Lane vs. Stebbins & Stebbins, 9 Paige Ch. 622

The Chancellor. The object of the bill in this case appears to be to obtain a discovery, for the purpose of resisting a claim of set off on the part of the defendants to the complainant’s suit at law. And if a proper case for discovery, in other respects, is made by the bill, there cannot be a reasonable doubt that this court is bound to lend its aid in compelling the discovery sought, in the same manner and to the same extent as if these defendants had brought a suit at law against him to recover the several sums which they now seek to set off in the action brought by him in the superior court.

I think, however, the bill is defective in not stating a case which shows that the discovery sought is material to resist an illegal or inequitable claim of set off. On the contrary, it appears to be a mere fishing bill, at least in the part thereof which is demurred to, for the purpose of ascertaining the grounds of the claim of set off specified in the bill of particulars furnished by the defendants in the suit at law.

The complainant does not, in this part of his bill, set forth any matter material to his defence against the alleged claim of set off which cannot be proved without the discovery sought of the defendants. It therefore appears to come within the decision of Lord Rosslyn in Joy v. Kekewich, (2 Ves. Jun. 679;) where the complainant was not allowed a discovery of the facts upon which the defendant relied to support his claim in the suit at law. In the case of Newkirk and wife v. Willett, (2 John. Ca. 413,) the court for the correction of errors in this state held that such a bill could not be sustained. Mr.

Justice Kent, in delivering the opinion of the court in that case says, <( Unless the party calling for the discovery will state some matter of fact material to his defence, which he wishes to substantiate by the confession of the defendant, the court will not enforce a discovery.” It is not sufficient in a bill of discovery to allege that the matters as to which a discovery is sought are material to the defence ; but the complainant must state his case in such a manner that the court' will be able to see how they may be material on the trial of the suit at law. (3 John. Ch. R. 47.) In the case of Metcalf v.

Harvey, (1 Ves. Sen. 249,) Lord Hardwick appears to have decided that a person in possession of an estate, against whom another had brought an ejectment, might bring a bill against the plaintiff in that suit to compel him to discover the title under which he claimed to oust the complainant of the possession of the premises. This case, however, does not seem to have been followed in England ; and it also appears to be inconsistent with the subsequent decision of his lordship, in Burden v. Dore, (2 Ves. Sen. 445.) And it is certainly in conflict with the cases of Joy v. Kekewich, and of Jfewkirlc and wife v.

Willett, before referred to, and with the case of Adderly v. Sparrow, cited by Lord Redesdale in his valuable treatise on equity pleading. (Mitf. 190.) Chancellor Kent put his decision in Kimberly v. Sells, (3 John. Ch. Rep. 467,) upon the special circumstances of that case, without intending fully to endorse the opinion of Lord Hardwick in Metcalf v. Harvey.

In the case under consideration I think it impossible to sustain the decision of the vice chancellor, as to the discovery sought, without opening a door to every person who is sued at law to file a bill of discovery calling upon his adversary to state the grounds of his claims, instead of applying to the court of law for the particulars of the plaintiff’s demand against him $ which bills of particulars the courts of law always direct to be given, so far as is necessary, for the purpose of enabling the defendant to know what the precise nature of the claim of his adversary is.

The order overruling the demurrer of the appellants must, therefore, be reversed; and the demurrer must be allowed, with costs. And the proceedings are to be remitted to the vice chancellor. Order accordingly.