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14 F. 268

Drexel v. Berney

United States Circuit Court for the Southern District of New York

Decided November 17, 1882.)

United States Circuit Court for the Southern District of New York · decided 1882-11-17

<p>Equity — Restraining Action at Law — Defense at Law.</p> <p>Where the facts disclosed by a bill in equity would avail as a defense to an action at law, which is sought to be restrained, and complainant is not entitled to a discovery, the bill is demurrable.</p>

2 counsel of record

Key passage — most relied on by later courts

““Even if formerly the complainant might have been entitled to a discovery, now that the parties can be examined in the same case as other witnesses, at the instance of the adverse party, there is no necessity for such relief.””

quoted by 1 later decision, including Brown v. McDonald

Relies on Eliza Brown v. Frances Swann

Good law ✅— No negative treatment on recordhow we know

Decided 1882-11-17

How this case has been cited

Cited by 3 later decisions (1 by the Supreme Court) — most recently April 1914

101882189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Equity — Restraining Action at Law — Defense at Law.

¶2Where the facts disclosed by a bill in equity would avail as a defense to an action at law, which is sought to be restrained, and complainant is not entitled to a discovery, the bill is demurrable.

¶3Tracy, Olmstead do Tracy, for complainants.

¶4Lord, Day á Lord, for defendants.

¶5Wallace, C. J.

¶6The facts disclosed by the bill will avail the complainant as a defense at law to the action which is sought to be restrained by the bill. They do not show a defense of an equitable character distinctively. Even if formerly the complainant might have been entitled to a discovery, now that parties can be examined in the .same manner as other witnesses, at the instance of the adverse party, there is no necessity for such relief. Heater v. Erie R. Co. 9 Blatchf. 316; Markey v. Mut. Benefit L. Ins. Co. 3 Law & Eq. Rep. (1st Cir.) 647. The jurisdiction of a court of equity in this regard rests upon the inability of the common-law courts to obtain or compel the testimony sought, and when it can be obtained by the process of the latter it is an abuse of the powers of chancery to interfere. Brown v. Swan, 10 Pet. 497.

¶7The demurrer is allowed.

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