44 Miss. 677 | Miss. | 1870
S. W. Ferguson, as administrator of the estate of Ivy Wilkins, deceased, filed his bill of discovery in the chancery court of Washington county, against Thomas H. Buckner, in which he alleges that said Wilkins, for a period of about twenty-five years, nest before his death, was in the service and employ of the defendant, Thomas H. Buckner, in the capacity of a hired overseer and manager of a large plantation belonging to said Buckner ; that the contract between them for wages,- and the amount due the deceased at the time of his death from the defendant, have not come to the knoweledge of the complainant, but rest alone in the knowledge of the defendant; that at the time of his death, the said Wilkins owned,’ and had in his possession a certain promissory note, made by the said defendant in favor of complainant’s intestate for about seventeen thousand dollars, as he is informed and believes; which sum was due and owing by said Buckner to said Wilkins at the time of his death, and which said promissory note, the defendant then seized and took into his possessiod, together with all the papers, books, and accounts belonging to the decedent, showing an indebtedness of the defendant to him at time of his death, of about twenty-five thousand dollars, as the complainant is informed and believes.
That complainant is unable -to state an account, showing the precise amount and nature of said indebtedness, because of the defendant’s possession of said note, boobs and accounts, and which he refuses to exhibit to the complainant. In consequence of which, he is not in possession of such facts as will enable him, without discovery from the defendant, to coerce at law a payment of said indebtedness; that the complainant is about to commence an action at law against the said defendant for the recovery of the above stated debt, but there is no other evidence of said defendant’s indebtedness to his intestate, known to complainant than the said promissory note, books, and accounts, which
To this bill of complaint, the defendant demurred, and the demurrer was overruled by the court. From this action .of the court below, the defendant appeals to this court, and assigns for error the overruling of the .demurrer in the court below.
This record presents but two questions for our decision :. 1st. Does a bill for discovery merely require to be sworn to ? 2d. Is it necessary in order to maintain a bill of discovery that it should contain an allegation that there is a suit at law pending ?
A bill of discovery must be for matters which lie only in the knowledge of the defendant, and must call for something which it is not in the complainant’s power to set out in his bill. But a bill asking a discovery because the grounds of the suit at law are unknown, is a mere fishing bill, and cannot be maintained.
With respect to the first of the above questions presented for our solution, it seems to be well settled that a bill of discovery merely may be maintained without being sworn to. Mitford’s Eq. PL, 55; Cooper’s Eq. PL, 61; Story’s Eq. PL, 282, § 288, and Barbour’s Oh. Pr., 106.
And with regard to the remaining question, it may be affirmed that the finding of a suit at law is not always necessary to the maintenance of a bill of discovery. For it is believed to be well settled by the authorities that the bill must state that the discovery is asked for the purpose of some suit brought, or intended to be brought; for otherwise it will not
The decree must be affirmed, and the cause remanded, with • leave granted to the appellant to answer the appellee’s bill within sixty days from this date.
