Chazournes v. Mills , 2 Barb. Ch. 466 ( 1847 )

The Chancellor.

The objection that the complainant has submitted to the master’s report upon the exceptions to the answer to the original bill, and that the amendments do not make any new case calling for a discovery, cannot be raised by a demurrer to the discovery now sought. The former answer and exceptions thereto, and the master’s report, are not bef^'e me upon this appeal; nor could they properly be brought before the court upon a demurrer to the amended bill.

It is true, a complainant who neglects to except to the answer to the original bill, or whose exceptions thereto have been overruled, cannot except to the answer to the amended bill for insufficiency, upon the ground that the original bill was not fully answered. (Ovey v. Leighton, 2 Sim. & Stu. Rep. 234.) The proper course for these defendants, therefore, if the discovery sought was not wholly immaterial, so as to malee it a proper subject of demurrer, was to answer the amended bill without reference to such discovery. And then, if the complainant excepted to their answers for insufficiency, upon that ground, they would have been in a situation to move to take the exceptions off the files for .irregularity. Or they might have urged the objection before the master, upon the reference of the exceptions, that those exceptions related to the matter of the original bill ' only; or that the principle upon which the discovery was sought had been decided against the complainant, upon the reference of the exceptions to the original answer. (Bennington Iron Co. v. Campbell, 2 Paige’s Rep. 160.). But upon a demurrer to an amended bill, if any part of the discovery covered by such demurrer appears to be material and proper, for any purpose of the suit, the demurrer must be overruled. And the defendant cannot, upon the argument of the demurrer, insist that the discovery called for is contained in his former answer; for if so, that of itself would show that the demurrer was improper, and would overrule it as covering too much.

Upon the merits of these demurrers, I think they cover too much; even if the complainant is not entitled to a discovery of the situation of the fund and the manner in which it was invested, at the different times stated in the bill, previous to the filing of the bill itself. For, if the complainant can succeed at all in this suit, it is essential to the relief prayed for, that the nature and situation of the fund in question, as well as the amount thereof, at the time of filing the bill, and the answers thereto, should be disclosed, so that the property and securities m which it is invested may be traced and identified; to the-end that they may be- reached by the decree, and applied to the-payment of the complainant's debt. The demurrers, therefore,, should have been overruled.

The decretal order appealed from must be reversed, without costs to either party; and the demurrers of the respondents respectively must be overruled with costs. If exceptions are filed to the further answers, within twenty days after the entering of the decree upon this appeal, and if such exceptions are submitted to or allowed, the defendants respectively must answer the exceptions and pay the costs of the hearing, upon their several demurrers, within forty days after such exceptions are submitted to or allowed, or the bill must be taken as confessed against them ; unless the time for answering those exceptions is further extended by the court having jurisdiction of the matter. The overruling of the demurrers, however, must be without prejudice to the rights of the defendants to insist, upon the reference of any such exceptions, that the amended bill is fully answered, so far as the amendments are concerned, or that any particular parts of the discovery covered by the demurrers is immaterial or irrelevant, or that it should have been called for by exceptions to the original bill.

Decree accordingly.