#### James W. Primer, Appellant, v. Price J. Patten et al., Appellees.

APPEAL FROM MARION.

It is not error in the Circuit Court to proceed to try a suit at law, although a bill of discovery has been filed to obtain the testimony of the plaintiff; especially where the application has not been granted.

This was an action of assumpsit by Price J. Patten and Company against Primer, upon an indorsed note given by him to one Lasater, and by Lasater indorsed to Patten & Co. Primer pleaded the general issue, and failure of consideration. At March term, 1861, of the Marion Circuit *468Court, Omelveney, Judge, presiding, on the day of the trial of said cause, Primer filed a bill of discovery, etc., and asked to have the suit enjoined; but the court proceeded to the trial of the suit at law, and Patten & Co. recovered a judgment for the amount of the note. Primer appealed, and assigns among other errors, that the Circuit Court erred in overruling his motion to file a bill of discovery.

Willard & Stoker, for Appellant.

S. L. Bryan, for Appellee.

Caton, C. J.

The error relied upon arises not upon this record, but upon one on the chancery side of the court. The complaint is* that the court refused to require the plaintiff in this cause in the court below, to answer the bill of discovery, and proceeded to the trial of the cause. Assuming that the bill made a case, which should have required the defendant to answer it, then the court of chancery should have enjoined him from proceeding to the trial of the action at law till he had answered the bill of discovery. Even had that been done, and the plaintiff in this action had proceeded to trial in violation of the injunction, it by no means follows, that the decision of the court permitting him to do so could have been assigned for error here. But be that as it may, certainly it was not error in the court of law to proceed to the trial when there was no such impediment,—when the court of chancery, to whom the party applied to search the conscience of the plaintiff below, had said there were no grounds for the discovery and no reason why the trial should be delayed. That bill for a discovery is not properly before ns, and we have not looked into it. Although a copy of it was made by the clerk and sent up to us, still it constitutes no part of this record, any more than would a declaration in ejectment in a cause between other parties. We have no alternative but to affirm the judgment, which is accordingly done.

Judgment affirmed.