President, Directors & Co. of the Bank of Utica v. Hillard , 5 Cow. 419 ( 1826 )

Curia.

The motion must be denied. The course for proving the books or papers of a bank, where it is the ad-xrerse party, is to give notice to produce them; and on its non-compliance, to show the contents by inferior evidence as ¿n g^gj. cases, The effect of this motion would be to compel a party to produce evidence against himself. True the books are ordinarily in the possession of the cashier : How ? He holds them as the officer, the agent or servant of the bank; in the same manner as an attorney holds the papers of his client. 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 he can say “ these are my papers,” we will not compel one who happens to have the temporary possession of them, in the right of the party to produce them on subpoena. The question is not now what order this court, or a judge of this court, might make upon the bank, touching the production of these papers, within the cases cited from Campbell, Taunton and Anstruther. It relates to the effect of a subpmna duces tecum ; and it is clear that by this a party cannot have his papers taken from his custody. (1 Phil. Ev. Am. ed. 1820 ; and the cases there cited at p. 11, 12, 335-6.)

Motion denied.