produced and shown to him. A notice of the appointment to attend either before the examiner or the commissioners, as the case may be, is served on the witness either [*380] *together with the copy of the subpoena, or within a reasonable time before that fixed for the examination. What precise period before the time fixed by the examination is necessary for the serving the subpoena and the notice, does not appear to be settled.[a]

If the witness has a deed, paper, or writing in his possession, and the party is desirous of having the same produced, he procures a subpoena duces tecum, in the form settled by the General Orders of 1833. In seeking the production of a deed, he should in the subpoena set forth the date and the parties to the deed which he requires.[6] The defendant's solicitor being a witness to a deed, and in possession of the same, but having a lien on it, cannot

[a] See ante, 378, note [b].

[b] Upon being served with the subpoena, the witness must attend before the examiner, and produce the instrument required, in evidence, unless he have some legal and reason. able excuse for withholding it. Upon trials in courts of law, the Court, and not the witness is the judge of the validity of the objection. Amey v. Long, 9 East, 473; Pearson v. Fletcher, 5 Esp. 90; Bull v. Loveland, 10 Pick. 9. In courts of equity, the validity of the objection is considered, upon the witness being brought up, on an attachment, for refusing to produce it. Bradshaw v. Bradshaw, 3 Šim. 285, (5 Eng. Chan. Rep. 122 ;) C. S. 1 Russ. & Myl. 358, (4 Eng. Chan, Rep. 464.)

It has been said to be no excuse, for not producing a paper upon a subpœna duces tecum, that the legal custody of the paper belongs to another, if it be in the actual custody of the witness. Amey v. Long, 1 Camp. 14. 180, note; S. C. 6 Esp. 116; Corsen v. Dubois, Holt, 236; 1 Chit. Archb. 7th ed. 233; Gra. Prac. 2d ed. 265. But an attorney has been held, not to be bound to produce a paper, in his possession, as such, in the cause, upon a subpoena, the only way in which the opposite party can avail himself of it, being by notice to produce it. M'Pherson v. Rathbone, 7 Wend. 216. So, though it was received by him in respect to another cause than the one on trial. Parker v. Yates, 12 Moore, 520, (22 Eng. C. L. Rep. 455.) So, also, of the attorney of a third person. Ditcher v. Kenrick, 1 Car. & Payne, 161, (11 Eng. C. L. Rep. 356.) So, also, of coun. sel in the same cause. Jackson v. Denisen, 4 Wend. 558. So, of a bank clerk, Bank of Utica v. Hillard, 5 Cowen, 153, or cashier, S. C. 5 Cowen, 419. Nor is the witness bound to produce it, if it tend to criminate him; Harris v. Hill, 3 Stark. Rep. 140, (14 Eng. C. L. Rep. 170;) S. C. Dowl. & Ryl. N. P. Cas. 17, (16 Eng. C. L. Rep. 416;) or if it be his title deed. Pickering v. Noyes, 1 B. & Cr. 263, (8 Eng. C. L. Rep. 72 ;) S. C. 2 D. & R. 386; Rex v. Upper Boddington, 8 D. & R. 726, (16 Eng. C. L. Rep. 348;) Doe v. James, 2 Moo. & Rob. 47; Doe v. Owen, 8 Car. & Payne, 110, (34 Eng. C. L. Rep. 316;) or if it be a partnership document, without the consent of his partners. Attorney General v. Wilson, 9 Sim. 526.

If the witness, instead of producing the papers required, deliver them to the opposite party, by whom they are withheld, the Court will allow secondary evidence of them to be given, without notice to produce the originals. Leeds v. Cook, 4 Esp. 256. And, it seems, that a witness producing papers under a subpoena duces tecum, need not be sworn. Davis v. Dale, 1 Moo. & Malk. 514; S. C. 4 Car. & Payne, 335, (19 Eng. C.L. Rep. 410;) Perry v. Gibson, 1 Adol. & Ell. 48, (28 Eng. C. L. Rep. 32;) S. C. 3 Nev. & Man. 462; Summers v. Moseley, 4 Tyrwh. 158; S. C. 2 Crompt. & Mees. 477.

As to the particularity of the description of the paper, in the subpœna, it must be described with reasonable certainty; the general clause "to produce all letters, papers and documents touching or concerning the matter in dispute," can hardly be relied on. France v. Lucy, Ry. & Moo. N. P. Cas. 341, (21 Eng. C. L. Rep. 452;) Attorney Gene ral v. Wilson, 9 Sim. 526.

be compelled to attend with the deed at the hearing of the cause, otherwise than by a subpoena duces tecum ;(1) but where a solicitor who claimed a lien on an original will was served with a subpoena duces tecum, and refused to produce the will unless his bill was paid, the Court ordered him to produce it before the examiner, and for the hearing of the cause without prejudice, intimating a strong opinion against the lien.(2) A person served with a subpœna duces tecum to produce a deed in his possession, having refused without assigning a sufficient reason, upon the motion of the plaintiff was ordered to produce the deed at his own expense, and the subscribing witness to the deed was ordered to attend at such person's expense, and he was also directed to pay all other expenses occasioned by his refusal.(3) Phillipps, in his book on Evidence,(4). says "Though it will be a question for the consideration of the Judge at the trial, whether in any particular case the actual production of writings should be enforced, yet the witness ought always to have them ready to [*381 ] be produced if required, in obedience to the judicial mandate."[a]

Where a witness is served with a subpoena, to produce deeds on the execution of a commission, it is not necessary that there should be a written interrogatory as to the fact of his having them in his possession; and if he then takes upon himself to refuse production, he does so at the peril of costs, in the event of his failing to satisfy the Court of his right to withhold them.(5)

If, at the time fixed, the witness does not attend, the party moves the Court upon an affidavit of the service of the subpoena, and of the notice, and of the non-attendance of the witness, that the witness do attend within a given time or stand committed, and that he may pay the costs of the application.[6] This notice is served personally on

(1) Busk v. Lewis, 6 Madd. 29.

(2) Balch v. Tymes, 1 Turn. 87. Georges v. Georges, 18 Ves. 294.

(3) Bradshaw v. Bradshaw, 3 Sim. 285.
(5) Bradshaw v. Bradshaw,b 1 R. & M. 358.

[4] Cowen & Hill's notes to Phill. Ev. 11, 12.

(4) Page 3.

[b] An attachment will be granted against a witness, for non-attendance, when duly served with a subpæna for that purpose; Hammond v. Stewart, 1 Str. 105; Wyatt v. Wingford, 2 Str. 80; S. C. 2 L. Raym. 1521; Doe v. Andrews, Cowp. 843; Pearson v. Iles, 2 Doug. 556; provided the subpoena were served a reasonable time before his attenEng. Chan. Reps. iv. 464.

Eng. Chan. Reps. v. 122.

the witness. The order is drawn up, and is served personally, and upon the examiner's certificate of non-attendance, and an affidavit of service, an order is made upon a motion as of course, for the committal of the witness to the Fleet. The Lord Chancellor issues a warrant on the order, and the witness is taken by the deputy-warden to the Fleet.

So also, if a witness attends before the examiner under a subpoena, but refuses to be sworn, he will be ordered to attend and be examined, or stand committed.(1) A witness who had answered some of the interrogatories, but refused to answer the others, upon the examiner's certificate, was ordered to answer those interrogatories within four days or stand committed.(2) By Lord Clarendon's orders, "if a witness shall depart before he be examined (without leave of the Court) he is, upon motion and certificate from the Register of such his departing, and not being examined, and of the interrogatories exhibited from [ *382 ] the examiner, to *stand committed without further day given unto him, and is not to be discharged from such his contempt, until he hath been examined and cleared of his contempt.(3) If a peer or a member of parliament refuses to attend as a witness, he is proceeded against by sequestration nisi and absolute.

If a witness is confined in the Fleet, he may either be brought up by habeas corpus to be examined, or the

(1) Hennegal v. Evance, 12 Ves. 201. (3) Beam. Ord. 201.

(2) Austin v. Prince, 1 Sim. 348.

dance was required; Horne v. Smith, 6 Taunt. 9, (1 Eng. C. L. Rep. 291 ;) S. C. nom. Holme v. Smith, 1 Marsh. 410, (4 Eng. C. L. Rep. 345 ;) and that the witness was personally served with it; Ibid.; although it is sufficient, if it can be collected from the affidavit, that it was personally served; as where it was said, that it had been "left with him at his house;" it being unnecessary that the words "personally served," should be used in the affidavit. Short v. Smith, 1 Man. & Grang. 211; S. C. 8 Dowl. P. C. 584; S. C. 1 Scott, N. R. 153.

There must also be no unreasonable delay in applying for the attachment; Rex v. Stretch, 4 Dowl. P. C. 30; S. C. 3 Adol. & Ell. 503, (30 Eng. C. L. Rep. 135;) and the affidavit for the attachment must distinctly show, all that is requisite to bring the party into contempt; for example, that he is a material witness, &c. Garden v. Cresswell, 2 Mees. & Welsh. 319; S. C. 5 Dowl. P. C. 461; Finley v. Porter, 5 Dowl. P. C. 744.

If it clearly appears, that the subpoena was served merely for the purpose of vexation and annoyance to the witness, and that his presence would have been of no use to the party subpoenaing him, the Court will refuse an attachment against him. Dicas v. Lawson, 3 Dowl. P. C. 427.

See further, on this subject, ante, 378, note [b]. See also Graham's Prac. 2d ed. 267, 268; 1 Chit. Archb. 7th ed. 234, 235; Bagley's New Prac. 180; Lush's Prac. 463465; 1 Hoff. Ch. Prac. 445-447.

Eng. Chan. Reps, ii. 175,

examiner may attend to swear him, but an order must be obtained for either purpose.[a]

An attorney examined as a witness must not disclose private confidential conversation with his client, or the depositions may be suppressed;(1) but he is only protected from divulging those secrets of his client which come to his knowledge in his relation of solicitor and client.(2)[6] A witness is not bound to answer questions to criminate himself.(3)[c]

To compel the attendance of witnesses to be crossexamined no subpoena is requisite.

(1) Sandford v. Remington, 2 Ves. 189. (2) Morgan v. Shaw, 4 Madd. 58.

(3) Paxton v. Douglass, 16 Ves. 239.

[a] See form of affidavit to obtain habeas corpus, and also of the habeas corpus, Bagl. New Prac. 183. See also, Graham's Prac. 2d ed. 266, 267.

[b] See the American cases on this subject, fully collected in Cowen & Hill's notes to Phill. Ev. 275-283. 1571-1574. See also a full discussion of the subject by Lord Brougham, in Greenough v. Gaskell, 1 Myl. & Keen, 100, and by Lord Cottenham, in Desborough v. Rawlins, 3 Myl. & Cr. 515; S. C. 2 Lond. Jurist, 125; Hare on Disc. 163-166; Story's Eq. Pl. 457-460.

[c] See on this subject 1 Phill. Ev. 276-282; and a very elaborate discussion of it with all the American cases bearing upon it, in Cowen & Hill's notes to Phill. Ev. 734 -748.

30*

CHAPTER XXXII.

A DEMURRER TO ANSWER INTERROGATORIES.

Object of a demurrer, and how prepared, 383. How brought before the Court, 383. How argued, 384. On what grounds a demurrer may be sustained, 384.

Ir a witness objects to answer an interrogatory or any part of it, he must state his objection in the form of a demurrer.(1)[a] The demurrer is not prepared by counsel, but is taken down either by the examiner or the commissioners from the mouth of the witness.[6] If the witness is examined in London, the examiner takes down the objection of the witness in writing, and gives notice thereof to the opposite party, and furnishes him if required with a copy of the demurrer. If taken before commissioners after they have executed the commission, they return the demurrer sealed up, together with the depositions and commission, and the party exhibiting the interrogatories may obtain an order for his clerk in court to deliver over to the two senior Six Clerks not towards the cause, the commission issued for the examination, &c., with the return thereto, and that the two senior Six Clerks do open the same and deliver over to the clerk in court of the party exhibiting the interrogatories, a copy of the [*384] demurrer of the witness and of the *interrogatories, or of so much as relates to the said demurrer.(2) afterwards the order directs the depositions to be sealed

And

(1) Bowman v. Rodwell, 1 Madd. 266. Parkhurst v. Lowten, 2 Swanst. 194. (2) Parkhurst v. Lowten, 2 Swanst. 220. In this case it is, copies of the depositions and demurrers of the witness.

[a] It must be upon oath. Morgan v. Shaw, 4 Madd. 57; Kirkwood v. Lyons, 1 Hogan, 116.

[b] In New York, where, as has been already seen (ante, 356, note [a],) oral examinations are used, it has been held, that the counsel of a party has no right to interrupt the examination, by advising a witness that he is not bound to answer a question. If the witness object, his objection should be stated, by way of demurrer; or if a formal demurrer be not put in, but the witness refuse to answer, the matter can be brought before the Court, upon a motion for an order to compel him to answer. If a question be put to a witness, tending to subject him to a penalty or forfeiture, or to criminate him, the examiner may apprize him of his legal rights; and the witness may ask advice of counsel, even of the opposite counsel,when he desires to object or demur. Taylor v. Wood, (V. C. 1st Cir. N. Y.) Cited 1 Hoff. Ch. Prac. 466.