Higbie v. Brown

The court decided that where a defendant has submitted to the exceptions to his first answer, or the same have been allowed by the master, upon a reference thereof, it is too late for him, upon a reference of a second or third answer upon those exceptions, to insist that the original exceptions were not well taken, and that the further discovery called for is immaterial.

That the principle of the cases of Candler v. Pettit (1 Paige’s Rep. 427,) and of Franklin v. Keeler (4 Idem 382,) that if one general exception is taken to a master’s report on 1 . . ‘ exceptions and the court is of opinion that the master was right in allowing either of the exceptions, the exception to his report will be overruled — applied to the case of a second answer referred upon reversal of the original exceptions.

That a defendant may indeed take one general exception to ⅛<3 master’s report, so far as it is against him, and thus com

Practice where is reported in-«ufficient.

Exception to master’s report overruled with costs ; and defendant directed to pay those costs, including costs of the order nisi to confirm the master’s report, within twenty days, or bill to be taken as confessed. An attachment ordered to issue against defendant for his contempt in not fully answering ; and upon the return thereof defendant ordered to be examined upon interrogatories before the master, and to be committed until he shall have answered the interrogatories, and paid the costs.

The chancellor decided that the complainant is not entitled, in a case like the present, to an order to commit the defend-antj an(j (hat he answer the interrogatories, in the first instance. But that he must wait until the time for excepting to the report has expired, or until the decision of the court upon the exceptions thereto, and then proceed by attachment to bring the defendant into court to answer for the contempt, before he can obtain the order for commitment of the defendant until he shall have answered the interrogatories before the master and paid the costs of the proceeding to obtain such examination.

The usual order under the 64th rule, directed. But defendant being a non-resident of the state he is to be allowed four months after notice to his solicitor of the issuing of the attachment to sheriff of the county of Albany, to surrender himself, thereon. And attachment to be made returnable at some regular motion day within two months after the expiration of the four months. With leave to defendant to apply to court to extend the time, or to dispense with his personal attendance, and to permit him to put in written answers to the interrogatories. Or, if complainant consents to dispense with defendant’s personal examination and to permit him to answer the interrogatories in writing and upon oath to be taken where defendant resides, then the order to direct the defendant to answer to the master’s satisfaction ; the interrogatories to be settled by the master, within two months after