Amendments V and VI
[Volume 5, Page 292]
Bull v. Loveland10 Pick. 9 Mass. 1830
Shaw C. J. delivered the opinion of the Court. In this case, the general question has been argued at some length, whether a witness, without his own consent, can be called to testify to any fact pertinent to the issue between other parties, where such testimony may tend to charge him with a debt, or subject him to pecuniary loss or liability, but where it does not tend to expose him to punishment, or subject him to any penalty or forfeiture.[Volume 5, Page 293]
This question has been the subject of much discussion and difference of opinion, among eminent judges, and those of the greatest experience in nisi prius trials, both in England and in the United States.
In the case of United States v. Grundy, 3 Cranch, 344, it seemed to be taken for granted by Marshall C. J., that a man in a civil case is not bound to testify against his interest. But that was before the discussions in England, and the opinions of the judges in the House of Lords, growing out of questions raised in Lord Melville's trial. Besides, the question was not argued, and it arose where the witness was called to testify to a fact which would have rendered a ship forfeited under the registry acts of the United States, in which, at the time of the forfeiture, he himself claimed an interest.
In Webster v. Lee, 5 Mass. R. 334, it was stated by Parsons C. J., in giving the opinion of the Court, that a witness may, if he consents, testify against his own interest. Although this expression implied that his consent was requisite, yet the case did not call for the expression of an opinion upon the question whether he could be compulsorily required to testify, against his will.
In a later case however, Appleton v. Boyd, 7 Mass. R. 131, the same point again came before the same eminent judge at nisi prius, upon which he ruled that a witness cannot be required, without his consent, to testify against his own pecuniary interest. This point among others was reserved, but it was not argued or noticed by the counsel on either side. In giving the opinion the Court cited no authority; and in noticing this point, seemed to take the rule for granted, and considered rather, whether from the facts reported, the witness had an interest in the question, than whether by law it would excuse him from giving his testimony.
In England this subject underwent much discussion, pending the impeachment against Lord Melville, in 1806, upon which occasion the question was put to the judges by the House of Lords. The question was presented in two or three different forms, slightly varying in terms, but it was substantially the same in each. Eight judges and the chancellor were of opinion, that the witness was bound to answer a question, although his answer might render him liable to a civil action; the other four judges expressed a contrary opinion. In order to remove the doubts, which such a difference of opinion among eminent judges implied, an act was passed, 46 Geo. 3, c. 37, declaring, that a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself, or to expose him to a penalty or forfeiture of any nature whatsoever, by reason only, or on the sole ground, that the answering of such question may establish or tend to establish, that he owes a debt, or is otherwise subject to a civil suit.
This act, as a statute, of course has no authority here, but as strictly a declaratory law it is entitled to weight. Lord Erskine, then lord chancellor, stated, that notwithstanding some difference of opinion among high authorities, he considered the law so far precise, clear and conspicuous that it was necessary no new law should be promulgated, otherwise than in the form of a declaratory law. In this suggestion he was countenanced by Lord Eldon, who was not then in judicial office. 1 Phil. Ev. (Am. ed.) 208; Peake's Ev. (3d ed.) 193; 1 Hall's Law Journal, 223; 1 Stark. Ev. 135.
This rule has recently been recognized and acted on in Maryland. Taney v. Kemp, 4 Har. & Johns. 348; Stoddart v. Manning, 2 Har. & Gill, 147. And in Pennsylvania. Baird v. Cochran, 4 Serg. & Rawle, 397.
In a recent case in this Court, it has been held, that one summoned as trustee, cannot avoid answering questions put to him, in regard to the validity of a conveyance under which he claims title to property, on the ground that it may affect his own pecuniary interest. Devoll v. Brownell, 5 Pick. 448. This is not precisely in point, but it is important as giving a construction to a constitutional provision, which might be supposed to stand in the way of the application of the rule in question in this Commonwealth. The provision is found in the 12th art. of the Declaration of Rights. "No subject shall be held to answer for any crime, &c. or be compelled to accuse, or furnish evidence against himself." In this case it was decided, that the trustee was found to answer, though he might thereby charge himself, and that the above constitutional provision does not relate to questions of property.
On the whole we think the weight of authority is in favor of the rule, that a witness may be called and examined in a matter pertinent to the issue, where his answers will not expose him to criminal prosecution, or tend to subject him to a penalty or forfeiture, although they may otherwise adversely affect his pecuniary interest, and that the witness was properly called and examined in the present case.
There seems to be no difference in principle, between compelling a witness to produce a document in his possession, under a subpoena duces tecum, in a case where the party calling the witness has a right to the use of such document, and compelling him to give testimony, when the facts lie in his own knowledge. It has been decided, though it was formerly doubted, that a subpoena duces tecum is a writ of compulsory obligation, which the court has power to issue, and which the witness is bound to obey, and which will be enforced by proper process to compel the production of the paper, when the witness has no lawful or reasonable excuse for withholding it. Amey v. Long, 9 East, 473; Corsen v. Dubois, 1 Holt's N. P. R. 239. But of such lawful or reasonable excuse the court at nisi prius, and not the witness, is to judge. And when the witness has the paper ready to produce, in obedience to the summons, but claims to retain it on the ground of legal or equitable interests of his own, it is a question to the discretion of the court, under the circumstances of the case, whether the witness ought to produce, or is entitled to withhold the paper.
Under the circumstances of the present case, we are clearly of opinion that the witness had such an equitable interest in the note, and such a right to the custody and control of it, under the agreement of the plaintiff himself, that he ought not to have been required to surrender it for the purpose proposed, that of maintaining the suit and thereby fixing a lien by attachment, upon the funds placed [Volume 5, Page 294] in the hands of the witness for the common benefit of all the creditors. Upon the faith of this agreement, all the creditors, including the plaintiffs, restrained themselves from securing their respective debts by attachment; and relying on the same agreement, the witness made considerable advances for the improvement of the trust fund, for the common benefit. When the plaintiffs and other creditors constituted Tappan & Whitney their agents to collect all the demands, including their own, and placed their notes and securities in the hands of these agents for that purpose, with power by attachment or otherwise to apply the whole of the debtor's funds for that purpose, they created not a mere naked agency, but gave an authority coupled with an interest, which could not be revoked at their mere pleasure.
If it be asked how long this agency is to continue, it may be answered, a reasonable time; and what is a reasonable time must depend upon the circumstances of the case. Here it has not been shown that the witness and his partner, intrusted with the transaction of this business, have violated their agreement, or abused their trust; no application has been made to them to accelerate the collection of the demands; and this afforded evidence of a tacit acquiescence on the part of the plaintiffs, in the course pursued by them. If it was in the power of the plaintiffs to rescind the agreement, revoke the authority given, and claim their note for the purpose of being put in suit, they ought at least to give reasonable notice of their intention so to do, in order that the other creditors might be put in the same situation, which they were in before the agreement was made.
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