| Vt. | Jul 15, 1843
A question has been raised, in argument, how far the answer of the defendant is to be regarded as evidence. The rule usually laid down is, that the defendant, is bound to answer, every part of the substance of the statement and charges in the bill, and that every particular interrogatory, founded upon an express allegation in the body of the bill, must be answered precisely, in all its bearings and circumstances. Labe’s Eq. Pl. 267. Hepburn v. Durand, 1 Brown 503. Mountford v. Taylor, 6 Ves. 791. Woods v. Monell, 1 Johns. Ch. R. 103:
The case of Smith v. Clark, 4 Paige, is full to the point that the charging part of the bill is not to be treated as mere surplusage, but that it must be answered. If the answer sets up affirmative matter by way of avoidance, and is not responsive to the bill, upon a traverse of the answer all the authorities agree that the answer is not proof of such matter.
But if, however, the affirmative matter in the answer is responsive to the bill, it cannot be disguised that there is considerable discrepancy in the authorities, whether, upon a traverse, the answer shall 'be received as proof, or as more pleading, to be sustained by ordinary proof, like a special plea. To hold, in cases, in which the answer asserts a right affirmatively, in opposition to the right claimed by the orator, that the answer is to be received as proof of such matter is in effect to make the defendant a witness for himself, and ' not simply for the orator. It is readily perceived that every thing in the answer, responsive to the bill, as to the creation of the original liability charged, must be taken together, as part and parcel of one entire transaction. But if the original liability is once admitted by the answer, it may, at least, be questioned, upon principle, whether the defendant can escape from it, except by proof aliunde the answer; and though the matter set up in defence is responsive to the bill, yet if it is distinct, and wholly independent of the original liability charged, it may be inquired why the defendant should not support it by proof, as well as the orator his claims. Though the plaintiff makes the defendant a witness for himself, yet should this, in any case, give the defendant the right to be his own witness, as to any matter in defence disconnected with, and independent of, the original liability ? So far as the present case is concerned, it is-
Though we might be all satisfied that the evidence was sufficient to show fraud in Edson, yet, for one, I should hesitate in finding the evidence sufficient to countervail the answer, so as to connect the defendant with the fraudulent intention in Edson. It is, however, unnecessary to pass upon that point. In the case now before us a full consideration was paid to Edson, by means of which his estate was benefited to that amount; and it is the same thing as if it had been paid to his administrator. It is not to be presumed that the intestate has wasted his estate, but rather that the consideration paid has gone to increase his assets. If we were to decree against the defendant, it would, in effect, give the estate the benefit of receiving a second time the full value of this property, and inflict a penalty upon the defendant. This would be inequitable, and is a sufficient reason why chancery will not lend its aid to the administrator. Equity has already been done.
The Statute, — Rev. St. p. 275, § 39, — giving to the executor, or administrator, in case of deficiency of assets, a right to prosecute to final judgment for the benefit of creditors, where there has been a fraudulent conveyance to the injury of creditors, should not be extended to a case like this, but only to cases where the fraud will be otherwise prejudicial to the assets of the estate.
The result is, we advise an affirmance of the chancellor’s decree, dismissing the bill, with additional costs in this court. The case is remitted to the court of chancery, to be proceeded with accordingly.