court.

a bill of discovery, but the kind of bill usually distinguished by that title is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writings or other things in his custody or power, and seeking no relief in consequence of the discovery, though it may pray for a stay of proceedings at law until the discovery shall be made. It is commonly used in aid of the jurisdiction of some other Indeed, some allegation of a proceeding pending or intended seems indispensable. It is used to aid a jurisdiction which cannot compel evidence on oath. It is doubtful whether a bill for discovery will lie in aid of a suit or defense to a suit pending in a foreign court.5 Mr. Justice Story said that courts of equity will not entertain a bill for a discovery to assist a suit in another court, if the latter is of itself competent to grant the same relief, for in such a case the proper exercise of the jurisdiction should be left to the functionaries of the court where the suit is depending, and that neither will courts of equity entertain such bills in aid of a controversy pending before arbitrators, for they are not the regular tribunals authorized to

42 Barbour, Ch. Pr. 101; Story, Eq. Pl. § 311; Buckner v. Ferguson, 44 Miss. 677; Brown v. Swann, 10 Pet. (U. S.) 497; Metler v. Metler's Adm'rs, 19 N. J. Eq. 457. "In Townsend v. Lawrence, 9 Wend. (N. Y.) 458, the court said: 'According to the principle and practice of the court of chancery, a bill called a "bill of discovery" may be filed for the discovery of facts in the knowledge of the adverse party, or of deeds or writings or other things in his custody or power, and is usually employed to enable the complainant to prosecute or defend an action. 1 Maddock, Ch. Pr. 160; [Montague v. Dudman] 2 Ves. Sr. 398. And if deeds, letters, or other writings are referred to in an answer, the same will, on the plaintiff's motion, be ordered to be left with an officer of the court for the inspection of the complainant or his counsel. 2 Maddock, Ch. Pr. 299; [Bettison v. Farringdon] 3 P. Wms. 364; [Taylor v. Milner] 11 Ves. 42; [Atkyns v. Wright] 14 Ves. 214.'" Arnold v. Pawtuxet Valley Water Co., 18 R. I. 189, 26 Atl. 55.

That it will not, see

Story, Eq. Pl. § 311; 2 Barbour, Ch. Pr. 102. Bent v. Young, 9 Sim. 180. Contra, Mitchell v. Smith, 1 Paige (N. Y.) 287, citing Cooper, Eq. Pl. 191; 1 Maddock, Ch. Pr. 191. See Dunn v. Coates, 1 Atk. 288.

administer justice, and, being judges of the parties' own choice, they must submit to the inconvenience incidental thereto."

§ 805. Distinction between bill of discovery and bill for discovery and relief.

There is a distinction between a bill filed for discovery merely and a bill filed for discovery and relief. The former

2 Story, Eq. Jur. § 1495, citing Cooper, Eq. Pl. 192; Street v. Rigby, 6 Ves. 821; Story, Eq. Pl. §§ 554, 555; Mitford, Eq. Pl. 186, 187. See Gelston v. Hoyt, 1 Johns. Ch. (N. Y.) 547, 548, where Chancellor Kent held that, if a bill seeks discovery in aid of the jurisdiction of a court at law, if the court of law can compel discovery, a court of equity will not interfere. But see Marsh v. Davison, 9 Paige (N. Y.) 580, where it appears that the doctrine is not correct as to mere bills of discovery, but at most applies only where the bill is for discovery and relief, the court saying: "It is not necessary, in a mere bill of discovery, for the complainant to aver that he cannot otherwise establish his defense at law; and the headnote to the contrary in the case of Leggett v. Postley, 2 Paige (N. Y.) 599, is not warranted by the opinion of the court in that respect. By referring to the case itself, it will be seen that the court made the distinction between a mere bill of discovery and a bill in which the complainant asks for relief in this court upon the ground that he has been compelled to come here for discovery. In the first case, to sustain a bill of discovery in aid of a defense at law, the complainant must show that the discovery sought is material to his defense at law; not that it is absolutely necessary. But where the complainant seeks to give jurisdiction to this court to grant relief, upon the ground that a discovery was necessary, and that this court, having gained jurisdiction of the cause for that purpose, will retain it for the purpose of doing complete justice between the parties, he must not only show that the discovery is material to his defense in the suit at law, but must also allege affirmatively that he cannot establish such defense at law without the aid of the discovery sought. And in such a case, if the bill does not show that the discovery is necessary, as well as material and cotvenient, the defendant may demur to the relief sought by such bill. Under the decision of our court of dernier ressort in the case of Laight v. Morgan, 1 Johns. Cas. (N. Y.) 429, and the subsequent decisions in the court of chancery here, the defendant must answer and make the discovery sought, although he demurs to the relief. A similar averment of the necessity of a discovery in aid of the defense at law must be made and sworn to where the complainant in a bill of discovery asks for an injunction to stay the defendant's proceedings there until he has answered the bill." That the statement in 2

A bill of dis

is ancillary to a trial at law or in equity. The latter, although a bill of discovery, withdraws the case from the legal forum, and brings it for a decision before a court of equity. covery, properly so called, never prays any relief. "If a bill, therefore, which is maintainable in equity solely as a bill for discovery, should contain a prayer for relief also, it will, in England, be open to a demurrer to the whole bill, and the party will not be allowed to maintain his bill for the discovery only, for he is bound to shape his bill according to what he has a right to pray; but the defendant may nevertheless, if he chooses, demur to the relief only, and answer as to the discovery sought, and if a bill of discovery is filed manifestly in aid of a defense at law, and a prayer for equitable relief is added, the defendant is not bound to give any discovery beyond what is incidental to that relief, for, by mixing up the right to a discovery in aid of a defense at law with the equitable relief, he would get the discovery designed to aid the defense, without paying the costs in ordinary

Story, Eq. Jur. § 1495, was applicable to bills for discovery and relief, is apparent from Story, Eq. Pl. § 319, notes. See, also, Bell v. Pomeroy, 4 McLean, 57, Fed. Cas. No. 1,263, pointing out the distinction in the two classes of cases.

7 Bell v. Pomeroy, 4 McLean, 57, Fed. Cas. No. 1 263. "A bill of discovery,' says Lord Hardwicke, 'lies here in aid of some proceeding in this court in order to deliver the party from the necessity of procuring evidence, or to aid the proceedings in some suit relative to a civil right in a court of common law. Mr. Wigram says that the division of bills into bills of discovery and bills for relief suggests a distinction which, in principle, does not exist. Wigram, Disc. 5, 6. The only distinction between the two is that, in a bill for relief, the discovery and relief is sought by one and the same bill, whereas, in a bill for discovery merely, discovery only is sought in aid of some other proceeding at law or in equity by or against the plaintiff. The discovery, in either case, is for the purpose of enabling the party asking it to obtain evidence material to a case about to come on for trial. One of the rules laid down as to discovery is 'that the right of the plaintiff to the discovery is limited to a discovery of such material facts as relate to the plaintiff's case.' Wigram, Disc. 15. So that, unless the discovery sought is to be in aid of some proceeding for relief, either in the bill itself or in some other bill or suit at law, it will be denied." De Wolf v. De Wolf, 4 R. I. 450.

cases allowed upon a mere bill of discovery."8 Whenever the jurisdiction of a court of equity is mainly founded on the right to a discovery, and the party goes on to seek relief, the bill must

8 Story, Eq. Pl. § 312. See King v. Heming, 9 Sim. 59; Desborough v. Curlewis, 3 Younge & C. 175. Where a bill is for discovery and relief, there is a difference of opinion concerning the right of the defendant to demur to the discovery alone, and not to the relief. In England it is held that there could not be a demurrer to the discovery only, and not to the relief. Story, Eq. Pl. § 312; Morgan v. Harris, 2 Brown Ch. 121; Currier v. Concord R. Corp., 48 N. H. 321. In cases where the bill shows good title to relief, but the defendant is not bound to make discovery for the reason that his answer may expose him to penalties, or tend to incriminate, it is said to be well settled in the American courts that he may demur to the discovery, or so much of it as he cannot make without so exposing himself, provided it is apparent on the face of the bill that the discovery will be attended with that effect, and, if it does not so appear, he may protect himself by plea. Currier v. Concord R. Corp., 48 N. H. 321. "If the discovery is strictly incidental to the relief, as in some cases it may be, so that discovery cannot be had unless the title to the relief be shown, then, if the title to relief is defeated, the whole bill must fail; but if the bill makes a case entitling the plaintiff to discovery independent of relief in that suit, as, for example, in aid of a suit at law, we perceive no good reason for holding that a demurrer to the whole bill will lie because there is a prayer for relief; and so it was formerly held in England upon the ground that a party was not to be prejudiced for having asked too much." Currier v. Concord R. Corp., 48 N. H. 321; Story, Eq. Pl. § 312, note 2; Brandon v. Sands, 2 Ves. Jr. 514; Sutton v. Scarborough, 9 Ves. 75; Attorney General v. Brown, 1 Swanst. 294; Mitford, Eq. Pl. 183, 184. In Livingston's Ex'rs v. Livingston, 4 Johns. Ch. (N. Y.) 294, Chancellor Kent laid it down as the law of New York that, if a bill for discovery and relief be good for discovery, a general demurrer to the whole bill was bad, which, he says, conforms to the ancient English practice. So, also, to the same effect, Kimberly v. Sells, 3 Johns. Ch. (N. Y.) 467. In Livingston v. Story, 9 Pet. (U. S.) 632, it is held that, if any part of a bill is good, and entitles the complainant either to relief or discovery, a demurrer to the whole bill cannot be sustained. And it is laid down as an established and universal rule that, if a bill for discovery and relief contains proper matter for the one and not for the other, the defendant should answer the proper, and demur to the improper, matter. If he demurs to the whole bill, the demurrer must be overruled. See, also, Wright v. Dame, 1 Metc. (Mass.) 237, where the demurrer to the whole bill was overruled, and a demurrer ore tenus to the relief was allowed, and the defendant required to answer

contain allegations sufficient to entitle the court to retain the bill for relief if the discovery should be effectual; otherwise it wil! be demurrable."

to the discovery. Currier v. Concord R. Corp., 48 N. H. 321. In Dummer v. Corporation of Chippenham, 14 Ves. 245, a demurrer was overruled, and, in giving his opinion, Lord Eldon said that these persons may by answer discover part, and may insist, either in that mode or by demurrer, that they are not bound to discover other matters: but the complainant may have a chance of proving them, and might make a case for relief. Currier v. Concord R. Corp., 48 N. H. 321. "We adopt the old rule of pleading in equity that, on a general demurrer to the whole bill, if there is any part, either as to the relief or discovery, to which the defendant ought to put in an answer, the demurrer, being entire, ought to be overruled. 1 Harrison, Ch. Pr. (7th Ed.) 414; Higinbotham v. Burnet, 5 Johns. Ch. (N. Y.) 186. This was the practice formerly adopted in England, and at present continued in New York. Story, Eq. Pl. 253, 254, note. The defendant should answer as to the discovery, and demur as to the relief. Laight v. Morgan, 1 Johns. Cas. (N. Y.) 434. The demurrer of record is therefore overruled. But the defendant now demurs ore tenus to the prayer for relief, and that demurrer is allowed, but without costs." Wright v. Dame, 1 Metc. (Mass.) 237. "In many cases of bills for discovery and relief the defendant may demur to the dis covery alone, and the demurrer will not extend to preclude the plaintiff from having the relief asked for, if he can establish his right to it by other means than a discovery from the defendant himself. as when there is something in the defendant's situation which ren ders it improper for a court of equity to compel a discovery, for the reason that it may expose the defendant to pains and penalties, or subject him to some forfeiture, or something in the nature of a for feiture, or may lead to the violation of professional confidence. 1 Daniell, Ch. Pl. & Pr. 625-627; Story, Eq. Pl. §§ 547, 605; Livingston v. Harris, 3 Paige (N. Y.) 528, 537; Brownell v. Curtis, 10 Paige (N. Y.) 210, 214." Currier v. Concord R. Corp., 48 N. H. 321. To a bill for relief and discovery in aid of the relief sought, a demurrer is not sustainable exclusively to so much of the bill as seeks discovery, except where the discovery would subject the defendant to a penalty. or it is immaterial or impertinent, or involves a breach of confidence held inviolate by law, or appertains exclusively to defendant's title. Wistar v. McManes, 54 Pa. 318. See Mitford, Eq. Pl. 184; Brightly, Eq. Jur. § 616.

Story, Eq. Pl. § 313; Mitford, Eq. Pl. 124, 125; Walmsley v. Child, 1 Ves. Sr. 341; Whitfield v. Fausset, 1 Ves. Sr. 392. A bill for dis covery and relief, in which no case is made for relief, cannot be main tained as a bill of discovery. Courter v. Crescent Sewing Machine Co.