737 Newlin v. Adair (Del. Super.) New Jersey State Hospital at Trenton, Murray v. McDonald (Pa.).. Murray Bros. Co. v. Aroostook Val. R. Co. (Me.) Nashua Mfg. Co., Hurlburt v. (N. H.)... National Sugar Refining Co. of New Jersey, Tooker v. (N. J. Ch.). Negley, Appeal of (Pa.). .1093 457 Philadelphia Casualty Co., Poe v. (Md.)..476 Philadelphia Electric Co., Trout v. (Pa.) 967 Philadelphia Rapid Transit Co., Ervin v. (Pa.) 41 10 Philadelphia Rapid Transit Co., Rist v. 918 (Pa.) Nehring v. Connecticut Co. (Conn.)...301, 524 Philadelphia Rapid Transit Co., Severino Nelson, Conroy's Adm'x v. (Vt.). 966 687 v. (Pa.) 694 711 Philadelphia Rapid Transit Co., Snowden v. (Pa.) 591 .1028 Newman v. Shreve (Pa.) 435 Philadelphia Rapid Transit Co., Wright v. (Pa.) 669 New York, C. & St. L. R. Co., Fritz v. (Pa.) 786 New York, C. & St. L. R. Co., Rheingans v. (Pa.)' 913 New York, N. H. & H. R. Co., City of 114 New York, N. H. & H. R. Co., Clara Turner Co. v. (Conn.) Philadelphia & R. R. Co., Kehoe v. (Pa.) 406 298 (Pa.) 576 New York, N. H. & H. R. Co., Hammond Phillips, Collins v. (Pa.) 854 V. (Conn.) 298 New York & B. Transp. Line v. Lewis Baer & Co. (Md.). Phillips, Fidelity & Deposit Co. of Maryland v. (Pa.) 432 Niantic Menhaden Oil & Guano Co., Luce v. (Conn.) Pierce, Petition of (Me.).. .... .1070 521 Pierce v. Root (Conn.). 295 Nolan v. Reading (Pa.). 390 Norfolk & W. R. Co. v. Langdon (Md.)... Pilling v. Benson (R. I.). .1005 473 Pine Tree State Mut. Fire Ins. Co., Guptill 358 v. (Me.) .... 529 North Shore R. Co. v. Pennsylvania Co. Piper, Green v. (N. J. Ch.) 194 (Pa.) 402 Northwest Townsite Co., De Forest v. (Pa.) Pittsburg Forge & Iron Co. v. Safe Deposit & Trust Co. of Baltimore (Md.).. 335 674 Novak v. Kurcon (Conn.) Place, Bates-Street Shirt Co. v. (N. H.) 47 88 Placide v. Wilmer (Md.).. 491 Oak Grove Water Co. v. Thompson (Pa.).. 502 935 Poe v. Philadelphia Casualty Co. (Md.). 476 683 Polidoro v. Victoria Mills (R. I.). 739 262 Popick, State v. (N. J. Sup.). ..1061 Odlin, Stevens v. (Me.) 899 Oldewurtel v. William F. Bevan & Co. (Md.) Portland R. Co., Masterman v. (Me.) .1077 66 ler (Md.).. ..... 554 Poultney v. Emerson (Md.) 53 O'Loughlin, Gardner v. (N. H.). 935 O'Neil v. Jamieson (Pa.). Pownall, Matthaei v. (Pa.). 444 911 Price v. Patterson (N.` J.)'. 419 Osgood v. United States Health & Acci Ott, Lehigh Valley Nat. Bank v. (Pa.) 507 Pressey v. McCornack (Pa.) 427 Ott v. Philadelphia (Pa.).. Oviatt, Bradley v. (Čonn.). 321 348 Pride v. Pride Lumber Co. (Me.). 989 989 894 575 807 Palmer, Board of Water Com'rs of City of Proprietors of Kingston v. Lehigh Valley 820 Palmer v. Frost (Conn.). 736 Public Service Corp. v. Westfield (N. J. .... 277 Ch.) 718 Parent, Sanfacon v. (Me.). Park, Blodgett v. (N. H.) 465 Public Service R. Co., Lerner v. (N. J. 42 Sup.) 618 939 Pursel v. Reading Iron Co. (Pa.).. 659 ... Parkesburg Iron Co., Eshleman v. (Pa.) 399 815 829 Raff v. Isman (Pa.).. 352 Patterson v. Hughes (Pa.). 831 Ramsey, Lawry v. (Me.) 268 Patterson, Price v. (N. J.). 419 Randall, Stead v. (Pa.) 662 Paul Gerli & Co. v. Mistletoe Silk Mills (N. J. Sup.).. Rankin v. Rankin (N. J. Sup.) 197 957 Penn Mut. Life Ins. Co., Grange v. (Pa.) 392 Rau, Minsinger v. (Pa.). 902 Raymond, Appeal of (Pa.). 848 141 Reading Abattoir Co., Hurst v. (Pa.). 508 510 Reading Iron Co., Pursel v. (Pa.) 659 (Pa.) 402 Reber, In re (Pa.).. 587 Pennsylvania R. Co., Baker v. (Pa.) 959 Reed v. Libby (Me.). ..1001 Pennsylvania R. Co., Smith v. (Pa.) 791 Reichner v. Trust Co. of North America Pennsylvania Stave Co., Appeal of (Pa.) .1102 60 Reilly v. Curtiss (N. J. Sup.). 199 People's Bank of Borough of Parsons, Price v. (Pa.) 790 Rheingans v. New York, C. & St. L. R. Co. 913 Pericat, Wilson v. (Pa.) 404 Rhode Island Hospital Trust Co. v. Dun Petey Mfg. Co. v. Morris (Md.). 740 332 Rhodes v. Wetherill (Pa.). 660 Verner, Colket v. (Pa.). 962 775 (Md.) .... 559 Victoria Mills, Polidoro v. (R. I.)..... 739 Zimmerman v. Cockey (Md.)................... 743 See End of Index for Tables of Atlantic Cases in State Reports THE ATLANTIC REPORTER VOLUME 84 CLARK v. SIPPLE et al. (Court of Chancery of Delaware. July 30, 1912.) 1. EQUITY (§ 53*)-ADEQUACY OF REMEDY AT LAW-DETERMINATION OF QUESTION. The question of whether there is an adequate remedy at law, so as to deprive the Court of Chancery of jurisdiction, must be considered whenever and however raised, and even on the court's own initiative. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 173-176; Dec. Dig. § 53.*] 2. WITNESSES (§ 128*) — TRANSACTION WITH DECEDENT-RULE IN EQUITY. The statutory disqualification of a mortgagor to testify to the making of payments to a deceased mortgagee applies in equity as well as at law; the rules of evidence being the same in both courts. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 553-555, 562-564, 570; Dec. Dig. 128.*] 3. DISCOVERY (§ 81*)-PRODUCTION AND INSPECTION OF WRITINGS-STATUTORY PROVI SIONS. Under the express provisions of Rev. Codé 1852, amended to 1893, p. 799, c. 107, § 13, the Superior Court has the same power as the Court of Chancery to order a party to produce books or writings for inspection. [Ed. Note.-For other cases, see Discovery, Cent. Dig. § 104; Dec. Dig. § 81.*] 4. DISCOVERY (§_80*)—PRODUCTION AND INSPECTION OF WRITINGS SUBPOENA DUCES TECUM. necessary at law, in connection with the al- [Ed. Note. For other cases, see Mortgages, Bill by Mary A. Clark against Charles D. Herbert H. Ward, of Wilmington, and THE CHANCELLOR. The bill is brought by a mortgagor against the administrators of the mortgagee, alleging that during the life of the mortgagee the debt was not only paid in full, but, by mistake of the mortgagor and through fraud of the mortgagee, overpaid; that a scire facias action had been brought on the mortgage in the Superior Court claiming the whole amount of the [Ed. Note.-For other cases, see Discovery, mortgage to be due, with interest practically Cent. Dig. §§ 103, 105; Dec. Dig. § 80.*] from the date of the mortgage; that under 5. PAYMENT (§ 89*)-RECOVERY-REMEDY. the rules of law regulating the trial and Ordinarily an action at law is the proper proof in such actions at law the payments remedy for the recovery of money paid through cannot be shown; and that the books and the mistake of a debtor or the fraud of a cred-papers of the mortgagee, in the possession The production of a document in the possession of an adverse party cannot be compelled by a subpoena duces tecum, any more in equity than at law. itor. [Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 291-296; Dec. Dig. § 89.*] & MORTGAGES (§ 413*)-PROSECUTION OF SUIT -REMEDY AT LAW. In a suit to enjoin a scire facias action on a mortgage, the mortgagor alleged that. through his mistake and the fraud of the mortgagee, the mortgage had been overpaid, and asked an accounting and the discovery of books and papers of the mortgagee, which he claimed would show such payments. Held that, although some of the relief sought could be obtained at law as well as in equity, the fact that a separate action to recover the overpayments would be of the administrators, contain material evi- [1] In substance the answer denies the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes In the case of Sparks v. Farmers' Bank, 3 Del. Ch. 225, the complainant, after answer, obtained an order requiring the defendant to produce books, etc., for inspection of the complainant, and the form of the order is given in the report of the case. By Chancery Rule 24, a similar remedy is given to the defendant, without resorting to a crossbill for discovery. A similar procedure prevails in the Superior Court under the Code provision. 1 Woolley on Prac. § 580. troducing any evidence in the action at law | same kind of process for obtaining and prowhich could be made or introduced if testi-ducing before the court evidence to sustain mony was taken in the Court of Chancery; and prove the facts she here relies on, as she and that the books, etc., of the deceased con- could in this court. Rev. Code, c. 107, § 13, tain no entry, note or memorandum of any as amended in 1895, p. 799. kind of any payments on account of the bond or mortgage, and no evidence of any kind as to any payment for or on account of the principal or interest of the debt. It is further alleged that the complainant is not entitled to any equitable relief, and ask the same benefit of this defense as if there had been a demurrer to the bill. But the answer, irregularly perhaps, but actually, questions the jurisdiction of the court on the general ground that there is a full, adequate and complete remedy at law, or as the statute expresses, a "sufficient" remedy. As the court must always consider, whenever and however raised, and even on its own initiative, its right to adjudicate a cause, and does so preferably in limine, the question of jurisdiction has been considered without having been thoroughly argued. This question will be considered as though raised by demurrer or plea, admitting the facts well pleaded in the bill. A rule for a preliminary injunction was issued and at the hearing thereof affidavits were submitted, and those of Mary Grantland and Robert J. Clark throw some light on the probability that some payments were in fact made by the mortgagor to the mortgagee, the amounts so paid not being stated. Independent of the question of jurisdiction, the affidavits of the complainant make such a showing as entitles her to the relief of a temporary injunction, notwithstanding the answer and the supporting affidavits made by the two defendants. [2, 3] Preliminarily it should be observed that any statutory disqualification of the mortgagor to testify to the making of payments to the mortgagee in his lifetime applies alike to suits at law and in equity, and the other difficulties of the complainant as to making proof of the facts alleged exist in both courts alike, for in substance the rules of evidence are the same in these courts. If the memoranda kept by the mortgagor of the payments are not admissible in the pending suit at law, they would not be in this court. So, too, the mortgagor could obtain in the court of law the relief sought here. Proof of payments would constitute a defense in the action of scire facias and entitle her to a judgment against foreclosure. It is agreed that she could not in that suit obtain a judgment against the administrators of the mortgagee to recover the amount overpaid, and that an action of assumpsit by her against the administrators of the mortgagee would be proper and necessary for this purpose. Two suits are, therefore, necessary to give her at law all the relief she here seeks. It is clear that in each of said [4] For the complainant it was urged that in Chancery the complainant could by subpœna duces tecum obtain production before an examiner of the books, etc., of the mortgagee, with ampler opportunity to inspect them than if so produced at law. But in this there is a mistake. The production of a document in the possession of the adverse party cannot be compelled under a subpoena duces tecum in equity more than it can at law. Campbell v. Johnston, 3 Del. Ch. 94, 97. [5] The defendants say that the bill is not sustainable as a bill for an accounting, because there is no relationship established between the mortgagor and the administrators of the mortgagee, other than that of debtor and creditor, and there is no such complication in the dealings between the parties as would uphold such a suit. This is probably a correct view. Ordinarily an action at law would be the proper remedy for the recovery of money paid by mistake on the part of the debtor, or through fraud of the creditor, and in this case would be adequate for the complainant to recover the amount overpaid to the mortgagee. Such a [6] Does this court have jurisdiction because two suits are necessary to give to the complainant the full relief to which she is entitled if the allegations of the bill are true? If the suit at law upon the mortgage had not been begun, this court might rightly take jurisdiction on that ground. bill would be in the nature of a bill of peace. Authority for this would be found in Murphy v. Wilmington, 6 Houst. 108, 140 (22 Am. St. Rep. 345), a case in the Court of Errors and Appeals. "Bills of peace have been sustained by the court to settle the rights of parties in a single suit, in cases where the questions to be determined were questions of fact, or mixed questions of law and fact." So also if that suit had not been begun and the bill had been one for discovery, in aid of a proceeding to obtain the entry of satisfaction on the record of the mortgage, and in aid of an action of assumpsit to recover back the overpayment, or for any other cause the jurisdiction of this |