DISCOVERY. The act of finding an un known country.
The nations of Europe adopted the principle that the discovery of any part of America gave title to the by whose subjects or by whose au thority it was made, as against all European gov ernments. This title was to be consummated by pos session ; Johnson v. McIntosh, 8 Wheat. (U.. S.) 543, 5 L. Ed. 681; Martin v. Waddell, 16 Pet. (U. S.) 367, 10 L. Ed. 997; 2 Washb. R. P. 518.
By the law of nations, dominion of new territory may be acquired by discovery and occupation as well as by cession or conquest ; Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691.
An invention or improvement. See PAT ENT. Also used of the disclosure by a bank rupt of his property for the benefit of cred itors.
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 main tain the right or title of the party asking it, in some other suit or proceeding.
It was originally an equitable form of procedure, and a bill 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- •1 ant, on his oath of the truth of the circumstances constituting the plaintiff's case as propounded in his bill ; Story, Eq. Jur. § 1483 ; but the term is tech nically applied as defined above. See De Wolf v. De Wolf, 4 R. I. 450. Many important questions have arisen out of the exercise of this power by equity ; but these are of comparatively little practical im portance in England and many of the states, where parties may be made witnesses and compelled to produce books and papers in courts of law.
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; Skinner v. Judson, 8 Conn. 528, 21 Am. Dec. 691; Wolf v. Wolf's Ex'r, 2 H. & G. (Md.) 382, 18 Am. Dec. 313. 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 particular court for which it is wanted, where the court can itself compel a discovery ; 2 Ves.
451; Fitzhugh v. Everingham, 2 Edw. Ch. (N. Y.) 605; Wheeler v. Wadleigh, 37 N. H. 55; 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 ; Lansing v. Pine, 4 Paige, Ch. (N. Y.) 639; fifth, that the value of the suit is beneath the dignity of the court; sixth, that the plaintiff has no Interest in the subject-matter or title to the discovery re quired; 2 Bro. C. C., 321; Coombs v. War ren, 17 Me. 404; Marion Nat. Bank v. Abell's Adm'x, 88 Ky. 428, 11 S. W. 300, 10 Ky. L. Rep. 980 ; or that an action for which it is wanted will not lie; 3 Bro. C. C. 155; 1 Bligh, N. S. 120; 3 Y. & C. 255; 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 ;2 Y. & C. 107; City Bank v. Bangs, 3 Paige, Ch. (N. Y.) 36; in case of arbitrators; 2 Vern. 380; 3 Atk. 529; ninth, that the defendant is not bound to discover his own title; Bisph. Eq. 561; 1 Vern. 105; Mange v. Guenat, 6 Whart. (Pa.) 141; see Downie v. Nettleton, 61 Conn. 593, 24 Atl. 977; or that he is a bona fide purchaser without notice of the plaintiff's claim; 8 Sim. 153; McNeil v. Hill, 5 Mas. 269, Fed: Cas. No. 8,915; Wood v. Mann, 1 Sumn. 506, Fed. Cos., No. 17,951; Vattier v. Hinde, 7 Pet. (U. S.) 252, 8 L. Ed. 675; Varick v. Briggs, 6 Paige, Ch. (N. Y.) 323; and see Hart v. Bank, 33 Vt. 252; Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371; tenth, that the discovery is not material in the suit ; 2 Ves. 491; Geiston v. Hoyt, 1 Johns. Ch. (N. Y.) 548; eleventh, that the defendant is a mere witness; 2 Bro. C. C. 332; Geer v. Kissom, 3 Edw. Ch. (N. Y.) 129; but see 2 Ves. 451; 1 Sch. & L. 227; 11 Sim. 305; Vermilyea v. Bank, 1 Paige, Ch. (N. Y.) 37; twelfth, that the discovery call ed for would criminate the defendant; Noyes v. Thorpe, 73 N. H. 481, 62 Atl. 787,