discovery, the benefit of that part of his bill which is good. Where the bill seeks relief as consequent upon the discovery of a bond or other evidence of title, the plaintiff must annex an affidavit of its loss or destruction.

Form of a Bill of Discovery.

To, etc. Complaining, show unto your honor your orators, A. M. and C. M., of, etc., that, by a certain instrument of assignment, dated the day of made between J. D., of the city of New York, of the first part, and your orators, of the second part, the said J. D. bargained and sold, assigned, transferred, and set over unto your orators, the certain property, goods, choses in action and securities for money therein, and in the schedules thereto particularly mentioned in trust (set forth assignment, etc. particularly). And your orators further show, that at the time aforesaid there was due and owing to the said J. D., from one R. B., of the said city of New York, a defendant hereafter named, the full and just sum of $750, being the balance of an account between him and the said R. B., and the said J. D., the particulars of which account are set forth in a schedule marked A, hereto annexed, and to which your orators refer. And your orators further show that they have repeatedly applied to the said R. B. to pay them the aforesaid sum of $750, so justly due from him, with which reasonable request he has refused to comply; and having so refused, your orators were compelled to, and did commence an action at law in the Superior Court of the city of New York, for obtaining payment thereof. And your orators charge that the said R. B. hath pleaded in such suit, and given notice of a set-off in the same, and hath delivered a particular of such set-off, which, down to the date of such assignment, corresponds with the credit side of the account set forth in the schedule hereto annexed, but that

such defendant hath included in the said particular three several items-one of $50.00, one of $48.00, and one of $36.00, being charges for goods delivered in the course of the month of in the year for which he

claims credit in such action.

Whereas, your orators charge that the said R. B., at the time of the delivery of each and every of such parcels of goods so charged for as aforesaid, knew, and was well apprised of the assignment to your orators, or that he, the said J. D., had made some assignment of all his property and effects for the benefit of creditors.

And your orators have no means of proving such knowledge or information on the part of the said R. B., in the action at law aforesaid, and can only establish the same by means of a discovery from such defendant. And they are advised that they can not safely proceed to the trial of such action withont a discovery of the matters hereinbefore stated from such defendant. To the end, therefore (special interrogatory as to knowledge).

And that such defendant may make a full and true discovery of all matters aforesaid. May it please, etc., omiting the word "decree."

We began our inquiries with a suit instituted on behalf of a citizen, which, we have seen, is commenced by bill, exhibited in the name of the party complainant. If the same suit is instituted on behalf of the crown, or of those whose rights are intrusted to its protection, it is commenced by information, exhibited in the name of the king's attorney or solicitor-general, as his majesty's representative. This, as we have before observed, differs from a bill little otherwise than in name-as will appear from the skeleton which is given below.

To the right honorable, etc.

Informing, showeth unto your lordship, Sir Alexander Scott, Knt., his majesty's attorney-general. That, etc., and his majesty's said attorney-general further showeth,

etc. But now so it is, etc. In consideration whereof, etc. To the end, therefore, etc., precisely as the preceding form of a bill.

When the suit does not immediately concern the rights of government, its officers depend upon the relation of some person whose name is inserted in the information, and who is termed the relator. The relator is considered responsible to court and the parties for the propriety of the suit, and the conduct of it.

CHAPTER II.

OF APPEARANCE TO A SUIT IN EQUITY.

When the plaintiff has filed his bill, the writ of subpena issues out of the law side of the court, requiring the defendant to appear and answer the charges alleged against him. A custom at one time prevailed in England (as it does to this day in Virginia, and probably in some other states) of issuing a subpena before the filing of the bill, which was abolished by statute in the reign of Anne. The recent rules of the supreme court conform to the practice thus introduced. The subpena (borrowed from the common law form of process for a witness) is supposed to have been first applied to the purpose of compelling an appearance to a suit in equity, by Bishop Waltham, in the reign of Richard II. This writ was always vehemently opposed by the courts of common law; and having sometimes, it seems, been issued on groundless allegations, it was enacted, by 15th Henry VI, c. 4, at the instigation of the commons, that no writ of subpena should be granted in future until surety had been found to answer to the party aggrieved for his damages and costs, in case the plaintiff failed to make good the charges in his bill. This security, however, has long since fallen into disuse-a matter greatly to be lamented —and is now required only in cases where the plaintiff resides abroad, or is about to quit the kingdom. The form of the writ is as follows:

Subpena, to Appear and Answer, in Chancery.

George the Third, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith,

and so forth, to Edward Willis and to William Willis,2 greeting: For certain causes offered before us in our chancery, we command and strictly enjoin you, that, laying all other matters aside, and notwithstanding any excuse, you, and each of you, be and personally appear before us in our said chancery, on the day of next (or immediately on the receipt of this writ),2 where

1 Three defendants only (of which a man and his wife together are deemed one) are in chancery allowed to be inserted in the same subpena, the reasons for which, as given by Gilbert, are, that "the plaintiff may not put in an abundance of defendants, in order to terrify and vex them, and that mistakes may not be made in trans cribing a multitude of names in the label; reasons which, though adopted by subsequent writers, the reader may probably think somewhat trivial. It is in truth difficult to account for all the minutiæ of this sort which pervade our legal proceedings; few of them, probably, are sanctioned by any other reason than this: that' as some rule must necessarily be pursued, it was in most cases thought better to adopt that which happened to prevail at the time than establish a new one. In the present instance, the revenue might possibly have been adverted to.

2 The return of a subpena may be either ordinary or extraordinary. The ordinary return is always on some day certain in Term (that is to say, one of the common return-days.) The vacations having at the original constitution of the Terms been appropriated, those of Hilary, Easter and Michaelmas for the duties of devotion preparatory to the festivals of Lent, Whitsunday and Christmas, and that of Trinity for the purpose of collecting in the produce of the earth; but the extraordinary return, which is so called because it can be had only by application to the court grounded on an affidavit of the defendant's residing within ten miles from London, may be on any day in vacation, persons residing within that dis tance of the court being able, it was supposed, to leave and to re. turn to their avocations without any material inconvenience. And in those circumstances, if expedition be required, it may be made returnable immediately, which always supposes great urgency; but no subpena can be made returnable immediately in Term, because, every day being then a day of appearance, no such extraordinary expedition can be necessary.