A person made a party defendant in a bill, who is not compellable to answer, and against who?» no relief is sought, may have the bill dismissed as to him.
The bill stated a will made by the deceased, containing dispositions of the testator’s property, which went to the Defendant, Mark Patterson, or at least a considerable part thereof, in case of the deceased’s intestacy, it stated that Mark Patterson and Sellars (who it did hot appear had any interest in the destruction of the will) had fraudulently, and with intent to secrete the same, gotten possession of the said will, and secreted it. Sel-lars demurred, because the charge iti the hill, if true, subjected him to a criminal prosecution, and that he was therefore not bound to answer, and there was no relief prayed in the bill as to him.
it was argued at the bar, though it might be true, that he was not compellable to answer, that was no proof but that he might be continued in Court — for if the Com-, piainant could prove the charge, he might have a de.cree against Sellars, notwithstanding he was not obliged to. answer ; and for this was cited Mitfonl 64, 65. 2 Ves. 246. E contra, it was argued, that it was admitted he could not be compelled to answer, and that as the bili prayed no relief against him, there could be no reason lor keeping him any longer in Court.
It seems a little contradictory, that this man might be compelled in a Court of Daw to answer *193this charge upon oath, as he might be by 1777, c, 2. s. 62, and that a Court of Equity should not have as large a power forthe discovery of such a fraud ; hut with some reluctance the Court allowed the demurrer, and dismissed the bill as to Sellars — for no relief being prayed in the bill against him, and be not bring compellable to make a discovery, it was úseles to keep him longer in Court.