Daly, Ch. J.
The examination of an adverse party before trial provided for by section 391 of the Code is a substitute for the former remedy by bill of discovery, which was abolished by this chapter of the Code, and may be had where a bill for a discovery would previously have been sustained (Car agt. W. W. Ins. Co., 3 Daly, 160; King agt. Leighton, 58 N. Y., 383; Glenny agt. Stedwell [Ct. of App.] 51 How., 329 ; 1 Abb. N. C., 273, and note 332; Wiggin agt. Gans, 4 Sandf, 647).
This remedy was formerly the only way in which proof of a fact exclusively within the knowledge of one of the parties could be obtained, because parties in actions at law could not then, as they can now, be called as witnesses upon the trial. It was, moreover, the only effectual mode of getting at a knowledge of the contents of documents which were in the possession of the other party, and of proving what they contained ; for the relief which courts of law could afford was limited and attended with many difficulties before the statutory remedy was enacted for compelling the production and inspection of books and papers by a motion before trial. The statutory provision allowing parties to be examined as witnesses, either on their own behalf or by the adverse party, and of compelling, by motion, the inspection of books and [167]*167papers, have to a great degree dispensed with the necessity of this discovery of evidence before trial, although the right to it remains the same as before.
In view of the abuses that would arise if a party, either before any action was brought or before he had stated his cause of action in a pleading, or after an answer had been served, were allowed, without any restriction or limitation, to subject the other party to an inquisitorial investigation, under oath, to ascertain whether he could make out a cause of action, or whether his adversary could probably succeed in establishing a defense, courts of equity, at an early period, imposed limits to such investigations, by requiring that it should appear by the bill that the matter sought to be discovered was essential to the establishment of a cause of action or of a defense. “ A system of judicial inquiry,” says Mr. Hare, “ would be obviously defective, which had no means of obtaining and compelling a production of evidence from the parties themselves, whilst a system which should set no bounds to the power of scrutiny would be fertile in expedients of oppression.” And in respect to the rules and principles by which courts of equity were guided in allowing or refusing such discoveries, he further remarks: “ They are the result of that scrupulous care with which a long succession of eminent judges have asserted the power of judicial investigation, without sacrificing the security and secrecy which all are entitled to claim and to preserve. They define and reconcile the rights of individual privacy and the demands of public justice. They express the extent of the privilege,” whilst the limits they impose are “identified with the administration of justice, and depend upon principles which are perpetual ” (Hare on Discovery, 11, 12 and 13).
Bills for the discovery of evidence being, however, expensive and dilatory, were so seldom' resorted to after the inspection of documents could be compelled by motion, and especially after parties could in all cases be examined as witnesses, that the object of this provision in the Code abolish[168]*168ing such bills, and substituting in their stead the simple and inexpensive procedure provided for by section 391, was not understood. By many it was interpreted literally, as giving the right to examine the party before trial, without any restriction or limitation whatever, wholly overlooking the his-' tory of this branch of jurisprudence and the abuses, injustice and oppression that could be practiced if that were permitted. Judge J. L. Mason, it is true, shortly after its enactment declared, in Wiggin agt. Gaines (4 Sandf., 647), that this .provisión was a substitute for bills of discovery, and nothing else; “that the examination referred to in it meant, upon every fair principle of interpretation, any examination for the purpose of discovery in which formerly a bill of discovery would have been resorted to; ” and that “ where-ever a bill of discovery could have been filed, under the former practice, in support or defense of an action, there the party might be examined in the mode presented in this chapter, and in no other mode.” But this interpretation was not followed, and it was held in subsequent cases, as it had been previously held, that upon a simple notice of five days, given by the opposite party — except the judge should, by order, fix a different time — a party was compelled, before the trial, to appear before the judge, at the time and place specified, and be examined under oath as a witness (Taggart agt. Gardner, 2 Sandf, 669; Green agt. Wood, 15 How., 342; Cook agt. Bidwell, 19 id., 483).
In Garrison agt. The Mariposa Co. (N. Y. Com. Pleas, S. T., 1868), I declined to follow these cases, and held, as judge Mason had held, that it was simply a substitute for the former remedy by bill of discovery; that it was, consequently, subject to the rules and principles that courts of equity had.applied to prevent abuse, oppression or injustice, and could not be had without an affidavit showing that the discovery sought was of some matter material to the establishment of a cause of action or of a defense, so that the party could know exactly what he was called upon to dis[169]*169cover, that he might, as in a bill of discovery, object to it as immaterial or improper, or, if willing to do so, admit it; or, if he were examined, that the judge might confine the investigation within the limits of the discovery sought (And see Carr agt. G. W. Ins. Co., 3 Daly, 160).
The effect of holding that this examination of a party before trial was an absolute right without any qualification or restriction, soon became apparent where the party summoned his adversary to be examined in this way, before any complaint was filed and where the judge had nothing before him to indicate what the examination was to be about, and was left wholly without guide as to its extent, range or purpose. In view of this difficulty, and the consequence to which it would lead, it was held in a large number, of cases (from Chichester agt. Livingston, 3 Sandf, 718, to Norton agt. Abbott, 28 How., 388) that this examination could not be had at all until after issue joined. But this did not suffice. In later cases; this construction, for which there never was any foundation, was not adhered to, and it was. held that the examination might be had either before or after issue joined (Mc Vicar agt. Ketchum, 1 Ab.[N. S.], 452; Bell agt. Richmond, 50 Barb., 571), and to meet, under this interpretation, the difficulty before suggested, it was held, first by Barboub, J., in Green agt. Herder (7 Rob., 455), that if the application is made before the service of a complaint, it must be upon an affidavit stating: First, if made by the plaintiff, the nature of the action and demand; second, if made by the defendant, the nature of his defense; third, the name and residence of the witness, and afterwards by Jones, J., in Duffy agt. Lynch
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Daly, Ch. J.
The examination of an adverse party before trial provided for by section 391 of the Code is a substitute for the former remedy by bill of discovery, which was abolished by this chapter of the Code, and may be had where a bill for a discovery would previously have been sustained (Car agt. W. W. Ins. Co., 3 Daly, 160; King agt. Leighton, 58 N. Y., 383; Glenny agt. Stedwell [Ct. of App.] 51 How., 329 ; 1 Abb. N. C., 273, and note 332; Wiggin agt. Gans, 4 Sandf, 647).
This remedy was formerly the only way in which proof of a fact exclusively within the knowledge of one of the parties could be obtained, because parties in actions at law could not then, as they can now, be called as witnesses upon the trial. It was, moreover, the only effectual mode of getting at a knowledge of the contents of documents which were in the possession of the other party, and of proving what they contained ; for the relief which courts of law could afford was limited and attended with many difficulties before the statutory remedy was enacted for compelling the production and inspection of books and papers by a motion before trial. The statutory provision allowing parties to be examined as witnesses, either on their own behalf or by the adverse party, and of compelling, by motion, the inspection of books and [167]*167papers, have to a great degree dispensed with the necessity of this discovery of evidence before trial, although the right to it remains the same as before.
In view of the abuses that would arise if a party, either before any action was brought or before he had stated his cause of action in a pleading, or after an answer had been served, were allowed, without any restriction or limitation, to subject the other party to an inquisitorial investigation, under oath, to ascertain whether he could make out a cause of action, or whether his adversary could probably succeed in establishing a defense, courts of equity, at an early period, imposed limits to such investigations, by requiring that it should appear by the bill that the matter sought to be discovered was essential to the establishment of a cause of action or of a defense. “ A system of judicial inquiry,” says Mr. Hare, “ would be obviously defective, which had no means of obtaining and compelling a production of evidence from the parties themselves, whilst a system which should set no bounds to the power of scrutiny would be fertile in expedients of oppression.” And in respect to the rules and principles by which courts of equity were guided in allowing or refusing such discoveries, he further remarks: “ They are the result of that scrupulous care with which a long succession of eminent judges have asserted the power of judicial investigation, without sacrificing the security and secrecy which all are entitled to claim and to preserve. They define and reconcile the rights of individual privacy and the demands of public justice. They express the extent of the privilege,” whilst the limits they impose are “identified with the administration of justice, and depend upon principles which are perpetual ” (Hare on Discovery, 11, 12 and 13).
Bills for the discovery of evidence being, however, expensive and dilatory, were so seldom' resorted to after the inspection of documents could be compelled by motion, and especially after parties could in all cases be examined as witnesses, that the object of this provision in the Code abolish[168]*168ing such bills, and substituting in their stead the simple and inexpensive procedure provided for by section 391, was not understood. By many it was interpreted literally, as giving the right to examine the party before trial, without any restriction or limitation whatever, wholly overlooking the his-' tory of this branch of jurisprudence and the abuses, injustice and oppression that could be practiced if that were permitted. Judge J. L. Mason, it is true, shortly after its enactment declared, in Wiggin agt. Gaines (4 Sandf., 647), that this .provisión was a substitute for bills of discovery, and nothing else; “that the examination referred to in it meant, upon every fair principle of interpretation, any examination for the purpose of discovery in which formerly a bill of discovery would have been resorted to; ” and that “ where-ever a bill of discovery could have been filed, under the former practice, in support or defense of an action, there the party might be examined in the mode presented in this chapter, and in no other mode.” But this interpretation was not followed, and it was held in subsequent cases, as it had been previously held, that upon a simple notice of five days, given by the opposite party — except the judge should, by order, fix a different time — a party was compelled, before the trial, to appear before the judge, at the time and place specified, and be examined under oath as a witness (Taggart agt. Gardner, 2 Sandf, 669; Green agt. Wood, 15 How., 342; Cook agt. Bidwell, 19 id., 483).
In Garrison agt. The Mariposa Co. (N. Y. Com. Pleas, S. T., 1868), I declined to follow these cases, and held, as judge Mason had held, that it was simply a substitute for the former remedy by bill of discovery; that it was, consequently, subject to the rules and principles that courts of equity had.applied to prevent abuse, oppression or injustice, and could not be had without an affidavit showing that the discovery sought was of some matter material to the establishment of a cause of action or of a defense, so that the party could know exactly what he was called upon to dis[169]*169cover, that he might, as in a bill of discovery, object to it as immaterial or improper, or, if willing to do so, admit it; or, if he were examined, that the judge might confine the investigation within the limits of the discovery sought (And see Carr agt. G. W. Ins. Co., 3 Daly, 160).
The effect of holding that this examination of a party before trial was an absolute right without any qualification or restriction, soon became apparent where the party summoned his adversary to be examined in this way, before any complaint was filed and where the judge had nothing before him to indicate what the examination was to be about, and was left wholly without guide as to its extent, range or purpose. In view of this difficulty, and the consequence to which it would lead, it was held in a large number, of cases (from Chichester agt. Livingston, 3 Sandf, 718, to Norton agt. Abbott, 28 How., 388) that this examination could not be had at all until after issue joined. But this did not suffice. In later cases; this construction, for which there never was any foundation, was not adhered to, and it was. held that the examination might be had either before or after issue joined (Mc Vicar agt. Ketchum, 1 Ab.[N. S.], 452; Bell agt. Richmond, 50 Barb., 571), and to meet, under this interpretation, the difficulty before suggested, it was held, first by Barboub, J., in Green agt. Herder (7 Rob., 455), that if the application is made before the service of a complaint, it must be upon an affidavit stating: First, if made by the plaintiff, the nature of the action and demand; second, if made by the defendant, the nature of his defense; third, the name and residence of the witness, and afterwards by Jones, J., in Duffy agt. Lynch (36 How., 509), that it must be upon an affidavit setting forth with particularity the facts and circumstances out of which the plaintiff supposes the cause of action to have arisen, the relief he supposes he is entitled to, ■ the defense he anticipates, and the subjects upon which he desires to interrogate the other party. And this conflict of decisions led to the adoption, by the convention of judges, in [170]*1701870, of the twenty-first rule, the requirements of which were, in effect, to construe the section 391 as providing for the kind of discovery by the examination of a party before trial which was formerly obtained by a bill in equity, and so far as it is applicable, the practice which prevailed in equity is necessarily the guide as to the extent and nature of the discovery to which the party is entitled by such an examination."
I have entered thus ^t length into an examination of this subject and of the contrariety of views and the confusion that has prevailed respecting the object of this section, for the reason that even now scarcely a week passes in this court without an application being made for the examination of a party under it, without any thing being presented but an order for his examination at a specified time and place; so difficult has it been to impress upon practitioners that they have not the right to bring a party up in this way, before trial, and require him to answer, under oath, any questions that they may put to him.
In equity a party was allowed to discover from his adversary any matter which was material to the establishment of his cause of action or of his defense, although he might have other witnesses to prove it, as the admission of the matter would dispense with the necessity of calling the witnesses, and it was no answer to the application that the other party might be examined as a witness upon the trial, for the one filing the bill was not bound to call him, as a witness, on the trial, but might have a discovery previously from him as a party (Plummer agt. May, 1 Ves. Sr., 426; Montague agt. Didman, 2 id., 398 ; Finch agt. Finch, id., 492; Tooth agt. Dean of Canterbury, 3 Sim., 46; March agt. Davidson, 9 Paige, 601; Story's Eq. Pleadings, sec. 119 and note; Wigram on Discovery, 2, 4; Pare on Discovery, 1,110, 116, 187). And that this was what was meant by the codifiers in framing this section, appears from their referring in their report to “ the great benefits to be expected by the relief it [171]*171would afford to the rest of the community by exempting them from attending as witnesses to prove facts which the parties respectively know and ought never to dispute ” (First Report of Coms., pp. 244, 245). That the party from whom the discovery was sought might be protected, the one filing the bill was obliged to show, not only that the matter sought to be discovered was material, but how it was material (McIntyre agt. Mancius, 3 Johns. C. R., 47; id., in error, 16 Johns., 599; Kimberly agt. Sells, 3 Johns. C. R., 467; Lane agt. Stebbins, 9 Paige, 624, 625). And, as a further protection, a discovery was not allowed as to a certain matter to which I shall have occasion to recur.
The affidavits on which the order for the defendant’s examination in these two cases, before trial, were granted, state that the plaintiff shall endeavor, upon such examination, to disclose that the letters which constitute the libel for which the actions- are brought, were published by the defendant; that they were published in malice; that they were received by the parties to whom they were addressed, and that in consequence the plaintiff was injured.
The letters being libelous, the law would imply that there was malice, and that the plaintiff was injured by their publication ; and as no fact is stated in the affidavit showing a tendency to show actual malice or specific damage, the discovery sought is reduced to the inquiry whether the defendant published the letters and to whom he sent them. The discovery which the plaintiff seeks is to compel the defendant to disclose whether he has published a libel, or,, in other words, whether he has been guilty of a criminal offense for which he could be indicted and punished.
In the restriction imposed upon this right of discovery, nothing was better settled than that a party could not be compelled to discover any matter which might subject him to a penalty, a forfeiture, or a criminal prosecution (Hare on Discovery, part 3, chap. 1, sec. 1; Wigram on Discovery, 60, secs. 83, 94). “A plaintiff,” says Mr. Wigram, “ whatever [172]*172the merits of his case may be, is not entitled to a discovery from the defendant, of any matter which would criminate him or tend to do so ” ( Wigram on Discovery, 195). Lord Eldon, in Paxton agt. Douglass (19 Ves., 226), went even further, saying : “ The strong inclination of my mind is to protect the party against answering any question, not only that has a direct tendency to criminate him, but that forms one step towards it.” In Bailey agt. Dean (5 Barb., 303), judge Pbatt was of opinion that a defendant could not be compelled to disclose facts to enable a plaintiff to sustain an action of slander, because in such actions punitory damages may be given ; and in Browsward agt. Edwards (2 Ves., Sr., 246), lord Habdwioke said that the court would not force the party, by his own oath, to subject himself to punishment for usury (See March agt. Davidson, 9 Paige, 585; Taylor agt. Bruen, 2 Barb. C., 301; In the Matter of Tappan, &c., 9 How., 394; The People agt. Mather, 4 Wend., .254; In the Matter of Kiss, 1 Paige, 607).
It is apparent upon the face of the affidavits, that the plaintiff had-no right to the discovery sought, and both orders should, therefore, be vacated.
J. F. Daly and Labeemobe, JJ., concurring.