Noble v. Wilson, 1 Paige Ch. 164

Noble v. Wilson

1 Paige Ch. 164 | New York Court of Chancery | 1828

The Chancellor :—The answer of all the defendants must be perfected before the injunction will be dissolved, provided they are all implicated in the same charge, and the complainant has made use of due diligence to get in their answers. In such cases, the exceptions to the answer of one of the defendants submitted to, is a good answer to a motion to dissolve the injunction, if those exceptions go to the merits of the case on which the injunction rests. The same rule must also be applied to the case of exceptions allowed by a master, although the defendant has excepted to the master’s report.[1] If the exceptions have not *166been submitted to by the defendant, or allowed by a master, they are no answer to the motion, and the court will look into them, and see that they are not frivolous. If they have been allowed by the court, or a master, or have been submitted to, the injunction will not be dissolved until the answer is perfected, unless the court is fully satisfied that the answer to them cannot have any possible bearing on the question of dissolution.

In this case the defendants are all implicated in a charge of fraud; the exceptions seek a more full discovery of the evidence thereof; three of the defendants admit the exceptions 'to their answer to be well taken, by submitting to answer them; and the master has reported in favor of the exceptions to the answer of the other defendants. In addition to this, the answers, as they now stand, do not remove all suspicion of fraud in relation to the transactions referred to in the bill. The motion to dissolve the injunction is therefore refused with costs.

I have looked into the bill, the answer of James and Daniel Wilson and Samuel Wilson, jun., and the exceptions to that answer, and am satisfied that all the exceptions are well taken except the second. As to that exception, that there is no charge in the bill to justify the interrogatory on which it is founded. The master’s report on the exceptions is therefore confirmed, except as to the second exceptions; and the *defendants must pay the costs of the other exception to their answer, and of the hearing before the master.

There is one general exception to the master’s report, embracing all the exceptions allowed by the master. In eight out of the nine exceptions allowed by the master, it appears the report was right; and according to the decision *167of the Master of the Rolls, in Hodges v. Solomons, (1 Cox. Ca. 249,) this exception to the report must be overruled. But I think it reasonable to modify the report in the manner above stated; and the defendants must pay to the complainants the full costs of the hearing on the exception.

1] Depyster v. Graves, 2 John. Ch. 148; Vandervort v. Williams, 1 Clark. 377. This rule is not inflexible; it has its limitations and qualifications. One important one is, that the plaintiff must have taken the requisite steps to compel an answer from all the defendants; Mallet v. Weybosset Bank, 1 Barb. S. C. R. 217; Lubor v. Hess, 5 Paige, 85. So, where the defendants on whom the real gravamen rests have fully answered.; especially where the *166co-defendant is a non-resident. Id. This, in the text rule, is applicable only where the injunction has been properly granted. Id. And the rule is relaxed where the parties not answering, are mere formal parties; Higgins v. Woodward, Hopk. 342.