Owsley and Another v. Barbour and Others, 4 Ind. 584

Roache, J. Assumpsit on a promissory note. Before going into trial, the defendants below filed a bill of discovery, in which, after setting forth the facts constituting their defence, and alleging that they knew of no other witness by whom they could as well prove the facts, they prayed that proceedings in the cause should be stayed until the said plaintiffs in the suit at law should appear and testify as witnesses in the cause. On filing the bill the defendants offered to give bond to the acceptance of the Court, and asked that the action at law should be continued until the witnesses could be produced in Court.

The Court refused to continue the cause unless the defendants would make oath of the truth of the facts set forth in the bill of discovery. This they refused to do, and the Court proceeded with the trial, which resulted in the judgment against the defendants below, from which this appeal is taken. A bill praying for discovery merely need not be sworn to. Mitf. Eq. Pl. 66. But when the party seeks, in addition to the discovery, to stay proceedings in a suit pending at law, he must support the allegations of the bill by an affidavit of their truth. 3 Dan. Ch. Pr. 1820.—Appleyard v.

Seton, 16 Vesey 223.—Drewry on Inj. 376. Per Curiam. The judgment is affirmed, with 1 per cent, damages and costs.