2 Paige Ch. 599 | New York Court of Chancery | 1831
The defendant cannot be compelled to answer a charge, which, if true, will subject him to an indictment, or expose him to a criminal prosecution. The substance of the allegations in the bill is, that the defendant has entered into a fraudulent combination with others, to extort money from the complainant. That he has entered into an agreement with other creditors of the Franklin Bank, falsely to move and maintain certain suits against Leggett, which the confederates, and particularly the present defendant, knew to be unjust and unfounded; and by that means to compel the complainant to compromise with them for their claims against the bank, to relieve himself from those prosecutions/ It is evident, that if the charges in this bill are true, the defendant and the other parties to the combination are guilty of an indictable offence, and may be punished for a conspiracy. (1 R. L. 1813, 173, § 3. 2 R. S. 691, § 8.)
To sustain a bill of discovery, in aid of a defence at law, it is necessary for the complainant to show that the discovery prayed is material to his defence in this suit at law; and if he does not show this by his bill, the defendant may demur to the discovery. (Mitf. PI. 4th. Lond. ed. 192. Newkirk v. Willet, 2 Caines’ Cas. in Err. 296. Selby v. Grew, 2 Anstr. 504.) And where the complainant seeks to give jurisdiction to this court, on the ground that it was necessary for him to come here for a discovery ; dr when he asks the interposition of the court to stay a proceeding at law, either by a temporary injunction or otherwise, on the ground that a discovery is necessary to aid him in his defence, he must not only show that the facts as to which a discovery is sought are material, but he must also show affirmatively, in his bill, that his right or defence cannot be established at law by the testimony of witnesses, or without the aid of the discovery which he seeks. (Gelston v. Hoyt, 1 John. Ch. R. 547. Seymour v. Seymour, 4 id. 409. Bullock v. Boyd, 2 Marsh. Kent. R. 323. Bass v. Bass, 4 Hen. & Munf. R. 478. Rees
In this case there is no material fact alleged to be in the knowledge of the defendant, which he could disclose without exposing himself to a prosecution for a conspiracy, if the allegations in the complainant’s bill are true. The claim for a discovery of the non-existence of facts, essential to be established by Postley in hjs suit at law, is novel and wholly unprecedented. If these facts do not exist, it is impossible for the defendant to prove them in the suit he has brought against the complainant in the superior court, unless he is guilty of subornation of perjury ; and without the proof of these facts, it is impossible for him to recover in that suit. This court cannot presume that it is material or necessary for the complainant to have a discovery, merely to guard against anticipated perjury in a suit at law. The complainant’s bill must, therefore, in this respect, be considered a mere fishing bill, to ascertain what proofs the defendant intends to produce against him in the suit brought in the superior court.
The demurrer is allowed, and the complainant’s bill must be dismissed, with costs.