#### Northwestern Bank v. Nelson.

September. 1844.

Lewisburg.

(Absent Stanard and Allen, J.*)

1. Chancery Practice—Discovery—Self-Crimination.†

By the well-established rule of equity, a defendant is not bound to disclose or answer matters, which will expose him to pains, penalties or punishment, or to a criminal prosecution; and it is not necessary it should be made appear that the defendant will be certainly exposed to peril by making the discovery sought; but it is enough if it appear that by answering the interrogatories of the bill he will thereby be probably subjected to danger.

2. Same—Same—Objection—How Made.‡—If the obj ection appears upon the face of the bill, the defendant may demur. If it does not thus appear, he must claim his protection by plea or answer, the averments of which, if traversed by replication, must be proved.

3. Same—Same—Jurisdiction—Parties—Sufficiency of Bill—Case at Bar.—The plaintiff, a banking company, go into equity for discovery and relief; and charge in their bill, that they lost from their banking house a large sum of money of their own property;’ that a considerable portion of this money had come into the hands of *the defendant, who gave no value therefor; and though he knows it is the property of the plaintiffs, he refuses to surrender it to them, but retains and applies it to his own’use; that the plaintiffs do not know the exact amount or description of money so received by the defendant, and cannot ascertain these facts without a discovery from him; that he refuses to give any information on the subj ect, alleging that the money was delivered to him by *J. M'P.*his client, in the confidence which exists between client and attorney; and that he is not at liberty to disclose any matter connected with the delivery. They charge that this is a mere evasion, for that *M’P.*had in his lifetime absolved the defendant from all obligation of confidence, and directed him to pay over the money to the plaintiffs; that *M'P.*had never since set up any claim to the money, but is dead insolvent, and without any personal representative. The bill then prays for a discovery and relief. Upon demurrer to the bill: Held, 1. Equity has jurisdiction of the case to grant both the discovery and relief. 2. *M’P.'s*representative not a necessary party. 3. Bill is not too uncertain. 4. There is nothing on the face of the bill which shews the defendant should be protected from answering it.

4. Same—Same—Sufficiency of Answer.§—Defendant’s demurrer to a bill being overruled, he is at liberty to file any sufficient answer; and an answer to a bill of discovery is sufficient, when it shews that defendant is protected from making the discovery sought for by the bill.

5. Same—Same—Bill Dismissed upon Demurrer—Effect —Quaere.—Defendant files an answer to a bill of discovery, in which, without responding to the allegations and interrogatories of the bill, he states that the same plaintiffs had heretofore filed a bill against him for the same subj ect matter, and that upon a demurrer thereto- the same had been dismissed by a decree of the court, which decree remained in full force and unreversed: and he sets up that decree in bar to the last suit. *Quiere.*If bill dismissed upon demurrer is a bar to another suit upon the same subject matter?

6. Same—Same — Sufficiency of Answer—Evidence-Case at Bar.—Defendant farther states in his answer, that the former bill, which was sworn to by the cashier of the bank, and which he exhibits with his answer, and makes a part thereof, charges that the money, of which a discovery is now asked from the defendant, was taken from the banking house of the plaintiffs by robbery; that the same was shortly thereafter received by the defendant from one or more of the robbers, and had been withheld by him from the plaintiffs, with a knowledge of the fact that it was their property, and that they had been robbed thereof as aforesaid; but disclaims imputing to the defendant a knowledge of these facts at the time he received the money. Held, 1. The facts if proved are sufficient to protect the defendant from making the discovery asked. 2. The bill sworn to by the cashier of the plaintiffs, is *legal, and sufficient evidence for the defendant, to prove the facts therein stated.

7. Same—Same—Statute of Limitations.—If the plaintiffs, in order to compel a discovery from the defendant, would rely upon the fact that a prosecution against him would be barred by the statute of limitations, thatfactshould be made appear by the statements of the bill, or it cannot be insisted on at the hearing of the cause.

This is a 1)111 filed in the circuit superior court of law and chancery for the county of Ohio, by the Northwestern Bank against Morgan Nelson, in which it is stated: That about the 2d of October 1832 the plaintiffs lost from their banking house in Wheeling, about 65,000 dollars in notes, and 2000 dollars in specie, of their own property; a great *55part of which they had not yet been able to recover. That a considerable part of this money, to the amount of many thousand dollars, had since come into the hands of the defendant, who gave no value therefor; and though he knows that it is the property of the plaintiffs, refuses to surrender it to them; but retains, and applies it to his own use. That the plaintiffs do not know the exact amount, or description of money so received by the defendant, and cannot ascertain these facts without a discovery upon oath from him. That he has been - applied to for information upon the subject, but refuses to give any, alleging that the money, or some part thereof, was delivered to him by a certain John M’Pherson, his client, in the confidence which subsists between client and attorney, and that he is not at liberty to disclose any matter connected with the said delivery. The bill charges that this is a mere evasion by the defendant, not for the protection of the rights and interests of M’Pherson, but to protect himself in the enjoyment of the property of the plaintiffs. That M’Pherson had in his lifetime absolved the defendant from all obligation of confidence, and directed him to nay over the money to the plaintiffs. That M’Pherson has never since set up any claim to the money, but is dead insolvent, and without any personal ^representative. The bill then prays for a discovery from the defendant of the amount, description, and application of the money; that he be compelled to surrender it to the plaintiffs; and for general relief. This bill was sworn to by the cashier of the bank.

The defendant demurred to the bill, and assigned for causes of demurrer:

1st. That the bill was for a matter sounding in damages, for which there was full relief at law, and that the case was not within the jurisdiction of a court of equity.

2d. That the bill does not shew that the rights of the plaintiffs cannot be established at law without the discovery sought.

3d. That M’Pherson’s representative should be a party defendant.

4th. That the bill seeks a discovery on oath of the defendant, of matters and things which impute to him scandalous and criminal conduct; and which may tend to subject him to pains and penalties.

In 1836 the cause was removed to the superior court for the county of Harrison; and coming on to be heard, the demurrer was overruled; and the defendant was ordered to put in an answer in two months. This not having been done, at the May term 1837 an attachment to compel an answer was issued and executed; and at the October term of that court the defendant tendered an answer, in which he stated that in 1835 a bill was filed by the plaintiffs against the same defendant, which was demurred to by him, and the demurrer sustained by the court, and the bill dismissed. The record in that case was copied, in the answer, and it was farther stated that the bill was dismissed without a reservation to the plaintiffs of a right to prosecute any other suit against the defendant for the same matter, and not without prejudice; and that the decree in that cause was in full force and unreversed; that the parties and subject matter *in both suits were the same; and he sets up the decree in that case as a bar to any recovery in this. The answer farther states that if the plaintiffs lost the bank notes and specie mentioned in the bill, they lost them by robbery; and that the bill charges the defendant to have received and to retain them, under such circumstances as if true would subject him to pains, penalties and forfeitures under the laws of the state.

The first bill, which was copied in the answer, and made an exhibit, stated that bank notes and specie lost by the bank, and in the possession of the defendant, were lost by robbery, and that M’Pherson or some other person put a large amount of the money so lost by the bank, into the possession of the defendant. That M’Pherson was one of the robbers of the bank; and disclaiming to charge the defendant with knowing at the time he received the bank notes from M’Pherson, that they were the property of the bank, and had been stolen from it, it is alleged that the defendant gave no valuable consideration therefor; nor did he receive them in such way as to make them his own property ; and that whilst they were in his possession, he was informed of the fact, and knew that they were the property of the plaintiffs, and were a part of the notes of which the plaintiffs had been robbed. The other charges, and the prayer for discovery and relief, are substantially the same with those in the present bill. That bill was sworn to by the cashier of the bank.

The defendant stated two grounds of demurrer to that bill. The first the want of proper parties: and second that the discovery sought might subject him to pains and penalties. The court sustained the demurrer and dismissed the bill, without stating on the record the grounds pn which the decree was founded.

The plaintiffs objected to the answer, because it did not respond to the allegations of the bill, and did not afford the discovery sought for by it. The court however ^overruled the objections, and permitted the answer to be filed; and then plaintiffs having replied generally, the cause came on by consent, to be finally heard upon the bill, answer, replication and exhibit, when the court decreed that the bill should be dismissed, and that the plaintiffs should pay the costs. From this decree the plaintiffs applied for and obtained an appeal to this court.

G. N. Johnson for the appellants.

The questions to be first considered, are those arising on the demurrer to the bill: and of these, the first is the objection that the matters charged are matters sounding in damages; and for which there is a plain *56and adequate remedy at law; and therefore a court of equity has no jurisdiction.

The ground of equity jurisdiction stated in the bill, is the want of a discovery from the defendant. The plaintiffs allege that the defendant has their money; but they know not how much he has; and it surely needs no argument to prove that on a trial at law the proof that the defendant had the plaintiffs’ money, without proof of some amount, would not entitle them to a verdict. If the charge that the defendant has the money of the plaintiffs is sufficient to bar the right of discovery of the amount which he holds, then indeed the defendant can in no such case be compelled to disclose, for without this charge the bill is defective and demurrable. 2 Story’s Equ. 701.

But it is objected, that this is not only a bill for discovery, but also for relief. It was the old English practice, that on a bill for discovery and relief, a special demurrer would lie to the relief, but not to the discover ; but a general demurrer would not lie. This continued to be the practice until it was changed by lord Thurlow. Price v. James, 2 Bro. Ch. Rep. 319; Todd v. Gee, 17 Ves. 274; Hopkins v. Longden, 8 Ves. 2; and Collins v. Swain, 4 Bro. Ch. Rep. 480. In Virginia we have gone farther than the old English practice. *Our courts hold, that chancery having got possession of a case for discovery, should go on to give relief. 2 Rob. Pr. 45; Chichester v. Vass, 1 Munf. 98; Chinn v. Heale, 4 Munf. 63; Russell v. Clarke, 7 Cranch 89; note to 1 Fonb. Equ. 27, 718, 719.

It is also objected, that M’Pherson’s representative should have been made a party. But upon the statements of the bill, no person is interested in this matter but the plaintiffs and the defendant, and therefore no other person can be a necessary party.

Another objection stated to the bill is, that it seeks a discovery of matters and things which impute to the defendant scandalous and criminal conduct, and which may tend to subject him to pains and penalties.

That the discovery may be scandalous to the defendant, is not sufficient to protect him; it must subject him to the danger of a criminal prosecution; Story’s Equ. PI. 454, *l*595; and if the defendant would seek this protection by a demurrer to the bill, that demurrer must state why and wherefore the answer would subject the defendant to forfeiture. Mitf. PI. 195, note 2.

Lastly, it is objected that the bill is too uncertain in its statement of facts. In bills of discovery, certainty to a common intent is sufficient; and with respect to the frame of such bills the court is referred to Story’s Equ. PI. 258-262, and Wigram on Discovery 76.

We come next to the plaintiffs’ objections to the defendant’s answer.

By the statute 1 Rev. Code, ch. 66, § .98, p. 215, a demurrer or plea being overruled, the defendant is not allowed to put in another, but is bound to answer the allegations of the bill. Upon principles of equity pleading, the rule is the same. 2 Rob. Pr. 299. The principle is, that the court will not indulge these dilatory pleas; and the party having made his defence by demurrer, he cannot have another dilatory de- • fence by plea; especially after he is in contempt for failing to answer. **2*Rob. Pr. 327, 8. In effect the answer of the defendant is a plea; it responds to none of the allegations ' of the bill; and makes no part of the discovery asked for.

But if we are mistaken in our construction of the statute, then we are to consider' the reasons stated in the answer for not making the discovery. These are, first, a former decree between the same parties, on the same subject matter: and second, that the money spoken of in the bill was lost by robbery; and that the bill charges the defendant to have received, and retained it, under such circumstances as if true, would subject him to pains, penalties and forfeitures.

Upon the first point, it is to be remembered that the bill went off upon a demurrer ; and that one of the errors assigned was a want of proper parties. But the doctrine on which the defendant relies, only applies to final decisions of the cause upon the merits; and not to a decision upon the mode of getting at the merits. Story’s Equ. PI. 602, 611; Mitf. PI. 253; 2 Saund. Rep. 47, in note.

But the statement in the answer, that the subject matter of the two bills is the same, is an affirmation which must be proved; and this we submit has not been done. The allegations in the first bill are not evidence in this cause. Philips on Evi. 391. This was settled in the Banbury Peerage case. See 2 Sel. N. P. 685; Doe v. Sybourn, 7 T. R. 2; 1 Stark. Ev. 295. And so it has been held that pleadings at law are not evidence in another case. Jackson v. Stetson, 15 Mass. Rep. 56, in note; Lapworth v. Wast, Cro. James 86, 87. But if the court could judicially know that the subject matter in both suits, is the same, it cannot know the grounds on which the first was decided; or whether that decision was founded on the merits, or on a question of mere form.

The second ground taken in the answer, in the absence of proof of the truth of the affirmations of the ^answer, is nothing other than the question upon the demurrer. That proof we have already shewn, does not exist in this record. But taking the answer as proved, then the defendant, in order to protect himself from a discovery, must shew that taking the facts stated in the bill as true, and the facts stated in the answer which are proved, that there is a criminal offence imputed to him; and then it must be shewn that an answer to the interrogatories put to him, will subject him to a prosecution. See Wigram on Discovery, 13 Law Libr. 28; Paxton v. Douglas, 16 Ves. 239; Harrison v. Southcote, 1 Atk. 528; Cartwright v. *57Green, 8 Ves. 405; Sharp v. Carter, 3 P. Wms. 375; Chetwynd v. Lindon, 2 Ves. sen. 450; Bishop of London v. Fytche, 1 Bro. Ch. Rep. 96. The interrogatories must appear upon the pleadings to tend to subject him to it. Story’s Equ. PI. 448; Finch v. Finch, 2 Ves. sen. 491. And the court does not look to a remote tendency, but to an immediate tendency apparent upon the pleadings. Mitf. PI. 284, 5.

Try this case by these principles, and where is the crime, or penalty, or forfeiture apparent upon these pleadings, to which the defendant may be subjected?

In this case, without stating facts, the defendant contents himself with averring in his answer, that a discovery would expose him to pains and penalties. But if the bill does not state facts which will thus subject the defendant, his plea must state in what way this will be done. Brownsword v. Edwards, 2 Ves. sen. 243; Paxton v. Douglas, 16 Ves. 239; Gerrard v. Saunders, 2 Ves. jr. 187; Wigram 38, pi. 51; Craw v. Tirrell, Id. 42.

But if the case made by the bill and answer is a criminal offence, it is the offence of receiving stolen goods, which is but a misdemeanor; 2 Russ, on Crimes 253; 1 R. C. ch. 160, § 9, p. 589; and being a misdemeanor, it must be prosecuted in one year. 1 R. C. p. 614, ch. 169, § 60. Here the offence was in 1832; the bill was filed *in 1835, and the answer in 1837; and it is settled that where the time of limitations runs out before the hearing of the plea, it cannot be insisted on. 2 Cond. Eng. Ch. Rep. 481; Wigram 64, pl. 95, 96, 97, and note; Story’s Equ. PI. 457, § 598.

Harrison and Baxter for the appellee.

We will consider this case, first, upon the demurrer to the bill. This bill has been drawn obviously with the object to keep out of view the circumstances of the case; and by general averments to force a discovery from the defendant, whilst the court is kept in ignorance of its effect. The first charge in the bill is, that plaintiffs lost from their banking house a large sum of money. Money cannot remove itself, and if it was lost from the banking house of the plaintiffs, it could only be by the removal of it without their consent, by an officer of the company, or a stranger. If by an officer it was embezzlement under the statute; if by a stranger it was larceny or robbery. The second charge is, that this money came into the possession of the defendant without consideration; and with the knowledge of the defendant that it was the money of the plaintiffs; and he being asked to return it, has refused to do so, but has appropriated it to his own use. If a bank note is lost and comes to the hands of a bona fide holder for value, it is lost to the original owner. 1 Burr. 459; 19 Law Libr. 250; Dodd’s Bac. Abr. vol. 7, Trover, C. 799, G. 829; Horwood v. Smith, 2 T. R. 755, and Gordon v. Harper, 7 Id. 9. These authorities shew the general doctrines of the law, as to lost money. When then the bill charges that the money in the hands of the defendant is theirs, it charges in effect that the money was stolen from the bank ; and that the defendant has corruptly obtained, and holds possession of it. The third charge is, that the defendant pretends that the money was delivered to him by a certain John M’Pherson, his client, &c.

*Take these charges together, and they constitute a charge of larceny in the defendant. This offence is defined by Russell 96, 101-103, and the case made by the bill, comes directly within the principle of the cases stated by him, and which have been adopted by the general court. Blount’s case, 4 Leigh 689; Starke’s case, 7 Leigh 552.

But if the charges of the bill do not constitute a criminal offence, the claim set up is clearly ex delicto. There was no contract between the parties; no authority from plaintiffs to defendant to take possession of the money; but upon this bill that possession was wrongful. Can such a claim be enforced in equity? In a bill for discovery and relief, if the relief is not proper for the court, the whole bill is demurrable. Mitf. PI. 183; Cooper 188; Wigram 32, 35, 144; Loker v. Rolle, 3 Ves. 4; Ryves v. Ryves, Id. 343; Hodgkin v Longkin, 8 Ves. 2; Rennison v. Ashby, 2 Ves. jr. 459; Brandon v. Sands, Id. 514; Collis v. Swayne, 4 Bro. Ch. Rep. 480; James v. Price, 2 Bro. Ch. Rep. 319. The cases cited by the counsel for the appellants, do not establish a general principle in opposition to the present English rule; and the opinions of the judges in Chichester v. Vass, shew that they did not in that case intend to establish the general doctrine, that a court of equity will grant relief in a case ex delicto, because the plaintiff comes into court asking for a discover}'.

But if in such a case a court of equity will grant relief, it must be where there is an actual, and not a simulated necessity for a discovery; and this must be shewn by a full statement of the case in the bill, and not by general averments. Gerrard v. Saunders, 2 Ves. jr. 187; Meeze v. Mays, 6 Rand. 660; Webster v. Couch, 6 Rand. 524; Russell v. Clarke’s ex’or, 7 Cranch 69.

Another objection to this bill is this uncertainty. The right to recover money must depend upon the manner in which it was lost by the plaintiff, and acquired by the '^defendant. If money is acquired by dishonest means, it may be recovered; but not where it gets into defendants’ hands in the usual course of business. Miller v. Race, 1 Burr. 459. And having once passed in this way, it cannot be recovered from any subsequent holder. To enable the plaintiff's to recover, the case made by the bill should have clearly made out their title to the money ; Wigram 77; and this with as much certainty as to the substantial facts, as in pleadings at law. East India Co. v. Henckman, 1 Ves. jr. 287; Mitf. PI. 150; Ryves v. Ryves, 3 Ves. 343; M’Gregor v. East India Co., 2 Cond. Eng. Ch. Rep. 496; Hardman v. *58Elames, 8 Id. 203; S. C. 7 Id. 565; Walburn v. Ingilsby, 6 Id. 498; Gerrard v. Saunders, 2 Ves. jr. 187; 14 Ves. 66; and Mechanics Bank v. Levy, 3 Paige 606.

Another objection to this bill is the want of proper parties. The bill states that defendant received the money from M’Pherson, in the confidence existing between attorney and client; and that M’Pherson relieved him from that confidence, and directed him to surrender the money to the plaintiffs. M’Pherson should have been a party in a suit where these facts were to be ascertained. Greenough v. Gaskell, 6 Cond. Eng. Ch. R. 516; Wright v. Mayer, 6 Ves. 280; Parker v. Carter, 4 Munf. 273; Wigram 62.

We come next to the objections of the plaintiffs to the answer. The objection founded on the statute, assumes that the answer is sufficient to shew that defendant is not bound to answer farther; but that by the provisions of the statute he is bound to answer all the allegations of the bill. It is a principle of equity practice, that one demurrer being overruled, the defendant shall not demur again, but must answer; yet when he shews by his answer, that the plaintiff is not entitled to have farther proceedings against him, he is not bound to answer farther. For the general mode of practice we refer to Curzon v. De La Zouch, 1 Swanst. R. 185; *Story’s Equ. PI. 468, 9, and the notes; Wig-ram 191; 13 vol. Baw Bib. 87; Goodrich v. Pendleton, 3 John. Ch. R. 384. From these authorities it will be seen that the only question is, -whether the answer shews that the defendant is not bound to answer farther ; and that depends upon the defence set up in the answer. In this case the defence is twofold.

1st. The bar of a former decree. We have not found any distinction made between bills of discovery and relief, decided on demurrer, and other cases. When the question of jurisdiction is decided upon demurrer, there seems to be no reason why it should not be equally final, as when decided on answer and issue; and this especially when the plaintiff does not add to, but takes from his original case. See Ferrar’s case, 6 Coke 7. We are told that a decree and judgment stand on the same footing as to their conclusive effect. Hopkins v. Lee, 6 Wheat. 109; Hickman v. Armstrong, 6 Munf. 287. They have the same binding force on the parties; Davouse v. Fanning, 4 Johns. Ch. R. 199; and a decree can only be gotten rid of by rehearing, review, or appeal. In 2 Madd. Ch. 313, it is said that a bill dismissed upon the merits, unless dismissed without prejudice, may be pleaded in bar; and in setting up a former decree as a bar, it is not necessary to state all the facts, in order to shew it is the same matter; but the general averment that it is the same subject matter, with the averment as to the identity of the parties, is sufficient. For the form of the plea, see 1 Harr. Ch. Pr. 403.

2d. The answer may subject the defendant to a criminal prosecution. The general principle upon this subject is too clear to admit of controversy. The court will find a full examination of it in Skinner v. Judson, 8 Conn. R. 528; and In the case of U. S. v. Saline Bank, 1 Peters’ R. 100, the chief justice says, if there may be a prosecution it is sufficient to forbid a discovery. We would also refer to Harrison v.

Southcote, 1 Atk. 539, *and Story’s Eq. PI. 438, § 576. But it is said that the allegations of the answer must be proved, and that there is no proof in this record, to sustain the answer, but the record of the former case; and that the bill is not competent testimony to establish the facts therein stated. We have only to say that the facts stated in that bill were sworn to by the cashier of the bank, as the agent of the plaintiffs; and as against them it must be evidence. And lastly it is insisted, that if the defendant can be held to be guilty of any criminal offence, it must be that of receiving stolen goods, which is only a misdemeanor; and therefore the prosecution is barred by the statute of limitations. In many of the cases decided, the defendant was called upon to answer as to pecuniary penalties. As to these, the statute of limitations removes the objection on the part of the defendant, to answer. But even in these cases, the facts which entitle the plaintiff to obviate the objections of the defendant, by the statute, should be stated in the bill. U. S. v. Saline Bank of Va., 1 Peters’s R. 100; M’Gregor v. East India Co., supra.

C. Johnson for the appellants.

The first enquiry is, should the defendant’s demurrer to the bill have been overruled? On this question the proceedings in the former suit can have no bearing; but it must be determined upon an examination of the bill alone.

It is said first, that the case is not within the jurisdiction of the court: that this is a claim arising ex delicto, and sounding in damages; and therefore peculiarly appropriate for a court of law. The plaintiffs come into a court of equity, not because the nature of their claim is unsuited to a court of law, but because they need a discovery from the defendant of evidence which is necessary to sustain it. It is for a discovery, admitted to be one of the broadest grounds of equity jurisdiction, that we come into this court.

*But it is said this is a claim arising ex delicto. The delictum, and the only delictum out of which this action arises, is that the defendant has our money, and knowing it to be ours, he will not give it up; and it is the same delictum as that which is the foundation of debt, assumpsit, or detinue. When the plaintiff comes into equity for a discovery, he must shew his title to the subject matter in controversy; and the facts necessary to entitle him to a discovery from the defendant: and when he shews his title to the thing, and that he cannot prove it, except by the oath of the *59defendant, then he shews his right to a discovery.

Passing over much that has been said upon the question, whether the court will proceed to give relief when plaintiff comes in for discovery, it is sufficient to say that the Virginia decisions settle that question; and wherever the discovery settles the subjects of controversy, the court will give the relief. Suppose the defendant admits he has 12,000 dollars of our money, why send the plaintiffs to a court of law to recover it? The cases cited shew that where the discovery is denied, the case is out of court; or where the plaintiff proves the facts which he asks to be discovered, he proves himself out of. court; and it necessarily follows that when he gets what he asks, he shall have relief.

But it is said that the plaintiff must state all the facts that belong to the case. When the plaintiff has stated enough to shew his title to the property, and that the only evidence to sustain it is in the breast of the defendant, he shews his right to come into a court of equity. If he sets out enough to shew his title and his right to a discovery, without stating any offence in the defendant, the defendant, if there is any fact to implicate him, which would exempt him from the discovery sought for, must state it in his answer, and prove it. All the cases cited by the counsel on the other side, will be found to accord with these views: and the case of M’Intyre v. *Mancius, 16 John. R. 592, establishes that a bill of discovery should state the matter, the title, and the necessity for a discovery; and when the plaintiff has made out his case, the defendant must answer not only the principal questions, but all other collaterál queries, for which there is a foundation in the bill.

It is again objected that M’Pherson’s representative should have been a party to this suit. The bill does not say that M’Pherson had any thing to do with the money spoken of therein; but it charges that the defendant has the money, knowing it is the money of the plaintiffs; the demurrer admits this; how then can M’Pherson be a necessary party? Ordinarily it is not necessary to make a party, who is dead ■without a personal representative; but if it was necessary in this case, the bill should not have been dismissed, but should have been retained, to give plaintiffs an opportunity to make them.

But lastly, it is objected that the bill subjects the defendant to pains and penalties. We supposed in the opening argument, that the offence to which he feared to be subjected, was the offence of receiving stolen goods ; but the counsel say the bill charges a felony, because it charges a fraudulent conversion to his own use. The distinction between a public fraud constituting a larceny, and a private fraud for which a party may be sued, is well settled. If all the facts stated in the bill were put into an indictment, it would be clearly demurrable. The plaintiffs do not allege embezzlement, or stealing, but simply loss. But if the bill charged the money to be taken feloniously, what then? Is the appropriation of the money larceny? The doctrine of all the authorities both ancient and modern, is that the finder of money, however fraudulent his appropriation of it, cannot be guilty of larceny. To constitute a larceny there must be a trespass; and the cases cited in Russell are intended to distinguish between the cases *where the finding was real, and where it was but a pretence, and the possession of the property was acquired in a fraudulent manner. The cases in relation to breaches of trust, go upon the doctrine of the necessity of a trespass to constitute larceny: It being still the law that a party who has come legally into possession of property, cannot be guilty of a felony by a fraudulent conversion of it, except in the cases where the law has been changed by statute. The cases in the general court turned upon the same question as did those in BJngland, the intention of the parties in getting possession of the property.

But the bill does not say that the defendant acquired the money by finding; nor does it charge any subsequent acts which converted the legal acquisition into a felony'. How then can he be subjected to prosecution for the offence?

We come now to the enquiry whether it was proper to receive the answer, which without responding to the allegations of the bill, or making the discovery asked, sets up as grounds of defence, 1st, a former suit, and 2d, that the defendant if compelled to answer, may subject himself to a prosecution for felony.

The statute meant that when one dilatory plea was overruled, the defendant should put himself upon the merits, by his answer. Of these dilatory pleas, that to the jurisdiction is one. It was obviously the policy of the statute to restrict them; and whilst it permitted every thing to be set up, which shewed the plaintiff had not merits; to forbid or restrict every defence which would keep the merits from the consideration of the court. Test this answer by this rule. True the defendant might shew that the question had been concluded by a previous decision; but to say that the money was taken by a felonious act; and that the defendant is not therefore bound to answer, is not setting up a defence which goes to the merits of the plaintiffs’ claim, but solely to the jurisdiction of the court; and if the *bill had been dismissed on this ground, the plaintiffs might have had the question tried at law.

But suppose it is true and conceded that the money was taken by robbery. It is not said that the defendant feloniously received it, nor is he charged with any felonious act whatever. If indeed the bill states facts which if proved would constitute a felony, and the defendant is called upon to answer, or if he is called upon to answer to one fact necessary to constitute the offence; in either case he may refuse to answer. But *60if the bill does not contain all the facts necessary to make up the crime, the defendant, to shelter himself from the obligation to answer, must state the facts which will shew that he may be subjected by his answer to a criminal prosecution; otherwise you enable every defendant to protect himself from the necessity of answering, by the simple declaration on his part, that to answer may criminate himself. In this case, even if the fact that the money was stolen would protect the defendant from a discovery, he must prove it, which he has not done.

The other question brought up by the answer is, whether the plaintiff is concluded by the decree in the first suit. The spirit and meaning of the rule is, that whenever a court of competent jurisdiction has set.tled a matter, that is final, and conclusive upon the parties. In this case, the matter in contest between the plaintiffs and the defendant, is not the discovery, but the money. We went into a court of chancery to get the money by means of a discovery; and we were sent out of court, on the ground that we had no right to the discovery; but the question whether we were entitled to the monej', was not a question settled by the decree in that case.

We repeat, that the principle upon which a former decree is a bar, is that the merits of the controversy have been decided. No case, at least no class of cases can be produced which establishes that a judgment of a *court, not upon the merits, is a bar to another suit: and no case has been produced, in which a cause which went off upon a demurrer, was held to be a bar. How is it to be known what was decided, where there has been a general dis-mission of the bill?

In this case, there is no doubt that the former cause went off, not on the merits, but on a question of jurisdiction. The defendant stated two grounds of demurrer, both affecting the form of the proceeding; and it is impossible to believe if the facts stated in the first bill are true, and proved, that the plaintiffs are not entitled to the money.

*

 Judges Stanard and Allen had been consulted in the case.

†

Chancery Practice—Discovery—Self-Crimination.—

In Thompson v. Whitaker Iron Co., 41 W. Va. 581, 23 S. E. Rep. 797, it is said : “Another reason against discovery is that it might expose the party to criminal prosecution for embezzlement. Code, c. 145, sec. 19. We need not assert that it would do so. If. by possibility, it might do so, that is ground for refusing discovery, as equity will not compel one to furnish evidence which may lead to his prosecution, or furnish a link in the chain of evidence to convict him. *Bank v.*Nelson, *1 Gratt. 110 ;*Story, Eq. Pl. secs. 524, 575 ; 1 Greenl. Ev. sec. 451.”

See the proposition laid down in the first headnote also approved in Dulaney v. Smith, 97 Va. 133, 33 S. E. Rep. 532.

‡

Same—Same.—On all matters pertaining to discovery, see monographic *note*on “Bills of Discovery” appended to Lyons v. Miller, 6 Gratt. 427.

§Same—Demurrer *to*Bill Overruled—Rights of Defendant.—When a demurrer to a bill in chancery is overruled, a decree ought not to be pronounced against the defendant, but leave should be given him to file an answer. Sutton v. Gatewood, 6 Munf. 398. Por this proposition, see principal case and Sutton v. Gatewood, 6 Munf. 398, cited in Hays v. Heatherly, 36 W. Va. 621, 622, 15 S. E. Rep. 226. See also, Nichols v. Nichols, 8 W. Va. 174; Pecks v. Chambers, 8 W. Va. 210 ; Park v. Petroleum Co., 25 W. Va. 109 ; Reynolds v. Bank of Virginia, 6 Gratt. 183 ; monographic *note*on “Demurrer.”

BALDWIN, J.,

delivered the opinion of the court.

The court is of opinion, that by .the well established rule of equity, a defendant is not bound to disclose or answer matters which will expose him to pains, penalties or punishment, or to a criminal prosecution therefor. The application of this rule must be governed by the circumstances of the case, and the sound discretion of the court. On the one hand, the party is not to be allowed to decide for himself whether he is entitled to the protection claimed; and to screen himself from a just responsibility by the pretence that his answer would subject him to criminal or penat consequences. And-on the other, the plaintiff is not to be permitted, by suppressing or disguising the real nature of his case, to deprive his adversary of a privilege essential to the immunities and liberties of the citizen. It is not necessary it should be made appear that the defendant will be certainly exposed to peril, by making the discovery sought: it is enough if it appear that by answering the charges or interrogatories of the bill he will thereby be probably subjected to danger. If this be shewn upon the face of the plaintiff’s bill, then the defendant may assert his privilege by a demurrer thereto. If it be not thus shewn, then the defendant must claim his protection *by plea or answer; the averments of . which, if traversed^ by replication, must be established by sufficient evidence. By such plea or answer and evidence, the defendant maj' make it appear that the plaintiff’s demand against him has arisen out of an act denounced and punished by law; and that the defendant is so connected with such act, that unless protected from answering, he will probably be exposed to criminal or penal consequences. More than this he cannot be required to do; for if we go bej'ond this point, we cannot stop short of requiring the defendant to allege and prove his own guilt, by way of protecting himself against its acknowledgment.

The court is further of opinion, that in the present case the allegations and interrogatories of the plaintiffs’ bill are not such as to shew upon its face that the defendant ought to have been protected from answering the same, or that the bill was in any respect demurrable; and therefore that the defendant’s demurrer was properly overruled bj' the circuit court.

The court is further of opinion, that notwithstanding the overruling of a demurrer to a bill, a defendant is at liberty to file any sufficient answer; that an answer to a bill of discovery is sufficient when it shews that the defendant is protected from making the discovery sought by the bill; that in this case the averments in the defendant’s answer were such as if true entitled him to the protection which he claimed ; and therefore that the plaintiffs’ objections to the filing of the answer were properly overruled by the said circuit court.

The court is further of opinion, that upon the hearing of the cause, the former bill of discoverj' exhibited against the defendant by the plaintiffs, and sworn ’ to bj' their cashier was legal and sufficient evidence of the defendant to prove the facts therein stated. It appears from the former bill that the monej' of which the plaintiffs seek a discovery from the defendant, was taken *from the banking house of the plaintiffs by robbery; that the same was shortly thereafter received by the defendant from one or more of the robbers; and has been withheld by him from the plaintiffs, with a knowledge of the fact that it was their propertj', and that they had been robbed thereof as aforesaid. It is true the former bill disclaims imputing to the defendant a knowledge of these facts at the time he received the money; but such disclaimer would be no evidence for the defendant in a criminal prosecution against *61an<3 him on the part of the commonwealth, if permitted to deprive a defendant of his protection, would always be resorted to as a device for that purpose. The court does not feel itself called upon to ascertain the precise character of the public prosecution to which the defendant could probably be exposed, if he were compelled to make the discovery sought bjr the bill; nor to express an opinion whether such prosecution would be barred by some statute of limitations ; or what would be the effect of such bar, in a case like the present, upon the question of the defendant’s protection. These are grave questions which cannot be raised incidentally at the bar; and if they could have availed the plaintiffs any thing, ought to have been presented by a frank disclosure of the real nature of their case; and the court cannot avoid perceiving that the present bill has been ingeniously drawn, for the purpose of gaining an advantage by dexterity in pleading.

The court, therefore, without deciding whether the decree in the former cause is a bar to the present suit, is of opinion that there is no error in the decree of the said circuit court dismissing the plaintiffs’ bill, and that the same should be affirmed.

CABELL, P., concurred in the opinion of BALDWIN, J.

BROOKE, J., concurred in affirming the decree of the court below.