HURST v. HURST, 12 F. Cas. 1035

WASHINGTON, Circuit Justice. The reason assigned in the bill for the relief prayed is, that the above omissions to credit the plaintiff, as well as the charge of £758 3s. 4d., are plain and evident mistakes, , which a court of equity ought to correct. When these points were argued, on exceptions to the report of the referees, the court laid it down, that plain mistakes might be examined into at law; not only such as appeared upon the face of the award, but such as could be clearly and palpably made out by the proofs laid before the referees, or acknowledged by them.

The plaintiff therefore had a complete and adequate remedy on the other side of this •court, and either pursued this remedy, ineffectually, or neglected it; in either of which cases, ought a court of equity to interfere, merely upon the ground that these mistakes •exist? The plaintiff’s counsel seems to have been well aware of this dilemma, and therefore has very prudently attempted to support this as a bill of discovery. But if this be such a bill, so is every bill in equity.

It is not pretended that the facts can only be got at, by a disclosure to be forced from the defendant; on the contrary, it is stated, that the accounts on which the plaintiff’s two ■credits are founded, were admitted by the defendant before the referees. There seems to have been no defect of proof before the referees, nor indeed from the nature of the transaction could there well be any, as to the first credit claimed; and if there were a mistake, it must have been.' as a stated bill, one which proceeded from error in the judgment of the referees.

But this did not appear to be the case, when all the evidence was before the court, on the former occasion. As to the second credit claimed, the bill avers that the plaintiff can prove, by good and sufficient evidence, the facts material to establish it; as to this, then, a discovery is not required.

So too, as to the credit claimed by the plaintiff of £758 3s. lid.,'so far from its having been refused, because it was not in the power of the plaintiff to establish it by proof, we must suppose that such proof was laid before the arbitrators, not only because the contrary is not stated, but because the referees are charged with having made a plain mistake in disallowing it: at the same time, should J. Morris recover a judgment against the plaintiff, upon the ground that the assignment to Barron was not made; I will not say that the court ought not, in that case, to relieve the plaintiff.

Demurrer allowed, and bill dismissed with costs.