Gihon v. Albert, 7 Paige Ch. 278

Gihon v. Albert

7 Paige Ch. 278 | New York Court of Chancery | 1838

The Chancellor.

The exhibit which the vice chancellor has refused to suppress is the examination of one of the appellants upon oath, It is therefore evidence of the strongest character against him and ought not to be suppressed, unless it is wholly irrelevant to the matters in issue between the parties, or was obtained under such cir*279cumstances that it cannot be legally used as evidence for the complainants on the hearing. I think there can be no reasonable doubt as to the relevancy and materiality of this examination, as evidence to support the complainants’ case upon the matters in issue between the parties. If it tends in any manner, either alone or in connection with any other evidence which may be introduced at the hearing, to show that the alleged assignment from Shaw to Albert was fraudulent, or was intended to delay or hinder the creditors of Shaw in the collection of their debts ; or to show that Albert is indebted to Shaw, or that he has any property of the latter in his hands, the exhibit cannot be rejected as irrelevant. And as the complainants could not use one part of the examination as evidence and reject other parts thereof as immaterial, without the consent of the adverse party, the fact that much of the examination is wholly immaterial to the questions in issue between the parties fornis no ground for suppressing such examination.

Upon the view I have taken of another question in this case it is not necessary for me to inquire whether there are not many things in this examination which were irrelevant to the matters upon which the master was authorized to examine the defendant Albert on oath upon the reference. In the case of Fitzhugh v. Everingham, (6 Paige's Rep. 30,) it was decided that under the common order of reference to appoint a receiver, &c. upon a creditor’s bill, the complainant was only entitled to examine the.defendant on oath in relation to the subject matter of the reference. And the pi op-er course is there pointed out which the defendant is to pursue, if he is advised by his counsel that questions put to him are improper or irrelevant to the matters referred to the master; but which the master decides it is proper for him to answer. He is to refuse to answer. Which refusal is in the nature of a demurrer to the interrogatory. And then the question will be brought before the court upon an application to compel him to answer, and to punish him for the contempt in refusing to answer if the interrogatory was not an improper one. Counsel should be careful, however, in advising their clients not to answer in such cases, unless the *280question is clearly irrelevant or improper; as the client will be charged with the costs of the application to the court if it turns out that he is in the wrong, and may be further punished, in the discretion of the court, for his contempt in refusing to answer. And in such case if the counsel has advised him not to answer, where there was no real doubt as to the propriety of the question, or where the answer could not prove injurious to the client if he was an honest man, the counsel will himself be liable to his client for the damage the latter has sustained by such improper advice.

Where the question is relevant, and proper in relation to the subject matter of inquiry before the master, the defendant must answer it, although he may have been required to answer as to the same matter on oath in response to the allegations in the bill; and though he has not given a written consent under the 191st rule, so as to entitle the complainants to insert a clause in their order of reference to take his examination on° oath as to all the matters in the bill, as a substitute for an answer in the usual form. Whether the questions which the defendant has answered before the master upon this reference as to a collateral matter were proper or improper, in relation to the subject of that reference, I do not see any legal principle upon which he can object to the use of his examination as evidence against him, upon the hearing the same cause upon pleadings and proofs, or pi any other proceeding in the cause as to which the examination is material and relevant. As well might a party who had answered a bill of discovery which he was not legally bound to answer, afterwards object to the answer being used against him upon a trial at law, on the ground that he was not legally bound to answer the bill but might have demurred to the same successfully.

The decision of the vice chancellor was therefor right in refusing to suppress the exhibit as improper testimony for the complainants on the hearing. And the order appealed from must be affirmed, with costs.