12 Barb. 680 | N.Y. Sup. Ct. | 1852
I have carefully examined this case, and am satisfied that the rulings of the learned justice upon the trial were entirely legal and proper. The main point upon which the defendant’s counsel seemed to rely, upon the argument was, that the plaintiff was not entitled to recover in this action unless he established by proof a good cause of action in the slander suit wherein the defendant was a witness for the plaintiff. I cannot agree to the correctness of this proposition. The provision of our statute is that every person who shall be duly subpoenaed to attend as a witness any court of this state, shall be bound to
Our statute is in affirmance of the common law remedy in such cases. The party sustaining damages by the failure or neglect of a witness to obey a subpoena, could sustain an action on the case, at common law, to recover such damages of the defaulting witness. (Hasbrouck v. Baker, 10 John. 248. Parsons v. Isles, 2 Douglass, 501.)
The proof in this case is, that the defendant personally appeared, and was sworn as a witness in the action, on the part of the plaintiff. So far he obeyed the subpoena; but no sufficient excuse is made to appear for the omission to produce the docket book and papers specifically referred to and designated in the duces tecum, clause of said process of subpoena. The law provides that when an instrument is in- the hands of a third person, the production can be compelled by means of a writ of subpoena duces tecum. The question then arises whether the defendant is liable in this action for disobeying the duces tecum clause of the process of subpoena, having in other respects obeyed the writ by his personal appearance and giving evidence in the action. The case of Amy v. Long, (1 Camp. N. P. Rep. 14,) is directly in point upon this question. The plaintiff in that case brought an action against the defendant for not producing a paper under a subpoena duces tecum. The plaintiff Amy, having obtained judgment against one Grlover, sued out a testatum fieri facias to levy the sum recovered, directed to the sheriff of Surrey: the writ was returned nulla bona, and Amy brought an action against the sheriff, for a false return. The warrant from
Where an instrument is in the hands of a third person, the production is compelled by means of a writ of duces tecum, (1 Stark. Ev. 86.) In a note, this author says that “ this writ has in fact been used from the time of Charles the second, but so necessary is the power of compelling the production of
As every man is, in furtherance of justice bound to disclose all the facts within his knowledge, which do not tend to his crimination, upon the very same principle he is also bound to produce such documents as are essential to the discovery of truth and the great ends of justice. (1 Stark. Ev. 87. Grah. Pr. 265.)
The proof in this case shows that the defendant was not only a material witness for the plaintiff in the slander suit against Carpenter, but that his docket book was indispensable as evidence in that action. The plaintiff was nonsuited upon the trial on the sole ground of the non-production of said docket. The defendant failed in satisfying the jury that any reasonable excuse existed which absolved him from the obligation of producing said docket book in evidence. This proof entitled the plaintiff to recover his damages in this action, without going further and showing that he had a good cause of action in his slander suit against Carpenter; and indeed such proof, in my opinion, if admissible, was unnecessary to maintain this action. On the whole case, therefore, I am satisfied that the plaintiff was entitled to a verdict, and the amount recovered is quite as favorable to the defendant as could in any view of the case, be justified by the evidence. The judgment must, therefore, be affirmed with costs.
Shankland, J. and Mason, J. concurred.
Gray, J. dissented.
Judgment affirmed.
Mason, ShanUand, Gray and Crippen, Justices,]