5 Ala. 152 | Ala. | 1843
An act passed in 1837, “ more effectually to provide for discoveries in suits at common law,” enacts that where a party in a suit at law wishes a discovery from his ad-vorsaiy, he may file written interrogatories to such party, and call upon him to answer on oath or affirmation; and if it shall appear to the court by the oath of the party filing the interrogatories, or otherwise, that the answers to the same will be material evidence in the cause, that the interrogatories themselves are pertinent, and such as the adverse party would be bound to answer upon a bill of discovery in a court of chancery, the court shall allow them, and make an order requiring them to be answered in writing on oath or affirmation. The answers so made shall be evidence at the trial, in the same manner, and to the same purpose and extent, and upon the same condition in all respects as if they had been procured upon a bill in chancery for a discovery, but no further. If the interrogatories shall not be answered within sixty days after service of a copy, or bq answered evasively, the Court may attach the party to whom they are addressed, and
The object of this enactment was doubtless to expedite and cheapen the administration of justice, by authorising a discovery to be called for at law, where in order to obtain it, it was previously necessary to resort to equity. It does not allow a party to propose to his adversary any interrogatories except such as he u would be bound to answer upon a bill of discovery in a court of chancery,” and the answers are only evidence in the same manner “ as if they had been procured upon a bill in chancery.” In the present case, the interrogatories do not affirm that the defendant has made any payments on the note in suit, but call on the beneficial plaintiff to state, whether he has entered them all on the note, the amount paid, and when. The objection to the indefiniteness of the interrogatories might be cured by the affidavit, (but that affords no aid,) by alleging that payments have been made which the evidence of the party is necessary to establish, it merely declares in general terms, that the answers would be material evidence on the trial. The interrogatories are in the nature of a fishing bill, when assimilated to a discovery in equity, and as answers are only compellable in those cases, in which that Court would have compelled a disclosure, the County Court might very well have refused to compel an answrer in consequence of the generality of the interrogatories. Lucas v. The Bank of Darien, 2 Stew. Rep. 280, and the cases there cited, very satisfactorily show that a fishing bill is demurrable.
But if the interrogatories were regular, still as they were exhibited when the case was called for trial, or at the same term, the Court very properly refused a continuance, unless the defendant would make a precise statement of the facts, and what he expected would be the answers of Wooley.
Other reasons perhaps might be given to show, that the Judge of the County Court properly ruled the parties to trial; but those stated are decisive of the case; and the judgment is consequently affirmed.
