
    
      Othniel S. Williams Ex’r &c. v. John Harden et al.
    
    E. J. Richardson, for appellant;
    O. S. Williams, for respondent.
    Liability ofEx-ecu tor for costs of a bill of discovery.
    Requisites of a bill of discovery-
    What evidence may be required by Executor ofjustness of a claim.
    When a bill of discovery in aid of a defence at law will lie.
   In this case the chancellor decided that an executor is liable for the costs upon a bill of discovery filed by him in aid of a defence at law, where it appears by the defendant’s answer that there is no fact within the knowledge of the latter which is material to the complainant’s defence at law.

That the complainant, in a bill of that nature, must state a case which will constitute a good defence to such suit.

That the statute (2 R. S. 88, § 35) specifies what evidence executors, &e., have aright to require of the justice of a claim presented against the decedent’s estate, by an alleged credit- or. That they may require satisfactory vouchers in support of the claim; that is, in the case of a note, they may require the production of the note itself, or evidence that it has been lost or accidentally destroyed, if the fact is so, and that fact is within the knowledge of a third person. And they,may also require the affidavit of the creditor that the debt claimed by him is justly due ; that no payments have been made thereon; and that there is no ofiset against the same, to the knowledge of the claimant.

That the defendant in a suit at law is not entitled to come into this court for the discovery of a mere isolated fact which may or may not be material to his defence. But that, in order to sustain a. bill of discovery, the complainant therein must show what his defence to the suit at law is ; so that this court can see that the fact of which a discovery is sought, if admitted to be as stated in the bill, may be material in the establishment of such defence.

Order appealed from reversed; with costs to be paid by the respondent, out of the estate of the testator in his hands.  