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allege in the bill that the facts are material to the plaintiff's case, and that the discovery of them by the defendant is indispensable as proof; (a) for if the facts lie within the knowledge of witnesses who may be called in a Court of Law, that furnishes a sufficient reason for a Court of Equity to refuse its aid. The bill must therefore allege (and if required the fact must be established) that the plaintiff is unable to prove such facts by other testimony.1(b) In the next place, if the answer wholly denies the matters of fact, of which discovery is sought by the bill, the latter must be dismissed; for the jurisdiction substantially fails by such a denial.2(c)

1 Gelston v. Hoyt, 1 John. Ch. R. 543; Seymour v. Seymour, 4 John. Ch. R. 409; Pryor v. Adams, 1 Call, R. 382; Duvalls v. Ross, 2 Munf. R. 290, 296; Bass v. Bass, 4 H. & Munf. 478.

2 Russell v. Clarke's Executors, 7 Cranch, 69; Ferguson v. Waters, 3 Bibb, R. 303; Nourse v. Gregory, 3 Litt. R. 378; Robinson v. Gilbraith, 4 Bibb, R. 184.

(a) As to the discovery of communications alleged in defence to be privileged, see Wheeler v. Le Merchant, 17 Ch. D. 675.

(b) See Nussbaum v. Heilbron, 63 Ga. 312. In Massachusetts a bill for discovery cannot be maintained, it has been held, where the discovery prayed is only incidental to the relief sought, or is obtainable at law by interrogatories. Ahrend v. Odiorne, 118 Mass. 261; Pool v. Lloyd, 5 Met. 525; Ward v. Peck, 114 Mass. 121. Sed qu. since 1877. See ante, p. 30, note.

(c) So in general where the equitable relief sought fails for defect of proof, or other cause, the court is without jurisdiction to proceed further, and should dismiss the bill without prejudice. Dowell v. Mitchell, 105 U. S. 430; Price's Candle Co. v. Bauwen's Candle Co. 4 Kay & J. 727; Bailey v. Taylor, 1 Russ. & M. 73. See Walker v. Brooks, 125 Mass. 241; Pool v. Lloyd, 5 Met. 525; Ahrend v. Odiorne, 118 Mass. 261.

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field, appears in previous editions of this work (subject to some changes and abridgment now made) as §§ 74 a-74 e.

The uncertainty in the jurisdiction of equity to obtain discovery appears to have arisen chiefly from not discriminating sufficiently between that discovery which is sought in support of the bill as evidence merely, or in aid or anticipation of a suit at law (Lord Hardwicke in Lempster v. Pomfret, Ambl. 154; Moodalay v. Morton, 1 Bro. C. C. 469), and that appeal to the conscience of the defendant which is based upon some alleged misconduct either in withholding documents or in suppressing facts to which the plaintiff is entitled, which but for the defendant's conduct he would have had, and thus have been able to obtain redress at law.

In the former case the plaintiff charges no wrong upon the defendant, so far as the discovery is concerned. He asks it as a favor to enable him to obtain redress in equity if the subjectmatter of the suit is appropriate for such remedy; and if not, then to enable him to obtain redress at law. And where the discovery is sought

merely in aid of a suit at law, then, whether it is obtained or not, the plaintiff upon the coming in of the answer is bound to discontinue and pay the costs. Cartwright v. Hateley, 1 Ves. jr. 292, 293. See also Simmons v. Kinnaird, 4 Ves. 746; 1 Madd. Ch. Pr. 217. Though as to the matter of costs, if the defendant on reasonable request refuse to make the admission, and thus drive the plaintiff to equity, where he succeeds, the defendant will not be entitled to them. Weymouth v. Boyer, 1 Ves. jr. 416, 423; Deas v. Harvie, 2 Barb. Ch. 448. Such costs are sometimes taxed in the action at law. 1 Madd. Ch. Pr. 217; Grant v. Jackson, Peake, 203. See further as to costs, Burnett v. Sanders, 4 Johns. Ch. 504; McElwer v. Sutton, 1 Hill, Ch. 32; King v. Clark, 3 Paige, 76; Harvey v. Tebbutt, 1 Jac. & W. 197; Fulton Bank v. New York Canal Co., 4 Paige, 127.

But in a bill for discovery merely in aid of redress, and where no wrong is charged upon the defendant in withholding documents or facts, it is not competent for the plaintiff, according to the English and the better practice, to pray relief unless his case is one which in itself is a proper subject of equitable cognizance. Walker v. Brooks, 125 Mass. 241; Pool v. Lloyd, 5 Met. 525; Ahrend v. Odiorne, 118 Mass. 261. If his case is not of this character, he must ask for the discovery in aid of a contemplated or a pending suit at law. And if he asks relief in a case which is not proper for the interference of equity, the bill is demurrable. He must show not only a case in which he is entitled to discovery, he must also state the true ground of such discovery, that the court may see whether the proceeding is proper. A bill, for instance, will be sustained in aid of a defence at law to a bond or other instrument based upon the ground of illegality in the consideration, while if relief had been prayed the bill must have been dis

missed; the court could give no relief in such a case. Benyon v. Nettleford, 3 Macn. & G. 94. See however the author's observations, supra, § 70. All that is required to be alleged in a bill for discovery in aid of a suit at law is to show that the plaintiff has such a case that the discovery is needful for him. Vance v. Andrews, 2 Barb. Ch. 370; Deas v. Harvie, Ib. 448; Williams v. Harden, 1 Barb. Ch. 298; Welford, Eq. Pl. 99; Stainton v. Chadwick, 3 Macn. & G. 575.

Nor is it necessary in such a case, according to the better view, to allege that the plaintiff is unable to establish his case or defence by other witnesses, or to make any affidavit to that effect, except for the purpose of obtaining an injunction to stay proceedings at law. Vance v. Andrews, 2 Barb. Ch. 370; Appleyard v. Seton, 16 Ves. 223; March v. Davison, 9 Paige, 580; post, §§ 148-150. But see Gelston v. Hoyt, 1 Johns. Ch. 543; Seymour v. Seymour, 4 Johns. Ch. 409; Leggett v. Postley, 2 Paige, 599, which, it is apprehended, are not sound law. As the law stood, when parties could not be witnesses, either party might claim discovery from the other to save expense, delay, or uncertainty. But the necessity for such bills having ceased, this kind of discovery has become practically obsolete. And while it was in full force it required no other check to prevent abuse than the payment of all the expenses without regard to the result.

If however discovery in the broad sense has become a recognized ground of equity jurisdiction in this country, it will not be relinquished because courts of law have advanced to the same position. But it is an American doctrine of equity entirely, springing mainly, as has already been suggested, from confusing that discovery which is merely matter of general evidence, whether sought for purposes of relief in equity or at law, with that which is necessary because of the wrongful

conduct of the defendant, which alone, as where it involves a breach of confidence, may be sufficient ground for equity jurisdiction; springing partly also, it seems, from pushing beyond its just meaning the maxim that where equity obtains jurisdiction of a cause for any purpose it will retain it for final relief. Day v. Cummings, 19 Vt. 496; Bank of United States v. Biddle, 2 Pars. Ch. 54; McGowin v. Remington, 12 Penn. St. 63; Shallenberger's Appeal, 9 Harris, 340; Brooks v. Stotley, 3 McLean, 523; Traip v. Gould, 15 Maine, 82; Boyd v. Hunter, 44 Ala. 705; Peoria v. Johnson, 56 Ill. 45; Corby v. Bean, 44 Miss. 379. But this maxim, it is apprehended, has no proper application where the court has no legitimate jurisdiction of the cause or some portion of it.

But when a party comes into equity for general discovery merely, the court acquires no general jurisdiction over the cause or any part of it. Discovery is something which a party may claim in every cause at law, whether he be plaintiff or defendant, and in every transaction which may fairly be expected to become the foundation of an action thereafter; and that too whether destitute of other evidence or not. He may claim the discovery to save expense or uncertainty in the proof of his case. Story, Eq. Pl. § 319; Stacy v. Pearson, 3 Rich. Eq. 148, 152; Mitford, Eq. Pl. 307, Jeremy. It follows that if such discovery were really a ground of Equity Jurisdiction for ulterior purposes, it would be sufficient to bring any case, proper only for a court of law, into equity, to call for the discovery of facts from the defendant. See Foley v. Hill, 2 Clark & F. 28, 37, Lord Cottenham. And see Hambrook v. Smith, 9 Eng. L. & E. 226.

This reductio ad absurdum has led the American courts from time to time to annex limitations to the application of the rule of giving relief as a consequence of entertaining a bill

for discovery. It is laid down as necessary for a party who seeks to transfer to equity a cause appropriate for a court of law, on the ground of discovery alone, to allege in his bill, and to verify the allegation by affidavit, that he has no other means of proving his case. Gelston v. Hoyt, 1 Johns. Ch. 543; Merchants' Bank v. Davis, 3 Kelly, 112; Bank of United States v. Biddle, 2 Pars. Ch. 31; Emerson v. Staton, 3 B. Mon. 116, 118; Bullock v. Boyd, 2 A. K. Marsh. 322; Stacy v. Pearson, 3 Rich Eq. 148, 152; Laight v. Morgan, 1 Johns. Cas. 429; s. c. 2 Caines' Cas. 344; Lyons v. Miller, 6 Gratt. 427, 428; Sims v. Aughtery, 4 Strobh. Eq. 103, 121. But to make any such fact as the party's want of other evidence the basis of Equity Jurisdiction, the allegation should be traversable, and the jurisdiction should fail upon its disproof. And another necessary qualification of the rule will then arise, to wit, that the existing evidence to defeat the jurisdiction must be in the knowledge, or at least within the reach, of the plaintiff; unless it be so, it is the same to him as if it did not exist. This inquiry whether the plaintiff is destitute of other evidence would raise a collateral issue not capable of decision. The limitation in question, which was at first made to apply to all bills for discovery (Gelston v. Hoyt, 1 Johns. Ch. 543), has been abandoned as to bills which do not seek to transfer a merely legal cause to equity.

The only distinct ground of Equity Jurisdiction over cases of a purely legal nature, based upon mere discovery, is where, as has been stated above, the defendant has been charged with a wrong and a virtual fraud in withholding legal evidence. Sometimes such a case is founded upon the defendant's duty to disclose deeds, writings, and documents in his keeping. Madd. Ch. Pr. 199; Metcalf v. Hovey, 1 Ves. sr. 248. As where an heir claims under the deed withheld,

or is obstructed by an attempt to set up an outstanding and false title. Bond v. Hopkins, 1 Sch. & L. 428, 429; Tanner v. Wise, 3 P. Wms. 295, 296. So a bill of this sort will lie against one who conceals a bankrupt's estate. Boden v. Dillow, 1 Atk. 289. Also where a confusion of boundaries has occurred through the fault of the defendant. Aston v. Exeter, 6 Ves. 288, 293; post, § 620. And where the defendant declines to give knowledge of the goods put on board a ship insured and lost. Le Pypre v. Farr, 2 Vern. 716. But see Taylor v. Ferguson, 4 Har. & J. 46. In these cases of trust and confidence and fraudulent breach of duty equity will retain the bill and give relief. See also Stanhope v. Roberts, 2 Atk. 214. But these cases are broadly distinguished from general bills of discovery. For American cases which take the distinction under consideration, see Gregory v. Marks, 1 Rand. 355; Burroughs v. McNeill, 2 Dev. & B. Eq. 297.

In cases where Courts of Law and of Equity exercise concurrent jurisdiction, as in matters of fraud, accident, mistake, and account, there will often be occasion for the exercise of discretion. Whether this should be exercised

in favor of retaining a bill for final relief must often depend upon special circumstances, such as the complication of facts, the number and variety of interests involved, and the like. But there are many cases still in which no prayer for discovery should induce equity to proceed to relief; such as the case of a mere claim to damages for a fraudulent misrepresentation. In Pearce v. Creswick, 2 Hare, 286, Wigram, V. C. says: I think this part of the plaintiff's case cannot be stated more highly in his favor than this, that the necessity a party may be under, from the very nature of the transaction, to come into a Court of Equity for discovery is a circumstance to be regarded in deciding upon the distinct and independent question of equitable jurisdiction. Further than this I have not been able to go.' See Middletown Bank v. Russ, 3 Conn. 135; Isham v. Gilbert, Ib. 166; Norwich R. Co. v. Storey, 17 Conn. 364; Taylor v. Ferguson, 4 Har. & J. 46; Brown v. Edsall, 1 Stockt. Ch. 256; Little v. Cooper, 2 Stockt. 273; Skinner v. Judson, 8 Conn. 528; Avery v. Holland, 2 Tenn. 71; Laight v. Morgan, 1 Johns. Cas. 429; s. c. 2 Caines, Cas. 344.

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75. HAVING disposed of these matters, which may in some sort be deemed preliminary, the next inquiry which will occupy our attention is to ascertain the true boundaries of the jurisdiction at present exercised by Courts of Equity. The subject here naturally divides itself into three great heads, the concurrent, the exclusive, and the auxiliary or supplemental jurisdiction.1 the concurrent jurisdiction is that which is of the greatest extent and most familiar occurrence in practice, I propose to begin with it.


76. The concurrent jurisdiction of Courts of Equity may be truly said to embrace, if not all, at least a very large portion of the original jurisdiction inherent in the court from its very nature, or first conferred upon it upon the dissolution or partition of the powers of the Great Council, or Aula Regis, of the king. We have already seen that it did not take its rise from the introduction of technical uses or trusts, as has sometimes been erroneously supposed. Its original foundation then may be more fitly referred to what Lord Coke deemed the true one, fraud, accident, and confidence. In many cases of this sort Courts of Common Law are, and for a long time have been, accustomed to exercise jurisdiction and to afford an adequate remedy. And in many other cases in which anciently no such remedy was allowed, their jurisdiction is now expanded so as effectually to

1 In this division I follow Mr. Fonblanque and Mr. Jeremy; and though a more philosophical division might be made, I am by no means certain that it would be more convenient. Mr. Maddock has made a different division; but upon reflection I have not been inclined to give it a preference. 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ); Jeremy on Eq. Jurisd. Introd. p. xxvii.

2 Ante, §§ 42, 43; 1 Cooper's Public Records, 357.

84 Inst. 84; Earl of Bath v. Sherwin, 10 Mod. 1; 3 Black. Comm. 431.

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