§ 806. Who may maintain a bill of discovery.

A bill will lie by either party to an action at law to have the discovery of matter material to the claim or defense at law.10 A defendant at law may file a bill of discovery for the purpose of rebutting the evidence which is necessary to sustain the plaintiff's action. He is entitled to the discovery of evidence for the purpose of attack on the case of his adversary.11 It is held that a party is entitled to have a discovery in order to enable him to defend aright and with effect a suit which is threatened to be brought against him, or as auxiliary to the maintenance of a suit then contemplated to be brought.12 The court may stay the proceedings at law until an answer to the bill of discovery has been obtained.13

§ 807. Matters of which discovery may be had.

The complainant must be entitled to the discovery he seeks,

60 N. J. Eq. 413, 45 Atl. 609; United New Jersey Railroad & Canal Co. v. Hoppock, 28 N. J. Eq. 261; Miller v. United States Casualty Co., 61 N. J. Eq. 110, 47 Atl. 509.

10 Bartlett v. Marshall, 2 Bibb (Ky.) 467. See Wolf v. Wolf's Ex'r, 2 Har. & G. (Md.) 383.

11 Atlantic Ins. Co. v. Lunar, 1 Sandf. Ch. (N. Y.) 91; Glasscott v. Governor & Co. of Copper-Miners of England, 11 Sim. 305.

12 Parrott v. Chestertown Nat. Bank, 88 Md. 515, 41 Atl. 1067; Wolf v. Wolf's Ex'r, 2 Har. & G. (Md.) 382. But see Harris v. Galbraith, 43 I. 309, where it was held that whether a defendant in an action at law is entitled to a bill of discovery against one who is prosecuting an action at law against him cannot be determined until he has filed a plea in such action, divulging his defense. It is held that an application by a defendant, who has a common interest with the complainants adverse to that of the other defendants, for leave to examine a complainant against the other defendants, is substantially the same as if made by the complainants themselves, and such application will be denied. Eckford v. De Kay, 6 Paige (N. Y.) 565; Hewatson v. Tookey, 2 Dickens, 799; Phillips v. Bueks, 1 Vern. 230. Where the nature of the suit will admit of it, the proper course is to move to strike out the name of the nominal complainant, who is not interested, and make him a defendant, so that he may be examined as a witness to sustain the suit. Eckford v. De Kay, 6 Paige (N. Y.) 565; Lloyd v. Wingfield, 1 Hogan, 192; Motteaux v. Mackreth, 1 Ves. Jr. 142; Lloyd v. Makeam, 6 Ves. 145.

and can only have a discovery of what is necessary for his own title, as of deeds he claims under, and will not be allowed to pry into that of the defendant.14 The general rule laid down in the treatises on discovery limits it to the complainant's case, and forbids a discovery of the defendant's evidence, or of the means by which he intends to establish his case. It is, however, difficult to draw the line between what constitutes the complainant's case and what the defendant's.15 But if the complainant is entitled to the production of a deed or other document as being applicable to his case, his right to such discovery will not be affected by the circumstance that the same document is evidence of the defendant's case also.16 The defendant must, in general, have a claim or interest, as otherwise a bill for discovery does not lie; but there are exceptions to the rule in cases of collusion and gross misconduct amounting to fraud, arbitrators charged with misconduct or fraud, bills seeking to impeach deeds on the ground of fraud, and in case of bills of discovery against a corporation, where the secretary or bookkeeper or other officer, although he has no interest, may be made a party.17 A bill for discovery also lies to show that the defendant is incapable of having any interest, as where he is an

142 Barbour, Ch. Pr. 101; New Castle v. Pelham, 8 Vin. Abr. 551; Story, Eq. Pl. § 317. It is not within the scope of this work to consider the circumstances under which a bill of discovery lies. The reader is referred to 2 Story, Eq. Jur. §§ 1480-1504, and the works of Bray, Hare, and Wigram.

15 Atlantic Ins. Co. v. Lunar, 1 Sandf. Ch. (N. Y.) 91; Newkerk v. Willett, 2 Caines Cas. (N. Y.) 296; Wigram, Disc. 90, 94, 112, and cases there cited. See Hare, Disc. 210, 211; Mitford, Eq. Pl. 9; Metcalf v. Hervey, 1 Ves. Sr. 249; Glasscott v. Governor & Co. of CopperMiners of England, 11 Sim. 305; Combe v. City of London, 1 Younge & C. 631; Colls v. Stevens, 7 Jur. 54; Glyn v. Soares, 1 Younge & C. 644; Bishop of London v. Fytche, 1 Brown Ch. 96; Janson v. Solarte, 2 Younge & C. 127.

16 Bispham, Eq. § 561; Dock v. Dock (Pa.) 36 Atl. 411.

17 Story, Eq. Pl. § 323; 2 Barbour, Ch. Pr. 103; Lingood v. Croucher, 2 Atk. 395; Chicot v. Lequesne, 2 Ves. Sr. 315; Bennet v. Vade, 2 Atk. 324; Colton v. Luttrell, 1 Atk. 451; Wych v. Meal, 3 P. Wms. 310

alien.18 It must be for matters which lie only in the knowledge of the defendant, and must call for something which it is not in the complainant's power to set out in his bill.19

§ 808. From whom discovery may be had.

A bill cannot be maintained against a person who is not a party to the suit in which the discovery sought for is to be used, even though such person is the substantial party in interest in the defense of that suit.20 A bill of discovery will not lie against one who may be called as a witness on the hearing of the cause for which the discovery is sought.21 Where a corporation is made a party to a suit in which it has no interest, and to which it ought not to have been made a party, an officer of the corporation who has no personal interest in the controversy, and is not charged with any fraud or misconduct, cannot be compelled to answer matters as to which he is a mere witness.22 No discovery will be compelled where it is against

18 2 Barbour, Ch. Pr. 103; Attorney-General v. Rose, Parker, 157. 19 2 Barbour, Ch. Pr. 103; Farley v. Farley, 1 McCord Eq. (S. C.) 517; Middletown Bank v. Russ, 3 Conn. 135; Price v. James, 2 Brown Ch. 319; Collis v. Swayne, 4 Brown Ch. 480; 1 Maddock, Ch. Pr. 175; 2 Fonblanque, Eq. 394. A discovery will not be compelled where it would subject the defendant to a penalty, forfeiture, or criminal proceedings, or would be in violation of professional confidence. 2 Barbour, Ch. Pr. 103; Marsh v. Davison, 9 Paige (N. Y.) 580. 20 Burgess v. Smith, 2 Barb. Ch. (N. Y.) 276. See, however, Carter v. Jordan, 15 Ga. 76.

21 Gelston v. Hoyt, 1 Johns. Ch. (N. Y.) 543; Post v. Boardman, 10 Paige (N. Y.) 580; Twells v. Costen, 1 Pars. Eq. Cas. (Pa.) 373; Plummer v. May, 1 Ves. Sr. 426; Norton v. Woods, 5 Paige (N. Y.) 251. See Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371; Yates v. Monroe, 13 III. 212; Schmidt v. Dietericht, 1 Edw. Ch. (N. Y.) 119. A corporation aggregate is bound to answer a bill of discovery the same as a natural person, except that it puts in its answer under its corporate seal, while a natural person makes answer under oath. It is the usual practice to join the clerk or other principal officer of a corporation aggregate as a party to the bill of discovery. Indianapolis Gas Co. v. City of Indianapolis, 90 Fed. 196. As to the joinder of corporate officers for the purpose of obtaining a discovery, see supra, § 47.

22 Ellsworth v. Curtis, 10 Paige (N. Y.) 105; How v. Best, 5 Madd. 19. See, for maintenance of bill of discovery against a corporation

the policy of the law from the particular relation of the parties. Thus, in the absence of statutory changes, for instance, if a bill of discovery is filed against a married woman to compel her to disclose facts which may charge her husband, it will be dismissed, for a married woman is not permitted to be a witness for or against her husband in controversies with third parties. Upon the same ground, a person standing in the relation of professional confidence to another, as his counsel or attorney, will not be compelled to disclose the secrets of his client.23

§ 809. Frame of bill.

The bill must state the matter concerning which a discovery is sought, the interests of the several parties in the subject, and the complainant's right to the discovery asked.24 It should show that the complainant has a title and interest, and what that title and interest are, in the subject-matter respecting which discovery is sought, for a mere stranger cannot maintain a bill for the discovery of another's title. The title and interest must be shown to be present and vested. A complete title or interest, though it is or may be litigated, is sufficient.25 It must clearly show that it is brought by persons and for ob

and its officers, Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec, 371; Glasscott v. Governor & Co. of Copper-Miners of England, 11 Sim. 305. 23 2 Story, Eq. Jur. § 1496. "Lord Redesdale (Mitford; Eq. Pl. 288) says: 'If a bill seeks a discovery of a fact from one whose knowl edge of the fact was derived from the confidence reposed in him as counsel, attorney, or arbitrator, he may plead in bar of the discovery that his knowledge of the facts was so obtained.' Mr. Cooper (Eq. Pl. c. 5, p. 300) adopts similar language: 'In the cases referred to by Lord Redesdale, I do not find arbitrators mentioned, nor do I find that arbitrators are exempted from disclosing facts which have been stated before them, but only from stating the grounds of their award.'” 2 Story, Eq. Jur. § 1496.

24 2 Barbour, Ch. Pr. 104.

25 2 Barbour, Ch. Pr. 104; Story, Eq. Pl. § 318; Mitford, Eq. Pl. 154157; Cooper, Eq. Pl. 58; Young v. Colt, 2 Blatchf. 373, Fed. Cas. No. 18,155; Pease v. Pease, 8 Metc. (Mass.) 395; Sackville v. Ayleworth, 1 Vern. 105.

jects and under circumstances entitling it to be maintained by the court. One of the fundamental rules of this branch of equity jurisprudence is that the complainant is entitled only to a discovery of what is necessary to maintain his own title, as, for example, of deeds under which he claims; but he is not entitled to have a discovery of the title of the other party, from whom he seeks the discovery. Hence it may be stated, as a general rule, that the bill must show such a case as renders the discovery material to the complainant in the bill, to support or defend a suit.26 If it seeks the discovery of deeds and accounts, it must also describe them with reasonable certainty. Therefore, where a bill stated generally that, under some deeds of settlement in the custody of the defendant, the complainant was entitled to some estates, either in fee or absolutely, or as tenant for life, or in tail in possession, or in some other manner, as by the deeds in the custody or power of the defendant would appear, and prayed a discovery thereof, upon demurrer, the bill was held bad for vagueness and uncertainty, and was treated as a mere fishing bill.27 The bill, too, must not only show an interest in the complainant in the subject-matter to which the required discovery relates, and such an interest as entitles him to call on the defendant for the discovery, but it must also state a case which will constitute a just ground for a suit or a defense at law. The object of the court in compelling a discovery is to enable some other court to decide on matters in dispute between the parties, the discovery of which is material. If the bill does not show such a case, it is plainly not a case for the interposition of the court.28 The bill must generally show that the defendant has some interest in the subject-matter of the discovery. If he is a mere witness, the bill cannot ordinarily be maintained against him. It is not always

26 Story, Eq. Pl. § 317; 2 Barbour, Ch. Pr. 104; Cooper, Eq. Pl. 58; Mitford, Eq. Pl. 190, 191.

27 Story, Eq. Pl. § 320; Ryves v. Ryves, 3 Ves. 343.

28 Story, Eq. Pl. § 319; 2 Barbour, Ch. Pr. 104; Cooper, Eq. Pl. 60; Welford, Eq. Pl. 119; Hare, Disc. 11, 43, 110.