Smith v. Crocheron , 2 Edw. Ch. 501 ( 1835 )

The Vice-Chancellor:

The matter of the first exception or the greater portion of it would seem to be responsive to that part of the bill which alleges the judgment to be justly and equitably due and, therefore, is not to be considered impertinent. At any rate, the defendant has a right to set up the fact that he has brought a writ of error to reverse the judgment which is still pending. It may be material fi> his defence or to give the defendant a-right to file a cross-bill for his relief, provided he should succeed, (while this bill is' pending) in reversing the judgment. The first exception covers this averment in the answer and if all the other parts of the exception should be well taken, it must, as to this, be deemed too broad and of course be disallowed.

As to the second exception: I consider the master has decided correctly in likewise disallowing it. This exception depends upon the same principle as the last. Those parts of the answer which set up the composition-agreement and show that the judgment ought not to have been recovered, cannot, at this time, be passed upon as immaterial or improper. The complainants come here asking for equitable interference and the recovery of a, debt. If they have not done equity they must not ask it. Applying the test as to what is impertinent in pleading (I. Hoffman’s Bract. 288,) find I think the exceptions to the answer were properly disallowed.

Order, overruling exceptions to the master’s report, with costs.