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. See Glyn v. Soares, 3 Mylne & K. 450; Irving v. Thompson, 9 Sim. 17.

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 discovery, 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 en

force 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 orator 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 herein. before 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

release of such date, respectively, as aforesaid, or by some and what other means in particular. And whether your orator did not, under and by virtue of such conveyance to him by the said C. D., enter into and upon, and has not ever since been in the actual possession and enjoyment of, the said premises, or how otherwise. And whether the said C. D. has not since departed this life, and when. And whether the said E. D. did not, upon the decease of said C. D., and by what means, obtain possession of, and has not now in his custody, possession, or power, all or most or some, and which, of the title deeds, evidences, and writings of the said C. D. relating to the premises so purchased by your orator as aforesaid. And whether the same do not relate to some, and what, other estates, or how otherwise. And that the said E. D. may set forth a list or schedule of all title deeds, evidences, and writings relating to the said premises so purchased by your orator as aforesaid, and may leave the same in the hands of the clerk of this honorable court for the inspection of your orator, with liberty for your orator, his solicitor or agents, to take copies thereof or extracts therefrom, as he may be advised. And whether the said E. D. has not brought such action of ejectment against your orator, and for such purpose as hereinbefore mentioned, and does not threaten and intend to proceed therein, without making any discovery of the several matters aforesaid, unless he shall be restrained therefrom as aforesaid, or how otherwise. And that the said E. D. may also discover and set forth, in manner aforesaid, whether there is or are any, and what, outstanding term or terms of years, or other, and what, subsisting estate in the said premises, prior to your orator's said estate and interest therein, which will defeat the title of your orator, and prevent a good defense at law to the said action, and in whom the same is or are vested; and that he may also discover and set forth how he makes out and derives his pretended title and claim to the said premises so purchased by your orator as aforesaid, and the nature and particulars thereof. And that the said E. D. may make a full and true disclosure and discovery of the several matters aforesaid, to the end that your orator may be the better enabled to defend the said ejectment; and that in the meantime, and until the said E. D. shall have made such discovery as aforesaid, that he may be restrained by the order and injunction of this honorable court from further proceedings in the said ejectment, and all further and other proceedings at law whatsoever against your orator touching the several matters aforesaid, or any of them. May it please, etc. [Pray subpoena against E. D., omitting the word "decree" in the general words. If injunction to restrain proceedings at law is desired, pray it.] A. D., Complainant.

E. F., Solicitor for Complainant.

[Add verification.]50

50 This bill should never pray relief. This form is taken from Willis,

815. Process upon bills of discovery.

The complainant must take out process and secure its service in the same manner as upon original bills.51

816. Defenses to bills of discovery.

The defense to a bill of discovery may be made either by a demurrer, plea, or answer. If the matter relied on by the defendant constitutes a defense to the relief or purpose sought by the bill, whether that relief be at law or in equity; or if the defense be that the complainant has no title to equitable relief, or has no interest in the subject-matter; or that the defendant has no interest in the subject-matter; or that the defendant is a bona fide purchaser for a valuable consideration without notice; or that the bill does not declare a purpose for which courts of equity will compel a discovery; or that the complainant is under some disability,-in these and the like cases, though the defense extends to the entire subject of the suit, it seems now settled that the objection must be taken by way of plea or demurrer." A defendant is not bound to answer or disclose any facts showing that he has been guilty of any act for which he is liable to an indictment, or which can subject him to a penalty or forfeiture.52

§ 817. Demurrers to bills of discovery.

52

Generally, when the objection to a bill appears upon its face,

Pl. in Eq. 316 (Law Library, vol. 35). The same form may be found in Curtis, Eq. Prec. 110.

51 Stafford v. Brown, 4 Paige (N. Y.) 360; Peebles v. Boggs, 1 Phila (Pa.) 151.

522 Barbour, Ch. Pr. 109.

53 Taylor v. Bruen, 2 Barb. Ch. (N. Y.) 301. "It is ordinarily a good objection to a bill of discovery that it seeks the discovery from a defendant who is a mere witness, and has no interest in the suit; for, as he may be examined in the suit as a witness, there is no ground to make him a party to a bill of discovery, since his answer would not be evidence against any other person in the suit. 2 Story, Eq. Jur. 88 1489, 1499." Detroit Copper & Brass Rolling Mills v. Ledwidge, 162 Ill. 305, 44 N. E. 751.

advantage may be taken of it in the same manner as upon a bill for relief by demurrer. This is true, whether the objec tion applies to the whole of the bill or to particular discoveries only. Unless it appears clearly by the bill that the complainant is not entitled to the discovery he requires, or that the defendant ought not to be compelled to make it, a demurrer to the discovery will not hold, and the defendant, unless he can protect himself by plea, must answer.54 Where the bill is for discovery and relief, the defendant may demur to the relief and answer to the discovery. And a demurrer which is good to the relief, generally defeats the discovery also.55 There is a class of cases in which the defendant may refuse to make a discovery as to particular charges contained in the bill, although a demurrer could not have been sustained as to the relief which the complainant intends to found upon those charges. Such are cases in which the discovery asked would tend to criminate the defendant, or subject him to a penalty or forfeiture, or would be a breach of confidence, which some principle of public policy does not allow, and where the complainant may be entitled to the relief sought upon the matters charged in the bill, although the defendant is not bound to make a discovery to aid in establishing the facts.56 Where the same principle upon

54 2 Barbour, Ch. Pr. 109; Evans v. Lancaster City St. Ry. Co., 64 Fed. 626.

55 2 Barbour, Ch. Pr. 109; Hodgkin v. Longden, 8 Ves. 3.

56 2 Barbour, Ch. Pr. 110; Hare, Disc. 5; Currier v. Concord R. Corp., 48 N. H. 321; Wistar v. McManes, 54 Pa. 318, 93 Am. Dec. 700; Attor ney-General v. Brown, 1 Swanst. 294. See Livingston v. Harris, 3 Paige (N. Y.) 528; Brownell v. Curtis, 10 Paige (N. Y.) 210; National Bank of West Grove v. Earle, 196 Pa. 217, 46 Atl. 268. “A defendant may refuse to answer, not only as to facts directly criminating him, but as to any fact which might form a link in the chain of evidence establishing his liability to punishment, penalty, or forfeiture. 1 Daniell, Ch. Pr. 561-569; 2 Daniell, Ch. Pr. 1557; 1 Pomeroy, Eq. Jur. §§ 196, 202; 6 Enc. Pl. & Pr. 742, 744." Robson v. Doyle, 191 Ill. 566, 61 N. E. 435. "It is true that a demurrer to discovery on the ground that it may incriminate may be regarded as involving an affirmative claim of privilege. Prof. Langdell says, however: A demurrer to discovery, indeed, is not in its nature a demurrer at all, but a mere