The opinion of the court was delivered by
Collins, J.We agree with the vice-chancellor that the cross-bill is maintainable as a bill for relief. The judgment creditor was entitled to seek a decree declaring the trust deed void. The complainants might dismiss their bill and the deed would stand of record a perpetual menace. The cross-bill was in the nature of a bill quia timet.
Even if this were not so, nevertheless the complainants having submitted to answer the cross-bill were bound to answer it fully. Hogencamp v. Ackerman, 2 Stock. 267; Vreeland v. New Jersey Stone Co., 10 C. E. Gr. 140.
*566But it is urged that discovery will not be compelled where answer without oath is prayed. Originally a complainant was required to pray for answer on oath and was bound by the answer if he could not overcome it by preponderant evidence. It was because a corporation could not make oath and answered only under its common seal that discovery by it had to be secured by the somewhat incongruous course of making its officers co-defendants. In special cases, the chancellor would permit a complainant to waive answer on oath, but would not ordinarily compel affirmative discovery where the defendant could not have the attendant advantages. The subject came to be regulated, in some jurisdictions, by standing rule of court, and in others by statute. Most states now have such statutes, and decisions on the subject, in those states, can only be understood when the statutes are read with them. There must always be borne in mind also the difference, often lost sight of, between bills for discovery only and bills for relief with incidental discovery. I have found no decision questioning the right of a complainant to require discovery in answer to a bill of the class last named, although prayed without oath, except the case of Congdon v. Aylsworth, 16 R. I. 281. This case inferentially is to that effect. The Rhode Island statute is peculiar; it enacts that whenever a complainant shall waive oath, the defendant's answer shall have the same effect as a plea to an action at law. Gen. L. of 1896 p. 826. A plea at law, of course, has no evidential force at all, even against the pleader.
In Massachusetts, the standing rule of court (now Stat. L. of 1883 oh. 223 § 10) excepts from the right to call for answer without oath, bills filed for discovery only, and therefore we are not surprised to find the supreme court of that state deciding that, because it prayed answer without oath, a bill ostensibly for relief as well as for discovery'could not be upheld if no case for relief was presented. Ward v. Peck, 114 Mass. 121; Badger v. McNamara, 123 Mass. 117.
The exception of the statute was not apparent from the report of this last decision, and the supreme court of Rhode Island seems to cite the case as a general precedent in McCulla v. *567Beadleston, 17 R. I. 20, 26. The Rhode Island statute really controlled, as appears from Harrington v. Harrington, 15 R. I. 341, and Congdon v. Aylsworth, supra.
The supreme court of the United States, however, has held that, notwithstanding the broad general rule of court permitting waiver of oath to answer (Equity Rule No. 41), a bill for discovery only cannot be maintained if it waive answer on oath. At least that was Mr. Justice Miller’s opinion in Huntington v. Saunders, 120 U. S. 78. The decision in that case can be upheld on other grounds. It sustained on appeal a demurrer to a bill filed for relief and discovery where no case for relief was made, and it had already been held that such a bill cannot be maintained for discovery alone. McClanahan v. Davis, 8 How. 170. Such also is the rule in this state. Metler v. Metler, 3 C. E. Gr. 270; affirmed, 4 C. E. Gr. 457.
It is evident that Mr. Justice Miller’s opinion has no bearing on the case of discovery prayed in connection with a proper case for relief. This is recognized in the federal courts, for in the later decision of Uhlmann v. Arnhott Brewing Co., 41 Fed. Rep. 369 (in the Pennsylvania circuit), it was held that a defendant must answer the interrogatories of such a bill, although oath to the answer was waived.
In Tennessee, where the act is general in terms, Chancellor Cooper said that to allow a demurrer to so much of a bill as seeks discovery would be to go in the teeth of the statute. Payne v. Berry, 3 Tenn. Ch. 154, 160.
Of course discovery in an unsworn answer is not available collaterally, but as an admission in a pleading it may be useful to a complainant in a pending cause, and there is no sound reason for denying the right to demand it. Indeed every answer implies some sort of discovery, even if only by way of admission of the allegations of the bill, and the decisions of this state abundantly recognize its evidential force in favor of a complainant. Hyer v. Little, 5 G. E. Gr. 443 ; Symmes v. Strong, 1 Stew. Eq. 131; Reed v. Cumberland Insurance Co., 9 Stew. Eq. 393; Walker v. Hill’s Executors, 7 C. E. Gr. 513, 519, a case decided by this court.
*568The statute in this state is very broad. It enacts that
“the complainant may in any bill in chancery pray that the defendant answer without oath, in which case the answer need not be sworn to, and the allegations and statements therein, whether responsive or not, shall not be evidence against the complainant, except on a motion to grant or dissolve an injunction, on which motion the statement and denials in an answer duly sworn to shall have the same effect as heretofore.” Gen. Stat. p. 376 § S3.
It is not necessary to decide what is the effect of this statute on a bill, filed for discovery only, where answer is called for without oath. That question may be reserved until someone shall try the fruitless experiment of exhibiting such a bill. The practice with regard to bills for relief with incidental discovery, has been long settled in chancery. It accords with the practice elsewhere in this country. We see no reason to disturb it, even if it be within our province to do so, which also it is not necessary to decide.
The order appealed from is affirmed.
For affirmance — The Chief-Justice, Collins, Depue, Dixon, Gummere, Lippincott, Ludlow, Van Syckel, Bogert, Dayton, Hendrickson, Nixon — 12.
For reversal — None.