The objection that the complainant shows by his bill that a discovery is not necessary, as he can prove, by the testimony of Colvin, all that he seeks to discover, is wholly untenable. Whether a court of law will compel the real plaintiff in the suit to give testimony in favor of the adverse party, appears at least doubtful, since the decision of the supreme court, in the case of Mauran v. Lamb, (7 Cowen's Rep. 174.) But it is not necessary to examine that question here. It is expressly charged in the bill, and that too upon the oath of the complainant, that he has no means of showing and proving the material and necessary facts in his defence to the suit on the note, without the aid of a discovery from the defendant Redfield. And'lbis allegation in the bill being admitted by the demurrer to be true, unless contradicted by other facts stated in the bill, we may reasonably presume that there was some legal difficulty in the way of using Colvin as a witness; or that the complainant believed he would not testify truly as to the facts within his knowledge, if called as a witness in the suit at law.
The 37th section of the article of the revised statutes relative to the general powers, duties and jurisdiction of this court, (2 R. S. 173,) makes it the duty of the court to dismiss every suit concerning property where the matter in dispute, exclusive of costs, does not exceed the value of $100. A mere bill of discovery, in aid of the defence to an action at law, cannot properly be called a suit in this court concerning property. And the vice chancellor of the first circuit, in the case of Gol*247dey v. Becker, (1 Edw. Ch. Rep, 271,) accordingly held, that this provision of the statute did not apply to such a bill. That decision has been followed by the vice chancellor of the seventh circuit in the present case; and upon a careful examination of the statute, I have arrived at the conclusion that these decisions are right. The legislature having declared betting, as well as other gaming, unlawful, and authorized the loser to recover back his money, or other property, from the winner, or the stake holder, this court should not unnecessarily give such a construction to the 37tli section of the revised statutes, fixing the minimum of suits concerning property in this court, as to render the statutory provisions against betting and gambling nugatory. And they will be nugatory, to the extent of $100 at least, if the winner, by the simple device of taking negotiable notes and suing them in the name of the only witness to the transaction, or in the name of himself and of such witness jointly, can preclude the possibility of a defence. There is no danger that bills of discovery will be filed uselessly, or for trivial matters, as the complainant must always pay his own costs. And he is also liable for the defendant’s costs, unless he has distinctly asked for the discovery before the filing of his bill, and all the facts charged in the bill are admitted by the answer.
I do not agree with the vice chancellor, in the opinion expressed in the present case, that a demurrer will not lie to a bill which seeks both a discovery and relief in this court, if it appears, upon the face of the bill, that the amount in controversy is less that $100. By introducing a .prayer for relief, the complainant makes it a suit in this court concerning property, and if the value of the demand or property in controversy is less than $100, the statute is imperative that this court shall dismiss such suit with costs to the defendant. The principle of the case of Higinbotham v. Burnet, (5 John. Ch. Rep. 284,) is not applicable to the case of a bill which comes within the 37th section above referred to. In such cases a general demurrer will lie, both as to the discovery and the relief, where the fact that the value of the matter in dispute does not exceed $100 appears from the bill itself.
*248I do not think, however, that the mistake in the prayer of process, made the bill in this case a bill for relief. The prayer for relief usually precedes the prayer for process; and no repef cau ]3e granted upon the ordinary conclusion of the prayer for subpoena, it is nothing more than a prayer for a subpoena to compel the defendant to appear and answer the bill, and abide the decision or determination of the court in such bill. And there is very little difference in the effect of the expression “ to abide the further order and direction of the court,” as used in a tiiere bill of discovery, or “ to abide the further order and decree of the court,” which usually follow's the prayer of process, when either particular or general relief has previously been prayed in the proper form. The imperfect report of the case of Rose v. Gannel, (3 Atk. Rep. 433,) appears to have , misled others as well as the vice chancellor. But it appears, by reference to the register’s book, that in the end Lord Hard-wick made the proper decision in that case, and gave costs as upon a bill of discovery. And in Hodgins v. Scott, (2 Moll Ch. Rep. 436,) Sir Anthony Hart held that the character of a bill of discovery was not altered, even by the addition to the prayer of process “ such other relief as your suppliant may be entitled to,” where no relief was prayed in the usual form,, and the bill in other respects was a mere bill of discovery. So also, in the recent case of Angell v. Westcombe, (6 Sim. R. 30,) the vice chancellor, Sir Lancelot Sliadwell, said that the prayer for general relief was inserted by counsel, and if found in a bill w'hich, in other respects, sought a discovery only, it converted the bill into a bill for relief. But that the words, in the prayer of process: “ To stand to and abide such order and decree, &c.” were supposed to be inserted by the clerk, and therefore did not make it a bill for relief.
The decretal order of the vice chancellor is affirmed, with easts,