The question here is simple enough. Has equity's auxiliary jurisdiction to give a discovery in aid of the prosecution or defense of an action at law been superseded or abrogated by the statutes investing the common-law courts with the power to compel discovery in the principal action by means of interrogatories, inspection of books and papers, and summary examination before trial?
Compulsory discovery proper without relief, in aid of proceedings at law, is one of the ancient inherent exclusive powers of Chancery. It is a branch of the original auxiliary jurisdiction of equity. As early as the reign of Henry VI Chancery entertained jurisdiction to give a discovery needed to sustain an action at law, without reference to any equitable question. In the time of Queen Elizabeth Chancery was in the habit of retaining jurisdiction of causes for the settlement of purely legal rights and questions, although equity's jurisdiction was invoked simply for a discovery and there was no need for other equitable relief. Lord Coke relates that vigorous protests against the practice by the common-law judges led the Chancellor to abridge this exercise of the equity jurisdiction; and this limitation upon the jurisdiction to grant relief where the subject-matter of the controversy was strictly legal, devoid of equitable features or incidents, has since had general recognition. 1 Spence's Equitable Jurisdiction 677-680.
Here, Chancery did not seek to retain jurisdiction of the cause for full relief as well as to give discovery; rather it entertained a bill for pure discovery, not concerned with direct reliefs, but in aid of the defense to the action at law by compelling the disclosure of evidence pertinent to the issue therein framed, with a mere temporary stay of the proceedings at law until discovery was had. Discovery of this *Page 269 class relates only to the procuring of evidence for use in the principal action; and the questions of relevancy and competency of the testimony adduced by the bill are determinable by the judicial tribunal in which the law action pends. Price v.Tyson, 3 Bland, Ch. (Md.) 392.
The rationale of the holding of my brethren of the majority is that, while originally equity's jurisdiction to grant a discovery proper was exclusive, the enactment of the statutes for discovery at law (R.S. 2:27-165 et seq.; 2:27-169 et seq.; 2:27-172 etseq.) served to render concurrent the jurisdiction of law and equity in this field; and that equity's jurisdiction cannot "properly" be exercised "in a case in which a court of law has already taken cognizance of the controversy, and is itself able to grant complete relief." It is said that the principle of the cases of Capraro v. Propati, 127 N.J. Eq. 419, and Verdi v.Price, 129 N.J. Eq. 355, touching the exercise of concurrent jurisdiction, is a fortiori applicable to cases such as the present, "in which concurrent jurisdiction involves ultimately a mere matter of procedure." This I conceive to be a misapprehension of fundamental principle. It fails to differentiate power and policy.
The auxiliary jurisdiction of equity is a distinct branch in itself, quite different in nature from the other two. In its original and true scope and meaning, it is "in fact a special case of the `exclusive,' since its methods and objects are confined to the equity procedure;" in suits invoking this jurisdiction "no remedy is either asked or granted; their sole object is the obtaining or preserving of evidence to be used upon the trial of some action at law." Pom. Eq. Jur. (5th ed.), §142. Equity's auxiliary jurisdiction "belongs entirely to theprocedure by which rights are enforced and remedies are obtained, and is not in any manner concerned with the reliefs themselves which are granted, except so far as reliefs must always be indirectly affected by the procedure. Its object, scope, and functions are wholly confined to the procuring of evidence; and it consists of special judicial methods by which, under certain particular circumstances, the evidence needed in pending or anticipated litigations may be obtained." Ibid., §190. On the other hand, the concurrent *Page 270 jurisdiction embraces all those civil cases in which "the primary right, estate, or interest of the complaining party sought to be maintained, enforced, or redressed is one which is created and is cognizable by the law, and in which the remedy conferred is also of the same kind as that administered, under the like circumstances, by the courts of law. The primary right, estate, title, or interest which is the foundation of the suit must be legal, or else the case would belong to the exclusive jurisdiction of equity; and the law must, through its judicial procedure, give some remedy of the same general nature as that given by equity; but this legal remedy is not, under the circumstances, full, adequate, and complete." Capraro v.Propati, supra; Pom. Eq. Jur. (5th ed.), §§ 137-139, 173 etseq. Professor Pomeroy does not include the exertion of equity's auxiliary jurisdiction in that category; indeed, it is clearly excluded by the terms used to define it. I do not perceive this distinction in the prevailing opinion.
The decisive inquiry is not as to the power of the law courts to give the same measure of discovery, but rather whether the adoption of the enabling statutes served to supersede or abrogate equity's original jurisdiction to give a pure discovery without relief. I am clear that on principle and authority this question must be resolved in the negative. The rule that equity will not intervene if a court of law can compel discovery is confined to suits for discovery and relief; it is not applicable to suits for discovery proper, i.e., the pure exercise of the auxiliary jurisdiction. As pointed out by the author of the most recent edition of Pom. Eq. Jur. (the 5th), in a note to section197a, the sweeping declaration by Chancellor Kent in Gelston v.Hoyt, 1 Johns. Ch. 543, 547, that the inability of the law court to compel discovery was a condition prerequisite, was overruled in Marsh v. Davison, Paige 580, in so far as the rule there stated was applicable to suits for discovery alone. As the editor said, an action at law cannot be withdrawn into a court of equity for compulsory discovery and final relief unless it is shown by the bill that a discovery is needed, and that the evidence sought, material to the issue, is not obtainable from witnesses or by *Page 271 the ordinary testimony in the law court; but this is not true of a suit for discovery proper without relief. The latter proceeding is proper, he says, "not only when the plaintiff therein is without other means of proof, but also in aid of his other evidence, or even to dispense with the necessity of other evidence. All the text-writers are agreed upon this view of the object and use of `discovery' proper: Hare on Discovery 1, 110;Wigram on Discovery 4, 5, 25; Story's Eq. Pl., § 319 note 3." InMitford's Equity Pleading (Jeremy's ed.) 307, it is said: "The plaintiff may require this discovery, either because he cannot prove the facts, or in aid of proof, or to avoid expense." In Earl of Glengall v. Frazer, 2 Hare 99, 105, Wigram, V.C., said: "The plaintiff is entitled to a discovery, not only in respect to facts which he cannot otherwise prove, but also as to facts the admission of which will relieve him from the necessity of adducing proof from other sources." A court of equity does not lose its jurisdiction to give a discovery proper, without relief, because the powers of the courts of law have been so enlarged as to obviate the need for the equitable remedy in some circumstances. Carpenter v. Winn, 221 U.S. 533; 31 S.Ct. 683;55 L.Ed. 842.
It is the general rule that the jurisdiction of equity over a given subject-matter is not lost by the mere fact that the common-law courts have also been invested with the same power. And it is the settled doctrine in this State that the modern statutes providing for discovery in actions at law through interrogatories, inspection of books and papers, and so on, did not oust equity of its original jurisdiction to direct discovery proper or in anywise abridge this auxiliary jurisdiction.Miller v. U.S. Casualty Co., 61 N.J. Eq. 110; Howell v.Ashmore, 9 N.J. Eq. 82; Shotwell's Admr'x v. Smith, 20 N.J. Eq. 79;Hohmann v. Corkran, 100 N.J. Eq. 234; affirmed,102 N.J. Eq. 333. The remedy at law is cumulative merely. The statutory extension to courts of law of a right to administer relief previously administered only by courts of equity does not serve to curtail the jurisdiction of the courts of equity unless (so it was said) prohibitive or restrictive words are used in the statute; thenceforth the jurisdictions are concurrent. Sweeny v. Williams, 36 N.J. *Page 272 Eq. 627. But that case has reference to the grant of substantive reliefs in equity and not to the exercise of the auxiliary jurisdiction for a discovery proper. The view that statutory provisions for discovery at law do not abolish or modify equity's auxiliary jurisdiction to give a pure discovery has had general acceptance. 27 C.J.S. 14; 17 Am. Jur. 6.
In England, like statutes adopted in the reign of Queen Victoria were declared to be permissive and not an interference with the equity jurisdiction for discovery in aid of a cause of action or defense at law. British Empire Shipping Co. v.Somes, 3 Kay J. 433. In that case Vice-Chancellor Wood declared: "But, in reference to this argument, it should be observed that the common law courts have now the power in all cases, and not merely in cases of arbitration, of calling for the production of books and papers. And yet this court has held that such power does not prevent a court of equity from ordering such production, either because courts of equity have concurrent jurisdiction with the common law courts, or because the relief granted in this respect by the common law courts is not commensurate with that which this court would extend." VideLovell v. Galloway, 17 Beav. 1. There was no abridgement in England of this auxiliary jurisdiction of equity until the adoption of the Judicature Act of 1873 (36 37 Vict., c. 66), which consolidated all the superior courts into one tribunal having an all-embracive jurisdiction, save those purely ecclesiastical, and abolished the distinction between legal and equitable actions and permitted the uniting of both causes of action in one proceeding, and provided for interrogatories and inspection of documents. Vide Attorney-General v. Gaskill,L.R. 20 Ch. Div. 519. And the question now raised will become moot when the judicial provisions of our own recently adopted Constitution of 1947 and the activating statutes and rules become effective. It was in part to obviate such administrative problems arising from duality of jurisdiction that the merger of the law and equity functions was so long advocated and finally effectuated in the Constitution of 1947. But the case at hand is governed by the Constitution of 1844, as amended, and we are in duty bound to enforce it as it is written. *Page 273
The holding of the majority constitutes in essence an abolition of this auxiliary jurisdiction to give discovery after the commencement of the action at law, for the rationale of the decision is that since the statutes providing for a disclosure of evidence by interrogatories, inspection of documents, and so on, renders resort to equity unnecessary, equity's jurisdiction is no longer exercisable once the law action begins. There is no right to interpose a bill in equity for discovery proper unless an action at law pends or is imminent. State v. ElizabethtownWater Co., 83 N.J. Eq. 216; Pom. Eq. Jur. (5th ed.) 197b. The view thus taken I regard as judicial invasion of the legislative domain, assuming the legislature itself may abolish this inherent ancient function of equity. But is it not embedded in the Constitution of 1844 and our interpretive decisional law that the pre-existing inherent equitable jurisdiction is immune to legislative abolition or modification? Under that constitution, New Jersey retained the ancient common-law and equitable jurisdictions. Article VI, section I, paragraph 1. Article X, paragraph 1, provides: "The several courts of law and equity, except as herein otherwise provided, shall continue with the like powers and jurisdiction as if this constitution had not been adopted." Vide Harris v. Vanderveer's Executor, 21 N.J. Eq. 424; State, Dufford, Pros., v. Decue, 31 N.J. Law 302;Traphagen v. Township of West Hoboken, 39 N.J. Law 232; JerseyCity v. Lembeck, 31 N.J. Eq. 255; In re Thompson, 85 N.J. Eq. 221; Hedden v. Hand, 90 N.J. Eq. 583. Only recently the principle was reiterated and applied by this court in the CarubaCase, 139 N.J. Eq. 404; affirmed, 140 N.J. Eq. 563, although there was a difference of opinion as to whether the statute there under review has reference to an inherent power of equity in contempt. Cases elsewhere are not a certain guide, for in this State the jurisdiction of Chancery has a constitutional basis which renders it immune to legislative attack; and yet, as we have seen, the prevailing rule elsewhere is that such statutory discovery does not annul or modify the inherent discovery jurisdiction of equity unless there is specific statutory provision to that effect.
The case of Hannon v. Maxwell, 31 N.J. Eq. 318, bears *Page 274 no analogy. Bills for a new trial for fraud, mistake, accident, or wrongful acts or omissions in the trial at law itself, without any special equitable element or feature, was a jurisdiction rarely exercised, even in early times, and became a part of the obsolete jurisdiction of the English Chancery upon the introduction of the practice of granting new trials in the law courts some three hundred years ago; and thus it was not comprehended in the pre-existing equitable jurisdiction saved by the cited provisions of our Constitution of 1844. Larabrie v.Brown, 1 DeG. J. 204; Bateman v. Willoe, 1 Schoales L. (Ir.) 201, 204, 206; Pom. Eq. Jur. (5th ed.), §§1360-1365. Mr. Justice Reed in Hannon v. Maxwell, supra, said that the rule "which restricts the interference of courts of equity with verdicts or judgments, in courts of law, has ever been one of great strictness," and that even before the common-law courts assumed the power of granting new trials, Chancery "interfered with reluctance," and suits of this character in the English equity courts were few. The disuse of this jurisdiction is included by Mr. Spence in the exceptions to the general rule that governed the English Chancery of retaining its original jurisdiction, though the courts of law had assumed or obtained an equitable jurisdiction. But the auxiliary jurisdiction to give a pure discovery is not included among those branches of equity jurisdiction which had become obsolete because cognizable by the courts of law; quite the contrary. Spence'sEquitable Jurisdiction 684-704; 3 Blackstone's Com. 52. Indeed, the present discovery at law was not in existence when the Constitution of 1844 was adopted.
There can be no doubt, I submit, as to the existence of the equitable jurisdiction invoked here. Resort to it may be quite infrequent, but it nevertheless subsists. Vide section 194 of Pomeroy's work cited supra. The fact that litigants are usually satisfied with the discovery afforded by statute in the law courts does not argue against the reality of the power or offer a reason for its nullification. That is not the the judicial province.
Can it reasonably be said that Chancery has erred in exercising an inherent function which indubitably exists, one that *Page 275 is beyond extinction even by the legislature? I think not. The opinion of the majority denies the jurisdiction. It seems to deny that equitable relief rests in discretion in any circumstances. While I do not entertain the view, it declares that due process and the equal protection of the law render equitable relief a matter of right and not of grace in all circumstances; and this is of necessity a complete negation of equitable jurisdiction in the case before us.
I would affirm the order under review.
Mr. Justice Bodine, Mr. Justice Wachenfeld and Judge Dill join in this opinion.
For affirmance — BODINE, HEHER, WACHENFELD, DILL, JJ. 4.
For reversal — THE CHIEF-JUSTICE, DONGES, COLIE, EASTWOOD, BURLING, WELLS, FREUND, McLEAN, SCHETTINO, JJ. 9. *Page 276