Mowatt v. Graham — 1 Edw. Ch. 13

Majority

p. 13

Mowatt and others, vs. Graham and wife.

Headnote

A witness who demurs to a question put to him in the examiner’s office, cannot bring the matter before the court. It is for the party who puts the .question to do so; and if he does not, no one else ought or can.

In the course of taking testimony on the part of the complainants before the examiner, the solicitor was examined as a witness. Upon a certain question being asked Mm, he refused to answer it, and put in a demurrer, alleging professional confidence. The examination was continued upon other questions put to the witness, and his deposition was completed. The opposite side took no measures for compelling an answer to the question demurred to. .

May 21, 1831.

Mr. C. G. Troup, and Mr. W. B. Lawrence,

now attempted to bring it before the court, upon an affidavit and notice of motion “that the demurrer mentioned in the said affidavit be “set down for argument on the calendar of causes, or that the “complainants have leave to bring on the argument of the said • “demurrer, or for such other order,” &c.

Mr. Charles O’Connor, opposed.

A witness who demurs to a question is not the proper person to bring it before the court. If the party putting the question asks for no attachment, nor in any w.ay brings the point before the court, no one else can.

The question must be considered as waived, or the demurrer well taken, unless he, who put the question, persists in it and takes measures to have the demurrer disposed of.

Motion denied.