submitted, unless by special order of the court, because that mode of examination would be likely to defeat the purpose of the inquiry. For a similar reason, the witness is not usually permitted to consult his counsel upon the questions put;2 though all these matters are within the regulating power of the court and register. He has the right to be cross-examined upon the matters propounded in chief, but not on independent subjects, and should have every reasonable opportunity for explanation. The register may adjourn the examination from time to time in his discretion.4 $155. Deponent may have Counsel. The deponent has the right to be attended by counsel, who may object to improper questions, and cross-examine his client upon the subjects opened in direct examination. In a few cases, a distinction is taken that the bankrupt has this right, and any other person may have counsel only as matter of grace on the part of the magistrate; but there is no distinction in principle, because the examination is evidence against the deponent, and is usually taken for the very purpose of being so used, and justice requires that his rights should be cared for.5 How far there 1 Ex parte Crump, 1 Ch. D. 530; Re Tanner, 1 Lowell, 215, Fed. Cas. No. 13,745; Re Lord, 3 N. B. R. 243, Fed. Cas. No. 8502, and see next note. 2 The practice under the insolvent law of Massachusetts gave the bankrupt a strict right to consult counsel upon every interrogatory: Ex parte Winsor, 8 Law Rep. 514; but the practice was otherwise under the bankrupt law, and, historically considered, it is clear that our practice is right under our statute. The statute formerly required interrogatories to be filed, but this was changed by 21 Jac. I., c. 19, § 9, which authorizes the commissioners to examine as well by word of mouth as in writing, etc., which has been followed in the later English statutes and in ours: Act of 1867, § 38; 14 Stat. 535; R. S. § 5003; and of course in an oral examination there could be no consultation: see Re Patterson, 1 N. B. R. 125, Fed. Cas. No. 10,815; Re Tanner, 1 Lowell, 215, Fed. Cas. No. 13,745; Re Judson, 2 Ben. 210, Fed. Cas. No. 7562; Re Lord, 3 N. B. R. 243, Fed. Cas. No. 8502. 8 The examination should be neither friendly nor hostile, but full, fair, and searching, with opportunity for explanation. Per Coleridge, J., Ex parte Legge, 22 L. J. Q. B. 345; Ex parte Lee, 2 Mont. & A. 15; Norris's Case, 2 J. & W. 437. Ex parte Till, L. R. 10 Ch. 631; Ex parte Crump, 1 Ch. D. 530. 5 "A barrister or solicitor is generally or always permitted to attend a bankrupt or witness," 1 Christian, 2d ed., 385 (1818). And Eden, 2d ed., p. 89, says that the attendance of counsel on behalf of a witness was formerly considered a matter of favor, but is now (1825) never refused, and probably never will be. He cites for the old law Ex parte Parsons, 1 Atk. 204. The undoubted right to be cross shall be consultation between attorney and witness is a matter of discretion with the judge or register. The better practice is to inform a witness who is not the bankrupt, through a petition to the court, or otherwise, of the subjects upon which information is expected from him, though, if he is thought to have acted fraudulently, the court might dispense with notice.2 § 156. Examination as Evidence. - The examination may be properly used for discovery against the witness, of frauds as well as debts, and, therefore, it is no objection that a civil action is pending against him concerning the same matters, or that the answers will prove civil fraud,3 or will disclose the witness' own defence against the assignees. It is likewise lawfully used for information, and therefore it is not a valid objection that no action is pending by which to test the materiality of the questions. The true test is whether the answer examined would be futile if counsel could not attend to conduct it. I therefore cite the cases which declare that right, and others directly to the point, and still others in which the practice appears incidentally. They make up a body of authority which is as conclusive as the reasoning. Lee on Bankruptcy, 2d ed., p. 133; Ex parte Bunn, 3 Jur. N. s. 1013; Re Tanner, 1 Lowell, 215, Fed. Cas. No. 13,745; Re Noyes, 2 Lowell, 352, Fed. Cas. No. 10,370; Re Bragg, 5 Law Rep. 323, Fed. Cas. No. 1799; Re Leachman, 1 N. B. R. 391, Fed. Cas. No. 8157; Ex parte Winsor, 8 Law Rep. 514; Goss v. Quinton, 3 M. & G. 825; Ex parte Mackenzie, L. R. 10 Ch. 88; Nobes v. Mountain, 7 Moore, 39, 3 B. & B. 233; Re Leighton, L. R. 1 Ch. 331; Ex parte Waddell, 6 Ch. D. 328; Re Breech Loading Arms Co., L. R. 4 Eq. 453; Re Merchants' Co., ib. 454; Re Brampton, etc. R. Co., L. R. 11 Eq. 428. For cases which distinguish between the bankrupt and others, see Re Stuyvesant Bank, 6 Ben. 33, Fed. Cas. No. 13,582, citing two other decisions by the same learned judge; Re Comstock, 3 Sawyer, 517, Fed. Cas. No. 3080. 1 Re Patterson, 1 N. B. R. 150, Fed. Cas. No. 10,819; Re Tanner, 1 Lowell, 215, Fed. Cas. No. 13,745; Peabody v. Harmon, 3 Gray, 113. 2 See Wormsley v. Sturt, 22 Beav. 398; Re Lord's Estate, L. R. 2 Eq. 605. & Re Blake, 2 N. B. R. 10, Fed. Cas. No. 1492; Re Trask, 7 Ben. 60, Fed. Cas. No. 14,141; Re Fredenburg, 2 Ben. 133, Fed. Cas. No. 5075; Re Feinherg, 3 Ben. 162, Fed. Cas. No. 4716; Re Fay, 3 N. B. R. 660, Fed. Cas. No. 4708; Re Danforth, 1 Penn. L. J. 148, Fed. Cas. No. 3560; Clement's Case, L. R. 13 Eq. 179, n.; Garrison v. Markley, 7 N. B. R. 246, Fed. Cas. No. 5256; Re Pioneer Paper Co., 7 N. B. R. 250, Fed. Cas. No. 11,178. See infra, § 470. 4 Per Ld. Westbury, Rolt v. White, 3 De G. J. & S. 360. 5 Thus the residence of the bankrupt, or his wife or father, may be asked by way of giving useful information. Ex parte Vogel, 2 B. & A. 219; Ex parte Campbell, L. R. 5 Ch. 703; Fricker's Case, L. R. 13 Eq. 178. In this case the Vice-Chan may directly or indirectly aid the assignees or the creditors in the discovery or settlement of the estate of the bankrupt, or his discharge. If there is probable cause to believe that the inquiry will, or can, lead to valuable information, though indirectly, it is legitimate.1 § 157. Upon what Subjects. The examination of the bankrupt is intended for the information of his assignees and general creditors taking part in the proceedings, and is not governed by the strict technical rules which obtain in ordinary trials. He may, therefore, sometimes be asked as to matters of hearsay, if the subject is material.2 He is not to be interrogated for the purpose of defeating the proceedings, nor upon immaterial subjects, such as the character of certain debts, as fiduciary, or not, which will not be discharged by his certificate. § 158. In England, Bankrupt must answer Criminating Questions. Whether a bankrupt may decline to answer questions that tend to criminate him is a point that has been much discussed. Lord Eldon suggested that the bankrupt was bound to disclose all his property and dealings, though it might incidentally appear that his transactions were illegal; and, again, that he might decline to answer, and yet be liable to imprisonment for not answering. Lord Lyndhurst decided that he might decline to answer questions which had a direct and immediate tendency to criminate him. The text-books state the rule, in the language of Lord Eldon, that he must answer as to his estate and dealings, though he may incidentally criminate cellor said, "In bankruptcy, a very wide net is thrown to obtain evidence." So, the particulars of a sale of shares by a contributory before the winding up. Clement's Case, L. R. 13 Eq. 179, note. So, examination in aid of proposed action in Parliament. Re Contract Corp., L. R. 6 Ch. 145. See Re Falk, 2 Dea. & Ch. 415; Ex parte Legge, 22 L. J. Q. B. 345. So, inquiry into property in the present possession of the bankrupt or his wife is allowable, in order to exclude its having been acquired or conveyed in fraud of the statute. Re 5 Rosenfield, 1 N. B. R. 319, Fed. Cas. 1 See note 5, p. 118. 2 Re Ottoman Co., 15 W. R. 1065.8 Anon., 6 L. T. N. s. 166. [Or to assist a creditor in an action pending against the bankrupt: Re Easton, 8 Morrell, 168; or the trustee in an action against a creditor whom he has summoned for examination: Re Franks, 9 Morrell, 90.] 4 Ex parte Cossens, Buck, 531. himself; but is not bound to answer concerning a criminal act. But I understand the law of England to be that he must answer all questions pertaining to his estate and dealings, though these answers may tend to criminate him directly or indirectly. In the leading case of Regina v. Scott, in which evidence obtained from a bankrupt in his examination, under threat of commitment, was admitted against him on the trial of an indictment, Coleridge, J., dissented, not on the ground that the answers were not properly obtained, but that, having been obtained by compulsion, they ought not to be used to his prejudice in a criminal case. This humane and reasonable argument has approved itself to the judgment of some courts in the United States, but is beside our present inquiry. By § 159. Constitutional Protection in the United States. the Constitution of the United States, and by that of every State, no person is bound to give evidence against himself in respect to any crime. An act was passed by Congress in 1868 which was probably intended to avoid the constitutional objection to examining bankrupts upon matters which might criminate them. It provides that no discovery or evidence obtained from a party or witness, by means of a judicial proceeding, shall be given in evidence, or in any manner used against him in any court of the United States, in any proceeding of a criminal nature, or for the enforcement of a penalty or forfeiture. Whether this statute affords such a protection to a bankrupt that he must answer criminating questions, is an open question. It does not purport to protect him against proceedings in the State courts; but even as to criminal frauds 1 Robson, 7th ed., p. 631; Lee, 2d ed., p. 136. See Ex parte Heath, 2 Dea. & Ch. 214; Re Feaks, ib. 226; Re Smith, ib. 230; Ex parte Meymot, 1 Atk. 196; Re Pratt, 1 Glyn & J. 58. 2 Reg. v. Scott, Dears. & B. C. C. 47; Reg. v. Cross, ib. 68; Reg. v. Skeen, Bell C. C. 97; Reg. v. Robinson, L. R. 1 C. C. 80; Reg. v. Cherry, 12 Cox C. C. 32; Reg. v. Widdop, L. R. 2 C. C. 3; Ex parte Schofield, 6 Ch. D. 230. 8 Dears. & B. 47. 4 People v. Underwood, 16 Wend. 546; United States v. Prescott, 2 Dillon, 405, Fed. Cas. No. 16,085. 5 15 Stat. 37; R. S. § 860; Act of 1898, § 7 (9). Re Bromley, 3 N. B. R. 686; Re Richards, 4 N. B. R. 93, Fed. Cas. No. 11,769; Re Vogel, 5 N. B. R. 393, Fed. Cas. No. 16,984. See Re Patterson, 1 Ben. 508, Fed. Cas. No. 10,815; Re Koch, 1 N. B. R. 549, Fed. Cas. No. 7916. See Ex parte Clarke, 103 Cal. 352. on the bankrupt law, a statute of this sort cannot fully protect a person from the effect of his disclosures, because, when the criminating fact has been discovered, the means of proving it may often be at hand without any breach of such a statute. § 160. Examination of Attorney. The bankrupt's attorney is not bound to disclose his client's communications. It was once ruled by a learned commissioner, that since the privilege of the attorney depends on that of his client, and since a bankrupt is bound to answer fully as to all his estate, dealings, etc., his attorney must disclose the bankrupt's communications.2 This reasoning is unsound. It is true, in all cases where a party to the action can be interrogated, that he must answer all pertinent questions; but this does not destroy the privilege which is established upon grounds of public policy, that every one's consultations with his attorney are sacred.3 Indeed, it has never been held that a bankrupt must disclose his communications with his attorney, though he must state the same facts which were the subject of the communications. If the bankrupt consents, the attorney may testify.4 § 161. Examination, how used in Evidence. The examination will be evidence against the deponent himself on questions of title, or to contradict him if called as a witness for others; but he has the right to have the whole examination put in, that his explanations may be considered with his admissions.5 Irregularity in taking the deposition, or the neglect to sign it, will not, necessarily, in the absence of fraud or oppression, exclude the evidence; nor is the deposition primary evidence, to the exclusion of the recollection of persons who heard his admissions. But, the examination being adverse, a failure of 6 1 Flight v. Robinson, 8 Beav. 22. 2 Re Elliott, Fonbl. 74. upon evidence of this kind, that one would be likely to believe all that the See Greenough v. Gaskell, 1 Myl. witness had said against his own inter& K. 98. 4 Merle v. Moore, 2 C. & P. 275. 5 Goss v. Quinton, 3 M. & G. 825 ; Ex parte Ely, 1 M. D. & De G. 357; Ex parte Holdsworth, ib. 475; Ex parte Smith, 2 M. D. & De G. 213; Ex parte Majoribanks, De G. 466; Judd v. Gibbs, 3 Gray, 539. A learned judge remarked ests, but not what was favorable to him. Per Alderson, B., Russell v. Bell, 10 M. & W. 340, 352. 6 Milward v. Forbes, 4 Esp. 172; Yates v. Carnsew, 3 C. & P. 99; Knowlton v. Moseley, 105 Mass. 136. 7 Rowland v. Ashby, 1 C. & P. 649. |