allowing exceptions to it, will give the vendor a reasonable time within which to remove the objection, although the exceptions and further directions were set down to come on together.(1) An exception to a report in favour of a title having been, on argument, allowed, leave was given to the plaintiff some time afterwards to go again before the Master for the purpose of bringing evidence to show that the objection which the Court had sustained was, in the circumstances, immaterial.(2) If upon a question of title the Master is satisfied with the evidence produced before him, but upon the hearing of an exception to the report the Court thinks the evidence not sufficient, the Court upon the application of the vendor will refer it back to the Master to review his report, in order to give the vendor an opportunity of producing further evidence.(3) If exceptions taken to the report of a good title are over-ruled, other objections to the title cannot be made; but if exceptions are allowed, and a new abstract of title is delivered, further objections may be brought in.(4) If the Master reports a good title, and the reference has been made under a decree, the cause is set down on further *directions, and the order is a declaration that the [ *497 ] plaintiff is entitled to a specific performance of the agreement and a reference back to the Master is directed to take an account of what is due for principal and interest upon the purchase-money, from the day of, and the. defendant is ordered to pay the same upon the plaintiff's executing a proper conveyance, to be settled by the Master in case the parties differ. If a reference has been directed on motion, and the Master reports in favour of the title, it does not appear necessary that the cause should be set down on further directions, but a motion is made on notice that the purchaser may pay in his purchase-money within a certain time limited by the notice, and the defendant is served with a writ of execution of this order, and on failing to pay in his purchase-money, an attachment is issued against him, and he is proceeded against, in the same manner as any other defendant who neglects to perform a decree. (1) Portman v. Mill, 1 R. & M. 696. Eng. Chan. Reps. iv. 620. (2) Egerton v. Jones,b 1 R. & M. 694. Egerton v. Jones,d 3 Sim. 392. Ib. iv. 619. eIb. v. 168. dIb. v. 169. If the Master reports against the title and the plaintiff does not except to the report, the defendant may move on notice to dismiss the bill with costs.(1) If evidence is produced before the Master upon a reference of title which did not appear upon the abstract delivered to the purchaser, and the Master reports upon such evidence that a good title can be made, the purchaser is entitled to his costs of the reference.(2) (1) Walters v. Pyman, 19 Ves. 351. (2) Fielding v. Higginson, Reg. Lib. 1613, fo. 1589. CHAPTER VIII. BILL OF DISCOVERY AND FOR COMMISSION TO EXAMINE WIT. NESSES ABROAD. Nature of, and when allowed to be filed, 498. Proceedings in a bill of discovery, 499. When demurrable, 500. Commission to examine witnesses abroad, 500. Upon what affidavit obtained, 501. And under what circumstances, 502. How commission obtained and executed, 502. A bill of discovery never dismissed for want of prosecution, 503. But the defendant after answer moves for costs, 504. Answer to, when evidence, 504. Amendment of bill of discovery, 505. Depositions how used at law, 506. Commissions for examination of witnesses under 1 Will. 4, c. 22,-505. THE species of bill usually distinguished by this title is a bill for discovery of facts resting in the knowledge of the defendants, or of deeds or writings or other things in his custody or power, and seeking no relief in consequence of the discovery. This bill is commonly used in aid of the jurisdiction of some other court, as to enable the plaintiff to prosecute or defend an action at law or any proceeding of a civil nature, before a jurisdiction which cannot compel a discovery upon oath.(1) The bill alleges that it is in aid of proceedings either pending or intended,(2) and prays for an injunction to restrain such proceedings at law till the answer of the defendant, and till the further order of the Court.[a] (1) Mitf. Pl. 52. (2) Cardale v. Watkins, 5 Madd. 18. [a] The Court of Chancery has jurisdiction, by what is termed a bill of discovery, in all cases where a discovery is wanting. Pryor v. Adams, 1 Call, 382; Avery v. Holland, 2 Tenn. 77; McIntyre v. Mancius, 16 Johns. 592. It is a rule, however, (to which the case of corporators is the only exception, (see ante, 203, 204, notes,) that a bill of discovery is not maintainable against one not a party to the record at law, however he may be interested in the action. Mayor of London v. Levy, 8 Ves. 403; Le Texier v. Margravine of Anspach, 15 Ves. 164; Irving v. Thompson, 9 Sim. 23; S. C. 3 Lond. Jurist, 1071; Tooth v. The Dean and Chapter of Canterbury, 3 Sim. 49, (5 Eng. Ch. Rep. 25;) Few v. Guppy, 1 Myl. & Cr. 487; Glynn v. Soares, 1 You. & Coll. 688; Kerr v. Rew, 4 Lond. Jurist, 525. A bill of discovery comes too late, after a trial at law. It should be filed, pending the suit at law, that the facts disclosed in the answer may be used as evidence before the jury. Thurmond v. Dunham, 3 Yerg. 99; Harrison v. Harrison, 1 Litt. 140; Alley v. Leadbetter, 1 Dev. Eq. 449; Faulkner's Adm'x v. Harwood, 6 Rand. 125; Duncan v. Lyon, 3 Johns. Ch. Rep. 355; Foltz v. Pourie, 2 Desau. 40. To entitle the complainant to a discovery, a clear right must be shown, and that a suit is brought, or that the discovery is necessary to the bringing of the action. Rees v. Parish, 1 McCord's Ch. Rep. 59. So, also, the bill must state some particular matter of which the complainant has a right to seek a discovery, as material to his case, and without which he cannot proceed to trial. A mere inquiry, because the grounds of the suit at law are unknown, cannot be maintained, being a fishing bill. Newkerk v. Willett, 2 Caines's Cas. in Er. 296; Lucas v. The Bank of Darien, 2 Stew. 280. And it After an order in bankruptcy granted on a petition to supersede the commission 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 [ *499 *filed without leave of the Court. (1) Where a bill has been filed for tithes, the defendant by cross bill is not entitled to a discovery of the plaintiff's title to the tithes, but he is to a discovery whether he has conveyed them away.(2) Where the bill seeks relief as well as discovery, the Court will not upon motion aid the plaintiff in proceeding at law. Any such proceeding must be under a decree. Therefore in such a case, a motion that the defendant should produce deeds, &c., at the trial of (1) Cooke v. Marsh, 18 Ves. 209. (4) Glegg v. Legh, 4 Madd. 193. must be distinctly for a discovery, and must cal! for something which it is not in the complainant's power to set out in his bill. Farley v. Farley, 1 McCord's Ch. Rep. 517. It must also be for matters which lie only within the defendant's knowledge. Bullock v. Boyd, 2 A. K. Marsh. 323. Nor is it sufficient, to charge that certain facts are known to the defendants, and ought to be disclosed by them; but it should be averred, that the plaintiff is unable to prove such facts by other testimony. Duvals v. Ross, 2 Munf. 290; Bass v. Bass, 4 Hen. & Munf. 478; Emerson v. Staton, 3 Monroc, 117. Nor will a discovery be allowed, merely to guard against anticipated perjury in a suit at law. Leggett v. Postley, 2 Paige, 599. And where the ground alleged for the jurisdiction is a discovery, and the fact sought fully appears by the complainant's own proofs, be defeats himself. Emerson v. Staton, 3 Monroe, 119. So, when the facts depend on the testimony of witnesses, and the court of law can compel their attendance, chancery will not interfere. Gelston v. Hoyt, 1 Johns. Ch. Rep. 543; Russell v. Clark's Ex'rs, 7 Cranch, 69. A bill of discovery cannot be maintained, in aid of an action for a mere personal tort. Glynn v. Houstoun, 1 Keen, 329. Nor will such a bill be sustained, merely to get admissions of the defendant, which may be used in mitigation of damages, in an action of trespass, at law. Gelston v. Hoyt, 1 Johns. Ch. Rep. 543. Nor can a bill of discovery be filed, in any case, against infants, inasmuch as they never answer under oath; Leggett v. Sellon, 3 Paige, 84; nor against a wife, to aid the prosecution of a suit at law against the husband and wife, for a debt contracted by her while a feme sole; Barron v. Gillard, 3 Ves. & B. 165; nor can the wife be compelled to answer a bill of discovery, as to matters in which she has no personal interest. City Bank v. Bangs, 3 Paige, 36. A bill of discovery will be sustained, to aid the prosecution or defence of a civil suit in a foreign tribunal. Mitchell v. Smith, 1 Paige, 287. See contra, Bent v. Young, 9 Sim. 180; S. C. 2 Lond. Jurist, 202. So, also, it will be sustained, to aid a suit at law, although 'the sum in controversy be below that which limits the jurisdiction of this court. Goldey v. Becker, 1 Edw. 271; Schroeppel v. Redfield, 5 Paige, 245. The discovery being the sole object of the bill, the defendant is entitled, as soon as the answer is perfected, to move for costs, which are given against the complainant, of course, if the charges in the bill are denied; although, where the material allegations in the bill are admitted by the answer, and the defendant also admits that he was applied to by the complainant, and refused to make the discovery previous to the filing of the bill, he will not be entitled to costs. King v. Clark, 3 Paige, 76. And where the bill is filed for the discovery, solely, upon the coming in of the answer negativing the allega. tions of the bill, the injunction should be dissolved; Webster v. Couch, 6 Rand. 519; and the bill dismissed. Overton v. Searcy, 1 Cook, 36; Hawkin's Ex'rs v. Sumter, 4 Desau. 105; Robinson v. Gilbreth, 4 Bibb, 184; Lemon v. Cherry, 1 Bibb, 252. See further, on this subject, ante, 203, 204, notes. an ejectment was refused.(1) Under similar circumstances the Court would not upon motion order that an outstanding term should not be set up by the defendant against an ejectment brought by the plaintiff. The Court said, "There are two ways of proceeding: you may get a discovery in aid of an ejectment, but if you will have equitable relief to aid the trial of your title at law, you must have that relief upon a decretal order prior to the trial at law.(2) A bill of discovery cannot be amended by adding parties as plaintiffs.(3) If a bill is filed for a discovery and relief, and the plea is sufficient to bar the relief, it is held to bar the discovery.(4) The plaintiff files his bill and serves a subpoena, and if the defendant does not appear in a town cause within four days, and in a country cause within eight days after service thereof, the plaintiff upon affidavit of the service of the subpoena, procures an attachment to be sealed against the defendant, (which need not be executed) whereby the defendant is in contempt, and thereupon the plaintiff is entitled to move for the common injunction to stay execution, which upon notice of motion supported by the *usual affidavit, he may extend to stay trial [ *500 ] of the action at law. If the defendant appear, and whether residing in town or in the country, does not put in a plea, answer, or demurrer, within eight days after his appearance, the plaintiff is entitled to move for the common injunction.(5) A bill of discovery is demurrable if the words "stand to and abide such further order and decree thereon," are inserted in the prayer of process,(6) but the word “order” without the word "decree" in the prayer of process does not render the bill demurrable.(7) A bill praying discovery and concluding with the prayer for general relief, is a bill for relief; but if words adapted to a bill for relief are used in the prayer of process only, it is a bill of discovery.(8)[a] (1) Aston v. Lord Exeter, 6 Ves. 288. (7) Baker v. Bramah,b 7 Sim. 17. (2) Hylton v. Morgan, 6 Ves. 293. (4) Sutton v. Earl Scarborough, 9 Ves. 75. [«] If a bill of discovery contain the formal prayer for general relief, that the plaintiff may have such further and other relief, as the circumstances of the case may require, Eng. Chan. Reps. ix. 343. Ib. ix. 457. Ib. ix. 155. |