Lane v. Stebbins — 3 Edw. Ch. 480

Majority

p. 480

Lane v. Stebbins and another.

April 29, 1841.

Headnote

Pleading. Bill of discovery.

A defendant in a suit at law can be compelled, through a discovery bill, to answer, .even though the discovery may be fatal to the defence he sets up.

Demurrer interposed to part of a bill of discovery. The defendants were stock brokers : and the complainant had sued them at law and claimed to recover a balance of account. He had given a bill of particulars of his demand ; and defendants at law had also served a copy of the bill of particulars of set-off. The complainant had applied to the defendants, by letter, for information in relation some of the stock embraced in (not the complainants, but in) the defendants’ bill of particulars ; and as his letter was not responded to, he filed the bill of discovery. /

Mr. J. P. Hall, in support of the demurrer.

p. 481

]^0Vt 22.

Mr. William Kent, contra.

The bill in this case is for a discovery ; and the question is, whether a defendant in a suit at law can be compelled to make a discovery so as to enable the plaintiff to overthrow the defence which the defendant may attempt to set up.

Although I find no express adjudication on the point, and the rule not so laid down in terms in the books of pleading and practice, I can perceive no good reason why it may not be done; and why it is ' not within the principle on which this court acts in compelling a discovery either to enable a plaintiff to prosecute or a defendant to contest a suit at law. The materiality of the required evidence must be shown ; and the necessity of coming into this court to obtain it from the adverse party must be made apparent in all cases or this court will not lend its aid : Gelston v. Hoyt, 1 J. C. R. 548 ; Seymour v. Seymour, 4 Ib. 411 ; Legget v. Postley, 2 Paige’s C. R. 601 ; but whether the object be to enable the plaintiff on the trial at law to make out his case in the first instance or the defendant his defence or for the secondary purpose of enabling the plaintiff to rebut and repel the defence set up, seems to me can make no difference in principle; a discovery in the latter case may be just as essential to the ends of justice as in either of the former. I regard the discovery sought for by the present bill as of that character. It is true that, as to some things included in the prayer for discovery, the defendants may be obliged to prove them in their own defence and of these it cannot be necessary to the complainant to have a previous disclosure ; but there are several particular facts and circumstances that the defendant’s testimony might not disclose, material and necessary to the rights of the complainant to know and have in evidence ; and as the demurrer covers all these, being included in the part of the bill demurred to as well as the others, it must be overruled, for it cannot be allowed in part and set aside in part.

Order, that the demurrer be overruled, with costs ; and that the defendants put in their answer within twenty days.