Drake v. Foster

RICE, C. J. It is unnecessary to detex-mine whether the bill in this case is one for discovery merely, in aid of a defense at law, or is one for discovery and relief. It is certainly one or the other. If it is a bill for discovery merely, in aid of a [654] defense at law, then, as it bas been fully answered, and several of the facts charged in it are denied, and the complainant did not apply to the usee in the suit at law, in the first place, to admit the facts of which a discovery is sought, there was no error in dismissing it at the costs of the complainant.— King v. Clark, 3 Paige, 76; Bennett v. Sanders, 4 Johns. Ch. R. 503; Steele v. Lowry, 6 Ala. Rep. 124; see, also, Collier v. Chapman, 2 Stew. B. 163; Vickars v. Mooney, 6 Ala. R. 97; Bailey v. Dean, 5. Barb. Sup. Ct. Rep. 297; Williams v. Wann, 8 Blackf. R. 477. If the bill is one for discovery and relief, then there was no error in dismissing it, because, upon the pleadings and proofs, the complainant is not entitled to relief in a court of equity. It is a sound principle, that where the maker of a note induces a third person to trade for it, by telling him to trade for it, — that he has no set-off, and will pay it promptly, the maker has no ground of relief against him. — Lanier v. Hill, 25 Ala. Rep. 554. The testimony of Dillard brings this case within, the influence of that principle, and is fatal to the right of complainant to the relief sought by his bill. An objection was made that Dillard was interested, and therefore incompetent to testify. This objection came too late. If he was interested, complainant knew it when he. filed cross-interrogatories to him; but he did not then make any objection to his competency. The objection was not made until after Dillard’s testimony had been taken. As complainant knew of Dillard’s interest (if he was interested) before he filed his cross-interrogatories to him, and made no objection until after his testimony had been taken, the objection to his competency was waived, for all the purposes of the present suit. — Hudson v. Crow, 26 Ala. Rep. 515. We shall not decide whether Dillard was a competent witness in this suit, or whether he will be a competent witness in the trial at law. What we have said above disposes of this case, and requires us to affirm the decree, at the costs of the appellant.