Hurd v. Dutchess County Bank , 1 Morris 291 ( 1844 )

Per Curiam,

Mason, Chief Justice.

This was emphatically a bill of discovery, praying for an injunction but asking no relief. It sets forth that William Stevens & Co., being indebted to the complainant, executed to him their promissory note for the sum of one hundred dollars—that this note was afterwards negotiated to the Dutchess County Bank—that the makers failing to pay it at maturity, the bank brought suit against the ccmp’nt. as endorser and recovered a judgment against him for the full amount of the note, principal and interest, together with the costs of suit; that William Stevens & Co. afterwards paid off that judgment and procured a transfer thereof to one Morton Swift, a brother of one of the firm of William Stevens & Co., and that the President, Directors & Co., of 'he Dutchess County Bank or the said Morton Swift, in their name has fraudulently brought suit on that judgment against the complainant in the District Court of Dubuque county. It alleges the absence of some witnesses, the imbecility of another, and that without the dicovery sought the complainant cannot safely proceed to a trial in the suit at law. It then prays for an injunction to restrain proceedings in that suit. A demurrer to this bill was sustained in the court below.

It is not denied but that the above facts if proved, would constitute an available defence at law. The necessity of the discovery sought constitutes the sole ground for appealing to the equity side of the court and upon the sufficiency of that ground the case will turn. Cannot the same proof be had in a court of law in this case as ir, a court of equity ? The suit at law was brought in the name of The President, Directors & Co. of the Dutchess County Bank. All the other defendants to this bill therefore' would be competent witnesses in the other court. Are not these all the witnesses who will be made to testify by virtue of the bill of discovery ?

The President, Directors & Co. of the Dutchess County Bank, would not give their answer under oath and it would not therefore be testimony in the case. 1 Maddock’s Chancery, 212; Story’s Equity, sec. 1501. Some officer of the corporation should have been made a defendant, if evidence were sought from that source in as much as the corporation would answer under seal and could not in its corporate capacity take an oath or be prosecuted for perjury. Why, then should their answer be taken? What would have been gained by this bill ? Nothing. We therefore think the demurrer was properly sustained, and the order of the court below will be affirmed.