The opinion of the court was delivered, by
Strong, J.
The bill in this case is for relief against judgment and execution in a court of law, and for discovery in aid of the relief sought. To the discovery asked for the defendant demurs, and assigns, for the reasons or grounds, that the judgments are res determination in another court. The demurrer is addressed not to the bill generally, nor to the relief, but exclusively to so much of the bill as seeks discovery. Such being its character, it should not have been sustained in thé court below. A defendant is for relief, and discovery as incidental to it except for special reasons, all of which have no relation to the equity of the bill. If the discovery sought may subject the defendant to a penalty, or if it is immaterial or impertinent to the suit, or if it involves a breach of confidence which the law holds inviolate, or if the matter sought to be discovered appertains exclusively to the defendant’s title, he may demur to the discovery alone. But when the bill is for relief and for discovery in aid thereof, & demurrer to ’the latter for reasons that deny the whole equity of the bill, is but a demurrer to the instrumentality by which relief is sought to be obtained. adjudicata at law, and are subject to judicial investigation and cannot be allowed to demur to the discovery alone when the bill
Upon this subject the authorities are very numerous, and all to the same effect: Daniels’ Ch. Prac. 605 ; Story’s Eq. Plead., § 312, and notes 441 and 546 ; Mitford’s Eq. Plead. 184; Brightly’s Eq. Jur., § 616; so also in Brownell v. Curtis, 10 Paige 2Í0, it was ruled by Chancellor Walworth that when the principle upon which the demurrer to the discovery of the truth of the allegations contained in the complainant’s bill is equally applicable as a defence to the relief sought by the bill, the defendant cannot demur to the discovery only, and answer as to the relief. Such is the precise condition of this case. If the reasons assigned for the demurrer are sufficient .to protect the defendant against making the discovery sought, they are equally available as a defence against the relief for which the bill prays, or any relief.
The only doubt in regard to this rule of pleading is one which might possibly grow out of our 35th rule of equity practice, which is as follows: “No demurrer or plea shall be held bad or overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to, or because the answer of the defendant may extend to some part of the same matter as may be covered by such, demurrer or plea.” But that this rule does not enab [326] ant to demur to the discovery alone, when it is sought as a means to prove the facts essential to a plaintiff’s case, was determined substantially by Sir L. J. Knight Bruce, in Dell v. Hall, 2 Younge & Collyer 1. Our rule is the same as the 36th English order of August 1841, under which it was ruled in 1842, by Vice-Chancellor Bruce, that a demurrer to discovery for a cause which amounted to a defence against the relief could not be sustained.
On the argument of this case it was insisted that the demurrer here is not to the discovery, but to the jurisdiction of the court. This is a plain mistake. It is specifically confined to “ so much and such parts of the bill as seek that the defendants may answer and set forth” certain facts respecting which he is interrogated in the interrogatories, and to the remainder of the bill the defendants answered.
The reasons assigned for the demurrer are not to be confounded with the demurrer itself.
Unless, therefore, we are to disregard a well-settled rule of equity pleading, we must hold that the court erred in sustaining the defendant’s demurrer. And still more. Even if the plaintiff was rightfully deniéd the discovery which he sought, it was no ground for dismissing the bill. The plaintiff might have made out his case without the discovery. The only order which the court could make in passing judgment upon the demurrer to the discovery was that the defendant need not answer the interrogatories to which he demurred. He sought nothing beyond this. To the remainder of the bill he put in an answer, by which, and by which alone, he sought to protect himself against the relief sought.
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The opinion of the court was delivered, by
Strong, J.
The bill in this case is for relief against judgment and execution in a court of law, and for discovery in aid of the relief sought. To the discovery asked for the defendant demurs, and assigns, for the reasons or grounds, that the judgments are res determination in another court. The demurrer is addressed not to the bill generally, nor to the relief, but exclusively to so much of the bill as seeks discovery. Such being its character, it should not have been sustained in thé court below. A defendant is for relief, and discovery as incidental to it except for special reasons, all of which have no relation to the equity of the bill. If the discovery sought may subject the defendant to a penalty, or if it is immaterial or impertinent to the suit, or if it involves a breach of confidence which the law holds inviolate, or if the matter sought to be discovered appertains exclusively to the defendant’s title, he may demur to the discovery alone. But when the bill is for relief and for discovery in aid thereof, & demurrer to ’the latter for reasons that deny the whole equity of the bill, is but a demurrer to the instrumentality by which relief is sought to be obtained. adjudicata at law, and are subject to judicial investigation and cannot be allowed to demur to the discovery alone when the bill
Upon this subject the authorities are very numerous, and all to the same effect: Daniels’ Ch. Prac. 605 ; Story’s Eq. Plead., § 312, and notes 441 and 546 ; Mitford’s Eq. Plead. 184; Brightly’s Eq. Jur., § 616; so also in Brownell v. Curtis, 10 Paige 2Í0, it was ruled by Chancellor Walworth that when the principle upon which the demurrer to the discovery of the truth of the allegations contained in the complainant’s bill is equally applicable as a defence to the relief sought by the bill, the defendant cannot demur to the discovery only, and answer as to the relief. Such is the precise condition of this case. If the reasons assigned for the demurrer are sufficient .to protect the defendant against making the discovery sought, they are equally available as a defence against the relief for which the bill prays, or any relief.
The only doubt in regard to this rule of pleading is one which might possibly grow out of our 35th rule of equity practice, which is as follows: “No demurrer or plea shall be held bad or overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to, or because the answer of the defendant may extend to some part of the same matter as may be covered by such, demurrer or plea.” But that this rule does not enab [326] ant to demur to the discovery alone, when it is sought as a means to prove the facts essential to a plaintiff’s case, was determined substantially by Sir L. J. Knight Bruce, in Dell v. Hall, 2 Younge & Collyer 1. Our rule is the same as the 36th English order of August 1841, under which it was ruled in 1842, by Vice-Chancellor Bruce, that a demurrer to discovery for a cause which amounted to a defence against the relief could not be sustained.
On the argument of this case it was insisted that the demurrer here is not to the discovery, but to the jurisdiction of the court. This is a plain mistake. It is specifically confined to “ so much and such parts of the bill as seek that the defendants may answer and set forth” certain facts respecting which he is interrogated in the interrogatories, and to the remainder of the bill the defendants answered.
The reasons assigned for the demurrer are not to be confounded with the demurrer itself.
Unless, therefore, we are to disregard a well-settled rule of equity pleading, we must hold that the court erred in sustaining the defendant’s demurrer. And still more. Even if the plaintiff was rightfully deniéd the discovery which he sought, it was no ground for dismissing the bill. The plaintiff might have made out his case without the discovery. The only order which the court could make in passing judgment upon the demurrer to the discovery was that the defendant need not answer the interrogatories to which he demurred. He sought nothing beyond this. To the remainder of the bill he put in an answer, by which, and by which alone, he sought to protect himself against the relief sought.
This is sufficient to dispose of this appeal. But the same result must be reached if we look beyond the rules of pleading and examine the grounds assigned for the demurrer. They are not a defence against either the discovery or the relief. The judgments which are alleged to cover usurious interest the defendant caused to be entered upon warrants of attorney accompanying the notes. The plaintiff never had an opportunity of defence. True, he applied afterwards to the courts in which the judgments were entered to open them and let him into a defence, and his application was unsuccessful. But this does not exhibit such an adjudication of the equities between the parties as to bar a resort to a court of equity for relief. The utmost limit to which the cases have gone in denying to a plaintiff relief because of a prior adjudication in a court of law, extends no farther than to cases where he has had a trial, or an opportunity for a trial, in which he might have availed himself of his equities. But what opportunity has this plaintiff ever enjoyed to defend himself against the defendant’s claim for usurious interest ? The judgments were obtained without trial. The plaintiff made no default, for he was never [327] summoned. True, after the judgments were entered he made an application to the discretion of the court for an opportunity of making his defence, and it was denied. But that was not an adjudication against his defence. It was only a determination of something preliminary. It was at most a denial to him of the privilege of making use of his equity. Moreover, the summary determination of a question raised by a motion in a court of law, is not a bar to a bill in equity, if the question be an equitable one, though it be decided that there is no equity. Set-off of one judgment against another is strictly a right in equity alone. Courts of law may, however, direct it. In Simpson v. Hart, 14 Johns. 63, where there had been a motion in a court of law to allow a set-off of one judgment against another, and the court had refused it after full consideration of all the facts and all the equities, the Court of Appeals in New York sustained a bill for an injunction, and ordered that the set-off be decreed. The doctrine was laid down that the decision of a court of law upon a summary application to its equity is - not -such a res judicata as to preclude chancery from' examining''the"question.- So in Fanning v. Dunham, 5 Johns. Ch. 122, where a lender at usurious interest had proceeded at law, and recovered judgment on a bond and warrant of attorney, a bill for the relief of the borrower was entertained, though the court of law had granted a feigned issue to try whether there was usury, which had resulted in establishing its existence, and the court had afterwards rescinded the order granting the issue, had set aside all proceedings under it, and had allowed an ■ execution to issue on the judgment. To the same effect is Arden v. Patterson, 5 Johns. Ch. 44. And such I understand to be-the doctrine of the English courts of equity: Bromley v. Holland, 7 Ves.13'. - Indeed, I know of no case of recognised authority in'which it .has been held that the decision of a court of law on a motion to open a judgment and let the defendants into an equitable 'defence, which would have been available before judgment, is a bar to a bill in equity for relief against the judgment. None such were cited in the elaborate argument of the defendant in error.»' -And-there is every reason why such a decision should-not preclude a resort to a court of equity. Opening a judgment'in-a court of -law-is always ex gratia. Restraining a plaintiff-fro'm proeeeding-upbn.it, if the defendant has an equitable defence, and has not been guilty of laches by failing to set it up when he had an opportunity, is' demandable of right.
There- are-very many-cases-in which' injunctions against proceeding upon -judgments -obtained at law have been denied, even where the défendant had a complete defence resting .upon equitable principles, and such as must have been allowed had it been set up before judgment, but they are all cases in which it appeared that the complainant had slipped his time. He had either neglected to [328] make .the’Mefence on the trial or had failed to appear and suffered judgment to go by default. Such is not this case. The bill reveals no laches on the part of the complainant. He has done everything which it was in his power to do. He was not entitled to a bill of discovery on his motion to open the judgment. That was not a suit at law. The judgments were upon warrants of attorney, and he had no day in court. The summary disposition of his motion for a day is not, therefore, an adjudication of the matters averred in his bill.
It is argued, however, that the plaintiff might have taken defence in the attachment execution. And so he might had he not been precluded by the judgment. So long as they remained they stood in the way of his setting up the equity exhibited in his bill, and this being so he had then no opportunity in those attachments to avail himself of the matter of which he now complains.
Nor had he in the Common Pleas on the distribution of the fund in the hands of McIntyre, his trustee. In that distribution those judgments concluded him. No doubt an issue might have been awarded to try how much had been paid upon them, if anything, or whether they were fraudulent as to creditors, but as against the complainant they established an indebtedness, and he could not on the trial of the issue have been permitted to show that they were recovered on usurious contracts.
Were we then to hold that defendant may demur to the discovery alone when a bill is for relief and discovery only as incidental to relief, and demur for causes that show the plaintiff entitled to no relief, it would nob help the defendant here, because the bill shows no adjudication of the matter in controversy in another tribunal, nor does it show that the matter complained of is pending in another court of equity or of concurrent jurisdiction.
We do not now enter upon the inquiry whether in this state injunctions may be granted to restrain a party from proceeding at law. The demurrer raises no such question, though it was considerably argued. We content ourselves now with the single remark that our more modern decisions do not recognise the doctrine asserted by Judge Sergeant at Nisi Prius, 7 W. & S. 104, that our courts are powerless to restrain acts contrary to equity.
The decree of the District Court is reversed, the demurrer of the defendant below is overruled, and he is ordered to answer the interrogatories.
Thompson, J.
I concur in this opinion so far as the practice is concerned, but think the bill ought to- be dismissed for want of jurisdiction in the particular case.