Dows v. McMichael — 2 Paige Ch. 345

Majority

p. 345

Dows and others vs. McMichael.

Headnote

Where the complainant replies to a plea, he admits its sufficiency; and if the truth of the plea is established the bill will be dismissed.

If at the hearing the plea is not found to be true, it will be overruled as false, and the complainant will be entitled to a decree as on a bill taken as confessed.

If a plea is overruled as false, the complainant will not lose the benefit of an answer if a discovery is necessary ; but he may have an order to examine the defendant on interrogatories, before a master, as to the discovery sought by the bill.

March 1st.

The complainants filed their bill in this cause as judgment creditors of the defendant to obtain satisfaction out of his property which could not be reached by execution at law. The defendant pleaded an affirmative plea in bar of the discovery and relief prayed for in the bill; upon which the complainant took issue. Orders to produce witnesses and to close the proofs were regularly entered, but the defendant produced no evidence to establish the truth of his plea. On the hearing of the cause the defendant made default. The complainants claimed the benefit of a discovery of the property and choses in action of the defendant. The only question was as to what decree they were entitled to on this state of facts.

$. Dutcher <§• J. Harris, for the complainants.

Where a plea in bar to the whole bill is put in, if the complainant takes issue thereon he admits the sufficiency of the plea, and leaves nothing in question but the truth thereof. If at the hearing the plea is found to be true the bill must be dismissed. But if the plea is untrue the complainant will be entitled to a decree against the defendant in the same manner as if the several matters charged in the bill had been confessed or admitted. If a discovery is necessary, to enable the complainant to obtain the relief sought for by his bill, the defendant cannot evade answering

p. 346

by putting in a plea which turns out to be false. In süch a case, after the plea is overruled as false, the complainant may have an order that the defendant be examined on interrogatories before a master as to the several matters in relation to which a discovery was sought by the bill. (Brownsword v. Edwards, 2 Ves. sen. 247. Hawkins v. Trollop, Nelson’s Rep. 119.)

In this case the truth of the several matters charged in the bill being admitted by the state of the pleadings, there is sufficient to authorise the court to decree , payment and satisfaction of the complainant’s debt out of the property, effects and choses in action of the defendant ; and all the necessary discovery can be obtained upon the proceedings under that decree. There must be the usual decree overruling the plea as false, declaring the right of the complainants to satisfaction out of such property and effects ; referring it to a master to appoint a receiver and take from him the requisite security ; directing the defendant to deliver over and assign to such receiver, on oath, before such master, all his property, effects and choses in action, except such wearing apparel, &c. as is exempt from sale on execution. And the complainants are to be at liberty to examine him, on interrogatories before the . master as to the property, effects and choses in action which he now has, or which he has assigned or transferred to any other person in trust for his family or otherwise, as the said master, may deem necessary, or proper ; with the usual power to the receiver to collect and compromise debts • due to the defendant, and convert the effects into money, and pay the amount due to the complainants, for their debt and costs. And either party or the receiver is to be at liberty to apply to the court for such further or other directions in the premises as may be necessary.