In re JUDSON, 14 F. Cas. 4

BETTS, District Judge. It is a cardinal principle, in relation to the

summary and imperative proceeding by attachment, that that writ will not be granted unless a case of clear contempt be -established. When the contempt is not committed in facie curiae, it must be proved by affidavits from persons who witnessed it. 7 Dane, Abr. pp. 307, 308, c. 220, art. 4. The evidence accompanying the papers on this motion proves no other fact than the refusal of the witness to answer the question propounded.

There is nothing tending to show the connection of the inquiiy with the subject matter of the action or defence, and the motion is urged upon the assumption that the witness was bound to answer the interrogatory, whatever might be the character of the disclosure obtained by it, and has committed a contempt of court by refusing to do so. I see no reason why any more stringent obligation should be imposed upon a witness in these outside examinations than is enforced in court.

Before the court will adjudge a witness to be in contempt or commit him therefor, it will require more than proof of the fact that he declines to respond to a question. It will inquire whether the question is relevant and material to the case or hearing (1 Greenl. Ev. § 319); and also whether the witness is legally exempt from answering it. No contumacy can be imputed to him, until these points are determined.

The law gives no color to the practice, which not unfrequently intrudes upon judicial proceedings, of besetting a witness with impertinent inquiries, calculated to pry into his private affairs, or into his own character or that of other persons, or to subject him to personal liability, when the inquiries are not shown to have a legitimate bearing upon the cause on trial; and it is guarded in coercing answers to questions when their materiality is not clearly manifest.

In this case, the court will not suspect any improper motive in the party pushing the inquiry which was resisted by the witness, nor, on the other hand, is it furnished with means to determine that the witness refused to answer from a refractory or contumacious disposition. It is enough to say, that the party who invokes the court to order the witness to be imprisoned until he consents to give the testimony demanded, has omitted to prove that such testimony might be relevant and material to the issue in the cause.

The English court of exchequer refused an attachment against a witness for not attending the court upon subpoena, although the affidavits asserted that his evidence was material and necessary for the party who subpoenaed him, because of the immateriality of the evidence sought for, and also because the affidavits did not specify in what respect the evidence was material. Dicas v. Lawson, 1 Cromp. M. & R. 934, 5 Tyrw. 235. And an action cannot be maintained against a witness by the party who subpoenaed him, for refusing to appear and testify, without proof that his testimony was material. 3 Daniell, Oh. Prae. 27.

The counsel for the motion urges that It belongs to the court in Massachusetts, on the return of the deposition, to determine whether the evidence is pertinent to the case, and that that court will exclude the evidence if it is found not to be pertinent. This argument is correct, in so far as it relates to the conduct of the commissioner. That officer must write down and return to the court any species of evidence offered before him, and the court will receive or reject it according to the rights of the parties.

But most serious mischief may be in that way effected, if a witness is compellable, in all cases, to answer, in the first instance, all questions put to him. He may be thus compelled to make public important secrets in relation to the rights or character of himself or others, which the party extorting them has no title to or interest in, and which are drawn out through a course of interrogation that would have been peremptorily arrested had the examination taken place in open court. These ex parte examinations cannot claim privileges or powers which the court they are designed to aid could never exercise itself.

This court inteiposes its authority, to compel witnesses to attend before commissioners and give evidence there, under the provisions of the 30th

section of the judiciary act of 1789, which declares that any person may be compelled to appear and depose before a commissioner, in the same manner as to appear and testify in court. Accordingly, a refractory or reluctant witness, who has been duly subpoenaed to attend for examination before a commissioner, will be made to obey the order, to the same extent as if the writ of subpoena had been returnable to. this court.

There is nothing in the law, or in the reason of the case, which supplies a different authority, in respect to ex parte evidence taken out of court, from that which legally appertains to the court in proceedings before it. The act places both on the same footing.

I do not determine other points raised and discussed on the argument, as to whether a commissioner can take depositions except under an express order of the court made in a cause, or under a commission; as to whether the issues between the parties in the cause must be before the commissioner; as to whether a witness can object by demurrer to questions proposed, or is competent to take, on his own part, the exception, that questions put to him are irrelevant to the case; nor as to whether the facts set up by the witness in this case establish a privilege in Goodyear, his client, which prevents the witness from testifying to the matter inquired of.

My decision is placed on the ground, that there is no evidence before the court that the question which the witness refused to answer had any materiality whatever to the cause, and that this court ought not to award the high writ of attachment, to draw out answers to questions which may turn out to be frivolous and impertinent. There must exist a plain reason for 'believing that the ends of justice may be frustrated by the re-cusancy of a witness, unless his reply be coerced to .an interrogatory, before the court will subject him to the

summary and imperative process of attachment. The motion is denied, with costs.