10 Ga. 449 | Ga. | 1851
By the Court.
delivering the opinion.
To determine whether the exceptions to this answer were well sustained, it is necessary to inquire into the character of the bill, to ascertain to what the plaintiff in error was required to respond. The bill was filed originally to recover the entire interest of the complainants, under the will of Mrs. Bostwick. It sets forth the will — the entering upon its execution by Beall, the executor —the value of the estate which came to his hands — charges that he had refused to settle with them, but under various pretences had for many years retained the estate in his hands, using its funds for his own benefit — loaning them out at usurious in
Thus stood the bill primarily. It was- a bill calling for & general accounting as to the entire administration of the will, claiming especially that the executor account with them,, touching the usurious interest realized upon the fends of the estate,, during a long series of years, and also claiming that the specific legacies to Mrs. Powers and others, abate- rateably with the residuary legacies, in satisfaction of the decree awarding one-half the estate to certain claimants against the will.
In 1845, the plaintiff in error demurred, especially to so much of the bill as set up a claim to abatement on the part of the specific legacies, and because the specific legatees- were not made parties. The record discloses no judgment on the demurrer, as to these special grounds. It is, however, necessarily inferrable that the Chancellor was with the plaintiff in error, and the necessity of a judgment was obviated by the complainants abandoning their claim that the specific legacies abate. For, on motion of complainants’ solicitors, it was ordered, “ that the bill be amended, by striking out so much of said bill as sets up as a pretext and charge, that said dtfendant, Beall, retains more than the law allows for the purpose of paying specific legacies, and that defendant plead or answer to said bill, on or before the first day of the next term.” We now have the bill curtailed in its propor
The defendant below, Beall, further by an amendment pleaded that complainants have no right to recover more than legal interest — that he is not by law compelled to answer as, to the usurious interest, and not liable to pay it to the complainants— that they (complainants) knew at the time of their settlement with him, that usurious interest had been taken in the manage
After argument had on these numerous pleas, the Chancellor presiding gave judgment, “that the plea insisting on an account .stated, and setting forth a settlement and receipt of Samuel R. .Blake, of the 2d February, 1844, and the agreement of 13th January, 1844, be sustained by the Court, so far as relates to said ¡account stated, and agreement of 13th January, 1844, except ¡as is in said receipt excepted, as a defence in part, and that said plea do stand for answer. The residue of the plea not relating ••to said account stated, receipt and agreement, is overruled by the Court, and the amended. plea is overruled; and that the defendant answer fully as to the usury, whether he received any, how much and when, on the money or effects belonging to said estate; and that he answer fully as to 'the one-half of the legacy bequeathed to Mrs. Powers, retained in his hands to await litigation — to whom it belongs, and show why he should not account to complainants for their share in said reservation.”
By this judgment then, 1st. The plea in bar, founded on the account stated, agreement and receipt of Samuel R. Blake, is .sustained, except so far as concerns the complainants’ interest in one-half of Mrs. Powers’ legacy retained by the executor. The effect of this judgment, is to deny the complainants’ right to an account and answer, as to all matters embraced in the settlement of 2d February, 1844, and all claim to such accounting is extracted from the bill. This plea is expressly adjudged a defence in parí; that is, a defence to the demand in the bill, that the„exeeutor account and settle with complainants generally, and it is ordered to stand for answer. The rule is, that when a plea is ordered to stand for an answer, it is allowed to be a sufficient answer to so much of the bill as it covers, unless by the order, liberty is given to the plaintiff to except. Kirly vs. Taylor, 6 Johns. Ch. R. 242. Orcutt vs. Orms, 3 Paige, 459. Goodrich vs. Pendleton, 3 Johns. Ch. R. 394, Meeker vs. Marsh,
Here no liberty to except is reserved; the plea is not only ordered to stand for an answer, but it is adjudged a good defence in part; I conclude therefore, that the plaintiff in error is bound to render no farther answer to the bill, so far as it relates to any and all subject matter covered by the plea. A^ to them the plea is a sufficient answer. This view of the matter is conclusively demonstrated to be the view of the Chancellor presiding; for the judgment proceeds, second, to declare as to what matters and things the defendant shall answer. uExpressio unius est exclusio alterius.” It orders him to answer as to the usury and as to the one-half of Mrs. Powers’ legacy retained in his hands. Why the defendant, Beall, should be ordered to answer as to the one-half of Mrs. Powers’ legacy retained, is to me wholly incomprehensible, since the complainants claimed as to that legacy nothing whatever, but that it should be subject to abatement, and all that part of the bill which sets up this claim to abatement, was, as we have seen, upon complainant’s own motion, stricken out 3d. All other grounds of defence to the bill, except those sustained as before stated, were overruled. Now let it be remarked just here, that we are not called upon to consider any judgment rendered by the Court on the pleas of the executor. Whether the Court ruled right or wrong in sustaining the plea which was sustained — or in ordering the plaintiff in error to answer as to Mrs. Powers’ legacy, or in deciding that he was bound to answer as to the usury, and was legally bound to account with plaintiffs relative thereto, is not for us to consider. These rulings were not excepted to at the time; they are not now before us by writ of error. Many if not all the grounds taken in the overruled pleas, are taken in the answer. How far they or any of them will be available still as' defences in the answer, we are not now invoked to say. Our duty now is to determine whether the exceptions to the answer were rightly sustained.
And where defendant has in his power the means of acquiring the information necessary to enable him to make the discovery called for, he is bound to make use of such means, whatever pains or trouble it may cost him. 2 Daniel’s Ch. Pr. 832. Taylor vs. Rundell, C. & Ph. 104. Earl of Glengall vs. Frazer, 2 H. 99. Stuart vs. Ld. Bute, 12 Sim. 460. Applying these
The bill as to the usury, charges “ that the defendant held and used said estate ever since 1834, for his own benefit and emolument; that from being a man of very small property, he has become wealthy from the use of said estate ; that he has loaned out the moneys arising from said estate, and from hire of negroes and rent of land annually, at usurious interest, as high as twenty-five per cent, and compounding the same by renewal, and yet he has rendered no account of usurious interest received by him.” In reference to these charges, it prays that the defendant may be compelled to make a complete and perfect and full account and return of all the interest, legal and usurious, which he may have executed or received for or upon moneys belonging to said estate. The answer in response states “that in his acts, as executor of Rebecca Bostwick, he made no usury. When he as executor of said will, received money due the estate he charged himself with the amount and made a return of the same to the Court of Ordinary, regularly. He made and held himself responsible to the estate for the whole amount of such principal sum received, with legal interest, free from any loss of bad debts to the estate, or any loss of interest, because the money could not be loaned out; for which he has accounted-to the legatees in full, and to complainants in this bill. Any usurious transactions he may have had with other persons, was on his own account, and not with the funds that he regarded the funds of the estate properly so called, because he charged himself with so much money as he collected, and the moneys then so collected were mixed with his own funds, which he used in business of various kinds, and among other things loaned out some money. The defendant did not keep separate the funds of the estate from his own, nor did he ever keep an account of extra or usurious interest made by him, and could not now, even if required, speak with any certainty of these individual transactions of his own, in which he exacted usury. But defendant would say that he has no doubt, and does believe, that the sum
This extract embraces all the discovery made about the usury; other statements are made, which are defensive only. The exceptions are eight in number. Those alone are to be considered which relate to the answer in response to the usury allegations, and the allegations relative to Mrs. Powers’ legacy. The order to answer confines the answer to these two subject matters. The exceptions are to be confined to the answer which, by the ruling of the Court, the defendant was compelled to make. He has the right to stand upon the judgment of the Court, so far as it exempted him from liability to answer. As before stated, the sustained plea being ordered to stand for an answer, is a full answer to all facts of the bill covered by that plea. The exceptions to the answer responsive to the usury allegations, without considering them separately, assert that the answer is evasive and indirect, and in many parts argumentative; that defendant does not answer facts to the best of his knowledge, remembrance and belief; that defendant does not attach to his answer an account of his dealings, (usurious dealings as I understand the exception,) for and on account of the estate for many years; that defendant does not set forth the amount received and turned over to the legatees, nor the amount of losses sustained on usurious transactions, or in bad debts ; that he does not state the amount of money belonging to the estate, which was mixed up with his own funds ; what amount of interest he made upon the fund thus mixed, and what per centum he was in the habit of exacting on loans, and that he does not answer whether or not he received any usury on the money belonging to or derived from the estate, but as to this point answers evasively, by saying, “ in his acts as executor of Rebecca Bostwick, he made no usury.” These complaints are legitimate, and by reference to the answer we find to be true. The answer deals in generalities and argumentative statements — statements which
Let the judgment be affirmed.