Bonesteel agt. Lynde and others, 8 How. Pr. 226

Welles, Justice. There is no escaping the conclusion, from all the facts in the case, that the plaintiff, upon learning that the defendants were taking measures to have the lease and inventory in question produced upon the trial for the purpose of being used as evidence, set himself at work to prevent it; and with that view fraudulently and surreptitiously obtained the possession of them, and thereby succeeded in depriving the defendants of the benefit of their production.

The means to which he resorted in order to effectuate this object, was a flagrant insult to the law, and the authority and process of the court, and is deserving of the most unqualified condemnation.

The defendant had subpoenaed the individual who he had good reason to believe had possession of them, to produce the papers in question; and upon learning from' him that they had .been delivered to another person, he proceeded with a subpoena duces tecum,, to that person, with all reasonable diligence; and before he had time to accomplish his purpose, the plaintiff, with an assiduity and zeal worthy of a better motive, intercepted and thwarted him.

He was distinctly told by "young Jacocks that he had been subpoenaed to produce the papers, that they were in the hands of Benedict, and that the defendant, Lynde, had gone to Benedict’s for the purpose of subpoenaing him in like manner. After this he obtained possession of the papers as above stated; and when applied to by Benedict after-wards, and before his examination before the referee, to restore the papers of which he had thus furtively possessed himself,, he refused, without assigning any rehson for such refusal.

On learning this, all that the defendants could do was to give him notice to produce the papers on the trial, and to subpoena him to produce them. This was done. On being placed on the stand as a witness, he seeks to shield himself from the consequences of his disobedience of the command of the subpoena, under the excuse that he has lost or mislaid the papers he was required to produce.

With a knowledge of the evidence to be produced against him. on this motion, contained in the moving papers, he offers no explanation or denial of any part of it, but meets the application now made, with" his own affidavit, simply denying that at the trial, or the time of making the affidavit he knew where the papers in question were;—stating that he had not intentionally destroyed or concealed them—and therefore could not0 produce them; and that he had a duplicate of the lease at the trial which he could have furnished the defendants if requested, but that" such request was at no time made.

The evidence establishes, beyond a doubt, á deliberate design which has so far proved successful, to elude the process of the court. He knew the subpoena had started on its mission for the papers; and without the slightest color or pretence of right to them, he got possession of, and then refused to restore them. His denial of knowledge where the papers are, would now serve him a better purpose, provided he had satisfactorily explained the charge and met the proof of it, that he obtained them surreptitiously. ' With that charge proved and unexplained, his denial of knowledge of their whereabouts cannot avail him.

Having traced them into his hands under the circumstances mentioned, he was bound at his peril to produce them at the trial, and is not allowed to alledge that he has lost them. The plaintiff’s allegation that he had a duplicate of the lease which he could have produced if requested, is equally unavailing. 1st. It no where appears that the defendants knew or were informed that he could produce the duplicate. If that would have served them the same purpose as the one he alledged he had lost, he should at least have offered to produce it. 2nd.

If he had so offered to produce the duplicate, it would have been for the defendants to say whether they would be satisfied with it. It was the papers of which he had wrongfully possessed himself, which the defendants had a right to have produced, for the production of which they had taken the legal measures, and which, but for the unwarrantable interference of the plaintiff, they would have procured.

It was among other things urged on the argument in the plaintiff’s behalf, that the subpoena was not served upon him sufficient time before the examination, to bring him into contempt for disobedience to its commands. This is a mere afterthought. The trial was in the city of Rochester and the plaintiff resided there. He made no complaint at the time of his examination of want of time, but put his omission to produce them upon the sole ground of their having been lost. If he had asked for time to make search for them, the referee would undoubtedly have allowed it to him.

It was also contended upon'the argument of the motion, that it did not appear that the papers in question were material evidence upon the issue. Enough is shown to satisfy me that they might have been material, and it was the defendants’ right to have them produced, to offer in evidence and have the decision of the referee on the question of their materiality and competency.

The plaintiff had nothing to do with those questions, which belonged exclusively to the referee to decide. 1 am clear that the referee decided right in declining to entertain the question, on the motion before him, to strike out the complaint. He had no power to punish for a contempt. The defendants have had no opportunity to present the question to the court until the present;—and it only remains to determine whether the plaintiff is now liable to be dealt with as for a contempt, and if he is, the measure of punishment which should be meted out to him.

Section 390 of the Code provides for the examination of a party as a witness, at the instance of the adverse party, and declares that for that purpose, he may be compelled in the same manner and subject to the same rules of examination as any other witness, to testify, either at the trial or conditionally, or upon commission. §§ 391 and 392 relate to the examination of a party before the trial, and § 393 declares that the examination of a party thus taken, may be rebutted by adverse testimony. § 394 is as follows: “If a party refuse to attend and testify as in the last four sections provided, he may be punished as for a contempt, and his complaint, answer or reply may be stricken out.” The object and intention of § 390, was, in my opinionj to place a party to an action in the same plight and condition with any other witness who is not a party, in relation to giving evidence, at the instance of his adversary; and to impose the same liabilities and subject him to the like consequences of disobedience, with the superadded one of having his complaint, answer, or reply, stricken out.

A witness is bound, not only to appear and testify orally in court, but to produce papers in his possession, to be used as evidence, provided he is properly subpoenaed for that purpose. He is as much bound to do the latter as the former, and his neglect of either is a contempt of court. In the case of Amy agt.

Long, (9 East. 473,) it was denied by counsel that the duces tecum clause in. a subpoena to testify was obligatory upon a witness; but the court held otherwise,—observing that the right to resort to means competent to compel the production of written as well as oral testimony •seemed essential to the very existence and. constitution, of a. court of common law, which receives and acts upon both descriptions of evidence, and could not possibly proceed with due effect without them.

It is contended, however, by the plaintiff’s counsel, that it was not in the contemplation of the Legislature, when they enacted the sections of the Code referred' to, that a party should be compelled by the common subpoena duces tecum to bring papers into court; in other words, that the rule which requires a witness, who is not a party, to bring into court and produce papers as evidencé upon the trial, does not apply to a party to •the action; and the late case of Trotter agt. Latson, (7 How. Pr. R. 261,) seems to favor that construction. In that case the decision is put upon the ground that

section 388 has made all the provision which was deemed necessary by the Legislature for giving to one party access to, and the right to use in evidence, papers in posession of the adverse party. But it will be observed that the

section last mentioned affords a party no means whatever in any case, of using such papers in evidence upon the trial. It only gives an inspection of them, and the right to take copies. Cases are liable to arise where this would be found entirely inadequate to the full developement ■of the whole truth. An inspection by the court and witnesses •at the trial, might be essential to the advancement of justice between the parties. The paper wanted may be the instrument upon which the action or defence is founded, and of which the adverse party, as in this case, has wrongfully possessed himself, and the execution whereof it is necessary to prove.

Section 388 authorizes the court or a Judge thereof, to order the party to give to the other party an inspection and copy, or permission to take a copy. If he has the right to have his witnesses inspect the paper, with a view to proving its execution on the trial—which is at least questionable—he would be laboring under a great disadvantage, as there is no law to compel the witnesses to examine the paper before the trial; and in • case they should refuse, I do not see but he would be remediless. It seems to me therefore, that this case is not, as the justice, in Trotter agt.

Latson, supposes, specially provided for—and if it is not, then, in the language of the same justice, a liberal construction, such as is generally applied to the provisions of the Code, would justify the conlusion that the language of

section 390 imports an obligation upon the party, not merely to answer orally, but to bring with him and produce his books and papers. Nor is the evil of subjecting private and confidential papers to invasion by strangers, to be apprehended any more in the case of a party, than of any other witness. It is always in the discretion of the court to say whether the witness shall produce the papers or documents after he has brought them into court. (Amy vs. Long, supra.) It by no means follows that because he shall bring them with him he shall be compelled to produce them in evidence. (The King agt.

Dixon, 3d Burr. 1687; Miles agt. Dawson, 1 Esp. N. P. Cas. 405.) I have therefore arrived at the conclusion, that the true construction of

section 390, is that a party to an action may, at the instance of the adverse party, be compelled by the process of subpoena duces tecum,, not only to appear at the trial and submit to a personal examination, but to produce papers and books in his possession, precisely as any other witness may be so compelled. The

section in terms declares that he may be compelled' to testify the same as any other witness. To testify is to give evidence; and the reasonable and just

interpretation of the words requires that he give evidence in the same manner as other witnesses are bound to do,—not only by submitting to an oral examination, but by the production of such papers in his possession, as the court before whom the action is tried, shall decide are material and proper to be produced by him.

The plaintiff having neglected to produce the lease- and inventory in question, after having been duly subpoenaed for that purpose; and standing convicted of having surreptitiously procured the possession of them, with the intention of preventing their introduction in evidence, after he knew that the process of the court had been issued for the purpose of obtaining them, and was on its way to the person having them in custody ? and of afterwards refusing to restore them when properly requested ; I am constrained to hold -that his excuse of having lost or mislaid them, is inadmissible; and that he" must therefore be held and treated as in contempt.

An order may be entered that the plaintiff’s complaint be struck out, and that he pay to" the defendants ten dollars, costs of this motion.

Provided, that if the plaintiff’s attorney within ten days after service of notice of this order, shall deliver to the defendants’ attorney a stipulation providing that the report of the referee with all subsequent proceedings thereon by the plaintiff, be set aside and a new trial ordered) and agreeing to produce the lease and inventory in question upon such new trial, or in default thereof, that a non suit be entered by the referee, and that no costs shall in any event be charged by or allowed to the plaintiff against the defendants, of the trial already had, but in case the defendants shall be ultimately entitled to the costs of their defence against the plaintiff, then the costs of said trial to be included; in that case the complaint is to be allowed to stand.