plea. The grounds of objection to discovery which may be raised by plea are nearly the same as those which have just been mentioned as causes of demurrer. They are:

64

(1) That the complainant's case is not such as entitles a court of equity to assume jurisdiction to compel a discovery in his favor; (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 purpose of discovery only; and (4) that the situation of the defendant renders it improper for a court of equity to compel a discovery. The situation of a defendant may render it improper for a court of equity to compel a discovery, (1) because the discovery may subject him to pains and penalties; (2) because it will subject him to a forfeiture, or something in the nature of a forfeiture; (3) because it would betray the confidence reposed in him as a counsel, attorney, or arbitrator; (4) because he is a purchaser for a valuable consideration without notice of the complainant's title.65 To a bill of discovery for the purpose of proceeding at law, a plea of payment of money demanded by the complainant does not lie.66

64 2 Barbour, Ch. Pr. 111, 112; Mitford, Eq. Pl. 282-284. 65 2 Barbour, Ch. Pr. 112; Mitford, Eq. Pl. 284.

66 2 Barbour, Ch. Pr. 112; Hindman v. Taylor, 2 Dickens, 651. A plea to a bill of discovery filed in aid of an action at law is bad where it presents a question proper to be raised in the action at law, but presents no reason why the discovery should not be made. Green v. McCarroll, 24 Miss. 427. See, for pleas to bills of discovery, Story, Eq. Pl. §§ 816-825; Mitford, Eq. Pl. 281 et seq.; 2 Barbour, Ch. Pr. 112, 113; Cooper, Eq. Pl. 291 et seq.; Beames, Pleas in Eq. 249 et seq.; Hare, Disc.; Wigram, Disc.; Gait v. Osbaldeston, 5 Madd. 428; Cottington v. Fletcher, 2 Atk. 156; Hollis v. Whiteing, 1 Vern. 151; Whaley v. Bag nel, 1 Brown, Parl. Cas. 345; Moore v. Edwards, 4 Ves. 23; Main v. Melbourn, 4 Ves. 720; Stewart v. Nugent, 1 Keen, 201; Roche v. Morgell, 2 Schoales & L. 721; Bond v. Hopkins, 1 Schoales & L. 413; Sut ton v. Scarborough, 9 Ves. 71; Strafford v. Blakeway, 6 Brown, Parl. Cas. 305; Plummer v. May, 1 Ves. Sr. 426; Claridge v. Hoare, 14 Ves. 59; Plunket v. Penson, 2 Atk. 51.

§ 819. Answer to bill of discovery.

When a defendant has in his power the means of acquiring the information necessary to enable him to make the discovery called for, he is bound to make use of such means, whatever pains or trouble it may cost him.67 The answer must be full and perfect to all of the material allegations of the bill. A general denial of the matters charged is not sufficient. There must be an answer to the sifting inquiries upon the general subject; and whenever there are particular and precise charges, they must be answered particularly and precisely.68 If he has no knowledge of the matters of the bill, that is not sufficient to excuse him from stating his information and belief.69 He must show his information, if he have any, and express his belief or disbelief founded thereon, though, if he have no information, he need not express belief.70 The defendant, in answering, has a right to state all of the circumstances connected with the matter about which the discovery is sought, as well those which make for him as against him.71 If the defendant in a bill of discovery does not think proper to defend himself from the discovery by demurrer or plea, he has been

67 Beall v. Blake, 10 Ga. 449; Green v. Carey, 12 Ga. 601.

68 Walker v. Walker, 3 Ga. 302, citing Story, Eq. Pl. § 852. See Salmon v. Clagett, 3 Bland (Md.) 125; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686.

69 Cooper, Eq. Pl. 313; Painter v. Harding, 3 Phila. (Pa.) 144; Norton v. Warner, 3 Edw. Ch. (N. Y.) 106; Smith v. Lasher, 5 Johns. Ch. (N. Y.) 247. See supra, § 313.

70 Cooper, Eq. Pl. 313; 1 Harrison, Ch. Pr. 302; Robinson v. Woodgate, 8 Edw. Ch. (N. Y.) 422; Smith v. Laster, 5 Johns. Ch. (N. Y.) 247; Painter v. Harding, 3 Phila. (Pa.) 144; Morris v. Parker, 3 Johns. Ch. (N. Y.) 297.

71 Jewett v. Belden, 11 Paige (N. Y.) 618; Chambers v. Warren, 13 III 318; Glascock v. Hays, 4 Dana (Ky.) 58; Saltınarsh v. Bower, 22 Ala 228; Price v. Tyson, 3 Bland (Md.) 392, 22 Am. Dec. 279; Lyons v. Miller, 6 Grat. (Va.) 427, 52 Am. Dec. 129; Waldron v. Bayard, 1 Phila (Pa.) 454 But see Hamilton v. Wood, 3 Edw. Ch. (N. Y.) 134. See. also, as to rights of defer.dant in answering, Dyre v. Sturges, 3 Desaus. (S. C.) 553.

73

If

permitted, by answer, to insist that he is not obliged to make the discovery.72 But the facts which entitle him to protection from answering must be stated fully in the answer. He cannot defeat a full discovery by denying that the evidence will be of assistance to the complainant. It is only when it can be seen that the interrogatories, if answered affirmatively, would not assist the complainant in establishing his suit, that answers can be dispensed with.74 When the defendant sets up that he is not obliged to answer, the complainant may except to the answer as insufficient, and thereupon it will be determined whether the defendant is obliged to make the discovery.75 he submits to answer, he must answer fully, and he must answer all the facts stated in the bill from which he does not distinctly protect himself from answering by either of the other modes of defense.76 It is said that there is no rule preventing an answer from being accompanied by a plea or demurrer.77 Where a defendant pleads or demurs to any part of the discovery sought by the bill, and answers likewise, if the complainant takes exception to the answer before the plea or demurrer has been argued, he admits the plea or demurrer to be good; otherwise it would be impossible to determine whether it would be sufficient or not.78 The rule is otherwise where a plea or demurrer is only to the relief, and not to any part of the discovery. The complainant may then except to the answer

72 2 Barbour, Ch. Pr. 113; Mitford, Eq. Pl. 307; Slater v. Banwell, 50 Fed. 150.

73 Slater v. Banwell, 50 Fed. 150; Bentley v. Cleaveland, 22 Ala. 814. 74 Anderson v. Kissam, 28 Fed. 900.

75 2 Barbour, Ch. Pr. 113. See Bentley v. Cleaveland, 22 Ala. 814; Roussin v. St. Louis Perpetual Ins. Co., 15 Mo. 244.

76 2 Barbour, Ch. Pr. 114; Cooper, Eq. Pl. 316; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Portarlington v. Soulby, 7 Sim. 28; Mazarredo v. Maitland, 3 Madd. 72; Waring v. Suydam, 4 Edw. Ch. (N. Y.) 426; Salmon v. Clagett, 3 Bland (Md.) 125; Hill v. Crary, 7 Ark. 536.

77 2 Barbour, Ch. Pr. 114. A defendant cannot demur to part and an swer to part of a bill of discovery. 2 Barbour, Ch. Pr. 113; Jones v Strafford, 3 P. Wms. 79; Abraham v. Dodgson, 2 Atk. 157; Dormer v. Fortescue, 2 Atk. 282.

78 2 Barbour, Ch. Pr. 114.

Where the bill

before the argument of the plea or demurrer.79 charges an interest in the defendant, the plea must be supported by an answer; but a plea that the discovery will subject the defendant to penalties does not seem to require the support of an answer.80

There is a distinction between the cases in which the defendant, by answer, denies the title of the complainant, in respect of which the discovery is sought, and those in which he denies the validity of the ground upon which that title is alleged by the complainant to be founded. Thus, although the defendant, by his answer, denies the title of the complainant, yet in many cases he must make the discovery prayed by the bill, though not material to the complainant's title, and though the complainant, if he has no title, can have no benefit from the discovery.81 Where the defendant sets up a title in himself, apparently good, and which the complainant must remove to found his own title, the defendant is not generally compelled to make any discovery not material to the trial of the question of title. Where a discovery, however, is in any degree connected with the title, it would seem that the defendant cannot protect himself by answer from making the discovery.82

§ 820. Effect of answer.

The answer of a defendant to a pure bill of discovery, when

79 2 Barbour, Ch. Pr. 114.

80 2 Barbour, Ch. Pr. 114; Claridge v. Hoare, 14 Ves. 59; Beames, Pleas in Eq. 256.

81 2 Barbour, Ch. Pr. 115; Mitford, Eq. Pl. 307-310.

82 2 Barbour, Ch. Pr. 115; Mitford, Eq. Pl. 311, 312. See, for answers to bills of discovery, Wigram, Disc. (1st Ed.) 85-122, 190, 192-195, 347, 348; Hare, Disc. 247-262, 298-301; Mitford, Eq. Pl. 307 et seq.; Cooper, Eq. Pl. 312 et seq.; Northwestern Bank v. Nelson, 1 Grat. (Va.) 108; Ellsworth v. Curtis, 10 Paige (N. Y.) 105; United States v. McLaughlin, 11 Sawy. 139, 24 Fed. 823; Sitler v. McComas, 66 Md. 135, 6 Atl. 527; Bailey v. Stiles, 3 N. J. Eq. 245; Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686; Trotter v. Bunce, 1 Edw. Ch. (N. Y.) 573; Brown v. Brown, 10 Yerg. (Tenn.) 84; Anderson v. Kissam, 28 Fed. 900; Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210; Agar v. Regent's Canal Co., Coop. 212. See, also, supra, §§ 293, 294, 312-314.

1

used on the trial at law, is used as a matter of evidence, the whole of which is to be read as the testimony of a witness, including not only admissions against the interest of the respondent, but all assertions in his favor, subject, however, to be credited or discredited, in whole or in part, according to its own intrinsic weight, or its relative weight in comparison or connection with the other evidence in the action at law.83 When a complainant goes into equity for relief on the ground of discovery, the court will give to the answer of the defendant the same effect that would be given it in a court at law, except that the complainant cannot contradict the answer by other evidence, as he would thereby prove himself out of court.8

§ 821. Procedure upon bills of discovery.

84

A case is never brought to a hearing upon a mere bill of discovery. When the answer is perfected, the defendant is entitled to move for costs.85 Where the answers of all of the defendants to a bill of discovery deny all the allegations of the bill, and make no discovery, the court should proceed no further, and the bill should be dismissed.88 Thus, where a

83 Fant v. Miller, 17 Grat. (Va.) 187; Lyons v. Miller, 6 Grat. (Va.) 427, 52 Am. Dec. 129; Cox v. Cox, 2 Port. (Ala.) 533. See Thompson v. Clark, 81 Va. 422; Allen v. McNew, 8 Humph. (Tenn.) 46; Jewett v. Belden, 11 Paige (N. Y.) 618; Massingill v. Carraway, 13 Smedes & M. (Miss.) 324; Price v. Tyson, 3 Bland (Md.) 392, 22 Am. Dec. 279; Nourse v. Gregory, 3 Litt. (Ky.) 378. See supra, §§ 645, 652.

84 Fant v. Miller, 17 Grat. (Va.) 187; Lyons v. Miller, 6 Grat. (Va.) 427, 52 Am. Dec. 129. See Murray v. Johnson, 1 Head (Tenn.) 353; Jones v. Cunningham, 7 W. Va. 707. "The greatest strength of proof attributable to an answer under oath to a bill in equity for discovery is that it cannot be overcome by a single witness, unaccompanied by some corroborating circumstance. That it has even that strength in a common-law court we are not called upon to decide. It certainly has not conclusive strength. Lyons v. Miller, 6 Grat. (Va.) 438, 52 Am Dec. 129; 1 Pomeroy, Eq. Jur. § 208." District of Columbia v. Robinson, 180 U. S. 92. See Smith v. Kincaid, 10 Humph. (Tenn.) 73; Spurlock v. Fulks, 1 Swan (Tenn.) 289; Turner v. Miller, 6 Ark. 463.

85 2 Barbour, Ch. Pr. 115; King v. Clark, 3 Paige (N. Y.) 76; People's Nat. Bank v. Kern, 193 Pa. 59, 44 Atl. 331.

86 Philadelphia Fire Ins. Co. v. Central Nat. Bank of Chicago, 1 Ill