In re the Accounting in O'Toole's Estate

1 Tuck. Surr. 39

• Court: New York Surrogate's Court
• Decided: July 1, 1870
• Status: Published

Opinion

The Surrogate.

The.- subpoena duces tecum in this matter has been returned served, and the witness appears in' Court, but fails.to produce, .the books called.fqr, on -the ground of vagueness in their description, and also that they are not material to the pending inquiry.

The subpoena duces tecum, is a process of compulsory obligation on the witness to produce the deed or writing required of him, if he has it in his possession, and has no lawful excuse for withholding it, of the validity of which excuse the Court is the judge (9 East., 473). The Court will exercise its discretion in deciding what papers should be produced, and under what qualifications, as respects the interest of the witness in the paper. (1 Phil. Evidence, 6th ed., 418.)

Where the witness appears, but neglects to produce, seems .to be a case not provided for. The Circuit Judge might allow the plaintiff to withdraw a juror (8 Cowan, 127), and .then proceed by attachment. The question whether the witness is bound' to obey and produce the papers, will be considered when he is' sworn or when brought up on attachment. (9 East., 485 ; 10 Pick., 9.)

The general clause to produce all papers touching or concerning the matter in dispute can hardly be relied on; the paper should be described. (Ry. & Mo. N. P. Cases, vol. 1, 341.)

• A party is not bound (in England) to exhibit his title papers, or papers which would subject him to a criminal prosecution, nor is an attorney or solicitor compelled to produce papers of his client, unless the client could have been so compelled. (See cases in Bouvier’s Law Dict., 11th ed., p. 452.) But, with these exceptions, all papers in possession of a witness are liable to be called forth by a subpeena.

I consider the description of the books called for by the subpeena before me, to be sufficiently distinct, and the only question remaining is as to their materiality to the case. If the applicant for the subpoena will make affidavit that they are material, I will make an order to show •cause why an attachment should not issue.