
    NOVEMBER TERM, 1844.
    James H. Scott v. Henry Hamblin, use of Edwin Hamblin.
    At the time at which the trial was had, but before the cause was called, the defendant filed a petition, in which he prayed the Court, that H., in whose name the suit was brought, might be compelled to answer the petition, which was intended to operate as a bill of. discovery. He stated that 'the consideration of the note sued on, was Brandon money, which was under par at the time the note was executed, and that there was no one by whom he could prove the consideration, besides the said H., and that the said H. resided in the county; held,, to be error to refuse to grant the prayer of the petition.
    Upon a note given for money then at a discount, a recovery for its full nominal amount is not lawful.
    By our statute (How. & Hutch. 607), a petition for a discovery is an application addressed to the discretion of the Court; yet after judgment thereon, either party may bring the case to this Court by appeal or writ of error.
    In error from the Circuit Court of Madison county.
    The defendant in error sued the plaintiff in the Court below upon a note, payable to Henry Hamblin, or order, for $500 in Citizens Bank funds. The defendant plead non assumpsit. The record then recites as follows :
    “ And now, to wit, on the 19th day of November, 1842: — This day came the defendant, and offered to file his bill of discovery, which was rejected by the Court, to which the defendant excepted, and filed his bill of exceptions.
    “Madison Circuit Court, November term, 1842. Henry Hamblin, use of Edwin Hamblin, v. James H. Scott. Bill of exceptions: Be it remembered, - that, on this the 19th day of November, in the year 1842, the defendant, by his attorney, moved the honorable the Circuit Court of Madison county, which is now in session, for leave to file the following petition in this case ; which petition is in the words and figures following, to wit:
    “ Madison County Circuit Court, November term, 1842. Henry Hamblin, use, &c., v. James II. Scott. The defendant in this cause would respectfully state to your Honor, that the promissory note, on which this suit is founded, was given to the said plaintiff, Henry Hamblin, the payee in said note, for Brandon money, and no other consideration ; which Brandon money was under par at the time of the reception of the same, and at the time of the execution and delivery of said note. Petitioner knows of no witness, by whom he can prove the fact of the consideration for which said note was given as aforesaid, except by said plaintiff or payee aforesaid, who is a citizen of Madison county, Mississippi. Petitioner therefore prays your Honor, that the said plaintiff or payee may be required, at such time and place as your Honor may designate, to answer on oath, and state whether the said promissory note was not given for Brandon money; and your petitioner prays, that a copy of this petition, with subpoena, may issue for that purpose. Your petitioner states, that he did not know of the materiality of this testimony until this day, otherwise he would have presented his petition at an earlier period. And your petitioner, as in duty bound, will ever pray. James H. Scott.
    
      “ Sworn to and subscribed in open Court, this 18th November, 1842. Wm. Montgomery, Clerk ; by Henry R. Coulter, Deputy Clerk.
    “Which said petition being read, examined, and argued by the counsel on both sides, his Honor the said Judge refused receiving and granting the prayer of said petition ; to all which refusal.of the said Court to receive the said petition and grant the prayer therein, the defendant, by his attorney, accepts, and tenders this as his bill of exceptions, which he prays may be signed, sealed, enrolled, and made a part of the records in this case ; which is accordingly done. John H. Rollins.” (Seal.)
    And, afterwards, on the 26th day of November, 1842, the cause was submitted to a jury, and verdict rendered by them in favor of the plaintiff below, for $616.90.
    Motion in arrest of judgment, by defendant, was overruled by the Court, to which defendant excepted, and sued out a writ of error to this Court.
    
      Wyly & Gillespie, and Rives & Shelton, for appellant.
    
      First. They insist that the instrument of writing declared on, in plaintiff’s declaration, as a promissory note, is not, in law, a promissory note, as it is made payable out of a particular fund, and is not made payable in money. See Chitty on Bills, 329 ; 4 Mass. 245 ; 1 R. S. 151 ; 5 Cowen, 186 ; 6 ib. 108 ; 10 S. R. 94; 1 McCord, 115 ; Chitty, 7th American edition, 46, note.
    
      Secondly. They insist that the Court below erred in rejecting the bill of discovery, and also for not arresting said judgment. See How. & Hutch. 606, sec. 30.
    
      Thirdly. They also insist that the honorable Court is bound by law to reverse said judgment, because the records show the fact, that eleven jurors only were empannelled, sworn, and tried the cause, when the law required twelve jurors. See 1 Howard, 177 ; 2 ib. 771 ; and 4 ib. 166, 167.
    For the above reasons, and many others apparent on the face of the records, they insist that the honorable Court is bound by law to reverse said judgment.
    
      Tupper, for appellee.
    The plaintiff relies, for reversing the judgment, upon three positions. 1. The writing declared on is not a promissory note. 2. The Court erred in refusing the petition for a discovery, and to arrest the judgment. 3. The verdict was rendered by eleven jurors.
    I. On the first point, by reference to a copy of the note on the record, it will be seen that it was executed on the 27th of October, 1838, for ‡500, payable in Citizens Bank funds. This is a promissory note under our statute. See How. & Hutch. 373, sec. 12. The question is also fully decided by this Court, in the case of Rankin v. Sanders, 6. How. 52. Besides, this objection could not be taken after pleading to the merits of the action, as was done in this case.
    II. The petition for discovery was obviously presented for delay. The facts asked to be disclosed took place more than five years previous, to wit, the 24th of October, 1838, the date of the note, and about two years and a half after the suit was instituted. (See the record.) And the petitioner, by his own showing, was aware of these facts during the whole time. He states that he gave this note in consideration of a loan of Brandon' money. He knew this fact, then, at the time of executing the note ; and, in contemplation of law, if this fact furnishes any ground of defence, he Jtnew the materiality of the defence, notwithstanding his assertion to the contrary; for, ignorantia legis neminem excusat. Again ; the facts stated in the petition are not material to the defence. He states that the “ consideration of the note was Brandon money, and that this money was under par.” Now, suppose these facts were true, and, the plaintiff failing to answer, a pro confesso decree had been made; would the bill have furnished any testimony for the jury ? Certainly not. The petition does not state how much Brandon money was received, nor how much it was under par. As well might the defendant below have alleged that the note was given for corn, which was not worth more than fifty cents per bushel. The materiality of such facts would have been equally evident.
    But the nature of the defence which he wishes to set up must be explicitly stated in the petition. See McIntyre v. Mancius, et al., 3 John. Ch. R. 45. This statutory proceeding is a proceeding in equity, and the petitioner cannot have any greater privileges than a party filing his bill in aid of a suit at law. In the above-cited case, it is expressly decided, that the nature of the defence at law must be stated. And the remarks of the Chancellor in that case are strikingly applicable to the case before the Court: “ For anything that appears on the bill, the discovery called for may be utterly useless or frivolous, or it may be to enable the defendant at law to convict plaintiff of a crime, or subject him to a forfeiture.” “ It is not improbable that the defence at law is usury ; and then the assistance of this Court would not be obtained, without a previous offer to do the present defendants justice by paying the sum equitably due.”
    It should be remarked, that this application for a discovery was made but a few days before the case wás "regularly reached on the docket, and disposed of. The inference is legitimate, that it was made at that time for purposes of idelay only. The Court will hardly regard the assertion of. .petitioner, that he knew not of the materiality of the defence till that day, when the petition itself shows conclusively that he did know it long before. If the defence was indeed usury, as may perhaps be inferred, equitable relief should not be granted, when the violation of the law must necessarily have been committed by the plaintiff and defendant alike.
    The above views were probably taken of the case by the Court below, when the petition was refused. And I would respectfully insist, that the granting or refusing a discovery, in cases of this kind, rests in the sound discretion of the Court. The language of the act is, “ And if the said Court shall determine that a discovery shall be had,” &c. (How. & Hutch. 607, sec. 30) ; showing that the statute does not make it obligatory on the Court to grant the petition, &c.
    III. The third position, that the verdict was rendered by eleven jurors, is not true. The amended record, sent up in obedience to the certiorari, contains the names of twelve jurors, according to law. See pp. 4 and 7, amended record.
   Mr. Justice ClaytoN

delivered the opinion of the Court.

There is but a single point, in this cause, which it is necessary to notice. At the time at which the trial was had, but before the cause was called, the defendant filed a petition, in which he prayed the Court, that Henry Hamblin, in whose name the suit was brought, might be compelled to answer the petition, which was intended to operate as a bill of discovery. He stated that the consideration of the note, on which the suit was brought, was Brandon money, which was under par at the time the note was executed, and that there was no one by whom he could prove the consideration besides Hamblin. He stated that Hamblin resided in the county.

The Circuit Court refused to grant the prayer of the petition, and the cause was tried without the benefit of the discovery. A judgment was rendered against the defendant, the present plaintiff in error, who brought the cause to this Court.

We can see no good reason for refusing the application. The petition complied with all the requisites of the statute, and disclosed a material defence, if it could be sustained by the discovery sought. If the note were given for Brandon money, then at a discount, a recovery for its full nominal amount was not lawful.

It is objected that the application was addressed to the discretion of the Court, and that the exercise of that discretion cannot be made matter for an appeal or writ of error. The answer is, that the statute in this instance lays down a directly different rule, and provides that the order may be reviewed in the Appellate Court. How. & Hutch. 607.

For this error, the judgment will be reversed, and a new trial granted.  