Leycraft v. Dempsey , 15 Wend. 83 ( 1835 )

The following opinion was delivered ;

By Chief Justice Savage.

The only question in this case is, whether the second answer of the defendant is sufficient ? The general rule is stated by chancellor Kent, 1 Johns. Ch. R. 107, that to so muehmf the bill as is material for the defendant to answer, he must speak directly, and without evasion ; he must confess or traverse the' substance of each charge; and particular charges- must be precisely answered, and not in a general manner. .Thus,’on a bill requiring a general account, and calling upon the. defendant to'answer whether he had received a particular sum, it was held that setting forth a schedule purport- [85] ing to contain an account of all sums received, was not sufficient,-but the defendant was -bound to answer specifically to each Specific charge. ' Cooper's Pl. 312, 13, Mitf. 248. In this case the plea was informal, but was adjudged sufficient in substance, and therefore ordered to stand .for an answer. In such ease if a plea is ordered to stand for an answer; it' is allowed to be a sufficient answer to so much of the bill as it covers, unless, by the order, liberty is given to except. Mitf. 245, citing Mosely, 74 ; 3 Atk. 515 ; 3 P. Wms. 230. In this case the plea was adjudged a sufficient answer, and the complainant.was -prohibited from calling for an account by exceptions, or for any further answer-as to that part of the bill. If dissatisfied with that decision, the complainant might have appealed; but it was submitted to on both sides. It seems, also, that when a bill is filed to open the settlement of an account, the court does not grant the request upon the mere asking for it; but the error or fraud relied on must be particularly pointed out. One rule, says Lord Kedesdale, material .to observe, in all cases of account is, that when there has been a settlement, and the account has been signed, or a security taken, on the footing of the account, a court of equity does , not open the transaction, unless the evidence shows (and that founded upon charges in the bill) the whole transaction so iniquitous that the party ought not to'be bound by it. If the account has been settled, or an instrument executed upon the foot of it, the error should be specified in the bill. 1 Sch. & Lef. 192. The plaintiff must show clearly that he has been imposed upon, before the court will permit him to unravel an account to which he has before-submitted. 1 Cox, 436. 1 Bro. C. C. 267. 2 id. 311:

When the original plea was ordered to stand for an answer, the chancellor declared that the defendant was not to be called on for the accounts ; and upon the motion to strike the amendments from the files, he ordered the amendments tó stand, but declared that the defendant was not to be required to give any further answer to that part of the bill, unless she admitted errors in the accounts previous to that time, as charged in the amendments. This was an adjudication that the answer already put in was a sufficient answer ; and this was submitted to by both parties. This was in accordance with the practice. ' Mitford says : “ If a plea is ordered to stand for an answer, it is allowed to be a (sufficient answer to so much of the bill as it covers, unless, by the order, liberty is given to except; hut that liberty may he qualified so as to protect the defendant from any particular discovery-which he ought not to be compelled to make.” Mitf. 245, 6; Atk. 815 ; 8 P. Wms. 239. It is settled practice, therefore, that when a plea is ordered to stand for an answer, there can be no exception to that part of the answer composed of the plea, without express leave. It would he an evasion of this rule to permit the plaintiff, hy way of amendments to his hill, to do indirectly what he could not do directly. In this respect it may he said to have some analogy to a motion for a rehearing. In Williamson v. Hyer, 4 Wend. 170, a motion was made for instructions to a master, and repeated and denied. After fifteen days, a motion wss made for a rehearing, which was denied. An appeal was then brought from the last order and the two preceding. The appeal was dismissed. One ground assumed was, that to allow it would countenance an evasion of the statute requiring appeals from interlocutory orders in fifteen days. The complainant in this case might have appealed in fifteen days after the first order, and thus tested the chancellor’s decision. The chancellor, in this case, not only did not give leave to except, hut declared that no exception should he taken. This he had a right to do, by the practice of the court. Such, in fact, was the effect of ordering the' plea to stand for an answer, without express leave to except. His subsequent decision, therefore, was correct. The complainant has been treated according to the ordinary practice of the court. She should have framed her hill properly in the first instance, to meet the case of a settled account. She did not do so ; and by the course of pleading which was adopted, she lost the benefit of her exceptions. The decree should he affirmed.

Whereupon it was unanimously affirmed.