majority">The Vice-Chancellor :

It is not a ground for refusing a discovery, the object of which is to enable the party filing the bill to make his defence in a suit at law, merely because such discovery may defeat the action or subject the plaintiff in the suit at law to the loss of the debt or demand sued for. It must work a greater consequence than this to excuse him from making the discovery: such as the loss or forfeiture of something distinct or collateral to that which is sued for or the subjecting of the party to a penalty or indictment: Sharp v. Sharp, 3 J. C. R. 407 ; Hare on Discovery, part 3, ch. 1.

Then, is Mr. Delafield in danger of being subjected to a penalty or forfeiture or to a criminal prosecution ? He is alleged to be a mere agent of the Southern Trust Company. If the case falls within sec. 3 of the act of May 11, 1835, the consequence of the unlawfulness of the act rests on his princi*203pals. The unlawfulness of the act consists in the corporation placing money, &c., in the hands of the agent for the purpose of discounting, &c. No pecuniary penalty is imposed on the agent; and if it is punishable as a misdemeanor, under the revised statutes, vol. 2, 696, sec. 39, it is not the agent or the person holding the money that is punishable : for, the holding of it is not the act prohibited, but the placing of the money in his hands.

It seems to me, it would be rather a forced construction of the statutes to say that Mr. Dclafield can be in any danger personally by making a disclosure. If the suit on the notes was brought in the name of the company, and though a foreign corporation yet they can sue in our courts, Mr. Delafield, I consider, could be made to testify ; and by causing the suit to be brought in his name, instead of that of his principal, the defendants ought not to be deprived of the benefit of his testimony.

The safest course, at present, is, to retain the injunction and overrule the demurrer, unless the other ground, namely, that the bill itself shows that the discovery, when made, will furnish no defence to the action at law, is well taken.

The bill, I think, is sufficient for the purpose of discovery, although it does not set out all the facts that may be necessary to show he has a good defence at law. It avers that he has such good defence, as he is advised by counsel and believes ; and that he is destitute of proof without a discovery here.

This is enough.

Motion to dissolve the injunction is denied, with costs; and the demurrer also is overruled, with costs.

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