Dull v. Amies , 2 Miles 134 ( 1837 )

Per Curiam.—

The act of the 16th June, 1836, giving to the Supreme Court, the Courts of Common Pleas, and the District Court for the City and County of Philadelphia “ the power and jurisdiction of courts of chancery,” for certain objects therein specified, prescribes, that “ the same shall be exercised according to the practice in equity prescribed or adopted by the Supreme Court of the United States, unless it he otherwise provided, &c.” This practice has, in no wise, altered the rules which govern an English court of chancery, in the determination of issues, as they are therein presented by the parties. It is well settled, that in a bill of discovery, although a precise allegation is not required, if a matter essential to the determination of the plaintiff’s claims is charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge, and is consequently, the subject of a part of the discovery sought for, yet that subject must, at least, be generally stated with reasonable certainty, and he cannot interrogate as to a distinct subject, as to which there is no allegation in the bill. Redesd. Tr. Pl. 33, 34, 35 (3d ed.); 11 Ves. 273, 301; 10 Ves. 290; 4 Bro. C. C. 458; 6 Ves. 62-3; Equity Dr. 353. And it must be an inquiry, by the English rules, into a matter essential to the determination of the plaintiff’s claims. Our own act of assembly gives us the jurisdiction “ for the discovery of facts, material to a just determination of issues and other questions arising or depending in the said courts.” (Act of IQth June, 1836, section 13, pi. III. Stroud’s Purd. tit. Courts.)

The difficulty in the way of the complainant here is, that he alleges no facts in his bill which are material to the determination of the issue at law pending between the parties. He merely alleges the delivery of a quantity of merchandize to the plaintiff, to be sold by him, on commission, for and on account of him, the defendant. He does not aver that the plaintiff did sell, or might have sold, or did receive, or might have received, moneys from a sale; or that the consideration of the notes on which the complainant has been sued at law, was based on or connected with the transaction as to the merchandize, so as to raise a defence, if any such facts were disclosed, competent to be made under the pleas of payment, or set-off, or under a special plea, amounting to an equity sufficient to defeat the plaintiff’s claim. He seeks a general discovery as to matters which may or may not be material, without a distinct statement of the matters themselves, or an exhibition of the materiality of any allegation of fact.

Judgment on the demurrer for the defendant in the bill.