relief.-The

ticular relief

honorable court to pay your Orator's said Legacy of 8 Prayer of $ and that the same may be placed out to prayer for par interest for your Orator's benefit until your Orator at- altho'generally tains the age of 21 years, and that the said $

inserted, seems

to be unnecessary. You

pray for such

iief as is agreea

made by your

process.

may then be paid to him, and that in the mean time the may at the bar interest thereof may be paid to your Orator's saidFather, particular retowards the maintainance and education of your Orator, ble to the case and that your Orator may have such further and other bill. relief in the premises as the nature of the case shall require, and as to your Honor shall seem meet. May 9. Prayer of it please your Honor to grant unto your Orator the most gracious writ of Subpoena of the People of the State of New-York, issuing out of and under the Seal of this Honorable Court, to be directed to the said I. K. and L. M. and the rest of the Confederates when discovered, thereby commanding them and every of them, at a certain day, and under a certain pain, therein to be specified, personally to be, and appear before your Honor, in this Honorable Court; and then and there to answer all and singular the premises aforesaid, and to stand to perform and abide such order, direction and decree therein as to your Honor shall seem meet; and your Orator shall ever pray, &c. &c. A. B., Solicitor for Complainant,

C. D., of Counsel.

A Bill of Interpleader.

This bill is preferred in cases where two persons claim of a third the same debt or the same duty, as if rent be demanded of a tenant by two several persons, and he be ignorant to which it is actually payable, he is entitled to protect himself against their separate claims by exhibiting against them a bill of interpleader; by which, after setting forth the circumstances of the case, he prays that they may be compelled to state their respective rights to the court (a)

(a) Bart. 45,

12

13

14

It is essential in a bill of this sort that the plaintiff offer to bring the money in question into court. (b)

And in like manner it is required that the plaintiff annex to his bill an affidavit that there is no collusion between him and either of the other parties. (c)

If the parties have actually commenced an action at law against the plaintiff, he may previous to prayer of Subpoena proceed to ask an injunction (d)

This bill states the situation of the plaintiff, the conflicting claims upon him, and prays that such claimants may interplead, so that the court may adjudge to whom the debt or duty belongs, and that the plaintiff may thereby be indemnified. (e)

It must appear by the bill that there is some person capable of interpleading, and that he must be such a person as in rerum natura can interplead. (ƒ)

The bill must also show, that each of the defendants whom it seeks to compel to interplead, claims a right, otherwise both the defendants may demur. (g)

If an interpleading bill is properly instituted, the plaintiff is entitled to his costs out of the fund in court. (h)

A Bill of Certiorari.

In the classification of bills, the bill of certiorari has been introduced here, for form's sake, there being no inferior court of equity in this state.

A Bill to perpetuate Testimony.

This bill is used in cases where there is reason to fear that evidence necessary to support facts, which at a future period will probably become the subject of

controversy, may be lost by death or absence from the state.

This bill sets forth the general circumstances of the plantiff's case, the matters respecting which he is desirous of giving evidence, shows an interest in the subject, sufficient to entitle him to the aid of the court, and also an interest in the defendant to contest the title of the plaintiff in the subject of the proposed testimony. (a)

To this bill it seems proper to annex an affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost, as being a practice adopted in other cases of bills, which have a tendency to change the jurisdiction of a subject from a court of law to a court of equity. (b)

A witness was ordered to be examined de bene esse, where the thing examined into lay only in his knowledge, and was a matter of great importance, though he was not proved to be either old or infirm. (c)

A bill to perpetuate testimony of witnesses will lie before action brought. (d)

The Lord Keeper Egerton expressed his dislike of these bills; and Lord Chancellor Parker thought such evidence could not amount to perjury at law, no issue being joined. (e)

This bill ought to state that the facts about which the witness is to be examined cannot immediately be investigated in a court of law, or that before an examination can take place, the evidence of a material witness is likely to be lost by his death or departure from the state. (ƒ)

15

Bill of Discovery.

A bill of discovery is a fifth species of original bill by which a suit may be commenced in a court of equity; every bill, except certiorari, may in truth be considered as a bill of discovery, for every bill seeks a discovery of circumstances relative to the plaintiff's case; but that usually 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 writings, or things in his custody or power, and seeking no relief in consequence of the discovery. The most frequent use of this bill is to assist the jurisdiction of the courts of common law, which have no power to compel the production of deeds, &c. or any discovery from the defendant himself. (a)

A bill of this nature sets forth the matter concerning which a discovery is sought, the interest of the several parties in the subject, and the plaintiff's right to the discovery wanted.

If a bill seeks a discovery in aid of the jurisdiction of a court of law, it must appear that such aid is clearly necessary; and the discovery natural to the defence; for where the facts depend on the testimony of witnesses, and the court of law can compel their attendance, this court will not interfere. (b)

Whenever a bill is for a discovery only, and the plaintiff has a full discovery by the defendant's answer, the plaintiff cannot reply or proceed, for by the discovery the plaintiff has obtained the end of his bill.(c)

An affidavit of the loss of a deed is necessary when the bill seeks to be relieved on the matter of that deed, because the want of the deed is the only foundation the plaintiff has to draw the cause from law to equity; but

(a) Bart. 55, 6. see 1. Ves 205. 2d. ibid 451. Atkins, 288. 1 Brown, 469.

(b) Gelston and Schenck v. Hoyt.

1 John. Chan. Rep. 543.

(c) Hinde. 37.

when the bill seeks no decree, but a discovery merely, or to have the deed produced at the trial, or the like, an affidavit is not necessary, because it is not to be presumed that the plaintiff would put himself to the expense of a trial, if the deed was in his own hands. (d)

If the bill exhibited be grounded on the loss of a bond, as it is the loss which entitles the court to the jurisdiction of the cause, affidavit must be made of it. (e)

But if a person comes in only for a discovery of a deed, he need not make oath of the loss of it, as he must when he comes in for relief; for he cannot translate the jurisdiction without oath made of the loss of the deed. (f)

If a bill be brought for relief, as well as discovery of deeds, an affidavit must be annexed that plaintiff has not the deeds in his custody, or defendant may demur. (g)

Every heir at law has a right to a discovery by what means and under what deed he is disinherited. (h)

A bill of discovery of a note, deed, &c. lies after six years are elapsed, for the statute of limitations is no plea to it. (i)

A bill of discovery against an executor or administrator, for a discovery of assets, ought to charge posi tively that the assets of the testator or intestate came to his hands. (j)

Where the discovery is immaterial, or where on the face of the bill, it appears there can be no remedy, a discovery would be merely impertinent, and is therefore not inforced. (k)

A bill of this nature lies, it seems, against, third per

(d) Hinde. 37 Mos. 192. 1. Chan. Cas 11.

(e) Hinde, 37. Chan. Cas. 231.

Hinde, 37 1. Vera. 247.

(5) Hinde, 38 Atk 7 Anon.

Hinde, 38. Harrison. v. Southcote.

1. Atk. 528.

(i) Hinde, 39. ch. Rep. 14. Dean of Westminster v. Cross, Bumb. 60.

(j) Hinde, 39, 40. Chan. Cas. 226, Davis v. Curtis.

(k)1 Mad. 162, 3.