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

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.52 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.

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.

52 2 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. §§ 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

542 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; Attorney-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

which the demurrer to the discovery of the truth of certain charges in the bill is sought to be sustained is equally applicable to the relief, the defendant cannot be permitted to demur as to the discovery only, and answer as to the relief.57 Where the discovery sought is not a mere incident to the relief prayed, it is said to be doubtful whether a demurrer to the relief only would not be bad.58 Where the sole object of the bill is to obtain a discovery, some grounds of demurrer which, if the bill prayed relief, would extend to discovery as well as relief, will not hold. Thus, a demurrer to a bill of discovery merely will not lie for want of equity, or for want of parties, for the complainant seeks no decree; nor because the bill is brought for the discovery of part of the matter, for that is merely a demurrer because the discovery would be insufficient.59 A demurrer will hold to a bill of discovery of several distinct mat

statement in writing that the defendant refuses to answer certain allegations in the bill, for reasons which appear upon the face of the bill, and which the demurrer points out.' Langdell, Eq. Pl. §§ 69, 97. ''here would seem to be no practical reason for requiring a defendant to make oath merely that he declines to answer. Therefore, if an oath is ever necessary, it must be to supply reasons justifying the refusal. But it is obviously possible that a bill may disclose on its face sufficient to justify the defendant's claim of privilege. When this is so, it would seem entirely proper to justify by reference to the bill alone, without proffering an oath. The propriety of taking the objection by demurrer seems to have been very generally recognized. Story, Eq. Pl. 88 547, 553, 575, 583, 591, 597, 599; Bray, Disc. p. 318, note; Bray, Disc. p. 325; Cooper, Eq. Pl. §§ 190, 191, 202; 6 Enc. Pl. & Pr. 742; Foster, Fed. Pr. § 109." Daisley v. Dun, 98 Fed. 497. In New York, a demurrer on the ground that the discovery prayed might subject the defendants to penalties under the law of the United States, without stating why or wherefore, was overruled. Sharp v. Sharp, 3 Johns. Ch. (N. Y.) 407. See Moyer v. Livingood, 2 Woodw. Dec. (Pa.) 317.

57 2 Barbour, Ch. Pr. 110; Morgan v. Harris, 2 Brown Ch. 124; Burns v. Hobbs, 29 Me. 273; Deare v. Attorney-General, 1 Younge & C. 197; Waring v. Mackreth, Forrest, 129; Wistar v. McManes, 54 Pa. 318; Brownell v. Curtis, 10 Paige (N. Y.) 210. See, also, Dell v. Hale, 2 Younge & C. Ch. 1.

58 2 Barbour, Ch. Pr. 110; Angell v. Angell, 1 Sim. & S. 83; King v. Heming. 9 Sim. 59; Le Rov v. Veeder, 1 Johns. Cas. (N. Y.) 417. 50 2 Barbour, Ch. Pr. 110; Mitford, Eq. Pl. 200.

ters against several distinct defendants.60 If a pretense of interest by the defendant is alleged in the bill, a demurrer for want of interest does not lie,-the defense must be by plea.1 A demurrer to the whole of the discovery sought will be overruled if the complainant is entitled to any part.62 The ob jections to a bill which are causes of demurrer to discovery only are thus classified by Lord Redesdale, which classification it may be useful to insert in this place by way of concluding this branch of the subject: (1) That the case made by the bill is not such in which a court of equity assumes a jurisdiction to compel a discovery; (2) that the complainant has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery; (3) that the defendant has no interest in the subject to entitle the complainant to institute a suit against him, even for the purposes of discovery; (4) although both the complainant and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the complainant a right to the discovery required by his bill; (5) that the discovery, if obtained, cannot be material; and (6) that the situation of the defendant renders it improper for a court of equity to compel a discovery.63

§ 818. Pleas to bills of discovery.

If the objection to a bill of discovery does not appear upon the face of it, the defendant must bring it before the court by

60 2 Barbour, Ch. Pr. 111; Mitford, Eq. Pl. 200.

61 2 Barbour, Ch. Pr. 111; Mitford, Eq. Pl. 185; Plummer v. May, 1 Ves. Sr. 426.

62 Treadwell v. Brown, 44 N. H. 551. It is held that, where a demurrer to the bill of discovery is overruled, the bill, or so much as remains unanswered, will be taken as confessed, and that the confessions are, both in law and equity, as complete as the confessions could have been had the bill been answered, and every part thereof charged to exist been expressly admitted. See Nancy v. Trammel, 3 Mo. 306; Cooper, Eq. Pl. 111-113, 207; Tomkins v. Ashby, 22 Com. Law Rep. 464.

63 Mitford, Eq. Pl. 185; 2 Barbour, Ch. Pr. 111. See, for demurrers to bills of discovery, Story, Eq. Pl. §§ 545-610; Cooper, Eq. Pl. 186 et seq.; Mitford, Eq. Pl. 183 et seq.; Hare, Disc.; Wigram, Disc.