Northrop v. Hatch

6 Conn. 361 | Conn. | 1827

Peters, J.

The defendant takes several exceptions to the bill; but it would be a work of supererogation to consider them all, when one of them is fatal.

By statute, tit. 40. it is provided, that " all fraudulent conveyances of lands and tenements, made with intent to avoid any debt or duty of others, shall be utterly void, as against those persons only, their heirs, &c. whose debt or duty is endeavoured to be avoided “ and all the parties to such fraudulent contract, knowing the fraud, who shall willingly justify the same as being done bona fide, and on good consideration, shall forfeit one year’s value of the land, one half to the party aggrieved, who shall sue for and prosecute the same to effect, and the other half to the treasury of the state.”

It is a general rule in chancery, as well as in law, that no person can be compelled to make a discovery, that may subject him to a prosecution for felony, or tend to show the defendant guilty of any moral turpitude; as the birth of a child-out of wedlock, or to answer what is a matter of scandal, or what may lead to a legal accusation, or what may subject him to a penalty, or any thing in the nature of a penalty, as usury, &c.; for in criminal proceedings, the accuser cannot put the accused upon his oath. Hinde's Ch. Pract. 40. 1 Madd. Chan. 173. Mitf. 157. 160. 1 Phill. Evid. 222.

In Franco v. Bolton, 3 Ves. jun. 368. the bill stated, that in consideration that the defendant would cohabit with the plaintiff as his wife, he gave her a bond of 1000l., conditioned to pay her an annuity of 100l. during her life, and prayed a discovery and relief. The Lord Chancellor said, “ I cannot compel her to discover whether before the connexion she capitulated with him for this provision. That would make her liable not only to the reproach, but to the consequence, of having lived in this illicit course.”

In Chauncey v. Tahourden, 2 Atk. 392, the plaintiff executor of a will, brought a bill for the discovery of the marriage of the defendant, who demurred because the discovery would be a forfeiture of a legacy given to her by the will, upon condition she married with the consent of the trustees. The Lord Chancellor said "Suppose a man should bring a bill to set aside an usurious contract; and in the interrogatory part, should ask the defendant what interest he agreed to take; how can he set forth what interest he agreed to take, without discovering, at the same time, the very interest he has taken ? So here, when the bill asks her to discover whether she is not married, how can she answer that, without showing, at the same time, it was a marriage against the consent of the trustees, and by that means subject herself to a forfeiture ? Therefore, the demurrer must be allowed.”

In Smith v. Read, 1 Atk. 526. a bill was brought for the rents and profits of an estate, and to discover whether A., under whose will the defendant claimed, was a papist, at the time of the purchase made by A. of the estate from the plaintiff's ancestor. The defendant’s counsel insisted, that the bill sought to discover what, if true, would be a forfeiture and penalty. The Lord Chancellor said: “ I think the defendant is not bound to discover; for there is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or any thing in the nature of a penalty.” The same principles have been recognized, by this Court, in Benjamin & al. v. Hathaway, 3 Conn. Rep. 528. where in an action of ejectment, the plaintiff claimed title, by the levy of an execution, and the defendant called on the sheriff to falsify his own return, to which he objected; the judge rejected the testimony ; and his decision was, by this Court, affirmed. In expressing their unanimous opinion, the Chief Justice said: “ If the sheriff were admissible to falsify his return, clear I am, that he is not compellable to give testimony for that purpose. For a false return the sheriff is by statute liable to a penalty; and there exists no doubt that he cannot be coerced, by his own testimony, to expose himself to a recovery. My own opinion would be the same, if the effect of the testimony were merely to subject the witness in debt. It is an established principle, that a person cannot, in a suit against him, be compelled to produce evidence against himself; and by a strong analogy, he ought to be protected, when called on to testify for another.”

But the plaintiff replies, that the defendant is protected by the statute of limitations. Be it remembered, that there are no special pleadings in foro conscientioe; and that neither, time nor statute can efface the stigma from a convicted, acquitted or outlawed felon. "A pardoned man," said Lord Chief Justice Treby, in Cooke's case, 4 State Trials 748. "is not guilty: His crime is purged. But merely for the reproach of it, it shall not be put upon him to answer a question, wherein he will be forced to disgrace or forswear himself." See 1 Phill. Evid. 206, 7. Rex v. Lewis, 4 Esp. Rep. 225.

There is no error in the judgment complained of.

The other Judges were of the same opinion, except Brain-ard, J. who was absent.

Judgment affirmed.