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duces tecum. He stated that he held the book in his hand; but he declined to produce it, on the ground of privilege in William Chaplin, the defendant's brother, from whom he, Fry, had received it for the purpose of defending him in an action brought against him as a member of the provisional committee.
The lord chief justice, having consulted the other judges (a), who were sitting in banco in the adjoining court, decided that Fry was, under the circumstances, justified in declining to produce the book.
William Chaplin was in court, having been served by the plaintiff with a common subpæna ; and he was asked whether he would consent to the book being produced, but be declined to do so.
The plaintiff then proposed to give secondary evidence of the contents of the book, from the mouth of the secretary of the company. But it was insisted, on the part of the defendant, that, inasmuch as William Chaplin, the client, had not been served with a subpæna duces tecum, the plaintiff had not done all that he was bound to do, to shew the primary evidence to be unattainable, and consequently was not entitled to give secondary evidence.
The lord chief justice expressing himself of opinion that this objection was well founded, the plaintiff submitted to be nonsuited.
Atherton, in Michaelmas term, 1848, moved for a new trial, on the ground that secondary evidence of the contents of the minute-book ought to have been admitted. The plaintiff could not have anticipated that Fry would object to produce the book; nor could he know the party on whose account the privilege was to be set up. The attorney held the book equally on behalf of all
(a) Coltman, J., Maule, J., Cresswell, J., and Williams, J.
who might be interested therein in the like degree with William Chaplin, — and, amongst others, for the plaintiff himself. [Wilde, C. J. He did not receive the book as the general attorney for the company, but as the attorney for William Chaplin only, and for the sole purpose of his defence, after the company had ceased to exist.] Considering the circumstances under which the plaintiff was excluded from the best evidence, he clearly ought to have been allowed to resort to secondary evidence. [Maule, J. In effect, you say that he had used due diligence.] Precisely so.
In Marston v. Downes(a), where, in an action against a mortgagor, the attorney for the mortgagee, who had the mortgage deed, declined to produce it, Patteson, J., allowed secondary evidence to be given of its contents : and the court upheld his ruling. (6) So, in Doe d. Gilbert v. Ross(C), it was held, that, where a deed is in the hands of an attorney, who holds it, not merely as attorney, but as a security for money owing to him from his client, and the attorney, being called on a subpoena duces tecum, refuses to produce the deed on the ground of his own lien, the party calling for the production of the deed is entitled to give secondary evidence of its contents. Parke, B., in the course of the argument, says (d): “if a party does all in his power to produce the deed, but is not able to procure its production, is not that enough ? Then, is it not enough to subpæna the attorney, duces tecum, to produce it? Marston v. Downes appears to have settled that it is.” [Wilde, C. J. Due diligence being used.] Subpænaing the attorney, in whose possession the deed was, is using due diligence, in the sense meant by Parke, B. In delivering the judgment of the court, the learned baron says(e): “It appeared
(a) 6 C. & P. 381.
(c) 7 M. & W. 102. (6) 1 Ad, f; E. 31., 4 N. & (a) 7 M. & W. 114. M. 861.
(e) 7 M. & W. 121.
that the original settlement was in the hands of Mr. Stafford Baxter, attorney for a Mr. Weetman, but he did not hold it merely as attorney, but also as a security for money advanced by him to his client. Baxter, when called upon on a subpæna duces tecum, refused to produce the deed ; and Lord Denman was of opinion that secondary evidence of its contents was then admissible; and in that opinion we entirely concur. The rule on that subject is, that the law excludes such evidence of facts, as from the nature of the thing supposes still better evidence in the party's possession or power (a); which rule is founded on a sort of presumption that there is something in the evidence withheld, which makes against the party producing it. But, if such evidence is shewn to be unattainable, the presumption ceases, and the inferior evidence is admissible. If, therefore, a deed be in the possession of the adverse party, and not produced, or lost and destroyed, no matter whether by the adverse party or not, secondary evidence is clearly admissible; and, if the deed be in the possession of a third person, who is not by law compellable to produce it, and he refuses to do so, the result is the same, for the original is then unattainable by the party offering the secondary evidence. And this is one of the points ruled in Marston v. Downes.” [Wilde, C.J. I thought there had not been sufficient diligence used, to entitle the plaintiff to give secondary evidence, William Chaplin not having been served with a subpæna duces tecum. I adopted that view from the case of Bowles v. Johnson. (6) I have known such evidence rejected on that ground in many cases.] The plaintiff had no means of knowing that Fry had received the book from William Chaplin. [Maule, J. He might
(a) i Phillipps on Evidence, 9th edit. 434., 10th edit. 452.
(6) 1 W. Blac. 36.
have asked Fry.] It was reasonable to presume that he had the book from the company, as he had been their attorney: the not having asked Fry, therefore, cannot be called want of due diligence. Secondary evidence was admitted in Ditcher v. Kenrick.(a)
A rule nisi having been granted,
Bovill, in Michaelmas term, 1849, shewed cause. The lord chief justice was perfectly right in refusing to compel Fry to produce the book in question. It came into his possession as the attorney of William Chaplin only, and for the purpose of defending him against an action. To say that the plaintiff had an interest in the book, is a fallacy ; for, the very ground of the action, is, a repudiation by Mr. Newton of all connection with the company.
With respect to the admissibility of secondary evidence, the objection is, that the plaintiff had not done all that was requisite to entitle him to give secondary evidence of the contents of the book. Undoubtedly, there are authorities to shew, that, where an attorney refuses to produce a deed or other document, or to state its contents, the other party may give secondary evidence; but that is only provided he has used all due diligence to obtain the best evidence, by serving the client with a subpæna duces tecum. Marston v. Downes has been explained, and placed upon a more correct footing, in a recent case of Hibberd v. Knight (1), where it was held that an attorney cannot be compelled by the court to disclose the contents of a client's deed in his possession, but that, if he do so willingly, the evidence may be received. Parke, B., there says: “ The case of Marston v. Downes is often referred to. There, a witness, an attorney, refused to produce a title-deed, because
it was his client's, but he told the contents of the deed willingly. My brother Ludlow objected to the evidence, not on the ground that the attorney was privileged, but that no secondary evidence could be given of the deed, which was itself in existence. My brother Patteson ruled that secondary evidence might be given, as the party was not obliged to give up his deeds, and that, if the attorney did not insist upon his privilege, but chose willingly to disclose the contents of them, the evidence might be received. Thus explained, the case is correct. Where a deed is in the possession of a person, which he is not obliged to produce under a subpæna duces tecum, you may give secondary evidence of its contents, as you have done every thing to obtain it. The cases of Ditcher v. Kenrick(a) and Doe d. Gilbert v. Ross (6) are authorities which shew this.” And Alderson, B., said: “ The second point in the case of Marston v. Downes requires explanation. It would seem, from the report of that case, that an attorney can be compelled by the court to divulge the contents of his client's deed. The court will hear him, and receive his evidence, if he does so willingly; but the court cannot insist upon it.” [Maule, J. I presume that the learned barons do not mean that the attorney may in all cases betray his client.] Hibberd v. Knight was acted upon in Doe d. Lord Egremont v. Langdon. (c) There, to prove the existence of an outstanding term, the defendant called for the production of the deed creating it. The witness called upon, stated that he held the deed as attorney for a mortgagee of the land, and that his client refused to produce it: and the witness himself declined to produce it, or to give oral evidence of its contents. The defendant then called as