Dwinal v. Smith,

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| Me. | Jul 15, 1845

The opinion of the Court was drawn up by

WhitmaN C. J.

The cause comes before us upon a demurrer to the plaintiff’s bill. The causes of demurrer are not very technically or distinctly assigned, if they can be considered as assigned at all. It may be gathered, perhaps, that the intention of the demurrer is twofold; first, to deny that the bill presents a case entitling the plaintiff to relief in equity; and, secondly, that any discovery, which the defendants or either of them could make, would be unavailing for the purpose of establishing the facts set forth in the bill.

Without questioning the propriety of this course of proceeding, we may remark at once, that the stating part of the bill alleges a conspiracy between the defendants to defraud the plaintiff, and sets forth the acts done to effectuate the objects of the conspiracy. These make out a case clearly cognizable *382in a court of equity. The remedy may not be attainable at all, in such cases, without deriving evidence, of the facts set forth, from the defendants. And, as to what the defendants can disclose, can only be known, when they shall have fully discovered what knowledge they have in reference to the facts relied upon.

In the argument of the counsel for the defendants, we are told, probably, what was intended by their allegation in the demurrer, that a good case for relief in equity was not presented by the bill, to wit: that the plaintiff had a plain and adequate remedy at law; but in a case of fraud this cannot be presumed, especially when a discovery is prayed for.

We are, also, in the argument, told, that the reason why the defendants cannot make a discovery, that would aid the plaintiff in recovering, is, that, if they were to make such discovery, it would render them liable to be prosecuted for a criminal offence. But to this it is replied, by the counsel for the plaintiff, that the period within which they could be prosecuted for any such offence as is indicated, has elapsed. And the authorities are to the effect, that in such case a disclosure cannot be refused. Story’s Eq. PI. <§> 598, and cases there cited. Our statute, c. 167, <§> 15, limits the prosecutions for such offences to the term of six years next after their commission. And it matters not, if such were the fact, that such period had not elapsed at the time of the filing of the bill: it is sufficient that it has ¡so elapsed before an answer is filed. Story’s Eq. PI. § above cited.

Demurrer overruled.