Newkerk v. Willett , 2 Cai. Cas. 296 ( 1796 )

Kent, J.

This is an appeal from an interlocutory order of the court of chancery, dissolving an injunction, without any answer being put in to the bill.

The two most material points, which were raised at the argument, upon this appeal, were these :

1st. Is an order dissolving an injunction, one of the orders of the court below, upon which an appeal will lie f

2d. Uid .the bill contain sufficient equity to entitle the appellants to a discovery, and consequently to an; injunction, to stay proceedings at law, in the mean time ?

To discover the first question with accuracy and uoSisfaction ; to draw the line between that class of orders, arising in the progress of a cause, which are susceptible of review by appeal, and that class of 'Orders, which ar.e not susceptible, (and such a distinction may, and does exist) would require more examination, than I have had time to bestow, or than ■the late period of the session of this court, would conveniently permit : I shall, therefore, give no •opinion on the first point; nor is it necessary in the •present instance, to the rights of the parties, because, ~ admitting an appeal to lie upon the order, I am of opinion, on the second question, that the injunction was properly dissolved.

The bill does not state sufficient equity, to entitle the appellants to a discovery. It states generally, that the respondent had made a demand upon one of .the appellants, .as executrix of Peter Schuyler, deceased, and that as he did not produce any voucher, •she had refused to pay him. It states further, that he proposed an arbitration, which she refused, and that finally, he had brought a suit against the appellants, in the supreme court . The bill states further, that the appellants know nothing of the demand of their own knowledge, but that they believe it unjust, because the respondent took no measures to liquidate and-settle it, in the life-time of Peter Schuyler, and does not now produce any vouchers, and has been inconsistent, in what he has from time to time said, as to the nature and extent of his demand.

This is the substance of the bill; it amounts to this, the respondent has sued us at law, and we do Not, know for what, and .therefore, we ask for a di&? covery beforehand, although we have reason to conclude, he has sued us upon some groundless prc~ tence.^* Such a bill shows no equit9, no rig/it to a discovery. It sets forth no matter material, to a c/c-J~nce at law, and which cannot be proven, unless by the confession of the opposite party. It is, to use Lord Chancellor Hardwicke's expression, a merefisIz~ ing bill, seeking generally, a discovery of the grounds of the respondent's demand, without stating any right, to entitle them to it; such a bill may be exhibited by any executor or administrator, and indeed by any defendant, who is not already in possession of the plainti~Y's proofs. But the court of chan-~ cery, has wisely refused to sustain bills for discovery in such latitude, arid unless the party calling for a discovery, will state some matter offact material to his defence, or which he wishes to substitute by the con~ fession of the defendaut, the court will not enforce a discovery.

I am accordingly of opinion, the appellants in the present case, were not entitled to a discovery, and that the injunction staying the suit at law, was properly dissolved, and that the order for that purpose, be affirmed. And further, that the appellants pay to the respondent, his costs of the appeal to be taxed.

Judgment of affirmance unanimously.

* 2 Vez. 445. 492. 2 Fonb. 484. 1 Vern. 399.