Martin v. Clapp

99 Mass. 470

Opinion

Wells, J.

Proceedings under the Gen. Sts. c. 96, § 6, are for the purpose of discovery in a summary mode. They are not the foundation of any decree, but are merely subsidiary to some other proceeding, either in the same or some other court. The examination is wholly in writing. The judge has no occasion to scrutinize the manner or appearance of the respondent, nor to pass upon the correctness or falsity of her statements. She is not a witness, but a party, entitled to an appeal. Arnold v. Sabin, 4 Cush. 46. No supporting and no opposing testimony is received. The discovery is not only the purpose, but the end of the proceedings under the complaint.

Upon an examination under a similar provision of the insolvent laws, it was decided (Ex parte Winsor, 8 Law Reporter, 514, referred to in argument) that the party cited should be permitted to consult counsel before making his answers. The opinion of the court in the case of Peabody v. Harmon, 3 Gray, 113, indicates that in the examination of a creditor offering his claim for proof in insolvency the privilege of consulting counsel is a matter of discretion with the judge or commissioner, to be exercised in view of the circumstances of the particular case, and the nature of the inquiry.

The reasons for regarding the privilege of counsel as the right of a party cited for examination upon a complaint under this statute are much stronger than in the case of a creditor offering his claim for proof. Whether it be an absolute right, or only a privilege to be enjoyed with the permission and at the discretion of the judge of the probate court, we are of opinion that the appeal in this case cannot be sustained. Although the privilege of counsel was claimed as a right, it does not appear to have been conceded as such. There is nothing in the case to show that it was not properly granted.

Decree of probate court affirmed.