Vance v. Andrews — 2 Barb. Ch. 370

Majority

p. 370

Vance vs. Andrews.

Headnote

Where a simple bill of discovery, in aid of a suit at law, shows that the complainant has a good cause of action against the defendant in the action at law, and that tho discovery sought for is material to enable the complainant to succeed in such action, it Is not necessary, except for the purpose of obtaining an injunction, for the complainant to allege in his bill that- he cannot establish bis- right at law without a discovery ftom the defendant.

The filing of a bill of discovery in aid of a suit at law is justifiable, where the costs of such bill will probably be less than the expense of executing a commission, in a foreign country, to prove the facts of which a discovery is sought.

This was an appeal, by the defendant, from an order of the late vice chancellor of the first circuit, overruling a demurrer to a bill of discovery in aid of a suit at law. The defendant was formerly a merchant residing in Ireland, and before he came to this country accepted a bill, now belonging to the complainant. He afterwards became a bankrupt, and came to this country to reside, without having obtained a certificate. Being sued upon the bill here, he denied his signtaure to the acceptance, and the complainant was unable to prove bis signature without the delay and expense of executing a commission in Ireland,

C. W. Sandford, for the appellant.

Daniel Lord, for the respondent.

The bill in this case shows that the complainant has a good cause of action against the defendant, in the suit at law, and that the discovery sought for is material to enable the complainant to succeed in that suit. In such a case it is not necessary, in a simple bill of discovery, except for the purpose of obtaining an injunction, for the complainant to allege that he cannot establish his right at law without a discovery from the defendant.^[1] But even for the purposes of an injunction the facts stated in this bill appear to

(a) (a) See March v. Davison, (9 Paige's Rep. 580; Welf. Eq. Plead. 119; Wigram on Disc. 4, 5.

p. 371

oe sufficient. For the expense of executing a commission in Ireland would probably far exceed the costs of a bill of discovery. And where the defendant compels his adversary to incur such an expense by refusing to admit the acceptance of the bill, he cannot rightfully complain if he is compelled to put in an answer to the bill and make the required discovery, even at his own expense.

The order appealed from must be affirmed with costs.