Norton v. Woods, 5 Paige Ch. 249

Norton v. Woods

5 Paige Ch. 249 | New York Court of Chancery | 1835

The Chancellor.

The facts upon which this injunction rests are positively sworn to in the bill, as matters within the complainant’s own knowledge. .But the defendants could only deny them upon their information and belief, not being matters within their personal knowledge. So far, therefore, as the dissolution of the injunction depends upon the answer of the defendants, the equity of the bill is not sufficiently denied ; and the injunction should be retained until the hearing, to enable the complainant to substantiate these positive allegations of his bill by proof. It becomes necessary, then, to examine the allegations in the bill, for the purpose of seeing whether they are sufficient, if sustained by proof, to entitle the complainant to the relief which is sought by him.

*251As a general rule, if a party against whom an action is brought has a legal defence, he must avail himself of it in the suit at law. " it will be too late, after he has suffered a judgment to be recovered against him there, to apply to this court for relief. And even where the facts constituting the legal defence can only be established by a discovery from the plaintiff if they are fully known to the defendant, and he can avail himself of them upon the trial, by the aid of a bill of discovery, lie should resort to that mode of defence, where the necessity of it is apparent, or he may be precluded by the judgment in that suit. In cases of this kind, however, this court will accept of a satisfactory excuse for not resorting to a bill in the first instance, and may grant relief, after judgment has been obtained in the suit at law.

In the present case, I am satisfied there was no way in which this complainant could have availed himself of the testimony of Bulkley, on the trial of the suit in the court of law. The fact that he was a party to the record prevented his being examined as a witness, according to the technical rules of Shat court, even with his own consent. And as he could not be allowed to confess away the rights of his assignee, after Norton had notice of the assignment, his admissions and declarations were properly rejected. The same difficulty would also have existed if Norton had attempted to aid his defence by means of a bill of discovery. The facts not being in the knowledge of Woods, the real plaintiff no discovery from him would have aided the defence. And the same objection would have existed to reading tire answer of Bulkley in evidence, as io giving his declarations, or his ex parte affidavit, in evidence on the trial. In either case the real plaintiff would have been deprived of the benefit of a cross-examination. And I think the court of' law would not have permitted the answer to be ¡read in evidence against the assignee of the debt. The only remedy in such a case appears to be by a resort to this court; not upon a mere bill of discovery, but by a bill for relief—where persons who have no interest in the litigation may be examined as witnesses for either party, and the party against whom they are called will have a fair opportunity for a cross-exam*252ination. And, if necessary, a feigned issue may be awarded to try the question in dispute between the real parties to the controversy.

The facts stated in Ibis bill, if established at the hearing, appear to be sufficient to constitute a case for equitable relief against the judgment. The motion to dissolve the injunction must therefore be denied. And the complainant’s costs of opposing the application are to abide the event of the suit; and must be paid to him, if he finally succeeds in the cause.