Newkirk v. Willett — 2 Johns. Cas. 413

Majority

p. 412

Charles Newkirk and Wife, Executrix of Peter Schuyler, Deceased, Appellants, against Edward S. Willett, Respondent.

Headnote

The executors of S. filed a bill in chancery against W. setting forth that W. had commenced a suit at law against them for a debt pretended to he due from the testator, of which they had no knowledge, and which they had strong ground to believe was unjust, and that they could not safely proceed to trial without a discovery from W. of all the facts relative to the origin and state of such pretended debt, and praying for an answer and an injunction. An injunction was allowed by one of the masters of the court of chancery, which, afterwards, was ordered, by the chancellor, to be dissolved ; and on an appeal from this order, it was held that the bill did not con- • tain sufficient equity to entitle the plaintiff to a discovery, and that the order for the injunction was properly dissolved.

The court of chancery will not enforce a discovery unless the party calling therefor will state some material matter of fact which he wishes to substantiate by the confession of the other party. Per Kent, J.

On the 18th day of April, 1799, the appellants filed a bill in chancery, setting forth that the testator died in the winter, 1792, and left the appellant, Gertrnyd Newkirk, his widow and executrix. That soon after the respondent demanded a considerable sum of money, which she refused to. pay;

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that the respondent thereupon offered to submit the controversy to arbitration, which she *aiso refused ; and thereupon in April, 1793, and after her intermarriage with the appellant, Charles Newkirk, the respondent commenced a suit against them in the supreme court, for lOOOfi for money pretended to be due to him from the said Schuyler; that the appellants did not, of their own knowledge, know any thing of the said demand ; but had strong grounds to believe the same to be unjust, because the respondent had not, during the life of the said Schuyler, taken measures to adjust his claim, and because he did possess any Vouchers to establish the justice of his demand. That the relations and accounts given by the respondent were inconsistent and various, and that the appellants being unacquainted with the origin of the pretended debt, could not, without a discovery by the respondent of all the facts, safely proceed to a trial of the suit: And that the respondent might, until he should have fully answered to the said facts and interrogatories stated in the said bill, be enjoined from proceeding to a trial at law in- the said suit, the appellants prayed an injunction, which was accordingly issued, on the certificate of one of the masters of chancery, that, in his opinion, it ought to issue; which certificate was founded on the affidavit of the appellant, Charles Newkirk, annexed to the bill.

Fourteen days previous to the filing of the above bill, viz. on the 5th April, 1799, the appellants had filed a bill against the respondent, (in substance the same as the second bill,) to which the respondent had put in his answer before the second bill was &\ed ■, in which answer the respondent states that in the year 1786 or 1787, he was possessed of certificates or public securities amounting to 800¿. and upwards, besides interest, which he, at the solicitation of the said Schuyler, delivered to him, on his promise to lay them out for the respondent’s use in the purchase of forfeited lands ; that he had several times applied to the said Schuyler, in his lifetime, but without success, to render an account and come to a *settlement for the certificates ; and

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that at the last time of applying to Schuyler at Johns-town, he declared that he had sent his certificates to New York with his wife, the above appellant, to be disposed of, and that on her return he would pay the respondent for the same.

The first bill, to which an answer was filed, was on the 14th day of December, 1799, ordered by the chancellor to be dismissed.

On the 4th day of January, 1800, the chancellor, after hearing the arguments of counsel for both parties, ordered the injunction issued on the second bill to be dissolved; from which order the present appeal was made to this court.

Spencer and Riggs, for the appellants.

P. W. Yates and Lusk, for the respondent.

This is an appeal from an interlocutory order of the court of chancery, dissolving an injunction without any answer being put in to the bill.

The two most material points which were raised on the argument upon this appeal, were these :

1st. Is an order, dissolving an injunction, one of the orders of the court below upon which an appeal will lie ?

2d. Did the bill contain sufficient equity to entitle the appellants to a discovery, and consequently, to an injunction, to stay proceedings at law, in the mean time ?

To determine the first question satisfactorily, and to draw the exact line of distinction between that class of orders arising in the progress of a cause, which are susceptible of review by appeal, and that class of orders from which no appeal lies, (and such a distinction must and does exist,) would require a more deliberate examination, than, at this late hour of the court, so near the close of the session, I have had time to bestow.(^[1] ) I shall, ^therefore, give no opinion on the first point, nor is it necessary, in the present instance, to the rights of the parties; becanse, admitting an appeal to lie upon the order, I am of opinion on the second question, that the injunction was properly dissolved. The bill does not state sufficient equity to entitle the appel

a a (a) See 1 Johns. Cas 436 . 3 Johns. Rep. 549 , 566. 4 Johns. Rep. 410 ,

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lants to a discovery. It states, generally, that the respondent had madeja demand upon one of the appellants as executrix of Peter Schuyler, deceased ; and that, as he did not produce any voucher, she had refused to pay him. It states further, that he proposed an arbitration, which she refused, and that finally, he had brought a suit against the appellants in the, supreme court. The bill states further that the appellants knew nothing of the demand of their own knowledge, but that they believe it unjust, because the respondent took no measures to liquidate and settle it in the lifetime of Peter Schuyler, and does not now produce any vouchers, and has been inconsistent in what he has from time to time said as to the nature and extent of his demand.

This is the substance of the bill. It amounts to this : the ■respondent has sued us at law, and we do not know for what, and, therefore, we ask for a discovery before-hand, al7 thqugh we have reason to conclude he has sued us upon some groundless pretence. Such a bill shows no equity, no right to a discovery. ' , ;

It sets forth no matter material to a defence at law, and which cannot be proved, unless by the confession of the opposite, party, (2 Yesey, 445, 492. 3 Fonb. 484. I .Yern. 399.) It is, to use Lord Chancellor Hardwicke’s expression, a mere fishing bill, seeking generally a discovery of the grounds of the respondent’s demand, without stating any right to entitle them to it. Such a bill may be exhibited by an executor or administrator, and indeed by any defendant who is not already in possession of the plaintiff’s proofs.

*But the court of chancery has wisely refused to sustain bills for discovery, in such latitude ; and unless the party calling for a discovery will state some matter of fact material to his defence, and which he wishes to substantiate by the confession of the defendant, the court will not enforce a discovery.

I am, accordingly, of opinion, that the appellants in the present case were not entitled to a discovery, and that the injunction staying the suit at law was properly dissolved;

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and that the order for that purpose ought to be affirmed ; and further, that the appellants pay to the respondent his costs of the appeal to be taxed.

Such being the unanimous opinion of the court, it was, therefore, ordered, adjudged and decreed, that the order of the chancellor be affirmed, with costs.

Judgment of affirmance.(^[2] )

b b (b) This case is also reported in 2 Caines’ Cases in Error, p. 296. In confirmation of the principle of the case, see Story’s Eq. PI. ed. 1844, § 325; 2 Story’s Eq. Jur. ed. 1846, § 1483, et seq. and notes ; Milford’s Eq. PI. Am. ed. 1840, 191, 192, and notes ; Frietas v. Don Santos, 1 Younge & Jerv. 577 ; Daniell’s Ch. Pl. and Prac. p. 645, 821, and references.