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144 SALMON v. CLAGETT.
Let it, however, be supposed, that the case shewn by the bill
is one of which the court has jurisdiction; and that the plaintiff
has a capacity to sue. Even then the plaintiff's inquiries, con-
cerning the case, can only be inch as he may lawfully make of the
defendant, as being properly a defendant; and supposing him to
be interrogated as a mere witness. The plaintiff, in this respect,
places the defendant in the condition of a witness; and interro-
gates Mm for the purpose of obtaining evidence; or the defendant
is thus called upon, as it were, by a subpoena duces tecum, and
required to bring into court certain documentary evidence. A
plaintiff is entitled to have a discovery as to two heads: first, to
enable Mm to obtain a decree, or to bring an action; or to ascer-
tain facts material to the merits of his case; either because he
cannot prove them, or in aid of proof, or to save expense; and
next he is entitled to a discovery of matters to substantiate his
proceedings and make them regular and effectual in this court, (e)
But the disclosures, thus called for, must be pertinent and material
to the plaintiff's case, and necessary in order to enable him to
recover; as where an executor was required to say, whether he
had a sufficiency of assets; and to state an account; if he admits
a sufficiency of assets to satisfy the plaintiff's claim, he need not
answer as to the account, (f)
But, although a man is allowed, voluntarily, to disclose any
thing against himself, however atrocious, he shall never be com-
pelled to criminate himself; or even to subject himself to a for-
feiture; nemo tenetur scipsum accusare, is a maxim of the English
code, which, with an evident reference to proceedings in Chancery,
has been engrafted into the fundamental law of the republic. The
twentieth article of the Declaration of Rights provides, 'that no
man ought to be compelled to give evidence against himself, in a
court of common law, or in any other court, but in such cases as
have been usually practiced in this state, or may hereafter be
directed by the legislature.' The sound sense of which is, that a
man shall not be obliged to discover what may subject him to a
penalty, not what must only; (g) but the boundaries are often
very nice, where a matter is near indictable, and a fraud in this
court, (h) If, however, it should in any manner appear by the
(e) Finch v. Finch, 2 Ves. 491; Brereton v. Gamul, 2 Atk. 241; Moodalay v.
Horton, I Bro, C. C. 469—(f) Finch v. Finch, 2 Ves. 492; Agar v. The Regents'
Canal Co., Coop. Rep. 212—(g) Harrison v. Southcote, 1 Atk. 539—(h) Chetwynd
9. Lindon, 3 Ves. 450.
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