Wolf v. Wolf's Ex'r. , 2 H. & G. 382 ( 1828 )

Stephen, J.

delivered the opinion of the Court. This is the case of a demurrer to a bill of discovery filed by the appellee against the appellant, on the equity side of Frederick county court, on the ground that the matters and things charged in the bill, of and concerning which a discovery is sought to be obtained, would or might, if confessed or answered by the respondent, subject her to punishment. The principle is incontrovertibly clear and well established, that a defendant in equity is not bound to make any discovery in answering such a bill as would subject her to the punishment of the law by a criminal prosecution, or would cause her to incur any pains, penalties or forfeitures. In this respect the principles of equitable jurisprudence interpose (he same shield of protection, by which a witness is guarded in a court of common law; but ft is equally clear, that if no such penal consequence will follow, it is the undoubted right of the complainant to ask, and the duty of the defendant to make, the discovery in aid of the administration of civil justice.

In examining the allegations in the bill, it is not perceived, that they are of such a character as would, if answered, subject the respondent to the apprehended consequences. She was the widow of the complainant’s testator, and shared largely in the-bounties of his will, and it is presumed, in consequence of that relation, most, if not all his money and choses in action, passed into her custody and possession on his death. The allegations in the bill are nothing more than a charge of withholding from the complainant, the executor, who is legally and rightfully entitled to thern_for the purposes of his administration, a certain sum of money, and certain choses in action, belonging to the estate of his testator.

The only feature of the bill, which seems to cast the most distant look towards a criminal accusation, is that part of it which charges, that no person was present when she possessed herself of the money, bonds and notes; but it is most manifest, that this averment was not made to give a colour of criminality to her conduct, but to indicate the necessity of appealing to her oath, to enable the complainant to prosecute the suit against her, which was then pending at law, or any other suit, which he might thereafter find it necessary to institute. The charge is, “that no person was present when 'the said Mary Wolf took possession of the money aforesaid; therefore, your orator hath no legal proof to support his said action against Mary Wolf, without a discovery-of the facts by the said Mary Wolf in this honourable court, on oath.” It is not necessary, as was contended by the counsel for the appellant, that the discovery must .be of matter’ necessary to support the action then pending against her in Frederick county court; because the position is undeniable, that a discovery may be had, not only to support an action then instituted, but as auxiliary to the maintenance of a suit then contemplated to be brought. This principle is clearly laid down by. Cooper, in his Treatise on Pleading in Equitjr, 191,'192, where he says, “where a’ bill was brought for a discovery in aid of an action intended to be brought, a demurrer, upon the ground that a bill will not lie merely for a discovery to enable the plaintiff to go to law, where the plaintiff had not actually brought his action, was overruled.” In support of this doctrine he cites Moodalay v Morton, 1 Bro. Ch. Rep. 469. 2 Dick. 652.

Where a crime is charged in the bill, it is the privilege of the respondent not to be compelled to confess, either the of-fence charged, or any fact which may aid in the prosecution of it. This principle will be found in Claridge v Hoare, 14 Ves. 65, laid down in the following words: “A defendant has a right to insist that he is not to be compelled to answer, not only the broad and leading fact, but any fact, the answer to which may furnish a step in the prosecution, if any person should choose to indict him.” But it must appear, either by the bill of the complainant, or by the plea of the defendant, that his answer may subject him to punishment, or he will be compelled to make the discovery asked for in the bill. As if a bill states a marriage of the defendant with a particular woman, this of itself is no offence; but if he pleads that she is his sister, that fact would constitute the alleged marriage a criminal act, and he may refuse to state any thing more, or to speak as to any fact or circumstance which may form a link in the chain. For this principle, see also Claridge v Hoare, 14 Ves. 64, where the Lord Chancellor, speaking in relation to this subject, says, t£The first consideration is, whether an indictable offence is stated. For the consideration of that question, the fact appearing upon the pica, the embezzlement, contrary to the late act of parliament, must be taken to be true; also, that all the matters stated in the bill, relate to the transaction, so stated in the plea, as criminal. Then the bill and plea together bring forward tlfe case of an individual charged with felony, and an agreement between several other persons, of which the object was to prevent a prosecution.” In the case before this court, there is nothing in the allegations of the complainant, or in the defence of the defendant, which indicate a criminal charge, to a prosecution for which, the respondent might render herself amenable by responding to the facts charged in the bill or the interrogatories therein contained.

DECREE AFFIRMED.