they are considered as having waved the objection of unlawfulness as between themselves (7).

The Court of Chancery will also aid a remedial Law, and not suffer its own notions to be made use of to elude any beneficial law; as, if a Trustee does by Fraud and Combination with the Cestui que Trust endeavour to evade any penal law, as the stat. of Simony, &c. under the pretence that a Trust is only cognizable in Equity, and that Equity should not assist a Penalty or Forfeiture, it will compel a Discovery (m).

Although both Plaintiff and Defendant may have an interest in the subject to which the Discovery required is supposed to relate, yet there may not be that privity of title between them which can give the Plaintiff a right to the Discovery. Thus, where a Bill was filed by a Person claiming to be Lord of a Manor, against another Person also claiming to be Lord of the same Manor, and praying, amongst other things, a Discovery in what manner the Defendant derived Title to the Manor, the Defendant demurred, because the Plaintiff had shown no right to the Discovery, and the Demurrer was allowed (n).

So where a Bill was filed by a Person claiming under a grant from the Duchy of Lancaster to be Bailiff of a Liberty within the Duchy, with a right to all waifs, estrays, and other casualties within the Liberty, and all fees, and all perquisites respecting the same, against the owner of an Inn in the Liberty, and his Tenants, alleging that the Inn-yard had been used as a common

(1) Gilbert's Eq. Rep. 186. 8 Vin. Abr. 540.

(m) Eq. Ca. Abr. 131. 8 vol. Vin. Abr. 547.

(2) Redesd. Tr. Pl. 154, 3d edit.

Pound within the Liberty, for all waifs, and strays, and casualties; and that the Tenants, under demise from the Owner, had seized and taken all waifs, and strays, and other casualties, and received the fees and perquisites thereon; and required the Owner to discover how he derived Title thereto, and what Leases or Demises he had made thereof; a Demurrer to the Discovery was allowed. In general, where the Title of the Defendant is not in privity, but inconsistent with the Title made by the Plaintiff, the Defendant is not bound to discover the Evidence of the Title under which he claims. And therefore, on a Bill filed by an Heir ex parte materna, against a general Devisee and Executor, who had completed, by Conveyance to himself, a Purchase of a Real Estate contracted for by the Testator after the date of his Will, alleging that there was no Heir ex parte paterna, but that the Devisee set up a Title under a Release from his Father, as Heir ex parte paterna of the Testator, and praying a Conveyance to the Plaintiff, and seeking a Discovery in what manner the Father claimed to be Heir er parte paterna, and the particulars of the Pedigree under which he claimed, a Demurrer to that Discovery was allowed (n).

It appears to be an established Rule, that (except in the case of Corporations (o), (who, as they do not answer on Oath, the Answer would not be Evidence, and therefore a Clerk of the Corporation is allowed to be made a Defendant) (p); a mere Witness cannot

(n) Redesd. Tr. Pl. 154(0) Wych v. Meal, 3 P. Wms. 310. Anon. 1 Vern. 117. 7 Ves. 289; and see Le Texier v. Mar

gravine of Anspach, 15 Ves. 159.

S. C. MS.

(p) 1 Vern. 117. 3 P. Wms. 310. 1 Bro. C. C. 469. 14 Ves 245.

be made a Defendant to a Bill of this description (q); and therefore, where a Bill was brought for a Discovery in aid of an Action, a Demurrer was, on this ground, allowed; though the Discovery would probably have proved more effectual than the Examination at Law; and though there was a charge in the Bill of an Interest in the Defendant, with reference to which he might be used as a Witness by the Plaintiff, he waving the objection of Interest, and if called against him might be examined upon the voir dire (r). So a Witness to a Will cannot be made a Party unless where the Will is impeached as obtained by fraudulent practices. So where Bills have been filed to impeach Deeds on the ground of fraud, Attornies who have prepared the Deeds, and other Persons concerned in obtaining them, have been frequently made Defendants as Parties to the fraud complained of, for the purpose of obtaining a full Discovery (s); but it seems in these cases relief must be prayed against such Attornies, or the Bill would be demurrable to by him (†). If a Bill of Discovery be brought against Husband and Wife in aid of an Action for a Debt on her account, the Wife may demur (u). But if a Witness answers, he must answer fully (a).

A Bankrupt made a Party to a Bill against his

(q) See 2 Vern. 380. Plummer v. May, 1 Ves. 426. Finch v. Finch, 2 Ves. 493. Cookson v. Ellison, 2 Bro. C. C. 252. Cartwright v. Hateley, 1 Ves. jun. 292.

(r) Fenton v. Hughes, 7 Ves. 287; see also Plummer v. May, 1 Ves. 426. Finch v. Finch, 2 Ves. 493. Whitworth v. Davis, 1 Ves. & Bea. 549.

(s) Redesd. Tr. Pl. 153, 3rd edit.

(t) Le Texier v. Margravine of Anspach, June 23, 1808, MS. S. C. 15 Ves. 159.

(u) Barron v. Grillard, 3 Ves. & Bea. 165.

(x) Pearson against Pearson, 1 Bro. 293; see post, 2 vol.

Assignees, touching his Estate, may demur to the relief, all his Interest being transferred to his Assignees; but it seems to have been generally understood, that if any Discovery is sought of his acts before he became a Bankrupt, he must answer to that part of the Bill for the sake of discovery, and to assist the Plaintiff in obtaining proof, though his Answer cannot be read against his Assignees (y).

It is a general Rule, applicable, indeed, not merely to this description of Bill, but to all kinds of Bills, that no person can be compelled to give a Discovery that may subject him to a Prosecution for Felony (2), or for compromising a Felony (a), or to answer what is a matter of Scandal (b), or what may lead to a legal accusation (c), or to what may subject him to a penalty, and not merely what must (d); or any thing in the nature of a penalty (e), or forfeiture of Interest (ƒ); but if the Plaintiff waves the penalty or forfeiture, the Defendant must then discover (g), as in the case of a Bill of Discovery of Waste (h); but a waver to be effectual ought to be by all those who can claim any part of the penalty or forfeiture; for if the penalty belongs, one half to the King, and the other to a Cor

1 Atk. 539. Ibid. 2 Ves. 389. Brownsword v. Edwards, 2 Ves. 245.

(e) Smith v. Read, 1 Atk. 529.

(f) Toth. 69. 2 Ch. Rep. 68. Eq. Ca. Abr. 77. 1 Ves. 56. 2 Atk. 392. 2 Ves. 109.

(g) Bird v. Hardwicke, 1 Vern. 109. East India Company v. Sandys, Ibid. 129. East India Company v. Evans, et al. Ibid. 306. 1 Ch. Rep. 144

(h) 2 Atk. 393.

poration, the waver by the Corporation, and not by the Attorney-General also, is insufficient(i). A Bill, therefore, seeking a Discovery whether the Defendant was educated a Papist (k), or whether a Clergyman was presented to a second Living, which avoided the first (1), was held demurrable. If the Defendant has covenanted to answer any Bill of Discovery, and not to plead the Acts inflicting penalties (m), in such case he is bound to answer.

And where a Person by his own agreement subjects himself to a payment in the nature of a penalty if he does a particular act, a Demurrer to a Discovery of that act will not lie (n). In some cases the Legislature has expressly provided that the Parties to transactions made illegal by Statute, shall be compellable to answer Bills in Equity for discovery of such transactions. A Demurrer to a Bill of Discovery for want of Parties, or for want of Equity in the Plaintiff's case, will not hold, as the Plaintiff seeks no decree; nor because the Bill is brought for the discovery of part of a matter, for that is merely a demurrer because the discovery would be insufficient. But, it seems, a Demurrer would hold to a Bill for the Discovery of several distinct matters against several distinct Defendants (o).

In respect to the Bill not praying Relief, it has been determined, that if a Bill is brought for a Dis

(i) East India Company v. Sandys, 1 Vern. 129.

(k) Comyn 661. 3 Bac. Abr. 800, cited Redesd. Tr. Pl. 161.

(1) 3 Atk. 453.

(m) Strange 168. East India Company v. Atkins, mentioned

2 Ves. 109. 1 Eq. Abr. 77. 2 Vern. 244. Moseley, 77; and see Redesd. Tr. Pl. 159, 3rd edition.

(n) Redesd. Tr. Pl. 159, 3d edit. and MS. case there cited; and also 5 Ves. 173 to 186.

(0) Redesd. Tr. Pl. 163.