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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 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 pl antiff'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)

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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 scveral 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 plaintifl' 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.

(e) Hinde. 57.

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 positively 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. Mcs. 192. 1. Chan. 1. Atk. 528. Cas. 11.

(e) Hinde, 37. Chan. Cas. 231.
(Hinde, 37. 1. Vern. 247.

Hinde, 38. Atk. 17. Anon.
Hinde, 38. Harrison. v. Southcote.

(i) Hinde, 39. ch. Rep. 14. Dean of Westminster v. Cross, Bumb. 60. (j) Hinde, 39, 40. Chan. Cas. 2264 Davis v. Curtis,

(k) Mad. 162, 3.

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sons for the discovery of moneys paid after notice of a sequestration. (1)

So it lies for a discovery of concealment of a bankrupt's estate. (m)

So a defendant, a lessee, has been compelled to discover whether his lease was expired or not. (n)

So it lies for a person in possession as tenant, or otherwise, for the discovery of the title of one bringing an ejectment against him. (0)

So it lies for goods put on board a ship, though insured for a sum certain, interest or no interest, for the value of the goods saved ought to be deducted out of the sum to be paid for insurance. (p)

So it lies for the discovery of assets. (q)

And in like manner for wine imported. (r)

A bill will not lie to compel a purchaser for a valuable consideration, without notice of the plaintiff's title, to make a discovery. (s)

A barrister, or a counsellor, or an attorney, is not bound to discover things communicated to them in the line of their profession. (1)

No person can be compelled to give a discovery that may subject him to a prosecution for felony, or to answer what is a matter of scandal, or what may lead to a legal accusation, or to what may subject him to a penalty, and not merely what must, or to any thing in the nature of a penalty or forfeiture. (u)

A Bill Quia timet.

A bill of quia timet is brought when a person being seised of lands in fee, grants a rent-charge issuing