Aikin v. Martin , 5 Sarat. Ch. Sent. 6 ( 1845 )

The Chancellor.

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 insist 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 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.