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146 SALMON v. CLAGETT.
And again, if the bill makes a mere witness a defendant he
need not demur, or plead; but if he answers and disclaims all
interest whatever in the matter in controversy his answer is con-
elusive and sufficient; because, hairing thereby reduced himself to
the condition of a mere disinterested witness, his testimony, if
required, may be taken as such, (o)
Now we hare seen, that the reason why the defendant may be
compelled to answer as the bill requires, is, that the plaintiff is
entitled to his evidence, either because he cannot otherwise prove
his ease, or to save expense. But, no man can be compelled to
criminate himself; nor shall any attorney be permitted to divulge
the secrets of his client. These are fundamental axioms restric-
tive of the right to call for testimony in any manner or form what-
ever, Inquiries, made in violation of these axioms, are unlawful;
and consequently, cannot be answered; since the submission of a
defendant to answer must be understood to be qualified by restric-
tions, that are applicable, indiscriminately, to all modes and forms
of calling for evidence. The plaintiff has a right to a full answer
to save expense. But he cannot be thus indulged in the saving of
expense to himself to the injury of another disinterested and inno-
cent person. Nemo debet locupletari ex alterius incommodo. A
plaintiff shall not be permitted to burthen a keeper of public
records with the expense of making out, and producing copies
which any one may obtain on paying the legal fees; nor shall a
plaintiff be permitted to save expense to himself by making a mere
disinterested witness a party and burthening him with the expense
incident to that character.
But these allegations can never be advanced in avoidance, or
put in issue as a defence; because they create no defence, (p)
They are grounded merely on the privilege of the defendant or his
client; and on the right of every one to disengage himself at once
a controversy with which he cannot be encumbered as an
interested party, either in his public or private capacity; and con-
sequently they are qualifications; but cannot be considered as
exceptions from the general rule; since that which must always
be, and necessarily is assumed as an admitted proposition, without
which a rule cannot be applicable to any case, cannot, with pro-
priety, be considered, as, in any respect, an exception to such rule.
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(o) Richardson v. Hulbert, 1 Anstr. 65; Cartwright v. Hateley, 1 Ves,, jun. 292;
Fenton v. Hughes, 7 Ves. 287,—(p) Brownsword v. Edwards, 2 Ves. 246.
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