Canada Steamship Co. v. Sinclair

From the affidavit on which the order for the examination of the defendants was granted, it appears that plaintiff had, as common carrier, a special property in tliirty-oue bales of rubber which was stolen from the plain*475tiffs about January 10, 1883, and some portion of which was thereafter in possession of defendant. That the action was commenced 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 defendants or .the weight of the rubber or to properly frame the complaint without the examination of • defendants. On the affidavit the defendants 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 the defendants 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 where a person buys or receives property stolen from another, knowing the same to have been stolen (2 R. S. [Edm.], 700, sec. 71). The right of a witness to object to answer to 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, I am of the opinion that the objection should be left to be passed on upon the examination itself (Patterson agt. Sanford, 45 N. Y. Super. Ct., 127).

The order should be affirmed, but without costs.

*476Trdax, J.— I concur in this result, because I think that in this particular case the defendant should be left to take the objection upon the examination.