application are examined by him. Hoffman's Ch. Pr. vol. 1, pp. 77, 78; see Buckley v. Corse, Saxton's Ch. Rep. 504.

2. BREACH OF.

The construction given to the words "to enter up judgment," says Mr. Eden, "has been, that they apply to a final judgment. All that the court intends to restrain is execution. The plaintiff may proceed so far as to be able to take out execution the instant that the injunction is dissolved. Therefore, after an interlocutory judgment, as by default, or on demurrer, the plaintiff at law may go on to ascertain his damages."

Mr. Eden says: "It is now clearly settled that any proceeding, either against the bail or the sheriff, is a breach of the common injunction."

3. PROCEEDINGS WHERE PARTY IS IN CONTEMPT.

"The modern practice," says Mr. Eden, "where the party is in contempt for breach of the injunction, is to give notice of a motion, not that the defendant should show cause why he should not be committed; but that he may stand committed for breach of the injunction, which is moved upon affidavit of the service of the injunction."

As a breach of an injunction is a contempt of the court, the consequence is liability to be committed to prison for the contempt. Where an injunction is to do a thing, and the party neglects or refuses, the course to compel him is to move that he shall do it by a particular day, or stand committed; but where the injunction operates strictly by way of restraint, as where an injunction had been granted to restrain a party from ploughing up a rabbit-warren farther than was necessary for the sustenance of the rabbits, a motion that the defendant shall show cause why he should not stand committed for breach of the injunction, is irregular. The proper course is either to move that the defendant be committed for breach of the injunction, or else to move that he be committed, unless he show cause at a future day to the contrary. If the first course is adopted, the motion must be made on personal service of notice of motion. Service on the defendant's clerk in court will not do it by itself, and is unnecessary when there is personal service. In Ellerton v. Thirsk, (1 Jac. & W. 376,) Lord Eldon is reported to have held that the order cannot be made, unless the original writ of injunction is brought into court. But in a very late case, Lord Cottenham thought a party having notice of an injunction, and being guilty of a breach of it, may be committed without production of the writ, observing that he did not think Lord Eldon could ever have laid down such a rule.

If the second course is adopted, then the defendant is personally served with the order nisi, and the plaintiff, at the proper time for showing cause, moves to make the order nisi absolute. Drewry on Inj. p. 406.

In the State of New York, the statute relative to proceedings as for contempts to enforce civil remedies and to protect the rights of parties in civil actions, has prescribed two modes of proceeding, where the misconduct complained of is not committed in the immediate view and presence of the court; except in the two cases, of disobedience to a rule or order for the payment of money, and disobedience to a subpoena. One of the prescribed modes is by an order on the accused party to show cause, at some future time to be specified in the order, why he should not be punished for his alleged misconduct; and the other is to grant an attachment, to arrest the accused and bring him before the court, to answer for such misconduct. 2 R. S. 535, § 5. In either mode of proceeding, however, the party complaining of the alleged misconduct must produce proof thereof, by affidavits, or a sworn petition, or other legal evidence, as the foundation for the proceedings. Idem, § 3. Where the party proceeds by an order to show cause, copies of the order, and of the affidavits and other papers on which it is founded, and of such other documentary evidence as the prosecutor wishes to use in the case, or so much thereof as is not already in the possession of the accused, must be served on him, or his solicitor, such length of time, previous to the day appointed for showing cause, as the court shall in such order direct. And then if the party accused does not appear at the day appointed, or such other day as may be afterwards designated for that purpose, or if he appears and does not deny the alleged misconduct, the court may at once proceed to make a final decision, that the accused has been guilty of the contempt charged, and to award the proper punishment, as directed by the statute. 2 R. S. 538, § 19 to 24. If the alleged misconduct is denied, the court may discharge the order to show cause; or may allow interrogatories to be filed and refer it to a master to take the answers of the accused to such interrogatories, and to take such proof as either party may wish to offer, and report the same to the court. But the proofs themselves should be reported to the court, and not merely the master's opinion thereon. For the statute directs the court to determine upon the original affidavits, the answers of the defendant, and such. subsequent proof, whether the accused has been guilty of the alleged misconduct. Idem, § 19.

Where the prosecutor proceeds by attachment, if the defendant is brought into court or voluntarily appears thereon, the court is required

by the statute to cause interrogatories to be filed, specifying the facts and circumstances of misconduct alleged against the defendant, and requiring his answer thereto. This appears to be absolutely necessary in a proceeding by attachment, unless the defendant admits the alleged contempt. Upon such interrogatories being filed and answered, the court may proceed in a summary manner to decide the question as to the guilt of the accused; or may refer it to a master to take the answers of the defendants to the interrogatories, and to take and report such other evidence as either party may wish to produce before him relative to the contempt.

The New York Code of Procedure for 1851, provides that if any person, party or witness, disobey an order of the judge or referee duly served, such person, party or witness, may be punished by the judge as for a contempt. And in all cases of commitment under this chapter, or the act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just.

4. BILL OF DISCOVERY.

Mr. Eden remarks that, "on a motion to stay trial till the answer comes in, or till the return of the commission there must be an affidavit, stating the plaintiff's expectations of discovery from the defendant's answer."

The intelligent student need scarcely be reminded that every bill in chancery is not only a pleading or statement of the complainant's case, but is also an instrument of discovery; it is an examination of the defendant. The complainant has a right to extract from the defendant evidence to make out his case, or to aid in making it out. The defendant may object to the discovery: 1st, where the answer would criminate the defendant; 2d, where he is a pure holder for a valuable consideration without notice; 3d, where the defendant has no title; 4th, where executors are defendants, and the demand has become stale from the great lapse of time; 5th, where the answer of the defendant will subject him to a penalty; 6th, where the defendant is a judgmentcreditor and the bill is filed by a subsequent purchaser, and seeks to impeach the consideration or validity of the judgment; 7th, where a defence is set up which meets and controverts the complainant's title; 8th, where the bill is filed for an account of partnership transactions, and the defendant denies the partnership; 9th, where the defendant is

called upon to answer whether his transaction with other persons were usurious or not; at the instance of a creditor or third person who does not himself complain, or seek a discovery, especially if there is no charge of fraud; 10th, where certain documents are set forth historically, in the stating part of the bill, the defendant is not bound to answer to the facts contained or stated in such documents, unless particularly stated distinct from the documents; yet he must answer to the fact of the existence of such documents according to his knowledge, information and belief; 11th, where the facts are necessary or material to the complainant's decree; 12th, where the matters as to which an answer is sought, were reposed in the defendant as counsel, solicitor, arbitrator, &c. Barb. Ch. Pr. 131, 132. It may be laid down as a general principle, that the complainant has a right to a discovery upon oath from the defendant, of all matters of fact which are well pleaded in the bill, and are material to the plaintiff's case; and the facts discovered must relate to the plaintiff's case and not extend to a discovery of the facts of the defendant's case. King v. Fleming, 9 Simons, 59.

But the kind of bill usually distinguished by the title of bill of discovery, is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery. The defendant must in general have a claim or interest; otherwise a bill of discovery does not lie. But there are exceptions to the rule. March v. Davison, 9 Paige, 580; ib. 123; 2 Vern. 380; 8 Ves. 404; 2 Atk. 394; 1 Ves. & B. 550; 7 Ves. 287; 14 ib. 252. In cases of collusion and gross misconduct, amounting to fraud, persons having no interest may be compelled to answer the complainant's bill. And such is the rule as to arbitrators charged with misconduct or fraud. Lingood v. Croucher, 2 Atk. 395; 2 Ves. 315; 2 Ves. jun. 451; 14 ib. 252. So where the bill seeks to impeach deeds on account of fraud. Mitf. Pl. 188; Bennet v. Vade, 2 Atk. 324; Colton v. Luttrell, 1 Atk. 451; 2 Ves. 627. So in a bill of discovery against a corporation, the secretary, or bookkeeper, or other officer, may be made a party, although he has no interest. Wych v. Meal, 3 P. Wms. 310; 5 Ves. 322; 15 ib. 129. A bill of discovery also lies to show that the defendant is incapable of having any interest—as where he is an alien. If the title to the possession of deeds and writings, of which the complainant prays possession, depends on the validity of his title to the property to which they relate, and he is not in possession of that property, and the evidence of his title to it is in his power, or does not depend on the production of the deeds or writings of which he prays the delivery, he must establish his title to the property at law before he can come into a court of equity, for a deliv

ery of the deeds or writings. Mitf. Pl. 54. The discovery must be for matters which lie only in the knowledge of the defendant, and must call for something which it is not in the complainant's power to set out in his bill. Farley v. Farley, 1 McCord's Ch. Rep. 517. As a general rule, a discovery will not be compelled where it would subject the defendant to a penalty, forfeiture or criminal proceedings, or would be in violation of professional confidence. Welf. Eq. Pl. 119, 123 to 127; March v. Davison, 9 Paige, 580.

The New York Code of Procedure abolishes bills of discovery. It provides that no action to obtain discovery under oath, in aid of the prosecution or defence of another action shall be allowed. Sec. 389. A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled in the same manner, and subject to the same rules of examination as any other witness, to testify either at the trial, or conditionally, or upon a commission. Ib. sec. 390. The examination, instead of being had at the trial, may be had at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless for good cause shown, the judge order otherwise. But the party to be examined cannot be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance. Ib. sec. 391. The party to be examined may be compelled to attend in the same manner as a witness who is to be examined conditionally; and the examination is to be taken and filed by the judge in like manner, and may be read by either party on the trial. Ib. sec. The examination of the party thus taken may be rebutted by adverse testimony. Sec. 393.

392.

5. COMMISSION TO EXAMINE WITNESSES.

If the plaintiff in equity requires the testimony of witnesses residing abroad in defence of the action at law, a commission for that purpose will be granted upon motion.

Besides the ordinary cases in which a commission to examine witnesses abroad is required, for the purpose of obtaining evidence in the suit itself, a commission is also frequently granted for the purpose of enabling the party applying for it, to make use of the testimony of witnesses resident abroad in aid of, or in defence to, an action at law. In such cases, the bill prays no equitable relief, but is merely a bill of discovery accompanied by a prayer for a commission to examine wit

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