has been invested at times with unnecessary mystery. There are few fields where considerations of practical convenience should play a larger role. The rationale of the remedy, when used as an auxiliary process in aid of trials at law, is simplicity itself. At times, cases will not be proved, or will be proved clumsily or wastefully, if the litigant is not permitted to gather his evidence in advance. When this necessity is made out with reasonable certainty, a bill in equity is maintainable to give him what he needs.1 Equity Rule 58. There were other reasons in times past, when parties were not permitted to be witnesses, and when there was no compulsory process for the production of books or documents. Carpenter v. Winn, 211 U. S. 533; Pressed Steel Car Co. v. Union Pacific R. Co., 240 Fed. 135, 136. Today the remedy survives, chiefly, if not wholly, to give facility to proof. In the practice of many states there is a summary substitute by an order for examination before trial or for the inspection of books and papers. The substitute has never found its way into the procedure of the federal courts. Ex parte Fisk, 113 U. S. 713.2 The remedy in those courts is still by bill in equity as in days before the codes. Colgate v. Compagnie Francaise, 23 Fed. 82; Pressed Steel Car Co. v. Union Pacific R. Co., supra.

To state the function of the remedy is to give the password to its use. There are times when a suit is triable in separate parts, one affecting the right or liability, and the other affecting the measure of recovery. In suits of that order a discovery as to damages will commonly be postponed till the right or liability has been established or declared. Schrieber v. Heyman, 63 L. J. Rep. 749 (1894); Elkin v. Clarke, 21 W. R. 447 (1873); Parker v. Wells; L. R. 18 Ch. Div. 477; Fennessy v. Clark, L. R. 37 Ch. Div. 184; De la Rue v. Dickinson, 3 K. & J. 388; Peile, The Law and Practice of Discovery, pp. 26-29; Bray, Principles and Practice of Discovery, pp. 14, 15; Wigram, Points in the Law of Discovery, § 45. As a general thing it will be useless to decree it any earlier, and may even be oppressive. "The principle of judicial parsimony" (L. Hand, J., in Pressed Steel Car Co. v. Union Pacific R. Co., supra), if nothing more, condemns a useless remedy. This division of the trial into stages or instalments will happen oftenest in suits in equity, though it is not unknown in actions at law where a jury has been waived. In equity it is common practice. Thus, a suit to establish a partnership or to restrain the infringement of a patent culminates, if successful, in an interlocutory decree, which will be followed by an accounting and a discovery of

1 In Moore v. Backus, 78 F. (2d) 571 (C. C. A. 7th, 1935) [certiorari denied, s.c., 296 U. S. 640 (1935)], Sparks, J., after quoting this statement, said (p. 577): "That action for discovery [in the principal case] was directed to the defendant alone, and we do not understand that the pronouncement was intended to permit a discovery from mere witnesses who had no interest in the action, or for mere evidentiary facts."

2 It has now. See pp. 881-882, infra.

documents. In these,and like cases, the accounts will not be probed until the right has been adjudged.

A different situation is presented where the action is at law and is triable by judge and jury. There interlocutory judgments are unknown, at all events where the defendant has answered generally and not by special plea, and the verdict establishing the right establishes at the same time the amount to be recovered. The answer being general, the case according to common law practice must be tried as a unit and not broken into parts. In such circumstances damages may be proved with the aid of a discovery, if the complication of accounts or other practical impediments make it necessary that the evidence be sifted in advance.1

To hold that the plaintiff in an action at law may have discovery of damages is not to say that the remedy will be granted as of course, or that protection will not be given to his adversary against impertinent intrusion. Wigram, supra, § 115. The court may decline to open the defendant's records to the scrutiny of a competitor posing as a suitor, if the suit has been begun without probable cause or as an instrument of malice. It is all a matter of discretion. Good faith and probable cause were here abundantly established.2 . . .

The decree under review protects the petitioner with sedulous forethought against an oppressive inquisition. Only the most general facts are to be discovered in advance of trial. The bill is to be retained, however, to be available in case of need. If the occasion for fuller scrutiny shall afterwards develop, there may thus be an inspection of the records without the delay that would be inevitable if a new bill had to be filed with a new opportunity to the defendant to answer or demur. Presumably the jury could be held together in the interval, and the trial at law adjourned. This relief may have been less than the plaintiff should have had. It was certainly not

more.

2. The use that has been made of the patented device is a legitimate aid to the appraisal of the value of the patent at the time of the breach.3

3. Section 724 of the Revised Statutes permitting the use of a subpoena duces tecum for the production of books and papers has not superseded the remedy of discovery in cases where inspection during the trial and in the presence of the jury will produce delay or inconvenience. Carpenter v. Winn, supra; Pressed Steel Car Co. v. Union Pacific R. Co., supra.

1 Further discussion of this question is omitted.

2 Some further discussion of this point is omitted.

Compare the rule of classical equity that discovery will not be compelled "in aid of a criminal prosecution, or of a penal action, or of a suit partaking of such a character, or in a case involving moral turpitude." 2 Story, Equity Jurisprudence (13th ed. 1886) § 1494.

3 So much of the opinion as deals with this question is omitted.

The court did not exceed the bounds of a legitimate discretion in holding that these embarrassments might reasonably be expected to follow if discovery were refused.

The decree should be

Affirmed.

BLACKSTONE, COMMENTARIES, vol. 3, *450.

If witnesses to a disputable fact are old and infirm, it is very usual to file a bill to perpetuate the testimony of those witnesses, although no suit is depending; for, it may be, a man's antagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir at law; and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute its validity and then, the defendant having answered, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the bill: but the heir is entitled to his costs, even though he contests the will. This is what is usually meant by proving a will in chancery.1

STORY, COMMENTARIES ON EQUITY JURISPRUDENCE (13th ed. 1886) vol. 2, § 1514.2

By the common law it is well known that the Courts of Law have no authority to issue commissions to take the testimony of witnesses de bene esse in any case. But Courts of Equity have been constantly in the habit of exercising such jurisdiction in aid of trials at law, where the subject-matter admits of present judicial investigation and a suit is actually pending in some court. They will for example, upon a proper bill, grant a commission to examine witnesses who are abroad and who are material witnesses to the merits of the cause, whether the adverse party will consent thereto or not. They will

1 For a full discussion of bills to perpetuate testimony, see 2 Story, Equity Jurisprudence (13th ed. 1886) §§ 1505-1512. Most states now have statutory provisions for the perpetuation of testimony. See, e.g., N. Y. C. P. A. § 295. It has been said that these have rendered the older procedure obsolete. See 1 Pomeroy, Equity Jurisprudence (5th ed. 1929) § 212. But it should be noted that while Rule 27 (a) of the Federal Rules of Civil Procedure provides a method for taking depositions on petition to perpetuate testimony before action brought, Rule 27 (c) specifically states that: "This rule does not limit the power of a court to entertain an action to perpetuate testimony."

2 Footnotes omitted.

also entertain a bill to preserve the testimony of aged and infirm witnesses resident at home, and of witnesses about to depart from the country, to be used in a trial at law in a suit then pending, if they are likely to die before the time of trial may arrive. They will even entertain such a bill to preserve the testimony of a witness who is neither aged nor infirm, if he is a single witness to a material fact in the cause. This latter case stands upon the same general ground as the other; that is to say, the extreme danger to the party of an irreparable loss of all the evidence on which he may rely in support of his right in the trial at law; for that which depends upon a single life must be practically treated as being very uncertain in its duration.1

1 For a fuller discussion of bills to take testimony de bene esse and of witnesses in foreign countries, see 1 Pomeroy, Equity Jurisprudence (5th ed. 1929) §§ 213-214. Statutes or rules of court providing for the taking of depositions in actions at law have rendered this procedure obsolete. See, e.g., N. Y. C. P. A. §§ 288-294, 296–309. Rule 26 of the Federal Rules of Civil Procedure (1938) contains elaborate provisions with regard to depositions in pending actions.

CHAPTER XVII

EQUITABLE EXECUTION

CREDITORS' BILLS.

BILLS in equity by creditors against debtors are of two general types. (1) Where the debtor has made a fraudulent conveyance of property, the common-law procedure was for the creditor to levy on the property alleged to have been conveyed in fraud of creditors in the hands of the transferee, and then bring a bill in equity to remove the cloud on the title thus obtained to the property by compelling the fraudulent transferee to release any claims thereto.❜ Moreover, statutes frequently provide for proceedings in equity to set aside fraudulent conveyances. These matters are dealt with in courses on Creditors' Rights and on Administration of Debtors' Estates, and creditors' bills of this type will not be considered in detail here. (2) A creditor may desire to reach assets of his debtor which are not subject to levy on execution at law and which cannot be attached or garnished. If he can reach such assets at all, it will be by a bill in equity for equitable execution, or as it is often called a bill to reach and apply the debtors' property to the payment of the debt. In classical equity, as we shall see, such a bill was maintainable only when the plaintiff had obtained a judgment at law and execution has been returned unsatisfied. Some modern statutes allow bills to reach and apply or equivalent proceedings before execution returned unsatisfied or sometimes even before judgment. This chapter is concerned with these methods of enforcing judgments at law by suit in equity.

1 Cf. 1 Whitehouse, Equity Practice (1915) § 447.

2 As to the history of the law of fraudulent conveyances, see 4 Holdsworth, History of English Law (2d ed. 1937) 480-482. The invalidity of such conveyances and the possibility of levy by the creditor on the property in the hands of the fraudulent transferee were consequences of English legislation of 1584-85, 27 Eliz. c. 4, which is generally in force in the United States unless changed by statute. A considerable number of states have adopted uniform legislation on the matter. See McLaughlin, "Application of the Uniform Fraudulent Conveyance Act," 46 Harv. L. Rev. 404 (1933).

3 Under the Uniform Fraudulent Conveyance Act, such a suit may be maintained although the plaintiff has not reduced his claim to judgment. See American Surety Co. v. Conner, 251 N. Y. 1 (1929).

See, generally, McClintock, Equity (1936). § 203; 3 Freeman. Executions (3d ed. 1900) §§ 424-426.