Alderman vs. Potter, 6 Paige Ch. 658

The Chancellor. The only ground upon which the master could have supposed this part of the answer impertinent must have been that the defendant could not insert any matter of defence, or even of discovery, in his further answer, except such as was actully called for by the exceptions, although it was strictly responsive to the bill.

Even upon that ground the matter was not impertinent; as it was, in connection with other facts alleged in the answer and further answer, responsive to that part of the bill which stated that the defendant had property to the amount of $100 and more over and above all prior just claims thereon, a further answer to which allegation was called for by the ninth exception.

As the defendant had stated what his property was, it was proper to set out all the incumbrances thereon, in connection with the general denial in answer to that exception, that its value exceeded $100 exclusive of these just claims and liens thereon. And although the part of the answer complained of does not profess to be an answer-to the ninth exception, but to the first, it cannot be impertinent if it was proper under either of the exceptions. I think, however, the master was wrong in the principle upon which he proceeded.

And that when a further answer is called for by exceptions, if the defendant finds he has neglected to answer any thing that he was called upon by the bill to discover, he may, in answering the exceptions, make his answer perfect; although the exceptions do not cover the whole ground upon which the original answer might have been objected to for insufficiency. I am also inclined to think he may in such further answer set up any new matter of defence, although not responsive to the bill, which has arisen since the filing of the original answer.

The exception to the report is therefore allowed with costs ; and the exception to the further answer must be overruled with costs.