Miles v. Miles

27 N.H. 440

• Court: Superior Court of New Hampshire
• Decided: December 15, 1853
• Status: Published

Opinion

Eastman, J.

To the answer of Lydia Miles, the exception is taken that she has not answered and set forth whether the orator has reason to believe, and does believe, that the several defendants, naming them, intend to commit strip and waste on the premises devised by Reub.en Miles, and whether there is not an understanding, if not an express agreement among them for that purpose.

Upon looking into the bill, we do not find any particular interrogatory specifically interrogating the defendants upon this point. But in the general allegations of the bill, the charge is made as set forth in the exception. There is also in the bill the general interrogatory or requisition that the defendants may severally and respectively, full, true, direct and perfect answers make to all and singular the premises, as fully and particularly as if the same were repeated, and they and every of them distinctly interrogated thereto.

There is nothing in the answer particularly denying this charge in the bill — nothing except the general and usual denial of all unlawful combination and confederacy; and the question is raised whether a defendant is obliged to answer the statements and charges in a bill, unless specifically interrogated thereto.

According to the present English practice, the general interrogatory is not sufficient. By the 16th of the orders of August, 1841, it is provided that a defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto. 2 Danl. Ch. PL & Prac. 820. But such was not formerly the . practice.

The same rule has been adopted by the supreme court of the United States. Rules in Equity, 40 January term, 1842.

With us no rule of the kind has been adopted, and we adhere to the general practice of courts of chancery, which have no particular rules upon the subject, and require a defendant to answer all the allegations and charges in the bill which maybe material to the plaintiff’s ease ; and although, to prevent evasion on the part of the defendant, it may be well, and is usual, to add interrogatories concerning the matters considered to be most essential, yet, under the general interrogatory, an answer is open to exception, if it omits to notice material charges and statements in the bill, concerning which no specific interrogatories are introduced. 1 Danl. Ch. Pl. & Prac. 432; Story’s Eq. Pl. § 38; Methodist Episcopal Church v. Jaques, 1 Johns. Ch. Rep. 65; Hagthorp v. Hook, 1 Gill. & Johns. 270; Salmon v. Claggett, 3 Bland. 125; Bank of Utica v. Messereau, 7 Paige 517; Parkinson v. Trousdale, 3 Scam. 380; Cuyler v. Bogert, 3 Paige 186.

The matter has been settled in the same way in Massachusetts, by rule of court. Mass. Rules for the Regulation of Practice in Chancery, rule 5.

According to these suggestions, the defendant should have made answer to this charge in the bill. It is a material allegation of an intent to commit waste, and the exception must be sustained.

To the answer of Nancy Miles, two exceptions are taken. The first is, that she has not, to the best of her knowledge, remembrance, information and belief, answered and set forth whether John Kingman, during the time stated in the bill, cut and hauled from the premises full twenty cords of pine wood, and sold the same, and cut and drew from the premises pine logs sufficient to make from five to ten thousand feet of boards, and converted the same to his own use, but not on the premises; and whether the wood and timber were worth from one hundred to one hundred and fifty dollars, and that Kingman told the orator, in the month of January then last, that he intended to cut wood on said premises, the present winter, sufficient to last his fire two winters, and that Kingman never lived on any,part of the premises.

The bill contains the allegation set forth in the exception, the answer to which is as follows: that Kingman held the premises, by lease from the Meserves, for two years, and that during said two years he had some pine trees cut for fencing, and sawed the same into boards; and during the latter part of the winter of 1850, or in the spring of that year, he caused some of the boards to be hauled and left at or near the different bars on the premises, and the same were afterwards used in repairing said bars. That King-man used no fuel on the premises while he so occupied the same, and this defendant does not know that he took any from the place to be used elsewhere.

The answer to this allegation of the bill is far from being explicit. Kingman might have cut the timber alleged in the bill, and the defendant, Nancy Miles, have known the fact, and still the answer be true; for he might have cut timber to be sawed for bars in addition to that specified in the bill.

She says, also, that she does not know that Kingman took any fuel from the premises be used elsewhere. But if she had no knowledge upon the subject, she may have had information.

The answer to the part of the bill contained in this exception is entirely insufficient, and the exception must be sustained.

A defendant must answer as to his knowledge, remembrance, information and belief. If a fact is charged as within his personal knowledge, he must answer positively, and not as to his remembrance or belief. If facts are charged as having happened, but they are not within his own knowledge, he must answer as to his information and belief. And he must answer directly and without evasion. He must answer the substance of each charge, as well as literally the several matters charged. A general denial, also, is not sufficient, but there must be an answer to all the special circumstances and particular inquiries. Hall v. Wood, 1 Paige 404; Devereaux v. Cooper, 11 Vt. Rep. 103; Utica Ins. Co. v. Lynch, 3 Paige 210; Coop. Eq. Pl. 314; Smith v. Lasher, 5 Johns. Ch. Rep. 247; Taylor v. Luther, 2 Sumner 228; Woods v. Morrell, 1 Johns. Ch. Rep. 103; Petit v. Candler, 3 Wendell 618; Story’s Eq. Pl. 852; Mountford v. Taylor, 6 Vesey 792; 2 Danl. Ch. Pl. & Prac. 830; Morris v. Barker, 3 Johns. Ch. Rep. 297; Bank v. Lewis, 8 Pick. 119.

The other exception to the answer of Nancy Miles is the same as that taken to the answer of Lydia Miles, and must be sustained accordingly.

To the answer of Tichenor Miles six exceptions are filed. The fifth and sixth are the same as those filed to the answer of Nancy Miles, and they must be sustained for the reasons already given. The disposition of the other four involves the same question as that stated in deciding the first exception to the answer of Nancy Miles, and it is unnecessary to state here anything further than to say that upon the principles there laid down, we think, the first and second exceptions should be overruled, and the third and fourth should be sustained. The answer to the allegations embraced in the first and second exceptions is sufficient, while the answer to the allegations contained in the third and fourth exceptions is evasive and insufficient.