Page:Federal Reporter, 1st Series, Volume 2.djvu/29

 22 FEDERAL REPORTER. �case is stated in the bill as entitles the plaintiff to the dis- covery. �This demurrer is open to the same objection in matter of form as the first demurrer, and to this further objection, that it is not based upon what appears in the bill, but refers to aver- ments in the answer for the purpose of defining the part of the bill demurred to. This is objected to as a fatal defect in the demurrer, and I think the objection is well taken. It violates the rule that a demurrer "relies merely upon matter apparent on the face of the bill." (Mitf. Eq. PI. 249.) It also leaves the parts demurred to uncertain. But upon the merits I think the plaintiff is entitled to the discovery sought, and that the objection made to the bill, that the fraud alleged is not averred with suËScient certainty, is not well taken. �The thirteenth demurrer is to the discovery sought by the eleventh interrogatory as to the books and accounts of the "Mississippi Central Eailroad Company." The grounds of demurrer are that that company bas no interest in the cause ;. that the discovery isnot material to the relief prayedfor; and that the plaintifif bas not stated such a case as entitles it to such discovery. The fourteenth demurrer is to the twelfth interrogatory, which seeks similar discovery as to the books and accounts of the "Southern Eailroad Association." The same grounds of demurrer are alleged. The bill alleges, on information and belief, that the books of both said corpora- tions are in the possession and under the control of. the de- fendant Macomb, who is also alleged to be an officer of the first-named company, and the president of the second. It is alleged in the bill that these books and accounts were kept under the direction of the defendant, and contain very mate- rial evidence of the dealing of said companies with each other, and with this defendant and his associates, touching the redemption of the mortgage bonds, the subject-matter of the suit, and I can, see no reason why the interrogatories should not be answered. �The eighteenth demurrer is to the seventh interrogatory, which seeks discovery as to whether the defendant holds or owns the bonds held by him in his own right, or holds them ����