BILL OF DISCOVERY. In Equity Prac tice. One which prays for the discovery of facts resting within the knowledge of the person against whom the bill is exhibited, or of deeds, writings, or other things in his cus tody or power. Hinde, Ch. Pr. 20; Blake, Chanc. Pract. 37.
It does not seek relief in consequence of the dis covery (and this constitutes its characteristic fea ture), though it may ask for a stay of proceedings till discovery is made ; 2 Story, Eq. Jur. § 1483 ; Bisph. Eq. § 557; and such relief as does not require a hearing before the court may be part, it' is said, of the prayer ; Eden, Inj. 78 ; 19 Ves. Ch. 376 •; 4 Madd. 247; 5 id. 218; 1 Sch. & L. 316; 1 Sim. & S. 83..
It is commonly used in aid of the 'juris diction of a court of law, to enable the par ty who prosecutes or defends a suit at law to obtain a discovery of the facts which are material to such prosecution or defence ; Hare, Dlscov. 119; Marsh v. Davison, 9 Paige, Ch. (N. Y.) 580; Lane v. Stebbins, 9 Paige, Ch. (N. Y.) 622; 2 Dan. Ch. Pr. 1556; Langd. Eq. Pl. § 167. A defendant in equity may obtain the same relief by a cross bill; Langd. Eq. Pl. § 128.
The plaintiff must be entitled to the dis covery he seeks, and can only have a dis covery of what is necessary for his own title, as of deeds he claims under, and not to pry into that of the defendant ; 2 Ves. Ch. 445. See Mitf. Eq. Pl. 52; 1 Madd. Ch. Pr. 196; Hare ; Wigram, Disc. It will not lie to com pel a judgment debtor to disclose assets on which execution may be levied ; Cargill v. Kountze, 86 Tex. 386, 22 S. W. 1015, 25 S. W. 13, 24 L. R. A. 183, 40 Am. St. Rep. 853.
There hak been much controversy as to whether the defendant is entitled to discov ery to aid him in preparing his answer; Langd. Eq. Pl. § 129.
The bill must show a present and vested title and interest in the plaintiff, and what that title and interest are ; Pease v. Pease, 8 Mete. (Mass.) 395; 1 Vern. 105; Story, Eq. Jur. § 1490; Baxter v. Farmer, 42 N. C.
239 ; with reasonable certainty; 3 Ves. 343 ; must state a case which will constitute a just ground for a suit or a defence at law; McIntyre v. Mancius, 3 Johns. Ch. (N. Y.) 47; 1 Bro. C. C. 96; must describe the deeds and acts with reasonable certainty ; 3 Ves. Ch. 343; Horton v. Moseley, 17 Ala. 794; must state that a suit is brought, or about to be, and the nature thereof must be given with reasonable certainty ; 5 Medd. 18 ; must show that the defendant has some interest ; 1 Ves. & B. 550; Wakeman v. Bailey, 3 Barb. Ch. (N. Y.) 484; and, where the right arises from privity of estate, what that privity is; Mitf. Eq. Pl.; it must show that the matter is material, and how ; Many v. Iron Co., 9 Paige Ch. (N. Y.) 188; Marsh v. Davison, 9 Paige Ch. (N. Y.) 580; Lane v. Stebbins, 9 Paige Ch. (N. Y.) 622; Stacy v. Pearson, 3 Rich. Eq. (S. C.) 148; and must set forth the particulars of the discovery sought; Laight v. Morgan, 2 Caines Cas. (N. Y.) 344; 1 Y. & J. 577. Adverse examination before trial of a defendant will not be permitted for the purpose of discovering a cause of action ; Britton v. MacDonald, 3 Misc. 514, 23 N. Y. Supp. 350.
A bill for discovery but waiving answer under oath is not demurrable for want of an affidavit and cannot be treated as a bill for discovery ; Harrington v. Harrington, 15 R. I. 341, 5 Atl. 502 ; if the oath has been waived, the defendant is not excused from answering, but he loses the benefit of his own declarations, while his admissions are evidence against him; Uhlmann v. Brewing Co., 41 Fed. 369.
It will not lie in aid of a criminal prose cution, a mandamus, or suit for a penalty; 2 Yes. Ch. 398 ; Colton v. Ross, 2 Paige Ch. (N. Y.) 399, 22 Am. Dec. 648 ; Story,' Eq. Jur. § 1494 ; 1 Pom. Eq. Jur. § 197.