1 Minn. 195 | Minn. | 1854
By the Oov/rt
This cause is brought into this Court by Appeal from an order of the District Court allowing exceptions to the bill.
It is objected by the Complainant’s Counsel, that the proceedings in the Court were irregular, inasmuch as the exceptions were not referred to a Master. The objection, in the opinion of the Court, cannot be sustained. The duties of a Master in Chancery are not separate and distinct from those of the Chancellor, but in aid of him. Masters in Chancery were considered in England as “ assistants to the Lord Chancellor,” and Tomlin says: “ some sit in Court every day, and have referred to them interlocutory orders for stating accounts, computing damages,” &c. “ and they also examine, on reference, the propriety of bills in Chancery,” &c. But, I am not aware of any rule making it imperative on the Chancellor to refer the question of propriety of the bill to a Master, if he should •choose to hear it himself. I do not find that the question
TJpon the question of allowing exceptions, the following Opinion of Chief-Justice Hayne, in the District Court, is approved hy this Court, and has been adopted as our opinion:—
In examining the question whether allegations or statements in a bill are relevant or pertinent, it must be recollected that a bill in Chancery is not only a pleading for putting in issue the material allegations and charges upon which the Complainant’s right to relief rests, but, in most cases, it is also an examination of the Defendant on oath, for the purpose of obtaining evidence to establish, or tending to establish, the Complainant’s case, or to countervale the allegations contained in the Defendant’s answer. 5 Paige, 522, 523; 3 Paige, 606; Story’s Eq. Pl. Sec. 268.
The Complainant may therefore state any issuable fact, and also any matter of evidence in the bill, or any collateral fact the admission of which by the Defendant may be material in establishing the general allegations of the bill, as a pleading, or in ascertaining or determining the natv/re or extent of the relief to which the Complainant may be entitled consistently with the case made by the bill. 5 Paige, 523; 3 Ib. 606;
To ascertain whether an allegation or statement in a bill is pertinent as a matter of pleading, it is .proper to see if an issue can be framed out of it which will be material, if proved or admitted, to aid in obtaining the relief to which Complainant would be entitled by the bill. And a good test of relevancy as to the discoveries of facts sought of the Defendant in the bill, as evidence or proof for the Complainant, is, to examine and ascertain whether if the facts admitted or proved would establish, or have a tendency to establish, the issuable matter contained in the bill. Story’s Eq. Pl. Sec. 853.
Matters alleged, not material for the above purposes, are impertinent, and if reproachful, are scandalous. 1 J. (Ch.) R. 103; 5 Paige, 522; Story’s Eq. Pl. Sec. 270. But a matter must be impertinent in order to be scandalous, for however scandalous in its nature it may be, if relevant it cannot be expunged as scandalous. 15 Vesay, 477.
Before expunging the matter alleged to be impertinent, it should be fully and clearly made out that it is impertinent: for if it be erroneously struck out, the injury will be irreparable. Story’s Eq. Pl. Sec. 207; 6 Beavan’s Rep. 444; 2 Young & Coll. N. R. 444. On the other hand, care must be taken not to overload bills by superfluous allegations and redundant and unnecessary statements, or by scandalous and impertinent matter, when tested by the foregoing rules. Story’s Eq. Pl. Sec. 266.
It is perfectly consistent with the principles suggested in many cases to strike out deeds, writings and records recited in a bill in haee verba as impertinent. Story’s Eq. Pldgs Sec. 266 and note 1, and authorities there quoted, 4 J. Ch. R. 437; 17 Peters 65, 66 Appendix, 1 Howard Rep. Int., 49, 50.
The Defendants’ first exception seeks to expunge the reference to the schedule, (incorrectly called exhibit A.,) the prayer that the schedule be taken as a part of the bill, and the schedule itself, containing a copy of lease of the American House to the complaint.
The remarks made as to the first exception, may, with great propriety, be applied to the second exception; also further, if the Defendants should, in their answer, admit that the schedule B. contains copies of the receipts, the admission would not be competent evidence of the payment of the rent by the Complainant. Whereas, if the Defendants admit the general allegation that the Complainant has paid the rent, as alleged in the bill, the admission will be good evidence of payment. The second exception must therefore also be allowed.
The 14th, 15th, 16th, 18th, 36th and 40th exceptions may all be included in the same category, and must be allowed for the same or similar reasons.
As to the 3rd exception, it must appear very obvious that it can make no possible difference with this cause, whether the Defendants resided in Massachusetts, or not, before 1849, or that their business had become nearly or quite broken up there, or that their pecuniary affairs were much embarrassed, inasmuch as the statement contains a charge of their utter insolvency. The allegation of utter insolvency may, perhaps, be material in the event that Complainant establishes the right to call the Defendants to account for the avails of the business of the American House, in order to raise the presumption that
An exception for impertinence must be supported m toto,. and if it include any passage which is not impertinent, it must fail altogether. Van Rensalaer vs. Bine, 4 Paige 174, 176; Wagstaff vs. Bryan, 1 Paige and Myln Reps. 30. The 3rd exception cannot therefore be allowed, but is overruled.
The 4-th, 5th, and 6th exceptions relate to allegations, that, if admitted by the Defendants’ answer, would have a tendency to show the insolvency of Defendants at the time alleged, and might, therefore, have a tendency to raise the presumption named in respect to the 3rd exception, that all the property now in the possession of Defendants, they had accumulated from the business of the American House. These exceptions-are not allowed but overruled.
The allegations to which the 7th, 8th, 9th and 10th exceptions relate, can, it appears to me, in no point of view be material, and if admitted to be true by the answer, can prove nothing pertinent or issuable in the bill. These exceptions are-therefore allowed.
The 11th exception is, to matter clearly impertinent, and a part of the allegation to which it relates, is grossly scandalous. There is not a fact contained in the allegations or statements-upon which a material issue could be raised, nor if admitted by the answer, would it prove or have a tendency to prove a-legitimate matter that could be raised by the bill. It must be allowed.
As to the 12th exception, I am some what doubtful whether the allegation that the four months’ intervening between the opening of the House, (the American House,) and the close of' navigation were rendered nearly or quite unproductive and thus continued during the following winter, might not possibly have some slight materiality, but stuffed as the allegation is with reasons and causes that are impertinent and improper and even scandalous, I shall allow the exception.
The 13th exception cannot be allowed. The allegation that
The remarks I made in respect to the allegations covered by exception lith, apply with greater force to the allegations and statements comprehended within the 17th exception,which is also allowed.
If the whole of the allegations contained in the 19th and 20th exceptions, were admitted by the Defendants’ answer, they could prove nothing material contained in the bill. The allegation was made in a previous part of the bill that Complainant paid the whole rent of said American House, and it cannot strengthen it any that the Defendants did not contribute any to the payment of $750 of the same, nor would the admission of the fact amount to anything toward proving the allegation true; nor does he show that Defendants have any knowledge of the fact that he paid it. Exceptions 19 and 20 are therefore well taken, and must be allowed.
The exceptions 21 and 22 are justly interposed, and must be allowed. There is not a pertinent fact, either issuable, or if admitted by answer as evidence, perceivable within their entire scope.
The 23d, 24th, 25th, 26th, 27th, 28th, 29th, and 33d exceptions cover ground that may be material, and must be disallowed and overruled. There are some matters within th purview of these exceptions clearly impertinent, but as each includes matters that may be pertinent, the exceptions mus fall.
Exceptions 30, 31, and 32 must be allowed. The allegations are only repetitions, and are unimportant.
In relation to the allegations embraced within the 34th
The grounds alleged for damage in the allegations comprehended within tbe 35th exception are not legitimate, and tbe exception must be allowed for their impertinency.
Upon tbe most casual observation, it will also be clearly perceived that on no recognized principle can any of tbe statements or allegations contained in tbe parts of tbe bill to which the exceptions 37, 38, and 39, by any possibility be, or be renL dered, material to tbe relief sought by tbe bill. They are impertinent, wholly so, and tbe exceptions must be allowed.
All tbe exceptions allowed must be expunged from tbe bill; and more than .two-thirds of the exceptions having been allowed, tbe Complainant must pay to tbe Defendants two-thirds of tbe costs that would have been allowable had all tbe exceptions been sustained.