Rutherford v. Cleghorn

By the Court.

Lumpkin J.

delivering the opinion.

The question in this case: A defendant in equity files his answer to the bill. Complainant excepts ;■ his exceptions are sustained; and the defendant required to answer over by a given time, which failing to do, an attachment is moved which is resisted by the defendant, on the ground, that he has excepted to the prior order, requiring him to answer over; and that having given bond in the case, in terms of the law, the cause is superceded.

The chancellor refused to grant the attachment, and we hold correctly, according to the past practice of this Court upon this subject. Had not a writ of error been prosecuted at the time, it never could have been under the law as it now stands. The main question made by the bill, has not yet *156been tried; and it is very doubtful when it will be. Had the defendant waited till final judgment, more than thirty days having transpired from the adjournment of the Court, when the decision upon the exceptions was made, the defendant would have been remediless. The Legislature, not the Court, must apply the remedy; a remedy imperiously demanded. Let no case be brought up, until after final judgment; and not even then, so as to control the discretion of the Court below, in ordering a full answer. Jones and Dixon complied with the order of the Court, amending their answers. Why should not Cleghorn ?

Judgment affirmed.