Aikin v. Martin — 11 Paige Ch. 499

Majority

p. 499

F. W. and E. C. Aikin, executors, &c. vs. Martin.

Headnote

Where a deed or instrument which a party wishes to prove, as an exhibit, is in the hands of a third person, who will not produce it voluntarily for that purpose, the proper course is to compel him to produco it, by a subpoena duces tecum.

Where a deed, or other instrument, is proved, or is made an exhibit, before an examiner, upon the taking of the testimony in a cause, it is the duty of such examiner to retain it, and to return it to the register’s or clerk’s office, with the testimony ; unless the parties to the suit consent that he may take a copy of the exhibit, and return that with the testimony, instead of the original.

A witness, who is required, by a subpoena duces tecum, to attend before an examiner and produce a paper in his possession, as evidence in a cause, is not bound to produce such paper until he has been sworn as a witness; to enable him to state, upon oath, the reasons, if any there are, why he should not be compelled to produce the paper in evidence.

feut if the reasons thus stated by the witness, upon his oath, are decided-by the examiner to be insufficient, the witness must produce the paper in evidence; or the court will compel him to attend agaimbefore the examiner, and produce the paper, and pay the costs occasioned by his former refusal, if the decision of the examiner is found to have been correct.

Where a deed is in the possession of a third parson, who produces it under a subpoena duees tecum, without objection, the party against whom it is produced, has no right to insist that the person producing such deed shall be sworn as a witness for the party in whose favor the deed is produced as evidence, in order to give the adverse party a right to cross-examine, although such witness may be interested in his favor.

p. 500

A motion was made in this cause, and in four other suits, brought by the same complainants, against different defendants, for an order that H. Y. D. Yan Epps appear before the examiner, atld produce a certain agreement, in his possession, as evidence on the part of the defendants in the several suits respectively. By the affidavits, and the certificate of the examiner, it appeared that Yan Epps, although not a party to either of the suits, was interested in favor of the complainants, in the subject matter of litigation in all of them, and that the agreement in question was material to the defences set up by the defendants respectively ; that a subpoena duces tecum was served on him, to appear before the examiner, as a witness on the part of the several defendants, and to bring with him the agreement and produce it before the examiner; that at the time of the service of the subpoena, and at the return day thereof, the agreement was not in his possession; nor under his control; but that, after he had attended once of twice before the examiner, he was requested by the counsel for the defendants to procure the agreement from the receiver, who had been appointed in a creditor’s suit against Yan Epps; that he subsequently procured the agreement from the receiver, promising to return it again to him; and that he then attended before the examiner with the agreement in his possession. Oft being inquired of by the defendants’ counsel, whether he had the agreement with him, Yan Epps stated that he had, and at the request of such counsel he delivered it to him for his inspection; and offeted to be sworn in relation to the agreement. But he refused to part with the same, or to deliver it to the examiner as an exhibit; the counsel for the complainants insisting that the agreement could not be received and marked as an exhibit, by the examiner, without proof of its execution. The complainants’ counsel also insisted that Van Epps was not bound to produce the agreement as evidence, under the subpoena duces tecum, until he had been sworn as a witness. The counsel for the defendants, however, declined having him sworn as a witness 5 insisting that he was bound to deliver the agreement to the examiner, to be marked as an exhibit, and to be retained by such examiner.

p. 501

M. T. Reynolds, for the defendants.

S. Stevens, for Van Epps, the witness.

From the papers before me oh this application, I am satisfied that Yan Epps never consented to part with the possession of the agreement, for the purpose of allowing it to be retained, as an exhibit, either by the examiner or by the counsel of the defendants. And I think it is. also fairly inferri-ble, from the affidavits, that the defendants’ counsel, at the time Yan Epps was called upon to produce this agreement, and to deliver it to the examiner as evidence, was not prepared to prove its due execution; so as to make if evidence for any purpose.

Where a deed or instrument which a party wishes to prove as an exhibit, is in the hands of a third person, who is unwilling to produce the same, the proper course is to compel him to produce it, under a subpoena duces tecum; and to have the witnesses in attendance to prove the exhibit, or to be examined in relation thereto, when it is thus produced. For until the deed or instrument is duly proved, or is referred to in the examination of some witness in the cause, as an exhibit, neither the parties nor the examiner has a right to deprive the person producing such deed, or instrument, of the custody or possession thereof. Indeed, by the practice of the court of chancery in England, the exhibits are always left in the possession of the parties producing them, until the hearing of the cause. (Davers v. Davers, 2 P. Wms. 410. Hodsen v. Warington, 3 Id. 34. Wiley v. Pistor, 7 Ves. 411. 2 Dan. Ch. Pr. 446.)

Here, however, the practice is different; and when a deed or other instrument is proved, or made an exhibit before the examiner, he is bound to retain it, and to return it with the original depositions, to the register or clerk; unless the parties consent that he may take a copy of the exhibit, and return the same instead of the original. (See Rule 87.)

Where a deed or instrument is in the hands of a third person, who produces it without objection, under a subpoena duces te-cum, the party against whom it is produced has no right to in

p. 502

sist that the person thus producing it shall be sworn as a witness; so as to give such party the benefit of a cross-examination, although such witness is interested in his favor. And some of the common law courts in England have recently gone so far as to compel the person, having the custody of the deed or instrument to produce it, without being sworn at all. (1 Ad. & Ellis' Rep. 48. 2 Cromp. & Mees. 477. 2 Dow. Ch. Pr. 364.) I think, however, in this court, it is the privilege of the person who is thus subpoenaed to produce a paper, to be sworn in relation to the production of the paper; to enable him to state upon oath the reasons why he should not be compelled to produce it. For it may be that he holds the paper in the character of attorney for one of the parties in the suit, or that the production of the paper might tend to criminate himself, or might furnish evidence against him to subject him to a penalty, or a forfeiture. After the witness has been sworn, and has stated upon oath his reasons why he ought not to be required to produce the paper, if the examiner decides that the reasons are insufficient, the witness must produce the paper; or the court, upon an application for that purpose, will compel him to attend again before the examiner and produce the paper, and pay the costs of his former refusal, if it turns out that the decision of the examiner wa's right. (2 Swanst. Rep. 213. 1 Russ. & Myl. Rep. 358. 2 Dan. Ch. Pr. 558 .)

In this Case, however, Yan Epps obtained possession of the agreement in question, long after the return day of the subpoena duces tecum, under a promise which he had made to the counsel for the defendants, and under an understanding that he was to be paid for his services in procuring it. And as Yan Epps was not wanted as a witness for the defendants^ the process of the court, which had required him to attend at a previous day, and bring this paper with him, could not be used to compel him to fulfil the subsequent promise, to obtain the agreement from the receiver, that it might be used as evidence in the suits. Nor could he, under ?uch circumstances, be required to deliver the agreement to the examiner; to be exhibited to witnesses and proved at a future time! He is not, therefore, in contempt, and

p. 503

the motion of the defendants must be denied with f 10 costs, to be paid by them jointly, under an order to be entered in all of the suits.