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a witness the attorney of a party who had made a contract with the lessor of the plaintiff for exchange of lands: and he stated, that, on making the contract, the attorney for the lessor of the plaintiff had furnished him with an abstract, referring to the deed in question, which abstract he compared with the original; that he held the abstract as evidence of the contract; and that he had no instructions from his client, but would produce the abstract if the judge thought he ought to do so. The judge said that he thought there was no sufficient reason why the witness should not; and it was produced as secondary evidence of the deed creating the term: and the court held that the evidence was properly received. In Doe d. Gilbert v. Ross, the attorney refused to produce the deed, not on the ground of his client's privilege, but on the ground of his own lien.
Newton, in person, was desirous of being heard in support of the rule, together with Atherton. [Wilde, C.J. We cannot hear the plaintiff in person, and by counsel also: the circumstance of the plaintiff's being a member of the bar does not place him in a better position in this respect than another person.] The court may in its discretion hear both. [Wilde, C. J. I think not.] In Newton v. Harland (a), Tindal, C. J., permitted me to argue in my own case, in conjunction with Warren. [Maule, J. You must make your election to be heard by yourself or by your counsel. We will at present hear either; and, when the proper time arrives, we will consider what course ought to be pursued.]
Atherton, in support of the rule. The defendant's counsel has very ingeniously evaded the real question between these parties. Newton was equally interested
(W) 1 M. & G. 650., 1 Scott, N. R. 482.
with William Chaplin in the book which contained the account of the proceedings of the company. There was no doubt as to the nature of the book; nor was it disputed that Newton had paid the deposit and obtained scrip. In whose hands soever, therefore, the book might be, the person holding it, held it as trustee for all who were interested in the concern. Unless it can be said that the provisional committee only were interested in the book, it is difficult to conceive how
doubt could arise. The bringing of the action does not involve a repudiation by the plaintiff of all connection with, or interest in, the company. The plaintiff clainis to be entitled to recover back money which he has by misrepresentation and fraud been induced to part with. The very foundation of that claim is, that he is a scripholder. [Maule, J. A man has a document in his possession, the disclosure of which may utterly ruin him. For his necessary defence in another action, he confides it to his attorney. Is it to be said that the attorney is bound to produce it, because some other person whom he, the attorney, does not represent, and has no connection with, has an interest in it?] If the book had remained in the hands of William Chaplin, he might have been compelled to produce it by means of a subpena duces tecum. [Maule, J. The necessary effect of the doctrine you are contending for, will be, that henceforth no man can safely trust his attorney with his secrets or his deeds. Fry had been served with a subpæna duces tecum; but William Chaplin had not. The privilege of the latter as to the book was the same in the hands of Fry, as if he had kept the book in his own hands. Its non-production was clearly right.]
Then, immediately upon the refusal of Fry to produce the book, the plaintiff was entitled to give secondary evidence of its contents: and, assuming that that is not so, the fact of William Chaplin himself being in court,
and brought there as a witness for the plaintiff, though without a subpæna duces tecum, unquestionably gave him that right. The rule to be deduced from all the cases, is, that, where a deed is in court, in the hands of an attorney, who has received a subpana duces tecum, and who declines to produce it, on the ground of privilege, and the claim of privilege is admitted, all the sources of primary evidence are exhausted, and the party calling for the deed is entitled to give secondary evidence of its contents, notwithstanding the client has not been served with a subpæna duces tecum. [Maule, J. Do you rely on the document's being in court, as a material circumstance?] It may or may not be. The proposition contended for was expressly admitted in Marston v. Downes (a), which was confirmed in Hibberd v. Knight (6), except in so far as the latter case rectifies an error in the former. In Ditcher v. Kenrick (c), the rule is stated without any qualification ; as also in Doe d. Lord Egremont v. Langdon. (d) The fact of William Chaplin's having been served only with a common subpæna, makes no difference. A subpæna duces tecum is but a means to an end : if the party and the document are both in court, the court has power to compel production, no matter how they come there. What is the ground upon which secondary evidence is received? The court is bound to administer justice upon the best possible evidence: but, inasmuch as the party may, without any default of his own, be disabled from adducing primary cvidence, upon his shewing that due diligence has been used for that purpose, secondary evidence is let in. In Snellgrove v. Stevens (e), which was an action of trespass for a seizure made by virtue of a warrant issued by the defendants as commissioners under a court of requests
act, it being necessary, in the course of the trial, to produce the record-book of the court of requests, and the warrant of execution, and the attorney for the defendants, who was also the officer of the court of requests, having the custody of both documents, being in court, and having both with him, but declining to shew the warrant, because he had only received notice to produce the book, -- Cresswell, J., said: “A witness here, sworn to give evidence, and having a document in his possession, may be compelled to produce it: he is just as much under the control of the court in this respect as if he had brought the document under a subpæna duces tecum.” And, in Doe d. Loscombe v. Clifford(a), it was ruled, that, if a deed be in the possession of a third person as mortgagee, and he, having the deed in court, though not subpenaed in the cause, declines to produce it, secondary evidence may be given of its contents; but that, if the deed is not in court, and he has not been subpænaed to produce it, it is otherwise. Here, all had been accomplished that could usefully be done. The attorney, in whose custody the book was, had been served with a subpæna duces tecum, and had the deed in court; and the client was in court under a common subpæna: to have served the latter with a subpæna duces tecum, when the document was not in his custody, would have carried the case no further.
Newton now claimed to be heard.
Per curiam. Counsel having been heard, it would be contrary to reason and precedent to hear the party also.
Cur. adv. vult.
MAULE, J., now delivered the judgment of the court.
(a) 2 Car. 8 K. 448.
In this case, a rule was obtained for a new trial, on the ground of the improper rejection of evidence. The action was brought to recover, as money
had and received to the plaintiff's use, the deposits paid on an allotment of shares in the Sheffield and Manchester Railway, against the defendant, as one of the directors of the company, on the ground of fraud, and failure of consideration.
In the course of the plaintiff's case, it was attempted to connect the defendant with the act of inserting an advertisement in a newspaper; and, in order to do so, it was proposed to put in evidence the minute-book of the provisional committee. For that purpose, an attorney named Fry, who had been attorney for the company, and who had been served with a subpæna duces tecum as to the book in question, was called as a witness. He said that he had the book with him in court: but he refused to produce it, because he had received it professionally, from the defendants brother, William Chaplin. The lord chief justice, before whom the cause was tried, -after having consulted the judges then sitting in banco in the adjoining court, — decided that the witness was justified in this refusal: whereupon it was proposed, on the part of the plaintiff, to give secondary evidence of the contents of the book, by the examination of the secretary of the company.
William Chaplin had been subpænaed by the plaintiff, and had been examined as a witness; and, on being asked, he objected to the book being produced. But, as he had not been served with a subpæna duces tecum, it was contended by the counsel for the defendant, that secondary evidence was not admissible: and the lord chief-justice, being of that opinion, refused to receive it.
The plaintiff having been nonsuited, afterwards ob