Bogert, surviving executor of Bogert, deceased v. Bogert, and others, 2 Edw. Ch. 399

The Vice-Chancellor: 1. As to the motion of Bigelow and wife to cross examine Mr. Bogert; and to have a deposit and an examination of the books and papers of the estate of Jacobus Bogert, deceased. It will be necessary to look at the bill, in order to decide upon the whole of this motion. The object of it is to ascertain and have the court determine upon the nature and extent of the rights of parties interested under the will of Jacobus Bogert. Answers have been put in; replications have been filed; and the examination of Cornelius Bogert as a witness, has commenced.

He is a party to the suit, as executor of John Bogert, deceased, who had an interest under the will of Jacobus Bogert, and was one of his executors. It appears he, Mr. Cornelius Bogert, underwent an examination on the part of the complainant, and answered all questions which their counsel put to him, relating to dates and changes of interests from deaths. He was then examined by the guardian ad litem of the infant children of Halsey D. Bradford.

Afterwards, on a subsequent day, came a cross-examination by the counsel of Bigelow and wife; but before it commenced, the solicitor, for Peter Aymar, another defendant, objected to the testimony of Cornelius Bogert, on the ground of his being a party and no order having been entered under the 73d rule for his examination. The objection was noted; but the counsel for Bigelow and wife persisted in pressing on the cross-examination, having made no objection themselves to the witness or the regularity of his examination.

It went on, until the witness declined answering, upon the ground of his having been of counsel as well to the testator Jacobus Bogert in his lifetime, as to his executors during the times they acted in the management of the estate. The counsel for Bigelow and wife had propounded questions as to the nature of the estate of Jacobus Bogert. Now, as to the first branch of the motion:—the question of examination. Mr. Bogert’s giving testimony without an order was irregular; and the defendants, Bigelow and wife, might have taken advantage of it.

They did not; and I think it was an irregularity which they, for themselves, might waive. I do not think it rests with the complainant to withdraw the witness. It is not for the party who examines him to object; and I consider Bigelow and wife had a right to go on and cross-examine him. It appears to be a rule well settled at law, that a .witness introduced by a party and sworn generally, although interested to testify against him, may be cross-examined at large, in support of the rights of the opposite party, and the party introducing him cannot question either his competency or credibility : Jackson, ex dem.

Eden v. Varick, 7 Cow. 288, S. C. on appeal, 2 Wend. 166; Fulton Bank v. Stafford, Ib. 483. I think the same rule ought to hold good here ; and that, after a witness has been called and examined by a party, he cannot withdraw him even though he may be interested, see Barden v. Gorman, 2 Molloy, 376, but is compelled to.let him be cross-examined generally by an opponent. Nor do I see how Mr. Bogert can make use of his professional character as a shield against answering such questions as have been put to him. I think he has acted under a mistake of the law.

He was not asked as to matter w'hich had been confidentially imparted to him by any one of his clients. So far as a counsel has got information solely from a person coming to him in the character of client, the rule of secresy holds : but, no further. It does not embrace any information obtained from other quarters or in any other way. I consider Mr. Bogert is bound to answer the questions proposed to him and any others of a like nature. Then, as to a production of the books and psipers. This part of the motion must be denied.

In general, a party is, not compelled to produce testimony to make for his opponent: more especially where defendants ask for it. It is true, there are special cases in which it may be allowed for the purposes of pleading. Thus, if a party is called upon to answer a bill, and wants an inspection of books and papers, before he can fully do so, he can have a sight of them ; or the production can be compelled under certain circumstances. And documents may be ordered to be given up for safe custody where there is any apprehension of destruction: Watts v. Lawrence, 3 Paige’s C. R. 159.

Where a defendant seeks the production or discovery of documents in the complainant’s possession, the usual course is by filing a cross-bill; Mycklethwait v. Moore, 3 Meriv. 292; and Bigelow and wife must do so in this case, provided they require a discovery of the books and papers of the estate of Jacobus Bogert, deceased. This part of the present motion is denied. 2. As to thé motion of Mr. Aymar to suppress the testimony of Cornelius Bogert. The application is well founded. He has a right to raise the objection; and may have an order that Mr.

Bogert’s deposition shall not be read to his prejudice; but, from what I have before said, it will have to stand for those parties who have not raised the objection. 3. With regard to the application of the complainant, to examine other witnesses. He -is not to be allowed to examine any touching the former, supposed, marriage of Bigelow. There is no occasion for it, at this stage of the cause. But he may take the testimony of other witnesses named who will speak to facts, dates and descents, contained in Mr. Bogert’s direct examination. 4.

I have now to dispose of the motion of Bigelow and wife : that the complainant, as executor of Jacobus Bogert, deceased, pay them five thousand dollars out of the supposed share of the estate coming to Mrs. Bigelow. This application is founded upon the allegation of her being entitled to thirty thousand dollars. The counter-affidavits show that the two children of Mrs. Bigelow, by her' former husband, are supported by some branches, of the family ; and the application is, therefore, so far met.

But, indeed, án order, to the effect askedofctf by thesg. defendants, is contrary to the practice of thet$ourti"' It does not direct payment of money by one party to another pending a suit and where there is no sum in court. It is true, that where there is property in court or subject to its control belonging to a feme covert, it will sometimes grant an order for an allowance out of it for maintenance ; but even this will only be done after a reference, and the report of a master certifying the husband’s pecuniary incompetency.

But even if. the money, in the present case, were in court, I could not direct such a course to be taken, for the complainant shows that he paid money last summer to these parties, and will be ready to pay them, out of the forthcoming November dividend, a rateable proportion of it. I shall withhold any order upon this motion.