194 WINDER v. DIFFENDERFFER..

I have s0 far only considered and disposed of the objections pro-
ceeding from the party to the suit; but, in this case, the witness
himself has refused to answer. According to our law, no man can
be compelled to criminate himself; and no attorney can be allowed
to divulge the secrets of his client. In these and some other simi-
lar instances the law affords to the witness, or his client a protec-
tion of which he must not be deprived; and hence he cannot be
compelled to give any answer before the commissioners which
would go to admit his criminality, or to divulge the secrets of his
client (l) When the witness himself makes an objection of this
kind, it becomes indispensably necessary to suspend the examina-
tion until it is determined upon; because, there is no other possible
mode of sustaining his protection, should he be entitled to it.
But then the situation of the witness must be so described as to
shew how he, or his client is entitled to the protection claimed, to
enable this court, in like manner as a court of common law, to
judge of its validity. In this, as in the English court of chancery,
the only way in which a witness can protect himself, is to state
his objection before the commissioners, who return the commission
with, what is called, the witnesses' demurrer; and the question is
brought before the court by setting it down for argument. Cer-
tainly it is not, strictly speaking, a demurrer, which is an instru-
ment, that admits facts stated for the purpose of taking the opinion
of the court; but by an abuse of the term, the witness' objection
to answer is called a demurrer in the popular sense. And there
must be a way by which the court can judicially determine its vali-
dity. If the demurrer of the witness be overruled he may be made
to pay the costs, (m)

This witness has assigned no reason for his refusal to answer,
and his situation is no otherwise described than by his being;
designated as the cashier of the Mechanics' Bank. It is neither
expressly declared, nor to be inferred from any thing which
does appear, that the witness has rested his refusal to answer
upon any one of the established legal protections. It is clear,
that he cannot demur," because the questions asked him are

4 ___

(I) Bolton v. Corporation Liverpool, 6 Cond. Chan. Rep. 515; Greenough v. Gas-
kell, 6 Cond. Chan. Rep. 51$; Falmouth v. Moss, 5 Exch. Rep. 158.—(TO) Smith-
son v. Hardcastle, 1 Dick. 96; Wardel v. Dent, 1 Dick. 834; Vaillant v. Dodemead,
2 Atk, 524; Nightingale v. Dodd, Amb. 683; Parkhurst v. Lowten, 2 Swan. 194;
Davis v. Reid, 7 Cond. Chan, Rep. 488; McKenzie v. "Towson, 1806, per Kilty, Chan-
cellor, M. S.; Singleton v. Edmondson, 1806, per Kilty; Chancellor, M. S.