Brooks v. Mead.

[*389] *EDWARD BROOKS v. MEAD. KELLOGG, AND HALE.

This Court will take no notice of a parol agreement between the solicitors, relating to the proceedings in a cause, but require all agreements to conform to the 87th rule.1

Where complainant had failed to serve his replication on a defendant, but the latter attended and cross-examined witnesses, it was held to be a waiver of all objections to the replication.

MOTION on the part of Hale to take from the files a replication to his answer, because it was not filed within the time allowed by the rules of the Court.

From the affidavits of defendant's solicitor, it appears he never had any knowledge or notice that any replication was, or had been filed, to the answer of Hale, until he was looking over the files in the register's office in January last, when he came across the replication. The affidavits used in opposing the motion state that a copy of the replication was not served on Hale's solicitor, in consequence of a parol agreement or understanding between the solicitors, that a copy need not be served. That testimony had been taken in the cause by complainants, and the defendants, Mead and Kellogg, and that the cause is on the calendar for a hearing. That notices of the taking of such testimony were served on Hale's solicitor, who attended and cross-examined the witnesses, and that Hale himself was present on one occasion; and that his solicitor had applied to the solicitors of the other parties, to assent to a commission for the examination of his witnesses.

E. C. Seaman, for Hale.

[*390]

H. T. Backus, for complainant.

*THE CHANCELLOR. I can take no notice of the parol agreement between the solicitors, dispensing with ser

1 See Suydam v. Dequindre, ante, 23.

Howard v. Palmer.

vice of a copy of the replication. The 87th rule requires every agreement, in respect to the proceedings in a cause, to be reduced to the form of an order by consent, and entered in the book of common orders, or to be in writing, and signed by the party against whom it is alleged.

By attending and cross-examining the witnesses, defendant waived all objections to the replication. 1 Hoff. Ch. Pr. 452. His application to the solicitors of the other parties, to assent to a commission for the examination of his witnesses, shows his understanding of the state of the pleadings. If there were no replication to his answer, he could examine no witnesses. Where, by mistake, a replication has not been filed, and yet witnesses have been examined, the Court will permit a replication to be filed nunc pro tunc. Mitf. Pl. 323; 1 Smith Pr. 336.

Motion denied.

*JACOB M. HOWARD AND NOAH SUTTON v. [391] THOMAS PALMER.

The examination of a defendant to a judgment creditor's bill, under an order entered in pursuance of the 111th rule [105 of the new rules] is not confined to defendant's property or effects, but extends to any matter which he would be required to disclose by answer; and authorizes the examination of witnesses on any matter charged in the bill, and not admitted by defendant on his examination before the Master.

Where a special motion was made for an order for a receiver under a judgment creditor's bill, and defendant had notice, but failed to appear or oppose the motion, it was held, that the fact of a demurrer having been filed was no objection to granting the order in such case, and that the defendant, if he meant to insist upon it, should have interposed his objection on the hearing of the motion, that the Court might look into the case and decide whether it was well taken.

The service of a copy of a Master's summons, without showing the original,

1w 391

55 397

Walker. 1 w391

97 609

is bad.

Howard v. Palmer.

Irregularity in the appointment of a receiver under a judgment creditor's bill is no ground for defendant's objecting to submit to an examination concerning his property and effects.

An order in part erroneous is not void, so far as relates to matters properly contained in it.

JUDGMENT creditor's bill.

A motion was made for an attachment against defendant, for not appearing before a Master to make an assignment of his property to receiver, and submit to an examination on oath relative to it. The motion was opposed, on the ground that the appointment of the receiver by the Master was irregular, as was also the order for his appointment, and for defendant to assign and deliver over his property to him; as there was a demurrer pending, when the order was granted. And further, that the order required defendant to submit to such examination as the Master should direct, in relation to any matter the defendant would be required to disclose by answer to [*392] the bill *of complaint, the bill not having been taken as confessed under the 111th rule of Court.

J. S. Abbott and J. M. Howard, in support of the motion.

II. H. Emmons, contra.

THE CHANCELLOR. The order under the 111th rule, for the appointment of a receiver, on a judgment creditor's bill, differs materially from the common order entered in this class of cases, where the bill has not been taken as confessed under that rule. The examinaton before a Master, under an order entered in pursuance of the rule, is intended to answer the double purpose of ascertaining what property the defendant has to assign and deliver over to the receiver, and of an answer to the bill of complaint. Hence, the examination is not limited to defendant's property or effects, as is the case under the common order; but extends to any matter defendant would be required to disclose by answer to the bill, and authorizes the examination of witnesses, on any matter charged in the bill, and not admitted by

Howard v. Palmer.

defendant, on his examination before the Master. Browning v. Bettis, 8 Paige R. 568.

The order for a receiver was granted on a special motion, of which notice was given to defendant's solicitor, who did not appear to oppose it. The demurrer was no objection to granting the order; and if defendant intended to insist on it as a reason why a receiver should not then be appointed, he should have appeared, and opposed the motion on that ground; and the Court would have looked into the pleadings to see whether the demurrer was well taken, or not, and, if it had any doubt on the question, would have ordered the motion to stand over until the demurrer was disposed of.

*Complainants, however, erred in entering their order. [*393] Instead of the common order, they entered the special

order authorized by the 111th rule, where a defendant to get rid of filing an answer, gives a written consent that the bill may be taken as confessed, and a receiver appointed. The error appears on the face of the order, which shows it was granted on special motion, and notice to defendant, and not by consent of parties.

A motion made in this same case, on the first day of term, for an attachment against defendant, was denied, on the ground that the Master's summons was not shown to defendant, when he was served with a copy of it, and that he was not, therefore, bound to obey it. The Master, notwithstanding defendant paid no attention to his summons, and did not so much as appear before him, went on, and appointed a receiver. This was irregular, as the Master's summons had not been properly served; and the appointment of the receiver would, on that account, be set aside on defendant's motion. But this irregu-· larity in the appointment of a receiver, is no answer to the present motion. Defendant should have made a motion to have the appointment set aside, and obtained an order staying proceedings, in the meantime, before the Master. He should, also, have taken this course, if he wished to have the objectionable parts of the order for a receiver stricken out. The order is not void. 3 Paige R. 195 253; 5 Paige R. 166. It is

Barstow v. Smith.

erroneous, only so far as it requires defendant to answer under oath any matter he was bound to disclose by answer to the bill. If defendant wished to avoid the trouble and expense of a motion to correct the order, he should have appeared before the Master, and objected to that part of it which is improper,

and refused to be examined under it, except as to the [*394] *property and effects he was required to assign and deliver over to the receiver.

Under the circumstances, I shall grant the motion for an attachment, unless defendant, within two days, waives all irreg ularity in the appointment of the receiver, in which case the motion is to be denied, with leave to complainants to amend their order for the appointment of a receiver.

SAMUEL BARSTOW v. HIRAM SMITH AND HANNAH HIS WIFE, ARZA LEWIS AND MARY HIS WIFE, AND ELISHA THORNTON AND AURILLA K. HIS WIFE.

The Court must judge of the intent of the legislature, from the language used to express that intent; and where the language is clear and explicit, and susceptible of but one meaning, and there is nothing incongruous in the act, the Court is bound to suppose the legislature intended what their language imports.1

Where the certificate of the acknowledgment of femes covert to a mortgage subsequent to the act of 1840, declared that they executed it without fear or compulsion of their husbands, it was held, that such certificate was no evidence, either in law or equity, of such an acknowledgment by them as the act of 1840 requires, to bar their right of power.

A demurrer may be good as to one defendant, and bad as to other defendants.2

It is a good ground of demurrer to the whole bill that one of the complainants has no interest in the suit, and has improperly joined with others in filing the bill; but there is no such rule in regard to defendants.

1 See Bidwell r. Whittaker, 1 Mich., 469; Leoni v. Taylor, 20 id., 148. Williams v. Hubbard, ante, 28.