Pratt, J.
If the plaintiff has made a case by his bill which would have entitled him to a discovery of the usury, by the de[300]*300fendant, previous to the passage of the act allowing a party in a suit to call his antagonist as a witness, he is not, by force of that law, deprived of the right to such discovery. The party called as a witness under that act has the same privileges as any other suitor; and therefore would not be compelled to disclose any fact which would tend to criminate him, or subject him to an indictment. The defendant in this case, if called as a witness in the suit at law, would not be bound to disclose the fact that he had taken usury. Upon this bill of discovery, however, he is compelled by the statute of 1837 to make such disclosure, .if the fact exists.
But I think this bill cannot be sustained upon the merits. A bill of discovery in aid of an action at law must disclose a case which would entitle the plaintiff to recover in such action. And the plaintiff must state and set out so much of the pleadings as will enable this court to see that the facts alleged in the bill, and of which he claims a discovery, are material. (Story’s Eq. Pl. 319, 324, 558, 559. Mitf. Pl. 187. Hare on Disc. 43. 3 John. Ch. 47. 9 Paige, 622.)
This bill entirely fails in that respect. 1st. It does not show with sufficient clearness the nature of the action. The declaration in the suit at law is not attached to the bill, and forms no part of it; and for the purposes of the decision of the case on the demurrer it cannot be taken into consideration. The bill itself merely mentions the fact of a suit for certain libels, slander, malicious prosecution, and wrongs having been brought, but it does not specify the particular wrongs for which it is brought. It is altogether too uncertain. (Story’s Eq. §§ 317, 318.) 2dly. It does not set forth a sufficient cause of action, were there no objection to the form. The only act set forth in the bill which might tend to lay the foundation of an action for slander of title or malicious prosecution against the defendant, was the issuing of the distress warrant on the 18th of July, 1844. _ To support an action for slander of title special damages must be alleged, and that too circumstantially. (Starkie on Slander, 158, 159, 323.) This bill discloses no treaty for the sale of the premises, broken off by means of the slander, nor any circum[301]*301stances from which this court may infer a loss; but it merely alleges a loss in general terms, which is not sufficient. (Id. ib.) Again; to sustain an action for slander of title, or for malicious prosecution, there must be a want of probable cause. In that respect I think they should be put very nearly upon the same ground. If what the defendant says or does is in pursuance ' of a claim of title, he is not responsible. It would be a monstrous doctrine to assert that the party who brings his action of ejectment claiming title to the land may be sued in an action of slander if it should turn out that he was mistaken. In such cases malice, which is the gist of the action, is conclusively disproved. Hence it was anciently held that an action would not lie against a person for claiming title in himself although he knew the claim was false. (Starkie, 202. 4 Coke, 18.) But the later cases have somewhat modified that doctrine.
But if there be some ground for the claim, the cases all agree that the action cannot be sustained provided the assertion is in pursuance of such claim. (Starkie on Slander, 202, 203, 4, 5, 46. Smith v. Spooner. 3 Taunt. 248. 2 Greenl. Ev. § 428. 4 Burr. 2422. 4 Co. 18.) In this case the bill shows that the defendant held an absolute deed of the premises; that the plaintiff occupied the premises by virtue of a lease from the defendant to Charles Bailey, reserving rent, and stipulating for enforcing the payment thereof by distress. It also alleges that by virtue of said deed and lease the defendant claimed title and a right to distrain; that under such circumstances the defendant issued a distress warrant; and for that the action of slander of title and malicious prosecution is brought against him. To sustain this action the defendant is required to discover his dealings with the plaintiff for a period a little less than twenty years, in order, if possible, to overthrow the apparent title. The bare statement of the case would be sufficient. The plaintifij upon the trial, if he stated no more than is stated in this bill, would be nonsuited, upon his opening. But there is another view of this case which is decisive of it, so far as the action at law is based upon the idea of slander of title. The only allegation in regard to that matter set forth in the bill is the distress warrant. It [302]*302is well settled that no proceeding according to the regular course of justice will make a complaint or other proceeding amount to a libel, for which an action can be maintained. (Starkie, 186. 1 Saund. 131.) A distress warrant, although not issued for the purpose of instituting a suit, is a proceeding given to the party by law, for the purpose of enforcing a legal right, and comes directly within the reason of the rule. It is now regulated by statute, and can only be served by a public officer. In such cases, if it issued without right, the law gives ample redress without subjecting a party to the pains and penalties of an action of slander. 3dly. The evidence, when obtained, would be inadmissible upon the trial of the action at law; and for that reason the demurrer should be allowed. (Story's Eq. Pl. 558, 9, 565, 319. Mitf. 187. Hare on Disc. 43. 1 Bligh’s Rep. N. S. 96, 120. 9 Paige, 622, 580.)
The bill shows that the defendant, as long ago as 1836, received from the plaintiff an absolute conveyance of the premises, and at the same time executed a lease in perpetuity to Charles Bailey, reserving to himself the yearly rent of $75,60, with the privilege, in default of payment, of distraining for the same. Thus stands the paper title, except that this lease has been assigned, by consent of the defendant, to the plaintiff.
It is well settled that usury in the consideration does not invalidate an absolute deed or conveyance of land. (2 Hill, 524. 1 John. Cas. 158. 7 Paige, 615.) This seemed to be conceded by the plaintiff’s counsel; and hence, in the bill, he insists that there was, at the time of the execution of the deed and lease, some parol agreement or understanding by which the deed and lease were given merely as a mortgage for securing the payment of some $1080. He insists that by proving a parol defeasance he can change the deed into a mortgage, and then attack and demolish it for the usury which it contains, and thus leave the plaintiff with a title so clear that the man holding the deed which he terms a mortgage may be mulcted in damages in an action for slander for disputing it. However the rule may be in equity (and it seems to be a mooted question there) it has been settled since the case of Webb v. Rice, (6 Hill, [303]*303219,) that in an action at law a parol defeasance cannot be shown for the purpose of turning a conveyance of land absolute upon its face into a mortgage. '
It was insisted upon the argument, that this case being in a court of equity, the rule would not apply. But the plaintiff requires the discovery, not to be used in a court of equity, but in a court of law.
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Pratt, J.
If the plaintiff has made a case by his bill which would have entitled him to a discovery of the usury, by the de[300]*300fendant, previous to the passage of the act allowing a party in a suit to call his antagonist as a witness, he is not, by force of that law, deprived of the right to such discovery. The party called as a witness under that act has the same privileges as any other suitor; and therefore would not be compelled to disclose any fact which would tend to criminate him, or subject him to an indictment. The defendant in this case, if called as a witness in the suit at law, would not be bound to disclose the fact that he had taken usury. Upon this bill of discovery, however, he is compelled by the statute of 1837 to make such disclosure, .if the fact exists.
But I think this bill cannot be sustained upon the merits. A bill of discovery in aid of an action at law must disclose a case which would entitle the plaintiff to recover in such action. And the plaintiff must state and set out so much of the pleadings as will enable this court to see that the facts alleged in the bill, and of which he claims a discovery, are material. (Story’s Eq. Pl. 319, 324, 558, 559. Mitf. Pl. 187. Hare on Disc. 43. 3 John. Ch. 47. 9 Paige, 622.)
This bill entirely fails in that respect. 1st. It does not show with sufficient clearness the nature of the action. The declaration in the suit at law is not attached to the bill, and forms no part of it; and for the purposes of the decision of the case on the demurrer it cannot be taken into consideration. The bill itself merely mentions the fact of a suit for certain libels, slander, malicious prosecution, and wrongs having been brought, but it does not specify the particular wrongs for which it is brought. It is altogether too uncertain. (Story’s Eq. §§ 317, 318.) 2dly. It does not set forth a sufficient cause of action, were there no objection to the form. The only act set forth in the bill which might tend to lay the foundation of an action for slander of title or malicious prosecution against the defendant, was the issuing of the distress warrant on the 18th of July, 1844. _ To support an action for slander of title special damages must be alleged, and that too circumstantially. (Starkie on Slander, 158, 159, 323.) This bill discloses no treaty for the sale of the premises, broken off by means of the slander, nor any circum[301]*301stances from which this court may infer a loss; but it merely alleges a loss in general terms, which is not sufficient. (Id. ib.) Again; to sustain an action for slander of title, or for malicious prosecution, there must be a want of probable cause. In that respect I think they should be put very nearly upon the same ground. If what the defendant says or does is in pursuance ' of a claim of title, he is not responsible. It would be a monstrous doctrine to assert that the party who brings his action of ejectment claiming title to the land may be sued in an action of slander if it should turn out that he was mistaken. In such cases malice, which is the gist of the action, is conclusively disproved. Hence it was anciently held that an action would not lie against a person for claiming title in himself although he knew the claim was false. (Starkie, 202. 4 Coke, 18.) But the later cases have somewhat modified that doctrine.
But if there be some ground for the claim, the cases all agree that the action cannot be sustained provided the assertion is in pursuance of such claim. (Starkie on Slander, 202, 203, 4, 5, 46. Smith v. Spooner. 3 Taunt. 248. 2 Greenl. Ev. § 428. 4 Burr. 2422. 4 Co. 18.) In this case the bill shows that the defendant held an absolute deed of the premises; that the plaintiff occupied the premises by virtue of a lease from the defendant to Charles Bailey, reserving rent, and stipulating for enforcing the payment thereof by distress. It also alleges that by virtue of said deed and lease the defendant claimed title and a right to distrain; that under such circumstances the defendant issued a distress warrant; and for that the action of slander of title and malicious prosecution is brought against him. To sustain this action the defendant is required to discover his dealings with the plaintiff for a period a little less than twenty years, in order, if possible, to overthrow the apparent title. The bare statement of the case would be sufficient. The plaintifij upon the trial, if he stated no more than is stated in this bill, would be nonsuited, upon his opening. But there is another view of this case which is decisive of it, so far as the action at law is based upon the idea of slander of title. The only allegation in regard to that matter set forth in the bill is the distress warrant. It [302]*302is well settled that no proceeding according to the regular course of justice will make a complaint or other proceeding amount to a libel, for which an action can be maintained. (Starkie, 186. 1 Saund. 131.) A distress warrant, although not issued for the purpose of instituting a suit, is a proceeding given to the party by law, for the purpose of enforcing a legal right, and comes directly within the reason of the rule. It is now regulated by statute, and can only be served by a public officer. In such cases, if it issued without right, the law gives ample redress without subjecting a party to the pains and penalties of an action of slander. 3dly. The evidence, when obtained, would be inadmissible upon the trial of the action at law; and for that reason the demurrer should be allowed. (Story's Eq. Pl. 558, 9, 565, 319. Mitf. 187. Hare on Disc. 43. 1 Bligh’s Rep. N. S. 96, 120. 9 Paige, 622, 580.)
The bill shows that the defendant, as long ago as 1836, received from the plaintiff an absolute conveyance of the premises, and at the same time executed a lease in perpetuity to Charles Bailey, reserving to himself the yearly rent of $75,60, with the privilege, in default of payment, of distraining for the same. Thus stands the paper title, except that this lease has been assigned, by consent of the defendant, to the plaintiff.
It is well settled that usury in the consideration does not invalidate an absolute deed or conveyance of land. (2 Hill, 524. 1 John. Cas. 158. 7 Paige, 615.) This seemed to be conceded by the plaintiff’s counsel; and hence, in the bill, he insists that there was, at the time of the execution of the deed and lease, some parol agreement or understanding by which the deed and lease were given merely as a mortgage for securing the payment of some $1080. He insists that by proving a parol defeasance he can change the deed into a mortgage, and then attack and demolish it for the usury which it contains, and thus leave the plaintiff with a title so clear that the man holding the deed which he terms a mortgage may be mulcted in damages in an action for slander for disputing it. However the rule may be in equity (and it seems to be a mooted question there) it has been settled since the case of Webb v. Rice, (6 Hill, [303]*303219,) that in an action at law a parol defeasance cannot be shown for the purpose of turning a conveyance of land absolute upon its face into a mortgage. '
It was insisted upon the argument, that this case being in a court of equity, the rule would not apply. But the plaintiff requires the discovery, not to be used in a court of equity, but in a court of law. Upon the trial of the action at law the evidence will not have any more efficacy from the fact that it has been fished up through the aid and assistance of the equitable powers of the court, than if the proof was offered by a witness upon the stand. We cannot but see that if all the facts stated in the bill were admitted as true they would not avail the plaintiff in the trial of his action, or enable him to avoid the justification which the defendant has spread upon the record. Upon these points a court of equity has a right to pass judgment where a discovery is sought. (Story’s Eq. Pl. § 558.) It was claimed that the contract executed some years subsequent to the deed should operate as a defeasance. But that is a simple contract for the sale of the defendant’s interest, and does not purport to relate back to, or affect, the execution of the deed.
There are other minor objections to this bill which it is not necessary to notice. Those above stated are sufficient.
I do no.t believe, notwithstanding what was said by the chancellor in March v. Davis, (9 Paige, 580,) that a party should be compelled to disclose facts to enable a plaintiff to sustain an action of slander. The general rule is that a defendant is not bound to discover any thing which might render him liable to a penalty or forfeiture, or any thing in the nature of a penalty or forfeiture. It has often been held that actions of slander were of the nature of penal actions. Hence, on motions for new trials the same rules have been held to be applicable to both. (3 John. 180. 9 Id. 36. 2 Burr. 66. 4 Cow. 37. Salk. 644.) The jury, in giving their verdict, are not confined to the actual damage sustained, but may take into consideration the motives of the defendant, and the degree of malice with which he was actuated, and regulate their verdict with a view to its effect upon the community and as a punish[304]*304ment of the defendant. So far as these considerations affect the verdict, it loses its compensatory character and becomes strictly penal. (3 John. 56. 3 Wils. 18. 2 Id. 206,) And when the defendant may be indicted for the same offence, the fact that he has been indicted and has satisfied the penalty of the law cannot be shown for the purpose of avoiding or mitigating the penal character of the verdict in the civil suit; although the criminal court may stay judgment, or regulate the penalty to be imposed, by considerations growing out of the civil suit. (6 Hill, 468.) The action, therefore, is in the nature of a penal action, and comes within the general rule.
Nor does it seem necessary that a discovery for the purpose of procuring evidence to sustain an action of slander should be allowed. From the nature of the case the right to. a discovery could not be mutual. If the slander consists in accusing a person of crime, the plaintiff, if called upon to make discovery of the truth of the charge, to enable the opposite party to defend the suit, would be allowed to decline answering, on the ground that it would criminate himself.
Again ; the very principle on which the suit is based precludes the idea of any necessity for a discovery. It is founded on the idea of publication—of having spread abroad the slanderous" charge. If the defendant has not spread abroad the report so that there is sufficient evidence of the publication without calling upon the defendant himself, the plaintiff’s character, as a general rule, will not suffer materially. But this point it is not necessary to decide. The demurrer must be allowed.