Primmer v. Price J. Patten & Co.

Mr. Justice Walker delivered the opinion of the Court: The first question which we propose to consider is, whether the bill of discovery contained such allegations as required the court below to grant an injunction staying the proceedings at law until the discovery was had. The bill alleges the pendency of the suit; that pleas had been filed, setting up a failure of consideration, with notice by the plaintiffs at the time they purchased the note; that they purchased the note after its maturity; also a plea that the payee of the note received the conveyance of a town lot in satisfaction and discharge of the note by a written release, and that plaintiffs had notice at the time they purchased; that replications were filed and issues joined. The bill further alleges that complainant was informed and believed that the note was indorsed after it became due and payable, and that plaintiffs knew of all the facts set up in the pleas when they purchased the note upon which the suit had been instituted. That Lasater, the payee of the note, informed plaintiffs that the consideration had failed. It will be observed that the bill fails to allege that the averments in the pleas, or that the information given by the payee of the note to the assignees, was true. Nor does the bill, out-* side of the averments in the pleas, allege facts showing a failure of the consideration for which the note was executed. Neither does it allege that complainant expected or believed that he could prove by defendants, that Lasater informed them at the time he indorsed the note, that the consideration had failed. The bill should have alleged that the facts averred in the pleas, or such of them as showed a defense, or other sufficient facts, were true. It is likewise defective in failing to allege that he expected to establish their truth by the discovery sought by the bill. It is true that he says in his bill, that he has no witness by whom he can prove the facts. set up in the pleas, except by Lasater or the plaintiffs in the suit at law, but he fails to allege that he can prove them by these parties. It may possibly be inferred that he expects to prove them by the defendants to the bill, but there is no such positive allegation. This fails to conform to the rules of pleading. In chancery, as at law, all facts must be clearly and positively averred in pleading. Again, the bill is defective in its frame, as it contains no ■ prayer for an injunction. It has a prayer for discovery and for a summons to the next term of the comt, but it does not ask that the suit at law may be stayed until the coming in of the answer. On this bill, as it was framed, the court below would have erred in granting an injunction. No error is perceived in this record, and the judgment of the court below must be affirmed. Judgment affirmed.