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well have been discharged and exercised by persons not connected in any manner with the Legislature. The result of its labors was never one necessarily to come to the knowledge of that body, nor to form part of its records in any manner whatever."
added the fact that the proceeding is conducted in
posed of members of that body, but it was to do
jury to the person, and in Carson's an injury to
In Osten v. Morris, Pennsylvania Common Pleas, April 17, 1885, 42 Leg. Int. 171, it was held that the maker and seller of a machine, chargeable with negligence in its construction, is not liable to a third person for an injury sustained in consequence thereof while it is being operated by the purchaser. The court said: "Where there is negligence in a maker of a machine, he is not liable to a third person for an injury received whilst the machine is being operated by a purchaser. The causal connection is broken. Whart. Neg., § 438. Upon the argument a number of cases were cited in support of this principle. We will refer to three of them. Collis v. Selden, L. R., 3 C. P. 495, was where a man who negligently hung a chandelier in a public house was held not to be liable to a stranger upon whom it fell. Justice Byles says: 'This declaration charges negligence, carelessness and improper conduct. and improper conduct. Negligence alone will not do, unless some breach of duty is shown.' In Losee v. Clute, 51 N. Y. 494; S. C., 10 Am. Rep. 638, the defendant sold to a corporation a steam boiler negligently made; it exploded and injured the property of the plaintiff, for which he brought suit. It was held that there was no right of action, on the ground that 'they owed him (plaintiff) no duty whatever at the time of the explosion, either growing out of the contract or imposed by law.' Spencer v. Campbell, 9 W. & S. 34, was an action against the owner and operator of a steam boiler to recover for injuries caused by its explosion. The plaintiff offered in evidence the deposition of its maker, which was objected to by the defendant on the ground that the contract for the boiler was made with him, and it was furnished by him, and that he, the maker, would therefore be liable to an action by the plaintiff Campbell. The evidence was admitted under exception. Judge Gibson thus disposes of this exception: 'It is just as clear that the plaintiff in this suit could not maintain an ac tion against either Boyle, the deponent, or Meixsell, his quondam partner, with neither of whom did he stand on any relation of privity. Boyle therefore was disinterested.' In opposition to this principle there have been cited the cases of Godley v. Hagerty, 8 Harris, 387; Godley v. Carson, 2 Casey, 111; Elkins v. McKean, 29 "P. F. Smith, 493; and Deitel v. Hartford Boiler Ins. Co., C. P. No. 3, not reported. The first two cases arose upon the same state of facts. The fall of a warehouse in the oc
first case, and a majority in the second, held the
In case 3 it was said: "The witness could not be required to deliver inculpatory evidence, and it would present a very different question from that before us if her admissions made under these circumstances were resisted in a trial against herself. But if she chose to testify against the defendant he cannot object, because the evidence criminates herself. It was a privilege personal to herself to testify or not. If she waived it, the prisoner connot interpose it to shield himself from the damaging effect of her testimony."
A counsel has no right to argue the witness' objection. In King v. Adly (7), a witness for the prosecution, having objected to answering a question, because it might subject him to a prosecution, the attorney-general, who appeared for the defendant, rose to support the objection. Lord Tenterden, RULES AS TO THE PRIVILEGES OF WIT- C. J., who presided, refused to allow this, but the counsel for the prosecution having argued that the witness was compellable to answer, he allows the attorney-general to reply. But further on in the trial the chief justice said: "I think I am wrong in having allowed the attorney-general to argue the point at all. It struck me at the time that having heard argument on one side I ought to hear it on the other also. But the privilege is that of the counsel, not of the party, and I think therefore that counsel have no right to interfere for the purpose of excluding an examination, to which, as against their client, there is no objection.”
RULE. The objection, within the foregoing rules, is personal to the witness, and cannot be availed of by another (1) (a), nor can another than the witness complain that his privilege has been improperly denied (2) (b). But otherwise where it has been improperly allowed (c).
1. An application is made that A. shall answer certain interrogatories. B., as attorney for A., replies that he believes the questions will criminate A. This is no answer to the application (3).
2. A. is indicted for stealing. W., a witness, is asked by A. if he was not the thief. The public prosecutor objects that the answer may criminate W. The objection of the public prosecutor is not relevant (4).
3. W. being on trial for a crime, A. is called as a witness. A question is put to A., to which W. objects to A.'s answering, on the ground that it may criminate A. The objection of W. is not relevant (5).
In case 2 (6) it was said: "The only question raised upon this bill of exceptions is whether the defendant had a right to interpose the objection, and require the judge to state the rule of law on the subject, independent of any objection taken by the witness himself. Upon this point the law is very well settled that the privilege of declining to answer questions propounded to a witness, on the ground that the answer will have a tendency to expose him to personal liability or to punishment on any criminal charge, is the privilege of the witness, and not of the party against whom he is called to testify."
(1) State v. Wentworth, 65 Me. 234 (1875); State v. Foster, 23 N. H. 354 (1851); Janvren v. Scammon, 29 id. 290 (1854); Southard v. Rexford, 6 Cow. 258 (1826); Newcomb v. State, 87 Miss. 383 (1859): East v. Chapman, 1 Mood. & Malk. 47 (1827); Thomas v. Newton, id. 48, note (1827).
(2) State v. Foster, 23 N. H. 354 (1851); Macarthy v. Bond, 9 La. 351 (1836).
(8) Osborn v. London Dock Co., 10 Ex. 698 (1855).
(4) Ward v. People, 6 Hill, 144 (1843); Com. v. Shaw, 4 Cush. 594 (1849).
the privilege, and require the court to exclude the evidence on that ground. The witness may waive it, and testify in spite of any objection coming from the party or his counsel. If ordered to testify in a case where he is privileged, it is a matter exclusively between the court and the witness. The latter may stand out and be committed for contempt, or he may submit; but the party has no right to interfere or to complain of the law."
1. In an action by C. against D., a witness called by C. is permitted by the court to refuse an answer to a question put by D., on the ground that it is a criminating question. The decision is improper, for it is not a criminating question. D. may make this a ground for error in the rejection of testimony (9).
In case 1 the court said that this differed from Illustration B, as the party had been improperly deprived of testimony to which he was entitled.
It has been held in England that when a witness refuses to answer, and without his evidence the prosecution must fail, and the judge commits him for contempt, he will, to prevent a failure of justice, discharge the jury (10).
RULE. Where a witness testifies voluntarily to one circumstance in a criminating transaction he must answer all inquiries concerning the same transaction (a), but not as to other and unconnected criminating matters (11) (b).
1. A witness, without objecting, testifies that he has been convicted of the forgery of the bill to which the inquiry relates. He is then asked, "who passed the bill," but refuses to answer. His refusal cannot be sustained (12).
2. A., a man, is asked if he knows of B., a fe
(9) Cloyes v. Thayer, 3 Hill, 564 (1842); Clark v. Reese, 35 Cal. 89 (1868); Close v. Olney, 1 Denio, 320 (1845).
(10) R. v. Charlesworth, 2 F. & F. 327 (1860).
(11) "If a witness purposely states a part of a transaction, such as will make for him or the party calling him, even though but slightly, he should not be protected, but where it is apparent that he intends to disclose nothing that may require his going further, and what he does disclose may well enough stand without affecting the point at issue, and moreover is drawn out by questions where the full effect of the answers cannot readily be seen by him, his privilege should not thereby be taken from him. If it is it can be worth but little, for very few witnesses, without the fullest instruction, could, upon the spur of the occasion, readily apprehend the effect of their answers to many questions the shrewd counsel might put, while the counsel themselves might be well aware that the answers would lead directly to the point desired." burn v. Odell, 30 N. H. 546 (1855); Pleasant v. State, 15 Ark. 624 (1855); People v. Lobman, 2 Barb. 216 (1848); Dixon v. Vale, 1 C. & P. 278; East v. Chapman, 2 id. 570; Chamberlain v. Wilson, 12 Vt. 491 (1840); Brown v. Brown,5 Mass. 320 (1809); Mayo v. Mayo, 119 Mass. 290 (1876); East v. Chapman, 1 Mood. & Malk. 47 (1827). It seems to be the rule now in England that the witness is entitled to claim the privilege at any stage of the inquiry, and it makes no difference that he has already answered the inquiry in part. R.v. Garbett, 2 C. & P.474 (1847); Paxton v. Douglass, 18 Vesey, 239 - contrary to the American rule, as stated above. It has been ruled in Massachusetts that a judge is not required to instruct a witness that if he wishes to avail himself of his privilege he must raise the objection before answering any thing. Com. v. Howe, 13 Gray, 26 (1859). But in the same State it was subsequently held that when it appears to the judge that the witness did not understand that if he answers upon any subject having any tendency to criminate him he must answer every thing about it, the judge may allow him to claim his privilege afterward, and strike out his previous testimony. Mayo v. Mayo, 119 Mass. 290 (1876).
(12) Com. v. Price, 10 Gray, 472 (1858).
male, having had sexual intercourse with any one during a certain time. A. answers that he does. A. cannot afterward refuse the name of the person with whom such intercourse was had (13).
3. K. was indicted for body-snatching. M. being called, testifies that he knows K. to be innocent. M. cannot refuse to answer why he knows it, even though it may criminate him (14).
4. In a prosecution for selling spirituous liquors without a license, F., the defendant's clerk, testifies that he had sold rum at the store, but never brandy. He is then asked whether he did not, on a certain day, sell T. some brandy. He refused to answer for fear of criminating himself. His refusal cannot be sustained (15).
5. In an action for divorce from a wife, a witness testifies that he knows that the wife has committed adultery. He must go on and tell with whom, even though it may be himself (16).
In case 1 it was said: "He must have been fully aware of his privilege from the beginning, and should have claimed it earlier in order to have secured it. If a witness consents to testify at all, so as to criminate himself as well as the defendant in the matter on trial, he must answer all questions legally put to him concerning that matter. He cannot be allowed to state such facts only as he pleases to state, and withhold other facts. If he could be allowed so to do injustice might be done to the defendant, either by the keeping back of testimony which would tend directly to his acquittal, or which would so discredit the witness as to induce the jury wholly to disregard his previous testimony.
In case 2 A. might have refused to answer the first question, because he might be the man himself, and the answer was a link in the chain. But having furnished that link, he could not refuse to furnish more. "Can the witness," said Oakey, J., "proceed to state material facts bearing upon the case, and favorable to one party, and when crossexamined by the opposite party in reference to the same subject, decline answering by reason of his * * * It privilege not to criminate himself? would seem quite reasonable to go somewhat further than the present case requires, and adopt the broad principle that the witness must claim his privilege in the outset, when the testimony he is about to give will, if he answers fully all that appertains to it, expose him to a criminal charge, and if he does not he waives it altogether."
In case 3 it was said: "The witness is not to be compelled to answer any question if the answer will tend to expose him to a criminal charge. But if he state a particular fact in favor of the respondent, he will be bound on his cross-examination to state all the circumstances relating to that fact, although in so doing he may expose himself to a criminal charge. We shall not compel the witness to state that
(13) Foster v. Pierce, 11 Cush. 437 (1853).
(14) State v. K., 4 N. H. 562 (1829).
(15) State v. Foster, 23 N. H. 353 (1851).
(16) Brown v. Brown, 5 Mass. 320 (1809); Southard v. Rexford, 6 Cow. 258 (1826).
he knows the respondent to be innocent if a full account of his knowledge on that subject will tend to furnish evidence against himself. But if he chooses to testify that fact, we shall permit the attorney-general to inquire how the witness knows that fact, and compel him to answer the question. It is clearly inadmissible to permit a witness to give a partial account of his knowledge of a transaction, suppressing all the circumstances, whether the evidence is to be used in favor of or against the State." In case 4 it was said: "Where a witness discloses a part of a transaction in which he was criminally concerned, without claiming his privilege, he is then bound to go forward and state the whole. Especially ought this to be so where the facts disclosed are in favor of the party calling him. In this case the witness had testified to facts tending to show that the testimony of the government's witness was untrue. He also testified that he had sold rum for the respondent at the store, but did not recollect ever to have sold brandy. But when the question was put to him directly, if he did not himself that afternoon, after his brother had gone away, sell Jefferson any brandy, he then for the first time claimed his privilege. This he could not do, having told a part of the truth, he should disclose the whole."
1. A witness has testified, without objecting, that she has had criminal connection with A. She is not afterward obliged to answer whether or not she has had criminal connection with B. (17)
2. A. testifies that he is destitute of property. He then admits that he had considerable money several years previous. Being thereupon asked what has become of it, he declines to answer, as it may criminate him. His refusal at this stage is proper (18).
In case 1 it was said: "The rule that a witness is not obliged to criminate himself is well established. It is contended however that if the witness
waives that privilege when testifying to one fact in the cause, he cannot claim it while testifying to any other fact material to the issue. If he consents to testify to one matter tending to criminate himself, he must testify fully in all respects relative to that matter, so far as material to the issue. If he waives the privilege, he does so fully in relation to that act. But he does not thereby waive his privilege of refusing to reveal other unlawful acts wholly unconnected with the act of which he has spoken, even though they may be material to the issue. His consent to speak of one criminal act cannot deprive him of that protection which the law affords him, so far as respects other criminal acts not connected with it. Thus the prosecutrix was not obliged to answer whether she had an illicit connection with another man."
a transaction, and refuse to disclose the rest on the ground that he is thus privileged. But this does not seem to be a case of that character. The witness was called to prove the fact of his poverty, and to this he speaks fully. He is then inquired of whether he had not property to a considerable amount in some previous years, and admits that he had. Then comes the inquiry how he had disposed of that property; and this, although not entirely independent of the facts he has testified to, is so far distinct that we think he was authorized to stop there, and claim his privilege, notwithstanding he had given some testimony on the subject. In fact that seems to be the proper place in which to make the claim. When asked in the first place if he was destitute of property, there is no obvious propriety in his alleging that he could not disclose that without subjecting himself to a prosecution. If he had gone on to speak in part of the disposition that had been made of his property, it might have presented a different case.
JOHN D. LAWSON.
SENATOR TITUS NON-IMPRISONMENT BILL,
HE question of the abolishment of imprisonment as a means of enforcing judgments in civil ac tions, has for several years been before the Legisla ture of this State; and as it is probable that it will be disposed of in some mauner at the present session, it seems desirable to call attention to the generally defective condition of the existing law of arrest and imprisonment, as worked out by judicial interpretation of the statutes relating thereto, and of its impolicy and inhumanity as a system of coercive or retributive justice.
The subject of arrest is one of great importance, involving as it does the liberty of the citizen, which in a free government is the vital principle of the Constitution. The Senate, sensibly impressed with the gravity of the question, has for four successive years (includ ing the present) passed at an early day the bill introduced by Seuator Titus, abolishing imprisonment ou fiual judgment, except in cases of contempts of court and actions for working women's wages. Definite legislation on the subject has been defeated heretofore however by the dilatory action of the successive judiciary committees of the House, in reporting the Senate bill when referred to them.
The charges to be made against the existing law of imprisonment on final judgment in civil actions, are: First, That it fails in many cases to accomplish the object for which it was created.
Second, That in its present condition it is grossly inconsistent and unjust.
Third, That it is unsound in principle, and permits a man to be deprived of his liberty without a trial by jury.
Fourth, That it is impolitic and inhumane. Fifth, That it is unsound on economic grounds. Sixth, That it is subject to great abuse, and is an instrument of oppression in the hands of a merciless creditor.
Seventh, That it is unnecessary, as there are abund ant and sufficient remedies in the law, for the collection of judgments without it.
State, in construing the statutes for the discharge of It has been decided by the highest court of this insolvent debtors, that a judgment debtor imprisoned
on execution, who has disposed of his own property with intent to defraud the creditor at whose suit he is imprisoned, is not entitled to his discharge, but may be imprisoned perpetually. Matter of Brady, 69 N. Y. 218; below 8 Huu, 437; Coffin v. Gowlay, 20 id. 308; Matter of Watson, 2 E. D. Smith; Matter of Fowler, 8 Daly, 548.
In the Matter of Brady the Court of Appeals said: "That this construction of the statute may lead in some cases to unlimited imprisonment is possible, but we have nothing to do but to construe the law and enforce it as it is; we have no power to abrogate it or soften its hard features."
And this although the fraudulent disposition was made before suit was commenced, and although the debtor shows satisfactorily that he has no property at the time he applies for his discharge, but has lost it through misfortune. 8 Daly, 548. So that even nowin the language of Judge Savage "He may be imprisoned not because he will not pay, but because he cannot."
How then does such a law accomplish its object in practice in such a case if it is admitted to be coercive in its intention?
But those who seek to uphold the law say: "The law is also intended to punish fraudulent debtors." "Men who commit frauds should be punished." Even so! But should a man be doomed to perpetual imprisonment for such an offense?
Besides it is not the office of the civil law to punish crimes; the criminal law takes cognizance of them, its penalties are adjusted with reference to the turpitude displayed in the offense, and its mode of procedure is better calculated to secure a proper administration of retributive justice and to protect the liberties of the citizen.
In strange contrast to the severity of the rule In re Brady, and illustrating the inconsistency and injustice of this branch of the law, is the doctrine of Sydam v. Belknap, 20 Hun, 87, where the petitioner was arrested in an action for converting moneys and securities belonging to plaintiff, while he was acting in a fiduciary capacity. The petitioner was duly examined under proceedings for his discharge, and his testimony showed that after accepting the trust reposed in him he fraudulently and in violation of said trust used the money and property of the plaintiff for his own personal use. It was held that the petitioner was entitled to his discharge, on the ground that the evideuce did not show that he had disposed of or made over any of "his own" property with intent to defraud creditors. The General Term distinguished the case from In re Brady, by saying that in the latter defendant was charged with disposing of his own property, and could be imprisoned perpetually, while in the present case defendant had disposed of the property of another and could accordingly be discharged under the statute.
Judicial interpretation has worked out the condemnation of these statutes, for it has made them declare that it is an unpardonable offense in some cases for a mau to dispose of his own property; while if under the same circumstances he disposes of the property of another, which he holds in the sacred character of a trust, he may go free. So much for the consistency and justice of the law.
It might be urged as a grave objection to the existing law that it permits a man to be deprived of his liberty without a trial by jury, where the natural term of his life may be at stake.
Where the facts upon which a defendant is arrested are extrinsic of the cause of action he is tried upon affidavits. 1 Abb. Pr. (N. S.) 419.
Another serious objection to the existing law is that a creditor residing in a community where imprison
ment for debt does not prevail may come into this jurisdiction and enforce his judgment by our harsh remedies, when he could not resort to them at home, and thus it gives to the judgment of the foreign State a greater force than it was intended to have by the tribunal which rendered it, for the judgment there, when read in connection with the statutes of that State, would be a qualified judgment in this sense, and would say in effect: "A. has judgment against B. for $1,000, but which is not enforceable by execution against the person of B." To give it a contrary effect would seem not to be "giving full force and effect to the judgments, decrees, and statutes" of such State, in the spirit of the United States Constitution. Besides there is this practical difficulty: The debtor might defend the action successfully if sued originally in this State, because by reason of its highly penal nature here, he would be entitled to hold the plaintiff to strict practice, and would be protected by the presumptions which are raised in favor of liberty in such cases. 8 Abb. Pr. 412. But in the foreign tribunal there is no need of these safeguards because the action there is not regarded as being highly penal; but is enforced here as if it were, and the iniquity of the practice is that the defendant cannot open the judgment in our courts, but is limited to questioning the jurisdiction of the original tribunal.
This is an intrinsic defect in the law; it is wrong in principle and vicious in practice. It also imposes a tax upon the citizens of this State to support a debtor (may be for life) for the benefit of a non-resident who pays no taxes here, and whose own State will not assume a reciprocal burden for the benefit of our citi
Considered from an economic standpoint a law which renders a human life useless; which ties a man's hands and forces him into idleness and ruin, because he has nothing, and then calls upon him to retrieve himself, is palpably absurd;- enforced and unlimited idleness, having for its object the enriching of the creditor, and maintained at reat expense to the
The Romans made the debtor work out his debt for the benefit of his creditor, and he was his slave accordingly; there was a frugal policy in this, and stern justice, which although it seems barbarous to us had nevertheless the merit of being reasonable.
We read with horror of the primitive Roman law which condemned the judgment debtor to be cut in pieces and his body distributed among his creditors, unless his friends would pay his debts (see Hunter's Roman Law); but we countenance a law which prolongs the debtor's agony, killing him by inches, where its black-mailing process fails to extort a satisfaction of the judgment from his distressed family or friends. What lawyer does not know of the efforts made by unscrupulous practitioners to frame their actions and conduct their proceedings so as to get the judgment debtor into jail, when they know he is insolvent, aud for the open and avowed purpose of filching the money from his family; of the extortions of sheriffs, the annoyance and disgrace of public arrest, arranged at a time when it will most embarrass and distress the debtor, and the hundred and one hardships to which the poor debtor is subjected.
These are not imaginary cases, but the actual experiences of every day.
There will be abundant and sufficient remedies left in the law for enforcing honest dealing and also for the collection of judgments, if the law of imprisonment is abolished as provided in the Titus bill.
The Penal Code, enacted in 1881, makes the obtaining of property by false pretenses a larceny. It also provides (§ 514), "that a purchase of property by means of false pretenses is not criminal where the false pre