Burgess v. Smith , 2 Barb. Ch. 276 ( 1847 )

The Chancellor.

This court has jurisdiction, and will entertain a bill of discovery in aid of the prosecution of a civfr suit, in a sister state, or in a foreign tribunal, or in a court of the United States. And if this was such a case, the bill would not be bad upon demurrer; although the court might not consider it proper to restrain the defendant from proceeding to trial, in the suit in Massachusetts, in the meantime. But I do not see how any discovery, which may be made by the defendant in this suit, can aid the complainants in the prosecution of the replevin suit, against Allen, in Massachusetts, to which suit the' defendant Smith is not a party. .It is true, he swore that he was the substantial party in interest, and had employed the attorney and counsel to defend the replevin' suit. But Allen is not only defendant on the record, but the judgment, for damages and costs, must be against him personally, if the plaintiffs in that suit should succeed therein. He will, therefore, have the right, upon the trial of that cause, to object that the answer in this suit, to which he is not a party, is not legal evidence against Mm, to charge him personally with damages and costs in the replevin suit.

Again; if this court has the power, it must be a very special case which will induce it to break over the rule of comity, and of policy, which forbids the granting of an injunction to stay the proceedings in a suit, which-has already been commenced, in a court of competent jurisdiction in a sister state. (See Mead v. Merritt & Peck, 2 Paige’s Rep. 402.) The bill also is defective as an injunction bill, because it is a mere fishing bill. For no fact is positively sworn to as being within the knowledge of the defendant, which, if proved, would defeat the defence of Allen in the replevin suit. (See Williams v. Harden, 1 Barb. Ch. Rep. 298.) An ex parte injunction, therefore, should not have been granted, upon such a bill. • ‘ •

For these reasons the order appealed from is erroneo.us, and must be reversed. And the injunction must be dissolved with costs.