12 N.H. 246 | Superior Court of New Hampshire | 1841
It is not necessary, in this case, to settle the question, whether, under the statute giving this court equitable jurisdiction in all cases of fraud, trust, accident, and mistake, we can entertain a bill for discovery merely, in aid of the prosecution, or of the defence of a suit at law, which involves some of those matters.
This bill, although it prays for a discovery, is not a bill for discovery alone. Milford's Eq. Pleading [16] 39; 2 Story’s Eq. 1, 700; Story's Eq. Pl. 252. It charges a fraudulent attempt to use a certain receipt of which the defendant has possession, in defence of the plaintiff's suit at law, and for the purpose of obtaining a judgment against the plaintiff, on the defendant’s set off — sets forth divers particular matters relating to the receipt, prays that the defendant may discover the truth relative to them, that he may be restrained by injunction from using the receipt, and that the plaintiff may have such other relief as is suited to his case. If the facts set forth are true, the defendant may not only be restrained from using the receipt to defeat the plaintiff’s suit, but a decree may be entered requiring him to deliver it up to be cancelled.
The defendant does not allege any objection to any particulars of the discovery sought by the bill, and the bill being one for relief against fraud, as well as for discovery, the jurisdiction of the court is clear, and the demurrer must be overruled. 2 N. H. Laws 75; 1 Story's Eq. Jur. 82; 2 Story's Eq. 7, 10; Story's Eq. Pl. 256, 257, 420; Tappan vs. Evans, (11 N. H. Rep. 325.)
