#### *M. C. Stacy, Ex'or. of Robert Stacy,*vs. *James L. Pearson, George Bobbitt et al.*

Where the bill is *for discovery and relief*the plaintiff must shew, affirmatively, that his right cannot be established at law, without the aid of the discovery which he seeks; and the discovery must be established by the answer, in order to entitle the Court to maintain the bill for relief.

But a party may have a bil of discovery, not only where he is destitute of other evidence to establish his case, but, also, to aid such evidence, or to render it unnecessary.

*Before*Dahgan, Ch. *at Spartanburgh,*--— *Term,*1850,

The decree of his Honor, the Circuit Chancellor, is as follows.

DaRgan, Ch. The complainant charges in his original bill, that the defendants, Pearson and Bobbitt, confederating together,, by fraud and collusion, have possessed themselves of certain notes of Bobbitt, due to the testator, Robert Stacy, at the time of his death, and refuse to deliver them up. In his amended bill, he charges the same collusive and fraudulent possession of another note, due by the defendant Bobbitt, to the testator, for the sum of two hundred and fifty dollars. The notes are all specifically described, and the complainant seeks a discovery, and that the notes may be delivered up. The defendant, Bobbitt, has pleaded to the jurisdiction of the Court, or rather he has insisted upon that objection in his answer, on the ground^ that if the facts stated are true, it is not a matter of equitable cognizance, and the complainant had adequate remedy at law. The complainant charged a fraud and collusion, and sought a discovery as to facts.

He had a right to a discovery, and the Court having entertained the bill for a discovery, had the right to retain it for judgment. The plea or objection to the jurisdiction is overruled. Has the defendant, Bobbitt, fraudulently possessed himself of his notes, due to testator, by collusion with one of the executors (his co-defendant, Pearson,) as charged in the bill ? He admits in his answer, that the testator did hold against him, at a period not long antecedent to his death, the notes described in the com*149plainant’s original bill. But he says that these notes were, on a settlement between him and the testator, paid and taken up. He denies that the testator ever held against him a note like that described in the complainant’s amended bill. But he does not deny that he owed the testator the sum of two hundred and fifty dollars, for borrowed money, which the complainant supposed and charged to have been secured by note.

It was clearly proved that Bobbitt owed old Mr. Stacy a considerable sum of money, equal, or about equal, to the value of his land, and that this indebtedness continued up to a very short period before the testator’s death. He told one witness that he had no means of paying this debt but by the sale of his land, and asked the witness to buy it. He seemed to consider the land as already belonging to Stacy, the elder, for he said that it was a cheap bargain at the price for which Stacy offered to sell it.

It was proven by one witness, that on a further advance by testator, in taking up a note of Bobbitt from a Mr. Swan, it was stipulated, that if Bobbitt failed to pay, old Stacy was to have his land. The notes were seen in testator’s possession not long before his death. The evasions of this defendant tell strongly against him. He promised to shew, satisfactorily, that he had paid the testator all that he owed him. This he has failed to •do. The land has not been disposed of, and is still his. He has not shewn how he became possessed of funds to discharge this (comparatively speaking) large indebtedness. 1 am perfectly satisfied from the evidence, that he still owes the three notes described in the original bill. He denied in the answer, ever having owed the testator such a note as that described in the amended bill. Yet, as I have remarked, he does not deny owing the sum of two hundred and fifty dollars, charged to have been borrowed from the testator. I cannot say that I am satisfied that he ever gave his note for this amount, but I am satisfied that he borrowed the money. He could not deny borrowing this sum, but evaded the question, and contended that he had paid *150all that he owed. From his own admission, in the presence of Mr. Thomson and Mr. Peeling, it is impossible to resist the conclusion, that he borrowed money from old Mr. Stacy, on the Sunday previous to the Monday on which he paid two hundred and fifty dollars to Mr. Tucker, on the execution against him. The receipt for this money passed out of Bobbitt’s possession into that of old Mr. Stacy. At least, there is strong ground for such an inference. For the receipt was produced upon the trial, by the complainant. There is some significancy in this fact. It may have been left with the testator, in the confidence that evidently subsisted between the parties, as a memorandum in the place of a note.

It is ordered and decreed that the defendant, Bobbitt, account to the complainant, as the executor of R. Stacy, for the three notes described in the bill, with interest, and for the sum of two hundred and fifty dollars without interest, and that the commissioner state the accounts.

The evidence in support of the complainant’s charges against his co-executor, James L. Pearson, is not so full and satisfactory.

I am strongly impressed that there may be something wrong in his conduct, in regard to the notes which he owed his father previous to his death. His answer does not come up fully to meet the allegations of the bill in this particular. He claimed Bobbitt’s notes as a gift from his father to his wife, and said that Bobbitt had got them to calculate the interest, and refused to deliver up or to pay them. These are the notes which Bobbitt says he has fully paid.

Confederates do, someties, fall out in the division of the spoil. I shall not conclude any thing upon this point at the present time.

It is ordered and decreed that the accounts of James L. Pearson, as one of the executors of Robert Stacy, be referred to the commissioner, and that the commissioner, in taking the account, inquire as to the indebtedness of said Pearson to testator at his death, as well as the estate since his death, and that he hear testimony on the subject.

*151It is also ordered, that the account of M. C. Stacy, one of the executors of K. Stacy, deceased, be referred to the Commissioner, and that he report thereon.

The defendant, Bobbitt, appealed, and moved this Court to reverse the decree, on the grounds,

1st. Because the Court had no jurisdiction of the case as made by the bill and answer, as there was a plain and adequate remedy at law.

2d. Because the bill is multifarious, setting up separate and distinct demands against the defendants, in which they had no interest in common.

3d. Because there was not sufficient proof that Bobbitt had not paid to testator the debts which he owed him, to overcome the oath of Bobbitt and the production of the notes taken up and cancelled.

4th. Because there was no proof that Bobbitt ever borrowed the two hundred and fifty dollars referred to in the amended bill, or if he borrowed it, that it had not been refunded.

5lh. Because the decree was, in other respects, against law and evidence.

Bobo, for the motion.

Tucker, contra.

Dtjnkin, Ch.

delivered the opinion of the Court.

The allegation of the complainant is, that the defendant, Bobbitt, was indebted to the testator on four promissory notes, which were unpaid at his death, and of which the defendant obtained possession by collusion with J. L. Pearson, the co-executor. On the subject of collusion, the Chancellor, expressing a strong impression that there was something wrong in the conduct of the executor, distinctly declares that he “ shall not conclude any thing upon this point at this time.”

He places the right of the complainant to implead Bobbitt in this jurisdiction, on the ground of discovery; and that, having jurisdiction for the purpose of discovery, the Court was at liber*152ty to go on and give relief. Where the bill is *for discovery and relief,*the plaintiff must shew, affirmatively, that his right cannot be established at law, without the aid of the discovery which he seeks; and the discovery must be established by the answer, in order to entitle the Court to maintain the bill for relief. *Russell*vs. *Clark’s*ex’rs, (7 Cranch, 89;) *Laight*vs. *Morgan,*(1 Johns. Cas. 429.) But a party may have a bill of *discovery,*not only where he is destitute of other evidence to establish his case, but, also, to aid such evidence, or to render it unnecessary. Mitf. Eq. PI. by Jeremy, 307: see also, Story Eq, PL 319, note.

In this case, the plaintiff’s demand was purely of a legal character. He has obtained from the defendant the discovery which he sought, and all the circumstances disclosed by that answer, as well as those to which witnesses have testified, are peculiarly proper for the consideration and adjudication of the ordinary tribunal.

It is ordered and decreed that the plaintiff be at liberty to institute proceedings at law for the amount alleged to be due by the defendant, George Bobbitt, to the estate of the testator, R. Stacy, deceased; that the proceedings be prosecuted in the name of both the executors, as plaintiffs, and that the defendant, J. L. Pearson, be enjoined from releasing, or in any manner interrupting the recovery of said demand. It is further ordered, that the bill be retained until the determination of said proceedings at law, or until the further order of this Court.

The decree of the Circuit Court is modified according to the principles herein stated.

Johnston, Dargan and Wardlaw, CC. concurred.

*Decree modified.*