1 Johns. Ch. 65 | New York Court of Chancery | 1814
This is a bill for discovery and account, called for by the plaintiffs as legatees and devisees under the will of Mary Jaques, the former wife of one of the defendants. The case comes before the court oti exceptions to the answer, as being, in many respects, imperfect, and not containing a full and explicit disclosure.
Assuming that the answer contains only a partial discovery, and not sufficient to furnish materials for an account, it is alleged, that it contains the allegation of a fact destroying the title to a discovery, at least, to the extent prayed for, and that, until the truth of the fact be ascertained, no further answer can be required. The allegation is, that the deed to Henry Cruger, of the 25th of September, 1805, was never duly delivered.
The modem cases upon this point are not uniform, nor consistent.
In Cookson v. Ellison, (2 Bro. 252.,) Lord Chancellor - Thurloa laid down the rule, that where a defendant had submitted to answer, he must answer fully, and cannot stop short with a general and partial disclosure; and he said he would not enter into the question whether a demurrer or plea would have been allowed. This rule was again recognised by him, in Cartwright v. Hately, and in Shepherd v.
But later cases have very much impaired the force of this general rule, that where a defendant submits to answer at all, he must answer fully.
In Newman v. Godfrey, (2 Bro. 332.,) Lord Kenyon, as Master of the Rolls, observed, that where a defendant, by his answer, had denied all interest, and reduced himself to the case of a mere witness, he was not bound to answer the further circumstances of the case; and he said, explicitly, that the case of Cookson v. Ellison was wrong. Lord Loughborough, in Jerrard v. Saunders, (2 Ves. jun. 454.,) said the same thing, and he ruled, that if a defendant states, in his answer, a purchase for a valuable consideration, without notice, he is not bound to go on and answer as to all the circumstances of the case that are to blot and rip up his title. In the case of Jacobs v. Goodman, in the exchequer, (3 Bro. 488. n.,) Ch. B. Eyre held the answer to be sufficient, which denied a partnership, and set forth no account; for, unless there was a partnership, the plaintiff was not entitled to an account; but he admitted that there might be cases where the court would require an account, though the principal point in the bill was denied.
So stands the rule on authority; for though the point was frequently agitated before Lord Eldon, in Dolden v. Lord Huntingfield, Faulder v. Stuart, and Shaw v. Ching, (11 Ves. 283. 296. 303.,) he expressed no opinion on the point, but seems studiously to have avoided it; and I should infer from the argument in these later cases, and from the opinion expressed by Cooper, in his “ Treatise of Pleading,” that the rule, as laid down by Lord Thurlow, was still understood, by the profession, to be the general rule, subject, however, to exception in particular cases, such as that before Lord
There is nothing, in the present case, that seems to furnish any peculiar objection, on the ground of hardship, or injury, to the disclosure called for. The general aspect of the whole transaction is directly otherwise; and even admitting the deed to Cruger might not be valid in law, on account of some technical objection to its due delivery, yet," as the defendant was a party to that deed, before the marriage, and it was intended to provide for that event, and was retained by the wife, during her life; and that she executed a deed to her husband’s brother, and made her will, both of which were cases provided for by the deed, I think it may well be made a question, whether that deed is not, atleast, good evidence of the agreement, in equity, and binding on the defendant. The case of Connel v. Buckle, (2 P. Wms. 242.,) would seem to warrant such a conclusion. If the party will put himself upon a fact, as an objection to the call for further discovery, it ought at least, to be a fact which, if true, would at once be a clear, decided,and irresistible bar to the demand.
I do not consider this to be such a case, and this objection to the exceptions fails ; but the benefit of every objection to the relief, sought on the ground of the non-delivery of the deed, is reserved to the defendant upon the hearing.
The mere objection to a further discovery is, that the bill contains no special interrogatories. The bill contains the general interrogatory, “ that the defendants may full answer make to all and singular the premises, fully and particularly, as though the same were repeated, and they specially interrogated, paragraph by paragraph, with sums, dates, and all attending circumstances, and incidental transactions.” The question, then, is, whether this be not sufficient to call for a full and frank disclosure of the whole subject matter of the hill; and I apprehend the rule on this subject to be, that it is sufficient to make this general requisition on the defendant, to answer the contents of the bill, and that the interrogating
Having,then, cleared this case of the technical objections, which were raised to the call for a better answer, I come to. the exceptions themselves, and, without going minutely into the consideration of the several exceptions, I think the answer essentially defective. The charges are not met particularly and precisely. The defendant speaks in a general and loose manner, and evidently does not give the best information in his power, nor such a full and particular discovery as the nature of the bill requires. The rule laid down in the books is, that the defendant must answer specifically to the specific charges 'in the bill, and give the best account he can, so as to enable the plaintiff, if he calls for an account, to possess materials to state an account, (8 Ves. 193.) What circumstances, connected with the facts charged, are material and proper to be disclosed, must depend upon the nature and reason of the case, and will, generally, be easily ascertained by the exercise of ordinary sense and discre ■
Under these impressions, I have compared the answer with the bill, and the exceptions with the answer, and in my judgment, they are all, except the 10th, well taken, and must be allowed. As to costs on exceptions, they are like costs in all other cases in this court, subject to its discretion, and may be given or withheld, according to the exigency of the case, or they may be left to abide the event of the suit. But the general rule is, that, if the defendant submits to the exceptions, the plaintiffhas bis costs, and if they be referred, the plaintiff shall have the costs of the exceptions allowed, and the defendant his costs of the exceptions disallowed, and the balance struck to be paid. (1 Schoales & Lefroy, 241. 2 Atk. 551.)
Exceptions allowed.