Post v. Toledo, C. & St. L.R. Co.

• Decision Date: 05 May 1887
• Citation: 11 N.E. 540,144 Mass. 341
• Parties: POST and others v. TOLEDO, C. & ST. L.R. Co.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 341

11 N.E. 540

POST and others v. TOLEDO, C. & ST. L.R. Co.

Supreme Judicial Court of Massachusetts, Suffolk.

May 5, 1887

COUNSEL

W.G. Russell and Jabez Fox, for defendants.

It is plain that this bill does not satisfy any of the usual definitions of a bill of discovery. Hare, Disc. (2d Amer.Ed.) 111; Wig.Disc. 25; Mitf.Eq.Pl. (6th Amer.Ed.) 226. See, also Langd.Eq.Pl. § 126. We understand the plaintiffs to admit that this bill lies outside the ordinary province of discovery; that it does not seek to obtain evidence to be used in any suit, and that its sole object is to find out whom to sue. We come, therefore, immediately to the question whether this is a legitimate object of a bill of discovery. The authorities which are relied upon in support of this contention are not numerous, and we cite them. Stauden v Bullock, Toth. 71; Heathcote v. Fleete, 2 Vern. 442; Morse v. Buckworth, Id. 443; Moodalay v Moreton, 2 Dick. 653, 1 Brown Ch. 469. It is to be noticed that in these there is nothing but the meager statement of fact to show what was intended to be decided except in Moodalay v. Moreton, where the short opinion of KENYON, M.R., deals merely with the question whether a bill of discovery will lie before action brought; and Mitford, Wigram, Hare, and Maddock cite these cases solely to this point, or not at all. Hare, Disc. 51, 85, 187; Madd.Ch.Pl. 279. See, also, comment of Lord ABINGER on Moodalay v. Moreton in Glyn v. Soares, 1 Younge & C. 676; Hare, Disc. 111. On the other hand, we have during this early period Stapleton v. Sherrard, 1 Vern. 212; Sherborne v. Clerk, Id. 273; Dineley v. Dineley, 2 Atk. 394; Mayor of London v. Levy, 8 Ves.Jr. 398; Story, Eq.Jur. § 1483. See, on the other hand, Mitf. (6th Amer.Ed.) 223, 224, 226; Wig.Disc. 25, 165; Hare, Disc. (2d Amer.Ed.) 111, 161; Kerr, Disc. 83; Langd.Eq.Pl. § 133.

The question remains whether the rule as settled by Lord ELDON, and universally accepted for 75 years, can be considered as having been abrogated by the recent decision of Orr v. Diaper, 4 Ch.Div. 92. Vice-Chancellor HALL, in giving the opinion, cited but a single case, Dixon v. Enoch, L.R. 13 Eq. 394. We submit that a case so decided cannot be deemed to have established a principle, and cannot be properly cited as a precedent in any case not exactly like it. Opposed to this, we have in this country Twells v. Costen, 1 Pars.Eq.Cas. 373; United Railroad of N.J. & Canal Co. v. Happock, 28 N.J.Eq. 261, reversing decision in 27 N.J.Eq. 286. The cases allowing officers or members of a corporation to be joined with the corporation in a bill for discovery, to be used in an action to be brought against the corporation, rest on grounds wholly inapplicable to the present case. In such cases, discovery is sought against the corporation. The adverse party being entitled to disclosure under sanction of an oath, and the corporate answer affording no such sanction, the courts have held the corporators as component parts of the corporation, and as the parties actually in interest to make the disclosure. Story, Eq.Jur. § 1501. See Wright v. Dame, 1 Metc. 237, 239; Wych v. Meal, 3 P.Wms. 311; Dummer v. Corporation of Chippenham, 14 Ves. 245; Hare, Disc. 111; Fenton v. Hughes, 7 Ves. 287; Queen of Portugal v. Glyn, 7 Clark & F. 466. There appears to be no reported case in this state in which a bill for discovery alone has been sustained since 1849. Haskell v. Haskell, 3 Cush. 540.

The plaintiff is seeking to enforce, against citizens of this state, a liability imposed upon them by the statutes of Ohio. It is usual for statutes which assume to impose upon the stockholders of a corporation a liability for its debt, to provide some means by which their names and holdings can be ascertained. We submit that the plaintiff should be remanded to his remedies under those statutes of which he is seeking to avail himself. It was a settled principle in England that the court of chancery would not grant discovery for a court which could itself compel discovery. Hence a bill of discovery would not lie in aid of proceedings in the ecclesiastical court. Mitf.Ch.Pl. (6th Amer.Ed.) 221; Bray, Disc. 613. This court has refused to entertain a bill for discovery, on the ground that it does not appear that the discovery sought could not be had by interrogatories under the statute. Ahrend v. Odiorne, 118 Mass. 261, 269. It seems to be well settled in England that the court of chancery will not entertain a bill for discovery in aid of proceedings before a foreign tribunal. Bent v. Young, 9 Sim. 180; Reiner v. Salisbury, 2 Ch.Div. 378; Mitf.Ch.Pl. (6th Amer.Ed.) 221. But, whatever may be the general doctrine as to the obligation of comity resting on our courts to entertain a bill of discovery in aid of proceedings in the tribunals of a foreign or a sister state, no such obligation exists in this case. The liability intended to be enforced in the suit to be brought in Ohio is one arising under a statute of that state of such a nature that our courts would not enforce it here. Erickson v. Nesmith, 15 Gray, 221, 4 Allen, 233; Halsey v. McLean, 12 Allen, 438; Smith v. New York Mut. Life Ins. Co., 14 Allen, 336, 343; New Haven Horse-Nail Co. v. Linden Springs Co., 142 Mass. 349, 7 N.E. 773. There is surely no rule of comity which should require this court to entertain a bill of discovery to aid the plaintiff in an action in another state, when upon grounds of policy it would refuse relief in the same action brought in this state, even if it had full jurisdiction over all the parties and full remedial power.

J.B. Warner, for plaintiff.

That a bill for discovery only, though seldom used, is still within the jurisdiction of this court, will hardly be disputed. It is expressly recognized by St.Mass.1883, c. 223, § 10; Emery v. Bidwell, 140 Mass. 271, 3 N.E. 24; Walker v. Brooks, 125 Mass. 241; Ward v. Peck, 114 Mass. 121. The fact that parties may now be witnesses cannot deprive this court of its original equity jurisdiction in matters of discovery where the common-law process is not adequate, especially since St.Mass.1877, c. 178, §§ 1, 2. Nudd v. Powers, 136 Mass. 273, 278; Dole v. Wooldredge, 135 Mass. 140; Bray, Disc. 613; Shotwell v. Smith, 20 N.J.Eq. 79. Is this, then, a proper case for discovery in aid of an intended action? We submit that it is precisely one which can be dealt with only by such a bill, and is an example of the class of cases for which the aid remedy has been preserved. The plaintiff cannot make even an effectual beginning of his suit, not knowing the names of a single stockholder. The practice of compelling discovery in equity undoubtedly arose from the impossibility of getting evidence at law from a party to the suit. Langd.Eq.Pl. § 167; Hare, Disc. 48, 54; Mitf.Ch.Pl. *188; Plummer v. May, 1 Ves.Sr. 426; Fenton v. Hughes, 7 Ves. 287; Queen of Portugal v. Glyn, 7 Clark & F. 466. To the rule in these cases there were exceptions to prevent a failure of justice; and in several cases, where the identity of interest was strong, the plaintiff was allowed to obtain discovery from one not a party, notwithstanding the facts that he could be summoned as a witness, and that his evidence could not be read against the defendant. Thus, where discovery is sought of the acts of a bankrupt before he became bankrupt, he must answer, to assist the plaintiff in obtaining evidence, though his answer could not be read against his assignees, (Mitf.Ch.Pl. *161; Hare, Disc. 59; Gilbert v. Lewis, 1 De Gex, J. & S. 38;) and, where a person having had an interest in the subject of a bill has assigned that interest, he may yet be compelled to answer, with respect to his own acts, before the assignment, (Mitf.Eq.Pl. *161; Hare, Disc. 59.) Wherever you can have discovery against a corporation, you may have it against its officers and members, though their answers are not evidence against the corporation. Mitf.Ch.Pl. *188; Wych v. Meal, 3 P.Wms. 310; Dummer v. Corporation of Chippenham, 14 Ves. 245. See Wright v. Dame, 1 Metc. 237; Glasscott v. Copper Miners' Co., 11 Sim. 305. The cases are clear that, when discovery may be had at all, it is not to be limited strictly to evidence to be used against the party giving it, but may extend to the very inquiry made here, namely, who are other persons liable? Discovery may be had from one party of the names of other parties necessary to the suit. See Finch v. Finch, 2 Ves.Sr. 491; Attorney General v. Ellison, 4 Sim. 238; Union Bank v. Manby, 13 Ch.Div. 239; Hambrook v. Smith, 17 Sim. 209; Hoppock's Ex'rs v. Canal Co., 27 N.J.Eq. 286, (the original decision in the latter case was not assailed on the grounds pertinent here, in 28 N.J.Eq. 261, overruling 27 N.J.Eq. 286;) Borill v. Cowan, 15 Wkly.Rep. 608.

The necessity, under some circumstances, of getting the names of parties as an indispensable prerequisite to any suit, has been occasionally apparent, and has been fully met by the assistance of the court in giving discovery. See Story, Eq. § 1483; Bray, Disc. 40; Orr v. Diaper, 4 Ch.Div. 92; Dixon v. Enoch, L.R. 13 Eq. 394; The Murillo, 28 Law T.Rep. (N.S.) 374; Heathcote v. Fleete, 2 Vern. 442; Morse v. Buckworth, Id. 443; Moodaly v. Moreton 2 Dick. 652; Stauden v. Bullock, Toth. *12; Brown v. Wales, L.R. 15 Eq. 142; Story, Eq. § 1488; Howell v. Ashmore, 9 N.J.Eq. 82; Peck v. Ashley, 12 Metc. 478. To deny the plaintiff the discovery he asks, is to deny him any remedy. The only cases which, so far as we can discover, can be relied upon by the defendants, are cases where discovery was sought from one who could be summoned as a witness in a suit which could be brought without difficulty. See Dineley v. Dineley, 2 Atk. 394; Stapleton v. Sherrard, 1 Vern. 212; Sherborne v. Clerk, Id. 273; Mayor, etc., v. Levy, 8 Ves. 398; ...