2 Barb. Ch. 632 | New York Court of Chancery | 1848
The plea is defective in form ; as it sets up, as a part of the m.atters of fact which are pleaded in bar to the discovery sought by the bill, the same matters which are stated in the bill itself. The allegation that tire six months’ rent which accrued up to the first of April, 1846, and for which the complainant says he intends to bring an action, had not become due at the time 8. Miller surrendered the residue of the term, on the .second of April in that year, distinctly appears upon the face of the bill itself. If th.c payment of the rent for which an action had already been brought, therefore, was a valid bar to the discovery sought, and the surrender of the term .was a discharge for the rent which had accrued for the next six months, but which had not become payable at the time of such surrender, the payment of the rent for which the action mentioned in the bill had already been brought, should alone have been pleaded in bar of the discovery. For if a bill is defective on its face, in .consequence of the statement of facts
When the bill shows that the complainant has no right to an answer for any purpose, the proper course for the defendant is to demur; instead of pleading new matters in bar. For upon the argument of a plea to a bill, either as to the discovery or the relief sought by tjie complainant, the defendant cannot sustain his plea, in this court, by showing that the bill itself would have been bad upon demurrer. (Cozine v. Graham, 2 Paige, 177.) The vice chancellor, therefore, if the plea of payment was not a bar to the discovery for any of the purposes for which it was sought by the bill, very properly declined to give an opinion upon the construction of the lease set out in the bill; and the liability of the defendant, Henry Miller, thereon as surety, notwithstanding the surrender of the lease for the residue of the term.
Upon the question, whether the payment of the rent, for which the action at law was brought, could be pleaded in bar to the discovery sought in aid of that action, I have not been able to find any decision, either in this state or in the courts of our sister states. But in the English court of chancery, more than sixty years since, Lord Thurlow decided that such a plea to a bill of discovery could not be sustained. (Hindman v. Taylor, 2 Bro. C. C. 7. 2 Dick. Rep. 651, S. C.) His decision in that case is entitled to the more weight because his first decision, that the plea was bad, was affirmed by him upon a re-hearing. And his lordship also stated that he had consulted with the master of the rolls, Lord Kenyon, and with several of the judges, on the subject; and was confirmed in his opinion that the allowing of the plea would be trying the bar, which was most proper to be tried at law. It is true, Mr. Beames questions the correctness of this decision; but it is upon his own authority merely. And it is referred to in a very recent and excellent English work on equity pleading, as an existing rule of pleading in England at this time. (Welf. Eq. Plead. 135,) It appears to be founded upon the principle that the existence of the indebtedness is the very matter to be tied, as
Thus, in the case under consideration, the general issue, which has been pleaded in the action at law, puts in issue the existence of the debt at the time of the commencement of the action, as well as the fact of the signing of the lease by the appellant. And if an issue should be taken on this plea of payment in bar of discovery, and such issue should be found for the complainant, and a discovery of the signing of the lease should then be obtained by the examination of the appellant upon interrogatories, it would' still be necessary to proceed at law and try the same questions over again there. For even if the decision of this court that the plea was untrue in fact, could be set up as an estoppel against this appellant, upon the trial of the action at law, it would not estop the other defendant from proving payment, as a defence'to that action. And that defence would, of course, defeat the recovery as to both defendants. For, in an action upon a joint contract against two of more defendants, the plaintiffs must succeed as to all or neither of them; unless one of them set up a matter of discharge which is personal to himself alone.
The order appealed from must, therefore, be affirmed with costs.
