Sanford v. Bissell — 1 Johns. Ch. 383

Majority

p. 383

Sanford against Bissell and others.

April 1st.

Headnote

If exceptions are taken to an answer, and the defendant submits to the exceptions by putting in a further answer, the plaintiff, if he thinks the second answer not sufficient, should, within a reasonable time, say three weeks, obtain an order to refer the answer to the master for insufficiency. And the plaintiff ought, either in the order of reference, or by notice to the defendant, to specify to which of the exceptions the second answer is still impei'fect.

Where exceptions to an answer were taken in November, and the defendant put in a second answer in December, and the plaintiff, in March following, obtained a rule of reference to the master, without any notice to the defendant, the plaintiff was deemed to have acquiesced in the second answer, and the order of reference was set aside :

And though the second answer was not accompanied with an offer to pay the costs of the exceptions, which the defendant, in such case, is regularly bound to pay ; yet, as the plaintiff made no objection on that ground, nor called on the defendant for the costs, he was precluded from making that objection afterwards.

VAN VECHTEN, for the defendants,

moved to set aside the order of reference entered in this cause, on an affidavit, stating, that on the 2 2d of October last, he filed an answer in the cause ; that exceptions to the answer were filed on the 12th of November; that an answer to the exceptions, or further answer, was filed on the 8th of December, and notice thereof given; that an order was entered on the 17th of March last, referring the bill, answers, and exceptions, to a master; that no notice had been given of any step taken by the plaintiff since filing the exceptions, until a summons was given by the master, under the above order of reference.

He objected to the reference, first, as being out of time ; and, secondly, as being too general, and not stating which of the exceptions were insufficiently answered. He cited Parker's Analysis of Ch. Practice, 16, 1 Turner's Prac,

p. 384

Int. 22. 1 Harr. Prac. 311., and the 12th and 57th rules of June, 1806.

I. Hamilton, contra.

This is a case in which the defendants submitted to answer the exceptions by putting in a further answer; and if the plaintiff had conceived the second answer insufficient, he should, within a reasonable time, have obtained an order to refer it to a master for insufficiency. The case was not within the letter, but it was within the spirit, of the 12th rule of June, 1806 ; and three weeks would have been a reasonable time. A delay of three months, before a reference is applied for, or any objection made, is certainly out of time ; and the party ought to be concluded, or to be deemed to have acquiesced in the further answer.

There is, also, weight in the objection, that the plaintiff has not specified, either in the order of reference, or by notice, to which of the exceptions the second answer is still imperfect. By referring both answers, and the exceptions generally, the other party must be utterly at a loss in what respect he has failed in his submission. The practice is not to take exceptions to the second answer; but to state, generally, which of the exceptions is not duly answered, is giving to the defendant reasonable information, without any violation of this rule of practice.

The second answer does not appear to have been accompanied with an offer to pay the costs of the exceptions ; and if a defendant submits to answer the exceptions, he must pay costs. But no objection was made to the answer on this ground. The plaintiff consented to receive it by including it in the order of reference, and, if he meant to rely on the want of his costs, he should have called on the other party for them.

Motion granted-,