McPherson v. Rathbone

7 Wend. 216

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The point tobe proved was that the defendants were partners. The plaintiff failed in his-attempt to prove the articles of copartnership. He then uniertook to prove the partnership by shewing the instrument dissolving the partnership. The defendants’ attorney had been subpoenaed to produce it. He testified, though his evidence was objected to, that he had delivered such a paper to the plaintiff’s attorney. The court were correct in excluding testimony of a confidential character. If the paper in question was delivered by the clients to their attorney as a paper relating to the defence in the cause, it was a confidential communication, which the witness could not be permitted to disclose, and therefore it could not be introduced in evidence by the plaintiff. If a plaintiff desires to prove a paper of that kind in possession of the defendant or his attorney, notice must be given to produce it. The defendant’s attorney did not state how the paper catne into his possession, but being an instrument affecting the defendants in the suit, the presumption is that he received it from them; it could not be produced in evidence by force of the subpoena duces tecum.

The plaintiff’s attornies served a notice on the defendants’ counsel pending the trial to produce the paper. Had the paper been m court, such notice would have been sufficient, but had it been in the possession of the defendant or his attorney at a distance from the place of the sitting of the court, it clearly was not sufficient. The judge considered it sufficient, on the ground that the attorney had testified that he could not find it, and from the facts stated, the judge came to the conclusion that it was lost or destroyed ; and it is contended by the plaintiff’s counsel that the subpoena to the defendants’ attorney operated as a notice to produce the paper. The attorney by the subpoena, was treated as a Witness, and not as the representative of his client; for aught that appears in this case, the document may have been in the possession of the party, and in that case the notice was not sufficient.

Had the instrument been produced by the defendant on the call of the plaintiff, no further proof of its execution would have been necessary, it being one under which the defendants claimed an interest; but as it was not produced, it became necessary to prove its genuineness—assuming, for argument’s sake, that the notice was sufficient. Joel Rathbone swears that he once saw súch á paper, signed by Samuel Hathbone alone ; but that does not identify the paper called for; it was in the possession of Lyman Rathbone, but the witness could not say that it was the paper afterwards in the hands of the defendants’ attorney, and of which the plaintiff’s attorney was permitted to take a copy. Proof of the execution of a paper resembling that of which a copy was taken, signed by one only of the parties purporting to have executedi it, is too loose; the paper which the plaintiff’s attorney saw is therefore not proved. If it Was the client’s paper, confidentially in the hands of his attorney, as I think it was, the proper way to bring it into court was by notice.

The declarations of Lyman Rathbone were improper, and unavailing: improper, because they could not be received on the ground that a partnership existed, when the object was thereby to prove the partnership; unavailing, because the fact of partnership was in dispute, and could not be proved by declarations which were totally inadmissible upon any other assumption than that a partnership existed and had been shewn. The declarations of one of several partners cannot be given in evidence to prove a partnership, only as against the person making them. The judge erred in instructing the jury to find á verdict upon'such testimony.

New trial granted, costs to abide the event.