Lakens v. Fielden , 11 Paige Ch. 644 ( 1845 )

The Chancellor.

I infer, from the papers before m'é fipon this appeal, that the order for a commission, in this case, was for the common dedimus to take the answers Cf the defendants; and not for a special dedimiis, authorizing the commissioners to take their plea, answer, or demurrer. If so, I think it would have been irregular for the commissioners to have returned the demurrer of those defendants,-instead of their answbf. Such was the opinion of Lord Langdale in the recent case of Tomlinson v. Swinnerton, (1 Keen’s Rep. 9,) whére, upon a common dedimus, the commissioners had returned an answer to one part of the bill and a demurrer to another part. Chief Baron Gilbert Says, if the defendant taires out a commission to answer he’canttbt return a plea or demurrer; because the commission is to answer find contest the 'cause, which does not give the com missibn'erS authority to receive any exception in relation to such contest. But the defendant rúáy move the court for a commission to plead, answer, or demur, and the court will grant it, with the restriction not to demur alone. And then the commissioners may receive a plea, or an answer and demurrer, because they haVé Ufithbrity from the court to do so; but if they send up a demurrer ’alone, the court will grant an attachment against the defendant. (Gilb. For. Rom. 93. See also 2 Dan. Ch. Pr. 281.)

In the present case, however, it does not appear that the .demurrer was returned upon the commission, or indeed that the common dedimils was ever taken out. And I presume the demurrer was put in by the counsel and solicitor for the defendants here; as a simple demurrer did not require to be verified by oath. Had the ordinary order to answer been served in this case, however; with á copy of the bill, at the time the order for the commission was entered, which order allowed two months for the return of the commission, it would have come within the decision of this court in Burrall v. Raineteaux, (2. Paige's Rep. 331,) that the defendant who has obtained further time to answer the complainants’ bill, cannot be permitted to demur, unless authorized by the court to do so. Here, however, no order to answer had been entered at the time the order for the commission was obtained. And the time for answering was not in fact extended by the last mentioned order ;■ as the bill itself was not served üpon the defendants’ solicitor until, after the expiration of the two rhonths specified in that order. When the complainants served the copy of the bill, and notice of an order to answer, in December, 1844, the defendants Were authorized to plead, answer or demur, within the forty days allowed by the rule of this court for that purpose; iti the same manner as if the order for a commission had not been entered.

The defendants, therefore, had the fight to have the-opinion of the court upon the question whether the demurrer was well taken. Thé Order appealed from must, be reversed,, and the motion denied. And the costs of the áppellants.upon this appeal, as well as their costs of opposing the motion.' before the; v-ice chancellor, are to. abide, the event of thé suit.

Order accordingly. ^(a)

(a) Affirmed, on appeal to the court for the correction of errors, in August, 1846.