Caleb Hunt vs. Gookin and Fay, 6 Vt. 462

The opinion of the court was delivered by Williams, Chancellor. — This cause comes before us on exceptions to the answer of the defendant. The master ruled that the defendant should make further answer. Exceptions ’ were taken to the decision of the master, and a hearing has now been had on these exceptions.

The question is, whether the defendant shall render an account' in his answer of the dealings and partnership transactions between Gookin and Hunt; and this presents the point, whether a defendant may, in his answer to a bill, set forth certain facts as a bar to a further answer, and decline answering for that cause. The practice in the court of chancery in England has been somewhat fluctuating on this point. The old rule, as it is called, undoubtedly was, that if the defendant answer at all, he must answer fully.

Without going into an examination of the conflicting opinions which have been held on this point, it may be sufficient to observe, that although it was holden by Lord Loughborough that an answer was sufficient which stated facts and denied the grounds' upon which a further answer was prayed, yet the weight of authority in the court of chancery in England is now certainly in favor of the rule. In Mazarredo vs. Maitland, 3 Mad. 70, the Vice Chancellor held, that a defendant cannot by answering object to answer, though by plea he may; and he says that Lord Eldon, in Somerville vs.

Mackay, 16 Ves. 382, held the same, and observed that it was so useful a rule, he should always adhere to it; and in a case in 4 Maddoc, 252, the Vice Chancellor said, in a bill for an account of partnership, when the defendant by answer denied the partnership, and refused to set forth any account, “ the point is settled, if a defendant answers, he must answer folly — he should have pleaded.” This rule has, however, always been subject to certain exceptions.

Chancellor Kent, who with great ability examined all the English decisions on this subject, admits the general rale, but considers it subject to modifications and exceptions, and in the case then before him, came to the conclusion, that if a defendant submits to detail part of a conversation, he shall give the whole; or if he gave a partial account of assets, he should give a full one; but that he might by his answer rely on a lapse of time as an objection to the plaintiff’s right of action, and refuse to make any further answer. Phillips vs. Provost, 4 John. Ch. Cas. 205.

Chief Justice Swift says, that a defendant is not precluded from relating facts to show why he should not be compelled to make a further discovery; that he does not waive the advantage by not demurring or pleading, but may reserve it to the last, and is decidedly favor °f the new rule, or the exchequer rule, as it is sorne-times called. 2 Swift’s Dig. 202. And Ch. J. Savage in the court of errors, in New York, said the defendant ought in all cases to be allowed by answer to refuse to answer. Murray vs. Carter, 4 Cowen, 617. 'The practice in the court of exchequer has been always conformable to this. Jacobs vs.

Goodman, 3 Brown, 488 in note. And it was so held by -C. B. Eyre, when sitting as one of the commissioners of the great seal, in Selby vs. Selby, 4 B. C. C. 12.

From an examination of all the authorities, and being at liberty to adopt our rules of practice from the practice of either of the courts of chancery in Great Britain, we are disposed to -decide, that although the defendant may not by answer be able to avail himself of every ground of defence which he could avail himself of by demurrer or a pure plea in bar, yet he may answer in part and refuse to answer further, by showing a sufficient ground why he shouldnot becompelled to make further answer; or in other words, we adopt the practice in the court of exchequer, in this particular, as the most consonant to justice.

And though it is true, that exceptions in the first instance here are referred to a master, and do not go directly to the court, as they do in the court of exchequer, yet that does not afford á sufficient reason for not adopting that practice.' It remains then to be seen, whether -this answer does disclose such reasons that we ought not to require a-further answer..

It appears that the orator has presented his claims to the commissioners on the estate of Richard Gookin in this state, and that a decision has been had adverse to the claim, on the ground, either that the statute of New Hampshire, or his agreement with Mrs. Gookin, or both, is a bar to his claim, and that an appeal has been taken from the judgment of the commissioners, which is now pending. If it should appear that there are any .equitable considerations arising from the proof for setting aside the contract in toto, it may be done when a decree is made in that case.

If there is not, both the effect of the statute of New Hampshire and of the agreement between the orator and Mrs, Gookin will have to be decided in that case, and any opinion which we might make on their legal effect would be wholly gratuitous. We shall not therefore make any decision upon the questions, whether the statute of New Hampshire, or whether the agreement with Mrs. Gookins bars all claims of the orator against the estate of Mr. Gookin. Our views at present are not all alike as to the legal operation of the statute or the covenant. Though if it were necessary, we might probably make a decision.

In relation to the contract or covenant, we can only say, that if it was understandingly made, without fraud, it was intended to be a settlement and adjustment of the claims between the orator and the estate of Mr. Gookin. It was capable of being specifically performed, and if performed on one side and not performed on the other, the party failing could be compelled to make, a compensation in damages. The bill has heretofore been retained, to see if there are any reasons why this contract should be set aside, or the party enjoined from taking advantage of it.

There is, however, no reason why the defendants should set forth a statement of the dealings or accounts between the orator and Mr. Gookin in answer to this bill, or that they should make any further answer in the particulars excepted to. The orator can make out and establish his-claim, if he has any, in the suit at law which is now pending on appeal from the decision of the commissioners. He has not asked for the aid of this court to enable hini to make his claim, nor does he ask for a discovery from the defendant for that purpose.

There is nothing in .the way, unless it be the statute of New Hampshire and the agreement which he made with. Mrs. Gookin, and the effect of these should be decided in that suit. If the statute of New Hampshire, or the covenants, be a bar, the defendants can avail themselves of it in that suit. If they are not, or if the the contract was fraudulently obtained, the orator may substantiate his claim in that suit. It is said, however, that this objection is too late — that the defendant should have insisted upon this by way of demurrer.

We think, however, that the defendants may here avail themselves of this advantage by way of exception to further answer. Th.e bill charges fraud in obtaining the discharge, and that in consequence of this fraud he was prevented from presenting his claim to commissioners. This part of the bill is still open for discussion, and for this reason the defendants would not have been safe in demurring to the whole bill. No reason is set forth in the bill why we should take jurisdiction of this claim.

The aid of the court in settlement of a partnership concern might be needed where one of the partners is dead, for the purpose of substantiating a claim against the estate of the person deceased, for the purpose of selling the property, converting it into cash, the appointment of a receiver, or for other reasons, where the powers of the commissioners appointed to receive and examine the claims of creditors would be inadequate. But where a claim growing out of a partnership is ascertained, and the amount found due, the amount must be placed on the list of claims against the estate in the probate office.

This might be done by permitting the survivor, after the claim was here established, to prove the amount of the claim before the commissioners, or in the suit pending on the appeal, and by enjoining the administrators from contesting a claim thus adjusted. It is sufficient to say that there is nothing here which calls on us to exercise our chancery powers on this subject. Having this view of the subject, we think that this is a case where the defendant cannot be required to make any further answer, and therefore overrule the decision of the master on the exceptions taken to the defendant’s answer.

The twentieth exception is not precisely of the same n'ature with the other exceptions, as it is founded on the insufficiency of the answer to the charges in relation to the obtaining the contract. The answer to this part of the bill is sufficient.

It states that the contract was mutually entered into, both parties being desirous to have the claims between them amicably adjusted; and the particulars of what was said at the time, or of the conversation there had, are not material; and .though they are stated in the bill, the orator has not framed .any interrogatory for the purpose of having these particulars stated in the ■ answer. It is therefore tvell enough as to the point referred to in this exception.