Hooker v. Matthews , 3 How. Pr. 329 ( 1848 )

By the Court, Harris, Justice.

From the proceedings in this cause, as detailed in the papers upon which this motion is founded, I cannot resist the conclusion that the orders for the discovery of books and papers were obtained by the Defendants, more for the purpose of delay than because such discovery was deemed necessary to enable the Defendants to prepare for trial. They had succeeded in preventing a trial at the November circuit, by an application for a commission, and to change the place of trial. Four months intervened before the next circuit. The Plaintiffs had noticed the cause for trial a month and a half before the time for holding the circuit. But four days before the commencement of the circuit the alternative order for a discovery was received by the Plaintiffs’ attorneys. The effect of this order was to deprive the Plaintiffs of an opportunity to try their cause at that circuit also. If the discovery were indeed regarded by the Defendants as indispensable to the defence, it is difficult to see, at least from any thing before the court, why they should omit making application for the discovery from the time the cause was first noticed for trial on the 16th of October until the 28th of the ensuing March. The application for a stay of proceedings until the return of the commission, and the order for a further bill of particulars, obtained almost simultaneously with the order for a discovery, leave little room to doubt that the controlling object of the Defendants was delay. It is not a matter of course to grant a discovery under the statute. Some degree of diligence, at least, should be shown, and where, as in this case, it appears that the party making the application is chargeable with gross negligence, if not with bad faith, the order for a discovery ought not to be granted, or, if granted, should not be upheld. The motion to vacate the order made by Justice Hurlbut, on the 18t of May last, must therefore be granted.