La Fontaine v. Southern Underwriters Ass'n

• Decision Date: 30 June 1880
• Citation: 83 N.C. 132
• Court: North Carolina Supreme Court
• Parties: LOUIS LAFONTAINE v. SOUTHERN UNDERWRITERS ASSOCIATION.

83 N.C. 132

LOUIS LAFONTAINE

v.SOUTHERN UNDERWRITERS ASSOCIATION.

Supreme Court of North Carolina.

June Term, 1880.

RULE upon a witness to show cause why he should not be attached for contempt in refusing to answer certain questions, heard at January Special Term, 1880, of WAKE Superior Court, before Avery, J.

This was a proceeding supplementary to execution, and on the 10th of April, 1878, an order was made by the judge of the superior court, requiring George W. Blacknall, the treasurer and managing agent of the defendant association, to appear before a referee who was appointed to take and certify the examination of said Blacknall and such other witnesses as may be brought before him, to make discovery concerning the property and effects of the defendant. And it was further ordered that the referee be vested with such powers in the conduct of the examination as are conferred upon him by law. After due notice, the said Blacknall appeared before the referee, and was sworn and examined as a witness. He declined to answer the questions set out in the opinion of this court, and for the reasons therein stated. The referee ruled that the questions (except one) were proper, but that he had no power to compel the witness to answer, and certified the same to the court to the end that the witness may be dealt with touching his refusal to answer. And upon motion before Eure, J., at June term, 1879, the witness was ordered to show cause why he should not be attached for contempt. In answer to the rule, the witness stated in his affidavit, in substance, that his refusal to answer was based solely on the ground of his privilege as a witness, that is, that he could not be compelled to give evidence which might tend to self-crimination. The hearing of the matters set forth in the answer to the rule was continued until January term, 1880, when the plaintiff's counsel moved to make the rule absolute and declare the witness in contempt. His Honor held that the witness should be compelled to answer the question in reference to the possession of the books of the defendant association, and how he had disposed of the same, and also that he should answer question No. 8, in reference to the existence of any assets of the association, and that he was not compelled to answer the other questions. The referee was ordered to proceed with the examination, and the witness to appear on Wednesday of the next term and show that he had obeyed the order of the court, or show cause why he should not be attached for contempt. From this ruling the plaintiff appealed.

Messrs. Hinsdale & Devereux and A. W. Haywood, for plaintiff .

Messrs. Merrimon, Fuller & Fuller and R. C. Badger, for defendant .

SMITH, C. J.

In executing the order under which the referee is directed “to take and certify the examination of George W. Blacknall and such other witnesses as may be required to appear before him” to make discovery and to examine concerning the property and rights of the said defendant, certain interrogatories were propounded to the witness named, which he declined to answer. These interrogatories, numbered consecutively from 2 to 22 inclusive, omitting those numbered 3 and 4 as not material, are as follows:

2nd question. “Have you the books mentioned in the subpœna and belonging to the Southern Underwriters' Association in your possession?” The witness answers “I have been indicted with two other persons in the superior courts of Bertie and Cumberland counties, N. C., for conspiring to cheat and defraud, which indictments are founded on an alleged connection and management of the business and affairs of the Southern Underwriters' Association, the defendant herein. These indictments are still pending. I believe they are and were prosecuted for the purpose of black-mailing. But as they are still pending, I object and decline to answer the question asked me, on the ground that such answer might tend to criminate me.” The referee required this question to be answered.

5th question. “Have you ever had possession of the books referred to?”

6th. “Do you know who now have them in possession; if so, who?”

7th. “When and where did you last see them?”

8th. “Do you know of the existence of any assets of the Southern Underwriters' Association?”

9th. “Did the S. U. Association ever own any U.S. bonds; if so, what has become of them?”

10th. “Did the S. U. Association

ever own any North Carolina R. R. bonds, or any county or city bonds; if so, where are they now?”

11th. “Has the S. U. Association ever owned any mortgages upon real estate in North Carolina, if so, please give me an account of the same?”

12th. “In whose names were the mortgages taken, if any?”

13th. “What disposition has the company aforesaid made of these mortgages, if it ever had any?”

14th. Were you ever treasurer of this company?” Ruled out.

15th. “Did these bonds or any of them, or any of the securities referred to, come into your hands as treasurer of said company, or at all since the organization of the company?”

16th. “Have you been treasurer at any time since the organization of the S. U. Association, of that company?”

17th. “If the S. U. Association has at any time since its organization been in possession of any United States bonds, from whom did it obtain them, when and upon what terms?”

18th. Were any United States bonds and other securities exhibited to the secretary of state of North Carolina at any time since the organization of the company as the property of the company; if so, when, where, what bonds and securities, from whom obtained, upon what terms, and where are they now?”

19th. “Were you one of the original subscribers to the company; if so, how much stock did you take, and did you pay it up?”

20th. “If you paid your subscription, how did you pay?”

21st. “Do you know where the cash account was kept; if so, where?”

22d. “Do you mean to swear that it might criminate you to tell where the company kept their cash account?” Ruled out, no answer.

To all these questions the witness replied in substance: “I decline to answer upon the ground that it might criminate me.”

The referee reported the refusal of the witness to the court, and thereupon His Honor decided that the witness should answer questions numbered two and eight, and should be excused from answering the others, for the reasons assigned by him. From this ruling the plaintiff appeals to this court, and its correctness is the only reviewable matter presented for our consideration.

1. It is insisted on behalf of the witness that his contumacy can be corrected and controlled only by the referee, and that the court has no cognizance thereof: The referee has power to enforce obedience to his rulings, on the trial of the issues before him, just as the court would have upon the trial before it by virtue of the express provisions of C. C. P., § 246. But this is not a trial, and the scope and purpose of the reference is alone the collection of the evidence and the relief of the court from the delay and trouble of taking it, and in such cases the authorities cited are decisive of the regularity of the course here taken. Ed. Ref., 40; Forbes v. Willard, 37 How. Prac. Rep., 193; Lathrop v. Clapp, 40 N. Y., 328.

2. It is again objected that an attachment for disobedience of an order of the court is not authorized by the act of 1869. Bat. Rev., ch. 24. The power is expressly conferred upon every court of record by par. 4, § 7, which declares that such court shall have power to punish for contempt “all persons summoned as witnesses in refusing or neglecting to obey such summons to attend, to swear, or answer as such witness.” It is moreover an essential attribute of a court to enforce by proper process its own lawful orders, and without this power its essential functions would be paralyzed or destroyed, as was said in Pain v. Pain, 80 N. C., 322; C. C. P., § 274.

These objections being removed, we are now brought to the consideration of the question as to the obligation of the witness, and his right to refuse to answer the enquiries because, as he states, it may tend to criminate himself.

The proceeding against the defendant is to ascertain if it has assets, where they are and in what they consist, with a view to subject them to the plaintiff's judgment, and the information is refused on the ground that the witness is charged with a conspiracy with others, in fraudulently disposing of the assets. The plaintiff has a clear legal right to all the evidence tending to elucidate the enquiry and aid him in subjecting the property of his debtor to the satisfaction of his claims, and the refusal is only admissible when the disclosure of the witness tends to prove his connection with crime and contravenes the immunity guaranteed in the constitution, Art. I, § 11.

In all criminal prosecutions every man has the right to be informed of the accusation against him, &c., “and shall not be compelled to give evidence against himself.” The fair interpretation of this clause seems to be to secure one who is or may be accused of crime, from making any compulsory revelations which may be given in evidence against him on his trial for the offence.

So it is held, that if he has been tried or has been pardoned, or the prosecution is barred by the lapse of time, so that he is no longer exposed to a prosecution, he cannot ask to be protected from making a disclosure material to the pending investigation. In such case the evidence can never be used against him, because he can never be put on trial, and never incur any peril thereby. 1 Whar. Cr. Law, § 808.

While it is extremely difficult to discriminate the cases where the witness may and may not be compelled to testify, there is a general concurrence of the authorities that the matter is not left to the decision...