treat the verdict as a mere nullity. The standard being so vague, as the satisfaction of the conscience of the individual judge, who has directed the issue, the rules for granting a new trial are extremely indefinite. When, however, the Court sends the question back to law, it will be, usually, to another tribu nal.1 1 There is another interlocutory proceeding, which from its constant recurrence requires some description, in the reference to a master, when the Court feels a difficulty or inability to afford relief without the attainment of some preliminary information. The masters are subservient to the Court in a great variety of instances, but the nature and extent of their office will be sufficiently apparent from the statement, that references are made to them to take accounts which may be necessary in the progress of a cause, and frequently to investigate the claims of persons upon the property in suit, and in due time to satisfy such as may be admitted; to examine the title to estates, and to settle conveyances; to make sale of property, and to enquire into the propriety of granting leases, felling timber, or making repairs; and to appoint new trustees of property, guardians of infants, and committees of idiots and lunatics. And for the purpose of facilitating enquiries which it may be thought expedient thus to refer, and of rendering them more effectual, the masters may be empowered to examine witnesses, or even parties to the cause, upon interrogatories. This extra-judicial mode of investigation is of very great advantage, not only as the means of relieving the Court itself from the performance of burthensome, and sometimes inconsistent, duties which are nevertheless necessary to the administration of justice, but as the means of enabling it to extend the benefits of its jurisdiction to a much greater variety of cases. And upon the master's reports, where a reference has been thought necessary, if the conscience of the Court be satisfied, it will make its final decree. Jeremy's Equity, page 293. 38 CHAPTER XLII. BILLS OF DISCOVERY, BILLS TO PERPETUATE 1. NATURE OF BILLS OF DISCOVERY. 2. BILLS TO PERPETUATE EVIDENCE. 3. BILLS TO TAKE TESTIMONY DE BENE ESSE. 1. What is a bill of discovery, and when does it lie? Every bill in Equity is in a general sense, a bill of discovery, since it seeks to obtain a disclosure from the defendant, on oath, of the facts propounded in the bill. But the term is peculiarly and properly applied to a bill for the discovery of facts, resting in the knowledge of the defendant, or of deeds, or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery, although it may pray for the temporary stay of proceedings at law. The bill is commonly used to obtain a discovery of facts material to the prosecution or defence of a suit, which either has been brought or is about to be brought at law: and it is not necessary to aver that the plaintiff has no other evidence by which to establish his claim or defence. The plaintiff must show that he has an interest in the subject matter, to which the required discovery relates, and that 19th Paige's Rep., 580. the discovery is material to the prosecution or defence of his rights. It is a good objection to a discovery, that the defendant may be examined as a witness, except in a case where it is sought from the book-keeper or other officer of a corporation ; that the defendant is a bona fide purchaser for a valuable consideration without notice; or, that it would subject him to a penalty or forfeiture.1 or, 2. What is a bill to perpetuate testimony, and when will Courts of Equity take jurisdiction of it? The object of this bill is to preserve testimony in memoriam rei, which is in danger of being lost, before it can be made the subject of judicial investigation. This jurisdiction is only entertained, where it is absolutely necessary to prevent a failure.of justice; both, because it leads to a trial on written depositions, which is much less favorable to the cause of truth, than viva voce examination of witnesses, and because the witnesses testify without any apprehension of punishment for perjury, as the depositions cannot be published till their death. The plaintiff must, therefore, aver in his bill, that the matter in question cannot be made the subject of immediate judicial investigation. The right to maintain this bill, exists in reference to every species of vested interest, however minute the amount or remote the prospect of possession, and whether it be real or personal, in its character. But the interest must not be contingent, however proximate and valuable. Thus, the next of kin, of a lunatic, cannot support a bill to perpetuate testimony with respect to the lunatic's affairs, however desperate his case may be; for 1 It was formerly said that if a discovery might tend to render a party infamous, he should not be obliged to answer; but it has been held by Lord Eldon, that if a defendant be not liable to any penalty or forfei ture, he is bound to answer fully, notwithstanding his answer may tend to cast a very great degree of reflection upon his character and conduct. Hare on Discovery, 182. If the plaintiff is solely entitled to take advantage of the penalty or forfeiture, and waives his right in the bill, the objection to the discovery will be obviated. Nor does the objection apply, where the liability of the defendant is of the nature of stipulated damages. But the defendant will be protected from answering, not only where the question has a direct tendency to criminate him, but where it forms a single step towards it. Hare on Discovery, 137, 138, 152. the law always recognises the possibility at least, of his recovery; upon which, restitution of his property is to be made, and an account rendered to himself alone. 3. What is the nature of a bill to take testimony, de bene esse? It is a bill filed, during the pendency of a suit at law, to take the testimony of witnesses, whose presence there is reason to apprehend, cannot be procured on the trial. It will be granted, of course, to take the testimony of a witness living out of the jurisdiction of the Court, where the evidence sought, is material. But, as the Court cannot confer upon its commissioners, any authority in a foreign country, the success of the proceeding must depend entirely on the determination of the witnesses, whether they will be examined or not. So, where a witness is sick or aged, and therefore, in danger of dying before the cause is tried, or where the proof of a material fact in the case depends upon so frail a tenure, as the life of a single witness, such a bill will be entertained. CHAPTER XLIII. PECULIAR DEFENCES AND PROOFS IN EQUITY. 1. DEFENCE OF THE STATUTE OF LIMITATIONS. 2. PLEA OF THE STATUTE OF FRAUDS. 3. PLEA OF AN ACCOUNT STATED. 4. BONA FIDE PURCHASER FOR A VALUABLE CONSIDERATION. 5. EFFECT OF THE WANT OF PROPER PARTIES TO A BILL. b. PECULIAR RULES AND PRINCIPLES OF EVIDENCE IN EQUITY. 7. NATURE AND INCIDENTS OF A DECREE. 1. When does the Statute of Limitations, constitute a good defence in Equity.' 1 There are some other points, connected with the Statute of Limitations, which should be noted in this place. 1. Its operation in reference to trusts. "The general rule, that no lapse of time, will bar a direct trust, as between a trustee, and cestui que trust, is broadly laid down in many cases. Direct trusts are such as are created and acknowledged by the act of the parties; possible or eventual trusts occur where a party, who took possession, originally, in his own right, and was prima facie, the owner, is afterwards converted into a trustee by evidence. In these latter, it was never doubted, that length of possession was, and ought, to be a bar, on the principle of the Statute of Limitations. In the case of Kane vs. Bloodgood, 7 J. C. R., 110, the subject was elaborately investigated by Chancellor Kent; and the bar of the Statute of Limitations upon trusts, was still further extended, and more accurately described, than in any previous cases. Ac |