Greensward v. Union Dime Savings Institution

Macomber, J. — In granting the application, said: It cannot be permitted to the plaintiff to ask of the defendants on this examination any question which will tend to establish the fact as alleged in the complaint and in the plaintiff’s affidavit, that the title to the lands mentioned was taken in the name of the plaintiff, and mortgages were executed by him to the 401 corporation for the purpose of enabling the bank to pass a proper examination at the hands of the bank examiner. It has long been enacted by statute that a witness shall not be required to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty.or forfeiture (2 Stat. at Large, 422, sec. 71; Code Civil Procedure, sec. 837). The main purpose of the examination, as disclosed by the affidavit, seems to be designed to establish the ultimate fact of an indictable offense, in which the plaintiff confesses himself guilty with the defendants. It is clearly not competent to compel the defendants to testify to any evidentiary fact, such as the execution of the deeds and the like, which have a tendency to establish what might result in a criminal charge against them, or which will subject them to a penalty. I do not, of course, speak of what the truth is in the case as to the imputation made against the defendants. Parties to a suit, without reflection upon their integrity in making the objection, have the right to be protected from inquiries of the kindand their counsel has, in my judgment, pursued the proper course by motion to limit the examination to legitimate matters, rather than by objection to the several questions as .they may be propounded, and by advice to his clients that they are shielded by the statute from answering them. There may, perhaps, be some difficulty in defining so accurately as to cover all questions upon what subjects the defendants may be examined, but the foregoing does, I think, indicate sufficiently clearly for guidance of counsel the proper limitation of the examination.