Austin v. Dickey

The Vice Chancellor : The practice which has been adopted in suits upon judgment creditor’s bills is anomalous in several particulars ; and, though it may seem strange that a defendant, who has answered the bill and denied that he has any property, may still be examined in a master’s office touching property to be delivered to a receiver, the established practice authorizes an examination even in such a case: as is shown by the Chancellor in Gihon v. Albert, 7 Paige’s C. R. 280. Notwithstanding the defendant may have answered the bill in the usual manner, I am bound to say that he must also submit to an examination in the master’s office. Such examination, however, must be restricted and kept within the rule laid down by the Chancellor in Fitzhugh v. Everingham, 6 Paige’s C. R. 30, 31. The point then is, whether the questions propounded to the defendant and held to be proper by the master, but which he refused to answer, are within that rule ? I am of opinion they are fairly within the scope of it as preliminary to other questions which must necessarily follow, provided the defen [380] dant answers these in the affirmative. If he should answer in the negative, no harm will be done by the questions ; and , „ .. . ... if he cannot but answer affirmatively, the- complainants are still entitled to his answers, with a view to other questions touching his possession and control of the property at the time of filing the bill, within the rule of Fitzhugh v. Everingham, and which questions the master will see are kept within the scope and object of that rule. Order, that the defendant appear before the master and answer the questions upon a re-summons or that an attachment issue against him ; and he is to pay the costs of this motion.