answer under oath; although an answer on oath was waived. The facts stated in the affidavit are insufficient of themselves to sustain the injunction ; and they are denied by the answer. And the trial and verdict in the suit at lay/ ought to be deemed conclusive as to these facts. The injunction should in no event be retained, unless the complainant gives security to indemnify the defendant against the loss of the amount of the note against Lyon.
    The affidavit, of @. Cheever, embodying the certificate of the clerk of Schenectady county, may be read on this motion, (Haight v. Case, 4 Paige, 535.)
   The Chancellor.

The charge in the complainant’s bill is positive, that the $550 was advanced to Lyon under an agreement that it should be applied on the contract of Half with the complainant; Lyon allowing Half for the interest of the money, until the payment upon the contract became due. And the answer of the defendant is as positive that no such agreement was ever made. The affidavits annexed to the bill go strongly to corroborate the complainant’s statement, although none of the deponents were present when the alleged agreement, on this subject, was made with the complainant, or when the money was received by Lyon. And if the question as to the dissolution of the injunction depended upon the charge in the bill, and this denial of the defendant alone, I should, upon the strength of those affidavits, retain the injunction till the hearing. But it has already been decided that a defendant may, upon a motion to dissolve the injunction, introduce other evidence in support of his answer, to rebut the affidavits annexed to the bill under 3 . ¡ the 37th rule. In this case, the defendant Haff produces the certificate of the clerk of the circuit, showing that all these 'deponents were examined as witnesses on the trial at law, and that the jury, notwithstanding their testimony, found a verdict for the plaintiff Haff, There is no suggestion here, that there was any collusion between Haff and Lyon as to the defence of that suit. On the contrary, it is stated in the answer that the defence of the suit was conducted by the complainant’s counsel in the name of Lyon. Besides; the complainant was not present when Lyon received the money, and therefore he could not know positively what agreement was made between Haff and Lyon at that time, in relation thereto. I have some doubts as to the propriety of granting this injunction originally. If Lyon teceived the money for the complainant, as an advance by Haff on his contract of purchase, the suit to recover back the money was one in which the defence of Lyon was complete at law, and the complainant has his remedy against Lyon for the money received for his use. Under the circumstances of this case, as they now appear, I think the injunction should not be any longer retained.

The question as to the discharge of ne exeat depends upon different principles. The act to abolish imprisonment for debt does not affect the power of this court to issue a ne exeat in any case of equitable cognizance in which it was proper to grant the writ previous to the passage of that act. The writ was never granted, except upon proof, or at least a probable presumption, that the defendant was about to leave the state. The legislature, therefore, have not thought it expedient to ^ePrh'e this court of the power of requiring this kind of bail, in cases which are-clearly of equitable cognizance, where the defendant is about to elude the justice of the court, by removing beyond its jurisdiction. And the first section of the statute was so framed as to protect parties in this court from arrest or imprisonment upon executions merely ; while in courts of law they are exempted from arrest on any civil process, except in (he cases provided for in the second section of the act. (Laws of 1831,p. 396.) In cases of mere legal cognizance, In which the court would not have granted a ne exeat previous to the act of April, 1831, this court will not now extend its jurisdiction for the purpose of giving to a complainant the benefit of equitable bail, although the defendant is about to remove from the state. In such cases the creditor must be left to the remedy provided for him by the legislature, by a proceeding under the third section of the act; however imperfect that remedy may be.

A suit in this court, against the vendee, to compel a specific performance of a contract to purchase land, has always been sustained as a part of the appropriate and acknowledged jurisdiction of a court of equity; although the vendor has, in most cases, another remedy, by an action at law upon the agreement to purchase. Where it is evident, therefore, that the complainant is in a situation to give a clear and perfect title to the premises, and that the defendant is wholly without excuse in refusing to complete the purchase, so that a specific performance must finally be decreed, the complainant is entitled to a ne exeat, upon furnishing the- usual evidence that the defendant intends to remove beyond the jurisdiction of the state. (Goodwin v. Clark, 2 Dick. Rep. 497. Boehm v. Wood, Turn. & Russ. Rep. 332.) Even in cases of this kind, however, if the specific performance, on the part of the defendant, consists in a payment of the purchase money merely, he cannot be taken in execution on the decree. The only effect of the ne exeat, therefore, will be to prevent the defendant from removing with his property beyond the jurisdiction of the court; and thus to render him amenable to such process as may be necessary to reach his property, or to compel him to apply it in payment of the decree.

This court will not decree a specific performance where the vendor cannot make a clear and undoubted title to the premises, unless the purchase has been made at the risk of the vendee as to the title, or the latter has agreed to accept such title as the vendor was able to give. In general, however, it is not necessary for the complainant to show that he was able to give a good title at the time of making the agreement to sell, or even at the commencement of the suit. It will be sufficient if he can give a perfect title at the time of the decree, or at the time when the master makes his report. (Langford v. Pitt, 1 P. Wins. 630. Clute v. Robinson, 2 John. Rep. 595. Coffin v. Cooper, 14 Ves. 205.) But to entitle the complainant to a writ of ne exeat, he must show a demand actually due at the time the writ is issued. He must therefore show affirmatively, at that time, that he is able to make a clear and unencumbered title to the premises agreed to be sold. In an anonymous case referred to by Mr. Dickens in a note t.o the case of Goodwin v, Clarke, Lord Thurlow inquired how it appeared that the complainant could make a good title 1 And that question not being satisfactorily answered, the ne exeat was refused. And in Morris v. M’Neil, (2 Russ. Rep. 604,) Lord Eldon discharged the writ, although the defendant had entered into possession of the property and had received the rents and profits for some time, because it did not sufficiently appear that the complainant could give a good title. He there says: “ Unless the court can make it out to be quite clear that there must be a specific performance, it cannot grant the writ of ne exeat regno.” In the present case it is neither alleged in the bill, nor sworn to in any of the affidavits thereto annexed, that the complainant had a clear and unencumbered title to the premises at the time of the commencement of this suit, or such a title as the defendant was in equity bound to receive. The complainant should at least have stated that he believed he was able to give to the defendant a good title. But if the answer is true, the complainant did not obtain a perfect title by the conveyance from Lyon and his wife, as it was subject to heavy encumbrances. If the de» fendant proves the fraudulent misrepresentation stated in his answer, that alone will be sufficient to prevent a decree for a specific performance, although the complainant may hereafter be able to give him a perfect and unencumbered title. The complainant in the end may be entitled to a decree ; but. he certainly has not shown sufficient at this time, to entitle him to retain this ne exeat. It must therefore be discharged.


text:
    In the matter of Christie, a lunatic.
    The chancellor will not grant an application, in the name of a lunatic, for leave to traverse the inquisition, unless he is satisfied, upon a private examination of the lunatic, or by the report of a master, that such is the wish of the lunatic, and that he is capable of understanding the nature and object of the application.
    But where the conveyance of a purchaser is overreached by the inquisition, the court, upon- probable cause shown, will permit such purchaser to traverse the finding of the jury, upon his stipulating to be bound by the final decision upon such traverse.
    Where a petition or affidavit is sworn to by a person who has been found by the inquisition of a jury to be a lunatic, 'the officer before whom the same is sworn should state in the jurat that he had examined the deponent for the purpose of ascertaining the state of his mind, and that he was-apparently of sound mind, and capable of understanding the nature and contents of the petition or affidavit.
    A commission of lunacy was issued in this matter, upon the petition of a son of P. Christie, the alleged lunatic. And by the inquisition, the jury found thatP. Christie had been of unsound mind for four years ; which finding overreached a conveyance of his farm, given by him to his son in law, S. Dobbin. On the part of the petitioner an application was made for the appointment of a committee. An application was also made, in the name of the lunatic, to set aside the inquisition for certain alleged irregularities in the execution of the commission or for leave to traverse the inquisition. The irregularities were denied by the affidavits of the sheriff and one of the jurors, who were charged therewith. It appeared that the alleged lunatic was eighty-six years of age ; and that he was blind, and so infirm as to be incapable of being brought before the chancellor for a personal examination.

      D. Russell, for the lunatic.

      8. Slevens, for P. Christie, the petitioner.
   The Chancellor.

There is no sufficient ground for setting aside the inquisition, the alleged irregularities upon the execution of the commission being satisfactorily denied or disproved. The only question, therefore, is as to the propriety of granting a feigned issue. There is reason to believe that this application, although in the name of the alleged lunatic, is substantially an application in behalf of the son-in-law whose deed is overreached, by the finding of the jury. Even in England, where the traverse of the inquisition is a matter of right, it is not usual to grant it until the chancellor, upon a private ■examination of the alleged lunatic, is satisfied that it is his wish to traverse, and that he is in a situation to present a petition for that purpose. (Shelf. on Lun. 118. . 1 Collin, on Lun. 172.) Here it is more important that a private examination should be had, as it is in (he discretion of the court to grant or refuse a feigned issue, where the application is made in the name of the alleged lunatic. * The certificate of the officer before whom this petition was sworn should also have been special. It should have stated that the officer had examined the petitioner, for the purpose of ascertaining the state of his mind and whether he was capable of understanding the nature and object of the petition, and that he was apparently of sound mind, and capable of understanding it. And, as the petitioner was blind, the officer should also have certified that the petition was carefully and correctly read over to him, in the presence of such officer, before he swore to the same.

In this case, as it appears that the alleged lunatic, in consequence of his age and other infirmities, cannot be brought before the court to be examined personally, I should not grant the traverse upon his application, without first having Mm examined privately, by one of the masters of this court. But as I am satisfied that this is substantially an application on the part of tile son-in-law, whose conveyance is overreached by the inquisition, and as the affidavits on his part show that it is a case of sufficient doubt to entitle him to ask for a feigned issue, I will direct such an issue, upon his filing a stipulation to be bound by the final decision thereon. This was done in the case of Roberts, (Buller's N. P. 217;) and Dr. Finney, who had obtained a conveyance of the lunatic’s estate, agreed7 to be bound by the traverse. In that case also the chancellor compelled the party, who. had joined in the traverse, to perform his agreement to be bound thereby. (See 4 Bro. C. C. 238, note.)

The appointment of a committee is tobe suspended until it is ascertained whether Dobbin consents to an issue, and to be bound by the result of the same. If he files such consent a double issue is to be framed, so as to ascertain whether the alleged lunatic was of unsound mind at the date of the deed, as well as at the time of the finding of the inquisition.


author: The Chancellor

text:
    In the matter of Kennedy and others, infants.
    Where the guardian of infants has been appointed by a vice chancellor, an application to remove such guardian, or to compel him to account by a summary proceeding, should be made to the vice chancellor by whom he was appointed, or to his successor, and not to the chancellor.
    This was an application to remove a guardian of the infants, who had been appointed by the vice chancellor of the third circuit.

      S. Stevens, for the petitioners.

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

decided that, as the proceedings for the appointment of the guardian had taken place before the vice chancellor, the application must be made to that officer, or his successor, forxan order to remove the guardian; or to compel such guardian to render an account of his trust, by a summary proceeding against him.


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    Schroeppel vs. Redfield.
    A bill of discovery, in aid of the complainant’s defence in a suit at law, is not a suit in chancery concerning property, within the meaning of the provision of the revised statutes, requiring the court of chancery to dismiss suits concerning property where the matter in dispute does not exceed one hundred dollars.
    Where the bill contains a general prayer for relief, as well as for a discovery, the defendant may demur, if it appears upon the face of the bill that the value of the matter in controversy does not exceed one hundred dollars.
    If the bill contains no prayer for relief, it will be considered as a bill for discovery merely, although, in the prayer for process of subpmna, the word decree is erroneously added to the words usually inserted in a bill of discovery.
    Where the loser is sued at law upon a note given upon an illegal bet or wager, he may file a bill in chancery for a discovery of the consideration of the note, in aid of his defence at law, although the amount of the note is less than one hundred dollars.
    This was an appeal from a decretal order of the vice chancellar of the seventh circuit The object of the complainant’s bill was to obtain a discovery for the purpose of aiding him in Ms defence to a suit in the supreme court, upon a $¡50 note. The bill charged that the complainant made a bet that Francis Granger would be elected governor at the general election in the fall of 1882 ; that the note was put into the hands of Redfield, the defendant in this suit, as a stake holder, and that he was the only person present, except J. H. Colvin with whom the bet was made, when the note was given, or who knew that it was made to secure the payment of the bet; that Colvin, having won the bet, had brought the suit at law, on the note, in the name of Redfield, for the purpose of depriving the complainant of the testimony of the latter; and that the complainant had no means of proving the material and necessary facts to make out his defence, without a discovery from Redfield. The bill contained no prayer for relief. But the prayer for subpoena, instead of concluding in the usual form of a mere bill of discovery, used the word decree, instead of, or after, the word direction, as in the conclusion of the prayer of process upon a bill for relief; so that it read, “and further to stand to, perform, and abide such order, direction and decree as to your honor shall seem meet,” &c. The defendant demurred to the bill, for want of equity ; which demurrer was overruled by the vice chancellor. From the order overruling the demurrer the defendant appealed.

      J. Edwards, for the complainant.

      H. Davis, jun., for the defendant.
   The Chancellor.

The objection that the complainant shows by his bill that a discovery is not necessary, as he can prove, by the testimony of Colvin, all that he seeks to discover, is wholly untenable. Whether a court of law will compel the real plaintiff in the suit to give testimony in favor of the adverse party, appears at least doubtful, since the decision of the supreme court, in the case of Mauran v. Lamb, (7 Cowen's Rep. 174.) But it is not necessary to examine that question here. It is expressly charged in the bill, and that too upon the oath of the complainant, that he has no means of showing and proving the material and necessary facts in his defence to the suit on the note, without the aid of a discovery from the defendant Redfield. And'lbis allegation in the bill being admitted by the demurrer to be true, unless contradicted by other facts stated in the bill, we may reasonably presume that there was some legal difficulty in the way of using Colvin as a witness; or that the complainant believed he would not testify truly as to the facts within his knowledge, if called as a witness in the suit at law.

The 37th section of the article of the revised statutes relative to the general powers, duties and jurisdiction of this court, (2 R. S. 173,) makes it the duty of the court to dismiss every suit concerning property where the matter in dispute, exclusive of costs, does not exceed the value of $100. A mere bill of discovery, in aid of the defence to an action at law, cannot properly be called a suit in this court concerning property. And the vice chancellor of the first circuit, in the case of Gol dey v. Becker, (1 Edw. Ch. Rep, 271,) accordingly held, that this provision of the statute did not apply to such a bill. That decision has been followed by the vice chancellor of the seventh circuit in the present case; and upon a careful examination of the statute, I have arrived at the conclusion that these decisions are right. The legislature having declared betting, as well as other gaming, unlawful, and authorized the loser to recover back his money, or other property, from the winner, or the stake holder, this court should not unnecessarily give such a construction to the 37tli section of the revised statutes, fixing the minimum of suits concerning property in this court, as to render the statutory provisions against betting and gambling nugatory. And they will be nugatory, to the extent of $100 at least, if the winner, by the simple device of taking negotiable notes and suing them in the name of the only witness to the transaction, or in the name of himself and of such witness jointly, can preclude the possibility of a defence. There is no danger that bills of discovery will be filed uselessly, or for trivial matters, as the complainant must always pay his own costs. And he is also liable for the defendant’s costs, unless he has distinctly asked for the discovery before the filing of his bill, and all the facts charged in the bill are admitted by the answer.

I do not agree with the vice chancellor, in the opinion expressed in the present case, that a demurrer will not lie to a bill which seeks both a discovery and relief in this court, if it appears, upon the face of the bill, that the amount in controversy is less that $100. By introducing a .prayer for relief, the complainant makes it a suit in this court concerning property, and if the value of the demand or property in controversy is less than $100, the statute is imperative that this court shall dismiss such suit with costs to the defendant. The principle of the case of Higinbotham v. Burnet, (5 John. Ch. Rep. 284,) is not applicable to the case of a bill which comes within the 37th section above referred to. In such cases a general demurrer will lie, both as to the discovery and the relief, where the fact that the value of the matter in dispute does not exceed $100 appears from the bill itself.

I do not think, however, that the mistake in the prayer of process, made the bill in this case a bill for relief. The prayer for relief usually precedes the prayer for process; and no repef cau ]3e granted upon the ordinary conclusion of the prayer for subpoena, it is nothing more than a prayer for a subpoena to compel the defendant to appear and answer the bill, and abide the decision or determination of the court in such bill. And there is very little difference in the effect of the expression to abide the further order and direction of the court,” as used in a tiiere bill of discovery, or “ to abide the further order and decree of the court,” which usually follow's the prayer of process, when either particular or general relief has previously been prayed in the proper form. The imperfect report of the case of Rose v. Gannel, (3 Atk. Rep. 433,) appears to have , misled others as well as the vice chancellor. But it appears, by reference to the register’s book, that in the end Lord Hard-wick made the proper decision in that case, and gave costs as upon a bill of discovery. And in Hodgins v. Scott, (2 Moll Ch. Rep. 436,) Sir Anthony Hart held that the character of a bill of discovery was not altered, even by the addition to the prayer of process such other relief as your suppliant may be entitled to,” where no relief was prayed in the usual form,, and the bill in other respects was a mere bill of discovery. So also, in the recent case of Angell v. Westcombe, (6 Sim. R. 30,) the vice chancellor, Sir Lancelot Sliadwell, said that the prayer for general relief was inserted by counsel, and if found in a bill w'hich, in other respects, sought a discovery only, it converted the bill into a bill for relief. But that the words, in the prayer of process: “ To stand to and abide such order and decree, &c.” were supposed to be inserted by the clerk, and therefore did not make it a bill for relief.

The decretal order of the vice chancellor is affirmed, with easts,


text:
    Norton vs. W. Woods & D. Woods.
    Where one partner assigns all his interest in the demands and effects of the firm to his copartner, and the latter brings an action at law, in the name of both, for a copartnership demand, the defendant in such action cannot, on the trial at law, examine the assignor as a witness; neither can he give in evidence admissions, or the answer of the assignor to a bill of discovery, made subsequent to the assignment and notice thereof to prove a set-off or establish any other defence in such action.
    If a nominal plaintiff in an action at law, but who has no real interest in the suit, is the only witness by whom the defendant can establish his defence to such action, the defendant may file a bill in chancery against the real plaintiff, to restrain the proceeding at law, and to have the controversy settled in this court, whore such nominal plaintiff may be examined as a witness.
    Where a party who is sued at law has a legal defence, he must, as a general rule, avail himself of it in that suit; and it will be too late, after ho has suffered a judgment to be recovered against him at law, to apply to tho court of chancery for relief.
    If the facts which constitute a legal defence to an action at law can only be established by a discovery from the plaintifij and the defendant can, by the aid of such discovery, avail himself of such defence at law, he should resort to that mode of defence to tho action, or he may be precluded by the judgment. But in cases of that kind the court of chancery, if a satisfactory ex- . «use is given for not resorting to a bill in the first instance, may grant re-fief, after judgment has been obtained in the action at law.
    This was an application to dissolve an injunction which restrained the defendants from proceeding to collect a judgment recovered in the supreme court. W. Woods, one of the present defendants, had been a copartner with A. Bishop and H. Sulkley, and afterwards purchased out their interest, and took an assignment of all the partnership property and effects, and. agreed to pay all the debts of the firm. He after-wards brought a suit against Norton, in the name of himself and his former copartners, for the recovery of a demand alleged to have been due to the firm at the time of the assignment. The defence set up, as to a part of the demand, was an offset, and as to the residue Norton claimed to have paid it to Bulkley, as one of the firm, previous to the assignment. Upon the trial of the cause in the supreme court, Norton called Bulkley as a witness, to establish this defence. But the cot®-» sel of Woods objected that he could not be a witness for the defendant, as he was.one of the plaintiffs on the record, and the objection was sustained by the circuit judge. Norton then offered to give in evidence the admissions of Bulkley, but as those admissions were made after the assignment of all his interest in the partnership effects to Woods, that evidence was also overruled. The cause was carried up, on a case made, and the decision of the circuit judge was confirmed. The complainant thereupon filed his bill in this court, stating these facts, and that he had a good defence to the claim upon which the judgment had been rendered against him, which he could not prove, except by the testimony of Bulkley, one of the nominal plaintiffs in the suit at law, but who in reality had no interest in that suit; and that W. Woods was insolvent, and had assigned his property to D. Woods, the other defendant in this suit. An injunction was granted, upon giving security for the amount of the judgment. And upon the corning in of the answer, this application was made for a dissolution of the injunction.
    J. Holmes <y S'. Stevens, for the complainant

      David Russell, for the defendants.
   The Chancellor.

The facts upon which this injunction rests are positively sworn to in the bill, as matters within the complainant’s own knowledge. .But the defendants could only deny them upon their information and belief, not being matters within their personal knowledge. So far, therefore, as the dissolution of the injunction depends upon the answer of the defendants, the equity of the bill is not sufficiently denied ; and the injunction should be retained until the hearing, to enable the complainant to substantiate these positive allegations of his bill by proof. It becomes necessary, then, to examine the allegations in the bill, for the purpose of seeing whether they are sufficient, if sustained by proof, to entitle the complainant to the relief which is sought by him.

As a general rule, if a party against whom an action is brought has a legal defence, he must avail himself of it in the suit at law. " it will be too late, after he has suffered a judgment to be recovered against him there, to apply to this court for relief. And even where the facts constituting the legal defence can only be established by a discovery from the plaintiff if they are fully known to the defendant, and he can avail himself of them upon the trial, by the aid of a bill of discovery, lie should resort to that mode of defence, where the necessity of it is apparent, or he may be precluded by the judgment in that suit. In cases of this kind, however, this court will accept of a satisfactory excuse for not resorting to a bill in the first instance, and may grant relief, after judgment has been obtained in the suit at law.

In the present case, I am satisfied there was no way in which this complainant could have availed himself of the testimony of Bulkley, on the trial of the suit in the court of law. The fact that he was a party to the record prevented his being examined as a witness, according to the technical rules of Shat court, even with his own consent. And as he could not be allowed to confess away the rights of his assignee, after Norton had notice of the assignment, his admissions and declarations were properly rejected. The same difficulty would also have existed if Norton had attempted to aid his defence by means of a bill of discovery. The facts not being in the knowledge of Woods, the real plaintiff no discovery from him would have aided the defence. And the same objection would have existed to reading tire answer of Bulkley in evidence, as io giving his declarations, or his ex parte affidavit, in evidence on the trial. In either case the real plaintiff would have been deprived of the benefit of a cross-examination. And I think the court of' law would not have permitted the answer to be ¡read in evidence against the assignee of the debt. The only remedy in such a case appears to be by a resort to this court; not upon a mere bill of discovery, but by a bill for relief—where persons who have no interest in the litigation may be examined as witnesses for either party, and the party against whom they are called will have a fair opportunity for a cross-examination. And, if necessary, a feigned issue may be awarded to try the question in dispute between the real parties to the controversy.

The facts stated in Ibis bill, if established at the hearing, appear to be sufficient to constitute a case for equitable relief against the judgment. The motion to dissolve the injunction must therefore be denied. And the complainant’s costs of opposing the application are to abide the event of the suit; and must be paid to him, if he finally succeeds in the cause.


text:
    Desplaces vs. Goris and others.
    Where a written agreement, set out in the bill, was admitted by the answer of one defendant, but was. not admittéd by the other defendants who claimed through himij- and the complain ant’s counsel, under a misapprehension of the law, closed the proofs and brought the cause to a hearing without making formal proof of the written agreement; and the objection being taken at the hearing, that the agreement should have been proved, as against those defendants who had not admitted its execution ; Held, that the court might suspend the argument, and give the complainant an opportunity to prove the agreement, in the usual way before an examiner,
    The bill in this cause was founded upon a written agreement in the French language, a translation of which was set out at length, in the complainant’s bill. The defendant Goris and the complainant were the only parties to this agreement, and it was sought to charge the other defendants through that agreement. As the agreement, stated in the bill, was substantially admitted in the answer of the defendant Goris, the complainant’s counsel, through inadvertence, neglected to make formal proof of such agreement, and of the correctness of the translation thereof; supposing the admission in the answer of Goris would be sufficient. Upon the heaving of the cause, and after the complainant had finished bis opening argument, the objection was made that, this agreement had not been proved, so as to entitle it, or the translation thereof, to be read as against the defendants; especially against those who were not parties thereto. The vice chancellor decided that this objection was well taken; but he suspended the further hearing of the cause, to enable the complainant to give regular notice of an application to make this formal proof of the agreement. And upon such application, the vice chancellor allowed the complainant to prove the execution of the agreement, and the correctness of the translation, in the usual way, by witnesses before an examiner. From this decision of the vice chancellor the defendants appealed,
    T. T. Payne, for the complainants.

      C. Edwards, for the defendants.
   The Chancellor.

The neglect to make formal proof as to the execution of this agreement, and as to the correctness of the translation set out in the bill, was satisfactorily accounted for by the affidavit of the complainant’s counsel. And the case of Cox v. Allingham, (Jacob's Ch. Rep. 837,) xvas a sufficient authority to sustain the decision of the vice chancellor; if any authority was necessary to sustain a decision so manifestly just and proper. There was no pretence on the part of either of the defendants, that they had any reason to believe the agreement was not in fact executed by GS-oris, or that the translation thereof, as stated in the bill, was incorrect. The only effect therefore of denying this application would have been, to subject the parties to the delay and expense of a new suit; as it would, under the circumstances of this case, be a matter of course to permit the complainant’s bill to be dismissed, without prejudice to his right to proceed de nova. As the proof of the agreement was a matter of mere form, to which the attention of the complainant’s counsel was called for the first time at the hearing, the vice chancellor did right to give him an opportunity to apply to correct the formal defect; instead of subjecting the parties to the useless expense of a new suit.

The order appealed from is affirmed, with costs.


text:
    Butts & Havens vs. Genung and others.
    Where a bill is filed against the representatives of a deceased partner, to obtain satisfaction of a copartnership debt, out of the estate of the decedent, the joining of the surviving partner, who is insolvent, with them as a defendant, does not render the bill multifarious, or authorize such representatives to demur.
    Whether it is necessary to make the insolvent partner a party in such a case ? Quiere.
    No bill can be filed against heirs or devisees of real estate, to obtain satisfaction of a debt due from the decedent, until the expiration of three years after the granting of letters testamentary, or of administration, on his estate. And if the fact that the suit is prematurely brought, appears upon the face of the complainant’s bill, the defendants may demur; or they may insist upon that objection in their answer.
    Under the provisions of the revised statutes, a creditor of the decedent cannot file a bill against his heirs and personal representatives jointly, to obtain satisfaction of a debt out of the real and personal estate. And such a misjoinder of defendants will render the complainant’s bill multifarious.
    To enable a creditor to sustain a bill in chancery, against the heirs or devisees of his deceased debtor, after the expiration of the time limited for the commencement of proceedings against the real estate before the surrogate, under the provisions of the revised statutes, the complainant must distinctly state, in his bill, that the personal estate of the decedent was not sufficient to pay his debts; or that, after due proceedings before the surrogate and at law, he has not been able to collect his debt out of such personal estate.
    In such a suit, against heirs or devisees, a general decree for the sale of the real estate, and a distribution of the proceeds of such sale among the creditors of the decedent, cannot be made ; but each creditor must file his sep- ■ orate bill for the recovery of what such heirs or devisees are liable to pay to him, after satisfying all legal priorities, and the proportionate claims of other creditors. And the proportion of the debt and costs decreed against each heir, and devisee, is to be collected by execution, and not by a master’s sale.
    A creditor may file a bill in chancery against the personal representatives of his deceased debtor, at any time after they have accepted the trust. But as they have one year for the settlement and adjustment of claims, and for the collection of debts and the getting in of the estate, so as to enable them to make a proper distribution thereof according to the statute, the complainant will not be allowed his costs in a suit commenced within that time, unless such suit was necessary for the preservation of the estate.
    This was an appeal from an order of a vice chancellor,overruling the demurrers of the appellants to the complainants9 bill. The defendant, Genung, and Parley Russell were partners, and were indebted to the complainants for goods. Russell died intestate, in December, 1831; in July thereafter, the complainants recovered a judgment in the supreme court against Genung, as the surviving partner, for the amount of the debt, upon which judgment a fi. fa. was issued, and was returned unsatisfied. The complainants thereupon filed their bill in this cause, against Genung, the surviving partner, and against the personal representatives, and the heirs at law of Russell, to obtain satisfaction of their debt out of the real or personal estate of the deceased partner; Genung being wholly insolvent, and unable to pay any part of the debt. The bill was filed within a year after the death of Russell. And the complainants charged therein that Genung was insolvent, and unablé to pay any thing; that Russell, at the time of his death, left considerable personal property, and a large real estate, more than sufficient to pay the complainants’ demand; and that they had applied to the personal representatives for payment thereof. The complainants therefore prayed for a discovery as to the personal estate of the decedent, and of the real estate of which he died seized; that the administrators, might be decreed to pay the amount of the judgment against Genung, if there should be sufficient assets in their hands for that purpose; if not, that the same might be decreed to be paid out of the real estate of which Russell died seized, and that such real estate might be sold for that purpose.
    The administrators demurred to the bill for want of equity, and for multifariousness, and also because Genung and the heirs at law were improperly joined with them as defendants. The heirs at law, who were infants, also demurred for want of equity, and for multifariousness; and also on the ground that the heirs at law were not proper parties to the suit against Genung and the administrators. The vice chancellor overruled both demurrers. And from this decision the administrators, as well as the heirs at law, appealed to the chancellor.

      L H. Sandford, for the appellants.
    P. Bronson, for the complainants.
   The Chancellor.

There is no doubt as to the liability, in equity, of the real as well as the personal estate of the deceased partner, for the payment of the partnership debts; the surviving partner being insolvent, and unable to pay any thing. The separate creditors of the deceased partner are, however, entitled to a priority in payment out of his individual property. (Egberts v. Wood, 3 Paige’s Rep. 517.) Whether it was absolutely necessary that the insolvent partner should be made a party to a suit against the representatives of the decedent, to enable the complainants to reach the estate of the latter, is a question not necessary to be decided on this appeal. It is sufficient to say that Genung, the surviving partner, was not an improper party, as regards the other defendants, so as to render the bill multifarious on that account. If no decree whatever can be made against him, either in favor of the complainants, or of his co-defendants, he alone can make that objection. And if any decree can be made against him, upon the facts stated in this bill, it must be a decree for the benefit of his co-defendants, to relieve the estate of their intestate from the payment of the debt or some part thereof, in the nature of a decree for contribution.

The material questions which arise in this case are, as to the right of the complainants to sue the heirs at law of the deceased partner, within the period of three years after the granting of letters of administration on his estate ; and whether the joining of the heirs and personal representatives in one suit does not, under the provisions of the revised statutes, render the bill multifarious. Upon the first question there appears to be very little ground for doubt. By the provisions of the title of the revised statutes relative to the powers and duties of executors and administrators in relation to the sale and disposition of the real estate of their testator or intestate, the personal representatives are authorized to apply to the surrogate for a sale of the real estate of the decedent, for the payment of his debts, at any time within three yearn after the granting of letters testamentary or of administration. And if such personal representatives neglect to apply to the surrogate, any creditor is authorized to make a similar application to the surrogate to compel such sale, after citing the executors or administrators to account. (2 R. S. 100, § 1 Idem, 108, § 48.) The legislature having furnished this cheap and summary mode of proceeding for the payment of the creditors out of the real estate of the decedent, where his personal property is insufficient for that purpose, have, in the 53d section of the same title, absolutely prohibited the creditors from wasting the real estate by useless suits in this court against the heirs or devisees, during the time limited for the institution of proceedings before the surrogate, for such sale. The first clause of that section in terms declares that no suit shall be brought against the heirs or devisees of any real estate, in order to charge them with the debts of the testator or intestate, within three years from the time of granting letters testamentary, or of administration, upon the estate of their testator or intestate.

To show that such was the .meaning and intent of the legislature, and that this provision of the revised statutes was inserted upon due deliberation and with a full understanding of its practical effect, it is only necessary to refer to the revisers’ note to the 53d section, as originally drawn. The section, as prepared by the revisers, did not prohibit the commencement of a suit against the heirs or devisees within the three .years. It merely provided for a stay of proceedings in such suit, upon proof that an application had been made to the surrogate for a sale, until the result of the application was ascertained. But in the note of the .revisers, which stated the reasons which had induced .them to propose that section, they suggested it as a question worthy of the consideration of the legislature, whether any suit should be permitted against the heirs and devisees during the three years in which the creditors were authorized to proceed, before the surrogate, for a sale of the real estate under the provisions of that title of the proposed revision. In conformity with this suggestion, the -legislature thought it expedient to alter the 53d section, and to introduce the absolute prohibition as it now stands its the first clause of the section. (See Rev. Rep. ch. 6, of pt. 2, p. 82.) In cases of this kind, therefore, if the fact that the suit, in this court, has been brought before the expiration of three years after the granting of letters testamentar}', or of administration, appears upon the face of the bill, (he heirs or devisees may demur; or they may insist upon that objection in their answer, and the bill must be dismissed. And if it does not appear upon the face of the bill, the defendants may bring the fact before the court, either by (heir answer or by a plea. In this case it appears, by the bill itself, that three years could not have elapsed after the granting of letters of administration on the estate of the decedent; as it is stated that he died in December, 1831, and this bill was filed within a year from that time.

A suit at law may be brought against the executors, or administrators, at any time after their acceptance of the trust. But the plaintiff will not be entitled to costs, unless the payment of the demand has been unreasonably resisted or delayed, or the personal representatives have refused to consent to a reference as to the validity of the plaintiff’s claim. (2 R. S. 90, § 41. Swift v. Blair's Ex'rs, 12 Wendell, 278.) And as the revised statutes have in effect given to the personal representatives one year, for the settlement and adjustment of the various claims against the estate, and to collect the debts and get in the estate, so as to enable them to make a proper distribution according to the statute, this court will not encourage the sacrifice of the property by a multiplication of suits here within that period; unless special reasons exist, which render a resort to this court necessary or proper, for the preservation of the estate. (See 2 R. S. 88, § 34, &c.) I am not, aware, however, of any provision of the revised statutes which authorizes this court to decline jurisdiction in a suit against the personal representative^ t any time after he has assumed the trust. A demurrer, therefore, will not lie to such a bill, on the ground that it was filed within the year. But the defendant, in his answer to such a bill, may insist upon the fact that the suit has been causelessly and prematurely brought, for the purpose of showing that the estate of the decedent should not be charged with cost; in analogy to the principle contained in the 41st section of the article of the revised statutes, relative to the duties of executors and administrators in the payment of debts and legacies. (2 R. S. 90.)

Upon a careful examination of the several provisions of the revised statutes, relativo to suits against heirs and devisees, •1 have arrived at the conclusion, that it is no longer allowable for a creditor to file a bill against the personal representatives, and the heirs or devisees of the deceased debtor, jointly, for the purpose of compelling payment of his debt. The specific remedy which is now given to the creditor, in this court, against the heirs or devisees, after the expiration of the time limited for the commencement of proceedings before the .surrogate, is a substitute for the former mode of proceeding by action at law, which is now abolished. (2 R. S. 454, § 42.) To entitle the complainant to maintain such a suit against the heirs or devisees, in this court, as is now directed by the statute, it must be distinctly stated in the bill, that the personal •estate of the decedent was not sufficient to pay and discharge the debts, or that after due proceedings before the proper surrogate’s court, and at law, the complainant has been unable to collect his debt, or some part thereof, out of the personal estate. .(Idem, 452, § 33, 36.) And the decree, which is to be rendered against the heirs or devisees, is not, as formerly, a decree for a sale of the real estate, and a distribution of the proceeds thereof among all the creditors who may come in under the decree, according to the amount of their debts and their legal priorities. But each creditor must file a bill for himself; for the recovery of what the heirs or devisees are liable to pay to him, after satisfying all legal priorities, and the proportionate claims of other creditors. (Idem, 453, § 38, 39,40,41.) And where there are several heirs or devisees, the amount which each is liable to pay must be ascertained by the decree; and a part of the costs is to be apportioned against each. So that the land descended to each is only to be charged with his or her portion of the debt and costs. (Idem, 455, § 52, 53.) The statute also contemplates that the amount decreed shall be collected by execution, in the usual manner; and not by a sale of the land under the direction of a master. (2 R. S. 454, § 47. Id. 455, § 54,55.)" These several provisions show the manifest impropriety, as well' as-the inconvenience, of connecting the suit against the personal representatives,, in which,all other creditors have-a right to come in under the* decree, with a suit against the heirs - or devisees, which is for the benefit- of the particular creditor only. The- objection which is made by each demurrer, as to the improper joinder of these parties in the same suit, is therefore well, taken ; as it- renders the bill multifarious.

The decretal order, of the- vice chancellor, overruling the demurrers, must be reversed; with- costs.- And the bill,, as to each class- of defendants who have demurred, must be- dismissed with costs; but without prejudice to the right of- the complainants to commence de nova,.against the proper parties,, if they shall be so advised..


text:
    Norton vs. W. Woods & D. Woods.
    A" defendant cannot, be allowed to -introduce irrelevant matters into his-an-. swer, for the purpose of discrediting the witnesses, who, as- he supposes,, may be called by the complainant to sustain the suit.
    in-a bill" or answer whicli is to be sworn to, if the fact-which-the party wishes to introduce as-an averment, is only derived from the information of an - other person, who knows the fact, it is allowable, in pleading in this court, to state the information, and to add'an averment of the belief of the party that the information thus communifcatcd to Him is true.
    In a suit for relief against a judgment at law, neither the judge’s notes,nor {lie case made and settled therefrom, are legal or proper evidence to conclude the parties, as to.-the facts which occurred qr were proved upon the trial of the cause, and they ought not to bo referred to and made a part of the answer. The facts, which occurred on the trial at law, should be directly stated in the answer, leaving the truth of the allegations to be established by proof, in the usual manner.-.
    A repetition of the same allegations, in different parts-of a biU.or answer, renders either one or the other of such allegations impertinent.
    Where pertinent matter is so mixed up with that which is impertinent and irrelevant that-'they cannot be separated, the whole may be rejected as impertinent..
    Where part of the exceptions are allowed, and the rest disallowed, the costs to which the respective parties are entitled, may be offset, or a proportionate share of the costs, only, may be allowed to (he party who succeeds aa. io,a. majority of the exceptions, t

      This case came before the court on exceptions to a master’s report, upon exceptions to the answer of the defendants for impertinence. Twenty-two exceptions were taken to the answer, and the master decided that all, except the 1st, 11th,. 12th and 22d, were well taken ; and the defendants excepted to the master’s report, as to the allowance of each of the other eighteen."
    The principles upon which the several exceptions were allowed or disallowed will sufficiently appear in the chancellor’s' opinion..

      J. Holmess for the complainant:.

      D. Russell} for the defendants.
   The Chancellor.

The second exception to the answer is well taken. The matter excepted to, contains an irrelevant* and impertinent statement as to the situation, relationship, and means of living of Henry Bulkley, and as to his friendship for the complainant and hostility to one of the defendants. It is neither responsive to the bill,.nor material to the-defendants’ defence; and appears to have been inserted in. the answer merely for the purpose of discrediting Bulkley, if he should be called by the complainant as a witness. This-mode of impeaching a wit ness is inadmissible. If he should* be sworn as a witness for the complainant, the defendants will, at that time have an opportunity, to introduce any facts which, are proper to discredit him; but this part of the answer can in* no event be used for that purpose. The first exception to the master’s report is therefore overruled.

The third exception covers a part of the answer which appears to. be pertinent. That part of the answer is, in substance, an allegation, on the part of the defendant William Woods, of a promise to pay the balance of the account as stated on the books of the company, after the assignment of the same to him by his copartners. He says he sent his clerk to the complainant to obtain payment, and that the- clerk returned, and informed h.im that the complainant promised-to. pay it in a short time; which information, so given by. the clerk, the defendant believes to be true. This is clearly an averment of a promise to pay. And as the fact'was only known to the defendant by the representation of his clerk, it seems to have been proper to charge it in this form ; as the defendant ccald not swear to it as a fact within his own knowledge. The second exception to the master’s report is therefore allowed.

The fourth exception embraces a part of the answer which contains an unnecessary reference to the contents of a case made in the suit at law. And the ninth and thirteenth exceptions embrace similar references to the case, and also to the circuit judge’s notes. Neither the case or judge’s notes are (he proper evidence of the foots which occurred upon the trial of the cause at the circuit. It was therefore improper to make them a part of the answer. All that was necessary, or proper, for the defendants to insert in the iranswer, was a statement of the facts proved on the trial; leaving the truth of the answer to be established by proofs, in the usual manner, if the complainant chose to take.issue thereon. These exceptions were therefore properly allowed by the master; and the third eighth and tenth exceptions to the report of the master must be overruled.

The 5lh and 6th exceptions embrace parts of the answer which are almost literal repetitions of the same matters which are fully stated on the 6th, 7th and 8th pages of such answer, and which matters ought not to have been stated the second time. These exceptions were therefore properly allowed, and the 4th and 5lh exceptions to the report must be overruled.

The 7th exception embraces a reference, in the answer, to the books of the company, for the purpose of showing, or testing, the correctness of the defendants’ allegation that the fifty-six dollar note was credited to tile complainant on such books, as alleged in the answer. Such a reference to account books is usual and proper in an answer, and is therefore not impertinent ; and as this is embraced in the same exception with other matter which is impertinent, the exception should have been overruled, as it was not sustained in tote. The 6th exception to the master’s report is therefore allowed.

The matter of the answer embraced in the 8th exception might have been proper as an argument, in the mouth of the defendants’ counsel, in support of the allegation contained in other parts of the answer, in a case of conflicting testimony on the subject. But as a part of an answer, it is irrelevant and impertinent. It is also scandalous. The 7lh exception to the master’s report is therefore overruled.

The 10th exception embraces that part of the answer which states the granting of ah order for a bill of particulars, and sets out the bill of particulars, and the amended bill, at length. The whole of this statement in (he answer appears to be useless and impertinent. The bill and answer, independent of this, showed a slate of pleadings in the suit at law which would have authorized the complainant to litigate all his claims in that court, if the forms of law had enabled him to avail himself of the testimony of II. Bulkley in that suit. And whether a bill of particulars was or was not called for and delivered, appears to be wholly immaterial, and irrelevant to the present controversy between these parties. The matters of the answer embraced in the 15th exception, which relate to the bill of particulars and its connection with the credits upon the books of the company, are also irrelevant and impertinent. The 9lh and 12th exceptions to the master’s report are therefore overruled.

The 14th exception is also well taken ; as the part of the answer embraced in that exception is merely a repetition of what, is slated on the latter part of the 22d page of the same answer. The 16th exception also embraces a part of the answer which contains a second repetition of the same matter stated in the latter part of the 22d page, and a repetition of other matters, which were before stated, in the ISth page of the answer. This exception is therefore well taken ; and the lllh and 13lh exceptions to the master’s report must be disallowed.

The 17th, 18th 19th and 20th exceptions embrace parts'of the answer containing long and useless details of the.proceedings in the supreme court., for the making and settlement of the case, the several notices given, and the times and places of attendance before the circuit judge, and the supreme court, in relation thereto, and the service of a notice of taxation of the costs; none of which matters are of the least importance to either party in the present litigation, and which details are not called for by any thing contained in the bill. These exceptions were therefore properly allowed by the master; and the 14th, 15th, 16th and 17th exceptions to his report .must be overruled.

The part of the answer embraced in the 21st exception, ■■contains-a detail of the particulars of a notice of a motion to ¡the supreme court, and of the result of such motion ; no part ■of which was at all material to the defendants’ defence in this ■suit, go much, however, :of this part of the answer as states that the motion was actually made in that court, and the result thereof, would have been proper, as an admission of a fact stated in the bill, bad it been put in that form. But it is not .put in the form of an .admission ; and it is so mixed up with ■irrelevant and impertinent matter, which ought not to have ■been stated, that it is impossible to separate it therefrom. The whole exception therefore was properly allowed; and the 18th exception to the master’s report must be overruled. (Post, 268.)

The master’s report is confirmed, except as to the matters of the third and seventh exceptions; which exceptions are overruled. The parts .of the answer embraced in the several exceptions thereto which are finally allowed must be expunged ; and the defendants must pay the costs of the reference, •and of the several exceptions allowed by the master and finally sustained by the court. And as the defendants have succeeded only as to one ninth of their exceptions to the master’s report, and have failed as to the other eight ninths of tiróse ■exceptions, they must pay to the solicitor of the complainant seven ninths of his taxable costs of the bearing upon their exceptions. In cases of this kind, if the master has made a mistake as to the allowance of a part of the exceptions only, and is correct as to the allowance of the rest, the party against .whom the decision is made should only except to the allowance of those exceptions as to which the decision is clearly erroneous, if he wishes to obtain his costs of the hearing, upon Ahe exceptions to the master’s report.


text:
    Powell and others vs. Kane and others.
    The solicitor who draws, and the counsel who signs, a scandalous or impertinent pleading or proceeding, are personally liable for the costs of expunging the scandalous or impertinent matter, and ought to be charged therewith in the first instance, although their client is also liable to the adverse party for such costs. And if the solicitor or counsel is compelled to pay such costs, he has no legal or equitable claim upon his client to refund the amount thus paid.
    It is competent for the court, upon the mere examination of an affidavit, or other paper, read before it on a motion to order scandalous or impertinent matter contained in such affidavit or paper to be expunged, without a reference to a master, and to charge the proper party with the costs.
    A party who makes an affidavit to oppose a motion, is only authorized to ctate the facts; and it is scandalous and impertinent to draw inferences or state arguments in the affidavit, reflecting upon the character or impeaching the motives of the adverse party, or his solicitor.
    This was an appeal, by the complain ants, from an order of ¿he vice chancellor of the first circuit, overruling exceptions to a master’s report, on a reference of certain parts of the affidavits read by the complainants in opposition to a motion; which parts of the affidavits were alleged to be impertinent and scandalous. It appeared by the papers before the chancellor, upon the appeal, that the defendant, O. Kane, was made a party to a'suit in which it became a question whether it was necessary for him to put in an answer to protect himself, or ¿he estate which he represented, against future liability to othersj the complainants’ solicitor having agreed that the claim of his clients should not be enforced against Kane, or such estate. The bill having been taken as confessed against Kane, he and his counsel went to the office of the complainants’ solicitor, for the purpose of making a definite arrangement on the subject. The complainants’ solicitor having finally refused to waive the default, and Mr. Kane being advised by his counsel that an answer would be necessary to protect himself, or the estate he represented, from future liability, an application was made to the vice chancellor for leave to put in an answer; which motion was granted. At the close of the argument, on that application, the counsel for 0. Kane requested the vice chancellor to look into the affidavit of the complainants’ solicitor, which had been read in opposition to the motion, and to order such parts thereof to be expunged as should appear to be scandalous and impertinent. Upon the decision of the motion, at a subsequent day, the vice-chancellor stated that he had marked the parts of the affidavit which he deemed to be scandalous and impertinent, and should order the same to be expunged. But upon the suggestion of the complainants’ counsel that he had not been heard on that subject, and that such matters ought to be referred to a master, the vice chancellor made an order that the affidavits should be referred to a master; with directions to look into them, and to report whether the parts thereof so marked by the vice chancellor, were impertinent, or scandalous, or both. The master reported that two of the passages in the affidavit, marked by the vice chancellor, were both impertinent and scandalous; that three others were impertinent, but not scandalous; and that the remaining passage thus marked was not impertinent, inasmuch as a part of that passage was pertinent and material. The vice chancellor, upon hearing of the parties, overruled the exceptions taken by the complainants to the report, and directed the impertinent matter to be expunged. He also ordered the complainants’ solicitor, who had drawn and sworn to the impertinent affidavit, to pay the costs.
    Geo. Sullivan, for the complainants,

      II. E. Davies, for.the defendant Kano.
   The Chancellor.

The question as to the propriety "of charging the costs upon the solicitor personally, instead of charging them upon his clients, does not appear tobe properly before me on this appeal. The appellants are benefitted instead of being aggrieved by that part of the order, and therefore have no right to complain; as the solicitor or counsel who is personally charged with the costs of impertinence, has no legal or equitable claim upon his client to refund the costs thus paid. If the solicitor or counsel in such a case feels himself aggrieved by being personally charged with the costs, he must himself appeal from that part of the order. There is no possible doubt,'however, as to the correctness of the order in this pai> iicular. It is the settled law of the court, that the solicitor who draws a scandalous or impertinent pleading, or proceeding, and the counsel who sanctions it with his name, are both personally liable to. the adverse party, for the costs of expunging the scandalous or impertinent matter. And, as a general rule also, such costs should be charged upon them instead of their client, in the first instance; although the client is also liable therefor. (See 3 Dow’s Rep. 279.)

The master had no authority to inquire as to the regularity or propriety of the vice chancellor’s order. Neither was that subject properly before the vice chancellor at the time of making the order which is appealed from. If the order of the 14th of January, referring the marked passages of the affidavit, was erroneous, the complainants should have appealed therefrom. The reference was certainly an unnecessary and useless expense. But it was called for by the party who is charged with the costs, and he has no right to complain. It was undoubtedly competent for the court to decide upon the question of impertinence, and to order the impertinent matter to be expunged, upon the mere examination of the affidavits which were before it on the motion. The object of the reference, in such cases, is for the relief of the chancellor, or vice chancellor ; and where the scandal or impertinence is perfectly obvious to the court, the better course is at once to direct the improper matter to be expunged, and to charge the proper parties with the costs which have been occasioned by such impertinence. The 53d rule was not intended to restrict the power of the court in this respect, but merely to change the practice pursued by the English court of chancery, of referring the whole pleading to the master, instead of pointing out the objectionable parts vi the first instance. The course pursued in this case was a substantial compliance with the rule. And the master was right in treating the different passages marked in different parts of the affidavits as in the nature of distinct or separate exceptions to those several passages, for the purpose of deciding the questions referred to him.

In regard to the merits of the case, it is clear that the vice chancellor was right in the first instance, in supposing that all the passages marked by him were either scandalous, or impertinent, or both. Even if there was any thing slightly pertinent in the last lines of the fourth passage, as marked by the master, it was.so mixed up with the impertinent matter as to be incapable of separation; and therefore the whole should have been rejected. All that was necessary in resisting the application to open- the default of the defendant, was to state the facts, in opposition to the affidavits of Kane and his counsel. The deponent had no right, in his affidavit, to swear to inferences and arguments ; or to interpose his mere belief, for the purpose of inducing the court to draw the conclusion that Mr. Kane and his counsel had not truly stated the reasons for not putting in an answer before, or the motives of their application to him in the first instance. The order appealed from is not erroneous, and it must be affirmed, with costs.