This bill is for discovery and relief. The South Wharf Corporation is a party, and George Morey, a member of the corporation,, is a party also, and has filed a general demurrer to the whole bill.
The first question is, whether the members of a corporation may be made parties, so far as the plaintiff seeks for discoveiy only, or whether the plaintiff shall be confined to an examination of the corporators as witnesses. The defendant, Mr. Morey, contends that he is liable to answer only as a witness, while the plaintiff insists on the right to proceed against him as a party,
A little more than a century ago, it was held by Lord Talbot, that an officer of the East India Company was properly made a defendant, in order to discover some entries and orders of the company. Wych v. Meal, 3 P. W. 310. And it seems to us to have been so ruled upon the soundest reason. The principle of equity is, that the plaintiff shall have a full discovery of material facts under the sanction of the oath of the party in interest. The answer of a corporation, under its common seal, gives no such sanction. The court cannot but see that the name of a corporation is but the name which the individual members of the corporation have taken or accepted. The corporators themselves are really the persons interested, and who should, upon the principles of equity, be called upon to make discovery upon their oaths.
The case of Wych v. Meal, above cited, was against an officer of the East India Company; and the defendant, in the case at bar, not being an officer of the South Wharf Corporation, denies the applicability of that case to this. But we cannot think that the rule should be confined to the officers of a corporation. The individuals, who are not officers, may be those only who know the facts sought to be discovered. In the present case, for example, whether the corporation was affected with knowledge of the alleged trust and charge upon the estate, which has been conveyed to it, at or before the time when it received the deed, may have been carefully concealed from its *240officers, though well known to other individual corporators. Not is authority wanting, ancient and modern, on this point. In 1 Vern. 117, there is an anonymous case of a bill against a corporation for the discovery of writings. The defendants answered under their common seal, but nothing to their prejudice ; and the court ordered that the clerk of the company, and such principal members thereof, as the plaintiff should think fit, should answer on oath. In Dummer v. Corporation of Chippenham, 14 Ves. 245, this point was ruled by Lord Eldon, and the individual members of a corporation, trustees for a charity, were compelled to answer upon their oaths. See also Edwards on Parties, 49.
It was objected that this practice would be inconvenient and onerous to the individual corporators, against whom it is not pretended that any decree for relief can be made. But we think that where discovery only is sought, the costs which must be paid to the party, in such case, would prevent the evils which have been apprehended.
The examination of the corporator, as a party, is obviously much more beneficial than an examination of him as a witness. As a party, he will be obliged to answer to such interrogatories upon such topics as the plaintiff shall propose, and will not have the opportunity to do away the effect of his answer, as a witness, upon a cross-examination, might be enabled in a great measure to accomplish.
We are all of opinion, that Mr. Morey is bound to answer, so far as the bill seeks for a discovery, notwithstanding there is no allegation in the bill that he possesses any information which was not common to other individual members of the corporation. It is to be presumed that the plaintiff had good reason to believe that the members of the corporation, on whom he called for an answer, had material information, and might make a discovery which would be beneficial ; and, therefore, if the plaintiff thinks fit, he has a right to make such member a party, for the purpose of discovery.
But it is certain that no relief can be had against the defendant, as an individual corporator. His answer will not be evidence against the corporation ; but it may be, nevertheless, of *241the utmost use to the plaintiff, in the further prosecution of the cause.
The question then is, whether the demurrer shall hold, inas much as the plaintiff has sought for relief as well as discovery We adopt the old rule of pleading in equity, that on a general demurrer to the whole bill, if there is any part, either as to the relief or discovery, to which the defendant ought to put in an answer, the demurrer, being entire, ought to be overruled. 1 Harrison Ch. Pract. (7th ed.) 414. Higinbotham v. Burnet, 5 Johns. Ch. 186. This was the practice formerly adopted in England, and at present continued in New York. Story Eq. PI. 253, 254, note. The defendant should answer as to the discovery, and demur as to the relief. Laight v. Morgan, 1 Johns. Cas. 434. The demurrer of record is therefore overruled. But the defendant now demurs ore tenus to the prayer for relief, and that demurrer is allowed ; but without costs.
The defendant must answer to that part of the bill which seeks discovery, and will thereupon be entitled to his costs.