Hatch v. Eustaphieve

defendants, Eustaphieve and Newbold, because it is not signed by them; by the defendants to take from the files the complainant’s bill, because it is not s¡o.ne¿ by the complainant.

It appears from the papers that the bill is not signed by the complainant, but only by his solicitor and counsel—that it was answered after obtaining further time from the complainant’s solicitor—and that the answer was signed, “ Alexander A. Eustaphieve and John A. Newbold, by T. Hastings, their solicitor.” The practice in relation to bills not sworn to, has for a long time been to hold them well filed, without the signature of the complainant. And it seems to me too late to interfere with this practice. Indeed, an oath to a complainant’s bill is held to be well made by his solicitor, or other agent, if he gives a sufficient reason in his jurat, why the complainant is not himself sworn, as is the every-day practice in allowing injunctions upon creditor’s bills. But in this case the irregularity, if any, in the signature to the bill, is waived by the defendants’ putting in their answer as they have done; and the defendants’ motion must be denied.

The motion on the part of the complainant, to take the answer from the files, is a matter of more doubt. Formerly, when the answer was required in all cases upon oath, and was called for to probe the defendant’s conscience, and obtain from him evidence to bear upon the case, it was evidently necessary and indispensable that the defendant should not only sign, but make oath to his answer. This was the very essence of the matter called for by the bill, as it is now in cases of bills of discovery; and the want of the defendant’s signature made it no answer at all.

The statute, however, (2 Rev. Stat. 103, sec. 49,) which authorises the complainants to waive the necessity of the defendants’ answer on oath, seems to me to have altered the reason of the rule. If oath of the defendant is waived, as in this case, and the answer is put in without oath, it cannot be excepted to for insufficiency, as has been very properly provided by a general rule of this court. It seems to me that the whole matter of bill and answer have, under this statute, been reduced to a mere matter" of pleading, analogous to pleadings in a court of law. The complainant who waives an answer under oath, if any answer is put in, is not entitled to except for insufficiency, but must prove the whole of his case not admitted by the answer; and. the defendants must likewise prove the case set up in their answer. Where then is the necessity of the manual signature of a defendant to such answer, more than to any pleading in a court of law. He makes no oath to it—it is of no force except as a mere pleading. He states his case to his solicitor—his solicitor places it in a professional form in the shape of a pleading : it contains any admission, the defendant is bound it as fully as if he had signed it; and where can be the necessity of his signature, which, when made, is to have no force or .effect ? I should have no hesitation in the expression of these views, were it not that the Chancellor has decided at least two cases, reported in the Saratoga Sentinel, wherein the answer was ordered to be taken from the files, for want of the signature of the defendants. The note of those cases is very short, and the reasoning of the Chancellor is not given. A knowledge of such reasons, added to the well known reputation of the