|
|
|
|
|
|
|
486 PRICE v. TYSON.
this was a bill for relief here, tad this ease was set demo for hear-
ing on Mil and answer, then this allegation, in the answer of the
defendant Mar y j would be taken for true, although she might be
deemed incompetent to testify to the fact as a witness, (o) But
as to tie relevancy, legality, and competency of any testimony
brought out by a bill of discovery, it does not belong to this court
to decide; because such questions can only be determined, with
propriety, by the court of common law for whose use the discovery
has been required, (p)
It is a general rule, that on a bill of discovery the plaintiff must
pay to the defendant all his costs in this court; and that too, in-
cluding all expenses incurred by the defendant in resisting motions
made in the case by the plaintiff. And the defendant's right to
make his demand, accrues as soon as he has answered, allowing
to the plaintiff a reasonable time to look into the sufficiency of the
answer. But it has been thought that this rule is too general;
that it ought, at least, to be so modified, as that the plaintiff should
not be bound to pay costs where, upon demand, the defendant had
refused voluntarily to make the requisite disclosures, so as to com-
pel the plaintiff to come into this court, and incur the expense of
a bill of discovery. It certainly does seem to be reasonable, even
although the plaintiff should be ordered to pay the costs of this
court in the first instance; yet that they should await the event of
the suit at law, and be taxed there like the coats for summoning
witnesses, &c. as a part of the costs of the suit at common law. (q)
The act of Assembly declares, that in deciding on exceptions to
answers, the court may award costs to the party prevailing; (r)
by which the question of costs seems to have been submitted en-
tirely to the discretion of the court, in all such cases, without dis-
tinction. In the exercise of that discretion, therefore, I cannot
but think it as reasonable, on a mere bill of discovery, as on a bill
for relief, where the plaintiff has been put to the expense and
trouble of extracting a sufficient answer from the defendant, or of
pruning away its impertinences, that he should have, at least the
costs of the exceptions; and therefore I shall give such costs in
this case.
|
|
|
|
|
|
|
|
|
|
(o) Lenox v. Prout, 3 Wheat. 527.—( p) Bishop of London v. Fytche, 1 Bro. C.
C. 98; Hindman v. Taylor, 2 Bro, C. C. 8,—(q) Cartwright v. Hately, 1 Ves., jun,,
292; Weymooth v. Boyer, 1 Ves., jun., 423; Simmonds v. Lord Kinnaird, 4 Ves.
746; Hindman v. Taylor, 2 Bro. C. C. 10; Noble v. Garland, 1 Mad. Rep. 343;
1 Mad. Pra. Chan. 216; Giant v. Jackson, Peake's Cas, N. P. 204.-(r) 1820, ch.
161, s. 8.
|
|
|
|
|
|
|
|
 |
