Case & Wife v. Abeel — 1 Paige Ch. 630

Majority

p. 630

*Case and Wife v. Abeel and others.

Headnote

The master’s certificate as to the insufficiency of an examination of a party on interrogatories, does not require an order of confirmation.

If the master’s certificate is not excepted to within eight days after notice of the filing thereof it becomes absolute of course.

The practice in relation to exceptions to answers for insufficiency must be adopted and pursued, as far as the same is applicable to exceptions to the examination of a party.

If the examination is. reported insufficient, the master may allow new interrogatories to be added by the adverse party, and the exceptions and new interrogatories must be answered together.

p. 631

November 4th.

If the examination is certified by the master to be sufficient, the adverse party cannot re-examine the defendant to the same point without the permission of the court.

On taking the account as directed by the decree in this cause, (ante, 393,) (x. B. Abeel, one of the defendants, was examined on interrogatories before the master. The ex- ' animation was excepted to for insufficiency, and upon the reference two out of five of the exceptions were allowed. The complainants thereupon applied for a confirmation of the report, and for other directions as to the practice to be pursued to compel a further examination. They also asked leave to add new interrogatories, and that the defendant might be required to put in his further examination to the exceptions and additional interrogatories together.

J. Rhoades for the complainants.

H. Bleecker for the defendants.

The Chancellor :—The certificate of the master as to the insufficiency of the examination does not require an order of confirmation. In this respect it is like the report of the master as to the sufficiency of an answer. The practice in relation to exceptions to an answer for insufficiency must be adopted and pursued in these cases, so far as the same is applicable. On filing the master’s certificate, and notice thereof, if the defendant does not except to the same within eight days, the certificate will become absolute. And on filing "-an affidavit of that fact the complainant may enter an order of course that the defendant put in his further examination, and pay the costs of the exceptions and the proceedings thereon within such time as the master may prescribe, or that an attachment issue against him. On filing the certificate of the master showing his default, the complainant may have an order of course for an attachment. If the major part of the exceptions are not allowed, the complainant will not be entitled

p. 632

to costs. In case the master certifies that the examination is insufficient, the complainant may add new interrogatories to be approved of by the master if he shall deem such further interrogatories necessary; and the order will then be that he put in his further examination to the exceptions and the new interrogatories together within such time as the master may direct. But if the examination is certified by the master to be sufficient, the complainant will not be permitted to call for a re-examination of the defendant to the same point, on new interrogatories, without special permission of the court on cause shown, and upon notice of the application to the adverse party.

In this case the complainants are to be at liberty to exhibit new interrogatories to be approved of by the master, and the defendant. Gr. B. Abeel must put in his examination to the exceptions and further interrogatories within such time as the master may prescribe, or an attachment must issue to compel the same. A majority of the exceptions not having been allowed, the complainants are not entitled to the costs of the reference.