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A treatise on the pleadings in suits in the Court of chancery, by English bill online

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spirit of the constitution, declaring that no one shall be compelled in
any criminal case, to be a witness against himself,) although he de-
murs to the relief. A similar averment of (he necessity of a discovery
in aid of his defence, and sworn to, is necessary, where he asks for
injunction to stay proceedings there until answer to the bill. He must
in a bill of discovery charge, either on information and belief, or
otherwise, that the matters of which he seeks a discovery are true in
point of fact, but the omission may be supplied by amendment.
(March v. Davhon, 9 Paige's Ch. Rep. 683—6, &c. 680. See Broun
V. Swan, 10 Peters, 602, supra, note. Also, Russell v. Clark^s Ex^rs,
7 Cranch, same note; and Story's Eq. PI. 4th edit., 5 319, n. 2.)

After a verdict at law, a party comes too late with a bill for dis-
covery. There must be a clear case of accident, surprise or fraud,
before equity will interfere. (Id. 504, Brown v. Swan.)

A mere bill for discovery in aid of a defence of a suit at law, does
not concern property, and therefore the amount required (in New-
York by statute) to sustain the jurisdiction or " dignity" of the court,
(viz. $100) is immaterial. But by introducing a prayer for relief,
complainant makes it a suit " concerning property" within the pro-
visions of the statute, and if the value is less than $100, the bill must
be dismissed with costs. \Idem. 5 Paige, 245 — 8. Goldey v. Becker,
1 Edw. V. C. R. 271.)

As to the right to file a bill of discovery against a partner of a firm
after its dissolution, and the effect of his answer on oath as evidence in
aid of a defence to a suit at law, the chancellor, in Woods v. Norton,
B Paige's Rep. 249, on motion to dissolve injunction, held that such
answer would not be evidence ; but Mr. Justice Bronson, in the only
opinion given on appeal, Norton v. Woods, 22 Wendell Rep. 524, af-
firming the decision of the chancellor, expresses his dissent from the
chancellor, no question being taken however thereon, except the ge-
neral question of reversal or affirmance of the decree, the point dis-
cussed by Judge Bronson as to the right to file a bill of discovery and
the effect of such answer, is to be regarded as an open question. (See
ibid. 22 Wend. 625. n. 520.) See further, note, infra.



S. III.] SEVERAL KINDS OF BILLS. 65

proceeding of a nature merely civil (d) before a
jurisdiction which cannot compel a discovery on
oath (6') ; except that the court has in some instances
refused to give this aid to the jurisdiction of in-
ferior courts (/) (1). Any person in possession of p.j^^ ^
an estate, as tenant or otherwise, may file a bill '°„"„ '".alnsra
against a stranger bringing an ejectment, to dis- p|^'^"j';"^"'^J^<=''
cover the title under which the ejectment may be
brought (g), though the plaintiff may not claim
any title beyond that of a mere tenant or occu-
pant (2). A bill of this nature must state the mat- contents there-

. (d) 2 Ves. 398. (/) 1 Ves. 205.

(e) Du7m V. Coates, 1 Atk. 288 ; (g) 1 Ves. 249 ; sed qu. note.
1 Ves. 205 ; Anon. 2 Ves. 451.



(1) It has never been decided that a discovery will be enforced by . .,

, ^, ...riip DiscoTcry m aid

the court of chancery in aid o; the defence to a suit in a foreign court, of proceedings

But, at all events, it will not bo enforced where the bill does not state court ""^^'^"^

that the plaintiff cannot have a discovery in the foreign court. Bent

V. Young, 9 Sim. 180.

(2) The case of Metcalfv. Harvey, 1 Ves. sen. 249, (cited above,)
where Lord Ilardwicke appears to have decided that a person in pos-
session of an estate, against whom another had brought ejectment,
might bring a bill against the plaintiff in that suit, to compel him to
discover his title under which he claimed to oust complainant of the
premises, has not been followed in England, and is in conflict with de-
cisions here, and with Adderley v. Sparrow, cited by Lord Redesdale,
(225, [190], infra); Chancellor Kent, in Kimherley v. Sells, 3 Johns.
Ch. Rep. 467, decided on the special circumstances without intending
to endorse Lord Hardwicke. A party to a suit at law cannot be com-
pelled to discover the grounds of his claim therein. The other party
■must resort to his right at law, for a bill of particulars. But com-
plainant in a bill of discovery must state a case which shows that the
discovery sought is material to the prosecution or defence of the suit
at law, whicli he wishes to establisli by the defendant's confessions in
answer to his bill ; otherwise the bill will bo regarded as a mere fish-
ing bill. It is not sufficient for complainant to allege that the matters
as to which discovery is sought are material to the defence in the suit
at law, but he must state his case in such a manner in his bill, that
the court can see how they may be material. Hence, where complain-



66 FRAME AND END OF THE [ClIAP. L

ter touching which a discovery is sought, the inte-



ant filed bill for discovery in aid of a prosecution at law, or rather to
aid him to resist a set-off which defendant in a notice to his plea of
• general issue had set up, and claiming a discovery of the grounds or
particulars of such set-off, without stating a case agreeably to the
foregoing principles, that entitle him to the discovery ; a demurrer
was sustained on appeal : the court holding, that although in a proper
case, a discovery in aid of a prosecution, will be compelled in the
same manner and extent as if for defence, yet the bill was defective in
not stating a case which shows that the discovery sought is material
to resist an illegal or inequitable claim of set-off. {Lane v. Stebbins, 9
Paige's Rep. 624—6. 622 ; citing also 3 Johns. Ch. Rep. 47 ; 2 Id. 413.)
The court will not aid a landlord to compel discovery from his
tenant as to the existence of covenants or conditions in a lease, where-
by lessee's estate may have become forfeited. Therefore, where a bill
was filed for the purpose of ascertaining whether there might not be
something in the original lease, (under which complainant for forty-
two years had received a certain rent, but the original lease he had
never seen, but without alleging that he ever believed that a greater
rent was reserved or stipulated to be paid,) which would entitle com-
plainant to claim other or greater rights, in relation to the lot, than
those he had been exercising for nearly half a century, it was pro-
nounced a fishing bill, and demurrable. (Lansing v. Pine, 4 Paige's
Rep. 639.)

If the facts sought to be discovered, could not, if disclosed, be so
used as to support or sustain any title or interest of the complainant,
or enable him to sustain any action for any vested interest, the bill
cannot be sustained. As where, in Massachusetts, the bill charged a
fraud on part of defendant acting as deputy sheriff, and in his own
natural capacity ; but the plaintiff did not show sufficient direct in-
terest in the subject matter to entitle him to discovery, the court held
that over a direct charge of fraud they had no jurisdiction in equity,
and that though a fraud incidentally drawn in question, the court hav-
ing otherwise jurisdiction would inquire and decide, yet the bill as a
bill of discovery, was not sustainable for the reasons given. (Fiske
V. Slack, 21 Pick. Rep. 366. 361 ; Holland v. Crufi, 20 Id. 321.)
Bill of discove- -^ bill of discovery in aid of a defence to an action cannot be sus-
ry agamst a per- tained against a person who is not a party to the record at law, al-

son not a party e r r J J

to the record, in though the plaintiff at law is only the agent of such person, and has
an action at law. , , ^ . , • , , ,r

brought the action on his beiialf.

And hence, where an action is brought by the agent of a foreign

sovereign on bills of exchange, the acceptors thereof cannot make the

sovereign a party to a bill of discovery in aid of their defence to such.



S. III.] SEVERAL KINDS OF BILLS. 66

rest of the plaintiff and defendant in the subject,

action. The Queen of Portugal v. Glyn, 7 CI. &Fin. 466. And upon
the same principle where an action is brought again-t underwriters on
a policy of insurance, they cannot make a person not a party to the
record at law, a party to a bill of discovery against the plaintiff at
law; though they allege that the policy was effected by the plaintiff
at law as agent for such other person. Such a practice migiit be
made an engine for the oppression of persons alleged to be interested,
but in reality not interested in the action ; and where such persons are
also out of the jurisdiction, it might also be made a means of delaying
and defeating the plaintiff at law. Kerr v. Rew, 9 Law J. (N. S.)
148, L. C.

A bill of discovery cannot be filed against one who is apparently a Discovery not
mere witness, and not a real party in interest. For such discovery party^*^ nonuna
could not be evidence for another in a suit at law. But under the Usury.
New- York usury act, May, 1837, a remedy ait law is given, as the real
as well as nominal plaintiff in record may be examined. Where,
however, defendants at law had been tricked out of their defence, a
bill for discovery and relief is sustainable on ground that they were
deceived and defrauded out of such defence. (Post and another v.
Board)nan, 10 Paige's Rep. 580.)

Where two are sued at law on a joint contract, on a demand said to
be usurious, but within the knowledge of one of the defendants, the
other cannot file a bill for relief to make his co-defendant a witness
merely to establish the usury. But where the defence is personal as
to one, and can only be established by the testimony of his co-defen-
dant, lie may file a bill for relief to obtain his testimony. (Saiage v.
Todd, 9 Paige's Rep. 518.)

Formerly by the usury law in New- York, the usurious contract was
absolutely void. If the borrower could prove the usury, it was a com-
plete defence at law. If he could not, and was compelled to invoke
the aid of equity, by a bill of discovery against the lender, calling on
him to admit or deny the usury, he was met by the cardinal maxim of
that court, that " he who asks for equity must do equity," and there-
fore neither discovery nor relief could be obtained, without a repay-
ment of the sum actually lent with lawful interest, and an offer to
that effect must have been made in the bill, or it was demurrable. The
court guarded that principle, where the bill was for discovery merely,
by the additional principle that equity will not coinpei a defendant to
answer on oath, and thus become a witness for his adversary against
himself, where his answer may subject him to a criminal proceeding,
penalty, forfeiture, or loss in the nature of forfeiture. In such case
therefore, the borrower was bound to waive the forfeiture and pay the
actual loan, not only because it was just and equitable, but to guard



66 FRAME AND END OF THE [ChAP. I^

and the right of the first to require the discovery
from the other (h).
Bills of discove- A bill seeking a discovery of deeds or writings

ry of documents . T/'/^ii iii

prayinj; relief somotimes Dravs a reliei, lounded on the deeds or

jouiided on i. •/

them. writings of which the discovery is sought. If the

relief so prayed be such as might be obtained at
law, if the deeds or writings were in the custody

(Ji) Car dale V. WatUns, 5 Madd. Dick. 652 -,8.0.1 Bro. C. C. 468. .
18 ; and see Moodaly v. Moreton, [Jeremy's Eq. Juris. 257.]

against the possibility of defendants answer being the means oi sub-
jecting him to a forfeiture. In some cases, such as bonds with war-
rants to confess judgment, and mortgages with power to foreclose by
advertisement at law, the holder, from the nature of his security, need
not go tt) a court of law or equity to enforce them. The borrower in
such cases, (although he could prove the usury without resorting to
the oath of the lender,) had no opportunity of setting it up, or availing
himself of it at law, and therefore, in such case also, where he was
compelled to file his bill and ask relief in equity, although he required
no discovery, the court would not relieve him from the usurious excess,
excepting on the equitable condition of repaying the sum actually
loaned. The Revised iStatutes (New-York) changed the law and
circumscribed the original power and authority of the court to impose
the above terms as condition of discovery or relief, or both, by exempt-
ing a bona fide holder from the operation of the act : by dispensing
with the necessity on part of borrower on bill of discovery of paying
or offering to pay any interest uhatever on the sum or thing loaned;
and by a judicial interpretation of the act in the court of errors, that
in the cases above enumerated, wliere the security was of such na-
ture as to preclude the borrower from recourse in the first instance to
law or equity, as on bond and warrant, or mortgage as mentioned, even
where he could prove the usury, and where relief only is asked with-
out any discovery from the lender, it shall be granted without requiring
the payment of the money loaned. It was but abrogating a particular
rule of the court, to give effect to and defeating any evasion of the law
for the prevention of usury. By consequence on bill for discovery,
the court still requires payment or offer in the bill to pay the principal
sum (without interest) ; so also on bill for discovery and relief ; but
on bill for relief only, in such cases as those suggested, tlie statute
operates in full vigor. {Livingston v. Harris, in error, 11 Wend. 329,
on affirmance of S. C. 3 Paige's Rep. 628.)



S. III.] SEVERAL KINDS OF BILLS. 66

of the plaintiff, he must annex to his bill an affida-
vit that they are not in his custody or power, and
that he knows not where they are, unless they are
in the hands of the defendant (i) ; but a bill for
a discovery merely, or which only prays the deli-
very ofdeedsorwritings, or equitable relief grounded
upon them, does not require such an affidavit (k) (1).

If the title to the possession of the deeds and ^7° action 'at

/. J • 1 ,1 1 • .•rr ' J law is necessary.

writmgs ot which the plamtiii prays possession de-
pends on the validity of his title to the property to
which they relate, and he is not in possession of 67

that property, and the evidence of his title to it is
in his own power, or does not depend on the pro-
duction of the deeds or writings of which he prays ^ ^
the delivery, he must establish his title to the pro-
perty at law before he can come into a. court of
equity for delivery of the deeds or writings (I).

II. Bills not original are either an addition to n- Buig not ori

O ginal.

or a continuance of an original bill, or both. An

(t) 1 Ves. 344 ; Hook v. Dorman, 247 ; Whithurch v. Golding, 2 P.

1 Sim. & Stu. 227. [Executors of Wms. 541 ; 1 Ves. 344; 3 Atk. 132.

Livingston v. Livingston, 4 Johns. But see Aston v. Lard Exeter, 6

Ch. Rep. 294. See form of affidavit, Ves. 288.

1 Grant's Pr. 2d edit. 13.] [See form (Z) See Jones v. Jones, 3 Meriv.

of bill, Willis, 13. 27; and further on 161; 1 Madd. Rep. 193 ; Crow v.

this species of bill, p. 185, /)os<.] ' Tyrrell, 3 Madd. 179; Field y.

(k) Godfrey v. Turner, 1 Vern. Beaumont, 1 Swanst. 204.

(1) The reason of this distinction is, that in the first mentioned
case wliere an affidavit is required, the plaintiff seeks to change the
tribuniil, by substituting the proceedings of a court of equity for the
less tedious and less expensive procedure of a court of law.

It seems a party has no right to the production of deeds which re-
late alone to the adversary's title. He shall have discovery of so much
as reUites to his own, but not pry into that of defendant. But when
defendant complies with the prayer for inspection of the deed, without
opposition, no difficulty exists on that part of the case. {Thompson
V. Eagle et al., 3 Green's Ch. Rep. (N. J.) 275—6. 271.)



67 FRAME AND .END OF THE [ChaP. I.

whcnnn^cnd- imperfection in the frame of a bill may generally

mentis not per- i ^ o ^

Si9o"'ca8ion be remedied by amendment ; but the imperfection
kid.*"" °' *'"* may remain undiscovered whilst the proceedings
are in such a state that an amendment can be per-
mitted according to the practice of the court (1).



(1) [Amendments are granted only where there is some defect as to
parties, or some omission or mistake of a fact or circumstance connected
with the substance of the case, bat not forming the substance itself,
or where there is some defect in the prayer for relief. Lyon v. Tall-
mage, 1 J. C. R. 184 ; Verplanck v. Mercantile Ins. Co. of N. Y.,l
Edwards^ V. C. Reports, 46. See when amendments are allowed in
the court of chancery of the State of New- York, Rules 43, 44, 45«
60; 2 R. S. 184; Hunt v. Holland, 3 Paige's C. R. 78. But the
ordinary rules do not apply to sworn bills. Parker v. Grant, 1 J. C.
R. 434 ; Rodgers v. Rodgers, 1 Paige's C. R. 424 ; Whitmarsh v.
Campbell, 2 lb. 67 ; and see Beekman v. Waters, 3 J. C. R. 410 ; and
Renwick v. Wilson, 6 lb. 81. When a complainant wants to amend
a sworn bill, he must state the proposed amendments distinctly, so that
the court can see that they are merely in addition to the original bill,
and not inconsistent therewith. He must also swear to the truth of the
several matters proposed to be inserted as amendments, and render a
valid excuse for not incorporating them in the original bill ; and the
application to amend must be made as soon as the necessity of such
amendment is discovered. Rodgers v. Rodgers, supra ; Whitmarsh v-
Campbell, supra ; Verplanck v. Mercantile Ins. Co. of N. Y. supra.
Amendments to a bill are always considered as forming part of the
original bill. They refer to the time of filing the bill ; and the defend-
ant cannot be required to answer any thing which has arisen since that
time. Hart v. Everett, 1 Paige's C. R. 124. Consequently, an origi-
nal bill cannot be amended by incorporating therein any thing which
arose subsequent to the commencement of the suit. This should be
stated in a supplemental bill. Stafford v. Howlett, lb. 200. If the
cause has progressed so far that an amendment cannot be made, the
court will give the complainant leave to file a supplemental bill. And
where such leave is given, the court will permit other matters to be in-
troduced in the supplemental bill, which might have been incorporated
in the original bill by way of amendment. lb.

After replication, the plaintiff will not be allowed to amend his bill
until after he has obtained leave to withdraw his replication ; and the
materiality of the amendment, and the reason why it was not stated be-
fore, must be satisfactorily shown to the court. [See cases attached to
the text.] But if a witness has been examined, the pleadings cannot



S. III.] SEVERAL KINDS OF BILLS. 67

This is particularly the case where, after the court
has decided upon the suit as framed, it appears
necessaiy to bring some other matter before the
court to obtain the full effect of the decision ; or,
before a decision has been obtained, but after the
parties are at issue upon the points in the original
bill, and witnesses have been examined (in which
case, the practice of the court will not generally
permit an amendment of the original bill) (in),



(?n) See Chap. 4. An amend- Sim. &Stu. 40; or to correct a mere

ment for the purpose of adding par- clerical error, Att. Gen. v. Newcomhe,

ties, Anon. 2 Atk. 15; 3 Atk. 111. 14 Ves. 1, will be allowed at the

371, and Palk v. Lord Clinton, 12 hearing of the cause. In the case

Ves. 48 ; Daws v. Benn, 1 Jac. & of an infant complainant, this liberty

W. 513 ; Wellheloved v. Jones, 1 it seems would be granted without

be altered or amended, unless under very special circumstances, or in
consequence of some subsequent event except, for the purpose merely
of adding parties. Thorn v. Germond, 4 J. C. R. 363. After publica-
tion passed, and the case is set down for hearing, the plaintiff will not be
allowed to amend his bill, by adding new charges ; but he may file a
supplemental bill on payment of costs. Shepherd v. Merrill, 3 J. C. R.
423 ; and see page 62, ante, and notes there. A second amendment to
a bill was refused, after an answer by one defendant, and a plea by ano-
ther, who was surety, and the plea allowed and the bill as to him dis-
missed, and a motion for rehearing granted, after eighteen months had
elapsed from the first amendment, and no new evidence since acquired ;
and the second amendment being substantially the same as the firsti
though more directly charging the defendants with fraud. Kirby v.
Thompson, 6 J. C. R. 79.

Amendments by merely adding parties have been allowed at almost
every stage of a cause. See amendments of a formal part allowed
after a demurrer. M'llvaine v. Willis, 3 Paige's C. R. 605.

A complainant cannot, as of course, amend his answer by leaving out
the name of defendant. Chase v. Dunham, 1 Paige's C. R. 572. Nor
can one defendant be struck out on motion of another, without notice.
Livingston v. Ogden, 4 J. C. R. 94.

As to office practice and service upon amendments, see Luce v. Gra-
ham, 4 J. C. R. 170 ; Beekman v. Waters, 3 lb. 410 ; Renwick v. WiU
son, 6 lb. 81 ; Bennington Iron Co. v. Campbell, 2 Paige's C. R. 159 ;
Hunt V. Holland, supra. ; Rules 43, 44, 45. 60, of New- York Chancery.]



68 FRAME AND END OF THE [ChAP. L

[56] some other point appears necessary to be made,
or some additional discovery is found requisite (n).
And though a suit is perfect in its institution, it
may by some event subsequent, to the fihng of the
original bill become defective, so that no proceed-
ing can be had, either as to the whole, or as to some
part, with effect ; or it may become abated, so that
there can be no proceeding at all, either as to the
whole, or as to a part of the bill. The first in the
case when, althougli the parties to the suit may
remain bef(5re the court, some event subsequent to
the institution of the suit has either made such a
change in the interests of those parties, or given to
some other person such an interest in the matters
in litigation that the proceedings, as they stand,
cannot have their full effect. The other is the case
when, by some subsequent fivent, there is no per-
son before the court by whom, or against whom,
the suit, in the whole or in part, can be prosecuted.
It is not very accurately ascertained in the books
^9 - of practice, or in the reports, in what cases a suit

L*^'J becomes defective without being absolutely abated;
and in what case it abates as well as becomes de-
restriction, if for his benefit, Pritch- proposed alteration, but also that he
ard V. Qwinchnnt, Ambl. 147 ; and was not in a condition to have made
even in ordinary cases great indiil- it earlier. See Longman v. Calli-
gence has in this respect been shown, ford, 3 Anstr. 807; Forrest, Exch-
See Filkin v. Hill, 4 Bro. P. C. 640 ; Rep. 13 ; Lord Kilcourcy v. Ley, 4
Toml. Ed. ; Palk v- Lord Clinton, Ma.dd.212; Dean of Christchurch v.
.12 Ves. 48 ; Woollands v. Crowcher, Simonds, 2 Meriv. 467 ; Wright v.
12 Ygs. 114; Hamilton V.Houghton, Howard, 6 Madd. 106 ; M' Neill v.
2 Bligh. P. C. 169. And with regard Cahill, 2 Bligh, P. C. 228. See Bar-
to the practice before the hearing, it nett v. Noble, 1 Jac. & W. 227.
. may be observed, that after the cause (w) See Jones v. Jones, 3 Atk»

is. at issue this court will not give the 110; Goodwin v. Goodwin, 3 Atk^
plaintiff leave to amend, unless he 370.
shows not only the materiality of the



S. III.] SEVERAL KINDS OF BILLS. 69

fective. But upon the whole it may be collect-
ed (o), that if by any means any interest of a party hi^s^KmTdt

. . , .,..., J fective by a

to the suit m the matter m litigation becomes vested transfer of an

'^ _ interest.

in another, the proceedings are rendered defective
in proportion as that interest effects the suit ; so
that although the parties to the suit may remain
as before, yet the end of the suit cannot be obtain-
ed (7?) (1). And if such a change of interest is cI^Tabate'd^^y

, , . , r» 1 1 1 *'"' death- or

occasioned by, or is the consequence or, the death mania^c of tho



of a party whose interest is not determined by his
death, or the marriage of a female plaintiff, the pro-
ceedmgs become likewise abated or discontinued,
either in part or in the whole (2). For as far as

(o) It is impossible to give authori- cases it will be found, that, in gene-
ties for every thing asserted upon this ral, the grounds of the decisions war-
head. The books, in words, almost rant the conclusions iiere drawn. .



Online LibraryJohn Mitford RedesdaleA treatise on the pleadings in suits in the Court of chancery, by English bill → online text (page 12 of 61)