Drexel v. Berney

14 F. 268, 1882 U.S. App. LEXIS 2747

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 17, 1882
• Status: Published

Opinion

Wallace, C. J.

The facts disclosed by the bill will avail the complainant as a defense at law to the action which is sought to be restrained by the bill. They do not show a defense of an equitable character distinctively. Even if formerly the complainant might have been entitled to a discovery, now that parties can be examined in the .same manner as other witnesses, at the instance of the adverse party, there is no necessity for such relief. Heater v. Erie R. Co. 9 Blatchf. 316; Markey v. Mut. Benefit L. Ins. Co. 3 Law & Eq. Rep. (1st Cir.) 647. The jurisdiction of a court of equity in this regard rests upon the inability of the common-law courts to obtain or compel the testimony sought, and when it can be obtained by the process of the latter it is an abuse of the powers of chancery to interfere. Brown v. Swan, 10 Pet. 497.

The demurrer is allowed.