Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-03-10

courts of equity aud law, in matters o
usury, and the right of the one or the 9th
er, which frat takes jurisdiction Of ths
case TO conclude it by its Judgment, or de
cree, stands precisely as il did prior TO th'
passage of the act of 1874, ch. 167.
The court of Law therefore, in this case
having first obtained jurisdiction of the
subject, must conclude il by its judgment
unless there arespeeial reasons, arising oul
of the complicated and embarrassed state
Of facts surrounding the case, which would
render it inefficient and inadequate "a
afford the redress sought.
This embarrassment, it is insisted, il
found in the facts ofthis case. The amount
Of payments by WetmOre, and the charac.
ter aud amount of cOllatersls assigned by
him to secure the note, together with their
loss, or alleged fraudulent application,
certainly, under proper allegations in the
bill, furnish strong grounds for the inter
position of a court of equity. The facts
touching these transactions, it is alleged in
the bill, and admitted by the demurrer, lie
within the knowledge of the defendants,
and are wholly unknoHn40 the complain
ant. A discovery Of them is sought from
the defendants, John d. james and the
bank, not in aid of the action at law, but
as ground Of equitable Jurisdiction, and
for general relief.
Ii is impossible to say that these facts, as
they are stated in the bill, do not greatly
embarrass the complainant's remedy at law;
and especially his equity arising out of the
assignment of the collaterals, and their loss
or fraudulent application; and, under pro-
per allegations, would, in our opinion, all
other questions out of the way, not only
entitle the complainant to discovery. but
confer the jurisdiction on n court of equity
to take cognizance of the whole cause
Newborn u.s. Glass, Hum, 520-522.
But under the form of this bill, is the
complainant entitled to a discovery and
if so, when an answer under oath is waived,
what would he gain?
A discovery is not a matter of course.
The complainant must always show himself
entitled to it. To do this it is necessary
to allege in the bill that the facts are ma
terial to the plaintiffs case, and that the
discovery Of them by the defendant, is in
dispensable, as proof, for if the facts lie
within the knowledge of witnesses, who
may be called in a courtof law, that furnishes
a Sufficient reason for n court Of equity to
refuse its aid. The bill must, therefore,
allege, land, if required, the facts must be
that the plaintiff is unable to
prove such facts by other testimony. /.
Story's Eq. Ju "A. ellison rs. Hoyt.
l John, Ch. r. 543. John, Ch. K. 400.
Whitesides rs. Latierty, Hum. q.
In this case the materiality of the facts
sought to be discovered, perhaps, sufficiently
appears, but it is nowhere alleged that the
is not able to prove these facts
by other witnesses. This is necessary and
fatal, on demurrer, to the bill as a bill of
discovery.
Admitting that the bill had been prop
erly framed as bill of discovery, were the
John d. James and the bank,
bound to answer? The discovery is
sought, and the answer of the defendants
under oath expressly waived. The bank,
as corporation, cannot answer, except
under its corporation seal, and a disclo-
sure, under the common seal of the corpo-
ration, however false would subject the
to no punishment, and it
would, therefore, of course, answer nothing
to its prejudice To avoid this difficulty,
when it is necessary to obtain a disclosure
from 4 corporation, il seems to be allowa-
BILE to make principal officer oragent of the
party, sc far "a the bill seeks
for discovery and that may be done, al
though such officer or agent has no indi-
vidual interest in the suit, and no relief eau
be had against him. l Danl, Oh. Pr. l8o,
18l, note ! Story's Eq., Pl. sec. 235; 2
Story's Eq. Ju., sec. 1901.
This practice is founded upon authority
and sustained by sound reason. 1t at once
gives the court jurisdiction of the party of
whom the discovery is sought, and confers
the power to punish for contempt, and at
the same time furnishes to the complainant
the benefit of disclosure under oath. But
this practice may not be resorted 10 when
the same object can be accomplished by
making such officer OF agent Of the corpora
tion witness. This must be done when
and equally efficient but cases
may arise in which il becomes necessary TO
make officers or agents of corporations par
ties, when theylhave no interest, for this
discovery merely, and in such cases the
practice seems now, as a doctrine Of courts
Of equity, firmly established. 2 Story's
Eq. sec 1901 and note 2, with authorities
there cited.
Under this rule of practice it follows,
that in order to obtain discovery from
the bank as a corporation, it was only nee
essary TO require John ID. james, as the
President and principal officer Of the cor
poration, to answer for the corporation
This was not done, but James was required
to answer in his individual capacity, but
not under oath. Was he bound to disclose
and il so, how far was his answer in re-
sponse TO the matter Of discovery in the
bill evidence in favor Of the defendant?
il the bill is for discovery of
evidence, and the answer is directly re-
10 the bill, the complainant is
bound by it, and no proof to sustain it is
either necessary or requisite, Napier rs
Elam, Yer. 10S-1l6. And this for the
reason that the complainant, by seeking a
discovery Of the defendant, makes him a
witness as TO the facts sought to be dis
closed, and cannot, because it is against
him, object to the testimony. James as.
Perry 10 Yer. 81, Story's Eq. Ju. 1923.
This is the rale as established byrepeated
decisions in this State, where the answer is
under oath; hut how is il when the oath ia
waived, and thereby loses its character as
evidence?
The Code, sec. 43l7, declares: "The
plaintiff may, in his bill, waive an answer
from the defendant under oath, in which
case the answer will be entitled to no more
weight than the bill as evidence"
Language, it seems, could not be clearer
than the words of the statute, and all the
difficulty that arises in its construction
grows ont Of the conflict Of authorities
found in the books in relation 20 the weight
of an answer not under oath, without refer
ence 10 any existing statute. The answer
of an individual not under oath. as the an
swer of corporation under its common
seal, seems in our practice only TO create an
isslIe in pleading between the parties, and
no decree, without more, can be rendered
"a 20 the issue thus created. Van Wyck
rs. Norvell, - Hum, 1926. , St0ry's
Eq. Ju., sec. 1928.
True, the answer not under oath, as well
~ an answer regularly sworn 10, either in
a ball for discovery, or for general relief
may contain suoh admissions as would en-
title the complainant 10 a decree; bat il
the oath is expressly waived by the bill, it
cannot, even in bill for discovery, aud
when the answer is directly responsive To
the allegations in the bill, 40 far be treated
as evidence as TO eniitle the defendant,
without more, TO a decree in his favor
Bartlett us. Guide, 4 Pages r., SOB Fishe