Deas v. Harvie — 2 Barb. Ch. 448

Majority

p. 448

Deas vs. Harvie.

Headnote

It is a general rule that the complainant, in a hill of discovery, must pay the costs of the defendant.

The exception to this rule is, where the complainant shows that he has applied to the defendant to admit some fact, material to the defence of the complainant in the suit at law, which the defendant in the bill of discovery refuses to admit; but which he afterwards admits by his answer to the bill.

Where no application for a discovery is made to the defendant himself, previous to filing a bill of discovery against him, and the only application made is to his attorney, who has no information on the subject except what he has communicated to the complainant’s attorney, it is not sufficient to excuse the complainant in the bill of discovery from the payment of costs. • t t

Where a defendant in a suit at law applies to the attorney of the plaintiff, for a discovery, he should at least state to the attorney the material fact which he wishes his client to admit, to save the necessity of a bill of discovery. And if the attorney does not possess the information necessary to enable him to make the admission, the defendant should request him to communicate with his client and obtain such admission from him; and should then wait a reasonable time to enable the . attorney to obtain such admission from his client.

The defendant, in an action at law, cannot file a bill in chancery to obtain from his adversary a discovery of the nature and grounds of the claim to recover against him in that action, to enable him to judge whether he has any defence. But the complainant must stale, in his bill, the facts which exist, and which he supposes will constitute a good defence to such action; so that the court may see that if the facts, of which a discovery is sought, arc admitted by the answer, they will assist in establishing the defence stated in the bill.

The defendant in a suit at law brought against him as acceptor of a bill of exchange, by the payee of such bill, is not entitled to a discovery, from the plaintiff, as to the genuineness of the acceptance, upon a bill which charges, upon information and belief, that such acceptance is a forgery.

The endorser of a draft, who has paid or secured the amount thereof to the endorsee, and has taken a transfer of the draft, has a right to sue the acceptor, and to recover, for his own use, the same amount which the endorsee could have recovered in a suit upon the acceptance.

It is immaterial, in such a case, whether the endorser, on procuring the transfer of the draft and acceptance, has paid the endorsee the amount thereof, or has given him security for such payment.

So if the endorsee has relinquished his claim upon such acceptance, to the endorser, for a mere nominal consideration, that circumstance will not vary the amount of the recovery in an action brought by the endorser against the acceptor.

This was an appeal by the complainant, from an order ol lie vice chancellor of the first circuit, dissolving the injunction

p. 449

which had been granted in this" cause, upon a bill of discovery; and directing the appellant to pay the respondent’s costs. Tue fill was filed fór k discovery in aid of the complainant’s defence to a suit at law, upon an acóéptancé purporting to have been made by'him, but which he charged to be a forgery. The facts, as admitted in the answer "of the defendant, were substantially as follows: In September, 1839, J. B. Chapman, then of Richmond in Virginia, but" who is now dead, had in his possession a draft drawn by himself, uponthe complainant Deas, for $1100, payable to the order of the "defendant Harvie, sixty days after date, and purporting to have béén accepted by Deas; which draft he presented to Harvie, and requested him to put his name upon it as an endorser,"for the accommodation of the drawer. This draft was discounted at the Bank of Virginia for the benefit of Chapman; and not being paid when it became due, it was protested for nóh-paymént. The bank after-wards sued the drawer and the endorser of the draft, and recovered'separate judgments against them in Virginia, and a part of the debt was collected from Chapman the drawer. Harvie, the endorser, afterwards settled with'the bank for the residue of the debt, by giving a mortgage therefor upon his real estate; and the bank thereupon transferred to him, as the endorser of the draft, all their claim against Deas, as the acceptor thereof. A short time previous to this settlement with-" the bank, a suit was instituted against Deas, upon the acceptance, in "the name-of Harvie, in the superior court in the city of New-York. And? after "such settlement, Deas called upon the attorney of Harviein that suit, for information as to the consideration paid by his client; and was "shown by him a letter from the attorney in Richmond who sent him the draft to be collected for Harvie, to which letter was attached" a certificate of the court in Virginia showing the recovery of the two judgments. The attorney of Harvey was also applied to for a statement of the facts and" circumstances connected with the draft; but he refused to give any information on' the subjéct until he should bé informed of the object of the inquiries made. The attorney of Deas then wroté to Harvie’s attorney, stating that Chapman was indebted

p. 450

tc his cheat, who never had had any transactions with Harvie, and had no recollection of having accepted the draft; and therefore claimed a right to know who was the real plaintiff in the suit, and in what right he claimed to recover. The attorney replied that his client Harvie was the real plaintiff, and the suit was prosecuted for his benefit, he having taken up the draft because he was forced to pay it; stating that his information was from the gentleman who sent him the demand for collection, but that he did not wish to be bound by that statement, as the persons whom- he represented resided in Virginia, and he could not apply to them for information on that subject.

The complainant thereupon filed the bill in this cause, stating, among other things, that he never received any value for this acceptance, nor did he give it for the accommodation of any one, and that he never had any connection with it; and charging, upon his belief, that the acceptance was a forgery. The defendant. Harvie having put in a full answer to the bill, the vice chancellor made the usual order for the dissolution of the injunction, and for the payment of the defendant’s costs.

The following opinion was delivered by the vice chancellor.

Sandford, V. 0. The complainant accedes to the general rule, that a defendant in a bill of discovery, who has answered fully, is entitled to his costs. He relies for exemption from the rule, on his having first applied to the defendant for the desired ■information before filing his bill; and that the defendant refused the discovery which he has since made in his answer. The only applications, which by the admissions in the- answer are proved to have been made, were first for information as to the consideration paid by the defendant for the acceptance in question; and secondly, an inquiry whether the defendant was the real plaintiff in the suit at law, or who was such plaintiff) and how and in what right he claimed against the complainant. It appears that Mr. Harvie’s attorney replied to the latter inquiry, stating that Mr. Harvie was the real plaintiff at law, prosecuting for his own benefit, having taken up the acceptance

p. 451

and been forced to pay it. The declaration at law disclosed to Lieut. Deas that Mr. Harvie stood as first endorser upon the bill; and the certificate from the clerk of the superior court at Richmond, exhibited to the attorney for Lieut. Deas, apprised him that judgment had been obtained against Mr. Harvie and the drawer respectively, on the acceptance, by the Bank of Virginia. Taken together the information communicated was, that Mr. Harvie, as first endorser, had been sued to judgment by the holders of-the bill; that he had thereupon settled with and paid such holders, and received the bill itself from the files of the court in Virginia; and that he had as the first endorser of the bill, and for his own benefit, commenced the suit on it here against the acceptor.

It appears to me that all the inquiries, made before filing the bill, were answered by Mr. Harvie’s attorney. The answer of Mr. Harvie to the bill of discovery, discloses nothing which is claimed to be inconsistent with what was before communicated, except that it appears he settled with the bank for considerably less than the face of the bill; and, although his arrangement was agreed upon, and the bill delivered to him before he brought his suit at law, yet he did not pay the holders. He merely secured them by a conveyance of lands in trust, in the nature of a mortgage, and such conveyance, through his misapprehension, was not executed till after the bill of discovery was filed.

On the question of costs, it is wholly immaterial what discoveries the complainant has made by his bill, provided they are of matters respecting which no inquiry was made of the adverse party before proceeding in equity.

The sole point in this case, therefore, is whether the inconsistency just stated is material to Lieut. Deas’s defence at law. As to the sum paid or agreed to be paid by Mr. Harvie, there is really no inconsistency. The form of declaring at law, does not require the plaintiff to state the precise amount which he claims, nor is it often stated in practice. And the inquiries put by the attorney for Lieut. Deas, did not call for any thing on this subject specifically.

p. 452

TÍién as to the mode in which Mr. Harvie adjusted the judgment of the bank. I think it was súfficiént to give him a right to enforce the bill. The bank agreed to receive a different security, and delivered the bill to him, thereby relinquishing to him their claim against the acceptor:

There is much' doubt in my mind; whether the inquiries'put to Mr. Harvie’s attorney, were sufficiently pointed and definite to warrant'the' claim made here for exemption from the costs of the discovery. If is probable that Lieut. 'D'eas’s ignorance of the' grounds of the claim, caused' the indefinite mode of inquiry,' which was adopted; but"that is not a ground for refu sing costs to the defendant.

If, as was suggested, this were in truth a fishing bill, the complainant must pay "the "customary "penalty for "what" he has extracted in "the way of discovery. Bills' of that character are not "favored in this court." Without reference to "that consideration, I. am compelled to say that in my judgment there is hot sufficient in the case to relieve the complainant"from costs.

Ordér that injunction bé" dissolved, and that the complainant p&y the costs' of the suit.

T. Sedgwick, for the appellant.

I. The request for "discovery wás sufficient. No other could f>e made." II. Tlie answer to this request" was insufficient; and thé refusal to' givé further information well warranted the filing of this bill. The answer is "evasive "and"untrue." III. The discovery obtained is such, when coupled with the "incorrect character of the information giVen, as to relieve the complainant from costs. 1st". It now appears that only half the draft is due." 2d. ’ Harvie was discharged by the irregular" presentment; He took'it" up in his own wrong, and can acquire nó rights by so doing. 3d. He has not paid the" draft at all." .He has" only secured it" by "a mortgage, and cannot sue as for money paid. He 'doés not-súe' as trasteé for the bank. 4th. When the "suit"at" law was brought, the"plaintiff’s cause of action' had not accrued." -The suit was brought on the 25th of March, 1845: The agreeffiént’wíth the bank was made on the 22d of April, 1845, and the’trust dé'éd

p. 453

was executed on the 2d of July, 1845, and the defendant avers that .the suit was brought for his own benefit and not for the benefit of ;the Bank of Virginia. It follows that when the, suit at law was brought, the plaintiff h ad no .right, to sue. IV. The complainant having, obtained a discoyery material to his defence at .law, and which was. unreasonably refused before bill filed, should not be charged with the costs of the suit.

O. L. Barbour, for the respondent.

I. The principle upon which costs are given or refused in these cases is laid down in King v. Clark, (3 Paige, 76,) and in 4 John. 5 .04. It. is this. If the complainant, wishes to avoid paying costs,he .must ask. for. a discovery of the facts he wishes an admission .of; and if it is refused and he .obtains the information .by the bill, costs are refused to the defendant. This .is the only rule applicable to such cases. The court does, not look into the merits, and see-if the answer admits a good defence, or an available one. ■ In this case there was no .proper application by the .complainant for a discovery, and no refusal. The inquiries .contained in the note of the defendant’s attorney, so far as they were specific, were answered fully by Smith’s note,, so far as he knew. :the facts inquired about; and he knew no more than was contained in the note, and in the record which he showed the defendant’s attorney.

II. The application , made by the defendant’s attorney- to Smith,-the plaintiff’s Attorney, for a “full discovery,”, was too indefinite. The, application should, have required him to admit some distinct fact or facts, and should not havebeen a mere pumping question. It would be impossible to answer such a question so. as to satisfy the rule. And the party had ,no more right, while making.that application, to .fish for something which might possibly benefit him, without specifying, particularly, what he wanted, than he would have to file a fishing bill of discoyery. The party was not .bound to make any answer to vague and loose surmises. (See Story’s Eq. Jurisp. p. 263, as to fishing bills. See also Newkirk v. Willett, 2 Caines’ Cas. in Er. 296. Frietas v. Dos Santos, 1 Young & Jer. 577.)

p. 454

III. Harvie, in his answer, answers for himself that he has fully given every information asked of him. IV.' The Bank of Virginia who had discounted the draft could sue all the parties on it. No protest was necessary as to the complainant, who was acceptor; and the bank having a good right of action against the acceptor, might transfer it to any person; who might sue in his own name, and without paying any consideration whatever. It was contended by the counsel for the appellant, before the vice chancellor, that the pretended settlement between the defendant and the bank, made by his giving his note and trust deed, was no payment, so as to enable him to sue; and 4 Pick. 444 , 18 Mass. Rep. 40 , and 2 John. Cas. 75, were cited in support of this position. But these cases show clearly that if a party gives his negotiable note for a debt which is discharged, then it is payment, so as to enable an endorser to sue for money paid. Besides, here .was an execution levied. The presumption will be in favor of its being a negotiable note. It is evident from the whole language of the answer, that the obligation of Harvie was received by the bank in discharge of his debt; or why should the bank have delivered up to him the acceptance 7 V. If the discovery obtained from Smith, the attorney, was insufficient, it was the party’s own fault, in not applying to the right person-. It is not to be presumed that a party residing in another state, on sending a note for collection, should communicate, at first, every particular relating to its concoction, how he came into possession of it, <fcc.

VI. The demand for discovery was not in the proper form, nor made of the proper person. It was made of the attorney, instead of the party himself. The attorney was requested “ to make a full disclosure.” And thereupon a correspondence took place; in which Mr. Sedgwick says, “ I hope you will consider yourself at liberty to let me know the grounds of your suit.” And the complainant, in his bill, says the information derived from the correspondence “ is the only information which he has been able to obtain in this matter from the attorney of said plaintiff.” The bill nowhere alleges that the complainant has not been able to obtain any information from the plaintiff; or

p. 455

that any application had been made to him. The attorney was not the proper person to apply to for a discovery. 1. Because he was not the person most likely to possess the information ; and 2d. Because the attorney is not hound, and would not be allowed, to disclose matters communicated to him by his client. (Hare on Dis. 163, 173. Greenough v. Gaskell, 1 My. & Keen, 100. Wigram on Dis. 62, and cases there cited. Id. 196.) In Bolton v. Corp. of Liverpool, (1 My. & Keen, 88,) it was held that the complainant was not entitled to a discovery of cases and title deeds laid before counsel. It is a general rule that a discovery will not be compelled where it would subject the defendant to a penalty, &c., or would be in violation of professional confidence. (Welf. Eq. Pl. 119, 123 to 127. March v. Davison, 9 Paige, 580.) Mr. Hare says, “ It would seem that an attorney, who is not a party to the suit, cannot be compelled, on motion, to produce papers belonging to his client, who is a party; even if the client himself could be compelled to produce them.” (Hare on Dis. 173, and cases there cited.) The defendant was bound, on the receipt of Mr. Smith’s letter giving all the information which he possessed, either to ask Smith to communicate with Harvie, and get a discovery, or to write to Harvie, himself, asking for the information he wanted. But he did neither. He contented himself with applying to the attorney for such information as he might happen to possess, on the subject; and because the information obtained from him did not suit him, he files a bill of discovery; without making application to Harvie, or even asking Smith to apply to him.

VII. There was no refusal of the discovery. Smith, immediately after being applied to by Mr. Sedgwick, gave him a full disclosure of all the facts within his knowledge. And as there was no application made to Harvie, of course there could not have been any refusal by him. VIII. As respects costs, the general rule is that the complainant in a bill of discovery, upon obtaining it, pays the defendant his costs. (Burnett v. Saunders, 4 John. Ch. Rep. 504. 1 Hill’s Ch. Rep. (So. Car.) 34. Coop Pl. 61.) And costs are given against the complainant,

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of course, if . the charges in the bill,.are denied. (King v. Clark, 3 Paige, 76.) But if the complainant, befpre filing his bill, asks a discovery from the defendant, who - refuses it, whereby the complain ant.is compelled. to come into equity, the defendant .will not be.allowed.posts. (Id. ib. McElwee v. Sutton, 1 Hill's Ch. Rep. 34. 4 John. Ch. Rep. 504. 1 Ves. Jun. 423.) Here no proper - application for a .discovery ,was made, and no refusal giyen; and the complainant haying- obtained from the answer of-the defendant, all -the information it,was in his power to .furnish, fhe defendant is entitled to.-his costs.

The complainant’s bill having been fully, answered,-it, was a matter of course fo .dissolve. the.injunction, which restrained the further prosepution of the suit at-law until ¡the discovery.should, have been obtained. And.I do not see any .thing-in. this case to take,it put of the general rule that the complainant in a bill of dispovery must pay,the costs of the defendant. -.The exception to this general ruje is where the complainant ..shows that ..he has. applied to the defendant to admit some Tact, - which is material to ¡the. defence Of the comr plainant.in the. suit ,at law, whiqh;.the defendant .in .the bill of discovery refuses, .to admit; but which he .afterwards admits in his ¡answer to the bill.

; In-this;.pase, no application .for. .a .discovery was, ¡made to the defendant. And the applicatipn .to the attorney,...who, had no information from his client on the,subject, .beyond what was communicated to the.complainant’s .attorney, was-not sufficient to excuse the complainant from the ..payment of, costs. He should at least" .haye stated-to tire .attorney, the material fact .which h-e, wished- his plient to admit, to save the necessity of a bill .of discovery, .and. should have. requested him to com munipate with his.client and obtain such admission. And he should then bave.waited a. reasonable time ,to enable the. attorney .to obtain, such admission from, his client. In this case,, however, the defendant himself ¡was not bound to furnish the complainant with information to enable him to judge whether he had any defence to the suit; and to obtain such information appears

p. 457

in fact to have been the whole object of the bill. For, although this bill .contains a charge, upon the belief of the complainant, that the acceptance upon which, the suit at law was founded was a forgery, it .could not have been, expected that the defendant,in this , cause could be compelled, to admit that ,he was aware of that fact; which would subject him to a, prosecution for a felony for uttering and publishing .the forged acceptance as true, xyith intent to defraud the complainant. -The defendant in-the action at law cannot file a.,bill in chancery to obtain from his adversary a discovery of .the nature and grounds of the claim to .recover against him in that. suit. .But the complainant must state in his bill the facts which exist, and which he supposes will constitute a good defence to such action,, so that .the court in which the bill, of discovery is filed mays.ee that if the facts of which a discovery is .sought are admitted by the answer of the defendant, they, will assistin the establishing of the defence stated in the .bill.

In this case, the answer of the defendant does not admit any fact charged in the bill, proving, or. tending -to prove, that the acceptance was a forgery, or that it was obtained from the complainant without consideration, or that this defendant gave no consideration for it. And the bill states in express terms that it was not an accommodation acceptance. The complainant, therefore, has not obtained from the defendant any discovery which can aid him in establishing the only defences to the action at law which are stated in the bill. For it is wholly immaterial whether Harvie paid the bank for the transfer of the draft and acceptance, or gave them security for such payment. The defendant having been made liable to the bank, on account of his. endorsement,.for. the whole of the draft except what had been recovered of Chapman, exclusive of the costs of both suits, which Chapman was bound to indemnify him against as an accommodation acceptor, he had a right to settle with the hank upon such terms as they, might think proper to require. And by the transfer of the interest of the bank in the draft and acceptance to him, he .obtained a right to recover, for his own use, from the acceptor, the same amount which the bank itself

p. 458

could haxc recovered, in the name of Harvie or otherwise, in a suit instituted for the benefit of the bank against Deas upon his acceptance. The suit in the superior court was probably instituted in the name of Harvie, the payee of the draft, for the benefit of, and with the assent of, the bank, as well as to protect Harvie from his liability upon the judgment against him as endorser. At least, there is no allegation in the bill that the suit was brought in his name without the authority of the bank. And at the time the attorney was applied to for information on the subject, that suit was in fact prosecuted for the benefit of Harvie; he having then settled xvith the bank, so as to authorize him to continue the suit for his own benefit exclusively. It is then xvholly immaterial xvhether he paid more or less to the bank upon the settlement which he made with it, in April, 1845. And even if the bank had relinquished its claim upon this acceptance, to Harvie, upon a mere nominal consideration, it would not have varied the amount of the recovery, in the action against the acceptor.

The order appealed from is not erroneous, and it must be affirmed with costs.