Elmore v. Hyde. States Life Ins. Co., 1 Abb. N. C. 348, affirmed at general term, January, 1877); and if incautiously granted it ought on application to be vacated. It is certainly within the discretion of the judge to grant or deny the application, and also on the examination to limit it to such subjects of examination as were properly presented in the original application. Outside of the examination of an adverse party as allowed by section 391 of the Code, all essential rights of parties after issue joined may be obtained by calling such adverse party as a witness on the trial; and the only legitimate end to be gained by such examination after issue joined and before trial, is to relieve the party from the trouble and expense of calling other witnesses to establish his case. This evidently is not one of substantial right, affecting the merits of the controversy, as was possibly the case in Glenny v. Stedwell, 64 N. Y.; 1 Abb. N. C. 327. But after issue joined it is matter of incidental consideration, and its allowance rests in the judicial discretion of the judge to whom the application is made upon consideration of the facts and circumstances stated in the affidavit presented him thereon, showing its necessity in order to attain justice between the parties" (Gelston v. Hoyt, 1 Johns. Ch. 543). Under the former practice for purposes of discovery it was essential that the bill should contain precise statements of the facts sought to be discovered from the defendant, and disclose their materiality to the complainant's case and to the establishment of a judgment thereon as against the adverse claim of the defendants in the action. It could not be maintained as to any of the defendants against whom no judgment could be rendered on the case presented, or who could be called as a witness on the trial of the action at law, nor could the answer of any such a defendant be read against his co-defendants (Hughes Eq. Draft, 374, and notes). Elmore . Hyde. The jurisdiction of the court of equity was carefully guarded so as to elicit the truth without wrong to the party from whom the discovery was sought. His examination was not to be made suddenly or without time for deliberate answer. He was informed by the bill as to the objects aimed at, and had the plaintiff's statements and the whole of the interrogatories to which he was to respond before him, so that he might give either direct or modified answers or explanatory statements. It is in this view of the proper purposes of a bill of discovery for which the provisions of the Code are a substitute that I am of the opinion that this proceeding is not permissible for the purposes of a general and indiscriminate examination or inquiry of an adverse party as to what matters he may possibly know, or to which he may be able to testify without previous specific charge by affidavit of his knowledge of specific facts and circumstances, and that he can testify thereto. Without such evidence furnished the judge and a precise assertion by affidavit, of the knowledge possessed by the adverse party, of the particular matters in respect to which the examination is sought and which shall be shown material to the case of the applicant, an allowance of his examination before trial may well be characterized as a mere fishing examination, which should neither be allowed nor favored, and far less should the power be exercised for inequitable purposes, or to create or promote litigation (2 Johns. Ch. 150; 3 Id. 467; 4 Paige, 639; 6 Barb. 297). Without further consideration of the merits of the case presented by the complaint as to whether the plaintiffs show any title to sue, or whether, or on further application, supplying the defects before indicated, any such application, considering the peculiar character of the case, should be granted before trial, the present one should be denied with $10 costs. Mason v. Libbey. MASON v. LIBBEY. N. Y. Supreme Court, First Department; Special COMPELLING AFFIDAVIT FOR THE PURPOSE OF MOTION.-EXAMINA- A physician who has once made an affidavit to facts derived in a professional capacity, for use against his patient, may be compelled at the instance of the patient to make an affidavit upon the same subject.* The insanity of a party is ground for refusing to order examination before trial.t Emma J. Mason brought this action against Lydia C. Libbey, to reach certain real property which she claimed as cestui que trust. * For the statute, see 2 R. S. 406, § 73; Code of Pro. of 1877, § 834. The following are the rules of professional privilege as defined by the new Code of Civil Procedure, above cited: "§ 833. A clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body, to which he belongs. "§ 834. A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity. "§ 835. An attorney or counsellor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment. "§ 836. The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient, or the client." + See 1 Abb. New Cas. 339, 340, note. Mason v. Libbey. The complaint alleged that the defendant was formerly the wife of one Heath, and the plaintiff was the issue of their marriage; that said Heath conveyed his property to the defendant with the understanding that it should be held by her for the common use and benefit of the family,-the husband, the defendant and the plaintiff; and claimed that defendant, after the husband's death, held the property in trust partly for the use of the plaintiff. The complaint further alleged that the defendant became insane in 1859, and partially recovered in 1863; and that said Heath, her husband, in his life time, allowed her to control the property, because of his fear that opposition on his part might cause a return of the grievous malady with which she had been afflicted, and from which she had only partially recovered. I. March, 1877. Motion to punish for contempt in refusal to make affidavit. The husband of the plaintiff made an affidavit for purposes of a motion made by the plaintiff in the Second Department (reported in 1 Abb. N. C. 354). Defendant's counsel, desiring to make use of the same affidavit to resist a motion now made by plaintiff to compel the examination of the defendant before trial, found that it was not on file, and that the plaintiff's attorneys had no copy. Defendant's attorney prepared an affidavit for plaintiff to sign and verify, stating the substance as he claimed of such previous affidavit, and to the following effect that the plaintiff was a practising physician, the husband of plaintiff, that on the previous motion the affidavit alleged to have been made by him and now lost was used, and after argument handed to the judge of the court with other papers; that it was prepared in the interest of plaintiff, and in opposition to Mason v. Libbey. the defendant's motion to set aside plaintiff's proceedings; that such affidavit among other things set forth that deponent was a physician, and as such for some time past had made insanity and diseases of the mind a specialty; that he had been so related to defendant, and had been so much in her presence or society as to enable him to judge of her mental condition; and that he had thus satisfied himself that she had been and still was of unsound mind. On applying to Dr. Mason to verify such affidavit on behalf of defendant, he refused to do so. Defendant, then, on affidavits to the loss of the paper, and to information from plaintiff's attorneys that the original affidavit referred to had been actually used on the motion, or handed to the court with the other papers, and that Dr. Mason refused on application to verify the proposed new affidavit, or to read it or hear it read, or to take it and refer it to his counsel, applied to the court and obtained an order appointing a referee to take the deposition of said Mason, and requiring him to appear before the referee for that purpose at such time as might be indicated by a subpœna to be duly served under the hand of the referee. The proposed witness appeared before the referee, and stated that many of the allegations of the proposed affidavit which he was asked to verify were false; and also that the facts he was asked to disclose in said affidavit were facts which he obtained from defendant as his patient, and which were necessary for him to obtain in order to treat her as his patient, and these facts witness refused to disclose unless so ordered by the court. He also submitted an affidavit which he was ready to swear to. The referee ruled that the witness must be sworn, and submit to examination on the points as to which his proposed affidavit was not satisfactory to the defendant's counsel. The witness refused to be examined; he submitted his proposed affidavit, but declined to be |