case Selwyn against honeywood et contra in chancery January Lincoln inn hall a  defendant be not oblige to disclose any fact which will tend to subject he to  a corporal punishment or a pecuniary penalty or endanger a loss of office sir  Robert honeywood the defendant father be concern in several public commission  abroad and be a great sufferer thereby present a memorial to the late king to  that effect whereupon his majesty signify to Mr haw the then receivergeneral  of the custom to pay to sir Robert honeywood during his office the clear  yearly sum of eight hundred pound out of the profit of his office Mr haw be  afterward remove and the plaintiff Mr Selwyn make receivergeneral in his stead  and the late king signify the like pleasure to he whereupon Mr Selwyn give a  bind to the defendant Mr honeywood in the penalty of ten thousand pound in  trust for his father sir Robert honeywood the condition of which be that Mr  Selwyn will pay to sir Robert the father the yearly slim of eight hundred  pound so long as he shall enjoy the say office or any other in trust for he or  for his benefit Mr Selwyn make these payment regular down to at which time he  be remove from his office and his brother Henry Selwyn succeed he and continue  in the office till when Mr eckershall be appoint in his room and be now in  possession of the receivergeneralship Mr honeywood the trustee bring his  action upon the bind and Mr Selwyn the defendant bring his bill for a  injunction to the proceed at law till the hear of the cause in this court be  obtain and in the same bill he pray to be relieve against this bind Mr  honeywood bring a crossbill to have satisfaction for all arrear of the annuity  down from to the fill the bill pray a discovery whether Mr Selwyn during his  time be any modern report more than a trustee and whether he himself have not  the benefit of the office and also whether Mr eckershall be now any more than  a nominal receiver and whether he do account for the profit to Mr Selwyn who  have not come to a agreement to allow he a salary for his trouble and then  insist that the annuity still ought to be pay by the plain intention of the  bind Mr Selwyn have the real benefit of the office Mr Selwyn by answer swear  that his brother have the office in his own right but as to Mr eckershall  insist that the discovery pray will subject he to the penalty of one or more  act of parliament that he have beard and believe that Mr eckershall have enjoy  the say office ever since it have be grant to he that the defendant Mr Selwyn  be a member in the present parliament and be a member during all the last  parliament and be so before the office be grant to Mr eckershall that as he be  a member of both parliament and as the bind have be full perform by his pay  the annuity as long as he have the office he insist that he be not oblige to  discover whether eckershall receive the profit of the office for the use or  benefit of the defendant or whether he have come to a agreement with  eckershall about the profit modern report er p of the say office the plaintiff  in the crosscause have this answer refer for insufficiency the master report  it to be so and now upon exception to the master report it come on to be argue  Mr attorneygeneral in favour of the answer and against the right of a  discovery insist that as the plaintiff pray to discover whether the defendant  have not the trust or beneficial interest in this office and as the defendant  be a member of parliament and ought not to have any office relate to the  receipt of the king custom hold by a body in trust for he it be prohibit b  several act of parliament that he shall not be compel to make any such  discovery because it may subject he to the confession of a breach of a Act of  parliament that the tenderness of the English law oblige no man to confess  from his own mouth such fact as will charge he either with a forfeiture or a  penalty and this rule receive great sanction in this court for fear of perjury  for a man interest may in many case oblige he to forswear himself rather than  make discovery prejudicial to himself and he cite several case to establish  this general rule as Munn v Stevens before the present chancellor the bill be  bring by the assignee of a bankrupt against Stevens and several other charge  they with usury that they have lend several sum of money to the bankrupt and  have take ten pound per cent interest the defendant answer every part of the  bill and deny the usury and your lordship decree a account of what the  defendant have receive but it be object that if the defendant be bind to  answer general upon take the account they may be oblige to answer thing which  will charge they with usury and your lordship be so tender as to direct that  upon their modern report examination upon interrogatory that account so direct  shall not prevent they from insist that they ought to discover nothing nor  answer any interrogatory which tend to charge they with usury the case of  Champernoon v totness a atk a also before the present chancellor this bill be  bring against the corporation of totness and charge that the corporation have  be gild of a trespass and nuisance in stop the watercourse of the plaintiff  father that the father have promise to forgive the trespass and also to let  the stoppage continue upon a promise from the corporation to vote for he at  the ensue election and the bill pray a discovery whether such a promise be not  make and whether it be perform the defendant demurrer to the bill as pray a  discovery from the defendant of a thing that be contrary to law and which they  ought not to do and which if discover will subject they to prosecution and  your lordship be of that opinion and hold the demurrer good the case of  Wrottesley v Bendish b Peer wms b also before the present chancellor a estate  be give to mrs Bendish during widowhood but in case she marry then it be to go  over to a who bring his bill against her to discover whether she be not marry  she answer part of that question and upon exception to her answer your  lordship order that she shall not be oblige to answer this charge which will  subject her if true to the forfeiture of her estate that the present case be  much strong than any of those because it be pray the discovery of a fact which  if true will make the defendant a transgressor of those act of parliament  which very near concern the public weal attend with that great penalty of  forfeit his seat in parliament during that session Mr solicitorgeneral on the  same side argue that this court will not act like a inquisition to oblige  party to make such discovery as will subject they to penalty and the question  be whether the defendant will not subject himself as a member of parliament to  several penalty and incapacity if he be oblige to answer to the discovery pray  by the plaintiff it be suggest that Mr Selwyn procure this office for Mr  eckershall and that he be no more than a trustee for he this be a breach in  the first place of the statute Edward c against buy and sell of office which  have very general word this be a office concern the receipt of his majesty  custom or revenue and it be charge that the defendant have procure this  deputation or office for Mr eckershall who be only to have a salary and Mr  Selwyn to have the profit and it be a sell within this statute if a man  procure a office for another either for a gross sum or by reserve the profit  or part of they annual modern report er p out of the office indeed in the case  of Bellamy v burrow c case tempt Talb c it be decree that the office of the  clerk of the crown may be grant to one in trust to pay the profit to another  modern report Hardwicke Lord chancellor I do not know whether I shall have  determine that case so far I shall have have great difficulty about it if it  have come before I Murray solicitor general there be two other statute in one  of which this case fail direct and be within the other by construction by the  statute will c sect it be enact that no member of the house of Commons shall  be capable of be a commissioner or farmer of the custom or of hold in his own  name or in the name of any other person in trust for he or for his use or  benefit or of execute by himself or his deputy any office place or employment  touch the farm collect or manage of the custom and if he do so he be declare  to be absolute incapable of sit vote or act as a member of the house in such  parliament the present be a office relate to the custom and clear within this  statute and the defendant swear that he be a member of the last and also of  the present session of parliament so that if he be to discover that this  office be in trust for he he will be render incapable of sit in parliament and  be beside liable to a information or indictment for a breach of this statute  for wherever a statute prohibit a thing general as the present do in the  eightynine section and give no remedy against the transgression the law raise  by construction the punishment to be by information or indictment so that the  court will not oblige he to answer to what will subject he either to a  criminal prosecution or to the loss of his seat in parliament for the latter  be to be consider as a incapacity in the nature of a penalty and cite the case  of read v smith before Lord Hardwicke in chancery there be a bill bring  against read to discover whether a estate do not come to he by dissent from  his father and whether his father do not purchase it be a papist the defendant  plead that he be not oblige to discover and there your lordship be of opinion  that he be not oblige to discover whether he claim from a purchaser who be a  papist for though the Act of parliament do not lie a penalty upon a papist who  purchase yet it prohibit he from take by purchase which prohibition raise a  incapacity in the nature of a penalty as it take from he that liberty of  purchase which every other subject have by the Geo c to incapacitate member of  the house of Commons from enjoy pension from the crown it be enact that if any  person shall have or accept any pension in his own name or in the name of any  other person in trust for he he shall be incapable of be a member of such  house or any other and if such person shall after accept a pension presume to  vote or sit in such house he shall forfeit twenty pound adais for so do to any  person who will sue for the same the present be not a pension strict yet it  may be a question whether it be not so by construction for if the crown give  this office to Mr eckershall under a secret trust to give so much to Mr Selwyn  a member of parliament yearly out of modern report it this may be within the  intention of the statute for it seem to be equal mischievous whether the money  be to be receive from the exchequer immediate or from a officer during  pleasure who receive his office upon that condition and may be turn out as  soon as be refuse to pay such yearly stipend if so Mr Selwyn shall not be  oblige to discover what will subject he to a penalty of twenty pound adais for  so long as he shall sit in the house but there be no occasion to say this be a  pension within this statute because the defendant equity be strong enough upon  the former Act of parliament of the will c S Mr brown on the other side that  the defendant shall be oblige to discover for be be not bring into this court  by Mr honeywood but Selwyn be plaintiff in the original cause and bring Mr  honeywood into this court in order to be relieve against a legal remedy and if  be ask favour here he must receive they upon equitable term which be to make a  open discovery of the truth of the case and it be different from those where a  man be make a defendant and bring adversarily into equity for there the court  will adhere strict to its rule and will not oblige a modern report er p  discovery but to consider this case upon the general rule of the court which  be that a defendant shall not be compel to make discovery of such fact as will  either subject he to criminal prosecution or to loss of property by way of  forfeiture or penalty but this case will not fall under those general rule for  by this discovery pray be will neither subject himself to the loss of property  or to a criminal prosecution but only to a loss of his seat in parliament  which be not a pecuniary loss nor a place of profit but of service and if the  defendant be not to answer the discovery pray he may elude by his own act his  own contract and screen himself from the penalty of his bind this agreement to  pay eight hundred pound ayear out of the office be before his sit in  parliament and his become a member be his own act and if he have resign his  office to another in trust for himself if he be not oblige to discover whether  he have do so he have defeat his own agreement and preserve himself from the  penalty of his bind for perhaps this trust may be prove no otherwise than by  the defendant own oath and to prove that the defendant upon this foundation be  bind to make a discovery be cite the case of Gaskyn v Sydwell a Rep in Eq Eq  Abr a before Lord Talbot the defendant be the representative of sir Robert  nightingale a eastindia director it seem that sir Robert have enter into a  agreement with several other to carry on a illicit trade to the eastindies and  upon a bill bring by one of the partner against the other for a account it be  plead by they that they be not oblige to make a discovery of the agreement  because it will make they liable to the penalty of several act of parliament  make in order to secure a exclusive trade to the eastindia company but this  plea be overrule upon two reason the one that it be informally plead the  modern report other that when person enter into such agreement they virtual  waive the penalty of those several statute that such plea be in its nature  contrary to the agreement itself and if it be to be allow will be a mean to  elude and destroy the contract of the party that all the case cite be where  the discovery will occasion a loss of property as in the case of usury the  security will be avoid by such discovery and the money lose so in the case of  marriage the discovery will have occasion the estate to have go from the party  but here the discovery will only occasion the loss at most of a honorary  office or a place of trust or service and the rule have never be carry so far  the last reason upon which the plaintiff be entitle to a discovery be this the  bill pray a payment of this annuity during all the last session of parliament  and for part of the present and as the statute of William the three only  disable the person from sit in parliament during that session the forfeiture  suggest be at a end and so the defendant may at least discover what be the  nature of the case during the last session he may make discovery of that  without any danger the session be pass Hardwicke Lord chancellor one part of  the defendant answer be that he be not oblige to make a discovery because he  have perform the bind this be explain at the bar to be thus the bind be for  payment of eight hundred pound yearly during such time as colonel Selwyn or  any person in trust for he shall be in possession of the office now it be  insist that here be a period of time since the bind in which Mr Selwyn cease  to have a interest in the office during his brother enjoyment of it to his own  use therefore accord to the construction of the condition if there be any  cessation of colonel selwyn have the office the bind be fulfil and expire and  will not revive because it be only relative to the continuance of the office  without interruption and therefore as the bind be perform he ought not to make  a discovery because it will be a vain thing and if it be clear that the bind  be at a end there will be no occasion for a discovery and the court will not  compel a nugatory thing but here the case be doubtful and if it stand upon  this point I will oblige a discovery to prevent the plaintiff loss in case of  colonel selwyn death and it may be a nice question upon the foot of collusion  to prevent the party have advantage of the bind the other and material part of  the defence be that he be not oblige to make discovery for fear of subject  himself to several penalty the question be not now before I to punish modern  report er p party for breach of a Act of parliament or for enforce a Act of  parliament which ought to be strict and sacred observe for that be the  business of the parliament or of the judge if a indictment will lie upon it  the house of Commons be the proper place to enforce a discovery of this sort  and not for this court from the party own mouth any otherwise than such  discovery relate to person who claim right to or out of such office and the  question in the modern report present case be whether the plaintiff have a  right to this discovery it be a establish rule that no man be oblige in a  court of equity to discover matter which may subject himself or tend to  subject himself to any penalty whether it be loss of property or office or  which may subject himself to any punishment of another sort for in such case  the defendant may either plead against such discovery or insist upon it by way  of answer and the consideration be whether this case be within that rule here  be two act of parliament for I shall lie the pension Act of the Geo c out of  the case within which it be say the defendant will be bring under incapacity  by those statute if he be to make the discovery pray for the first statute be  the Edward c relate to the sale of office and it be insist upon that it be  contrary to that Act of parliament for any person to accept of a office or to  have a office upon term of pay either a certain sum of money or the profit of  that office to another because such contract be in the nature of a  consideration give for the have or obtain such office but whatever the law may  be upon this point I think Mr Selwyn the defendant can enter into that  consideration though that shall be the construction for Mr Selwyn be not the  officer but Mr eckershall if a bill be bring against Mr eckershall to discover  whether he hold that office in trust or by contract to pay over the profit or  part of they or a gross yearly sum be may well insist upon it that that will  be to make a discovery tend to the forfeiture of his office but Mr Selwyn can  insist upon that Act of parliament for the only statute he can insist upon be  the will c S in which it be enact that no member of the house of Commons shall  be capable of hold in his own name or in the name of any other person in trust  for he or for his use or benefit or of execute by himself or deputy any office  in the custom and if he do so he be declare to be incapable of sit as a member  in that parliament it be insist that this discovery will subject the defendant  to this penalty of the loss of his seat in parliament for that session the  plaintiff agree to the general rule that a defendant shall not discover what  shall direct charge himself with a penalty or with evidence of it but they  argue that the defendant be not within the rule for three reason first that  though the rule be true upon common case of bill yet this differ from it the  discovery be pray upon a crossbill c second that the exclusion from a seat of  parliament be only a place of honour or service and not of profit be not such  a loss of property or such a penalty as will screen the defendant from a  discovery the three reason be that he may discover what relate to the session  which be pass without any danger for the exclusion from sit in parliament be  only during that parliament the forfeiture be expire with the session as to  the first reason that do not differ the case at all whether the discovery be  pray by original bill or crossbill and I will clear this by a familiar  instance suppose a original bill be bring for a specific performance of  article between modern report two party and then the defendant bring a  crossbill to be relieve against the say agreement and for a discovery shall  charge matter to show that the agreement be corrupt and against the statute of  usury the defendant in the crossbill may insist by his answer that he be not  oblige to answer such bill this bring I to the merit of the question and to  the second reason give that this be not such a discovery as will subject the  defendant to what be proper a punishment or penalty and they define those to  be a loss of estate or property or some office that be beneficial and  profitable or some corporal punishment that the loss of a seat in parliament  be not punishment nor such a loss of property as be within the rule for a seat  in parliament be not a office of profit though they admit it to be a office of  service and of high trust and honour but I be of opinion that a incapacity of  sit in parliament be a punishment within that rule for it be often inflict as  a punishment and there be act of parliament which inflict absolute exclusion  from parliament as punishment which modern report er p show they be to be  consider as such and inflict as a punishment upon the violator of this very  statute will c I remember a case wherein the point be contest that a seat in  parliament be a service and not a privilege the case I mean be that of Ashby v  white a salk salk Mod state trial holt brown case in parliament ray Ent a  where the question be whether a action will lie against the returningofficer  for the refuse to take the vote of a person qualify and Mr Harley the speaker  of the house of Commons oppose the lie of a action at law because the sit in  parliament be a service and to be sure it be so it be to serve the crown in  the great meeting of the nation but it be also a service attend with privilege  as many service be the duke of Buckingham who be behead in Henry the six time  for high treason hold six manor in Gloucestershire by grand sergeant to  execute the office of highconstable of England this office be as to the crown  a service but in all other respect attend with privilege and of great dignity  and such a office as the invasion of it may be punish by a action and damage  recover as to the three reason to induce a discovery for at least part of the  time for which the annuity be grant it be say that there have be two  parliament hold in the period of time for which the annuity be Payable the  grant of this office to Mr eckershall be in during the last parliament which  do not expire till that the penalty inflict by the will c be from sit in that  parliament and therefore the defendant may without danger discover what be the  nature of the grant of this office during the last parliament which be expire  and if the defendant have not also set forth that he be a member of the  present parliament as well as of the last I shall have think he oblige to have  make a discovery but suppose I shall compel the defendant to make a discovery  for the last parliament and protect he from make any for the present he will  be oblige to set forth modern report whether Mr eckershall at the time of take  the office do not take it in trust for the defendant and whether he do not  account for the profit to the defendant during the last parliament that  evidence will be sufficient to prove that the office be hold in trust for he  even during the present parliament whereby he will lose his seat in the  present parliament and will plain incur the penalty of the statute of William  the three by his own confession which this court will not oblige he to do for  such confession may be read against he in the house of Commons who will  doubtless upon that exclude he from their house during this session and I  shall also have the same thing insist on at the hear of this cause that such  office be hold in trust for he even during this session of parliament and I  shall take it to be sufficient evidence for if a man admit that a office be  grant in trust for he and that it continue so for seven year it will be very  strong proof that it be still hold in trust for he as to what have be say that  a indictment will lie against Mr Selwyn for a breach of this statute if it  shall come out that this office be hold in trust for he of this I be very  doubtful for the statute be not that no such office shall be so grant and  though a indictment or information may lie against a member of parliament for  accept such office in the custom and exercise it yet as Mr Selwyn be only a  beneficiary and trust of the office I do not see what indictment or  information can be frame upon it upon the whole I be of opinion that upon the  foot of the statute will c the defendant be not oblige to discover the fact  pray nor evidence of the fact the plaintiff may make proof by other person of  the fact but be not entitle to the defendant confession therefore such  exception to the master report must be allow