
    CANADA SHIPPING CO., Respondent, v. WALTER S. SINCLAIR, Appellant.
    
      Order for examination.—Privilege of zoitness, when to he asserted.
    
    The affidavit upon which the order for the examination of defendants to enable plaintiff to frame its complaint, was granted, showed that plaintiff, as common carrier, had a special property in certain goods which were stolen from it, and thereafter a portion of the same came into the possession of defendants, and that the action was brought to recover the same or its value; that plaintiff was unable to state the number of bales, their weight, etc.
    
      Held, that in this case, the order should not be set aside on the ground that the testimony to he given would make defendants liable to indictment for receiving stolen goods, but defendant should be left to take the objection) on the examination.
    Before Truax and Ingraham, JJ.
    
      Decided May 16, 1883.
    Appeal from an order of the special term, denying motion of defendant to vacate an order for the examination of defendant to enable plaintiff to frame the complaint in this action.
    The facts appear in the opinion.
    
      Richard S. Newcomb, for appellant.
    —A party cannot be examined before trial when the examination would tend to show that he had committed a crime or misdemeanor, or would subject him to a criminal prosecution or to arrest (Taylor v. Bruen, 2 Barb. Ch. 301; Leggett v. Postley, 3 Paige Ch. 599; Corbett v. De Comean, 44 Super. Ct. 306; Yamato Trading Co. v. Brown, 63 How. 283; Henry 
      v. Bank of Salina, 1 N. Y. 83; Burbank v. Reed, 11 Week. Dig. 576; S. C., 1 Civ. Pr. Rep. 42; Phoenix v. Dupuy, 2 Abb. N. C. 146; Beebe v. Richardson, 2 McC. C. P. Rep. 319; Juillard v. Hamlin, Id. 321; Russ v. Campbell, 1 Civ. Pr. Rep. 41; Walker v. Dunleavy, 2 McC. Civ. Pr. Rep. 6). The court will not allow an examination to proceed where it is evident that the witness cannot be compelled to answer a single material question under it, as in this case (Corbett v. De Comeau, 44 Super. Ct. 312). In such case, to compel the defendant to take the oath and then reassert his privilege, would be an idle ceremony (March v. Davidson, 9 Paige, 586; Burgess v. Smith, 2 Barb. Ch. 276; Dykers v. Wilder, 3 Edw. Ch. 496).
    
      C. Stewart Davison, for respondent.
   By the Court.—Ingraham, J.

—From the affidavit on which the order for the examination of the defendant was granted, it appears that plaintiff had, as common carrier, a special property in thirty-one bales of rubber, which were stolen from the plaintiff about January 10, 1883, and “some portion of which were in possession of defendant; that the action was begun to recover the return of the property or the value thereof from the defendant; and that- it was impossible for plaintiff to allege the number of the bales that came into possession of the defendant, or the weight of the rubber, or to properly frame the complaint, without the examination of - the defendant. On the affidavit, the-defendant moved to vacate the order for the examination of the defendants, which motion was denied, and from that order denying such motion, the defendants appeal.

The ground upon which it is claimed that the order should be reversed is, “ that the testimony to be given would make defendant liable to indictment for receiving-stolen goods.”

The possession of goods that have been stolen is not of itself a crime. The crime is only committed when a person buys or receives property stolen from another, knowing the same to have been stolen (2 R. S. [Edm.] 700 § 71).

The right of a witness to object to answer a question which would tend to convict him of a crime is a personal privilege, and should be "urged when he is asked the questions having such a tendency.

It is not sufficient ground for setting aside an order for his examination, unless it should appear that the testimony which the party seeks to obtain relates exclusively to facts, which if proven, would show that the witness was guilty of a crime.

In this case the object of the examination is to identify the goods stolen from the plaintiff which it is claimed came into the possession of the defendant.

That of itself would not be a crime. It would undoubtedly be one of the facts which it would be necessary to prove to convict of the crime of receiving stolen goods; but as the fact is consistent with the innocence of the defendant, 1 am of the opinion that the objection should be left to be passed on upon the examination itself (Batterson v. Sanford, 45 Super. Ct. 127).

The order should be affirmed, but without costs.

Truax, J.—I concur in the result, because I think that in this particular case the defendant should be left to take the objection upon the examination.  