Spencer, Ch. J.
If this were a bill of discovery in the ordinary sense, I should entertain no doubt, but that the demurrer was well founded. It is a bill to discover whether Brown, who is alleged to be a material witness for the appellants, on the trial of a cause pending between these parties in the Supreme Court, has not been made a party colIusively, without having any interest in the subject matter of the suit, and for the purpose of depriving the appellants of the benefit of his testimony. In this view, it is a case of the first impression and novelty, and it must be examined and decided upon general principles, and analogies drawn from, adjudged cases.
As a general rule, a bill of discovery must state the matter in relation to which a discovery is sought, the interest of the party, with the right to require the discovery. The Court of Chancery acts ancillary to the courts of law, in compelling a discovery of facts to aid a party irTprosecuting or defending his rights. But it is a fundamental rule, that it will not compel a defendant to discover that, which, if he answers in the affirmative, will subject him to punishment, or r,ender him infamous, or expose him to a penalty. And if [598]*598the bill require him to answer to facts of this description, he may demur to it successfully.
Does the bill in this case sufficiently state the appellants’ case, the nature of the defence proposed to be aided by the discovery sought; and will the respondents be exposed to a criminal prosecution or penalty, if they answer the interrogations of the bill affirmatively; and is the discovery material ?
■ The bill states, that the appellants endorsed in blank, a promissory note drawn by Dome <$• Menzies, payable to the appellants, or their order, for 4,000 dollars; that the note was immediately delivered to Mancius, who became the endorsee, and sole proprietor thereof; that Brown, a clerk to Mancius, is, as the appellants are advised by counsel, an,d as they verily believe, an important and material witness for them on the trial of any suit brought on the said note, and that they have a good and substantial defence on the merits against the said note, as they are, also, advised by counsel, and believe; that the respondents, combining and confederating together how to injure the appellants, and how to depriye them of the testimony of Brown, and prevent the appellants from establishing their defence against the said note, have commenced a suit thereon in the Supreme Court, in the names of both the respondents as endorsees, which suit .is at issue ; charging, that the consideration, if any, for which the note was transferred by Dowe Sr Menzies, was paid to them solely by Mancius, and that Brown paid no part thereof, and had no interest therein, and that if Brown has now any interest in the note, it was after the commencement of this suit, or if before, it was colourable and in contemplation of a suit on the note ; and that Browris name was thus used in the said suit, to deprive the appellants of the benefit of his testimony. Of these facts, the bill seeks a discovery, by special interrogations.
To this bill, the respondents demurred, and the Chancellor held it to be well taken, on the ground, that the bill showed no right to the discovery; that the object and purpose of the discovery was not disclosed, that it might be useless or frivolous, and that it might enable the appellants to convict the respondents of a crime, or subject them to a forfeiture.
[599]*599Bills of discovery are for the purpose of gaining a knowledge of facts within the privity of the defendant, and the case must be so far disclosed as to enable the court of equity to see, and be satisfied, that the ends of justice require the interposition of its powers; and when the facts attempted to be elicited may be evidence in a court of law, it should be shown, by a statement of the case, that the facts interrogated to would be pertinent, and might be material, and hence, ordinarily, the case must be so far stated as to show the relevancy of the facts intended to be drawn forth.
In the present case, no facts are required to be answered to, which would be evidence in the trial at law; for admitting that Mancius alone paid the consideration for the transfer of the note, and that Brown had no kind of interest in it, this would not defeat the suit at law. It might still be prosecuted in their joint names, and Brown be merely a trustee in part for Mancius. For all the purposes of the discovery sought, the bill is full and ample: The appellants seek to have Brown as a witness for them at Ia\V., on the ground that he has been'wrongfully mac|e a party, without any interest in the suit, and to deprive them oLthe benefit of his testimony ; and in this view, as they ask for no facts to be used as evidence on the trial, it was, I apprehend, stating enough to allege generally, that they had a defence, of which the respondents sought to deprive them, by incapacitating their witness from testifying, by the contrivance of making him a formal party on the record.
The ordinary rules of the court cannot with propriety be applied to a case entirely aside of the common course of proceeding; and in a case of such novelty, the general principles on which discoveries will be granted, can only be regarded ; and those principles ought to be applied to a new case, in furtherance of justice; and it seems to me, that the general principle that a court of equity will aid a court of law in the compelling a discovery of facts material to the. defence of a party, applies with peculiar force to the present case; for we cannot but perceive, that unless Brown be so far disengaged from his present situation, as a party apparently interested in the suit at law, when it is alleged he has no interest m it, that gross injustice is practised, [600]*600without any other means of detecting or defeating it. In the case of the Bishop of London v, Fytche,( 1 Br. Ch. Rep. 96.) Lord Thurlow said, that case was the first instance of a demurrer for immateriality; and that if the demurrer was to a bill where the matter was obviously frivolous, the court might interfere; and that where a man comes for a discovery of evidence material to his defence, the other party shall not protect himself against the discovery, unless he can show himself liable to penalties. I cite this case, to show, that if the appellants have a right to know whether Brown has an interest in the note, that a court of equity will not undertake to say, that the object of the discovery may be immaterial or frivolous ; and also to show that a court of chancery will not refuse its aid upon the possibility that the discovery sought may render the party liable to penalties.
It was strongly insisted on the argument, that an answer by the respondents in the affirmative to the interrogations of the bill, would subject the respondents to punishments and penalties, for maintenance or a conspiracy. Maintenance is an officious intermeddling in a suit that in no way belongs to one, by assisting either party with money, or otherwise, to prosecute or defend it; or, strictly speaking, it is the assistance of another person in a law suit, without having any privity or concern in the subject. (Wickham v. Conkling, 8 Johns. Rep. 228.) There does exist a privity between Brown and Mancius, for we cannot intend that Brown’s
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Spencer, Ch. J.
If this were a bill of discovery in the ordinary sense, I should entertain no doubt, but that the demurrer was well founded. It is a bill to discover whether Brown, who is alleged to be a material witness for the appellants, on the trial of a cause pending between these parties in the Supreme Court, has not been made a party colIusively, without having any interest in the subject matter of the suit, and for the purpose of depriving the appellants of the benefit of his testimony. In this view, it is a case of the first impression and novelty, and it must be examined and decided upon general principles, and analogies drawn from, adjudged cases.
As a general rule, a bill of discovery must state the matter in relation to which a discovery is sought, the interest of the party, with the right to require the discovery. The Court of Chancery acts ancillary to the courts of law, in compelling a discovery of facts to aid a party irTprosecuting or defending his rights. But it is a fundamental rule, that it will not compel a defendant to discover that, which, if he answers in the affirmative, will subject him to punishment, or r,ender him infamous, or expose him to a penalty. And if [598]*598the bill require him to answer to facts of this description, he may demur to it successfully.
Does the bill in this case sufficiently state the appellants’ case, the nature of the defence proposed to be aided by the discovery sought; and will the respondents be exposed to a criminal prosecution or penalty, if they answer the interrogations of the bill affirmatively; and is the discovery material ?
■ The bill states, that the appellants endorsed in blank, a promissory note drawn by Dome <$• Menzies, payable to the appellants, or their order, for 4,000 dollars; that the note was immediately delivered to Mancius, who became the endorsee, and sole proprietor thereof; that Brown, a clerk to Mancius, is, as the appellants are advised by counsel, an,d as they verily believe, an important and material witness for them on the trial of any suit brought on the said note, and that they have a good and substantial defence on the merits against the said note, as they are, also, advised by counsel, and believe; that the respondents, combining and confederating together how to injure the appellants, and how to depriye them of the testimony of Brown, and prevent the appellants from establishing their defence against the said note, have commenced a suit thereon in the Supreme Court, in the names of both the respondents as endorsees, which suit .is at issue ; charging, that the consideration, if any, for which the note was transferred by Dowe Sr Menzies, was paid to them solely by Mancius, and that Brown paid no part thereof, and had no interest therein, and that if Brown has now any interest in the note, it was after the commencement of this suit, or if before, it was colourable and in contemplation of a suit on the note ; and that Browris name was thus used in the said suit, to deprive the appellants of the benefit of his testimony. Of these facts, the bill seeks a discovery, by special interrogations.
To this bill, the respondents demurred, and the Chancellor held it to be well taken, on the ground, that the bill showed no right to the discovery; that the object and purpose of the discovery was not disclosed, that it might be useless or frivolous, and that it might enable the appellants to convict the respondents of a crime, or subject them to a forfeiture.
[599]*599Bills of discovery are for the purpose of gaining a knowledge of facts within the privity of the defendant, and the case must be so far disclosed as to enable the court of equity to see, and be satisfied, that the ends of justice require the interposition of its powers; and when the facts attempted to be elicited may be evidence in a court of law, it should be shown, by a statement of the case, that the facts interrogated to would be pertinent, and might be material, and hence, ordinarily, the case must be so far stated as to show the relevancy of the facts intended to be drawn forth.
In the present case, no facts are required to be answered to, which would be evidence in the trial at law; for admitting that Mancius alone paid the consideration for the transfer of the note, and that Brown had no kind of interest in it, this would not defeat the suit at law. It might still be prosecuted in their joint names, and Brown be merely a trustee in part for Mancius. For all the purposes of the discovery sought, the bill is full and ample: The appellants seek to have Brown as a witness for them at Ia\V., on the ground that he has been'wrongfully mac|e a party, without any interest in the suit, and to deprive them oLthe benefit of his testimony ; and in this view, as they ask for no facts to be used as evidence on the trial, it was, I apprehend, stating enough to allege generally, that they had a defence, of which the respondents sought to deprive them, by incapacitating their witness from testifying, by the contrivance of making him a formal party on the record.
The ordinary rules of the court cannot with propriety be applied to a case entirely aside of the common course of proceeding; and in a case of such novelty, the general principles on which discoveries will be granted, can only be regarded ; and those principles ought to be applied to a new case, in furtherance of justice; and it seems to me, that the general principle that a court of equity will aid a court of law in the compelling a discovery of facts material to the. defence of a party, applies with peculiar force to the present case; for we cannot but perceive, that unless Brown be so far disengaged from his present situation, as a party apparently interested in the suit at law, when it is alleged he has no interest m it, that gross injustice is practised, [600]*600without any other means of detecting or defeating it. In the case of the Bishop of London v, Fytche,( 1 Br. Ch. Rep. 96.) Lord Thurlow said, that case was the first instance of a demurrer for immateriality; and that if the demurrer was to a bill where the matter was obviously frivolous, the court might interfere; and that where a man comes for a discovery of evidence material to his defence, the other party shall not protect himself against the discovery, unless he can show himself liable to penalties. I cite this case, to show, that if the appellants have a right to know whether Brown has an interest in the note, that a court of equity will not undertake to say, that the object of the discovery may be immaterial or frivolous ; and also to show that a court of chancery will not refuse its aid upon the possibility that the discovery sought may render the party liable to penalties.
It was strongly insisted on the argument, that an answer by the respondents in the affirmative to the interrogations of the bill, would subject the respondents to punishments and penalties, for maintenance or a conspiracy. Maintenance is an officious intermeddling in a suit that in no way belongs to one, by assisting either party with money, or otherwise, to prosecute or defend it; or, strictly speaking, it is the assistance of another person in a law suit, without having any privity or concern in the subject. (Wickham v. Conkling, 8 Johns. Rep. 228.) There does exist a privity between Brown and Mancius, for we cannot intend that Brown’s name is used without his consent, and he cannot incur the penalties of maintenance, for upholding a suit in which he is a party, although nominally so, for by the endorsement of the. note, and the suit by the respondents as endorsees, Brown would acquire a legal title to a moiety of the note, and would be a trustee for Mancius, if he had not paid any part of the consideration money for the transfer.
A confederacy between two or more persons to injure an individual, by an act unlawful or prejudicial to the community, is a conspiracy, and is punishable as such. But the act must be unlawful; and for the reason already given, it is not an unlawful act, punishable as a crime, for a person to become the trustee of another for the collection of a note.
[601]*601It was urged that the discovery sought might be for the purpose of proving by the testimony of Brown, that the note was given on a usurious consideration ; but no part of the bill leads to any such inquiry, and we are not at liberty, on vague conjecture, to presume any such defence. If Brown has been joined as a party to the suit at law, without any interest in the subject, and for the express purpose of depriving the appellants of his evidence, it would, in my opinion, form no objection to the discovery sought for, that Brown might prove the note tobe usurious.
The appellants had an interest in Brown’s testimony, of which he could not deprive them, by any act of his; and as the appellants ask no relief from the Court of Chancery, nor a discovery of usury, but merely seek to untrammel the witness, it is immaterial to the discovery what he would testify. In the case of the Earl of Suffolk v. Green and others, (1 Atk. 449.) a bill was filed to perpetuate the testimony of witnesses, insisting, among other things, that a bond entered into by the plaintiff’s ancestor was on a usurious contract; the defendant demurred, for that the bill sought to subject him to a penalty, and the plaintiff had not offered to pay what was really due. Lord Hardwicke considered the demurrer well taken, as regarded the charge of usury, because it would subject the party to a penalty ; but as to perpetuating the testimony, he held the demurrer to be bad, for the plaintiff was entitled to perpetuate testimony, notwithstanding his not offering to pay what was due; and he said a man may, in many cases, bring a bill to perpetuate testimony, where he cannot bring a bill for relief without waiving the penalty.
In principle, the object of the present bill is analogous to the case decided by Lord Hardwicke. The court there lent its aid to perpetuate testimony to prove usury; and here the ground of the bill is to procure the testimony of a witness made a party for the improper purpose of depriving the appellants of his evidence.
If the facts turn out to be as alleged, that the respondents have made Brown a party, to prevent his being a witness, without his having any interest in the note, it is surely an attempt to pervert and evade justice; and our laws must be [602]*602deplorably defective, if there be no remedy in such a case. I am fully satisfied that there is a remedy, and that the court c^ancery ought to have entertained the bill, and compelled an answer to it. It has, indeed, been insisted, that if the respondents answer, and admit the facts stated in the bill, that then Brown cannot be made a witness, so long as he remains a party to the record.
I will not anticipate the opinion of the Supreme Court on that point, further than to say, that there must be some method of making Brown a witness, if he has no interest in the suit at law, except what he has acquired after the appellants became entitled to his testimony.
I am of opinion that the decree of the Court of Chancery ought to be reversed.
This being the opinion of the court, (Bowne, Senator, dissenting,) it was, thereupon, ordered, adjudged, and decreed, that the decree of the Court of Chancery be reversed, &c.
Decree of reversal.