
    BRIGGS a. MATSELL.
    
      New York Common Pleas;
    
    
      Before Hon. D. P. Ingraham,
    October, 1855.
    APPLICATION FOR AN ATTACHMENT.
    An attachment will not be granted under the act of February 8, 1855, against a witness subpcenaed to attend and testify before a Committee of the New York Common Council, unless it satisfactorily appears to the judge to whom the application is made)—
    1. That the witness refused to obey a subpeena issued by the clerk, — or
    2. That, on appearing, he refused to be sworn as a witness, — or
    3. That after being sworn he refused to answer some question, which, in the opinion of the judge, was a question proper to be put.
    Therefore, where the witness attended pursuant to the subpeena, and submitted to be sworn, and then stated that he declined generally to answer any questions, and none were put to him by the committee — an attachment was refused.
    The committee of the New York Common Council who applied for an attachment against Mackellar and others, (Briggs a. Mackellar, Ante, 30), subsequently, in continuing their investigation subpoenaed George W. Matsell to attend and testify before them. The witness appeared, and was sworn, but before any questions were put to him declined to answer any questions that might be proposed. Accordingly, this application was made, for an attachment against him.
    
      A. Nash and IF. C. Noyes for the motion.
    
      J. P. Burchard and J. T. Brady opposed.
   LstgRAham, F., J.

An application is made to me in this matter for an order requiring Cf. W. Matsell to show cause why an attachment should not issue against him for refusing to answer any questions which the Committee might think proper to put him. On examining these papers, I am not satisfied that the facts necessary to give me jurisdiction are stated in the papers.

When Matsell appeared before the Committee he did not object to be sworn as a witness, but after being sworn, before any questions were put to him, he handed the Chairman of the Committee a paper, in which he declined to answer any question. However ill advised such a proceeding may have been on his part, still I do not consider that the Committee have placed him within the provisions of the statute so as to authorize this proceeding against him.

The statute gives to the judge of this Court a special power to attach, but which he can only exercise upon satisfactory proof being furnished to him either that the party complained of refused to obey a subpmna issued by the Cleric, or, on appearing, refused to be sworn as a witness, or, after being sworn, refused to answer any proper question. It is as important that the question should be stated, which was put to the witness, as it is to show his refusal to answer. The judge, before allowing the attachment, is to be satisfied that the question put to the witness was a proper one — pertinent to the matter in issue, and one which the witness should be required to answer. The rule is the same when the witness is examined in a court of justice. A witness is not required to answer an immaterial question, nor one which tends to convict him of crime — and before it can be decided that the witness must answer, the Court should know what question was proposed to be answered.

Notwithstanding the general refusal of the witness, I am of opinion that the Committee should have proposed specific questions to the witness pertinent to the matter pending before them. They might have rested after proposing one question, or they might have proposed all the questions they thought to be material, and in either case, after refusal, this proceeding would be proper, but until some question is put to the witness, and he refuses to answer a specified question, I do not think I have any jurisdiction under the very limited power conferred by the statute in this matter; I think it, therefore, unnecessary to grant an order to show cause on these papers, until the defect above pointed out is remedied.  