4 Paige Ch. 639 | New York Court of Chancery | 1834
The defendant was not bound to look beyond the copy of the bill served on his solicitor; and if that did not contain the necessary affidavit, or verification, to give the court jurisdiction, he had a right to demur to the bill on that ground. Here the objection of the want of an affidavit is distinctly made by the demurrer. The complainant, therefore, instead of noticing the demurrer for argument, should have examined the copy of the bill served on the defendant’s solicitor, and should have made it conformable to the bill on file, if that contains the requisite verification.
Independent of this technical objection, I think there was not sufficient equity in the bill to entitle the complainant to the discovery and relief sought thereby. It appears to be a mere fishing bill, for the purpose of ascertaining whether there may not be something in the original lease which will entitle the complainant to claim other and greater rights, in relation to this lot, than those which he has been exercising for nearly half a century. Immediately after his purchase, in 1788, he commenced receiving rent from the defendant’s father, as the
“ For if a great and less estate,
“ Without one intermediate,
“ In the same, person coincide,
“ It is a kind of paricide ;
“ The great one sinks, or drowns the small,
“ Never again to rise at all.”
(Conv. Guide, 64. 1 Cruise's Dig. tit. Estate in Fee, § 58. Co. Litt. 54, b.) It is true, the complainant alleges in his bill that
The bill being defective both in form and substance, the demurrer is allowed ;• and the bill must be dismissed, with costs. The complainant having died since the argument, the decree must be entered nunc pro tunc.