Laight v. Morgan , 1 Lock. Rev. Cas. 62 ( 1799 )

The Court of Errors, Kent, J., delivering the opinion of the court, reversed the decree.

Kent, J. The bill appears to have had three objects,

1. To obtain a discovery of facts from the defendants,

2. To perpetuate the testimony.

3. To obtain specific relief.

Upon the demurrer to the whole bill, seven causes were assigned.

He then states that: “ the three last were assigned in the same words in the similar case of Leroy v. Veeder, decided at the last session of this court, and by that decision are to be deemed as overruled. The fourth cause of demurrer was abandoned by the counsel for the respondents, upon this argument, as untenable. If the third cause be not equally so, it is perhaps not material in the present case, since, as I shall presently show, the decision of this cause finally depends upon this single point, viz.; If any part of the bill requires an answer, is a demurrer to the bill good ?”

1. He then considers to what objects, if any in the bill, an affidavit was necessary; and 2. If not for every object, whether the demurrer to the whole bill, for want of such affidavits, was maintainable. He shows that in respect to one object—the discovery—the bill did not require an affidavit, and in respect to the other two, viz., the examination of witnesses and the relief, it did require one; and then whether for the want of an affidavit to such parts, a demurrer to the whole bill, was maintainable, and he holds that it was not.

The Court was unanimously of that opinion and the same decree of reversal was made as in the foregoing case, with costs of appeal to be taxed, &c.