Stannard v. Whittlesey

Daggett, Ch. J. I think ail the discussion relative to the manner oí asking for a discovery, and whether the biil be insufficient for multifariousness, may be laid out of consideration, because, in my judgment, the plain tilt has adequate remedy at law; and if so, the superior court is prohibited, by positive legislative enactment, from holding jurisdiction. An action on the bond may be sustained. No act of the court is necessary ; nor any demand oilier than that which is alleged to have been made. The plaintiff, when of full age, made a demand, which is set forth in the bill, with technical accuracy. The only answer to this objection is, that the plain* tiff seeks a disclosure of all the facts, and especially those respecting the notes and receipt, by the oath of tin: defendant; but it may well be doubted whether the allegations of the plaintiff in relation to those facts, are sufficient. They are, that iic is unable to procure full and adequate proof, by ordinary testimony, or by other testimony than that of the defendant. This is the usual allegation ; and it would seem neees-sary to sustain a bill of discovery. But 2. Waiving this consideration, it is not doubted but an action of account is well sustainable, and apt to the plaintiff’s case. In such an action, it is full well known, the parties will be admitted to their oaths. The defendant will be compelled to abandon bis defence, or to disclose under oath before auditors, every fact sought by this bill, and about which he could be compelled to testify in a court of chancery. If it be said, as it has been said, that the plaintiff himself cannot make proof of all the property which the defendant may have received, as guardian, the answer is obvious: he can make the same proof, which he can make in a court of chancery, and can subject the defendant to the same enquiries. [568] The judgment, also, in a suit at law, will equally bind the parties. In this brief view of the case, and for these reasons, the bill must be dismissed. The superior court must, therefore, be advised, that the demurrer is well taken. The other Judges were of the same opinion, except Cnuncn, J., who dissented. Demurrer sustained ; and Bill dismissed.