§ 564. The objections, herein before stated, to a Bill of Discovery, brought either by the plaintiff, or by the defendant to an action at law, in aid of his action or defence, may be resolved into a more general ground of demurrer, namely, that the discovery is immaterial. For immateriality, in its broader sense, includes not only cases, where the evidence, if discovered, would be irrelevant at the contemplated trial; but also cases, where the evidence would be nugatory, if admitted, because there is no proper cause of action. But, generally, immateriality is used in its more restrained sense, as synonymous with irrelevancy." $ 565. It may be affirmed to be a general doctrine in Equity, that, as the object of the Court in compelling a discovery is, either to enable itself, or some other Court, to decide on matters in dispute between the parties, the discovery sought must be material, either to the relief prayed by the Bill, or to some other suit actually instituted, or capable of being instituted. If, therefore, the plaintiff does not show by his Bill such a case, as renders the discovery, which he seeks, material to the relief, if he prays relief; or does not show a title to sue the defendant in some other Court; or that he is actually involved in litigation with the defendant ; Hughes, 3 Mylne & Craig, R. 742. It is obvious, that to maintain a Bill for a discovery, it is necessary to show, that the discovery, if made, can be used in a suit at law. Therefore, if it should appear, that the case has been already decided at law, as, if the application is after a verdict, the Bill will ordinarily be demurrable ; for it then comes too late. Duncan v. Lyon, 3 John. Ch. R. 351; Hare on Discov. 112-114; Whitmore v. Thornton, 3 Price, 241, 248; Mitf. Eq. Pl. by Jeremy, 131, 132. There must be special circumstances to justify the interposition of a Court of Equity after a verdict at law. Ibid. ; Field v. Beaumont, 1 Swanst. R. 206, 209. 1 Hare on Discov. 157, 160, 161; Mitf. Eq. Pl. by Jeremy, 107, 191, 192. ant will be compelled to make it. Thus, where a bishop filed a Bill against the patron of a living and a clerk presented by him, to discover, whether the clerk had given a bond of resignation, and the patron demurred, because the discovery either was such as might subject him to penalties and forfeitures, or it was immaterial to the plaintiff, the demurrer was overruled; the Court declaring a clear opinion, that the bond was not simoniacal ; but conceiving that the discovery might be material to support a defence to a quare impedit, upon this ground, that the bond put the clerk under the power of the patron, in derogation of the rights of the ordinary. § 568. It may be added, that this objection of immateriality may be to the whole Bill, or to a part of the Bill, or to a part only of the interrogatories, or to a particular defendant only. The latter case may often occur, where a defendant is a mere formal party, and where many of the interrogatories and statements in a Bill of Discovery may be wholly irrelevant as to him. In such a case, he may demur to the immaterial statements and interrogatories as to himself. 1 Mitf. Eq. Pl. by Jeremy, 193. 2 Mitf. Eq. Pl. by Jeremy, 193 and note. But probably such a demurrer would now be sustained, as such bonds have been held to be simoniacal. Cooper, Eq. Pl. 194, 200; S.P. Parkhurst v. Lowten, 1 Meriv. 391; Southall v. -, 1 Younge, R. 308, 316. In Wright v. Plumptre, 3 Madd. R. 486, there was a demurrer for immateriality in the form following;“ And for causes of demurrer,” it showed, “That the said complainants have not, by their said Bill, made such a case as entitles them to any discovery touching the matters contained in the said Bill, or of any such matters, or to the production thereof sought to be obtained ; and that such discovery and production are wholly immaterial to the said complainants, and can be of no avail for the purposes, for which the same are sought in and by the said Bill; wherefore," &c. 3 Hare on Discov. 159, 160, 161; Agar v. Regent's Canal Company, Cooper, R. 212, 215. The defendant may decline also in his answer 10 answer particular interrogatories ; and if, as to him, they are immaterial, the suit being so constituted, as to raise a question as to the Equities between the parties. § 570. (4.) Fourthly ; Another objection, which may be taken by demurrer to a Bill of Discovery, is, that the defendant has no interest in the subject-matter of the controversy, and is a mere witness. Under such circumstances, as we have already seen,” he is not generally compellable to answer to a Bill of Discovery; for such a Bill can only be to gain evidence; and the answer of such a defendant cannot be read against any other person, and not even against another defendant to the same Bill. There are some exceptions to this general rule, which have been already stated, and need not here be repeated. If, however, the Bill should state, that the defendant has, or claims an interest, a demurrer will not lie; but the objection must be taken in another form, by a plea, or by a disclaimer. And here again, it may be remarked, that if the Bill allege an interest in the defendant, that interest must be set forth with reasonable certainty; otherwise, the Bill of Discovery will be demurrable for that cause alone. be made a party to a Bill of Discovery, although he might be used as a witness. Thus, for example, in case of an action at law brought in the name of the agent, who procured a policy in his own name for his principal, he held, that the principal might be made a party to a Bill of Discovery in aid of the defence by the underwriter, although he was not a party to the suit, and might be a witness for the underwriter. But this decision was overruled by the House of Lords as above stated. See also Ante, § 226, a. 1 Ibid. 3 Mitf. Eq. Pl. by Jeremy, 186 ; Cooper, Eq. Pl. 200; Hare on Discov. 68, 70-72; Ante, $ 231, 232. 4 Ante, § 235, 323, 519; Hare on Discov. 83–88; Cooper, Eq. Pl. 201, 202. 5 Mitf. Eq. Pl. by Jeremy, 188; Cooper, Eq. Pl. 200, 201 ; Fenton F. Hughes, 7 Ves. 291. 6 Cooper, Eq. Pl. 202; The Mayor of London v. Levy, 8 Ves. 398 405; Ante, 248. |