tenant who held under a written lease for a year, and against whom legal proceedings were brought to dispossess him, filed a bill alleging a parol agreement for a second year, and stated that he could make no proof at law of the parol agreement, and prayed a discovery of it, and the answer denied the parol agreement, the bill was dismissed.87 Where the only ground of equitable jurisdiction is the discovery of facts solely within the knowledge of the defendant, and the defendant, by his answer, discloses no such facts, and the complainant supports his claim by evidence in his own possession, unaided by the confessions of the defendant, the bill should be dismissed, and the complainant permitted to bring his action at law.88 In a bill for discovery and relief, the denial of the discovery is no ground for dismissing the bill. The complainant may make out his case without discovery. Where an injunction is obtained against proceeding at law, until an answer is obtained to a bill of discovery, it is a matter of course to dissolve the injunction as soon as the answer of the defendant is perfected, whether he admits or denies the facts charged in the bill.90

§ 822. Costs on bills of discovery.

The general rule is that the complainant in a bill of discov ery, upon obtaining it, pays the defendant his costs.91 Where

App. 344; United States Ins. Co. v. Central Nat. Bank, 7 Ill. App. 426; Fifield v. Gorton, 15 Ill. App. 458; Nourse v. Gregory, 3 Litt. (Ky.) 378; Viele v. Hoag, 24 Vt. 46; Overton v. Searcy, Cooke (Tenn.) 36, 5 Am. Dec. 665.

87 Jones v. Sherwood, 6 N. J. Eq. 210.

88 Russell v. Clark's Ex'rs, 7 Cranch (U. S.) 69. But see Dunn v Dunn, 8 Ala. 784.

89 Wistar v. McManes, 54 Pa. 318. See, also, Currier v. Concord R. Corp., 48 N. H. 321; French v. Rainey, 2 Tenn. Ch. 640; Overton v. Searcy, Cooke (Tenn.) 36, 5 Am. Dec. 665.

90 2 Barbour, Ch. Pr. 115; King v. Clark, 3 Paige (N. Y.) 77. See, also, Steele v. Lowry, 6 Ala. 124; Grafton v. Brady, 7 N. J. Eq. 79. It is erroneous to continue the bill of discovery, or to allow a supple mental and amendatory bill to the original bill for discovery. Yates ▾ Monroe, 13 III. 212.

91 2 Barbour, Ch. Pr. 115; Burnet v. Sanders, 4 Johns. Ch. (N. Y.)

a bill is for relief against several defendants, and for discovery against only one, he cannot make a motion for his costs until the hearing. The court will not take the labor of ascertaining whether, under the prayer for general relief, some relief may not be given him.92

§ 823. Cross bill for discovery.

As the complainant in the original bill possesses the right to obtain a discovery from the defendant touching the matters set up in his bill, so the defendant may, by cross bill, obtain a discovery from his adversary touching the same matters.93 The cross bill for discovery arose from the settled rule in equity that the complainant in a suit could not be examined as a witness in that suit, and, if his testimony was wanted by the defendant as to any material facts, it must have been obtained by a cross bill. The cross bill, therefore, gives a perfect reciprocity of proof to each party, derivable from the answers of each other, and on this account the right to file a cross bill is not confined to cases between private persons, for, if a foreign sovereign brings a bill, the defendant may file a cross bill against him for a discovery of matters material to his defense. The importance of a cross bill for the purpose of discovery

503; McElwee v. Sutton, 1 Hill, Eq. (S. C.) 34. See, also, for question of costs, Wright v. Dame, 1 Metc. (Mass.) 237; King v. Clark, 3 Paige (N. Y.) 76; Boughton v. Philips, 6 Paige (N. Y.) 334. If the defendant answer fully, he is entitled to costs; but where exceptions to the answer are sustained, the defendant must pay the costs upon them. Price v. Tyson, 3 Bland (Md.) 392, 22 Am. Dec. 279; Deas v. Harvey, 2 Barb. Ch. (N. Y.) 448; McCelvy v. Noble, 13 Rich. Law (S. C.) 330. And where the complainant goes to the defendant for the information sought by the bill of discovery, and asks for such information prior to the filing of the bill, and the defendant refuses to make the disclosure, though it is in his power to do so, costs will be denied the defendant, even though he answered fully. King v. Clark, 3 Paige (N. Y.) 77; Burnett v. Sanders, 4 Johns. Ch. (N. Y.) 503; Dennis v. Riley, 21 N. H. 50; Harris v. Williams, 10 Paige (N. Y.) 108; McElwee v. Sutton, 1 Hill, Eq. (S. C.) 34. See Weymouth v. Boyer, 1 Ves. Jr. 416; 1 Maddock, Ch. Pr. 176.

92 2 Barbour, Ch. Pr. 115; Attorney-General v. Burch, 4 Madd. 178. 93 Indianapolis Gas Co. v. City of Indianapolis, 90 Fed. 196.

may be illustrated by a familiar example. It is a general rule that, if a defendant wants a discovery of any deed in the hands of the complainant, he must file a cross bill for that purpose, although the complainant should state in his bill that the deed is in his custody, and ready to be produced as the court shal direct. The deed may furnish the main grounds of establishing the defense to the original bill.94

§ 824. Supplemental bill in nature of bill of discovery.

After an original suit is at issue, a complainant may sometimes file a supplemental bill in the nature of a bill of discovery for the purpose of obtaining evidence in support of the matters put in issue in the original suit, of which evidence he was not apprized at the time of filing his replication; but that is strictly a bill of discovery in aid of the original suit, and should not pray relief. The complainant obtaining the discovery in such a bill pays the defendant's costs, as on other bills for discovery merely. The bill in such cases is in the nature of a supplemental suit for a discovery, rather than of a supplemental bill in the original suit.95

94 Story, Eq. Pl. § 390; Kidder v. Barr, 35 N. H. 235; Indianapolis Gas Co. v. City of Indianapolis, 90 Fed. 196; Young v. Colt, 2 Blatchf. 373. Fed. Cas. No. 18,155.

95 2 Barbour, Ch. Pr. 61, 116; Dias v. Merle, 4 Paige (N. Y.) 263.

(886)

CHAPTER XLVI.

SUPPLEMENTAL BILLS.

§ 825. General nature and office.

A supplemental bill lies, when there is a defect in the proceedings occurring too late to be remediable by amendment, or where, by an event subsequent to the commencement of the suit, a new interest in the matter in litigation is claimed by an existing party to the suit, or a new party claims, but not by mere operation of law, the interest which was claimed by an existing party. It is merely an addition to the original bill. It is a well-settled rule that nothing can be inserted in an original bill by way of amendment which has arisen subsequent to the commencement of the suit, but that the same must be stated in a supplemental bill. It may be filed to supply defects in the frame of the original bill, and this may be done either before or after decree, and to aid or impeach the decree, or to put new matter in issue, as a new interest vested in an old party, or an interest devolving upon a new party. Under the early

12 Barbour, Ch. Pr. 59; Welford, Eq. Pl. 188; Walker v. Hallett, 1 Ala. 379; Jones v. Jones, 3 Atk. 110; Lyster v. Stickney, 12 Fed. 609; Cedar Valley Land & Cattle Co. v. Coburn, 29 Fed. 586; Barringer v. Burke, 21 Ala. 765; Pedrick v. White, 1 Metc. (Mass.) 76; Hoppock v. Gray (N. J. Eq.) 21 Atl. 624; Hasbrouck v. Shuster, 4 Barb. (N. Y.) 285; Western Min. & Mfg. Co. v. Virginia Cannel Coal Co., 10 W. Va. 250; Kelly v. Galbraith, 87 Ill. App. 68; Wray v. Hutchinson, 2 Mylne, & K. 235.

2 Story, Eq. Pl. § 332; Mix v. Beach, 46 Ill. 311; Caldwell v. First Nat. Bank, 89 Ill. App. 448; Bloxham v. Florida Cent. & P. R. Co., 39 Fla. 243, 22 So. 697. See Central Trust Co. v. Western C. R. Co., 89 Fed. 24, citing Foster, Fed. Pr. §§ 28, 29; Clarke v. Mathewson, 12 Pet. (U. S.) 120.

32 Barbour, Ch. Pr. 60.

42 Barbour, Ch. Pr. 59; Story, Eq. Pl. §§ 332, 338; Kennedy v. Bank

chancery practice, supplemental bills were filed where the proceedings were in such a state that the original bill could not be amended for the purpose. No amendment was generally allowable after the parties were at issue upon the points of the original bill, and witnesses had been examined. It is proper whenever the imperfection in the original bill arises from the omission of some material fact which existed before the filing of the original bill, but the time has passed in which it could be introduced into the bill by amendment. This may arise either from the importance of the fact not being understood in the preceding stages of the cause, and therefore not being put in issue, or from the fact itself not having come to the knowledge of the party until after the bill was filed. It is also proper in order to bring before the

of Georgia, 8 How. (U. S.) 586; O'Hara v. Shepherd, 3 Md. Ch. 306; Bloxham v. Florida Cent. & P. R. Co., 39 Fla. 243, 22 So. 697.

5 Mitford, Eq. Pl. 55; 2 Barbour, Ch. Pr. 60-63; Beach, Mod. Eq. Pr. §§ 490-493; Story, Eq. Pl. §§ 332, 333.

• Story, Eq. Pl. § 332; Mitford, Eq. Pl. 55, 325; Cooper, Eq. Pl. 333; Goodwin v. Goodwin, 3 Atk. 370; Jones v. Jones, 3 Atk. 110; Stafford v. Howlett, 1 Paige (N. Y.) 200.

7 Story, Eq. Pl. § 333; Walker v. Hallett, 1 Ala. 379; Ridgeway v. Toram, 2 Md. Ch. 303; Dodge v. Dodge, 29 N. H. 177; Pedrick v. White, 1 Metc. (Mass.) 76. See Colclough v. Evans, 4 Sim. 76. For filing supplemental bills in federal courts, see United States Equity Rules 57, 58. "The new evidence upon which a supplemental bill should be allowed to be filed should not be of a mere cumulative or corroborative nature; for if it were admissible, then it would be open to the other side to impeach or control it by other cumulative or corroborative evidence on that side, and thus all the mischiefs would be introduced against which the general rule prohibiting the examination of new witnesses after publication of the testimony was intended to guard. The doctrine has been fully recognized as to new evidence upon bills of review." Jenkins v. Eldridge, 3 Story, 299, Fed. Cas. No. 7,267; Gilbert, Forum Rom. 186; Blake v. Foster, 2 Ball & B. 457; Young v. Keighly, 16 Ves. 348; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Norris v. Le Neve, 3 Atk. 26. "If new evidence has been discov ered, since the commission was closed, as to the facts stated in the original bill, the proper course would be, not to file a supplemental bill, but to apply to the court for permission to examine the new witnesses.' Story, Eq. Pl. § 344, note 1, citing Knight v. Knight, 4 Madd. 1." Atwood v. Shenandoah Vailey R. Co., 85 Va. 966, 9 S. E. 748.