Haskell v. Haskell

57 Mass. 540

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1849
• Status: Published

Opinion

Dewey, J.

The ground of the demurrer to this bill is, that the matter sought to be disclosed appertains to the title of the defendant, and not to that of the plaintiff. The application of the rule, thus restricting a bill of discovery, is attended with some difficulty, and the decisions are not entirely reconcilable. ■ The subject is fully discussed in Story’s Equity Pleading, § 572; 2 Story’s Equity, § 1490; and in Wigram on Discovery, §§ 154 to 173. The rule, as stated by Wigram, is sufficiently broad to justify the present bill. All that appertains to the plaintiff’s title is clearly within the legitimate province of a bill of discovery. In looking at this bill, two things are to be remarked: —

1. The proposed discovery, as to payment made by the defendant upon the notes of hand held by the plaintiff,‘is an inquiry in reference to the title and right set up by the plaintiff. The object of the discovery prayed for is to sustain the notes as valid; it goes, directly to sustain the case of the plaintiff, and to support the title through which he seeks to establish a right.

2. The discovery sought as to the release is of a more questionable character; but we apprehend is well authorized. The plaintiff may have a discovery of what appertains to his own title. The case is thus. The plaintiff in a suit at law seeks to recover payment of the defendant of a note of hand. The defendant denies his liability to pay the same, and seeks to defeat a recovery on the note, by means of a discharge alleged to have been executed by the plaintiff. This discharge is a matter directly affecting the title of the plaintiff, and is relied upon as a defeasance. It concerns the plaintiff’s case and his title. A discovery in relation to it is a discovery appertaining to the plaintiff’s case.

Without impugning the English rule, that the plaintiff is only entitled to a discovery of what appertains to or is necessary for his own title, and that he has no right to pry into the title of his adversary, we think the plaintiff may maintain this bill.

If it were necessary, however, it might be added, that our whole system of inquiry, as authorized by various statutes in relation to insolvent estates, executors and administrators, the cases of attachments by the trustee process, &c., has led us to adopt a somewhat more extended course of inquiry, which will virtually operate with us as an extension of the right of inquiry; and, if not in the form of a bill of discovery, technically so called, yet, in other forms, the most searching discoveries are authorized. Adams v. Porter, 1 Cush. 170.

Demurrrer overruled.