Higbie v. Brown — 1 Barb. Ch. 320

Majority

p. 320

Higbie vs. Brown.

Headnote

Where a defendant has submitted to the exceptions taken to his first answer for insufficiency, or they hare been allowed by the master, upon a reference thereof, it is. too late for him, upon a reference of a second or third answer upon those exceptions, to insist that the original exceptions were not well taken, and that the further discovery called for is immaterial.

Where a master reports that an answer is insufficient in the matters of several exceptions thereto, and the defendant takes but one general exception to the report, such exception cannot be sustained if the answer is insufficient as to the matter of either of the exceptions allowed by the master. And this principle applies to the case of a second answer referred upon the original exceptions, and reported insufficient in the matters of several of those exceptions.

And it seems this principle also applies to the case of an exception to a master’s certificate allowing several interrogatories, for the examination of a defendant.

Where either of the exceptions to an answer has been fully answered, and the master reports that the answer is insufficient in the matter of that and of 'other exceptions, the defendant should only except to so much of the master’s report tu

p. 321

certifies that the answer is insufficient in respect to the exception which is fully answered.

A defendant may take' one general exception to a master’s report, so far as it is against him. But he does it at his peril, if it is found that his exception covers too much.

Where the defendant’s third answer was reported insufficient, and his exception to the master’s report was overruled with costs, the defendant was directed to pay those costs within twenty days, or, in default thereof that the bill should be taken as confessed. The court also ordered an attachment to issue against him, as authorized by the 64th rule, for his contempt in not fully answering; and decided that, upon the return of the attachment, the complainant would be entitled to an order that the defendant be examined upon interrogatories, and that he be committed until he has answered such interrogatories, and paid the costs.

In such a case the complainant is not entitled to an order to commit the defendant, and that he answer interrogatories, immediately upon the filing of the report of the insufficiency of the third answer. But he must wait until the time for excepting to the master’s report has expired; or until the decision of the court thereon, if the report is excepted to. And he must then proceed by attachment, to bring the defendant into court, to answer for the contempt; before he can obtain the order for commitment of the defendant until he pays the costs and answers the interrogatories before the master.

Where a defendant is ordered to be examined upon interrogatories, before a master, upon a report that his third answer is insufficient, he is not entitled to answer the interrogatories by written answers to be drawn up by his counsel. But he must attend and be examined personally by the master; who is at liberty to repeat the interrogatories until he is satisfied that they are fully answered by the defendant.

Where a second or third answer is referred for insufficiency, upon the matters of several exceptions, if such answer is eventually decided to be sufficient in the matter of either of the exceptions as to which it is referred, the complainant is not entitled to the costs of the reference.

This case came before the court upon an exception to the teport of a master, as to t.he sufficiency of the defendant’s third answer. The complainant took five exceptions to the original answer of the defendant; all of which exceptions were submitted to, or allowed. The defendant thereupon put in a further answer; which answer was reported insufficient in the matter of all the exceptions except the first. He then put in a third answer; which answer the complainant referred, as being still insufficient in the matters of the second, third, fourth, and fifth exceptions. The exception master reported the third answer sufficient in the matter of the fifth exception, but that it was insufficient in the matters of the second, third, and fourth exceptions. To this

p. 322

report, the defendant took one general exception; that the master had certified and reported that the third answer was insufficient in the matters contained in the second, third, and fourth exceptions, whereas he should have certified that the said answer was perfect and sufficient in the particulars excepted thereto.

J. Lansing, for the complainant.

C. Stevens, for the defendant.

The defendant having submitted to the original exceptions, or the same having been allowed by the master upon a reference thereof, it is too late upon a reference of a second or third answer for insufficiency on those exceptions, to insist that the original exceptions were not well taken, and that the further discovery called for was immaterial. The objection to the form of the exception to the master’s report appears to be valid. And if the answer of the defendant is insufficient as to the matter of either of the three exceptions specified by the master, in his report,.this general exception to the report cannot be sustained, but must be overruled. Upon the argument, I had some doubts, -whether the principle of the cases of Candler v. Pettit, (1 Paige’s Rep. 427,) and of Franklin v. Keeler, (4 Idem, 382,) in this court, and of Pearson v. Knapp, (1 Myl. & Keen, 312,) and Green v. Weaver, (1 Sim. Rep. 434,) in the court of chancery in England, applied to the case of a second answer referred upon several of the original exceptions. Upon examination, however, the principle appears to be equally applicable to the case now under consideration, as to the report of a master upon the allowance of exceptions. And I find, that in England, it has been applied to the case of an exception to a master’s certificate, allowing interrogatories for the examination of the defendant. (Moore v. Langford,, 6 Sim. Rep. 323. Cotham v. West, 1 Beav. Rep. 380.) The master’s report, that the answer is insufficient in the matter of the second, third, and fourth exceptions, is substantially an allowance of these three distinct exceptions to all the answers, which the defendant has put in, for insuffi

p. 323

ciency in those respects. In other words, the master reports that the matter of neither of those exceptions is yet fully answered. And if either of them was fully answered, the defendant should have excepted to so much of the master’s report as certified that the answer was insufficient, in the matter of the exception which was sufficiently answered. The defendant may indeed take one general exception to the report, so far as it is against him; and thus compel the court to look into the whole matter embraced in that part of the report. But he does it at his peril, if it is found that his exception covers too much. This answer is clearly insufficient in the matter of two of the exceptions, and I am inclined to think it is also insufficient as to the third; though I have not examined particularly as to that, it not being necessary in deciding upon this general exception to the report. Nor is it material to the rights of the defendant; as he must be examined upon interrogatories, under the provisions of the 64th rule, if this third answer is insufficient in the matter of either of the three exceptions. The defendant’s exception to the report must therefore be overruled, with costs. And the defendant must pay such costs, including the costs of the order nisi to confirm the master’s report, within twenty days after service of the copy of the taxed bill upon him, or his solicitor, or the complainant’s bill of complaint in this cause may be taken as confessed. But the complainant is not entitled to costs upon the reference. For he did not succeed as to one of the exceptions upon which the third answer was referred; the master having reported the answer sufficient in the matter of the fifth exception. This case, although perhaps not within the letter, is clearly within the spirit and intent of the 63d rule; which rule denies costs of the reference to a party who does not succeed as to all the exceptions which are referred.

The complainant is also entitled to the further order, authorized by the sixty-fourth rule, for an attachment to bring the defendant into court, to answer for his contempt in not fully answering the complainant’s bill, in conformity to the previous orders of the court. And upon the return of that attachment the defendant will be ordered to be examined upon interrogatories, before

p. 324

the master by whom this report upon his third answer was made, in reference to the several points embraced in the exceptions as to which the answer is reported insufficient. And he will be committed for his contempt until he shall have answered such interrogatories to the satisfaction of the master, and has paid the costs of such attachment and of the proceedings thereon. The only substantial difference between the sixty-fourth rule of this court, and that part of the orders of Cromwell’s commissioners, on the same subject, which was adopted by Lord Clarendon in 1661, is the changing the order so far as to apply it to a third instead of a fourth answer, when reported insufficient; and adapting it to the provisions of our revised statutes relative to proceedings for contempts. Our rule also contains a provision for taking the bill as confessed, where the defendant does not render himself amenable to the process of the court; or where he neglects, or refuses to answer the interrogatories, to the satisfaction of the master, on being brought into court upon the attachment. The practice in England, under Lord Clarendon’s order, is therefore applicable to this case, upon the return of the attachment; after the defendant appears or is brought into court to answer for his contempt There, the order for commitment, and that the defendant answer the interrogatories, before the master, in vinculis, is made at once upon filing the report of the master certifying that the defendant’s fourth answer is insufficient. Here the complainant is not entitled to the order to commit the defendant, and that he answer the interrogatories, immediately upon the filing of the report of the master that the third answer is insufficient. But he must wait until the time for excepting to the report has expired, or until the decision of the court thereon, if the report is excepted to. And then he must proceed by attachment, to bring the defendant into court to answer for the contempt; before he can obtain an order for commitment of the defendant, until he answers the interrogatories before the master, and pays the costs of proceeding to compel such examination.

It was settled, however, within four or five years after the adoption of Lord Clarendon’s order, that the defendant must

p. 325

attend before the master personally, and answer the interrogatories. (Gower v. Lady Baltinglass, Turn, & Russ. Rep. 193 n. 1 Ch. Cas. 66, S. C.) And the late Lord Chancellor Eldon, upon examining the orders made by Lord Clarendon, in the case of Gower and Baltinglass, decided that the defendant, instead of putting in written answers to the interrogatories, to be drawn up by his counsel, must attend before the master and be examined by him, personally, upon the interrogatories; and that the master was at liberty to repeat the interrogatories, or any of them, to the defendant, until he should be satisfied they were fully answered. (Farquharson v. Balfour, Turn. & Russ. Rep. 184.)

Although it was stated on the argument in the present case that the defendant was a nonresident, and his several answers appear to have been sworn to in the state of Illinois, the complainant is entitled to the usual order, as provided for by the sixty-fourth rule. But the defendant must have four months after the service, upon his solicitor, of notice of the issuing of the attachment, to the sheriff of the county of Albany, to surrender himself to such sheriff thereon; and the attachment must be made returnable upon some. regular motion day after the expiration of the four months. The defendant is also to be at liberty to apply to the court, upon due notice to the adverse party, for an extension of the time, if necessary; or to dispense with the personal attendance of the defendant, and to permit him to put in written answers to the interrogatories, upon shewing to the satisfaction of the court that the personal attendance of the defendant before the master is impracticable. If, however, the complainant is willing to dispense with the personal examination of the defendant, and to permit him to answer such interrogatories in writing, upon oath, to be taken before any officer of the state where he resides, and who is authorized by the revised statutes to take affidavits to be used in courts of record here, the order may direct that the defendant answer the interrogatories, to be settled by the master, and that he obtain the certificate of the master that they are answered to his satisfaction, within two months after the service of a copy of the interrogatories as settled, and also pay

p. 326

the taxable costs of the proceedings on such order, within twenty days after service of a copy of the bill thereof as taxed, or that the complainant’s bill in this cause be taken as confessed.