Fiske v. Slack

Shaw C. J.

delivered the opinion of the Court. This is a bill in equity, praying for discovery and relief.

As a bill for relief, the Court are of opinion, that it cannot be maintained, for want of jurisdiction. It charges a fraud ,' and over a direct charge of fraud, the Court has not jurisdiction in equity. In Holland v. Cruft, 20 Pick. 321, it was held, that when the Court upon other grounds had jurisdiction of the cause, and a fraud was drawn in question, as incidental, the Court must inquire into and decide it, as any other question which might be incidentally put in issue, in the progress of such a cause.

As a bill for discovery only, we think that it cannot be maintained.

1. Because the plaintiff has not shown sufficient direct interest in the subject matter, to entitle him to have a discovery from the defendant. He alleges that he has obtained a judgment against Horace Kingsbury, that Kingsbury fraudulently conveyed his estate to the defendant, that but for this conveyance he would have satisfied his execution on such estate. But as he has not actually levied no such estate, as property liable to his execution, he has acquired no interest in it. Mon constat, that he ever can or will levy his execution on such *367estate, or that other creditors of Kingsbury, may not have taken it by prior levies.

2. Because in any suit which might be brought to try the title after such a levy, Thomas W. Slack, Horace Kingsbury, and John W. Slack, might be witnesses, unless the suit should be against one of them as a party, and then, for aught that appears, the other two might be witnesses.

3. But the main ground is, that the plaintiff has merely set forth a fraud on the part of the defendant, acting as a deputy sheriff, and in his own natural capacity ; but if the facts sought to be discovered, should be disclosed, they could not be so used, as to support or sustain any title or interest of the complainant, or enable him to sustain any action for any vested interest.

Demurrer sustained, and judgment thereon for the defendant.