Hosmer, Ch. J.
The principles involved in this case, for the most part, have so frequency been discussed and settled, that little more is necessary then briefly to state and apply them.
[533]*533That chancery, in aid of a suit at law, where the leading circumstances rest in the knowledge of the defendant, will compel a discovery, as a general principle, is perfectly indisputable. 1 Madd. Chan. 89. 162, City of London v. Levy, 8 Ves. 404. The Attorney General v. Duplessis Parker 151. McIntyre & al. v. Mancius & al. 16 Johns. Rep. 592. 597. Pollard v. Lyman, 1 Day 156. The Midddletown Bank v. Russ & al. 3 Conn. Rep. 135. 139. 140. 3 Bla. Com. 437.
It is equally well established, that whether the action, in aid of which a discovery is sought, be founded on contract or in tort, if the plaintiff has an equitable right, a discovery will be enforced. The East India Company v. Sandys, 1 Vern. 129. The East India Company v. Evans & al. 1 Vern. 308. Com. Dig. tit. Chancery. 3 B. 1. Thorp v. Macauley, 5 Madd. Chan. Rep. 135. 1 Eq. Ca. Abr. 76.
It is likewise unquestionable, that chancery will decree a discovery to detect fraud and imposition, and to set aside a fraudulent conveyance. Bennet v. Musgrove, 2 Ves. sen. 51. Bicknell v. Gough, 3 Atk. 558. Kimberly v. Sells & al. 3 Johns. Chan. Rep. 467. 471. Earl of Deloraine v. Brown & al. 3 Bro. C. C. 633. Mitchell v. Harris, 2 Ves. jun. 129. Lord Lonsdale v. Littledale, 2 Ves. jun. 451. King v. Martin, 3 Ves. jun. 641.
To these principles there exist certain exceptions, two of which alone it is requisite to mention. No person is obliged to answer matter of scandal; nor to make discovery of that which may subject him to a forfeiture or penalty.
The term scandal, that protects a person from making answer, has a meaning limited and technical. Fraud, in the established sense of the word, is not the scandal, but this epithet is applicable to crime only. Notwithstanding the answer of the defendant, by the discovery of a private fraud, may tend to cast great reproach on his conduct and character, still he is compellable to make answer. But, to the scandal and infamy arising from crime, he is never to be accessory, by being compelled to make discovery. Mitf. 37. 147. Deane v. Rastron, 1 Anstr. 64. Allen & al. v. Randolph & al. 4 Johns. Chan. Rep. 693, Chetwynd v. Lindon, 2 Vs. sen. 450. Parkhurst v. Lowten, 1 Meriv. 391. Parker 144. Harrison & ux. v. Southcote & al. 1 Atk. 539. Nor is the defendant bound to make discovery not only of that which must, but even of that which may subject him to a penalty. 1 Madd. Chan. 73. City of London v. Levy, 8 Ves. jun. 404. Finch v. Finch, 2 [534]*534Ves. sen. 492. The Attorney General v. Duplessis, Parker 144. Hinde's Chan. 40, 41. Mitf. 160. Harrison & ux. v. Southcote & al. 1 Atk. 539.
If, however, the statute of limitations has incurred, the defendant is compellable to answer; and for this plain reason, because the penalty can never be enforced. 2 Cox 202. Williams v. Farrington, 3 Bro. C. C. 39. Parker 279. Parkhurst v. Lowten, 1 Meriv. 391.
Upon the same principle, if the penalty is waived by the plaintiff, and by all those who can claim any part of the penalty or forfeiture, the defendant is bound to make discovery. 1 Madd. Chan. 173. Bird v. Hardwicke, 1 Vern. 109. 1 Chan. Rep. 144.
And on similar ground, if the penalty is barred and irrecoverable, a discovery will be enforced. Anon. 1 Vern. 60.
In opposition to the principles above stated, is the case of Northrop v. Hatch, 6 Conn. Rep. 361. With great deference to the judge, who assigned the reasons in that case, I must presume, that he rather expressed tire principles operating on his mind, than those which influenced the decision of the Court. The determination, so far as I recollect, proceeded entirely on the ground, that the bill shewed no title to the land in question, in relation to which the discovery was sought, and was manifestly insufficient. This was the foundation of my opinion, and, as I understand from one of the judges,
To apply the principles above stated to this case. Bills of discovery for the attainment of justice are to be favoured, so far as it can be done in consistency with the preceding principles. But as a defendant is never bound to make discovery of any fact, that may subject him to a penalty, it is perfectly clear, that he is equally protected from making answer, when the allegations of a bill state many facts, each and all of which have a joint or united tendency to bring him within the penalty of the law. If the chain want one link, that link he is not bound to supply. This is in perfect consistency with the principle, that where the allegations are distinct, having different objects in view, a discovery may be had as to such facts, which have no tendency to aid in subjecting the person answering to a penalty.
The plaintiff’s bill contains one uniform charge to effect a single object; and that is, that the defendant received of [535]*535Smith a deed of land, without consideration, and in trust for the grantor; and that having entered into possession of the land, he is now defending against an action of ejectment, brought for the recovery of it, on the ground of the aforesaid deed. This, if true, in the language of the statute, is “wittingly to justify” the transaction “as being bona fide and on good consideration and ordinarily would subject the defendant to the penalty of the law. Stat. 247. If the penalty were now recoverable, it follows very clearly, that the defendant would not be bound to answer the allegations of the plaintiff’s bill. The fact, however, is not so. By statute relating to this subject, no suit or action is sustainable for a forfeiture but within one year next after the offence was committed. Stat. 311. s. 6. In this case, since the commission of the alleged offence several years have elapsed ; and the penalty cannot be enforced. Hence, from this source no objection arises against the discovery.
It has, however, been argued, that there is adequate remedy at law; as Smith is acquainted with the facts sought after, and is compellable to testify.
On a demurrer to the bill, this principle is unavailable. If Smith is now living, it may be made to appear, that he has an interest against the plaintiff, which should exclude any reliance upon him; or that he is incredible, by reason of want of veracity; or incapable, through defect of memory; or that he is infamous.
Free access — add to your briefcase to read the full text and ask questions with AI
Hosmer, Ch. J.
The principles involved in this case, for the most part, have so frequency been discussed and settled, that little more is necessary then briefly to state and apply them.
[533]*533That chancery, in aid of a suit at law, where the leading circumstances rest in the knowledge of the defendant, will compel a discovery, as a general principle, is perfectly indisputable. 1 Madd. Chan. 89. 162, City of London v. Levy, 8 Ves. 404. The Attorney General v. Duplessis Parker 151. McIntyre & al. v. Mancius & al. 16 Johns. Rep. 592. 597. Pollard v. Lyman, 1 Day 156. The Midddletown Bank v. Russ & al. 3 Conn. Rep. 135. 139. 140. 3 Bla. Com. 437.
It is equally well established, that whether the action, in aid of which a discovery is sought, be founded on contract or in tort, if the plaintiff has an equitable right, a discovery will be enforced. The East India Company v. Sandys, 1 Vern. 129. The East India Company v. Evans & al. 1 Vern. 308. Com. Dig. tit. Chancery. 3 B. 1. Thorp v. Macauley, 5 Madd. Chan. Rep. 135. 1 Eq. Ca. Abr. 76.
It is likewise unquestionable, that chancery will decree a discovery to detect fraud and imposition, and to set aside a fraudulent conveyance. Bennet v. Musgrove, 2 Ves. sen. 51. Bicknell v. Gough, 3 Atk. 558. Kimberly v. Sells & al. 3 Johns. Chan. Rep. 467. 471. Earl of Deloraine v. Brown & al. 3 Bro. C. C. 633. Mitchell v. Harris, 2 Ves. jun. 129. Lord Lonsdale v. Littledale, 2 Ves. jun. 451. King v. Martin, 3 Ves. jun. 641.
To these principles there exist certain exceptions, two of which alone it is requisite to mention. No person is obliged to answer matter of scandal; nor to make discovery of that which may subject him to a forfeiture or penalty.
The term scandal, that protects a person from making answer, has a meaning limited and technical. Fraud, in the established sense of the word, is not the scandal, but this epithet is applicable to crime only. Notwithstanding the answer of the defendant, by the discovery of a private fraud, may tend to cast great reproach on his conduct and character, still he is compellable to make answer. But, to the scandal and infamy arising from crime, he is never to be accessory, by being compelled to make discovery. Mitf. 37. 147. Deane v. Rastron, 1 Anstr. 64. Allen & al. v. Randolph & al. 4 Johns. Chan. Rep. 693, Chetwynd v. Lindon, 2 Vs. sen. 450. Parkhurst v. Lowten, 1 Meriv. 391. Parker 144. Harrison & ux. v. Southcote & al. 1 Atk. 539. Nor is the defendant bound to make discovery not only of that which must, but even of that which may subject him to a penalty. 1 Madd. Chan. 73. City of London v. Levy, 8 Ves. jun. 404. Finch v. Finch, 2 [534]*534Ves. sen. 492. The Attorney General v. Duplessis, Parker 144. Hinde's Chan. 40, 41. Mitf. 160. Harrison & ux. v. Southcote & al. 1 Atk. 539.
If, however, the statute of limitations has incurred, the defendant is compellable to answer; and for this plain reason, because the penalty can never be enforced. 2 Cox 202. Williams v. Farrington, 3 Bro. C. C. 39. Parker 279. Parkhurst v. Lowten, 1 Meriv. 391.
Upon the same principle, if the penalty is waived by the plaintiff, and by all those who can claim any part of the penalty or forfeiture, the defendant is bound to make discovery. 1 Madd. Chan. 173. Bird v. Hardwicke, 1 Vern. 109. 1 Chan. Rep. 144.
And on similar ground, if the penalty is barred and irrecoverable, a discovery will be enforced. Anon. 1 Vern. 60.
In opposition to the principles above stated, is the case of Northrop v. Hatch, 6 Conn. Rep. 361. With great deference to the judge, who assigned the reasons in that case, I must presume, that he rather expressed tire principles operating on his mind, than those which influenced the decision of the Court. The determination, so far as I recollect, proceeded entirely on the ground, that the bill shewed no title to the land in question, in relation to which the discovery was sought, and was manifestly insufficient. This was the foundation of my opinion, and, as I understand from one of the judges,
To apply the principles above stated to this case. Bills of discovery for the attainment of justice are to be favoured, so far as it can be done in consistency with the preceding principles. But as a defendant is never bound to make discovery of any fact, that may subject him to a penalty, it is perfectly clear, that he is equally protected from making answer, when the allegations of a bill state many facts, each and all of which have a joint or united tendency to bring him within the penalty of the law. If the chain want one link, that link he is not bound to supply. This is in perfect consistency with the principle, that where the allegations are distinct, having different objects in view, a discovery may be had as to such facts, which have no tendency to aid in subjecting the person answering to a penalty.
The plaintiff’s bill contains one uniform charge to effect a single object; and that is, that the defendant received of [535]*535Smith a deed of land, without consideration, and in trust for the grantor; and that having entered into possession of the land, he is now defending against an action of ejectment, brought for the recovery of it, on the ground of the aforesaid deed. This, if true, in the language of the statute, is “wittingly to justify” the transaction “as being bona fide and on good consideration and ordinarily would subject the defendant to the penalty of the law. Stat. 247. If the penalty were now recoverable, it follows very clearly, that the defendant would not be bound to answer the allegations of the plaintiff’s bill. The fact, however, is not so. By statute relating to this subject, no suit or action is sustainable for a forfeiture but within one year next after the offence was committed. Stat. 311. s. 6. In this case, since the commission of the alleged offence several years have elapsed ; and the penalty cannot be enforced. Hence, from this source no objection arises against the discovery.
It has, however, been argued, that there is adequate remedy at law; as Smith is acquainted with the facts sought after, and is compellable to testify.
On a demurrer to the bill, this principle is unavailable. If Smith is now living, it may be made to appear, that he has an interest against the plaintiff, which should exclude any reliance upon him; or that he is incredible, by reason of want of veracity; or incapable, through defect of memory; or that he is infamous. On a hearing of the bill, these topics may be raised, where they can be thoroughly sifted; but they cannot be examined under the demurrer.
To the discovery, by the decree of a legal tribunal, there appears to be no objection; but the bill is not within the cognizance of the superior court. The matter in demand must exceed three hundred and thirty-five dollars, or it falls below the court’s jurisdiction. Stat. 138. There is no allegation to this effect; and from the facts stated in the bill, it appears, that the land in question was set off on execution for less than one hundred dollars. It is true, that by the provision of the statute, against any judgment of the superior court or cause there depending, a bill in equity may be brought before such court for relief. Stat. 138. In this case, however, the bill exhibited is not to be relieved against a judgment or cause depending, but to support one.
The judgment of the superior court, must, therefore, be affirmed.
[536]*536The other Judges were of the same opinion, except Peters, J., who was absent.
Demurrer overruled as to discovery;
And sustained as to jurisdiction.
Judge Daggett.