The American Life Insurance and Trust Company vs. Sackett and others

The American Life Insurance and Trust Company vs. Sackett and others. Upon an application for leave to examine a co-defendant as a witness, there must bo an affidavit that the person proposed to be examined is not interested in the matters to which he is to be examined. An affidavit of the solicitor that he is advised and believes such person is a competent witness, is not sufficient. Where an original bill has been filed against all the necessary parties, the transfer of the interest of one or more of the defendants to a third person, who represents the same right and interest—as by a bankrupt assignment pending the litigation— renders it necessary to file a supplemental bill against the grantee or assignee o£ the original defendant, to bring him before the court as a party. But in such cases the only matter proper to be put in Issue upon the supplemental bill—unless some matter of defence has arisen since the joining of the issue- in the original cause—is the supplemental matter which is stated in such new bill to show the transmission of interest from the original party, to the new party who is brought before the court by the supplemental bill. The effect of such a bill is to revive the proceedings against the new defendant who has succeeded to the rights of the original party, and to place the proceedings in the same situation as they were in against the former party when the original suit became defective. If the original bill has been fully answered, the new defendant adopts that as his answer to the original hill. If the bill had been taken as confessed, the order pro confesso stands against him, unless he obtains leave of the court to have it opened. And if the proofs in the cause had been closed, they remain closed as against him. A supplemental bill of this character is a mere continuation of the original suit,, against the new defendant who has succeeded to the interest of the former party. And the supplemental suit, together with the original bill and the proceedings under it, constitute but one record. And if the supplemental bill is filed before a-decree, the original and supplemental suits are heard together, and but one decree’ will be made in. both. This was an application on the part of the defendant, Gary Y. Sackett, for an order to examine (he defendants, S. S. & W. M. Bayard, as witnesses in behalf of Sackett, and for a commission,, and to extend the time to take testimony until the return of such commission. The original bill was filed against the Bayards to foreclose and obtain satisfaction of a bond and mortgage, given by them to S. Bayard, deceased, and assigned by him to the complainants; and the executor of a subsequent mortgagee was made a party to the suit. The Bayards put in an answer setting up the defence of usury to the bond and mortgage. The cause was in readiness for hearing, and a rule to produce witnesses was entered' and served in the spring of 1842 ; and an order to close the proofs was regularly entered. In February, 1844, the Bayards having been decreed to be bankrupts, the supplemental' bill in this cause was-filed against them, and the defendant Sackett as their assignee in bankruptcy, to. revive and continue the suit; and other persons who had acquired some of the interest of the complainants in. the bond and mortgage, were also made defendants in such supplemental bill. The cause was in readiness to take testimony upon the supplemental bill, as between the complainants and the defendant Sackett, in the fore part of December, 1845, none of the other defendants having put in an answer entitling them to take testimony. And in January, 1846, the complainants entered and served the usual order to produce witnesses in forty days, which time the defendant, Sackett, subsequently got extended, by an ex parte order, for sixty days. The object of this application was to examine the Bayards as witnesses for their assignee in bankruptcy, to establish the usury set up in their answer to the original bill, and which their assignee had again set up in his answer to the supplemental bill. S. D. Van Schaack, for the defendant Sackett. J. Rhoades, for the complainants. [MAJORITY — The Chancellor.] The Chancellor. Several of the objections to this application are well taken. First, there is no affidavit that the Bayards are not interested in the matters as to which they are to be examined. The petition of their assignee only states that one of them is a material witness, not that he is not interested in the matters to which he is to be examined. And the affidavit of the solicitor, that they have been discharged under the bankrupt act, and that he is advised" and believes they are competent witnesses, is not sufficient. To render them competezzt, they shozzld at least have released to their assignee all right to the surplus of their estate, if there should be more than sufficient to pay their debts, in case they succeed in defeating the recovery upon this bond and mortgage. A more substantial objection to this application, however, is, that it appears from the papers before zne, that the defence of usury was set up by the answer of the Bayards to the original bill, and that the proofs in relation to that issue were regularly closed along time previous to the filing of the supplemental bill. And as the assignee in bankruptcy, who is brought befoi’e the court by the supplemental bill, stands in the place of the Bayards, and represents the same right and interest which was in litigation in the original suit, he is in the same situation as an heir at law or a devisee would have been if the suit had abated by the death of the original defendants. Where an original bill has been filed against all the necessary parties, the transfer of the interest of one or more of the defendants to a third person who represents the same right and interest, as by a sale or bankruptcy pending the litigation, may render it necessary to file a supplemental bill against the grantee or assignee of the original defendant or defendants to bring him before the court as a píirty.. But in such cases the only matter proper to be put in issue upon the supplemental bill, unless some new matter of defence has arisen since the joining of the issue in the original cause, is the supplemental matter, which is stated in the new bill, to show the transmission of interest from the original parly to the new party who is brought before the court by the supplemental bill. The effect of such a bill is to revive the proceedings against the new defendant, who has succeeded to the rights of the original party, and to place them in the same situation as they were in against the latter, when the original suit became defective. If the original bill had been fully answered, the new defendant adopts that as his answer to the original bill; if the bill had been taken as confessed, the order pro confesso stands as against him, unless he obtains leave of the court to have it opened; and if the proofs in the cause had been closed, they remain closed as against him. In Bagual v. Bagual, (12 Tin. Abr. 114,) decided in 1725, where a supplemental bill was brought after publication in the original cause, it was held to be irregular to examine witnesses to a matter that was in issue and not proved in the original cause. A supplemental bill of this character is a mere continuation of the original suit, against the new defendant who has succeeded to the interest of the former party; and the supplemental suit, together with the original bill and the proceedings under it, constitute but one record. And if the supplemental bill is filed before a decree, the original and supplemental suits are heard together, and but one decree will be made in both. The application in this case isydenied, with ten dollars costs.