Deas v. Harvie

The Chancellor. The complainant’s bill having been fully, answered,-it, was a matter of course fo .dissolve. the.injunction, which restrained the further prosepution of the suit at-law until ¡the discovery.should, have been obtained. And.I do not see any .thing-in. this case to take,it put of the general rule that the complainant in a bill of dispovery must pay,the costs of the defendant. -.The exception to this general ruje is where the complainant ..shows that ..he has. applied to the defendant to admit some Tact, - which is material to ¡the. defence Of the comr plainant.in the. suit ,at law, whiqh;.the defendant .in .the bill of discovery refuses, .to admit; but which he .afterwards admits in his ¡answer to the bill. ; In-this;.pase, no application .for. .a .discovery was, ¡made to the defendant. And the applicatipn .to the attorney,...who, had no information from his client on the,subject, .beyond what was communicated to the.complainant’s .attorney, was-not sufficient to excuse the complainant from the ..payment of, costs. He should at least" .haye stated-to tire .attorney, the material fact .which h-e, wished- his plient to admit, to save the necessity of a bill .of discovery, .and. should have. requested him to com munipate with his.client and obtain such admission. And he should then bave.waited a. reasonable time ,to enable the. attorney .to obtain, such admission from, his client. In this case,, however, the defendant himself ¡was not bound to furnish the complainant with information to enable him to judge whether he had any defence to the suit; and to obtain such information appears [457] in fact to have been the whole object of the bill. For, although this bill .contains a charge, upon the belief of the complainant, that the acceptance upon which, the suit at law was founded was a forgery, it .could not have been, expected that the defendant,in this , cause could be compelled, to admit that ,he was aware of that fact; which would subject him to a, prosecution for a felony for uttering and publishing .the forged acceptance as true, xyith intent to defraud the complainant. -The defendant in-the action at law cannot file a.,bill in chancery to obtain from his adversary a discovery of .the nature and grounds of the claim to .recover against him in that. suit. .But the complainant must state in his bill the facts which exist, and which he supposes will constitute a good defence to such action,, so that .the court in which the bill, of discovery is filed mays.ee that if the facts of which a discovery is .sought are admitted by the answer of the defendant, they, will assistin the establishing of the defence stated in the .bill. In this case, the answer of the defendant does not admit any fact charged in the bill, proving, or. tending -to prove, that the acceptance was a forgery, or that it was obtained from the complainant without consideration, or that this defendant gave no consideration for it. And the bill states in express terms that it was not an accommodation acceptance. The complainant, therefore, has not obtained from the defendant any discovery which can aid him in establishing the only defences to the action at law which are stated in the bill. For it is wholly immaterial whether Harvie paid the bank for the transfer of the draft and acceptance, or gave them security for such payment. The defendant having been made liable to the bank, on account of his. endorsement,.for. the whole of the draft except what had been recovered of Chapman, exclusive of the costs of both suits, which Chapman was bound to indemnify him against as an accommodation acceptor, he had a right to settle with the hank upon such terms as they, might think proper to require. And by the transfer of the interest of the bank in the draft and acceptance to him, he .obtained a right to recover, for his own use, from the acceptor, the same amount which the bank itself [458] could haxc recovered, in the name of Harvie or otherwise, in a suit instituted for the benefit of the bank against Deas upon his acceptance. The suit in the superior court was probably instituted in the name of Harvie, the payee of the draft, for the benefit of, and with the assent of, the bank, as well as to protect Harvie from his liability upon the judgment against him as endorser. At least, there is no allegation in the bill that the suit was brought in his name without the authority of the bank. And at the time the attorney was applied to for information on the subject, that suit was in fact prosecuted for the benefit of Harvie; he having then settled xvith the bank, so as to authorize him to continue the suit for his own benefit exclusively. It is then xvholly immaterial xvhether he paid more or less to the bank upon the settlement which he made with it, in April, 1845. And even if the bank had relinquished its claim upon this acceptance, to Harvie, upon a mere nominal consideration, it would not have varied the amount of the recovery, in the action against the acceptor. The order appealed from is not erroneous, and it must be affirmed with costs.