discovery

Discovery' in § 456 means only the discovery of mineral resources.

In a general sense, the ascertainment of that which was previously unknown; the disclosure or coming to light of what was previously hidden; the acquisi-tion of notice or knowledge of given acts or facts; as, in regard to the "discovery" of fraud affecting the running of the statute of limitations or the granting of a new trial for newly "discovered" evidence, Francis v. Wallace, 77 Iowa, 373, 42 N. W. 323; Parker v, Kuhn, 21 Neb. 413, 32 N. W. 74, 59 Am. Rep. 852; Laird v. Kil bourne, 7O Iowa, 83, 30 N. W. 9; Howton v. Roberts, 49 S. W. 340, 20 Ky. Law Rep. 1331; Marbourg v. McCormick, 23 Kan. 43.

In international law. As the foundation for a claim of national ownership or sovereignty, discovery is the finding of a country, continent, or island previously unknown, or previously known only to its uncivilized inhabitants. Martin v. Waddell, 16 Pet 409, 10 In Ed. 907.

In patent law. The finding out seme substance, mechanical device, improvement, or application, not previously , known. In re Kemper, 14 Fed. Cas. 287; Dunbar v. Meyers, 94 U. S. 197, 24 L. Ed. 34. Discovery, as used in the patent laws, depends upon invention. Every invention may, in a certain sense, embrace more or less or discovery, for it must always include something that is new; but it by no means follows that every discovery is an invention. Morton v. Infirmary, 5 Blatchf. 121, Fed. Cas. No. 9,865.

In practice. The disclosure by the defendant of facts, titles, documents, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause or action pending or to be brought in another court, or as evidence of 'his rights or title in such proceeding. Tucker v. U. S., 151 U. S. 164, 14 Sup. Ct. 299, 38 L. Ed. 112; Kelley v. Boettcher, 85 Fed. 55, 29 C. C. A. 14. Also used of the disclosure by a bankrupt of his property for the benefit of creditors.

In mining law. As the basis of the right to locate a mining claim upon the publlc domain, discovery means the finding of mineralised rock in place. Migeon v. Railroad Co., 77 Fed. 249, 23 C. C. A. 156; Book v. Mining Co. (C. Ct) 58 Fed. 106; Muldrick v. Brown, 37 On. 185, 61 Pan. 428; Mining Co., v. Rutter, 87 Fed. 806, 31 C. a A. 223.

— Discovery, bill of. In equity pleading. 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; but seeking no relief in consequence of the discovery, though it may pray for a stay of proceedings at law till the discovery is made. Story, Eq. PL §§ 311, 312, and notes; Mitf. Eq. PI. 53.

The disclosing of a matter by a defendant, in answer to a bill in equity filed for that purpose.

Inyention; finding out. The finding of an island or country not previously known to geographers.

In patent law. The finding out some substance, mechanical device, improvement, or application, not previously known. Discovery, a5 used in the patent laws, depends upon invention. Hvery invention may,in a cer it by no means follows that every discovery is an Invention. 5 Blatchf. 121. Also used of the disclosure by a bankrupt of his property for the benefit of creditors.

In practice. The disclosure by the defendani of facts, titles, doguments, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause or action pending or to be brought in another court, or as evidence of his rights or title in such proceeding.

2 A bringing to light; making known for the first time; disclosure; also, that which is found out, revealed, disclosed. 1. Finding a previously unknown country or land. Spoken of as the " right of discovery " or of " original discovery." The English possessions in America were not claimed by right of conquest, but by right of discovery. According to the principles of international law, as then understood, the Indian tribes were regarded as the temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nations by which any portiqn of the coimtry was first discovered.' The Europeans respected the right of the natives as occupants, but asserted the ultimate dominion to be in themselves; and exercised, as a consequence, a power to grant the soil while it was yet in the possession of the natives.* See Occupancy. 3. In the law of patent rights, refers to something that had existed unknown, until brought to light and utilized. The Congress shall have power to secure for limited times to inventors tne exclusive right to their discoveries.* This does not apply to the discovery of a fundamental truth or abstract principle, in which no one can have an exclusive right; nor to a power of nature, in which the invention is in the application to >.. useful object. The discovery must be reduced to practice,— be embodied in some practical method for rendering it useful." In its naked, ordinary sense, a discovery is not patentable. A discovery of a new principle, force, or ' Nat. Bank of Gloversville v. Johnson, 104 U. S. 276- 78 (1881). Matthews, J. See also 14 Ala. 667; 13 Conn. 259; 20 Kan. 450; 42 Md. 592; 48 Mo. 191; 7 N. Y. 343; 18 Barb. 462; 13 Bankr. Reg. 268. 2 F. decouvrir, to uncover. » Martin v. Waddell, 10 Pet. 409 (1842), Taney, C. J. « Johnson v. Mcintosh, 8 Wheat. 572 (1823), Marshall, C. J.; ButtE V. Northern Pacific R. Co., 119 U. S. 67 (1886); 3 Kent, 379. 6 [Constitution, Art. I, sec. 8, cl. 8. 1 Wall. 570 (1663); Le Roy v. Tatlaw, operating, or which can be made to operate, on matter, will not entitle the discoverer to a patent. He controls his discovery through thp means by which he has brought it into practical action, or their equiva- Tent. It is then an " invention," although it embraces a discovery. JEvery invention may, in a certain sense, embrace more or less of discovery, for it must always include something that is new; but it by no means follows that every discovery is an invention.^ See further Invention; Patent, 2; Principle, 2; Pbooess, 3; Seouke, 1; Telephone. 3. In the law regulating the /granting of new trials and rehearings, refers to evidence brought to light or obtainable after trial or hearing, and which, could it have been presented upon that occasion, would likely have changed the result. Whence "after-discovered " and " newly-discovered " evidence. The unconsidered evidence must be such as reasonable diligence, on the part of the party aslzing for the rehearing, could not have secured at the former trial; it must be material to its object,. not merely eumulative, corroborative, or collateral; and be such as ought to produce important results on its merits. ^ ■See Audita Querela; Review, 2, Bill of. 4. In the law of limitation of actions, refers to information had of the fact that a mistake was made or fraud perpetrated. In cases of fraud and mistalie a court of equity does not allow the statute of limitations to run until the discovery thereof. This rule has been incorporated into the statute law of many of the States.' See further Fraud; Limitation, 3; Mistake; Rescission. 5. In the law of bankruptcy, refers to the •disclosure made, or tO be made, by the debtor of the nature, kind, amount, situs, etc., of his assets.* See Bankkdptcy. ' 6. In equity practice, the disclosure by the defendant of matters important to enable the plaintiff to maintain his rights. Procured by a

— Bill of discovery. Every bill in equity may be deemed such, since it seeks a disclosure from the defendant, on oath, of the truth of the circumstances constituting the plaintiff's case as propounded in his bill. But that which is emphatically called a bill of discovery is a bill which asks no relief but ' Morton v New York Eye Infirmary, 5 Bratoh. 121 (1862), Shipman, J. = Dower v. Church, 21 W. Ta. 57 (1882); Codman v. Vermont, &c. R. do., 17 Blatch. 3 (1879); Whalen v. Mayor o£ New Torlj, 17 F. E. 72 (1882). 3 West Portland Homestead Association v. Lownsdale, 17 F. E. 207, 205 (1883); Fritschler v. Koehler, 83 Ky. 82 (1885); Parlser v. Kuhn, Neb., March, 1887, cases: simply the discovery of facts resting in the ' knowledge of the defendant, or the discovery of deeds, writings, or other things in his possession or power, in order to maintain a right or title of the party asking it in some suit or proceeding in another court. ' Not entertainable: where the subject is not.oognizable in any court; where the court cannot, in this manner, aid the other court; where the plaintiff is under disability, or has no title to the character in which he sues; where the value in suit is trivial; where the plaintiff has no interest in the subject-matter or no title to the discovery required, or where an action will not lie; where some other person than the plaintiff has a right to call for the discovery; where the policy of the law exempts the defendant from discovery; where the defendant is not bound to discover his own title; where the discovery is not material to the suit; where the defendant is a mere witness; or where a discovery would criminate him.* At common law,.discovery could not be had before trial; hence the resort to chancery. At present it ia had, in effect, by bills of particulars, by attachments in execution, by affidavits of defense, by inspection of books and documents, by examination of one's adversary before trial, and by other means specially provided by statute. For want of the power of discovery at law, courts of equity acquired a concurrent jurisdiction with other courts in all matters of account.' See Creditor's Bill; Fishing, 2.

Evidence given by the defendant in equity under oath in answer to the plaintiff's bill. v. Bill, I. 4. Discretio est discernere per legem quid sit justum, /. Discretion is to determine what is just by the law.

Inequity. The revealing or disclosing of a matter by a defendant, in his answer to a bill filed for that purpose; the object of a species of bill in equity. See infra. Hare on Discovery,

practice, pleading, is the act of disclosing or revealing by a defendant, in his answer to a bill filed against him in a court of equity. Vide Bill of Discovery; 8 Vin. Ab. 537; 8 Com. Dig. 515. When applied to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298. The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion, to which human nature is liable. 1 Day's Cas. 80, n; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.