1 Blackf. 311 | Ind. | 1824
Deputy filed his bill in chancery in the Jefferson
To this bill Tobias demurred; and the Court sustained the demurrer, and dismissed the bill.
The demurrer should have been overruled. We think the failure to defend at law is sufficiently accounted for; and, if the contract was as is stated by the hill, the verdict and judgment ought not to stand. The only plausible ground of demurrer is, that Deputy should have obtained, by a bill of discovery, the confession of Tobias to be used in the trial at law. But a bill of discovery is the dernier resort in obtaining testimony; inasmuch as when it is resorted to, it shuts the door against every other method. Therefore it is purely discretionary with every suit- or, whether he will file such a bill or not; and he can never be considered in laches for not seeking a discovery from the opposite party.
The judgment is reversed, and the proceedings Subsequent to the demurrer are set aside, with costs., Cause re'jpaanded, with directions to permit the defendant to withdraw Jiis demurrer and answer the bill»