Trotter v. Bunce — 1 Edw. Ch. 573

Majority

p. 573

Trotter vs. Bunce.

Headnote

Where a complainant files a judgment creditor’s bill and charges the defendant “ has ” property, it is not sufficient for the latter to deny, in general terms, that he has any: he must answer as to whether he had property at the time the bill was filed.

March 26, 1833.

This cause, came before the court on an exception to the •V master’s report allowing an exception to the answer of the defendant for insufficiency.

The ground of exception will be found sufficiently referred to in the opinion of the court.

Mr. D. Graham, for the defendant and in support of the exception to the report

Mr. O. Gridley, for the complainant.

The bill charges that the defen-

dont “ has ” property liable to be applied to the complainant’s

p. 574

debt. It speaks in the present tense; and the reference is, to the time of filing the bill. A particular discovery of such property is prayed ; and that the “ answer and disclosure, among- “ other things, may be, with express reference as well to-the “ time of filing the bill as to his answer thereto.” The defendant denies that he “ has any ” property. His answer would seem to be full and positive to this effect; but he has not discriminated as to time; and, according to the natural import of the words, it has reference only to the time of swearing to the answer, which, according to the dates, was two months after . the bill was filed.

The exception is taken, because he has not likewise stated, whether'he had property at the time of the filing of the bill. This is allowed by the master ; and I think he is correct. The answer may be true and yet the defendant have had property when the bill was filed and the injunction served. If he had not, it was easy for him to have said so. Defendants are bound in these cases to answer as to property at the time of filing the bill.

This exception to the master’s report must be overruled, with costs.