Scott v. Hamblin ex rel. Hamblin

3 Miss. 285

Opinion

Mr. Justice ClaytoN

delivered the opinion of the Court.

There is but a single point, in this cause, which it is necessary to notice. At the time at which the trial was had, but before the cause was called, the defendant filed a petition, in which he prayed the Court, that Henry Hamblin, in whose name the suit was brought, might be compelled to answer the petition, which was intended to operate as a bill of discovery. He stated that the consideration of the note, on which the suit was brought, was Brandon money, which was under par at the time the note was executed, and that there was no one by whom he could prove the consideration besides Hamblin. He stated that Hamblin resided in the county.

The Circuit Court refused to grant the prayer of the petition, and the cause was tried without the benefit of the discovery. A judgment was rendered against the defendant, the present plaintiff in error, who brought the cause to this Court.

We can see no good reason for refusing the application. The petition complied with all the requisites of the statute, and disclosed a material defence, if it could be sustained by the discovery sought. If the note were given for Brandon money, then at a discount, a recovery for its full nominal amount was not lawful.

It is objected that the application was addressed to the discretion of the Court, and that the exercise of that discretion cannot be made matter for an appeal or writ of error. The answer is, that the statute in this instance lays down a directly different rule, and provides that the order may be reviewed in the Appellate Court. How. & Hutch. 607.

For this error, the judgment will be reversed, and a new trial granted.