Bolton v. Gardner, 3 Paige Ch. 273

Bolton v. Gardner

3 Paige Ch. 273 | New York Court of Chancery | 1831

The Chancellor.

Several objections are made to this plea which are merely formal; but the principal objection is that it is pleaded in bar to the discovery of what the complainant’s counsel considers a material fact to destroy the defence arising out of the release and assignment of Bolton. I believe the answer is sufficiently full as to all the matters of the bill not professedly covered by the plea. Whether the plea does not cover the discovery of some facts as to which the complainant was entitled to an answer, I shall presently consider. The rule which requires an answer in support of a plea, in certain cases, does not render it necessary that the defendant should deny positively, in the answer, matters of which it cannot be presumed he has any personal knowledge. Where fraud or other circumstances are charged for the purpose 6f avoiding a release, the defendant pleading the release must, by proper negative averments in his plea, deny the allegations of fraud, &c. and must support bis plea by a full answer and discovery as to every equitable circumstance charged in the bill to avoid the bar. (Mad. & Geld. Rep. 64. 2 Ves. & Beam. Rep. 364.) But in the case of negative averments as to matters not alleged to be the acts of the defendant, or where, from the nature of the case, he cannot be supposed to have any personal knowledge of the subject, it is sufficient for him to deny the facts charged, upon his belief only. (Drew v. Drew, 2 Ves. & Beam. 159.) The defendant, however, must be careful so to frame his averments that the complainant may put the facts in issue by a replication. And where the negative averments in the plea are permitted to be made upon the belief of the defendant, it will be sufficient for him, in the answer in support of such plea, to deny the equitable circumstances stated in the bill, according to his knowledge, information and belief only.

*278One objection which is urged by the complainant’s counsel to the form of the plea in this case, is that some of the averments therein professing to negative the charges in the bill, are no{ direct and issuable, but are involved and argumenta- ' tive. I am inclined to think this objection is well taken. One of those averments commences thus: “ And this defendant further avers, that for the reasons in his answer particularly set forth, he cannot say whether or not,” &c. concluding with two or three involved exceptions, and embracing in a parenthesis another distinct averment of ignorance. This mode of denying an allegation in the bill might not perhaps be deemed objectionable in an answer, where every allegation not admitted by the defendant is put in issue by the formal traverse at the close of the answer. But it is bad in a plea where the negative averments must tender an issue, directly.

Another objection to the plea is that it is overruled by a part of the answer. The defendant, by his plea, objects to answering any allegations in the bill which call for a discovery as to the situation or amount of the estate of McLachlan, which has come to his hands as administrator; yet he does answer in part as to those matters. He alleges,’ in substance, that the inventory filed by him in the office of the surrogate contains a just and true account of the estate which had come to his hands, except eleven volumes of books and $132, which came to his hands afterwards. He also states that the $1000 paid Bolton at the time of making the release was fully equal to what he was rightfully entitled to, and was not, as alleged in the bill, less than one fifth of his just distributive share of the estate. If it was necessary or proper to put these allegations in an answer in support of this plea, then it was improper to plead the release in bar of the discovery as to the amount of the estate. The defendant should have pleaded in bar of the relief merely, and have given a full discovery as to the actual amount of the estate. If the allegation in the answer, that the amount paid to Bolton at the time of the execution of the release was not less than one fifth of his distributive share of the estate, and that it was fully equal to what he was rightfully entitled to, was not necessary to support the plea, it overrules the whole plea, and constitutes a double bar. (2 Sim. & Stu. R. 281.) Taking this answer to be true, Bolton received *279from the defendant his full distributive share of the estate, and all he had any right to claim. This of itself is a full defence to the suit, and to the whole relief asked for by the bill.

Independent of these objections to the plea, in point of form, I think the complainant was entitled to a full discovery as to the actual amount of the personal estate of McLachlan. We have before seen that the party pleading a release which the complainant seeks to impeach upon equitable circumstances, must, in his answer supporting the plea, make a full discovery as to every material circumstance relied on to avoid the bar. One equitable circumstance relied upon here is, that Bolton understood from Miller that his share of the estate was less than $1000, whereas the complainant alleges it was more than five times that amount, and that this fact was -then known to the defendant and his solicitor. If this was so, although Miller himself was probably misinformed as to the amount, I am not prepared to say that a trustee can be permitted to support a release from his cestui que trust founded on such a gross inadequacy of consideration; although there was no actual fraud intended. I think, in such a case, the defendant should be required to show that the parties were treating for a settlement at arms length, or that he gave the cestui que trust a fair statement of the amount of the property, so far as was necessary to enable him to act understandingly in relation to his rights. Although the defendant denies knowledge of the amount of property charged in the bill, the complainant has a right to know what the property was, and when it came to the defendant’s hands, to enable the court to see whether the allegation is true.

I think the vice chancellor erred in allowing this plea; and his decision must be reversed, with the costs of this appeal. The plea is to be overruled, but without prejudice to the right of the defendant to insist upon the release and assignment, in his answer, as a bar to the relief sought by the complainant’s bill.

As the complainant is prosecuting her cause before the vice chancellor in forma pauperis, the question whether she is to receive costs upon the argument of the plea before the vice chancellor, must be reserved until the hearingj but they are not to be allowed, if the defendant succeeds in his defence. *280This court will not encourage the prosecution of suits in forma pauperis, merely for the purpose of obtaining the costs of interlocutory proceedings, if there is no reasonable hope of succeeding on the merits. As the complainant cannot prosecute an appeal as a poor person, and is also obliged to give security for the costs of the adverse party in such a case, it is reasonable that she should recover dives costs for the proceedings on the appeal.