Note on Examination before Trial.

Second. A second important rule was that the facts of the case must be so fully stated that the court could see the materiality of the testimony sought.

On this point, SPENCER, Ch. J., delivering the opinion of the court of errors, says: "As a general rule, a bill of discovery must state the matter in relation to which a discovery is sought, the interest of the party, with the right to require the discovery. The court of chancery acts ancillary to the courts of law, in compelling a discovery of facts to aid a party in prosecuting or defending his rights. But it is a fundamental rule, that it will not compel a defendant to discover that which, if he answers in the affirmative, will subject him to punishment, or render him infamous, or expose him to a penalty."

"Bills of discovery are for the purpose of gaining a knowlege of facts within the privity of the defendant, and the case must be so far disclosed as to enable the court of equity to see and be satisfied that the ends of justice require the interposition of its powers; and when the facts attempted to be elicited may be evidence in a court of law, it should be shown, by a statement of the case, that the facts interrogated to would be pertinent, and might be material, and hence, ordinarily, the case must be so for stated as to show the relevancy of the facts intended to be drawn forth."

The case in which this rule was stated (McIntyre v. Mancius, 16 Johns. 592; rev'g 3 Johns. Ch. 45), is a very apt illustration. Chancellor KENT had held below that the bill would not lie because the facts of which it was sought to compel the defendant to make discovery were not stated. In the court of errors, Chief Justice SPENCER pointed out that the gist of the bill was that the defendant was the clerk of the real plaintiff at law, and was made a co-plaintiff merely to prevent his testifying, and that, under such exceptional cir cumstances, the materiality of the testimony could be alleged in general terms.

Apart from such exceptional cases, the courts applied the rule that the complainant must state facts showing a good cause of action or defense (Atwill v. Ferrett, 2 Blatchf. 39; Primmer v. Patten, 32 Ill. 528; Marsh v. Davison, 9 Paige, 580; Bailey v. Dean, 5 Barb. 297); although it was early settled that if a prima facie case was made by the complainant, it could not be controverted by the defendant for the purpose of evading the discovery.

Third. A third rule was that discovery would not be ordered if the facts could be with reasonable convenience proved in another mode. Chancellor KENT held that if every material fact could be proved in the court of law by the testimony of witnesses, a court of VOL. I.-22

Note on Examination before Trial.

equity should not sustain a bill for discovery. Thus where an action of trespass was brought against revenue officers for seizing a vessel, and they applied to a court of chancery for a bill of discovery of facts in the knowledge of the plaintiffs and others; held, on a motion to dissolve an injunction granted by a master staying the suit at law, that as it was not denied that the court of law could compel the discovery, as the facts depended upon the testimony of witnesses which could be procured at law, equity would not interfere. 1815, Gelston v. Hoyt, 1 Johns. Ch. 543.

The supreme court of the United States gave their sanction to this doctrine in Brown v. Swann, 10 Pet. 501 (1836), where WAYNE, J., delivering the opinion of the court says: "One of the former [i. e., of bills for discovery from an interested party] is a bill for the discovery of facts alleged to exist only in the knowledge of a person, a party to a private transaction with the person seeking the disclosure; essential to the establishment of a just right in the latter, and which would be defeated without such disclosure. In other words, it is a bill to discover facts, which cannot be proved, according to the existing forms of procedure at law. The jurisdiction of a court of equity, in this regard, rests upon the inability of the courts of common law to obtain, or to compel such testimony to be given. It has no other foundation: and whenever a discovery of this kind is sought in equity, if it shall appear that the same facts could be obtained by the process of the courts of common law, it is an abuse of the powers of chancery to interfere. The courts of common law having full power to compel the attendance of witnesses; it follows that the aid of equity can alone be wanted for a discovery in those cases where there is no witness, to prove what is sought from the conscience of an interested party. 1836, opin. by WAYNE, J., Brown v. Swann, 10 Pet. 497. S. P., Heath v. Erie Rw. Co., 9 Blatchf. 316.

See also on the question of necessity, -Bell v. Pomeroy, 4 McLean, 57; Perrine v. Carlisle, 19 Ala. 686; Dickinson v. Lewis, 34 Id. 638; Temple v. Gove, 8 Iowa, 511; Hurd v. Dutchess Co. Bank, 1 Morris (Iowa), 384; Howell v. Ashmore, 9 N. J. Eq. 82; Elliston 1. Hughes, 1 Head, 225; Lindsley v. James, 3 Coldw. 477; Burns ↑. Hill, 19 Geo. 22; Merchants' Bank v. Davis, 3 Id. 112; Bass v. Bass, 4 Henn. & M. 478; Duvals v. Ross, 2 Munf. 290; Emerson v. Staton, 3 T. B. Monr. 116; Bullock v. Boyd, 2 A. K. Marsh. 322; Skinner v. Judson, 8 Conn. 528; Norwich, &c. R. R. Co. v. Storey, 17 Conn. 364; Clapp v. Shephard, 23 Pick. 228; Peck v. Ashley, 12 Metc. 478; Turner v. Dickerson, 9 N. J. Eq. 140.

But absolute inability to prove the cause of action or defense

Note on Examination before Trial.

without discovery, was not always necessary. Very serious and otherwise unnecessary expense and inconvenience in getting witnesses' testimony was sometimes held enough. Thus, in an action at law against the acceptor of a bill of exchange, he denied his signature to the acceptance, and the plaintiff filed a bill of discovery, in which he showed that he had a good cause of action against the defendant in the suit at law, and that the discovery sought for was material to enable him to succeed, and that he could not otherwise prove the sig-. nature without a commission to Europe. Held, on appeal from an order overruling a demurrer to the bill, that in such a case it is not necessary, in a simple bill of discovery, except for the purpose of obtaining an injunction, for the complainant to allege that he cannot establish his right at law, without a discovery from the defendant. Cases in Chancery, 1847, opinion by WALWORTH, Ch., Vance v. Andrews, 2 Barb. Ch. 370.

The doctrine was that discovery could be granted, either because the party could not otherwise prove; or in aid of proof, because he could not otherwise prove so adequately, or without great expense. Chancellor WALWORTH relaxed the rule (except in cases of usury) and held that it was enough to show materiality. March v. Davison, 9 Paige, 580, And see Atlantic Ins. Co. v. Lunar, 1 Sandf. Ch. 91. But the weight of authority is that a reasonable cause for calling for discovery, or, in other words, the essential convenience of it, must be shown. 1848, Bailey v. Dean, 5 Barb. 297.

Fourth. The discovery was restricted to matters which were both material to the issue, and competent and admissible under it. Kuypers v. Reformed Church, 6 Paige, 570. It was not allowed where the answers would not be competent evidence at law. Norton v. Woods, 5 Paige, 249; 22 Wend. 520; Burgess v. Smith, 2 Barb. Ch. 276; Dykers v. Wilder, 3 Edw. Ch. 496.

Fifth. It was not granted in aid of proceedings by indictment or information, or the defense thereto, including in this exception the writ of mandamus. Ch. HARDWICKE, 1751, Ld. Montague v. Dudman, 2 Ves. Sr. 398.

Sixth. In general an infant could not be compelled to make discovery. Ld. Ch. HARDWICKE, 2 Ves. Sr. 494.

Seventh. It was not allowed to compel one to answer as to matters which it appeared from the papers would tend to subject him to indictment, penalty, or forfeiture, or any thing in that nature, other than the loss of the claim in suit. Taylor v. Bruen, 2 Barb. Ch. 301; Conant v. Delafield, 3 Edw. Ch. 201; Sharp v. Sharp, 3 Johns. Ch. 407; Deas v. Harvie, 2 Barb. Ch. 448; Leggett v. Postley, 2 Paige, 599; Currier v. Concord R. R. Co., 48 N. H. 821.

Note on Examination before Trial.

Thus in general a defendant in libel or slander was entitled to a discovery from the plaintiff, but the plaintiff was not against the desendant. 4 Sim. 263; Marsh v. Davison, 9 Paige, 580; Bailey v. Dean, 5 Barb. 297.

In the case of Moody v. Libbey, reported at p. 154 of this vol., an application was subsequently made to BRADY, J., for an order to examine the plaintiff as a party before trial under section 391 of the Code. The application was granted, defendants basing the application on Richards v. Judd, 15 Abb. Pr. N. S. 184.

And according to some authorities the rule excluded discovery of matter of scandal, or what may lead to a legal accusation. 1 Mod.

173.

As to the cases on the application of the rule in actions involv ing a charge of a penal offense, see further, 2 Story's Eq. Jur. 822, and note. And as to deceit or fraud, see Attwood v. Coe, 4 Sandf. Ch. 412; Union Bank v. Barker, 3 Barb. Ch. 358.

But after the penalty was barred by the statute of limitations, or by waiver, the exception was no longer applied. Skinner t. Judson, 8 Conn. 528.

Eighth. Upon the same grounds of public policy that all courts regard communications between attorney and client, made in the professional relation and confidence, as privileged, and refuse to allow the attorney to testify to them as a witness, except with the client's consent, the court of chancery refused to compel the client to make discovery of them. See Crosby v. Berger, 11 Paige, 377; aff❜g 4 Edw. Ch. 254; Wakeman v. Bailey, 3 Barb. Ch. 482; 1 Dan. Ch. Pr. 571.

Ninth. Although usually refused after judgment, it could be granted to relieve against subsequent proceedings. Thus where one who had revived a paid judgment advertised land for sale on execution, a bona fide purchaser, in possession, was allowed a bill of discovery of the grounds on which his title was attempted to be impeached, because a fair sale could not be made while the title was unknown and doubtful. 1818, opin. by KENT, Ch., Kimberly . Sells, 3 Johns. Ch. 467.

Tenth. Where the situation of him against whom discovery was sought appealed with equal strength to a court of equity for protection against discovery, the court would refuse to inrerfere. A familiar instance is the class of cases very frequent before the registry laws, of a bona fide purchaser in possession, and defending against discovery sought by a claimant (other than a dowress). Meth. Epis. Ch. v. Jaques, 1 Johns. Ch. 74. So where the borrower sought discovery as to usury, it was refused unless he offered to pay

Martin v. Hicks.

the original debt. Rogers v. Rathbun, 1 Johns. Ch. 367. Wend. 330; 3 Paige, 539; 11 Id. 618.

Lastly. These principles applied equally in favor of defendants as plaintiffs.. 1842, opin. by WALWORTH, Ch., Lane v. Stebbins, 9 Page, 621.

So far as the court have any discretion by the statute under which the application is made, to grant or refuse an examination of a party, or to determine the question as justice may require, these principles may afford some guide.

For recent decisions as to the object of a bill of discovery, see Kearny . Jeffries, 48 Miss. 343; Buckner v. Ferguson, 44 Id. 677; Heath v. Erie Rw. Co., 9 Blatchf. 316. And see 8 Id. 413; Shotwell ®. Struble, 21 N. J. Eq. 31; Shotwell v. Smith, 20 Id. 79; Hopkins 0. Calloway, 7 Coldw. (Tenn.) 37; Printup v. Fort, 40 Geo. 276; Des Moines, &c. R. R. Co. v. Graff, 27 Iorca, 99; O'Connor v. Tack, 2 Brewst. 407.

As to whether a party by examining his adversary, adopts him as a witness within the rule that a party cannot impeach his own witness, compare Plato v. Kelly, 16 Abb. Pr. 188; Armstrong v. Clark, 2 Code R. 143; Code of Pro. §§ 393, 395; Miller v. Tollison, 1 Harp. Ch. 145; Dunham v. Gates, 1 Hoffm. Ch. 185; Rison v. Cribbs, 1 Dill. 181. And see Ecklar v. Galbreath, 5 Bush, 617.

As to compelling the production of books and papers on an examination before trial, see 3 Greenl. Eo. § 300; Hauseman v. Sterling, 61 Barb. 347; Emma Silver Mining Co., L. R. 10 Ch. App. 194; 8. C., 12 Moak's Eng. R. 701; Costa Rica v. Erlanger, L. R. 19 Eq. Cas. 33; S. C., 11 Moak's Eng. R. 653; Havemeyer v. Ingersoll, 12 Abb. Pr. N. 8. 301; and the next case but one, Smith v. MacDonald, p. 350 of this vol.

MARTIN v. HICKS.

Supreme Court, First Department; General Term, December, 1875.

APPEAL.-ORDER RESTING IN DISCRETION. PERPETUATING TESTIMONY.-FORM OF AFFIDAVIT.

Upon appeal from an order by which a motion was denied on the ground of want of power of one judge to modify the order of another judge, the general term may look into the