determines the fact in the court of equity. These feigned issues seem borrowed from the sponsio judicialis of the Romans, and are also frequently used in the courts of law, by consent of the parties, to determine some disputed right without the formality of pleading, and thereby to save much time and expense in the decision of a cause. So, likewise, if a question of mere law arises in the course of a cause, as whether, by the words of a will, an estate for life or in tail is created; or, whether a future interest devised by a testator shall operate as a remainder or an executory devise, it is the practice of this court to refer it to the opinion of the judges of the Court of King's Bench or Common Pleas, upon a case stated for that purpose, wherein all the material facts are admitted, and the point of law is submitted to their decision, who thereupon hear it solemnly argued by counsel on both sides, and certify their opinion to the chancellor. And upon such certificates the decree is usually founded."1 § 1479 a. When the court orders an issue of fact, and a verdict is founded upon the issue in favor of either party, it is not necessarily conclusive upon either party; and, notwithstanding the verdict, the party against whom it is given has a right to proceed in the cause, and to go into evidence in support of his case, notwithstanding the court, upon a motion for a new trial (which the court is at full liberty to entertain), refuses to disturb the verdict. Generally speaking, such a verdict is treated as conclusive between the parties; for persons who have had an ample opportunity of bringing before a jury such evidence as they think proper and material to the case are generally satisfied with the result, at least if the result of the investigation be such as not to lead to an order for a new trial. Still, in point of practice and in point of law (as has been suggested), the verdict is not conclusive. But from the inconvenience of the practice of proceeding after the verdict, and in opposition thereto, to a hearing of the cause, the court will, as a matter in its discretion, refuse an issue, unless upon an understanding by both parties to abide the result, unless the court should disturb the verdict.2 13 Black. Comm. 452, 453. 2 Ansdell v. Ansdell (4 Mylne & Craig, 449, 454). On this occasion, Lord Cottenham said: "Now, that the verdict founded on the interlocutory application is not conclusive, conclusive in point of law it cannot be, but conclusive, I mean, according to the practice of this court, I apprehend is free from all doubt. CHAPTER XLII. BILLS OF DISCOVERY, AND BILLS TO PRESERVE AND PERPETUATE EVIDENCE. [* § 1480, 1481. The auxiliary jurisdiction of courts of equity. § 1482. Bills of discovery, to perpetuate and to take testimony, de bene esse. § 1483. Proper grounds for bringing bill of discovery. § 1484, 1485. Discovery of facts, or production of books and papers, could not, formerly, be enforced at law. § 1486, 1487. Mode of obtaining discovery in civil law. It is a matter of extreme importance, undoubtedly, in any subsequent investigation; but it is merely that which it would be at law; namely, a matter of evidence, but not conclusive evidence, between the parties. Of necessity, therefore, the defendants here were at liberty to go into the case which they had made, and, if possible, to raise sufficient doubt in the mind of the court as to whether the result of the former investigation had been so satisfactory as to justify the court in acting upon that finding and that result, without additional and further investigation. It is obvious that this course of proceeding is open to very grave objection and to very great danger; and it will deserve the consideration of those before whom similar causes may come in future, certainly, if any such cause should come before me, I shall give it my most serious consideration before directing any issue on an interlocutory application, whether such an issue should be directed, without putting the parties to an undertaking to abide by the result. The mere circumstance of an issue being necessary to enable the court to deal with the interlocutory application, is of itself sufficient to support an order for an injunction, until the parties shall be in a situation to try the facts. A plaintiff can very seldom, if ever, indeed, I know not that he can ever, be in a situation to render it necessary for him to ask for such an issue. The doubt which directs and is the ground of such an issue assumes that it would be sufficient for his purpose. On the other hand, the defendant may be very deeply interested in having what he asserts to be his rights not interfered with, without the opportunity, at the earliest possible moment, of having those rights put into a course of investigation and trial; and the defendant, therefore, can never complain that the option is tendered to him of submitting to have his rights, if they do exist, suspended by an injunction, or of proceeding to an immediate trial, undertaking that the result of that trial, subject to the jurisdiction of the court as to any application for a new trial, shall be conclusive upon the rights of the parties. As at present advised, and according to the opinion I at present entertain, it will be very difficult to induce me, after the experience I have had in this cause, to direct any issue on interlocutory application, without calling on the defendant to treat the result as conclusive of the case on the matter of fact." § 1488. Jurisdiction maintained unless some ground of exception. § 1489. Grounds of exception stated. § 1490. Plaintiff must show good title in himself. May claim to inspect deeds affecting title. § 1491. § 1492. The heir-at-law, unless in tail, an exception. § 1493 a. § 1493. Devisee clearly entitled to inspect title-deeds. § 1498 b. § 1493 c. How it may become useful in compelling the production of documents. § 1494. Will not compel discovery in aid of criminal case, &c. § 1495. In what courts will aid proceedings. § 1496. Will not compel disclosure of confidences. § 1497. Or of matters not material. § 1498. Arbitrators not compellable to disclose unless charged with misconduct. § 1499. Nor party who has no interest. § 1500. Unless charged with fraud or misconduct. § 1501. Officers of corporations compellable to disclose. § 1502, 1503. Bonâ fide purchasers protected. § 1503 a. So also those purchasing under them. § 1503 b. Creditor not treated as bonâ fide purchaser. § 1504. Jointress protected in her equities. § 1505. Bills to perpetuate testimony. § 1506. This often done in regard to wills. § 1507. Objections to such testimony stated. § 1508. Only entertained where suit cannot be brought immediately. § 1509. Maintained in many cases, where bill of discovery maintainable. § 1510. So also in case of bonâ fide purchaser. § 1511. Plaintiff must have present vested interest. § 1512. Decree of court in such cases. § 1513. Bills to take testimony de bene esse. § 1514, 1515. Extent of this jurisdiction. § 1516. How publication to be made.] § 1480. WE shall now proceed to the third and last head of Equity Jurisdiction proposed to be examined in these commentaries, that is to say, the auxiliary or assistant jurisdiction, which, indeed, is exclusive in its own nature, but, being applied in aid of the remedial justice of other Courts, may well admit of a distinct consideration. § 1481. In a general sense, courts of equity may be said to be assistant to other courts in a variety of cases, in which the administration of justice could not otherwise be usefully or successfully attained. Thus, for example, they become assistant to courts of law, by removing legal impediments to the fair decision of a question depending thereon, by preventing a trustee, lessee, or mortgagee, from setting up an outstanding term, to defeat an ejectment brought to try a title to land, or by suppressing a deed or devise fraudulently obtained, and set up for the same purpose.1 They are, in like manner, assistant to other courts, by rendering their judgments effectual; as by setting aside fraudulent conveyances, which interfere with them, by providing for the safety of property pending litigation, and by suppressing multiplicity of suits and oppressive actions.2 But these topics have already been sufficiently, although incidentally, considered in the preceding pages.3 § 1482. What we propose particularly to consider in the subsequent discussions, is the remedial process of bills of discovery, bills to perpetuate testimony, and bills to take testimony de bene esse, pending a suit; all of which are most important instruments, to be employed as adminicular to the remedial justice of other courts.4 § 1483. In the first place, as to bills of discovery. It has been already remarked that every bill in equity may properly be deemed a bill of discovery, since it seeks a disclosure from the defendant, on his oath, of the truth of the circumstances constituting the plaintiff's case as propounded in his bill. But that which is emphatically called in equity proceedings a bill of discovery, is a bill which asks no relief, but which simply seeks the discovery of facts, resting in the knowledge of the defendant, or the discovery of deeds, or writings, or other things, in the possession or power of the defendant, in order to maintain the right or title of the party asking it, in some suit or proceeding in another court. The sole 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ); Cooper, Eq. Pl. Introd. p. 33, 34; id. ch. 33, p. 143; Harrison v. Southcote, 1 Atk. 540; Mitford, Eq. Pl. by Jeremy, 4, 5, 111, 134, 135, 143 to 145; id. 281. 2 Ibid.; Cooper, Eq. Pl. ch. 3, p. 146 to 149, 157; 2 Fonbl. Eq. B. 6, ch. 3, § 1. 3 Ante, § 437 to 439, 825, 829, 852, 859, 861, 903, &c. Mitf. Eq. Pl. by Jeremy, 148, 149, 185, 186. 5 Ante, § 689; Mitf. Eq. Pl. by Jeremy, 53; id. 183 to 185. Story on Eq. Pl. 311. 6 Ante, § 689; Cooper, Eq. Pl. ch. 1, § 4, p. 58; id. 60; Mitf. Eq. Pl. by Jeremy, p. 8, 53, 148, 306, 307; 1 Mad. Ch. Pr. 160. It was said by Lord Hardwicke, in Montague v. Dudman (2 Ves. 398), that “A bill of discovery lies here in aid of some proceedings in this court, in order to deliver the party from the necessity of procuring evidence, or to aid in the proceeding, in some suit relating to a civil right in a court of common law, as an action." On the subject of discovery, I beg leave to refer the reader to the very able work of Mr. Wigram on Points of Discovery, and of Mr. Hare on Discovery. In these two works the subject seems completely exhausted. See also Story on Eq. Plead. § 34, &c. object of such a bill, then, being a particular discovery, when that discovery is obtained by the answer, there can be no further proceedings thereon.1 To maintain a bill of discovery it is not necessary that the party should otherwise be without any proof of his case; for he may maintain such a bill, either because he has no proof, or because he wants it in aid of other proof2 [or, if the court can suppose that the discovery can be in any way material to the party in the support or defence of a suit 3]. But, in general, it seems necessary, in order to maintain a bill of discovery, that an action should be already commenced in another court, to which it should be auxiliary. There are exceptions to this rule, as where the object of discovery is to ascertain who is the proper party against whom the suit should be brought. But these are of rare occurrence.* § 1484. One of the defects in the administration of justice in the courts of common law arises from their want of power to 66 1 Mitford, Eq. Pl. by Jeremy, 16; Lady Shaftsbury v. Arrowsmith, 4 Ves. 71. Mr. Fonblanque has made some remarks upon the nature and dangers of this branch of equity jurisdiction, which are certainly entitled to serious consideration. There is," says he, "no branch of equitable jurisdiction of more extensive application than that which enforces discovery; and, where kept within its due limits, there is none more conducive to the claims of justice. To compel a defendant to discover that which may enable the plaintiff to substantiate a just, or to repel an unjust demand, is merely assisting a right or preventing a wrong. But, as the most valuable institutions are not exempt from abuse, this power, which ought to be the instrument of justice, may be rendered the instrument of oppression. A plaintiff, by his bill, may, without the least foundation, impute to the defendant the foulest frauds, or seek a discovery of transactions in which he has no real concern; and when the defendant has put in his answer, denying the frauds, or disclosing transactions (the disclosure of which may materially prejudice his interest), the plaintiff may dismiss his bill with costs, satisfied with the mischief he may have occasioned by the publicity of his charge, or with the advantage which he may have obtained by an extorted disclosure. The rule, which requires the signature of counsel to every bill, affords every security against such an abuse, which forensic experience and integrity can supply; but it cannot wholly prevent it. The court alone can counteract it; and, in vindication of its process, must feel the strongest inclination to interpose its authority." 2 Fonbl. Eq. B. 6, ch. 3, § 1, note (a). 2 Finch v. Finch, 2 Ves. 492; Montague v. Dudman, ib. 398; March v. Davidson, 9 Paige, 580; Many v. Beekman Iron Company, ib. 188. It would be otherwise if the bill were for relief as well as discovery. Ibid. 3 Peck v. Ashley, 12 Met. 478. Moodaly v. Moreton, 2 Dick. 652; Angell v. Angell, 1 Sim. & Stu. 83; Mendes v. Barnard, 1 Dick. 65; City of London v. Levy, 8 Ves. 404. |