11 mony of the witnesses proposed to be examined relate, cannot be immediately investigated in a court of law or equity, — or, if they can be immediately investigated, that the right to commence such a suit or action belongs exclusively to the defendant; or that the defendant has interposed some impediment, such as an injunction, to an immediate trial of the matter in a court of law; or that, before the investigation can take place, the evidence of a material witness is likely to be lost by his threatened death, illness, or departure from the jurisdiction of the court: 9 but the fact that, in the case recently cited, the attorney-general might institute a proceeding to annul a patent, will not prevent the granting of the prayer of the bill.10 The prayer should be for leave to examine the witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated, and for the proper process of subpoena. It seems that if it adds thereto a prayer for other, or for general relief, it will be demurrable for that reason,12 although the court may allow an amendment omitting that part of the prayer.13 An affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost, must be filed with the bill.14 Otherwise, the bill should conform substantially to the requirements of original bills praying relief. Such a bill, it has been held, cannot by amendment be converted into a bill of discovery.15 It is of itself a bill of discovery only to the extent of enabling the plaintiff to obtain the relief prayed for in it, and he can, therefore, only require an answer from the defendant as to the facts alleged in the bill as entitling him to examine the witnesses.16 An omission of any of the foregoing statements in, or requirements of, the bill will make it demurrable; and if any of the necessary allegations are false, or there is another objection not apparent upon the face of the bill, that may be taken by plea or answer. If the 9 Angell. Angell, 1 Sim. & S. 83; New York & Baltimore Coffee Polishing Co. v. New York Coffee Polishing Co., 9 Fed. R. 578; Story's Eq. Pl. § 303; Daniell's Ch. Pr. 1572, 1573. 10 New York & Baltimore Coffee Polishing Co. v. New York Coffee Polishing Co., 9 Fed. R. 578. 11 Story's Eq. Pl. § 306. 12 Rose v. Gannel, 3 Atk. 439; Vaughan v. Fitzgerald, 1 Sch. & Lef. 316; Story's Eq. Pl. § 306; Dalton v. Thomson, 1 13 Vaughan v. Fitzgerald, 1 S. & L. 316. 15 Ellice v. Roupell, 32 Beav. 299; s. c. 9 Jur. N. s. 530. 16 Ellice v. Roupell, 32 Beav. 308; s. c. 9 Jur. N. 8. 533. 17 Story's Eq. Pl. § 306 a. defendant answer denying the plaintiff's case, witnesses may be examined as to the point in issue by either party.18 Otherwise, such a bill should not be brought to a hearing, and if the plaintiff do so it will be dismissed with costs, but without prejudice to the use of the testimony taken in pursuance of its prayer.19 It is said that "If the plaintiff neglects to proceed with the suit, the defendant cannot move to dismiss for want of prosecution; but may move that the plaintiff be ordered to take the next step, within a limited time, or to pay him the costs of the suit. If the defendant neglects to take the steps proper to be taken by him within the prescribed time, the court will, it seems, order the examination of the witnesses to proceed." 20 If no valid objection is made, the court will order the testimony to be taken. Both parties may examine witnesses under the order,21 and either party must be allowed to cross-examine those whom his opponent examines in chief.22 After the witnesses have been examined, the cause is at an end,23 and if the defendant have examined no witnesses in chief he will be entitled to his costs; but by receiving costs he waives any objection he might otherwise be entitled to make on the ground that he has had no sufficient opportunity of cross-examination.24 The testimony thus taken is filed in the clerk's office, and can be used in a subsequent case at law or in equity in the same court, under an order, which must be obtained by motion upon notice, and supported by proof of the witness's death, or that he cannot be then compelled to attend and testify.25 § 280. Bills to take Testimony de bene esse. — Bills to take testimony de bene esse were formerly filed after a suit or action had been begun, in order to take the testimony of such witnesses as, on account of their age, infirmity, or intention to depart from the jurisdiction of the court, it was feared could not be taken in its 18 Brigstocke v. Roch, 7 Jur. N. s. 63. 19 Hall v. Hoddesdon, 2 P. Wms. 162; Anon., Ambler, 237; s. c. 2 Ves. Sen. 497; Vaughan v Fitzgerald, 1 Sch. & Lef. 316; Morrison v. Arnold, 19 Ves. 670; Ellice v. Roupell, 32 Beav. 308. 20 Daniell's Ch. Pr. (5th Am. ed.) 1573; Wright v. Tatham, 2 Simons, 459; Beavan v. Carpenter, 11 Simons, 22; Coveny v. Athill, 1 Dickens, 355; Lancaster v. Lancaster, 6 Simons, 439. 21 Sheward v. Sheward, 2 V. & B. 116; VOL. I. 32 Earl of Abergavenny . Powell, 1 Meriv. 434; Skrine ». Powell, 15 Simons, 81; s. c. 9 Jur. 1054. 22 Daniell's Ch. Pr. (5th Am. ed.) 1573, 1574. 23 Morrison v. Arnold, 19 Ves. 670; Vaughan v. Fitzgerald, 1 Sch. & Lef. 316. 24 Watkins v. Atchison, 10 Hare, Ap. xlvi. 25 Daniell's Ch. Pr. (5th Am. ed.) 1574, 1575. regular method of proceeding.1 Such bills must substantially comply with the rules regulating bills to perpetuate testimony, with which, indeed, they have been often confounded.2 Now that the same relief can be afforded under the statutes both of most of the individual States and of the United States, it is rarely, if ever, that an occasion for their use arises. § 281. Bills of Discovery. Every bill may seek discovery, but the kind of bill called a bill of discovery is a bill filed for the sole purpose of obtaining a discovery of facts resting in the defendant's knowledge, or of deeds, writings, or other things in his custody or power; and seeking no relief in consequence of the discovery, except possibly a stay of proceedings till the discovery is made.1 A bill of discovery is usually, if not always, used in aid of the jurisdiction of another court.2 It will not be allowed, if it seek a discovery of matters concerning which a party, if called as a witness, would be excused from testifying; nor, it has been said, if the discovery is sought in aid of an action for a mere personal tort. A bill of discovery can only be filed in aid of a judicial proceeding already commenced or immediately contemplated. If filed in aid of proceedings already begun, no person may be made a party to it who is not a party to such proceedings, except possibly the officer of a corporation. A bill of discovery must state the matter touching which discovery is sought, show that both the plaintiff and the defendant have or claim an interest therein, state the facts and circumstances upon which the plaintiff's right to compel discovery from the defendant is founded, and pray that the defendant may make a full discovery of the matters therein stated. A bill of discovery may also pray any equitable assistance of the court which is merely consequential upon the prayer for discovery; but if it should pray any other or general relief, it will thereby become a bill for § 280. 1 Story's Eq. Pl. § 307. 2 Story's Eq. Pl. § 307. 8 U. S. R. S. §§ 863-865, and Rule 70. § 281. 1 Daniell's Ch. Pr. (5th Am. (ed.) 1556. 2 Daniell's Ch. Pr. (5th Am. ed.) 1556. 8 Glynn v. Houston, 1 Keen, 329; Langdell's Eq. Pl. § 69; Wigram on Discovery, §§ 130-138; Daniell's Ch. Pr. (2d Am. ed.) 563-569. 4 Glynn v. Houston, 1 Keen, 329. 9 5 Mayor of London v. Levy, 8 Ves. 398; United N. J. Railroad & C. Company v. Hoppock, 1 Stewart's Eq. (N. J.) 261; Daniell's Ch. Pr. 1558. 6 Queen of Portugal v. Glyn, 7 Cl. & F. 466; Daniell's Ch. Pr. (5th Am. ed.) 1558. 7 See § 43. 8 Daniell's Ch. Pr. (5th Am. ed.) 1557. 9 Mitford's Eq. Pl. ch. i. § 3; Loker v. Roll, 3 Ves. 4. relief.10 It seems that a bill of discovery need not allege that the facts of which a discovery is sought are within the exclusive knowledge of the defendant; 11 but they must be matters essential to a plaintiff's cause of action, or if he be defendant in another suit or action, to his affirmative defense, and the bill must not seek discovery of the evidence of a part of what belongs solely to the defendant's case.12 The defendant may oppose a bill of discovery by a demurrer, or plea, or in his answer, in the same manner as he might oppose a bill for relief. The English rule, as finally established, was that, if a demurrer were interposed to a bill praying both discovery and relief, and the bill were held not to show a proper case for relief, it could not be maintained for discovery merely.13 The rule in the Federal courts is uncertain.14 A defense founded upon the statute of limitations or laches may be interposed to a bill of discovery by plea,15 or, if it appear upon the face of the bill, by demurrer.16 A material amendment of a bill of discovery will very rarely be allowed.17 A bill of discovery is never brought to a hearing; but, after the defendant has put in a full answer thereto, he is entitled to costs of the suit,18 less any costs allowed the plaintiff upon exceptions to a previous answer as insufficient. 19 It has been held in the district of Wisconsin that a bill of discovery cannot be maintained in a Circuit Court of the United States held within a State under whose statutes a party can be compelled to testify.20 10 Angell v. Westcombe, 6 Simons, 30. 11 Metler v. Metler, 4 C. E. Green (19 N. J. Eq.), 457. 12 Wigram on Discovery, § 372; Langdell's Eq. Pl. § 172; Ingilby v. Shafto, 33 Beav. 31. 13 Fry v. Penn, 2 Bro. C. C. 280; Loker v. Rolle, 3 Ves. 4; Langdell's Eq. Pl. § 152. 14 Compare Livingston v. Story, 9 Pet. 632; Wright v. Dame, 1 Met. (Mass.) 237; Hinginbotham v. Burnet, 5 J. Ch. (N.Y.) 184; Story's Eq. Pl. § 412, with Markey v. Mutual Benefit Life Ins. Co., 6 Ins. L.J. 537. 18 Attorney-General v. Burch, 4 Madd. 178. 19 Hughes v. Clerk, 6 Hare, 195. See also Bryant v. Leland, 6 Fed. R. 125 U S. C. C., D. Mass.; Easton v. Hodges, 7 Bissell 324; U. S. C. C., D. Illinois; Paton v. Majors, 46 Fed. R. 210, U. S. C. C., E. D. La., Billings J.; Washburn & M. Manuf. Co. v. Freeman Wire Co., 41 Fed. R. 410; U. S. C. C., E. D. Mo., Thayer, J.; Washburn & M. Manuf. Co. v. Cincinnati Barb Wire Fence Co., 42 Fed. R. 675, U. S. C. C., S. D. Ohio. 20 Rindskopf v. Platto, 29 Fed. R. 130. 15 Beames on Pleas, 275; Gait v. Os- See also Heath v. Erie R.R. Co., 9 Blatchf. baldeston, 1 Russ. 158. 316; Brown v. Swann, 10 Pet. 497; Man 16 Wooster v. Sidenbergh, U. S. C. C., chester Fire Assur. Co. v. Stockton, C. H. S. D. N. Y. Nov. 6, 1889. & A. Works, 38 Fed. R. 378. 17 Marquis Cholmondeley v. Lord Clin ton, 2 Meriv. 71. In the Southern District of New York a contrary ruling sustaining such a bill was made.21 § 282. Testimony taken before a Cause is at Issue. Testimony for use in a court of law or equity of the United States may be taken either before or after it is at issue. Testimony taken before a cause is at issue may be taken either before or after it has been begun. "Any court of the United States may, in its discretion, admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the State wherein such cause is pending, according to the laws thereof."1 Evidence taken by means of a bill to perpetuate testimony may also be admitted in a subsequent suit in equity.2 "After any bill filed and before the defendant hath answered the same, upon affidavit made, that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony." 3 Such testimony is then taken in the same manner as testimony taken after issue has been joined. § 283. Testimony taken after a Cause is at Issue within the JurisTestimony taken after a cause is at issue is taken differently when taken within than when taken without the jurisdiction of the court. Originally, the only manner of examining witnesses within the jurisdiction of a court of chancery was by means of written interrogatories and cross-interrogatories, which were prepared by the solicitors and counsel of the respective parties, or by the court, and then submitted to an examiner or one or more commissioners appointed by the court, who examined the witnesses privately by means of them. The testimony thus obtained was kept secret until all the testimony in the cause had been taken. The time when it would first be inspected was called the time of publication. diction of the Court. 21 Colgate v. Compagnie Française, 23 Fed. R. 82. See also Paine v. Warren, 33 Fed. R. 357. § 282. 1 U. S. R. S. § 867. 2 New York & Baltimore Coffee Polish In the courts of ing Co. v. New York Coffee Polishing Co., 9 Fed. R. 578. 8 Rule 70. See Eslava v. Mazange, 1 Woods, 623. § 283. Langdell's Equity Pleading, |