Majority — TANEY C.J.
p. 726William Hardeman and Henry R. W. Hill, Complainants, v. Benjamin D. Harris.
Syllabus
If an exception be taken to an answer in chancery upon the ¡pound that certain allegations in the bill are neither answered, admitted, nor denied, it becomes ne- ■ cessary to inquire whether the facts charged in the allegations are material, and might, if established, contribute to support the equity of the complainant.If they will not, the omission to answer the allegations is not a good ground for exception to the answer, and the exception must be overruled.
Therefore, when a bill charged that certain notes were given for the purchase of slaves introduced into the State of Mississippi, as merchandise and for sale, after the first day of May, 1833, and the answer omitted to notice the allegation, such omission was not a good ground for an exception.
This court has repeated!y decided that the fact stated is no defence to a suit at law. Still less can it be a defence in equity.
Where an allegation in the bill was, that the complainants were only sureties, and that their principal was insolvent, the answer was not justly subject to exception for omitting to notice it. The fact in no way strengthened the equity of the complainants.
This case came up from the Circuit Court of the United States for the Southern District of the State of Mississippi, on a certificate of division in opinion between the judges thereof.
The facts in the <,áse. are sufficiently set forth in the opinion of the court.
It was argued by Mr. Nelson, on behalf of the respondent, Harris; no counsel appearing for the complainants.
Mr. Nelson contended that neither of the exceptions was well taken.
The first, because the allegation to which it refers was wholly immaterial, and not therefore required to be answered.
The second, because the allegations therein referred to, contained in said bill, if at all material, which is denied, have been substantially responded to by said answer.
In support of the first proposition it is submitted, — —
That to justify an exception- to an answer in chancery upon the ground of insufficiency,. it is necessary to show that the omission alleged is material to the purpose and object of the complainant’s bill. 2 Dan. Chan. Prac. 261Welford’s Equity Plead. 368; Hare on Disc. 160; 1 McClellan & Younge, 334. In Hirst v. Peirce, 4 Price, 136, (2 Eng. Exch. Rep.,) Chief Baron Richardson says : — “ There is great mistake in general in this court as to what is a material exception. The true way of arguing and considering such an exception is by ascertaining whether, if the defendant should answer in the affirmative, his admission would be of use to the plaintiff. If it would, it must be answered; if not, it is not material.”
And in Bally v. Kenrick, Í3 Price, 294, (6 Eng. Exch. Rep. 99,) Sir William Alexander, Chief Baron, says: — “ The
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materiality of the exception wi11 depend on this, —whether the interrogatory be of such a nature, without reference to . the objectionable part of the answer, as that the answer to it might, if it were answered simply as it is put, so far contribute to supr port the equity of the plaintiff's case as to- contribute to induce the Court to give him the relief sought bythe bill.” .
This being the clear and well-settled rule, it remains to inquire, whether the omission referred to in this exception- be material to the object of the complainants’ bill.
That it is not is unquestionably clear. Groves v. Slaughter, 15 Pet.-449; Harris v. Runnels, 5 How. 135 ; Truly v. Wanzer et al., 5. How. 141; Sims v. Hundley, 6 How. 1 .
In support of the second proposition in the defendant’s brief, it is insisted, —
That the omission alleged in the complainants’ second exception does not in fact exist to the extent therein stated, and if it did, it is wholly immaterial.
That Hardeman, .one of the complainants, was a mere' surety in the- note ued upon at law, is substantially admitted by the defendant, and will be apparent upon the examination of .the answer, wherein he states the sale of slaves, for which the note was given, to have been originally made'to James M. Smith, on. credit, and that he “ received in payment therefor the notes or bonds of said James M. Smith and of the said William Har-deman.” That upon one of said bonds or notes a judgment was obtained, as stated in the bill, and. that the note or bond sued on, upon which the judgment enjoined was recovered, was. given in satisfaction of the first-mentioned bond or note and judgment.
Now all that is necessary for a defendant to do, in a case like the present, is to answer substantially the allegations of the bilL Welford’s Equity Pleadings, 261.
As to the objection, that the allegation of the insolvency of James M. Smith’s estate is not answered by the defendant, it is sufficient to say that the fact is nowhere so alleged in the. bill as to require any answer. There is. no such averment in the bill, the only suggestion being that “ it seems that nothing can be found,” &c.
But if it were otherwise, it is indisputably clear that the allegations are wholly immaterial; that, however answered, the complainants could not be aided in the purpose of their bill; and that therefore, upon the authority of the cases already referred to, the omissions furnish no sufficient grounds for an exception,
delivered the opinion of the court.
In this case, the. complainants filed a bill in the Circuit Court
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for thé Southern District of Mississippi, praying a perpetual injunction agaitist a judgment at law which had been obtained against them. The bill, among other things, states that the note upon which the judgment was awarded was given for the purchase-money of certain slaves brought by the defendant into the State of Mississippi, as merchandise and for sale, after thé first day of May in the year 1833, and sold in.the State to a certain James Mi Smith, in violation of the • constitution and laws, of the State; that the complainant Hardeman was surety for Smith; that a judgment was afterwards obtained against him, and an execution issued and levied upon his property, and that, to prevent it from being sold, he executed a forthcoming bond' with the other complainant, Hill, as his security, which bond had become forfeited, and therefore had the form and effect of a judgment against the complainants; and that Smith, for whom he was security, was dead, and his estate insolvent;
The defehdant answered; and upon ¿he coming in of the answer, the following exceptions were taken to it by the complainants : —
“ 1st. The bill charges that the slavés mentioned in complainants’ bill, sold by the defendant, Harris, to James M. Smith, and which constitute the consideration of the rióte upon which the judgment at law enjoined in this cause was rendered, were introduced into the State of Mississippi by the said defendant, Harris, for sale and as merchandise, after the first day of May, 1833. This allegation has not been answered, admitted, or denied. .
“ 2d. It is alleged in jthe bill, that complainant Hardeman was only surety in the note sued upon at law, and that C. P. Smith, executor of James M. Smith, was principal, and that the estate of Jannes M. Smith is insolvent, &c. These allegatiohs are neither.answered, admitted, nor denied.”
And upon the hearing of these exceptions, the judges were di-> vided in opinion upon the point whether they were well taken and should be sustained, or not, and therefore ordered the question, to be certified for decision to this court. .
It is very clear that neither of these exceptions can be maintained. It has been repeatedly decided in this court, that the fact stated in the first is no. defence at law, and still less can it be a ground of relief in equity after, a judgment at law.
And as regards the second, certainly the insolvency of the-principal debtor is no defence to the surety, either at law or in equity:. -
If, therefore„.the defendant had admitted in the most explicit terms the allegations mentioned in the exeéptions, they would not have contributed in any. degree to support the claim of the
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complainants ?to the relief they ask. And consequently, the omission tp answer (if the answer be open to that objection) furnishes no ground of exception. It is not a sufficient foundation for an exception, that a fact- charged in a bill is not answered, unless the fact is material, and might contribute to support the equity of the case of the complainant, and induce the court to give the relief sought by the bill.
The exceptions ought, therefore, to have been overruled, and we shall direct it to be so certified to the Circuit Court.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the- United. States, for the Southern District of Mississippi,, and on the points or questions on which the judges of the said Circuit pourt were opposed in opinion, and which were certified to this court, fór its opinion, agreeably to the act of. Congress in such case made and provided, and was argued by counsel. On’ consideration ’whereof, it is the opinion of this court, that the exceptions by the complainants were not. well- taken, and ought-to- have been overruled. Whereupon, it'is now here ordered and decreed, that it be so certified to the. said Circuit Court. - ..
Cases cited
- 5 How. 135 5 How. 135 p. 727, p. 728
- Sims v. Hundley 6 How. 1 p. 727