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concurrence of the churchwardens (i). Another case to the same effect is the case of the King v. Dr. Purnel (2), where, on an information against the defendant, for a misdemeanour in his office of vice-chancellor of the university of Oxford, a rule for taking a copy of the universitystatutes, in the care of the keeper of the archives, was refused by the Court of King's Bench, after great consideration; and the principle, that no man shall be bound to accuse himself, was fully recognized. This principle will not apply to the case of informations in the nature of a quo warranto, for usurping a franchise or intruding into a corporation-office; for such informations, although originally and strictly criminal methods of prosecution, are applied to the purpose of trying civil rights, and are considered at present as merely civil proceedings. On an information, therefore, exhibited at the relation of a member of a corporation, against a person for unlawfully executing an office, the relator, who as member has a right and interest in the books of the corporation, may obtain an inspection and copy of such, and such only, as relate to the subject matter in discussion. (3)
The motion for a rule to inspect and take a copy, where an action is depending, is founded on an affidavit stating the circumstances, under which the inspection is claimed; as, (where a party applies for the inspection of court-rolls,) that he is tenant of the manor, and that an application has been made to the lord or his steward, for leave to make the required inspection, which they refused (4); and, on such an affidavit the rule will be made absolute in the first instance. (5) •
With regard to the proper stage of the proceedings for making the application, the court has refused the motion in an action against a corporation upon a right of toll, be
(1) R. v. Lee, cited I Wils.240. (4) Roe v. Aylraar, Barnes, 136.
(1) iWils.a39. (5) R.v.ShtUey, 3T.R.I4I.
(3) R. v.Bibb, 3 T.R. 579.
cause cause issue tuas not joined, so that it could not appear, whether an inspection would be necessary (1). And in the case of Dr. Groenvelt v. Dr. Burwell, before mentioned, where the plaintiff applied for a copy of the proceedings instituted against him by the college of physicians, the court admitted the rule for inspecting the proceedings to be usual, for the sake of evidence, after issue joined, but not by way of assisting the party to plead (2). If a rule has been granted to shew cause, why a mandamus should not bo awarded, the court will not make a rule for inspecting and taking copies, until the first rule is made absolute, and a return is made to the mandamus (3); and it has been thought the most convenient practice, where a rule nisi for a quo warranto information has been obtained, not to grant an inspection, until the information is granted. (4)
If no action is depending, the proper motion is for a rule to shew cause, why a mandamus should not issue, commanding the officer, who has the custody of the books, to permit the party to inspect and take a copy. The affidavit, upon which this motion is founded, ought to state clearly the right, under which the inspection is claimed. In a case of this kind, where an inspection of the court-rolls of a manor was applied for, the party stated in his affidavit a prima facie title to a copyhold of the manor; and the court of King's Bench held, that as he was clearly entitled to the copyhold, unless it had been conveyed away by those under whom he claimed, he had a right to see, whether any such conveyance appeared on the rolls, and the court therefore made the rule absolute, so far as related to the copyhold lands, the subject of the party's claim. (5).
(1) Hodges v. Atkis, 3 Wili. 398. C4I Per Ashurst J. in R. v. Patib,
iBlack.Uep. 8:7., S.C. 3 T. R. 58s. R. v. Hollistcr, Rep.
(2} Carihew.4ii. temp. Hard. 145.
(3) Per Cur. in R. v. Jiuticei of (5) R. v. Lucas, toliast, 235.; and
Surry, Say. 144. see 3 T. R. 14].
Of the Proof of Private Writings.
'J^HE next branch of our subject, which remains to be
If any deed or other writing, necessary to be produced Subpocm at the trial of a caOse, is in the possession of a third per- J^tum. son, the legal process for compelling him to produce it is by suing out a writ of subpoena ad testificandum, (to enforce his personal attendance,) and inserting a special clause, called a duces tecum, which specifies the writings required, and commands him to produce them at the trial. The writ of subpoena duces tecum, like some other writs of undoubted antiquity, is not to be found in the registruni brevium; but it can be traced in practice as far back as the time of Charles II., and probably existed much earlier, as such a compulsory process is essential to the constitution of courts of justice. A witness, served with this subpoena, is obliged to attend; and, though it will be a question for the consideration of the judge, whether he ought to be compelled to produce the writings in his possession, yet undoubtedly he ought to be ready to produce them, if ordered by the court j and, in case of disobedience without sufficient I cause,
cause, will be liable to an attachment, or to a special action for damages (i). If the writing, which he is called upon to produce, would have a tendency to subject him to a criminal charge, or to a penalty, or any kind of forfeiture, the court will excuse him from producing it, as well as from answering any question of the same tendency; but, from analogy to the rule respecting parol testimony, (and there seems to be no good reason for allowing a greater privilege in the one case than in the other,) he would not be excused from producing a paper in his possession, relevant to the matter in issue, on the ground that it might establish, or tend to establish against him the fact of his being in debt, or subject to a civil suit. (2)
Notice to If writings are in the possession of a party to the suit, produce. ^ otner partv naS) m general^ no means of compelling
their production; and the utmost, therefore, that can be expected of him, in such circumstances, is to give the best evidence which the nature of the case admits. In some instances, indeed, where the writing is deposited in the custody of a defendant, as a trustee for all parties interested, courts of law will order him to furnish the plaintiff with a copy, and produce the original at the trial, Thus, in an action for a stake won at an horse-race, the defendant, who was the stake-holder, was ordered to produce a copy of the racing articles, without which the plaintiff could not proceed (3). So, in a late case, in an action of covenant, the court of Common Pleas granted the plaintiff a rule for taking a copy of an indenture of assignment of a lease, made between the plaintiff and defendant, as the only part of the indenture, which had been executed, was in the hands of the defendant (4); the parties, in this case, having executed one part only of the indenture, in order to save the expence of double stamps, the court thought it a necessary consequence, that the party, who
(1) Amey v. Long, 9 Eist, 473. (3) Gncewood v , Barnes, 439 .
(a) See stat. 460.^3 c. 3;. ante, (4) Blakey v.Porter, 1 Taunt.386. p. 108. King r. King, 4 Taunt. 666.
had had the custody, undertook to produce the deed, when necessary, for the use of the other contracting party. And, upon the same principle, in an action by seamen to recover wages, the defendant is compellable to produce the ship's articles (i); for, the contract for wages always remains in the possession of the master, and the statutes ("which require a written agreement in the case of foreign voyages (2), and in the case of certain vessels employed in the coasting trade (3),) expressly enact, that where it becomes necessary to produce the contract in court, no obligation shall lie on the seamen to produce it, but on the master or owners of the ship; and that no seaman shall fail, in any suit or process for the recovery of wages, for want of its production.
In an action between the plaintiff (a factor) and defendant (a grazier), the court of King's Bench, on the motion of the defendant, made a rule for the plaintiff to shew cruse, why he should not produce at the trial the several books, in which he entered the amount of beasts sold, and of money received on the defendant's account; and, no cause being shewn, the rule was made absolute (4). The rule, which Lord Mansfield laid down in such cases, is said to be, that, wherever the defendant would be entitled to a discovery, he should have it in a court of law, without going into equity (5). In causes on policies of insurance, it is now the common practice to obtain a judge's order, calling upon the assured to produce to the underwriters, upon affidavit, all papers in the possession of the former relative to the matters in issue; and if the one party is not content with such papers as are produced under the order, the other party will be obliged to make an affidavit, denying the relevancy of those which he withholds (6). This
(l) Johnson v. Lewellyn, 6 Esp. N. Ward v. Apprice, 6 Mod. Rep. 264.
P. C. Ic1. 1 Taunt. 386. contia.
(a) St 1G.1. 036. (5) Barry v. Alexander, 15 G. 3.
(3) St. 31 O.3.c.30. K.B. 1 Tidd.Pr.589.
(4) Goatcrv.Nunnely, 1 Stra. 1130. (6) Clifford v.Taylor, 1 Taunt. 167.
Coldschmidt v. Marryat, i Campb.561.