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 renders 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.

§ 806. Who may maintain a bill of discovery.

11

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. 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 Ill. 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 com

plainant'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. A bill for discovery also lies to show that the defendant is incapable of having any interest, as where he is an

17

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.1o

§ 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.2 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.

(Pa.) 373; Plum(N. Y.) 251. See Yates v. Monroe,

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. mer v. May, 1 Ves. Sr. 426; Norton v. Woods, 5 Paige Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371; 13 Ill. 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