In re Kip

The Chancellor:—By the act under which these proceedings were instituted, it was the intention of the legislature to give to the master or other officer power to take testimony and to compel the witnesses to give evidence in the same cases and to the same extent that the court would be authorized to compel the witness to testify on the trial of the cause.[1] It does not authorize the examination of a witness who would not be compelled to testify on the trial. The witness is not obliged to criminate himself, or answer any question which he would not be bound to answer if examined in open court. The provision in the second sec — 608 — tion of the act, (1 Rev. Laws, 455,) that the officer shall in-elude in the deposition any answer or declaration of the witness which shall be required to be included by either party, does not deprive the officer of all discretion in deciding whether the witness shall be compelled to answer the question proposed. The legislature never intended to establish an inquisition, by which witnesses should be compelled to criminate themselves, or to disclose secrets in which the parties to the examination had no interest. But as it is impossible for the officer to understand the precise bearing the testimony will have on the cause, it is made his duty, if the witness consents to answer the question proposed, to insert such answer in the deposition, leaving the relevancy or materiality of the testimony to be decided upon by the court before whom the cause is tried. If the testimony is calculated to criminate the witness, render him infamous, or to subject him to a penalty or forfeiture, the officer has no right to compel him to testify.[1] So *if the master is satisfied the testimony can have no possible bearing upon the questions which may arise in the cause, he ought not to compel the witness to answer, especially where a reasonable objection is urged by him. The officer must necessarily have some discretion on this subject, and he may require the party on whose application the examination is made to explain the nature of the litigation, so far as to enable him to judge whether such applicant is proceeding in good faith to perpetuate testimony against the adverse party, or is, under that pretence, only fishing for testimony to be used against the witness, or for other purposes. On this subject the officer must be permitted to judge; and he is not compelled to commit the witness for refusing to answer, if he thinks the question ought not to be answered. If the answer to a question cannot injure or prejudice the witness, the officer should require and corn — 609 — pei him to testify, unless he is satisfied the evidence could not have any possible bearing upon the subject in controversy. By the charter of the Dutch Church in New York, granted in 1696, and confirmed by the act of the 17th of March, 1784, (1 Greenl. ed. of laws, 67,) the minister, elders and deacons, and all other communicants of that church, and their successors, are corporators, under the name or style of “ The Minister, Elders and Deacons of the Reformed Protestant Dutch Church in the city of New York.” The witness is a corporator and also an officer of the corporation. Although he may not have any personal interest in the suits now commenced, he has an interest in the question to which it is proposed to examine him before the master; as the title to the churches in which he is a pew owner, depends on the same question substantially as that which arises in the present suits. The questions to be decided in this case are: 1st. Is a witness compelled to testify to matters relevant to the issue, in a cause to which he is not a party, when his answers will subject him to a civil suit; or may be used against him in a suit in which he is interested ? 2d.. Is a member of a corporation aggregate so far a party to a suit brought by or against the corporation as to excuse *the corporator from giving testimony in favor of the adverse party ? Both of these questions have been frequently agitated in the courts of this country and of England, and the decisions in relation thereto have not been uniform. Another question has often been raised, as to how far, and in what cases, corporators may be witnesses in behalf of the corporation; but that question does not arise here. It was once doubted in England whether a witness could be compelled to answer any question where the answer might subject him to a civil suit, or charge him with a debt. Two nisi prim decisions of Lord Kenyon, and a dictum of Chief Justice Pratt are referred to by Peake, to — 610 — show that a witness is not bound to answer under such circumstances. (Peake’s Ev. 184.) By referring to Peake’s note of the case of Bain v. Hargrave, it will be seen that the question put to the witness was not relevant to the cause then on trial, and was only intended to ascertain whether the witnesses did not owe money to the plaintiff. Lord Kenyon said he would not compel the witness to answer any question which might tend to charge himself with the debt.[1] And in Raines v. Towgood, also referred to by Peake, the witness was excused from answering the question, as his answer might subject him to a penalty of 5001 under the act to prevent stock jobbing. In the case before Chief Justice Pratt, (1 Strange, 406,) the witness was compelled to answer, although it went against his interest; but the chief j ustice intimated that he would not have compelled an answer under other circumstances. And in Title v. Grevett, (2 Lord Raymond, 1008,) Holt, Chief Justice, said a man who had conveyed land might be a witness to prove he had no title, for he testified against himself, but he was not compelled to testify. The loose dicta in the two last cases, and those two nisi prius decisions of Lord Kenyon, are all the authorities relied on by Peake, to support this position; and it is remarkable that the case of Bain v. Hargrave, the only one in which the question is said to have been raised, is contradicted on the authority of Lord Chancellor Erskine, (1 Hall’s Law, I. 280.) He says that for 27 years he had not been prevented from attending the courts by *any indisposition or bodily infirmity, and during all that time he never knew the objection taken that the answer to an interrogatory would render the witness responsible in a civil suit; that he was counsel in the cause stated in Peake’s note, but had no recollection that any such decision was made. In 1806, this question came before the House of Lords in consequence of the proceedings in Lord — 611 — Melvill’s case, and the opinion of the twelve judges was required thereon. Their opinions are briefly alluded to in a note to the last London edition of Phillips’ Evidence, (1 Phil. Ev. ed. of 1829, p. 272, n.) Pour judges were of opinion that the witness was not bound to answer. The other eight judges were of the contrary opinion; and in which they were supported by Lord Eldon and Lord Chancellor Erskine. I think these opinions, supported as they are by that of Lord Mansfield, are conclusive to show that in England a witness, who is neither nominally or substantially a party to the suit, is bound to answer any question pertinent to the issue, where his answer will not criminate himself, or subject him to a penalty, or to some loss or injury which is in the nature of a penalty or forfeiture. (See 1 Hall’s Law, I. 223,) In consequence of the difference of opinion among the English judges, an act was passed declaring the law to be in accordance with the opinion of the eight judges and of the Lord Chancellor and Lord Eldon. (Statutes at Large, May, 1806.) The same question has frequently been agitated in this country, and the decisions in the different states have not been uniform. In most of the states where the question has been raised, the witness has been compelled to testify. In Connecticut it has been decided that the witness was not compellable to testify against his own interest. (2 Root’s Rep. 406, 528; 3 Conn. Rep. 528; Kirby’s Rep. 203.) A similar decision was made in the state of Tennessee, (Cook v. Corn, 1 Overton’s Rep. 340.) In Pennsylvania,- Maryland, Kentucky and Louisiana, it is settled that a witness is bound to answer a question pertinent to the issue, although such answer may subject him to a civil suit. (Baird v. Cochran, 4 Serg. & Rawle, 397; Taney v. Kemp, 4 Harris & John. 348; Gorham v. Carrol, 3 Little’s Rep. 221; The Planter's *Bank v. George, 6 Martin’s Rep. 670.) Derbigney, J., who delivered the opinion of the court in the last case, says their decision is not founded on the ancient law of Louisiana on that subject, which was abrogated by — 612 — the establishment of a free government, instead of the despotism by which the country had previously been governed. But he founds the decisions of the court upon the principles recognized in those countries where liberty directs the administration of justice; and he refers to the opinions of the English judges and Chancellor on Lord Melvill’s witness and indemnity bill. In the case of The Executor of Hawkins v. Sumpter, (4 Dessaus. Rep. 103, 446,) the Court of Chancery of South Carolina compelled a witness, on a subpoena duces tecum, to produce books in his possession, although he alleged that their production would enable parties to recover against him, as the bail for a deceased sheriff, whose estate was insolvent; and this decision was affirmed on appeal. In Appleton v. Boyd, (7 Mass. Rep. 131,) the Supreme Court of Massachusetts refused to compel a witness who was jointly interested in the event of the suit, as the partner of the plaintiff, to give testimony against his interest. But on examination of that case, it will be found perfectly consistent with the opinion of the majority of the judges in Lord Melvill’s case; for the object of the defendant was to establish the defence of usury; which was in the nature of a penalty or forfeiture. The case of Mauran v. Lamb, in the Supreme Court of this state, (7 Cowen’s Rep. 174,) was a similar attempt by the defendant, to establish a defence of usury by the testimony of the real plaintiff in the suit; where the action was nominally in the name of another person, but for her sole benefit. On no principle therefore could she be compelled to testify to facts which would subject her to a forfeiture and defeat her action. The question now under discussion was not. intended to be decided in that case. Upon a full examination of all the authorities on this subject to which I have been referred, or which I have been able to obtain by my own researches, I have arrived at the conclusion, that a witness, who is neither nominally nor substantially a party to the suit, is not exempted from giving evidence, *although that evidence may be used against him in a civil suit, unless the disclosure will subject him to some loss or disadvantage in the nature of a penalty or forfeiture. If the party to whom the witness makes himself responsible by his testimony could, by a bill of discovery, obtain the same disclosure to be used directly against the witness himself, it would be unjust to deprive such party of the benefit of the testimony against a third person. In such a case the answer of the witness to a bill of discovery could not be read in evidence in a suit against the third person; and the only way to obtain the testimony is to examine the interested person as a -witness. The conclusion at which I have arrived on the first point, renders it necessary to examine the question whether Kip is so far a party to the suits as to excuse him from testifying. In other words, could his answer to a bill of discovery be read in evidence against the corporation of which he is a member ? The case of The King v. The Inhabitants of Woburn, (10 East’s Rep. 395,) is relied upon to show that corporators are the real parties, to the suit, and are excused from giving testimony against the corporation. That was not a proceeding against a corporation, and the witness was not excused on the ground that he was a corporator. It was a proceeding under the English poor laws, where the appeal is carried on by the inhabitants of the parish in the names of their officers. The costs of the suit, and other expenses of the pauper, are charged upon the inhabitants, actually rated in proportion to their property. They are the real parties, and the expense falls directly upon them. In that case, Le Blanc, Justice, says, “ If the sessions had been aware, at the time, of the extent of the question, there would have been no difficulty; for if the witness was rejected on the ground of his being a party to the suit, his declaration of any facts touching the matter in issue would necessarily have been evidence against him.” And in the case of The King v. The Inhabitants of Hardwick, (11 East, 578,) the same court decided that the rated inhabitants were the real parties to the appeal, and that the declaration — 613 — of a rated inhabitant of one parish might be given in evidence in favor of the adverse parish. *These eases do not, therefore, depend upon the principles applicable to incorporations, as the declarations of corporators, even officers of a corporation, are not evidence. (Hartford Bank v. Hart, 3 Day’s Rep. 491; Magill v. Kauffman, 4 Serg. & Rawle, 317.) In the Bank of the United States v. Deveaux, (5 Cranch, 61,) the Supreme Court of the United States decided that the corporators, and not the corporation, were to be considered the parties, in determining the question of jurisdiction; and that an averment that the complainants were citizens of Pennsylvania, was an allegation that all the stockholders of the bank were citizens of that state. But in the case of The Bank of the United States v. The Planters’ Bank of Georgia, (9 Wheaton, 904,) they decided that the corporation could be sued in the United States’ courts, although a sovereign state, which could not be sued, was one of the corporators. These cases depended upon the construction of the constitution and laws of the United States, in relation to the jurisdiction of the federal courts. Even on that question the judges were not unanimous; but they exemplify the principle, that in a case of doubt a good judge always decides in favor of his own jurisdiction. Neither of these decisions had any reference to the question whether the corporators were to be considered parties to the record so far as to prevent their being witnesses. I believe it is now the practice of all courts to admit corporators to testify in behalf of the corporation where they have no personal interest in the controversy; and against the corporation where the witness does not object. But they are excluded from testifying where they have a direct personal interest in favor of the party calling them, in virtue of the corporation or otherwise. The freemen of our cities are corpora-tors, and have an indirect interest in almost every suit brought by the corporation. But they are admitted as competent witnesses, and are even permitted by statute to serve as jurors, which certainly could not be allowed if — 614 — they were considered parties to the suit; as it is a universal rule of natural law that no man shall be a judge in his own case; and jurors are judges of the facts. In the case under consideration, it is even doubtful whether the members of the Dutch Church "“have such a direct interest in this controversy as to render them incompetent witnesses for the corporation. The only case which I have been able to find in which the precise question now presented has been decided, is The City Bank of Baltimore v. Bateman, (7 Har. & John. 104.) In that case the Court of Appeals in Maryland decided that the president of a moneyed corporation, who was a stockholder therein, might be called as a witness for the adverse party, and compelled to testify against his interest. An express provision to that effect is made in the late revision of the laws in this state, (2 Rev. Stat. 405, 407.) The note to this provision, in the report of the re-visors is, that it is intended as declaratory of the rule believed to exist, but sometimes questioned. (Revisors’ Rep. pt. 3, ch. 7, tit. 3, sect. 96.) The notes of the revisors are not considered as authorities settling what the law previously was; but they may properly be referred to for the purpose of showing that a particular section was not introduced by them into the statutes as containing a new principle. It was suggested by the counsel for the corporation that the evidence sought from this witness might be obtained by a bill of discovery; but if I am correct in supposing the declaration of the corporator would not be evidence against the corporation, I apprehend his answer to such a bill could not be read in evidence against them. (Vermilyea v. The Fulton Bank, 1 Paige’s Rep. 37.) I think the witness was not so far a party to the suits in this case as to excuse him from testifying. The master was therefore right in requiring him to testify notwithstanding his objection. He was legally and properly committed for refusing to be sworn and give evidence in relation to the subject matter of those suits; and he must be remanded to — 615 — the custody of the sheriff, on the warrants of commitment, until he submits to be sworn and give evidence to be used in those suits. Footnotes [[1]] 2 R. S. (4th ed.) 647, sec. 60. [[1]] See Southard v. Rexford, 6 Cow. 254, 259; People v. Mather, 4 Wen. 229, 250, 251; United States v. Burr, 1 Rob. 207, 8, 242 to 245; see also 2 Cow. & Hill’s Notes to Phil. Ev. 736-746. [[1]] In New York a witness cannot refuse to answer any question on the ground that it will subject him to a civil suit. 2 R. S. (4th ed.) 652, sec. 101, Cook v. Spalding, 1 Hill. 588.