cies where the assets are insufficient, in cases of apportionment of incumbrances among different purchasers and claimants, and in cases where equitable assets are to be marshalled for distribution, this maxim applies.

3730. Equity suffers not a right without a remedy. Ubi jus ibi remedium. This maxim, though generally is not universally true. For example, where a judgment has been rendered at law, under all the circumstances of the case equity will not interfere, notwithstanding an accident or unavoidable necessity. "There are instances in which a court of equity gives a remedy where the law gives none, but when a particular remedy is given by law, and the remedy is bounded and circumscribed by particular rules, it would be very improper for this court to take it up where the law leaves it and extend it further than the law allows." "16

3731. That where there is equal equity the law must prevail is a maxim which is generally true, for in such case the defendant has an equal claim with the plaintiff to the protection of a court of equity for his title, and the court will not interpose on either side. In æquali jure melior est conditio possidentis."

3732. It is also a maxim, qui prior est in tempore, potior est in jure. When the equities are in other respects equal, the party who has a precedency in time will in those cases gain the advantage.18 But when the equities are unequal, then the preference will be given to the superior equity.19

20

3733. Equity looks upon that as done which ought to be done. Equity will therefore treat the subject as to collateral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been, not as the parties may have executed them." 3734. It is a maxim that the fund which has received the benefit should make satisfaction. When a debt is due, secured by bond and mortgage, the personal estate is the debtor in the first place and the land is the security. On the death of the debtor intestate, the personal estate goes to his personal representative and the land descends to the heir; the personal estate having received the benefit, it must therefore make the satisfaction.

3735. Upon a similar principle, it is a maxim that satisfaction should be made to that fund which has sustained the loss. Where lands are appointed or conveyed to pay debts, the heir is entitled to have the land after the debts are paid.

3736. One of the most common and general maxims in equity is that equity follows the law, æquitas sequitur legem. Whenever the rules of law are in terms applicable, courts of equity will adopt and follow them; or when such rules are not directly applicable in cases of an equitable nature, equity will adopt and follow the analogies furnished by the rules of law."1

21

3737. It is a maxim that equity acts upon the person. In cases of injunction the party is enjoined to do or not to do a particular thing. If the injunction is not obeyed, the defendant will be attached and imprisoned. At law the courts have no jurisdiction respecting disputes about land unless such estate be within their jurisdiction, because the actions are local; in equity, on the contrary, where the courts have jurisdiction over the person, they have jurisdiction, although the lands may be in another country.2

16 Per Lord Talbot, Heard v. Sanford, Cas. temp. Talb. 174.

17 Mitford, Eq. Pl. 215; Jeremy, Eq. Jur. 285; 1 Maddock, Ch. Pr. 170; 2 Fonblanque, Eq. B. 3, c. 3, s. 1; Story, Eq. Pl. ? 604; 1 Story, Eq. Jur. 57; Dig. 50, 17, 128.

Dig. 50, 17, 98.

19 Jeremy, Eq. Jur. 285.

201 Fonblanque, Eq. B. 1, Ch. 6, s. 9, note; Craig v. Leslie, 3 Wheat. 563.

21

1 Story, Eq. Jur. 64; 3 Woodesson, Lect. 479, 482.

22 Penn v. Baltimore, 1 Ves. sen. Ch. 444; Earl of Athol, 1 Chanc. Cas. 221.

CHAPTER II.

ASSISTANT JURISDICTION OF EQUITY.

3739-3745. Bills of discovery.

3740-3743. By and against whom a discovery may be had.
3741. The plaintiff's title.

3742. The defendant's liability.

3743. The right of the plaintiff against the defendant.
3744. The nature of the discovery.

3746-3752. Eliciting evidence from third persons.

3747. The examination of witnesses de bene esse.

3749-3752. The perpetuation of testimony.

3750. The form of the bill.

3751. The interest of the parties.

3752. The subject matter of future litigation.

3738. The jurisdiction of courts of equity is considered under three points of view: first, when it comes in aid of a court of law, and it is then called assistant jurisdiction; second, when courts of law and courts of equity have both jurisdiction, when it is denominated concurrent jurisdiction; and, third, when it affords the only remedy of the party aggrieved, in which case it has exclusive jurisdiction.

The assistant jurisdiction of courts of equity is exercised to enable courts of law to do more complete justice. At law, it frequently happens that a party has rights which cannot be established in consequence of the forms used and rules adopted, although these have a general tendency to secure justice. When in consequence of these rules the party is likely to be defeated of his rights, he may in some cases apply to a court of equity for assistance to enable the courts of law to do complete justice. This is done by bill of discovery, or by eliciting testimony from third persons.

3739. It not unfrequently happens, when an action is brought, that justice may be defeated for want of a knowledge of facts which exist, but which are exclusively within the knowledge of the parties, and which cannot be obtained, because it is a rule at law that the parties in such case cannot be examined. Equity then interferes, and the plaintiff may file a bill of discovery, so called because it prays for the discovery of facts within the knowledge of the person against whom it is exhibited, or of deeds, writings, or other things in his custody or power. In one sense, every bill, except a bill of certiorari, may in

Hinde, Pr. 20; Blake, Ch. Pr. 37; Jeremy, Eq. Jur. 257; 2 Story, Eq. Jur. & 1480; Mitford, Eq. Pl. 52; Cooper, Eq. Pl. 58. Mr. Štory, in his definition, adds the limitation that this proceeding must be, in order to maintain the right of the party asking it, in a suit or other proceeding in another court. While this limitation expresses its customary use, it is not essential, since the bill may be brought in aid of a proceeding in equity. Montague v. Dudman, 2 Ves. Ch. 398. Or even as preliminary to a bill for relief, in order to ascertain the proper defendants. Angell v. Angell, 1 Sim. & S. Ch. 83; Moodaly v. Moreton, 2 Dick. Ch. 652. Though such a use is but rare, since a prayer for discovery may be, and generally is, embraced in a bill for relief, and the facility with which amendments are granted to include proper defendants and omit those improperly included in an equity suit, renders such a preliminary bill unnecessary, except in rare cases.

truth be said to be a bill of discovery, for every bill usually seeks a disclosure of circumstances relative to the case; but that commonly and emphatically distinguished by this appellation is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or other writings or things in his custody and power. The sole object of this bill being a particular discovery, when that is obtained by the answer, there can be no further proceedings upon it.2

There is a marked difference between a bill of discovery and a bill to perpetuate testimony, which will be considered in the next chapter. The former cannot be brought in many cases where the latter may. A bill of discovery cannot be brought where a penalty or a forfeiture of a public nature is involved; and in cases which involve a penalty or a forfeiture of a private nature, it cannot be maintained unless the party entitled to the benefit of the penalty or forfeiture waives it. With regard to a bill to perpetuate testimony, no such objection exists.3

We will consider, first, by and against whom the discovery may be had; second, the nature of the discovery.

3740. The plaintiff must have a legal title to the subject matter which is the object of the discovery; the defendant must have an interest in it, and the plaintiff must have a legal claim upon the defendant in respect to such subject matter as will form a fair action at law.

3741. The plaintiff must show upon the face of the bill that he has a title to the discovery which he seeks, or an interest in the subject matter to which the discovery is attached, capable of being established and vindicated in some other court; unless the plaintiff's title be expressly admitted by the defendant, or impliedly confessed by him; as, by his adopting a mode of defence which is held to be a tacit acknowledgment of the fact, or, in some instances, by his answering it without denying it.5 A mere stranger, therefore, cannot maintain a bill for discovery of the title of another person.

6

3742. The plaintiff must also show that the defendant has some interest in the matter in dispute, for if he be a mere witness, he cannot be made to answer such a bill, because he can be compelled to give testimony in court." But if a person originally disinterested should become implicated in a transaction by his fraud or practice, he will be held liable for costs, and to that extent interested. A corporation furnishes a partial exception to the general rule that where the defendant has no interest he need not answer and make the discovery; because the answer given by a corporation is under the corporate seal, and not upon oath, and the discovery must be made by some officer under oath 10 who may have no personal interest.

8

2 In England, and in most of the states of the United States, the objects sought to be accomplished by a bill of discovery can now, through statutory provisions, be attained by proceedings under direction of the court having jurisdiction of the case. The rules and principles of equity may, however, it is apprehended, be still resorted to with advantage, as indicating the principles by which such courts would probably be guided in affording this assistance to parties before it.

3 Earl of Suffolk v. Green, 1 Atk. Ch. 450.

Brown v. Dudbridge, 3 Brown, Ch. 321; Brownsword v. Edwards, 2 Ves. Ch. 243.

5 Mountford v. Taylor, 6 Ves. Ch. 788; Marsden v. Panshall, 1 Vern. Ch. 407.

6

See Rondeau v. Waytt, 3 Brown, Ch. 154; Cooper, Eq. Pl. 58; Mitford, Eq. Pl. 189; Jeremy, Eq. Jur. 258; Haskell v. Haskell, 3 Cush. Mass. 540; Shaftsbury v. Arrowsmith, 4 Ves. Ch. 71.

7 Heyes v. Exeter College, Oxford, 12 Ves. Ch. 343.

8 See Dummer v. Chippenham, 14 Ves. Ch. 254.

Anon. 1 Vern. Ch. 117; Wych v. Meal, 3 P. Will. Ch. 310.

10 Fenton v. Hughes, 7 Ves. Ch. 288; Dummer v. Chippenham, 14 id. 254; Glasscott v. Copper Miners' Company, 11 Sim. Ch. 305.

3743. Not only must the plaintiff have a right and the defendant be liable, but the plaintiff must have a right against the defendant. A discovery will not be compelled for the mere gratification of curiosity, but only in aid of some proceeding. And although both the plaintiff and defendant may have an interest in the subject to which the discovery required is supposed to relate, yet when there is no privity between them, a discovery will not be enforced.12

13

Commonly, the application for a discovery is made in aid of an action really pending, in which case a bill will lie for a defendant at law for the purpose of defence, as well as on the part of the plaintiff to support and substantiate his case. But it is not indispensably necessary that the action should have been commenced; for where there is a prima facie ground for such proceeding, the court will compel a discovery in aid of an action to be brought thereupon,15 cept in the case of a common informer, who must first bring an action, for until then he has no right.16

ex

3744. Whenever the plaintiff can show a title to the subject matter in himself, and also an interest in the defendant, and an apparent legal right against the latter concerning it, which cannot be enforced without the aid of a discovery, a court of equity will compel it.

3745. But to this general rule there are many exceptions, among which may be mentioned the following:

The discovery must not be of a nature to endanger the defendant's title; for it does not follow that because a person is unable to substantiate every particular in the deduction of his title, which may be necessary to relieve it from doubt or defect, he may not possess the best title, and be in fact the owner. Α plaintiff has a right to a discovery of what appertains to or is necessary for his own title; and he has no right to pry into that of his adversary."7

It must not be immaterial or unnecessary, for in this case it will not be enforced, as there could be no reason for compelling the defendant to make it.18 It must be of such a nature that, if made, it will not subject the defendant to pains, penalties, or forfeitures; because a court of equity will aid only in cases of civil, and not of a criminal nature, no man being bound to accuse himself.19

The discovery must not be for the attainment of an object which is illegal or contra bonos mores.2 20

A bill of discovery will not be entertained to assist another court, when the latter is of itself competent to grant relief."

A discovery will not be compelled when it is against the policy of the law, in consequence of the particular relations of the parties. A bill filed against

11 Kardale v. Watkins, 5 Madd. Ch. 18.

12 Story, Eq. Pl. & 571.

13 Bishop of London v. Flytche, 1 Brown, Ch. 96; Andrews v. Berry, 3 Anstr. Exch. 634. 14 Finch v. Finch, 2 Ves. Ch. 491, 492.

16 See Mynd v. Francis, 1 Anstr. Exch. 5.

15 Moodly v. Moreton, 1 Brown, Ch. 469.

17 Cooper, Eq. Pl. 97; Hare, Discov. 183 to 194; Wigram, Discov. 21, 111, 147.

18 Finch v. Finch, 2 Ves. Ch. 491; Anon, 2 id. 451; Kensington v. Mansell, 13 id. 240; Macauley v. Shackell, 1 Bligh, Hou. L. N. s. 120; Thomas v. Tyler, 3 Younge & C. Ch.

255.

19

Cooper, Eq. Pl. 191; Jeremy, Eq. Jur. 265; 2 Story, Eq. Jur. ? 1494; United States v. Bank of Virginia, 1 Pet. 100; Horsburg v. Baker, 1 id. 232; Claridge v. Hoare, 14 Ves. Ch. 64; Glynn v. Houston, 1 Keen, Ch. 329.

This exception does not apply where there is fraud, which does not subject the defendant to a criminal action, though he may have incurred a penalty; as, for example, under a bond for good conduct. Janson v. Solarte, 2 Younge & C. Ch. 132; Green v. Weaver, 1 Sim. Ch. 404; Mitchell v. Koecker, 11 Beav. Rolls, 380.

20 Cousins v. Smith, 13 Ves. Ch. 542.

21 Gelston v. Hoyt, 1 Johns. Ch. N. Y. 547. But see March v. Davison, 9 Paige, Ch. N. Y. 580.

a married woman to compel her to disclose facts which may charge her husband will be dismissed.22 Nor can a bill of discovery be sustained against one who has derived his information in the confidence reposed in him as counsel, solicitor, attorney, or arbitrator, whose secret is the privilege of the client.23

Nor will such a discovery be compelled by or against persons who are not parties at law.24

3746. We have considered the mode of obtaining the assistance of a court of equity to obtain the facts from the parties in order to found a judgment; we shall now examine the subject of the means of obtaining testimony from those who are not parties.

It not unfrequently happens that persons who can testify cannot be present at the time of trial, and thus their testimony would be lost if it could not be taken before that period, and justice be defeated. There are two modes of securing such evidence; the first, by filing a bill praying that the testimony of the witnesses be taken de bene esse, and the other, praying that the testimony may be taken in perpetuam rei memoriam. There is considerable difference between the two cases. The court gives aid of the former kind generally when the party seeking it is plaintiff or defendant in an action pending or intended; and of the latter kind when the party applying for it is in possession, but anticipates litigation and an aggression upon his enjoyment at a future time, when his adversary shall have gained sufficient advantage by delay, or where he is out of possession and has no present right to bring an action, or is prevented by the opposite party, as by injunction, from bringing such action. In the first case, or when the testimony is taken de bene esse, it cannot be read at law unless it has been proved that the witness is unable personally to attend; but such is not the rule when the testimony has been perpetuated.26 There are two classes of cases where this testimony may be taken: first, when a suit or action has been brought, and then the witnesses are examined de bene esse; and, second, before any action has been commenced, when a bill is filed to perpetuate the testimony.

25

3747. When a witness resides abroad, out of the jurisdiction, and refuses to attend, the court of chancery has always exercised the power of issuing a commission to the judge of some foreign jurisdiction where a witness resides, requesting that in furtherance of justice he will, by the proper and usual process of his court, cause certain witnesses to appear before him, or some other competent person by him for that purpose to be appointed, at a particular time and place, to take the depositions of such witnesses.27

3748. When the witness is aged, as of the age of seventy years and upward, the court of chancery will issue a commission, of course, to take the deposition of the witness.28

22 Cooper, Eq. Pl. 196; Le Texier v. Margrave of Anspach, 5 Ves. Ch. 322, 15 id. 159. 23 Greenough v. Gaskell, 1 Mylne & K. Ch. 100; Preston v. Carr, 1 Younge & J. Exch. 175; Hare, Discov. 174; Story, Eq. Pl. 22 599, 600.

24 Glyn v. Soares, 3 Mylne & K. Ch. 450, 469; Story, Eq. Pl. 569.

25 Duke of Dorset v. Girdler, Prec. Chanc. 531; Angell v. Angell, 1 Sim. & S. Ch. 89.

26

V. - 2 Ves. sen. Ch. 496, 498; Morrison v. Arnold, 19 Ves. Ch. 671.

27 In the United States, the common law courts are generally authorized to issue commissions to take depositions in civil cases. 1 Greenleaf, Ev. ? 321.

28 The witness must be of an age to render it probable that he will die before trial, when his deposition is to be taken de bene esse, since, as was very justly remarked by Sir John Leach, the circumstance that witnesses are aged and infirm should be rather a reason for the action being immediately brought, to give the better chance of their living till the trial, than a reason for permitting the action to be indefinitely delayed at the pleasure of the plaintiff. Angell v. Angell, I Sim. & S. Ch. 83; Rowe v. 13 Ves. Ch. 261; Prichard v. Gee, 5 Madd. Ch. 364.