NOTE 822-p. 436.

The witness may be compelled to produce the writing or paper, which he has thus been required to bring forward, without being sworn. (Davis v. Dale, 1 Mood. & Malk. 514. S. C., 4 Carr. & Payne, 335. Somers v. Moseley, 4 Tyr. 158; 2 Crom. & M. 477. Perry v. Gibson, 1 Adol. & Ellis, 48.) On an indictment for perjury, a sheriff's officer had been subpoenaed to produce a warrant of the sheriff; and atter argument he was ordered to do so without being sworn. (Murlis' case, 1 Mood. & Malk. 515.) See further in respect to the same subject, Rush v. Smith, 1 Crom. M. & R. 94; also ante, note 510, p. 730: Rosc. Cr. Ev. 128. The above cases may be consulted as showing, in what instances, and how far a person subpoenaed to produce a paper, and sworn for that purpose, may be cross-examined. See likewise ante, p. 273 of the text; and Wood v. Connell, 2 Whart. Rep. 542, 562.

As to the attachment for not obeying the subpoena duces tecum, see ante, note 5, p. 11, 12; also ante, note 30, p. 24, et seq. There seems to be no distinction, in principle, between compelling a witness to produce a document in his possession, under a subpœna duces tecum, in a case where the party calling him has a right to use the document in evidence, and compelling him to give testimony when the facts lie in his own knowledge. A subpœna duces tecum is now regarded as a writ of compulsory obligation, which the court has power to issue, and which the witness is bound to obey; and obedience to it will be enforced by proper process to compel the production of the paper, when the witness has no lawful or reasonable excuse for withholding it. (Per Shaw, C. J., in Bull v. Loveland, 10 Pick. 9, 14.)

NOTE 823-p. 436.

See United States v. Reyburn, 6 Peters' Rep. 352, 366; also several cases cited post, note 832.

NOTE 824-p. 436.

The question whether the witness is bound to obey the subpoena by the production of the paper, is one for the court, after the witness has been sworn, or has been brought up on an attachment. (See ante, note 5, p. 12.)

Under what circumstances a witness is bound, upon process of this character, to produce a paper or document in his possession, has frequently been the subject of consideration by the courts. The analogy adverted to in the text seems in the main a safe guide on questions of this sort; for as every man is, in furtherance of justice, bound to disclose all the facts within his knowledge which do not tend to his crimination; upon the very same principle it should seem he is likewise bound, as a general rule, to produce such documents as are essential to the discovery of truth and the great ends of justice. But as he is protected from answering questions, the answers to which may subject him in penal responsibility, so he ought not to be compelled to produce any document in his possession, where the production would be attended with similar con

sequences. (Stark. Ev. 87, 6th Am. ed.) In this view our previous observations and citations of authority respecting the privilege of witnesses, extending from note 514, p. 734, to note 525, p. 749, may be made available on the present subject.

The analogy, however, according to several English decisions, is not perfect. "There seems in one respect," says Mr. Starkie, "to be a distinction between compelling a witness to answer orally, and obliging him to produce a written document. He must answer questions, although the answer may render him civilly responsible; but it seems he is not compellable to produce title-deeds or any other documents which belong to him, where the production might prejudice his civil rights. And this is, as it seems, a rule of legal policy, founded upon a consideration of the great inconvenience and mischief to individuals which might and would result to them from compelling them to disclose their titles, by the production of their title-deeds or other private documents." (1 Starkie's Ev. 87, 6th Am. ed.) Accordingly, in Rex v. Hunter, (3 Carr. & Payne, 591,) after a bill of indictment had been presented to a grand jury for forging a deed, the grand jury came into court and stated that a lady, who was a witness on the indictment, had refused to produce certain deeds, which it was material for the grand jury to see; neither of them, however, being the deed alleged to have been forged; and the question was put to the court whether she could be compelled to produce them. Mr. Justice Park, after conference with his associate, told the grand jury, that if these deeds formed part of the evidence of this lady's title to any part of her own estate, they could not compel her to produce them; but that if it should appear they did not relate to the title of any part of her estate, then she was bound to produce them. (See also S. P., Pickering v. Noyes, 1 Carr. & Payne, 262; Roberts v. Simpson, 2 Stark. Rep. 203; also, see Doe, dem. Courtail, v. Thomas, 9 Barn. & Cress. 288, per Tenterden, C. J.; Harris v. Hill, Dowl. & Ryl. N. P, Cas. 19. See post, note 830, p. 1177. One who has advanced money on a lease, and who holds it as his security is not bound to produce it under a subpæna duces tecum. (Mills v. Oddy, 6 Carr. & Payne, 728.) A person having a lien merely on papers, may be compelled, notwithstanding this, to produce them; but if he fears they will be abstracted, he is allowed to stand by and watch in court while they are in use. (Thompson v. Mosley, 5 Carr. & Payne, 501.) Where a witness, called to produce an assignment, objected to doing so, on the ground that he held it as security and the production of it would affect his interest, Abbott, C. J., refused to compel him. A question was reserved as to the propriety of the refusal, but the court waived it, and disposed of the case upon other grounds. (Schlenecker v. Moxey, 3 Barn. & Cress. 789; S. C. 5 Dowl. & Ryl. 747.) A kindred principle has been acted upon in Massachusetts. There, an action was brought upon a promissory note, which was in the hands of W., a third person. W. was served with a subpœna duces tecum on the part of the plaintiffs, requiring him to produce it; but this he declined doing unless ordered by the court. He testified that the defendant, a mechanic, assigned his property to him, (W.) who was a creditor, and that the plaintiffs and the other creditors put their demands, including the note in question, into his (W.'s) hands for collection, under an agreement that he (W.) might furnish stock to the defendant to work up for the benefit of the creditors, and that the proceeds of all the property should be applied first, to the re-payment of the advances made by the witness, and the surplus to the demands of the creditors; he further testified that a large sum was due him on account of such advances. The court express

ed themselves clearly of opinion, that under these circumstances, the witness had such an equitable interest in the note, and such a right to the custody of it, that he ought not to be compelled to produce it for the purpose required, viz. that of maintaining the suit, and thereby fixing a lien, by attachment, upon the funds placed in his hands for the common benefit of all the creditors. (Bull v. Loveland, 10 Pick. Rep. 9, 15.) In South Carolina, a security in a sheriff's bond was compelled to produce the books of his principal (who had died insolvent) on a subpœna duces tecum, notwithstanding he was apprehensive of danger to himself from the production in the way of suits upon the bond. (Hawkins' ex'r v. Sumpter, 4 Dess. Eq. Rep. 446. See S. C. id. 102.)

This privilege, however, in the cases mentioned, is that of the witness, who may refuse the production or not; counsel cannot raise the objection. (Mills v. Oddy, 6 Carr. & Payne, 728.)

Attorneys and solicitors, who hold the papers of their clients, cannot be compelled, under a subpœna duces tecum, to produce them in a controversy between third persons, except where their clients would be compelled. (Mills v. Oddy, 6 Carr. & Payne, 728, per Park, B. 1 Stark. Ev. 87. 8, 6th Am. ed. See ante, p. 141, 2, 3 of the text, and the notes under that head, for various cases in which this doctrine has been applied; also ante, note 5, p. 11, 12; Bothomley v. Usborne, Peak. add. Cas. 101: Bate v. Kinsey, 1 Crom. M. & R. 38; S. C. in note (a) to Mills v. Oddy, supra; Bateson v. Hartsink, 4 Esp. Rep. 43; Harris v. Hill, Dowl. & Ryl. N. P. Cas. 17; Fury v. Smith, 1 Hud. & Brooke, 749.) In respect to this privilege, as it regards the clerks of solicitors and attorneys, see ante, note 282, p. 289; Mills v. Oddy, 6 Carr. & Payne, 728.

But where the client would be compelled to produce papers under this subpoena, his attorney may in like manner be compelled, when they are in his custody. (Doe, dem. Courtail, v. Thomas, 9 Barn. & Cress. 288.) And in such case, it is no protection to the attorney that he received the papers confidentially. (Id.) Otherwise, however, where he is the attorney for the party whose cause is on trial, and received the papers confidentially in that character. (See ante, note 279, p. 276; Durkee v. Leland, 4 Verm. Rep. 612; but see John v. John, 1 Wright's Rep. 584, 585, 6.) Nor can he then be obliged to testify to the contents. (Dale v. Livingston, 4 Wend. 558. Bothomley v. Usborne, Peake's add. Cas. 99, 101, and note (a).) And, semble, that the same rule prevails in respect to the attorney of a third person who has received papers from his client confidentially which the latter could not be compelled to produce. (See ante, note 279, 280, p. 277, 8.) But if the attorney in such case be compelled to give parol evidence of the contents, the parties to the suit have no right to object; even upon the supposition that the judge acted erroneously. (Marston v. Downes, 1 Adol. & Ell. 31.)

The same principle which excuses the attorney or solicitor of a person from producing documents which might affect his title, under a subpœna duces tecum, has been applied in the case of one holding a paper as agent or trustee of such person; and held, that the latter was not compellable to produce the title deeds of the trust estate, where the object was to show that the cestui que trust, who was plaintiff, had no legal title. (Roberts v. Simpson, 2 Stark. Rep. 203. Willis on Trustees, 229. No. 30, Law Lib. Philadel. See Coeks v. Nash, 9 Bing. 723.) Where an action of trespass was brought for seizing the plaintiff's ship, Lord Kenyon refused to compel the person, who had officiated as the agent for the defendant, to produce the power of attorney under which he

had acted in taking the property. The counsel contended that a witness was obliged to produce every paper in his possession, so as that the paper did not criminate himself; but his lordship denied the position, remarking that if such were the case it would occasion the ruin of millions. He added, that “it is a good plea in bar in the court of chancery, that the defendant (although the legal title was in another) had an equitable title by honest means without notice, and the court would not compel the production of those papers which, if produced, would strip the defendant of his fair equitable title." (Miles v. Dawson, 1 Esp. Rep. 405.) In an action on a note, the defence was that there had been a composition with the defendant's creditors; and H. was called by the defendant as a witness. He had been subpoenaed to produce a deed between the defendant's mother of the first part, H. and the plaintiff of the second part, and certain creditors of the third part. The deed constituted H. and the plaintiff trustees for the payment of the defendant's debts. H. stated that he held the deed as the trustee ; that titles depended on it; but he was ready to produce it. The plaintiff however objected; and, per Gurney, B.; "I do not know what the deed is. The defendant is no party to the deed. The plaintiff says, my interest is affected by the production of the deed what right has the defendant to call upon him to produce the deed? The plaintiff says you hold the deed for me; you have no right to produce it." (Cocks V. Nash, 6 Carr. & Payne, 154.) But held, that the defendant might go into secondary proof of the contents; and an extract, furnished and proved to be correct by the trustee, was allowed in evidence. (Id.)

It has been laid down in New-York, in general terms, that the cases in which the production of papers may be coerced by subpoena are, where they are the property of a competent witness; or at least, where they do not belong exclusively to the adverse party. When the latter can say "these are my papers," the court will not compel one who happens to have the temporary possession of them, in right of the party, to produce them on subpoena. Hence the cashier of a bank was held excused from producing their books, &c. on a subpœna duces tecum, in a suit to which the bank was a party. (Utica Bank v. Hillard, 5 Cowen's Rep. 419.) So as to a clerk in the bank. (Utica Bank v. Hillard, id. 153.) So the steward of the plaintiff, who as such has a deed belonging to the latter, cannot be compelled through a subpæna duces tecum on the part of the defendant, to produce it; but after notice to produce, given to the plaintiff, the steward may be compelled to swear to the contents; for his knowledge of these is not within the principle of privileged communications, which extends only to counsel, attorneys, &c. (Falmouth v. Moss, 11 Price, 455. See Utica Bank v. Hillard, 5 Cowen's Rep. 153, 168.)

are.

Where none of the objections adverted to apply, it seems that the writings in a man's possession are as much liable to the calls of justice as the faculties of speech or memory For not only a man's estate, but even his liberty or life may depend upon written evidence, which is the exclusive property of a stranger. As for instance, where a man's title depends upon the precise time of his birth, and the executor of an accoucher is in possession of an entry made by the latter, which would be legal evidence to prove such time. In criminal cases also, proof that the prisoner at a particular time and place signed an instrument, may be decisive as to his innocence. (1 Stark. Ev. 88, 9, and note (e).)

NOTE 825-p. 437.

Where a party was agent of vendor and vendee in the sale and purchase of an estate, and afterwards become the sole agent of the vendee, to whom an abstract of the title-deeds was delivered, but who afterwards refused to complete his purchase, and retained the abstract in his hands, the court compelled the defendant and his agent to deliver it up to the plaintiff, after action brought to recover the purchase money of the estate. (Langslow v. Cox, 1 Chit. Rep. 98.)

The doctrine in the text, that where there is only one copy of the agreement, the party holding it is trustee for the other, was lately recognized in Blogg v. Kent, (6 Bing. 614,) and the production of a written memorandum was there ordered for the inspection of the opposite party. (See also per Tindal, C. J., Jessel v. Millingen, 1 Moore & Scott, 605; Alexander v. Alexander, 1 Alc. & Nap. 109; Reid v. Coleman, 1 Crom. & M. 456; 2 Dowl. P. C. 163, S. C.; Anonymous, 2 Chitty's Rep. 230.) If a paper, e. g. an annuity deed, has been placed in the hands of a third person for the benefit of two, and one gets possession of it, he will be compelled to produce it for the inspection of the other. (Devenoge v. Bouverie, 8 Bing. 1. 1 Moore & Scott,

29, S. C.)

In general, one who is not a party to the suit, though he hold the paper as a trustee or agent, will not be compelled by rule to produce it; for he should be compelled (if at all) by subpoena duces tecum. (Cocks v. Nash, 9 Bing. 723. 3 Moore & Scott, 164, S. C.) See also Davies v. Brown, 9 Moore, 778, 784 ; 1 Mann. & Ryl. 571, n. (b.) S. C.) But where the object of the discovery asked for is to enable the plaintiff to declare, the rule is different. Accordingly, in an action on a deed, the plaintiff having had the same taken from him under a warrant for felony, the court, on affidavit of demand upon the magistrate and constable, directed them to give him a copy to declare on, and to produce the originals at the trial, the plaintiff undertaking to pay the expense. (Harris v. Aldritt, 2 Chitty's Rep. 229.)

The court will, in many cases order a paper to be deposited, where a question is raised upon the genuineness of the hand-writing. Thus, an indictment being found for sending a threatening letter, the court, on motion of the defendant, ordered it to be immediately deposited with the clerk, that the defendant's witness might inspect it. (Rex v. Harris, 6 Carr. & Payne, 105.) In a suit on a bill of exchange, the court ordered the bill to be lodged with the officer, for the personal inspection of the defendant, when it appeared from his affidavit, that the cause of his refusal to pay, as acceptor, was a reasonable suspicion of the acceptance having been forged. (Richey v. Ellis, 1 Alc. & Nap. 10.9)

NOTE 826-p. 437.

But in an action on a charter-party against the charterer, the court refused to compel the plaintiff to allow the defendant the inspection of the ship's log-book. (Rundle v. Beaumont, 4 Bing. 537. S. C. 1 Moore & Payne, 396.)

In an action by plaintiffs, ship owners, against the defendant, their broker, the court refused to compel the defendant to give a copy of a letter which he had received,