
    PRICE v. TYSON.
    The nature of a bill of discovery. — A defendant in answering a bill of discovery may set forth any pertinent matter in avoidance. — In general, no matter stated by way of answer which affords such information as the bill calls for, or which may be needful as a defence can be deemed impertinent. — Nor can any matter which is pertinent to the case be deemed scandalous. — The legality of evidence, brought out by a bill of discovery, must be determined by the court of common law for whose use the discovery was made.
    This bill was filed on the 8th of February, 1831, by William Price, administrator of John Price, deceased, against Mary Tyson, Isaac Tyson and Moses Sheppard, administrators of JYathan Tyson, deceased. The bill states, that in the year 1817, a suit which had been previously instituted by the plaintiff's intestate, against the intestate of the defendants, was transmitted from Baltimore to Harford County Court; and was there, by an order of that court, referred to arbitration; but no award having been made, it was in 1826,.reinstated; that the defendants had pleaded in abatement the death of the plaintiff before they had been summoned as defendants, which plea was finally overruled by the Court of Appeals ; that the object of the suit at law was to recover a large sum of money due from the freight of a vessel chartered by the plaintiff's intestate to the intestate of the defendants; that these defendants pretending ignorance of any suit having been instituted against their intestate, in his life-time, for the recovery of this debt, have pleaded in bar thereof, that they had fully administered the estate of their intestate without any knowledge of the plaintiff’s claim, or of the pendency of the suit at law; that the defendant Mary is the widow, and the defendant Isaac is the brother or near relation of their intestate; and both, being intimately acquainted with his affairs, did know, that the controversy between the late John and the late JYathan had been referred to arbitration, and had never been settled; and that the defendants before the 10th of October, 1821, had employed counsel to attend to the interests of the estate committed to their care in that controversy. Whereupon the plaintiff prayed, that he might have a full and fair discovery of the knowledge of the defendants in the premises to enable him to protect himself against their plea in bar, a matter difficult from other proof, by reason of the great lapse of time since the institution of the suit.
    The defendants on the 11th of July, 1831, put in a joint and several answer to this bill, in which they admit, that it was then known to them, that the suit had been instituted and referred to arbitration as alleged in the bill; and then they add, that no further proceedings were afterwards had in the said suit, as these defendants are informed and believe, during the life-time of the said original parties, nor until several years after the death of both the said John Price and Nathan Tyson, and after the distribution of the personal estate of the said Nathan.
    
    These defendants further admit, that administration had been granted to them on the 1st of April, 1819; and then in addition, they say, that on the same 1st of April, an order was passed by the said Orphans Court, directing, that an advertisement in the form prescribed in such cases by the act of Assembly, should be inserted once a week for four successive weeks in The Federal Gazette, and also in The American, two newspapers published in the city of Baltimore, giving notice, that the defendants had obtained from the said court such letters of administration on the estate of the said Nathan Tyson, and warning all persons having claims against the said deceased, to exhibit the same with the vouchers thereof to these defendants before a certain day to be named in such advertisement; and these defendants did accordingly in obedience to said order, and as directed by the said Orphans Court, cause such advertisement, giving the said notice and warning to all persons having claims against the said Nathan Tyson, deceased, to exhibit the same with the vouchers to these defendants on or before the first day of October next thereafter, to be inserted in the said Federal Gazette newspaper, on the day next after passing the said order of court, to wit: on the second day of April, in the year 1819, aforesaid, and in the said American on the 3d of April aforesaid; and such insertion to be continued in each of the said newspapers once a week for four successive weeks, and these defendants caused the said advertisement to be so inserted in the said two newspapers as directed by the said court more than six months before they made distribution of the assets of the personal estate of the said Nathan- Tyson; which distribution was not made by them until the tenth day of October in the year 1821, at which time the whole personal estate of the said Nathan Tyson in the hands and possession of these defendants, was by them, under the direction of the said Orphans Court, divided and distributed among his personal representatives; as by a copy of the account of such distribution duly certified by the register of wills of Baltimore county under the seal of the said Orphans Court, which these defendants herewith exhibit, and pray that the same may be received as a part of this their answer, will more fully appear. And these defendants further answering, say, that at the time of the death of the said Nathan Tyson, and of the insertion and publication of the advertisement aforesaid in the .newspapers aforesaid, and for many years before and during, and more than a year after the time of the said insertion and publication, the said John Price was living and residing in the city of Baltimore; and these defendants are informed and believe, that the said John Price was a subscriber to the American, one of the said newspapers, during the said time, and that the same was delivered each day of publication at the dwelling-house of the said John Price in the said city, during the whole time of the insertion therein of the advertisement aforesaid; and these defendants at, and long before the death of the said Nathan Tyson, and always since, have resided in the said city of Baltimore. And these defendants jointly and severally aver and declare, that from the time of the death of the said Nathan Tyson until the time of making the distribution of the assets of his estate herein before mentioned, neither the said John Price nor any person on his behalf, exhibited to these defendants or to either of them, any claim of the said John Price against the said Nathan Tyson, or made either in writing or orally, any demand or claim from them, or either of them, as administrators as aforesaid, or otherwise for the said John Price against the said Nathan Tyson; or in any manner conversed with these defendants, or mentioned to them or either of them any thing relating to any claim or action of the said John Price against the said Nathan Tyson.
    
    These defendants further answering, deny that they or either of them did as administrators or otherwise, apply to any counsel or attorney in regard to the claim or action of the plaintiff’s intestate, or conversed with any counsel, attorney or other person, or with
    
      each other concerning the said claim or action'; from the time of the death of the said Nathan Tyson until after the 10th of October, 1821, when the distribution was made of the personal estate of the said Nathan Tyson as aforesaid ; and these defendants further say, that the said John Price continued to live and reside in the said city of Baltimore, until after the said distribution was made; and did not depart this life as these defendants are informed and believe, until the 14th of October, 1821.
    The defendant Mary answering for herself, admits, that she as the widow of her intestate, was entitled to one-third of the surplus of his personal estate, and alleges, that after paying off all the just claims exhibited to the administrators ; she had retained her distributive share, and further, that she knew, in the life-time of her husband, early in the year 1815, that an agreement was about to be made between the said Nathan Tyson and John Price, relating to the freight of a quantity of flour of said Tyson’s, which was to be transported in a vessel of said Price from Baltimore to some island of the "West Indies; and then she adds, that being present at a conversation between the said Tyson and Price on that subject; Price observed, that he considered it tobe only reasonable and just, that the freight should be reduced to a peace rate, if it should be known before the vessel which was to carry the flour sailed from Baltimore, that peace was made between the United States and Great Britain; and that he was willing such a condition should be inserted In the contract for the freight of the flour to be transported; and the said Price and Tyson in that conversation, entirely agreed In the opinion expressed by them in regard to the reduction of the rate of freight in the event of peace being known In Baltimore to have been made before the sailing of Price’s vessel; and it was then, as she understood, agreed between them, that it should form a part or condition of their agreement for freight.
    The defendant Mary further answering, admits, that she learned from her intestate, that in consequence of a dispute, the plaintiff’s intestate had brought suit against her intestate for the whole or some part of the freight of the flour; that she did know, that the dispute had been referred to arbitration, but did not know, that it was not settled; and then adds, that the impression made upon her mind by the knowledge, that such reference had béen made, as well as from the fact, that she heard nothing on the subject after-wards, was that an end had been put to the suit as well as to the dispute.
    
      The defendant Isaac admits, that his intestate was his brother; and that he did know, in the life-time of his intestate, that he had a dispute with the plaintiff’s intestate in relation to a claim for freight which he heard and believed had been referred to arbitration ; and then adds, that he was fully under the impression, that it had been finally settled or abandoned.
    The defendant Moses answering for himself, says, that he supposes from his intimacy with his intestate during his life-time, that he was acquainted with the existence of a dispute between him and the plaintiff’s intestate, but he has no particular recollection of it; that he has no recollection of the reference of any dispute between them to arbitration; and then he adds, that if he had any knowledge of such dispute or reference, his belief now is, that he considered it to have been finally settled in the life-time of said Tyson.
    
    The defendants severally deny that they made or caused any inquiries to be made in relation to the claim of the plaintiff’s intestate until after the 10th of October, 1821, when the distribution of the surplus of their intestate’s estate was made; and they aver, that they did not, prior to that time, employ any one to inquire into the situation of the plaintiff’s suit. And to the whole of what these defendants had said, by way of a joint and several answer, they added, that from the time of granting letters of administration to them on the personal estate of the said Nathan Tyson, until and after the time of making distribution of the said personal estate herein before mentioned, they had no notice, information, intimation, or recollection, that any action was pending in Harford County Court, or elsewhere, against the said Nathan Tyson, or against these defendants as the administrators of his estate, at the suit of the said John Price or of the complainants.
    
    Immediately after this answer was filed the plaintiff put in his exceptions to it, alleging, that all those various matters which the defendants had impertinently introduced into their answer, in addition to what he conceived were expressly called for by the bill, were foreign from his inquiries, as well as the account exhibited with the answer as a part of it; all of which he therefore prayed might be expunged as being wholly irrelevant and impertinent. And the plaintiff also objected, that what the defendant Mary had said in relation to the agreement about the freight, was inadmissible and improper; because the contract between the said Price and Tyson for the freight of the said vessel, being in writing, and
    
      11th July, 1831.
    containing no such stipulation as the one referred to in said answer, a fact well known to the said defendants.
   Bland, Chancellor.—

Ordered, that the foregoing exceptions stand for hearing on the 22d day of the present month ; Provided, that a copy of this order, together with a copy of the said exceptions, be served on the said defendants or their solicitor on or before the 15th instant.

Copies having been served as required by this order, the case was again brought before the court.

3d August, 1831.

Bland, Chancellor.

The exceptions to the answer standing ready for hearing, the solicitors of the parties were fully heard and the proceedings read and considered.

This is properly a bill of discovery, and nothing more; and therefore the case must finally terminate here with the answer; it can go no further; there can be no hearing upon the merits as where relief as well as discovery is asked for. This court having no criminal jurisdiction itself, meddles with no cases of that description which may be brought before any other tribunal; and therefore a plaintiff here can only obtain a disclosure of facts by a bill of discovery in relation to a civil case; either to enable him to commence his action aright, or to prosecute it with effect. If upon the face of the bill, it appears that there can be no remedy, the plaintiff here cannot have a discovery, which in such case would be useless and altogether impertinent; nor can a bill of discovery be sustained against any one not interested in the matter in dispute, who may be examined as a witness; and consequently, the plaintiff must by his bill point out the individual who he has already sued, or against whom he means to bring his aetion; and also so state the nature of his case as to enable the court to judge of the alleged liability of the person designated as a defendant.

This plaintiff states that he is seeking the relief he claims by an action now depending in a court of common law; and although he has by very brief and general expressions stated the nature of his case; yet its character and object are sufficiently shewn to enable this court to judge of the bearing of the liability, and to see that if his claim has any foundation whatever, in point of fact, the action at common law has been properly originated and now revived against these defendants; and therefore he is entitled to the discovery he asks from them.

This, it has. been urged, being a mere bill of discovery, in which the plaintiff asks only for a disclosure of the defendants’ knowledge of a specified fact, they cannot be permitted to set forth, in their answer, any thing foreign to that special inquiry. If this position be correct, then everything in an answer to a bill of this kind, which cannot be comprehended within the terms of the interrogatories propounded, no matter what may be the nature of the case, mast :be rejected as irrelevant. The validity of this position, therefore, presents a. preliminary question, which must be determined before 'apy inquiry can properly be gone into as to how far the matter objected to may be considered as impertinent in regard to the whqle case as .stated by this bill.

If a plaintiff has a right to relief in-this court, he has a right to an answer-from the defendant to every allegation of his bill, the admission of the truth of which, or the proof of the truth of which is necessary to entitle him to relief, And after having given, in all respects, such an answer as the bill requires, the defendant may, and indeed, always should go on, by. way of further answer, to state all matters in bar, or by way of avoidance which he may make available as a defence against the plaintiff’s claim ; for it is a well established rule, that a party cannot be allowed to offer evidence to sustain any allegation which he has not made and relied upon in his bill or answer. As where to a bill for a specific performance, although the defendant is bound to answer fully as to the agreement relied on by the plaintiff; yet he may, by way of avoidance, and as a defence against the claim presented by the bill, set forth the agreement which was really entered into between them ; and the plaintiff may, if he admits the truth of the defendants’ answer, amend his bill and take a decree accordingly upon the discovery and confession of the defendants. But having, by his amendment, virtually waived all claim founded on the contract as set out in his original bill, he cannot be allowed to offer proof to sustain such claim after the amendment has been made.

The object of a discovery from the defendants for the purpose of giving relief here, is to obtain evidence in relation to the subject in controversy, either because the plaintiff cannot otherwise prove the facts or in aid of proof. And hence the answer should, in all cases, not only disclose the truth, but the whole truth; it should not only speak the truth in relation to a particular circumstance, or part of the case; but the whole truth in regard to all the component parts of that case which is the subject of litigation between the parties. For, otherwise, if the plaintiff were allowed, by special interrogatories, to cull from the defendants’ knowledge of the whole matter in dispute only such particular facts as suited his purpose ; and the defendants were rigidly confined to the making of only such answers as such interrogatories would warrant, the truth of the case might be most grievously distorted, course of justice perverted. This as to a as discovery, is sufficiently evident.

The object of the discovery prayed by this bilj js to enable this court to give relief, but to ox common law in giving it. This plaintiff, it app earsf can preyf from a court of common law according to th^Jafira winch bnjifay be able there to establish.

It is the duty of a court of justice to act only according to the whole truth; it cannot allow any pertinent and legal testimony to be withheld or garbled; and it is of no kind of consequence whether the proofs are brought before it by means of its own process, or by the help of any other tribunal, so they be competent, credible, and pertinent.

This bill does, in effect, perform the office of a summons for witnesses to attend and testify before the court by which the plaintiff’s case is to be tried and determined. It collects evidence to be used in that court, in like manner, as the testimony of witnesses who may be brought before it, and sworn to speak the truth, the whole truth, and nothing but the truth. Looking to the general character of unreserved fulness and frankness, always expected from, and so commonly attributed to answers to bills in Chancery; if these defendants were to stop short with a bare response to the plaintiff’s interrogatories, and fail to set forth, in their answer, the matters necessary in any way to their defence at law, it might, perhaps, be objected in the court of common law, as it certainly might well be insisted upon here, on a hearing with a view to relief, that they should be allowed to offer no proof in relation to any defence which they had failed to rely upon in their answer; upon the ground that when called on to shew their defence, they had tacitly waived all such matters as were not set forth in their answer.

And besides, it is certain that a mere bill of discovery may be so amended, after the defendant has answered, as to pray for relief in this court; and it is an established rule, that in answering even such an amended bill, the defendant must confine himself to it alone, and cannot be permitted to put in a complete answer over again; and therefore, it is not only allowable, but necessary for the defendant’s own safety, that he should set forth and rely upon his defence in his answer to such an original bill, lest it should be so amended as to make it necessary for him to sustain such a defence even in this court.

I am, therefore, satisfied that a defendant, in making answer to a mere bill of discovery, must be permitted to introduce all matters in avoidance; and to take as wide a range, over the whole case, as would be allowed to him if the bill prayed for relief from this court as well as discovery; and that there is, in this respect, no material difference between a mere bill of discovery and a bill for relief.

This then is a case in which the plaintiff excepts to the defendants’ answer; because it sets forth various matters which are impertinent ; and also, because it attempts to control a written by a verbal contract.

It has always been the practice in this court, in all cases where either party excepts to the pleadings for impertinence, scandal, or insufficiency, to file the exceptions in writing, and then move for an order appointing a day for the hearing, on notice to the opposite party, or his solicitor. And all such exceptions, in the same case, may be brought to a hearing at the same time and together before the Chancellor, and disposed of at once, without delay or embarrassment.

It is the duty of the court to take care that its records be kept pure, to prevent them from being made the repositories or vehicles of scandal, and to see that the answers do not contain useless and impertinent matter. And although there may be a difficulty in answering properly in some cases, as to a bill for an account and the like, without running into long details ; yet unreasonable prolixity and mere verbiage should in all cases be avoided; and may be checked by the court itself wherever it can be done without improperly retarding the progress of the suit. The general rule is, that if the answer goes out of the bill to state any matter, not material to the defendant’s case, it will he deemed impertinent and may be expunged; but nothing can be considered irrelevant that may have an influence upon the suit, attending to the nature of it. Yet if what is pertinent be so mixed with that which is impertinent, that the one cannot be separated from the other, the whole matter with the impertinency mixed shall be expunged. And if such foreign matter in an answer be scandalous as well as impertinent, it may be struck out at the instance of a co-defendant, or even a stranger, as well as the plaintiff in the case ; and that too at the costs of the party by whom it was filed.

The general rule as to impertinence seems to be sufficiently clear in itself; hut the proper application of it to cases as they arise, has, in many instances, caused so much hesitation, that it may be well just to mention some few of the instances which afford illustrations of it.

In a case in which Anna Peck and Anna Maria Peck filed their hill as widow and daughter of John Peck, deceased, against his eldest son and others for dower, and their respective shares of the deceased’s personal estate. The eldest son put in his answer, which he entitled thus: ‘The several answer of John Peck, one of the defendants to the bill of complaint of Anna Baines, alias Green, assuming to herself the name of Anna Peck, as pretended wife of John Peck, Esq., deceased, and of Anna Maria Green, assuming to herself the name of Anna Maria Peck, as daughter of the said John Peck, Esq., deceased.’ To this the plaintiffs objected, because of its being impertinent and scandalous. And the exception was allowed; because there was no reason to fear that the title of the answer should prejudice the defendant, as an admission of the plaintiff’s right, or work any conclusion in this court,

And in another case where the plaintiff filed his bill to be relieved against a bond of £2,000 upon which the defendant had brought his action, setting forth that the bond was not entered into for money lent, or any valuable consideration, but purely to serve the defendant, and that it was agreed between them that it should not be put in suit. To prove which the plaintiff charged, that no demand had been made from 1703, when the bond was entered into, till the bringing of the action; that the plaintiff was a gentleman of a large fortune, and the defendant very necessitous ; and that the defendant afterwards borrowed of the plaintiff ¿6300 on bond; and that the bond being somehow lost, the plaintiff exhibited his bill in this court against the defendant, and had a decree for payment. The defendant in his answer says, ‘that he does not know or believe that the plaintiff lost the bond, but believes that he fraudulently concealed or destroyed it.’ To this the plaintiff objected, that it was scandalous and impertinent.

Upon which it was held, that though a matter may be scandalous in itself, it is not to be considered so if it is pertinent; or if the plaintiff asks impertinent questions, though the answer should be reflecting and impertinent, it would not be scandal. And it is very different to charge fraud and combination in a bill generally, and to insist upon it by oath in an answer. This bill is to be relieved against a stale bond;. and, as an inducement to prove it satisfied, the plaintiff mentions the subsequent bond, proceedings, and decree in this court, in which case the defendant never insisted on being paid the money due by this bond he has now put in suit; and, therefore, it is to be presumed it was satisfied. All this is material to the case, but the plaintiff, in his manner of setting out this transaction, takes notice, that the bond being some way got out of his custody, obliged him to sue in this court, and the defendant, in' his answer, says, he believes the plaintiff did not lose it, &c.; he denies what is not material; and what the plaintiff did not require him to answer. If he had alleged that he had lost it, and had questioned him to it, then his answer would not have been scandalous, though immaterial; because the plaintiff led him into it; but now he is impertinent for going out of the ■way purely to reflect on the plaintiff.

And where, after the defendant had 'answered, and the plaintiff had amended his mere hill of discovery so as to pray relief, it was held, that the defendant could not put in a complete answer over again; and that if he did so, all that part of it which purported to be an answer to any thing beyond the amended hill might be expunged as impertinent,

And where the object of the bill was to obtain an account, and as a means of relief to have an explanation of certain bills of costs and accounts, with the amount of which the plaintiff had been charged, and the plaintiff, for that purpose, had propounded to the defendant sundry very minute and particular interrogatories as to their nature; calling upon the defendant to specify, and shew how they were made out; and by what computation the result had been produced; or where the object wras to ascertain the amount and the nature of the assets in the hands of an executor; and the interrogatories propounded asked him to state the amount of the assets which had come to his hands, with a particular account of their nature. And the defendant annexed to his answer a large and minute schedule of the items of his account, with a commentary of his own upon each item; or had appended to his answer a schedule which was, in fact, nothing more than a mere transcript of tradesmen’s bills; or where the defendant, the executor, having sold the testator’s household furniture by auction, set forth, in the schedule to his answer, a copy of the auctioneer’s catalogue, with the description and price of every article.

It was held, that such schedules were altogether unnecessary and impertinent, notwithstanding the minute and special inquiries of the plaintiff, and were expunged accordingly; because they conveyed not the least degree of information upon the questions asked by the bill, the object of -which was to have the heads of one claim and another so set out as to be informed how a particular balance had been produced; and because, although the plaintiff had pertinaciously insisted on a full disclosure; and therefore, after so insisting, could not object to the disclosure in ordinary cases; yet the defendant could not be justified in setting out all the items of a tradesman’s bill, unless they were specifically called for as such; and because it would be highly inconvenient to hold that, in answer to the common interrogatories a defendant should be justified in loading the parties with the expense that attends the setting forth all the minute particulars and prices in an auctioneer’s catalogue; since it would have been sufficient to state, that the furniture was sold by auction at such a time and place, by such a person, and had produced such a sum. And if a plaintiff really desires to be furnished with these minuter details he will have no difficulty in explaining his purpose by a special interrogatory.

Hence it clearly appears, that a defendant, in making answer to a bill, cannot be permitted, in any manner, to stray beyond the confines of the case therein set forth; or to bring within those limits any thing which can afford no degree of that information asked for by the bill; or which can have no influence upon the case; -or which cannot be, in any way, needful to him as a defence against the claims and pretensions of the plaintiff. Upon these principles, in the case now under consideration, I cannot pronounce the various allegations of this answer, designated by the plaintiff as additional matter, to be entirely impertinent and foreign from the subject in dispute.

It is admitted, that the defendants have fully and sufficiently responded to all that has been asked of them by the bill. But the defendants having a right to set forth the matters on which they mean to rely as a defence against the plaintiff’s claim have done so; and it is against those positions of the answer, that all the plaintiff’s objections have been directed. These defendants, in the suit at law, have relied upon the plea of pkne admistravit; and in their answer to this bill they do, in effect, shew how they mean to sustain that plea. They here state, as the substance and foundation of their defence, that they had reasonable ground to presume, that the claim of the plaintiff had been satisfied, or abandoned, arising from the length of time during which the dispute ■had loitered or slumbered in the court of law; from no demand having been made upon them, after they had given notice by publication according to law, which notice had been repeatedly delivered into the house of the plaintiff’s testator, who had for many years resided near these defendants' and their testator; and before a distribution of the surplus had been made among his next of kin. It is true, that these matters might, without danger of inaccuracy, have been sufficiently set forth in a more condensed manner and with fewer words; but I cannot consider them as irrelevant, or say that they have been so very diffusively set forth as to amount to impertinences which should be expunged.

But these defendants have exhibited, as a part of their answer, a copy from the records of the Orphans Court of their second administration account, and of the distribution of the surplus of their intestate’s estate. This I hold to have been wholly useless and unnecessary; because their administration accounts, or the mode in which they had administered the estate of their intestate, was in no way questioned, or called for by the bill; nor were any such matters involved in the controversy to be determined by the suit at common law, in relation to which dispute alone they were interrogated by the plaintiff. This copy of the account from the Orphans Court must therefore be expunged from this case.

The plaintiff has also objected to what the defendant Mary has said in relation to the freight; because what she states could, at most, amount only to a verbal agreement, and the contract of the parties was in writing.

This allegation made by the defendant Mary, in the joint and several answer of these defendants, is evidently introduced as an avoidance of so much of the plaintiff’s claim; and therefore, could be of no weight on any prayer for relief here; unless sustained by proof. And if offered to be so established, the question would then arise, whether such proof should not be rejected so far as it was attempted to be relied on as giving an interpretation to a written contract; or whether it would not be admitted upon the ground, not of construing, but as an addition to, or alteration of a written agreement.

If the defendant Mary were offered as a witness, to prove the facts she states, it might be objected, that she was incompetent; because of having been, at the time she obtained a knowledge of the facts of which she speaks, the wife of the party as to whose contract she testifies; as husband and wife are incompetent witnesses for or against each other, as to all matters occurring during the marriage, as well after as during the coverture. If, however, this was a bill for relief here, and this case was set down for hearing on bill and answer, then this allegation, in the answer of the defendant Mary, would be taken for true, although she might be deemed incompetent to testify to the fact as a witness, But as to the relevancy, - legality, and competency of any testimony brought out by a bill of discovery, it does not belong to this court to decide; because such questions can only be determined, with propriety, by the court of common law for whose use the discovery has been required.

It is a general rule, that on a bill of discovery the plaintiff must pay to the defendant all his costs in this court; and that too, including all expenses incurred by the defendant in resisting motions made in the case by the plaintiff. And the defendant’s right to make his demand, accrues as soon as he has answered, allowing to the plaintiff a reasonable time to look into the sufficiency of the answer. But it has been thought that this rule is too general; that it ought, at least, to be so modified, as that the plaintiff should not be bound to pay costs where, upon demand, the defendant had refused voluntarily to make the requisite disclosures, so as to compel the plaintiff to come into this court, and incur the expense of a bill of discovery. It certainly does seem to be reasonable, even although the plaintiff should be ordered to pay the costs of this court in the first instance; yet that they should await the event of the suit at law, and be taxed there like the costs for summoning witnesses, &c. as a part of the costs of the suit at common law.

The act of Assembly declares, that in deciding on exceptions to answers, the court may award costs to. the party prevailing; by which the question of costs seems to have been submitted entirely to the discretion of the court, in all such cases, without distinction. In the exercise of that discretion, therefore, I cannot but think it as reasonable, on a mere bill of discovery, as on a bill for relief, where the plaintiff has been put to the expense and trouble of extracting a sufficient answer from the defendant, or of pruning away its impertinences, that he should have, at least the costs of the exceptions; and therefore I shall give such costs in this case.

Whereupon it is Ordered, that the last one of the exceptions of the plaintiff to the said answer, he and the same is hereby allowed; and that the said exhibit which the defendants have prayed to he taken as a part of their answer, purporting to be a copy of the second administration account of the defendants, and the distribution of the surplus of their intestate’s estate, he expunged from the proceedings in this case; that all the other exceptions of the said plaintiff to the said answer be overruled. And that the defendants pay to the plaintiff all the costs of the said exceptions, including a solicitor’s fee, to be taxed by the register. 
      
      
         Hindman v. Taylor, 2 Bro. C. C. 8 ; Shaftsbury v. Arrowsmith, 4 Ves. 71.
     
      
      
         Rondeau v. Wyatt, 3 Bro. C. C. 155; The Mayor of London v. Levy, 8 Ves. 404; Cartwright v. Hateley, 1 Ves., junior, 292.
     
      
       Cooth v. Jackson, 6 Ves. 37.
      
     
      
       Whaley v. Norton, 1 Vern. 483; Sidney v. Sidney, 3 P. Will. 276; Clarke v. Turton, II Ves. 240; Smith v. Clarke, 12 Ves. 480.
     
      
       Lindsay and Lynch, 2 Scho. & Lefr. 9,
      
     
      
      
         Hildyard v. Cressy, 3 Atk. 303.
      
     
      
       2 Fowl. Exch. Pra. 2; Raphael v. Birdwood, 1 Swan. 228; Mortimer v. West, 3 Swan. 229.
     
      
      
         Shaftsbury v. Arrowsmith, 4 Ves. 71; Coffin v. Cooper, 6 Ves. 514; Lord St. John v. Lady St. John, 11 Ves. 538; Norway v. Rowe, 1 Meriv. 355; Oliver v. Haywood, 1 Anstr. 82; Mason v. Mason, 4 Hen. & Mun. 414; Cheseldine v. Gordon, 2 Bland, 79.
      Birchfield v. Sharp. — 19th January, 1714. — Hart, Chancellor. — Ordered, that the complainant have liberty to take the hill off the file, and to file a new bill without costs; and have time till Monday next to declare which bill he will amend. And that the other bill which is ordered to be taken off the file, he not so taken off, but that it he lodged in the office where it may at any time be had.— Chancery Proceedings, lib. P. L. fol. 83.
      Neale v. Calveet. — 1717.—Hart, Chancellor. — Forasmuch as it appears, that the bill of complaint exhibited by the complainant against the defendant is altogether scandalous for the ill language therein. It is Ordered, that the bill be dismissed out of this court; and that the defendant recover his costs by him expended in the defence of this sui-t against the complainant.— Chancery Proceedings, lib. P. L.fol. 376.
     
      
       Peck v. Peck, Mosely, 45.
      
     
      
      
         Smith v. Reynolds, Mosely, 70.
     
      
       Hildyard v. Cressy, 3 Atk. 303.
     
      
       Alsager v. Johnson, 4 Ves. 217; Norway v. Rowe, 1 Meriv. 347; Beaumont v. Beaumont, 5 Mad. 51.
     
      
       Boydell v. Drummond, 11 East. 144, note; Leeson v. Holt, 2 Corn. Law Rep. 349; Wright v. Pulham, 18 Com. Law Rep. 271.
     
      
       Nelius v. Brickell, 1 Haywood’s Rep. 19; Doker v. Hasler, 21 Com. Law Rep. 416.
     
      
       Lenox v. Praut, 3 Wheat. 527.
     
      
       Bishop of London v. Fytche, 1 Bro. C. C. 98; Hindman r. Taylor, 2 Bro. C. C. 8.
      
     
      
       Cartwright v. Hately, 1 Ves., jun., 292; Weymouth v. Boyer, 1 Ves., jun., 423; Simmonds v. Lord Kinnaird, 4 Ves. 746; Hindman v. Taylor, 2 Bro. C. C. 10; Noble v. Garland, 1 Mad. Rep. 343; 1 Mad. Pra. Chan. 216; Giant v. Jackson, Peake’s Cas. N. P. 204.
     
      
       1820, ch. 161, s. 8.
     