DISCOVERY (Fr. decouvrir, to uncover, to discover). The act of finding an unknown country.
The nations of Europe adopted the principle that the discovery of any part of America gave title to the government by whose subjects or by whose au thority it was made, as against all European govern ments. This title was to be consummated by posses sion. 8 Wheat. 543; 16 Pet. 367; 2 Washburn, Real Prop. 518.
An invention or improvement. Act of Cong. July 4, 1836, 6.
In Practice. The disclosure of facts rest ing in the knowledge of the defendant, or the production of deeds, writings, or things in his possession or power, in order to maintain the right or title of the party asking it, in some suit or proceeding in another court.
It was originally an equitable form of procedure, and a hill of discovery, strictly so called, was brought to assist parties to suits in other courts.
Every bill in equity is in some sense a bill of dis covery, since it seeks a disclosure from the defend ant, on his oath, of the truth of the circumstances constituting the plaintiff's case as propounded in his bill, Story, Eq. Jur. 7483; but the term is technically applied as defined •above. See 4 R. I. 450; 2 Stockt. Ch. N. J. 273. Many important questions have arisen out Of the exercise of this power by equity; but these are of comparatively little practical importance in England and many of the states of the United States, where parties may be made witnesses and compelled to produce books and papers in courts of law.
2. Such bills are greatly favored in equity, and are sustained in all cases where some well-founded objection does not exist against the exercise of the jurisdiction. Story, Eq. Jur. 1488 ; 8 Conn. 528 ; 2 Harr. & G. Md. 382. See 17 Mass. 117 ; 22 Me. 207 ; 4 Hen.
& M. Va. 478 ; 3 Md. Ch. Dec. 418. Some of the more important of the objections are, —first, that the subject is not cognizable in any municipal court of justice, Story, Eq. Jur. 1489; second, that the court will not lend its aid to obtain a discovery for the par ticular court for which it is wanted, as where the court can itself compel a discovery, 1 Atk. Ch. 258; 2 Yes. Ch. 451 ; 1 Johns. Ch. N. Y. 547; 2 Edw. Ch. 605 ; 37 N. H. 55 ; see 9 Paige, Ch. N. Y. 580; 6 Yes. Ch. 821; third, that the plaintiff is not entitled by reason of personal disability ; fourth, that the plaintiff has no title to the character in which he sues, 4 Paige, Ch. N. Y. 639 ; fifth, that the value of the suit is beneath the dig nity of the court; sixth, that the plaintiff has no interest in the subject-matter or title to the discovery required, 2 Brown, Ch. 321; 1 Yes.
Sen. Ch. 248; 2 id. 243 ; 4 Madd. Ch. 193; 4 Ves. Ch. 71; 6 id. 288; Cooper, Eq. Plead.
c. 1, 4 ; 2 Metc. Mass. 127 ; 17 Me. 404, or that an action for which it is wanted will not lie, 3 Brown, Ch. 155; 3 Yes. Ch. 494; 13 id. 240; 1 Bligh, N. s. 120 ; 3 Younge & C. Ch. 235 ; see 1 Phill. Ch. 209 ; seventh, that the defendant is not answerable to the plaintiff, but that some other person has a right to call for the discovery; eighth, that the policy of the law exempts the defendant from the discovery, as on account of the peculiar relations of the parties, 5 Yes. Ch. 322 ; 8 id. 405 ; 15 id. 159 ; 3 Ares. & B. Ch. 165; 3 Esp. 38, 113 ; 2 Younge & C. Ch. 107 ; 8 Eng. L. & Eq. 89 ; 35 id. 283 ; 3 Paige, Ch. N. Y. 36; in case of arbitrators, 2 Vern. Ch. 380; 3 Atk. Ch. 529; ninth, that the defendant is not bound to discover his own title, 1 Vern. Ch. 105 • 6 Whart. Penn. 141, or that he is a bond purchaser with out notice of the plaintiff's claim, 2 Edw. Ch. 81; 1 Term, 763; 10 Yes. Ch. 246 ; 3 Mylne & K. Ch. 581; 2 Younge & C. Ch. 457 ; 8 Sim. Ch. 153 ; 5 Mas. C. C. 269 ; 1 Sumn. C. C. 506; 2 id. 487 ; 7 Pet. 252 ; 10 id. 177; 7 Cranch, 2; 6 Paige, Ch. N. Y. 323 ; and see 33 Vt. 252; 1 Stockt. N. J. 82; tenth, that the discovery is not material in the suit, 2 Yes. Ch. 491; 1 Johns. Ch. N. Y. 548; eleventh, that the defendant is a mere witness, 7 Yes. f"- ?S7! 2 Brown. Ch, 332 ; 3 Edw. Ch.
N. Y. 129 ; but see 2 Yes. Ch. 451; 14 id. 252; 1 Schoales & L. Ch. In 227; 11 Sim. Ch. 305 ; 1 Paige, Ch. N. Y. 37; 9 id. 188; twelfth, that the discovery called for would criminate the defendant. The suit must be of a purely civil nature, and may not be a criminal prosecution, Lofft, 1; • 19 How. St. Tr. 1154 ; 7 Md. 416 ; a penal action, 1 Keen, 329 ; 2 Blatchf. C. C. 39; a suit 'partaking of this character, 1 Pet. 100 ; 6 Conn. 36; id. 528; 14 Ga. 255 ; or a case involving moral turpitude. See 2 Yes. Ch. 398 ; 14 it 64 ; 1 Bligh, N. s. 96 ; 2 Eng. L. & Eq. 117; 5 Madd. Ch. 229.; 2 Younge & C. Ch. 132 ; 11 Beay. Rolls, 380; 1 Sim. Ch. 404; 24 Miss. 17.
3. Courts of equity which have once ob tained jurisdiction for purposes of discovery will dispose of a cause finally, if proper for the consideration of equity, though the remedy at law is fully adequate. 1 Story, Eq. Jur. 64 k-70 ; 1 Munf. Va. 98 ; 1 A. K. Marsh. 463, 468 ; 15 Me. 82; 2Johns. Ch. N. Y. 424; 1 Des. So. C. 208; 2 Ov. Tenn. 71; 1 Harr. Ch. Mich. 12. See 4 Harr. & J. Md. 46 ; 6 Ala. N. s. 299. Consult Adams ; Story, Eq. Jur.; Greenleaf; Phillipps, Ev. ; Wigram, Disc.; Joy, Conf.