come it by preponderance of evidence. It was because a corporation could not make oath, and answered only under its common seal, that discovery by it had to be secured by the somewhat incongruous course of making its officers co-defendants. In special cases the chancellor would permit the complainant to waive answer on oath, but would not ordinarily compel affirmative discovery where the defendant could not have the attendant advantages. The subject came to be regulated, in some jurisdictions, by standing rule of court, and, in others, by statute. Most states now have such statutes, and the decisions on the subject in those states can only be understood when the statutes are read with them. There must also be borne in mind the difference, often lost sight of, between bills for discovery only, and bills for relief with incidental discovery.39

§ 811. Verification.

A bill for a discovery merely, or which only prays the delivery of deeds or writings or equitable relief grounded on them, does not require an affidavit.40 A bill seeking a discovery of deeds or writings sometimes prays relief founded on the deeds or writings of which the discovery is sought. If the relief so prayed is such as might be obtained at law, if the deeds or writings were in the custody of the plaintiff, he must,

no other relief than what may properly be given upon a mere bill of discovery, it is not very easy to say." Story, Eq. Pl. § 316. See Baker v. Bramah, 7 Sim. 17; Vaughan v. Fitzgerald, 1 Schoales & L. 316; Rose v. Gannel, 3 Atk. 439; Ambury v. Jones, Younge, 199; Schroeppel v. Redfield, 5 Paige (N. Y.) 245; McIntyre v. Trustees of Union College, 6 Paige (N. Y.) 242.

39 Manley v. Mickle, 55 N. J. Eq. 563, 37 Atl. 738. See, on this point, Congdon v. Aylsworth, 16 R. I. 281, 18 Atl. 247; Word v. Peck, 114 Mass. 121; Badger v. McNamara, 123 Mass. 117; McCulla v. Beadleston 17 R. I. 20, 20 Atl. 11; Huntington v. Saunders, 120 U. S. 78; McClana han v. Davis, 8 How. (U. S.) 170; Metler v. Metler's Adm'rs, 19 N. J Eq. 457; Uhlmann v. Arnholt & Schaeffer Brewing Co., 41 Fed. 369; Payne v. Berry, 3 Tenn. Ch. 154.

40 Cooper, Eq. Pl. 61; 2 Barbour, Ch. Pr. 106; Buckner v. Ferguson 44 Miss. 677; McElwee v. Sutton, 1 Hill Eq. (S. C.) 32, citing Cooper Eq. Pl. 61; Parson's Adm'r v. Wilson, 2 Overt. (Tenn.) 260.

by the English practice, annex to his bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defendants.41 When, from any cause, discovery is necessary in aid of contentions purely legal, and the relief sought is in its nature purely legal, a bill for discovery must be sworn to, or a demurrer will lie. 42

§ 812. Amending bill.

It has been held that courts will not allow a bill of discovery to be amended by adding parties as complainants.43 It is stated to have been formerly a frequent practice to frame a bill for discovery only, in the first instance, and, after it was obtained, to amend the bill, in order to try the title to relief, but that this practice has been discontinued, and that the allowance of an amendment only applies in cases where the equity of the com

41 2 Barbour, Ch. Pr. 106; Parson's Adm'r v. Wilson, 2 Overt. (Tenn.) 260; Livingston's Ex'rs v. Livingston, 4 Johns. Ch. (N. Y.) 294; Hook v. Dorman, 1 Sim. & S. 227; Buckner v. Ferguson, 44 Miss. 677; Findlay v. Hinde, 1 Pet. (U. S.) 241. See Le Roy.v. Servis, Caines Cas. (N. Y.) 1. The rule that, where resort is had to a court of equity upon the ground that the writings upon which the suit is founded have been lost or destroyed, an affidavit of such fact is necessary, does not apply to a case where the defendants are severally called upon by the bill to answer whether they executed a bond or instrument in writing or print, by which they received and became the owners of shares of stock of a corporation, and whether they received certificates of such shares or not. Holmes v. Sherwood, 16 Fed. 725.

42 Mitford &T. Pl. & Pr. in Eq. 153, note; 3 Pomeroy, Eq. Jur. § 1415; Story, Eq. Pl. §§ 288, 313, 477; Lawson v. Warren, 89 Ala. 584, 8 So. 141. But see Laight v. Morgan, 1 Johns. Cas. (N. Y.) 429; Dinsmore v. Crossman, 53 Me. 441. When the complainant seeks, in addition to the discovery, to stay proceedings in a suit pending at law he must support the allegations of the bill by an affidavit of thei. truth. Owsley v. Barbour, 4 Ind. 584, citing Appleyard v. Seton, 16 Ves. 223. It is said that if the party charged by the bill fails to demur for that cause, but answers over, or permits the bill to be taken for confessed against him by default, the absence of the affidavit is not a sufficient cause for reversal of the decree. Findlay v. Hinde, 1 Pet (U. S.) 241.

43 Cholmondeley v. Clinton, 2 Mer. 74. But see Hare, Disc. 126.

plainant has appeared upon some disclosure of the defendant, or where the answer furnishes a ground for supposing that the relief is in equity, and not at law. In other cases it will be refused. In all cases the amendment must be made the subject of a special application, and is not a motion of course.44

813. Parties to bills of discovery.

A

Infants cannot be made parties to a bill for the sake of discovery merely, as they do not answer on their own oaths.45 demurrer to a bill for discovery merely will not hold for want of parties, for the complainant seeks no decree.46 When a bill of discovery is filed in aid of an action at law, no person can be made a party to the bill of discovery who is not a party to

44 2 Barbour, Ch. Pr. 116; Mitford, Eq. Pl. 184; Hare, Disc. 23; Butterworth v. Bailey, 15 Ves. 358; Jackson v. Strong, 13 Price, 494; Hildyard v Cressy, 3 Atk. 303; Lousada v. Templer, 2 Russ. 564; Perkins v. Hendryx, 31 Fed. 522; Livingston v. Hayes, 43 Mich. 129, 5 N. W. 78. See, however, Parker v. Ford, 1 Colly. 506. A bill filed and resisted as one merely auxiliary to a case at law cannot be converted by amendment on final hearing into a suit for full and independent relief under another branch of equity. Livingston v. Hayes, 43 Mich. 129, 5 N. W. 78. "A mere bill of discovery may be so amended, after the defendant has answered, as to pray for relief in this court; and it is an established rule that, in answering even such an amended bill, the defendant must confine himself to it alone, and cannot be permitted to put in a complete answer over again; and therefore it is not only allowable, but necessary for the defendant's own safety, that he should set forth and rely upon his defense in his answer to such an original bill, lest it should be so amended as to make it necessary for him to sustain such a defense even in this court." Price v. Tyson, 3 Bland (Md.) 392; Hildyard v. Cressy, 3 Atk. 303. An amendment to a bill proposed on the final hearing with the design of introducing or substituting a new controversy in principle will generally be refused. Bills of discovery have in some cases been made bills of relief at an earlier stage of the suit. Livingston v. Hayes, 43 Mich. 129, 5 N. W. 78. Such an amendment is such a change as justifies an amendment of the answer. Perkins v. Hendryx, 31 Fed. 522.

45 2 Barbour, Ch. Pr. 116; Leggett v. Sellon, 3 Paige (N. Y.) 84. See, for doubt as to right of discovery from habitual drunkard found to be such by inquisition, New v. New, 6 Paige (N. Y.) 237; 2 Barbour, Ch. Pr. 225. Mr. Pomeroy says that lunatics without committees cannot be made parties. Pomeroy, Eq. Jur. § 199.

46 Story, Eq. Pl. § 610.

the suit at law.47 Several persons, having distinct interests, who are implicated, though in different degrees, in the connected series of acts intended to defraud the complainant, may be united as defendants in a bill by him for discovery and relief against fraud.48 Where a bill is filed to compel a discovery and conveyance of land, all persons interested in such land ought to be made parties.49

§ 814. Form of bill for discovery.

[Title of court, and address to the court.]

Humbly complaining, shows unto your honors your orator, A. D., of, etc.: That your orator now is, and for several years last past has been, seised in his demesne as of fee of, or otherwise well entitled to, all those three pieces or parcels of land, etc., and which were, in the year -, purchased by your orator from C. D., then of, etc., but since deceased, who, by certain indentures of lease and release, bearing date the day of - -, respectively, and made between the said C. D. of the one part and your orator of the other part, for the considerations therein mentioned, duly conveyed the same to your orator, his heirs and assigns forever, as by the said indenture, reference being thereunto had, will appear; and under and by virtue of such conveyance your orator entered into and upon the said premises. of which he has ever since been and now is in the actual possession, and your orator hoped to have continued in the uninterrupted enjoy.

47 Story, Eq. Pl. §§ 569, 610, note, 610a. & K. 450; Irving v. Thompson, 9 Sim. 17.

See Glyn v. Soares, 3 Mylne

48 Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139.

49 Key's Ex'rs v. Lambert, 1 Hen. & M. (Va.) 330. See, also, Broadbent v. State, 7 Md. 416; Smith v. Smith's Adm'r, 92 Va. 696, 24 S. E. 280. See for making officers of corporations parties to bills of discov ery, Colonial & United States Mortg. Co. v. Hutchinson Mortg. Co., 44 Fed. 219; McComb v. Chicago, St. L. & N. O. R. Co., 19 Blatchf 69, 7 Fed. 426; Virginia & A. Min. & Mfg. Co. v. Hale, 93 Ala. 542, 9 So. 256; Brumly v. Westchester County Mfg. Soc., 1 Johns. Ch. (N. Y.) 366; Vermilyea v. Fulton Bank, 1 Paige (N. Y.) 37; Lindsley v. James, 3 Cold. (Tenn.) 477; Buckner v. Abrahams, 3 Tenn. Ch. 346; Fulton Bank v. Sharon Canal Co., 1 Paige (N. Y.) 219. See, for making witnesses parties, supra, § 47. It is useless and improper to make the counsel of a person a party to a mere bill of discovery as to papers alleged to be in his possession, even if the matters inquired of by the bill could be properly disclosed by the counsel if called as a witness against his client. Wakeman v. Bailey, 3 Barb. Ch. (N. Y.) 482.

ment thereof. But now so it is, may it please your honors, E. D., of, etc. (the defendant hereinafter named), combining, etc. [here insert charge of confederacy as in bill set forth in section 69, supra], upon the decease of the said C. D., obtained possession of, and now has in his custody or power, all the title deeds, evidences, and writings of the said C. D., which not only relate to the said premises so purchased by your orator as aforesaid, but also to the other estates formerly belonging to the said C. D., and which, upon his death, descended to and became vested in the said E. D., his heir at law. And the said E. D. pretends that he is also entitled to the said premises so purchased by your orator as aforesaid, and that the said C. D. had no power to dispose thereof, and he has lately brought an action of ejectmert against your orator in the court in order to enforce such claim; whereas your orator charges that the said E. D. has no right or title whatever to the said premises so purchased by your orater from the said C. D. as aforesaid, but that the said C. D. had good right to sell and dispose thereof, and that his conveyance of the said premises to your orator was and is valid and effectual, and so it would appear if the said E. D. would discover and set forth the said title deeds, evidences, and writings relative thereto, so possessed by him as aforesaid. And your orator charges that there is or are some outstanding term or terms of years prior to your orator's said conveyance which will defeat your orator's title to the said premises at law, but the said E. D. refuses to discover the particulars thereof, and to set forth the said title deeds, evidences, and writings relative to the said premises so purchased by your orator as aforesaid, and threatens and intends to proceed in the said action without making such discovery as aforesaid, unless he shall be restrained therefrom by the order and injunction of this honorable court, as your orator charges he ought to be until he shall have so done. In consideration whereof, and forasmuch as your orator is remediless in the premises at common law, and cannot have a complete discovery of the said title deeds, evidences, and writings, and of the several matters aforesaid, without the aid of a court of equity, where matters of this sort are properly cognizable: To the end, etc. [Here insert interrogating part, which will be found in the form of bill set forth in section 69, supra.] And particularly that the said E. D. may discover and set forth in manner aforesaid whether your orator is not now, and has not been for several, and how many, years last past, and from what time in particular, seised in his demesne as of fee or otherwise, and how well entitled of, in, or to the said premises hereinbefore particularly mentioned and described, or some and what part thereof, or how otherwise. And whether the same were not purchased by your orator in the year -, and when in particular, of and from the said C. D. And whether the said premises were not duly conveyed to your orator by the said C. D., as by such indentures of lease and