2 Johns. Cas. 413 | N.Y. Sup. Ct. | 1800
This is an appeal from an interlocutory order of the court of chancery, dissolving an injunction without any answer being put in to the bill.
The two most material points which were raised on the argument upon this appeal, were these :
1st. Is an order, dissolving an injunction, one of the orders of the court below upon which an appeal will lie ?
2d. Did the bill contain sufficient equity to entitle the appellants to a discovery, and consequently, to an injunction, to stay proceedings at law, in the mean time ?
To determine the first question satisfactorily, and to draw the exact line of distinction between that class of orders arising in the progress of a cause, which are susceptible of review by appeal, and that class of orders from which no appeal lies, (and such a distinction must and does exist,) would require a more deliberate examination, than, at this late hour of the court, so near the close of the session, I have had time to bestow.(
This is the substance of the bill. It amounts to this : the ■respondent has sued us at law, and we do not know for what, and, therefore, we ask for a discovery before-hand, al7 thqugh we have reason to conclude he has sued us upon some groundless pretence. Such a bill shows no equity, no right to a discovery. ' , ;
It sets forth no matter material to a defence at law, and which cannot be proved, unless by the confession of the opposite, party, (2 Yesey, 445, 492. 3 Fonb. 484. I .Yern. 399.) It is, to use Lord Chancellor Hardwicke’s expression, a mere fishing bill, seeking generally a discovery of the grounds of the respondent’s demand, without stating any right to entitle them to it. Such a bill may be exhibited by an executor or administrator, and indeed by any defendant who is not already in possession of the plaintiff’s proofs.
*But the court of chancery has wisely refused to sustain bills for discovery, in such latitude ; and unless the party calling for a discovery will state some matter of fact material to his defence, and which he wishes to substantiate by the confession of the defendant, the court will not enforce a discovery.
I am, accordingly, of opinion, that the appellants in the present case were not entitled to a discovery, and that the injunction staying the suit at law was properly dissolved;
Such being the unanimous opinion of the court, it was, therefore, ordered, adjudged and decreed, that the order of the chancellor be affirmed, with costs.
Judgment of affirmance.(
(a) See 1 Johns. Cas 436. 3 Johns. Rep. 549, 566. 4 Johns. Rep. 410,
(b) This case is also reported in 2 Caines’ Cases in Error, p. 296. In confirmation of the principle of the case, see Story’s Eq. PI. ed. 1844, § 325; 2 Story’s Eq. Jur. ed. 1846, § 1483, et seq. and notes ; Milford’s Eq. PI. Am. ed. 1840, 191, 192, and notes ; Frietas v. Don Santos, 1 Younge & Jerv. 577 ; Daniell’s Ch. Pl. and Prac. p. 645, 821, and references.