Jewett v. Belden — 5 Sarat. Ch. Sent. 2

Majority

p. 9

John Jewett et al. v. Charles Belden et al.

S. P. Nash, for the appellants;

B. W. Bonney, for the respondents.

Headnote

EXoeptjons ⅞,. E™on$umi

This was an appeal from an order of the vice chancellor of the first circuit, refusing to dissolve an injunction restraining the defendants from proceeding in a suit at law brought by them against the complainants. The injunction was granted upon a mere hill of discovery to aid the complainants in,their defence in the suit at law; and the application to dissolve the injunction was denied upon the ground that exceptions had been filed to the answer for impertinence.

In the case of JJvoingston v. Living ston, (4 Paige’s Rep. Ill,) this court decided that exceptions to an answer for impertinence merely, or for scandal and impertinence, were not sufficient to prevent the dissolution an injunction where the bill was fully answered. And I can see no good reason for applying a different rule to the case of a bill of discovery in aid of a defence at law. It is true, the answer must be used together as an entirety if if is used as evidence in the action at law before the exceptions are disposed of, and the impertinent matter, if any, has been expunged. But the complainant in a bill of discovery is not entitled to call for the discovery of a mere insulated fact in aid of his defence, and to deprive his adversary of the benefit of a full answer showing that in reality no valid defence to the action at law exists.

p. 10

The complainant therefore must state in his bill the nature and substance of his defence to the action at law; and nothing contained in the answer can be deemed impertinent which tends to disprove the existence of such a defence as is stated in the bill of discovery. The complainant, therefore, must show that some actual injustice or injury will result to him, from impertinent matter inserted in the answer to his bill of discovery, to entitle him to retain the injunction until his exceptions to the answer have been disposed of by this court.

It is difficult to ascertain from the bill in this case, what is the precise nature of the defence which the complainants expect to establish by the particular discovery called for by the ¿ill; and upon the necessity of which discovery their claim [ an injunction was based. I think therefore that an injunction should not have been granted upon this bill originally. The refusal to dissolve it after a full answer, and when no technical rule of the court required its continuance until these exceptions for impertinence were disposed of, was of course erroneous. The order appealed from must for these reasons be reversed with costs; and the injunction is dissolved.