Dinsmore v. Crossman , 53 Me. 441 ( 1866 )

Kent, J.

A demurrer is interposed to the bill on the ground that it is not verified by oath as required in certain cases, by rule 1 of this Court in chancery cases. 37 Maine, 581. That rule is that " bills of discovery and those praying for an injunction must be verified by oath.”

This bill is for a redemption of a mortgage, and is for relief. It seeks also for answers to certain allegations in reference to consideration, amounts received for rents, and income, and sums paid. It has the usual allegation of a demand for an account, &c.

All bills in equity that seek for answers to matters alleged may, in one sense, be said to be bills for discovery, although they seek for relief based on such facts. But there is a distinct bill in chancery practice known as a bill of discovery. It is that and nothing else. It seeks only for the discovery of facts resting in the knowledge of the other party, or of deeds and writings or other things in his custody or possession, but seeking no relief in that bill in consequence of the discovery. Bouvier’s Law Diet., title Bill in Chancery Practice; Story’s Equity Plead., 288.

The question raised in this case seems to have been settled in Hilton v. Lothrop, 46 Maine, 297.

The bill of discovery, referred to in the rule of Court, is the pure and simple bill of discovery, and not the common bill which seeks relief, and, to lay the foundation for it, asks for answers to the charging part of the bill.

Demurrers overruled.

Respondents to answer.

Appleton, C. J., Walton, Dickerson, Barrows and Danforth, JJ., concurred.