Hawley and others vs. Wolverton, 5 Paige Ch. 522

The Chancellor.

In examining the question, whether .an allegation or statement in the bill is relevant or pertinent, it must be recollected that a bill in chancery is not only a pleading, for the purpose of bringing before the court and putting in issue the material allegations and charges upon which the complainant’s right to relief rests, as in a declaration in a suit at law, but it is also, in most cases, an examination of the defendant upon oath, for the purpose of obtaining evidence to establish the complainant’s case, or to counter-prove or destroy the defence which may be set up by such defendant, in his answer. (Mechanics’ Bank v.

Levy, 3 Paige’s Rep. 606.) The complainant may therefore state any matter of evidence in the bill, or any collateral fact, the admission of which, by the defendant, may be material in establishing the general allegations of the bill as a pleading, or in ascertaining or determining the nature and extent, or the kind of relief to which the complainant may be entitled, consistently with the case made by the bill; or which may legally influence the court in determining the question of costs.

And where any allegation or statement contained in the bill may thus affect the decision of the cause, if admitted by the defendant or established by proof, it is relevant, and cannot be excepted to as impertinent. The. defendant, by his four first exceptions, seeks to expunge from the bill the fact of the making of the will of Mr.

James, by which the premises upon which the alleged waste was committed were devised to the complainants, as executors and trustees, the death of the testator, the probate of his will made by the complainants, and the assumption by them of the trust, by which they become jointly vested with the legal estate in the premises. Looking to the nature and extent of the relief sought in this case, and to which the Complainants may be entitled if the several allegations in their bill are proved or admitted, all of these facts are relevant, and may have a material effect upon the decision of the cause.

The taking of a lease from them, by the defendant, is at most but an admission of their title for the short term of years for which that lease was given. But the owners of a short term of years, in land, although they may have the right to file a bill to prevent the commission of future waste, might not be the proper persons to claim compensation for that which has already been committed. These allegations in the bill, therefore, are material, for the purpose of showing the origin, nature and extent of the complainants’ interest in the premises.

And the first four exceptions should have been disallowed by the master. The matters of the sixth, seventh, eighth and ninth exceptions are material, to show that the trees cut down were appurtenant to the mansion house, erected by the testator on the premises for a country seat or summer residence, as shade or ornamental trees, and to show the location thereof in reference to the dwelling house and public road, and to counter-prove the defendant’s pretence, that the trees were cut down by him for fencing, or to prevent their furnishing , a harbor for vagrants.

Those exceptions should therefore have been disallowed. By the tenth exception, the defendant seeks to expunge from the bill the allegation that the trees in question were considered and treated by the testator, in his lifetime, as very ornamental, and as of great value as a matter of taste. The question, as to what is and what is not ornamental timber, is a mere question of taste. It may be very material, therefore, in determining the question, to ascertain whether it has been considered and treated as ornamental by the former owners and proprietors of the premises.

This exception should, for this reason, have been overruled. The matter of the eleventh exception shows that the waste in cutting down the trees was a wilful and intentional injury to the property of the lessors, after the defendant knew from one of them that the preservation of the trees was deemed of great importance, by an offer of a largo reward for the detection of any person who should attempt to cut any of them down. And this fact, if established, may also have a very material influence on the decision of the court upon the question of costs.

The twelfth exception seeks to expunge from the bill the separate allegation of one of the complainants, that if the premises were owned by him in his own right, he would not have been willing to have the trees cut if $500 had been offered to him as a compensation for the same. This allegation is one which, from its very nature, cannot be put in issue and proved; and to which the defendant cannot give an answer which will be of any benefit to the complainants. A few unnecessary words in a bill or answer, does not render it impertinent. (Del Pont v. De Tastet, Turn. & Russ.

Rep. 486.) And the master should not allow the exception, in such a case, unless the irrelevant passage would tend to the introduction of improper evidence, by putting facts in issue which are foreign to the cause, or where the irrelevant matter might embarrass the defendant in answering the bill. In the present case, the matter of the twelfth exception is objectionable on the latter ground. The exception was, for that reason, properly allowed. And the impertinent matter must be expunged by the register. The ten first exceptions to the master’s report are allowed, and the last is disallowed.

The eleventh exception to the report forms an offset to one of those which are allowed, and the defendant must pay to the solicitor of the complainants the costs of the other nine; that is, nine elevenths of his costs on the exceptions to the report; and deducting therefrom the defendant’s costs for the twelfth exception to the bill, which h finally allowed, as directed by the 63d rule.