x. Bill of Discovery.

Every Bill requiring an answer, is, more or less, a Bill of Discovery; but the Bill here meant, and to which that title is peculiarly given, is a Bill employed merely for the Discovery of facts in the knowledge of the Defendant, or of Deeds or Writings (s), or other things, in his custody or power, but praying no further or other Relief, or merely a Commission for the Examination of Witnesses (1), or the stay of proceedings at Law until the Discovery should be made (u).

This Bill is usually employed in aid of the Jurisdiction of some other Court, (even of a foreign Court (a) if necessary,) to enable the Plaintiff to prosecute or defend an Action,—a proceeding before the Council, or any other legal proceeding of a nature merely civil (y), before a Jurisdiction which cannot compel a Discovery on oath (2); but the Court of Chancery has, in some instances, refused to give this aid to the Jurisdiction of very inferior Courts (a), and will not give a Discovery in aid of an arbitration (b).

(s) On an action, Courts of Law, according to the modern practice, will order the Plaintiff to produce papers, &c. and give copies before the Defendant pleads, which in such case saves the delay and expense of a Bill in Equity. [Clifford v. Taylor, Taunton's Rep. 1 vol. p. 166.]

(t) See Bro. C. C. 471. (u) Redesd. Tr. Pl. 42. (x) Del Ris v. Vallego, mentioned Redesd. Tr. Pl. 151, (3d Edit.) and see 2 Anstr. 467.

(y) Lord Montague v. Dud

man, 2 Ves. 398. If a Bill is brought to aid, by a discovery, prosecution, or defence of any proceeding not merely civil in any other Court, as an Indictment or Information, a Court of Equity will not compel a Discovery, and the defendant may demur. [Ibid.]

(2) 1 Atk. 288. 1 Ves. 205. 2 Ves. 451.

(a) Redesd. Tr. Pl. 42. See also 1 Ves. 205. Earl of Derby v. Duke of Athol.

(b) Sic dict. Street v. Rigby, 6 Ves. 821.

This Bill lies in aid of proceedings in Chancery, in order to deliver the party from the necessity of procuring Evidence (c); Bills in such cases are in general what are termed Cross-Bills, and will be further observed upon hereafter (d). And it is observable, that wherever the assistance of a Court of Equity is required upon equitable circumstances, a Discovery, for instance, a Bill will lie for a legal demand, but in such case the Bill is usually retained, with liberty to bring an Action (e).

After an Order in Bankruptcy for liberty to bring an Action, with special directions for a production of Papers, and not to set up the Bankruptcy, a Bill of Discovery cannot be filed (ƒ).

The Bill states the matter touching which a Discovery is sought, the Interest of the Plaintiff and Defendant in the subject, and the Right of the former to require the Discovery from the latter (g).

With respect to Affidavits accompanying Bills of this description, the rule appears to be, that where a Party comes only for the discovery of a Deed he need not make oath of the loss of it, as he must do when he applies also for Relief; for he is not allowed to translate the Jurisdiction without oath made of the loss of the Deed (h), and this is the constant distinction (i).

(c) Lord Montague v. Dudman, 2 Ves. 398.

(d) See tit. "Cross Bill." (e) See Buxton v. Sidebotham, 2 Ves. jun. 520, in note (a); see also Stevens v. Praed, 2 Ves. jun. 519. Wright v. Hunter, 5 Ves. 792; see also Barker v. Dacie, 6 Ves. 688.

(f) Cooke v. Marsh, 18 Ves. 209.

42.

(g) See Redesd. Tr. Pl. p.

(h) Godfrey v. Turner, 1 Vern. 247; see also 2 P. Wms. 546. Whitchurch v. Golding, and the cases there cited, Anon. 2 Atk. 17.

(i) Dormer v. Fortescue, 3 Atk. 132; and see Anon. 3 Atk. 17. There are, however, some cases which seem to the

Though the Plaintiff has been convicted of Perjury, his affidavit, it seems, will be sufficient for the purpose of a Discovery (k).

Where the Discovery is immaterial (1), or where on the face of the Bill it appears there can be no remedy, a Discovery would be merely impertinent, and is not enforced (m); but where the Bill avers that an Action is brought, or where the necessary effect in Law of the Case stated by the Bill, appears to be that the Plaintiff has a right to bring an Action (n), he is en

titled to a Discovery to aid that Action so alleged to be brought, or which he appears to have a right and an intention to bring (o); but it has never been laid down, that a person can file a Bill, not venturing to state who are the Persons against whom the Action is to be brought, nor stating such circumstances as may enable the Court, which must be taken to know the Law, and therefore the liabilities of the Defendants, to judge, but stating circumstances, and avowing that he has a right to an Action against the Defendants, or some of them (p). Upon these Principles, a Demurrer was allowed to a Bill which did not allege with sufficient certainty by whom the duties claimed by the City of London under Letters Patent, in respect of which a Discovery was prayed in aid of an Action, were payable (g). If the Bill had stated, that by reason of combination it was so managed that the Plaintiff could not bring an Action, and therefore there ought to be an Account of the Fees in a Court of Equity, it might have been sustained (r).

A Bill of Discovery cannot be demurred to on the ground that the Party against whom it is filed has an Interest against the Plaintiff (s).

So a Plea of Bankruptcy to a Bill by Bankrupts, seeking a Discovery in aid of their defence to an Action, and praying payment of the balance found due to them on the taking of the Accounts, and

India Company, 2 Dick. 34.
S. C. 1 Bro. C. C. 468.

(0) In Finch v. Finch, 2 Ves. 294, it was said a Bill of Discovery does not lie to create evidence for a future cause; but see 1 Bro. C. C. 469. 2 Dick. 652.

(p) Mayor and Citizens of London v. Levy. 8 Ves. 404. (q) Ibid. 8 Ves. 398. (r) Ibid. 8 Ves. 405.

(s) Per Lord Mansfield, in Cox and others, mentioned 10 East 399

an Injunction in the mean time, has been overruled (t).

It has been held, that an Heir stands in no need of, nor can he call for, a Discovery of Writings, unless he claims under some concealed Deed of Entail (u); but Lord Hardwicke carried the Rule farther, and held, that every Heir at Law has a right to a Discovery, by what means, and under what Deed he is disinherited, if by his Bill he states the particular facts on which he founds his claim (x); but in such case, it seems, the Defendant may plead, in bar of the Discovery, that the Plaintiff is not Heir (y); and if the

(t) Lowndes and another v. Taylor and another, 1 Madd. Rep. 423, confirmed on appeal to the Lord Chancellor.

(u) See 3 P. Wms. 295. Tanner v. Wise.

(x) Harrison v. Southcote, 1 Atk. 540.

(y) See post, 2nd vol. tit. "Plea." Sed vid. contra, Gun and Prior, 2 Dickens, 657; but more at length in note to Forrest's Rep. p. 88, and in 1 Cox 197; and see Delorne v. Hollingsworth, 1 Cox, 421, 2; see also Newman and Wallis, 2 Bro. C. C. 143. Lord Thurlow seemed to doubt whether he had determined that case rightly; see Hall against Noyes, 3 Bro. 489. Forrest's Reports, p. 85. Lord Redesdale, in his Treatise of Pleading, observes, that if the Plaintiff by his Bill states himself to have an interest which entitles him to call on the Defendant for a Discovery, though, in truth, he has no such Interest, the Defendant may by plea protect himself from making the discovery, as it may involve him in difficulty and expense, and perhaps may

be prejudicial to him in other cases. Thus, says he, if a Plaintiff states himself to be Heir or Administrator of a person dead intestate, and in that character seeks a Discovery from a person in possession of property which did belong to the deceased, of his title thereto, or of the particulars of which it consists, the defendant may plead that another person is heir or personal representative, or that the person alleged to be dead is living. Redesd. Tr. Pl. p. 223, 2nd Edition. Mr. Fonblanque, in his note to "The Treatise on Equity," 2nd vol. p. 484, n. (e), has adopted this doctrine; and the Pract. Reg. p. 326, Wyatt's Edit. supports it, and so, also, does a case in Finch, p. 36; but it is deserving of consideration, whether the case of Gun v. Prior, already alluded to in Forrest, ought not to be considered as correcting the gene. rality of the propositions they enforce; and, indeed, in the last edition (3rd), of Lord Redesdale's Work, p. 188, he says, "the subject seems still to re