inquirendo; under which a jury is impanelled and sworn, the alleged lunatic and witnesses are examined, and a return thereof made into chancery. If the return untruly finds the party a lunatic, it may be traversed by himself or by any one claiming under a contract with him; if it untruly finds him of sound mind, a writ of melius inquirendum may be issued by the crown. If the lunatic subsequently recovers, the commission may be superseded; but for this purpose the lunatic must, in general, be personally examined and his sanity fully established.

555. If the party is found a lunatic by the return of the commission, or upon a trial under the subsequent traverse, the next duty of the court is to take care of his person and estate, and this is done by the appointment of a committee. A committee may also be appointed pending the proceedings, when such a course shall be deemed necessary by the chancellor.

The powers of a committee are exceedingly limited. He is a mere custodian of the property; and even the powers conferred upon him by statute are to be exercised under the constant supervision and sanction of the court. A due allowance is made by the court for the lunatic's maintenance; and the general principle upon which the estate is managed is that the interest of the lunatic alone is to be looked to, without regard to that of his eventual successors.

The powers and duties of the committee of a lunatic, and the manner in which the estate is to be managed, or converted, or applied to the maintenance of the lunatic or his family, are, of course, regulated in most of the States by statutes, into the details of which it would be impossible to enter.

Upon the death of the lunatic the powers of the committee cease; and his duty is simply to account and hand over the property to the heir or personal representative of the lunatic, as the case may be.

CHAPTER VIII.

DISCOVERY.

556. Defects in common law as to discovery; statutory changes.

need not discover his own title, or evidence thereof.

557. Origin and nature of bills of dis- 562. Need not criminate himself. 563. Confidential communications as to

covery.

558. Subject not of as much importance

as formerly.

litigation.

564. State secrets.

559. Discovery must be in aid of legal 565. In bills of discovery courts will go proceedings.

on and afford relief.

560. General rights of complainant in 566. Production of documents.

bills of discovery.

561. Rules for protection of defendant;

567. Commissions to examine witnesses abroad; to take testimony de bene

esse.

556. IN a common law action the plaintiff was obliged to make out his case by calling third parties as witnesses, by compelling the production of such documents material to the issue as were in the custody or under the control of third parties, and by producing, himself, such documents as were in his own possession, and whose execution could be properly proved. No means, however, existed by which the opposite party could be compelled to testify as to the matters in dispute, or by which the production of documents in his possession could be enforced. In modern times this rule has in England and in nearly all of the United States been altered by statute, and a party to a common law action can now put his adversary upon the witness stand, without being concluded by his testimony, and without being subject to the rule which forbids leading questions, in other words, he can call and cross-examine the opposite party; and he can compel the production of books and papers at a reasonable period before the trial of the cause.

557. While the common law rule prevailed, and while the inconvenience consequent thereon existed, a different rule grew up in courts of equity. It was part of the machinery of the

court of chancery that a discovery could be compelled; in other words, the defendant in a bill in equity was obliged to answer under oath the allegations in the bill. The production of documents could also be enforced, and an opportunity for their inspection afforded. The right to discovery was in fact one of the peculiar advantages of a complainant in equity, and was always enjoyed by him in every case in which he was entitled to come into chancery, either for the purpose of asserting an equitable title, or setting up an equitable right, or applying an equitable remedy.

The jurisdiction of the High Court of Chancery being based upon matters of "conscience," an appeal to the defendant's conscience was one of the earliest and most natural modes of equitable relief.

But this right went still further. Many cases existed in which the plaintiff had a legal title or a legal right, or was pursuing a legal remedy, but wherein no redress could be actually obtained, simply because the plaintiff's evidence either rested in the breast of the defendant, or consisted, in whole or in part, of documents in the defendant's possession. Hence there was a failure of justice at common law, and hence there arose the equitable remedy of bills for discovery, which was made use of simply for the purpose of assisting or supplementing the plaintiff's remedy at common law.

Bills in equity, therefore, came to be filed not only for the purpose of discovery and relief, but also for the purpose of discovery alone; and bills of the latter description were made use of as a distinct equitable remedy, entirely outside and independent of any equitable right or title to relief.

Bills of discovery, therefore, in their technical sense, are bills which are filed for the purpose of assisting one of the parties to a common law action; and which, seeking no independent relief themselves, aim solely at arming the complainant with the necessary and proper means for asserting or defending his right or title at law.'

558. It has been already observed that the necessity for this equitable remedy has, in modern times, been very much diminished by statutory enactments, whereby the same results

See Kearny v. Jeffries, 48 Miss. 357.

are attained in common law trials; and hence this particular equitable remedy no longer deserves to occupy so important a place as it formerly did in equitable jurisprudence. Nevertheless it is proper that it should be (at least) briefly considered, partly because it has been decided in England, and in some of the States of the Union, that the chancery method of redress has not been ousted by the amendments to the common law;1 and partly because in equity certain rules in regard to this peculiar remedy have been laid down, which are still considered applicable in common law suits.

559. The object of discovery being that the answer of the defendant may be made use of as evidence in some judicial proceeding in which no such advantage originally existed, it necessarily follows that this equitable remedy cannot be used except for purposes connected with proceedings in legal tribunals,2 and except in aid of proceedings in a court which could not, at common law, itself give discovery. Thus a bill of discovery cannot be maintained if the object is simply to gratify the curiosity of the complainant, nor will such a bill be entertained in order to aid proceedings in a court which can, by its own method of procedure, attain the same result, e. g., the ecclesiastical courts in England, which, as well as the court of chancery, had the power of enforcing discovery. And a bill of discovery will not lie in aid of proceedings which are of a criminal and not of a civil nature. But the circumstance that the proceedings might have assumed a criminal character is no objection to the discovery, if in fact the redress sought is through the medium of a civil action."

560. The general right of the complainant in a bill of discovery is that he is entitled to an answer from every competent defendant as to all facts material to the whole of his (the complainant's) case, and that this answer must be distinct, complete,

1 Lovell v. Galloway, 17 Beav. 1; Senior v. Pritchard, 16 Id. 473; British Empire Shipping Co. v. Somes, 3 K. & J. 433; Shotwell v. Smith, 5-C. E. Green, 70. See, however, Hall v. Joiner, 1 S. Carolina (N. S.), 186.

2 See Hare on Discovery, 110.

3 Id. 119.

4 Hare on Discovery, 119.

5 Lord Montagu v. Dudman, 2 Ves. Sr. 397; Cartwright v. Green, 8 Ves. 405; 14 Id. 64; Hare on Discovery, 110.

6 Thorpe v. Macauley, 5 Madd. 230; Wilmot v. Maccabe, 4 Sim. 263; Hare on Discovery, 116.

free from needless prolixity, and to the best of the defendant's information and belief. To dissect the general rule thus stated, and to criticize and illustrate its different branches, would belong rather to a treatise upon equitable pleading than to one which has for its subject equitable principles. It will therefore be sufficient to refer the reader to some of the works in which this rule has been particularly discussed.'1

561. The general rule just stated is subject to certain qualifications by which the complainant's right is, as it were, fenced about by prohibitions and restrictions which it has been found necessary to lay down in order to prevent the power of the court from being abused.

And, first, the defendant is bound to discover those matters only which relate to the plaintiff's title, and is not compellable to discover his own title or the means by which he expects to prove it. The reason of this rule is that experience has shown that the possible mischiefs of surprise at a trial are more than counterbalanced by the danger of perjury which must inevitably be incurred when either party is permitted before a trial, to know the precise evidence against which he has to contend; and accordingly each party in a cause has thrown upon him the onus of supporting his own case, and meeting that of his adversary without knowing beforehand by what evidence the case of his adversary is to be established or his own opposed.3

This reasoning, however, is not to be extended too far, for the right of the plantiff to discovery in support of his own case is not to be abridged, as to any particular discovery, by the consideration that the matter of such particular discovery may be evidence of the defendant's case in common with that of the plaintiff.1

Thus, if a plaintiff is entitled to the production of a deed or other document as being applicable to his case, his right to such

1 See Story's Eq. Pleading, 2 853 et seq.; Mitford's Pleading, 357, 365.

2 This rule is embodied in Sir James Wigram's third proposition, which is as follows: "The right of a plaintiff in equity to the benefit of the defendant's oath is limited to a discovery of such material facts as relate to the plaintiff's case, and does not extend to a discovery of the

manner in which the defendant's case is to be exclusively established or to evidence which relates exclusively to his case." Wigram on Discovery, 15.

3 Wigram on Discovery, 263. See Kettlewell v. Barstow, L. R. 7 Ch. App. 686. Wigram on Discovery, 260. See Brown v. Wales, L. R. 15 Eq. 142.