McVickar v. Wolcott , 1 Lock. Rev. Cas. 84 ( 1799 )

The Court of Errors reversed the order. Van Ness and Spencer, Js., delivering opinions in favor of reversal, and Kent, Ch., declaring himself of the same opinion. The court first decided a preliminary question, as to the right to appeal from such an order, holding it to be within their jurisdiction by the statute regulating the proceedings of the Court of Errors.

The court also held, that a Court of Chancery will aid a defendant in obtaining a discovery before a trial at law, and not after. Van Ness, J., says : “ Granting for a moment that such answer would have furnished the respondents with a complete defence, still as they omitted to take the necessary steps to possess themselves of that answer, before the trial at law, which they might, and if they deemed it important, ought to have pursued, they are now too late. I am satisfied that the appellants, notwithstanding they have answered the bill, are at full liberty to avail themselves of this objection.”

Spencer, J.,

held the same doctrine, and the order was accordingly reversed.