3 Edw. Ch. 458 | New York Court of Chancery | 1841
His Honor The Vice-Chancellor gave his views; the substance of which are embodied in the following order.
On filing a certificate of the master, Russell C. Wheeler, in this cause ; and the affidavit of counsel for the defendant Glentworth and for the witness Nathaniel Pierce ; and on hearing counsel on the parts of the complainants and of the said witness : it is declared that the master’s office is an extension (or branch) of this court; that, on an examination of a witness before a master on a reference in any suit or proceeding pending in this court, the witness has the right, in the presence of the master, but not privately, to consult his own counsel; and may select, for such purpose, the counsel for the complainant or defendant as to the propriety or duty of answering any question proposed to him ; that he may decline answering such question, taking upon himself the consequences of a proceeding as for a contempt if his objection is not well founded or he may demur to such question and then the matter will be heard on his demurrer as between him and the party proposing such question ; that he is not bound to answer any question which will have a tendency to accuse himself of any crime of misdemeanor or to expose him to any penalty or forfeiture. But that his answer may establish or tend to establish that the witness owes a debt or is otherwise subjected to a civil suit, is no excuse for refusing to answer a question relevant to the matter in issue and proper to be put; that the witness and counsel are to be governed by the same rules which would control them on an examination before a jury in a court of law ; that it is not to be permitted that counsel should hold a whispering conversation with a witness or retire with him during his examination for private consultation nor, after consultation, write out his answer, but his advice must be given under the eye and in the hearing of the master; there must be no room for suspicion of tampering with the witness or of suggesting his answers—more especially the witness must be left, after being advised as to his rights, to give his answers in his own language, without aid in writing or otherwise from counsel.
The master was correct in his decision; and it is ordered