Lapas attēli
PDF
ePub
[ocr errors]

the sole purpose of obtaining a discovery of facts resting in the defendant's knowledge, or of deeds, writings, or other things in his custody or power; and seeking no relief in consequence of the discovery, except possibly a stay of proceedings till the discovery is made.' A bill of discovery is usually filed in aid of the jurisdiction of another court. It will not be allowed, if it seek a discovery of matters concerning which a party, if called as a witness, would be excused from testifying; nor, it has been said, if the discovery is sought in aid of an action for a mere personal tort. A bill of discovery can only be filed in aid of a judicial proceeding already commenced or immediately contemplated. If filed in aid of proceedings already begun, no person may be made a party to it who is not a party to such proceedings, except possibly the officer of a corporation. A bill of discovery must state the matter touching which discovery is sought, show that both the plaintiff and the defendant have or claim an interest therein, state the facts and circumstances upon which the plaintiff's right to compel discovery from the defendant is founded, and pray that the defendant may make a full discovery of the matters therein stated. bill of discovery may also pray any equitable assistance of the court which is merely consequential upon the prayer for discovery; but if it should pray any other or general relief, it will thereby become a bill for relief. It seems that a bill of discovery need not allege that the facts of which a discovery is sought are within the exclusive knowledge of the defendant; " but they must be matters essential to a plaintiff's cause of action, or if he be defendant in another suit or action, to his

A

§ 281. Daniell's Ch. Pr. (5th Am. pock, 1 Stew. Eq. (N. J.) 261; Dan ed.) 1556. iell's Ch. Pr. 1558.

2 Daniell's Ch. Pr. (5th Am. ed.) 1556. 3 Glynn v. Houston, 1 Keen, 329; Langdell's Eq. Pl., § 69; Wigram on Discovery, $$ 130-138; Daniell's Ch. Pr. (2d Am. ed.) 563-569.

4 Glynn v. Houston, 1 Keen, 329. For discovery of an unlawful combination, see Evans v. Lancaster City St. Ry. Co., 64 Fed. R. 626.

5 Mayor of London v. Levy, 8 Ves. 398; United N. J. R. & C. Co. v. Hop

[blocks in formation]

12

13

affirmative defense, and the bill must not seek discovery of the evidence of a part of what belongs solely to the defendant's case. The defendant may oppose a bill of discovery by a demurrer, or plea, or in his answer, in the same manner as he might oppose a bill for relief. The English rule, as finally established, was that, if a demurrer were interposed to a bill praying both discovery and relief, and the bill were held not to show a proper case for relief, it could not be maintained for discovery merely. The rule in the Federal courts is uncertain. A defense founded upon the statute of limitations or laches may be interposed to a bill of discovery by plea,16 or, if it appear upon the face of the bill, by demurrer." A material amendment of a bill of discovery will very rarely be allowed.18 A bill of discovery is never brought to a hearing; but, after the defendant has put in a full answer thereto, he is entitled to costs of the suit,19 less any costs allowed the plaintiff upon exceptions to a previous answer as insufficient.20 It has been held in the district of Wisconsin that a bill of discovery cannot be maintained in a Circuit Court of the United States held within a State under whose statutes a party can be compelled to testify," but the preponderance of authority is otherwise."

12 Wigram on Discovery, § 372; Langdell's Eq. Pl., § 172; Ingilby v. Shafto, 33 Beav. 31.

19 Atty. Gen. v. Burch, 4 Madd. 178. 20 Hughes v. Clerk, 6 Hare, 195. See also Bryant v. Leland, 6 Fed. R. 125,

13 Evans v. Lancaster City St. Ry. U. S. C. C., D. Mass.; Easton v. Co., 64 Fed. R. 626.

14 Fry v. Penn, 2 Bro. C. C. 280; Loker v. Rolle, 3 Ves. 4; Langdell's Eq. PL, § 152.

15 It seems that the rule is the same as in England. Markey v. Mut. Ben. L. Ins. Co., 6 Ins. L. J. 537; Cecil Nat. Bank v. Thurber (C. C. A.), 59 Fed. R. 913. But see Livingston v. Story, 9 Pet. 632; Wright v. Dame, 1 Met. (Mass.) 237; Higginbotham v. Burnet, 5 J. Ch. (N. Y.) 184; Story's Eq.

PL., § 412.

Hodges, 7 Bissell, 324, U. S. C. C., D.
Illinois; Paton v. Majors, 46 Fed. R.
210, U. S. C. C., E. D. La., Billings, J.;
Washburn & M. Mfg. Co. v. Freeman
Wire Co., 41 Fed. R. 410. U. S. C. C.,
E. D. Mo., Thayer, J.; Washburn &
M. Mfg. Co. v. Cincinnati B. W. F.
Co., 42 Fed. R. 675, U. S. C. C., S. D.
Ohio.

21 Rindskopf v. Plato, 20 Fed. R. 130. So in the district of Louisiana. Paton v. Majors, 46 Fed. R. 210. See also Heath v. Erie R. Co., 9 Blatchf.

16 Beames on Pleas, 275; Gait v. Os- 316; Brown v. Swann, 10 Pet. 497; baldeston, 1 Russ. 158.

Manchester F. A. Co. v. Stockton, C.

17 Wooster v. Sidenbergh, S. D. H. & A. Works, 38 Fed. R. 378. N. Y., Nov. 6, 1889.

22 Continental Nat. Bank v. Heil

18 Marquis Cholmondeley v. Lord man, 66 Fed. R. 184; Kelly v. BoettClinton, 2 Meriv. 71. cher, 85 Fed. R. 55, 66; National H.

§ 282. Testimony taken before a cause is at issue.- Testimony for use in a court of law or equity of the United States may be taken either before or after it is at issue. Testimony taken before a cause is at issue may be taken either before or after it has been begun. "Any court of the United States may, in its discretion, admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the State wherein such cause is pending, according to the laws thereof." Evidence taken by means of a bill to perpetuate testimony may also be admitted in a subsequent suit in equity." "After any bill filed and before the defendant hath answered the same, upon affidavit made, that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony." Such testimony is then taken in the same manner as testimony taken after issue has been joined.

§ 283. The time for taking testimony in equity. The Equity Rules provide: "Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing." "Where the evidence to be adduced in a

1

B. B. Co. v. Interchangeable B. B. Co. (C. C. A.), 83 Fed. R. 26, 30; Bryant v. Leyland, 6 Fed. R. 125; Indianapolis Gas Co. v. Indianapolis, 90 Fed. R. 196; Colgate v. Compagnie Francaise, 23 Fed. R. 82. See also Paine v. Warren, 33 Fed. R. 357.

§ 282. U. S. R. S., § 867.

2 N. Y. & B. C. P. Co. v. N. Y. C. P. Co., 9 Fed. R. 578.

3 Equity Rule 70. See Eslava v. Mazange, 1 Woods, 623. It has been held that under U. S. R. S., & 858, 863,

[blocks in formation]

cause is to be taken orally, as provided in the order passed at the December term, 1861, amending the 67th General Rule, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties, or by leave of the court first obtained, on motion, for cause shown." Upon due notice, given as prescribed by previous order, the court may, at its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing." Testimony taken after the time has expired may by leave of the court be filed nunc pro tunc.*

§ 284. Testimony taken within the jurisdiction of the court after a cause is at issue.-Testimony taken after a cause is at issue is taken differently when taken within than when taken without the jurisdiction of the court. Originally, the only manner of examining witnesses within the jurisdiction of a court of chancery was by means of written interrogatories and cross-interrogatories, which were prepared by the solicitors and counsel of the respective parties, or by the court, and then submitted to an examiner or one or more commissioners appointed by the court, who examined the witnesses privately by means of them. The testimony thus obtained was kept secret until all the testimony in the cause had been taken. The time when it could first be inspected was called the time of publication. This method of taking testimony was, like many other

usual case the appellate court will not review the action of the lower court in giving or refusing time in which to take testimony. Ingle v. Jones, 9 Wall. 486; Grant v. Phoenix M. L. Ins. Co., 121 U. S. 105. See Streat v. Steinam, 38 Fed. R. 548; Wooster ▼. Clark, 9 Fed. R. 854.

2 Amendment of 1869 to Rule 67. See Rule 108, U. S. C. C., S. D. N. Y; infra, § 284, note 4.

3 Amendment of May 15, 1893, to Equity Rule 67, 149 U. S. 793. The

order should be obtained on notice and the testimony taken down in writing. Mears v. Lockhart (C. C. A.), 94 Fed. R. 274.

4 Fischer v. Hayes, 6 Fed. R. 76; S. C., 19 Blatchf. 25; Coon v. Abbot, 37 Fed. R. 98; Wenham v. Switzer, 48 Fed. R. 612; Emerson Co. v. Nimorus, 88 Fed. R. 280.

§ 284. Langdell's Eq. Pl., §§ 56-58. See Eillert v. Craps, 44 Fed. R. 792; Wood v. Mann, 2 Sumn. 316. The Federal Equity Rules upon the sub

parts of equity practice, borrowed from the canon law; with this difference, however, that whereas by the canon law each party before the examination of witnesses was obliged to furnish his adversary and the court with articles containing a spe

ject are as follows: "After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases, the commissioner or commissioners shall be named by the court, or by a judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written interrogatories." Equity Rule 67. In 1861 the last paragraph of this rule was repealed. In 1854 it was "ordered, that the sixty-seventh rule governing equity practice be so amended as to allow the presiding judge of any court exercising jurisdiction, either in term time or in vacation, to vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge thereof can now do by the said sixtyseventh rule." "Immediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged as he may deem reasonable under the circumstances; but, by consent of the parties, publication of the testimony may at any time pass into the clerk's office, such con

sent being in writing, and a copy thereof entered in the order books, or indorsed upon the deposition or testimony." Equity Rule 69; Eillert v. Craps, 44 Fed. R. 792. Where there is a dispute as to the relevancy of an interrogatory or cross-interrogatory, the usual practice is to allow it to be answered in a doubtful case, and to determine the objections to it at the hearing, or by a motion to suppress the deposition. Zunkel v. Litchfield, 21 Fed. R. 196, 197; Giles v. Paxson. 36 Fed. R. 882; Appleton v. Ecaubert, 45 Fed. R. 281; Edison El. L. Co. v. U. S. El. L. Co., 44 Fed. R. 294; s. C., 45 Fed. R. 55; Blease v. Garlington, 92 U. S. 1. The court may refer the interrogatories to a master to inquire into their relevancy. Zunkel v. Litchfield, 21 Fed. R. 196. It has been said that, as a general rule, after the publication of testimony, no more can be taken unless the judge himself, upon or after the hearing, entertains a doubt, or the proof of some additional fact is indispensable to enable him to make a satisfactory decree; but that exhibits in a cause may be proved after publication, and even viva voce at the hearing, when they have not been proved in due season; and that a witness may be examined after publication as to the credit of other witnesses; and that the time may be enlarged after publication is passed, but not in fact made according to rules of court, upon good cause, as surprise, accident, or some other circumstances repelling imputations of laches, proved by affidavit, which, unless the other party has practiced fraud, is indispensable. Wood v. Mann, 2 Sumn. 316. See Eillert v. Craps, 44 Fed. R. 792.

« iepriekšējāTurpināt »