Marshall v. Riley

• Citation: 7 Ga. 367
• Decision Date: 31 August 1849
• Docket Number: N0. 60.
• Parties: Warren W. Marshall, plaintiff in error. vs. Spencer Riley, defendant.
• Court: Supreme Court of Georgia

7 Ga. 367

Warren W. Marshall, plaintiff in error. vs. Spencer Riley, defendant.

N0. 60.

Supreme Court of the State of Georgia

AUGUST TERM, 1849.

Assumpsit, in Bibb Superior Court. Tried before Judge Floyd, July Term, 1849.

The plaintiff in error brought suit against the defendant, on a promissory note for $150, to which special defence was made that the note was given for services rendered by plaintiff as a practitioner of medicine; that he never was licensed by the Board of Physicians, established by the Statute of the State, and was, therefore, not entitled to sue for and recover compensation for such, services.

Pending the trial at July Term, 1849, defendant having previously filed interrogatories for the plaintiff, under the Act of Dec. 17, 1847, ^* \'\'compelling discoveries at Common Law, " demanded the answers of the plaintiff to be filed in office. Plaintiff objected, on the ground that he had various grounds of demurrer to the interrogatories and the testimony thus sought, and if filed, the contents of the answers would be proven, though the demurrer was sustained. The Court ordered the answer to be filed, and defendant excepted.

The following were the interrogatories filed:

"Georgia, Bibb County:

"Interrogatories to be submitted to the plaintiff, under the Statute in such cases made and provided, his testimony being material to the defendant in the case.

"Int. 1. Inquired as to the consideration of the note.

"Int. 2. Are you a regular licensed physician of any Medical Board in the State of Georgia? If not, under what authority do you charge fees as a physician?

"Int. 3. (Immaterial.)"

On these interrogatories the Court granted an order requiring the plaintiff to answer.

The answers to the interrogatories being offered by the defendant in evidence, plaintiff objected—

1st. Because the interrogatories are not in conformity with the Statute, in not stating that the discovery sought is indispensable todefendant\'s defence, and because no affidavit is filed by the defendant, as required by the Statute.

2d. Because an answer by the plaintiff, acknowledging that he had no license, would, under the Statute, subject him to a prosecution for a misdemeanor, or any acknowledgment which might be used as a link in a chain of evidence on such a prosecution.

The Court overruled the first objection, and sustained the second, so far as related to plaintiff's license as a physician, and no farther, remarking, that the Court might have sustained the second objection in toto, but that it would do the plaintiff no good, as the answers had been filed, and the defendant's attorney having seen them, would be allowed to prove their contents.

To which decisions defendant excepted—

1st. To the overruling the first objection.

2d. To the overruling a portion of the second.

3d. To the holding that any person who had seen the answers, might prove their contents after the answers themselves were ruled out on demurrer.

Anderson, for plaintiff in error, cited—

3 John. Ch. B. 45. 1 John. 543. 4 Ib. 509. 2 Paige, 601.

Stubbs, represented by Calhoun, for defendant.

By the Court.— Lumpkin, J., delivering the opinion,

The taking of the testimony of the plaintiff in this case, was under the Act of 1847, "to authorize parties to compel discoveries at Common Law." It requires that the interrogatories be filed, and then it must be made to appear to the Court where the cause is pending, by the oath of the party filing the same, or otherwise, that the answers thereto will be material evidence in the suit, and that the questions propounded are pertinent, and such as the adverse party would be bound to answer upon a bill of discovery in a Court of Chancery.

It may be questioned, whether the Legislature intended to authorize an appeal to the conscience of his adversary, where the aliunde testimony was sufficient, and in the power of the party. The Statute, however, simply requires that the discovery soughtshall he material, and not, in the language of the exception, that it should be indispensable.

That the order to answer should be based upon the affidavit of the applicant, or some showing equivalent to this, is manifest. Here, the order does not purport to be founded upon any such evidence, nor does any such accompany the record. We hold, therefore, that the exception, upon this point, was well taken.

We think, too, that the Court erred in ruling that the answers of the plaintiff might be read as to the consideration of the note sued on. The Act of 1825, subsequently repealed, but revived in 1839, forbids any person to practise physic or surgery, or any of the branches thereof, or in any case to prescribe for the cure of diseases, for fee or reward, unless licensed to do so; and for the first violation of the law, a fine not exceeding $500 is imposed, and for the second offence, imprisonment not exceeding the term of two months. Cobb's Analysis, 602. And it is farther enacted, that on the trial of all indictments under the Act, it shall be incumbent on the defendant to show that he has been licensed, to exempt him from punishment. Ib. To compel the defendant, therefore, to testify that the note which was the subject matter of the action, was given to him as a fee for services rendered in curing a cancer upon the wife of Riley, would be to furnish all the testimony needed to convict him under the Statute; the presumption being, according to its provisions, that he had no license.

The maxim of the Common Law, nemo tenetur seipsum prodere, that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime, is founded in great principles of constitutional right, and was not only settled in early times in England, but was brought by our ancestors to America, as a part of their birthright. "This, " says Mr. Cooper, "is a maxim of the law, founded upon the principles of British freedom, and may be considered as one of our constitutional rights and privileges. It has been encroached upon in arbitrary reigns, and particularly while the Court of Star Chamber was in existence, of which the process and pleading were the same as in Chancery, but extended even to criminal informations, to which the party accused was obliged to answer on oath. This drew it into the greatest odium, and was the principal cause of its downfall. The Court of Chancery, however, has never compelled a party tocriminate himself, and the fate of the Court of Star Chamber has, perhaps, made it still more strict in the observance of this rule of pleading. And it is so fundamental a rule, that Equity, which interferes in almost every other case, to prevent the application of the general law from working injustice, will not interfere against this rule." Eq. Pl. 203.

It was the great boast of Lord Hardwick, says Judge Story, that the general rule, established with great justice and tenderness in the law of England, is fully recognized and acted on in Courts of Equity, that no person shall be obliged to discover what may tend to subject him to a penalty or punishment, or to that which is in the nature of a penalty or punishment. Harrison vs. Southcote, 2 Ves. 394.

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