Boughton & Mills, Executors, &c. vs. Philips, 6 Paige Ch. 334

The Chancellor. There is nothing in this case to take it out of the general rule that the complainant must pay costs upon a bill of discovery, where the equity of the bill is fully denied. Even where an available discovery is made in the answer, the complainants pay costs unless the defendant has unreasonably refused to disclose facts which were.necessary to the defence at- law. In this cáse the only material allegation in the bill is, that the note wás given without consideration.

And although one of the complainants had sworn that this charge was true of his own knowledge, it is evident from the whole case that he must have" misunderstood the oath he was taking, and that he only meant to say he believed or had a suspicion that there was a want of consideration for the flote. It was clearly therefore a fishing bill, for the purpose of seeing if they could not draw out something from the defendant which might aid them in a defence to a suit on the note.

As there was no fact in the knowledge of the defendant which could aid the complainants in their defence, he was under no legal obligation to tell them what were the items of the consideration for which the note was given. Were it admissible to read affidavits in opposition to an answer in such a case, therefore, the defendants claim for costs would not be altered by the affidavits now produced. The defendant’s own affidavit of the justice of his claim, which had been previously fur-nished, was all that the complainants could reasonably require.

This bill of discovery, under the circumstances, was not only unnecessary but vexatious. The injunction must be dissolved; and the complainants must pay the defendant’s costs, to be taxed,