Morley v. Green

11 Paige Ch. 240 | New York Court of Chancery | 1844

The Chancellor.

It is not material to the decision of this appeal to inquire whether the vice chancellor did or did not allow the papers referred to in the notice, and which were not served upon the appellant, to be read upon the motion. It would however be irregular and improper to allow papers to be read against Wilmott, upon the motion, which had not been served on him; so as to give him an opportunity to answer them, orunderstand'the contents thereof. But admitting those papers to have contained all that the respondent’s counsel supposes them to have contained, and that they had been regularly served upon the appellant, the order appealed from is clearly erroneous. Ipor the court had no jurisdiction over the appellant, he not being a party to the suit, to compel 'him to deliver over the books and papers in his possession, to the master, with a view to their delivery to the receiver. He was a mere witness before the master; and, if these books were wanted as evidence in relation to any matter of inquiry upon the reference, the proper course to obtain the books, for that purpose, was to serve the witness with a subpoena duces tecum, to attend with the books, and to give evidence in relation to the same. But neither the master nor the court, even in that case, would have the right to take the books out of the possession of the witness, and deliver them over to the receiver, without the consent of such witness; or to allow them to be used for any other purpose than as mere evidence, upon the subject of the inquiry which was properly before the master, upon the reference.

A case very similar to the one now under consideration came before the court of review, in England, in August last. There, the attorney of the bankrupts had in his. possession a deed, belonging to them, which he refused to deliver to the solicitor of the assignee — claiming a lien upon such deed, for professional services. He was thereupon summoned as a witness, before the commissioner in bankruptcy, to be examined touching the estate of the bankrupts, and to produce the deed upon his examination. He attended accordingly, and produced the deed. And the commissioner having decided that the witness had no lien upon the deed, ordered him to deliver it up; which he declined to do, until his lien was paid! The commissioner then directed the officer of the court to take the deed from him; which was accordingly done. But, upon appeal to the court of review, the. Chief Judge, Sir James Lewis Knight Bruce, said the court could not in this way decide as to the validity of the alleged lien; and that the commissioner might as well have taken from the witness the suit of clothes in which he came to court, as to take the deed upon which he claimed to have a lien. (See Ex parte Llewellyn, 8 Lond. Jur. Rep. 816.)

So in the case under consideration, the appellant was a mere witness before the master, upon the reference, and the court had no jurisdiction aver him except in that character. It had no right, therefore, to order him to deliver up the books in his possession, whether his claim to such possession was or was not well founded. ’ The agency of the appellant, as he testified, had ceased before the commencement of this suit. And if the complainants wished to obtain possession of these books, upon the ground that' he improperly withheld them, they should have made him a party to their suit, either by an amendment of them bill or otherwise; so as to enable the court to extend the receivership to him, so far as related to the books in his possession. Or if they merely wanted the books as evidence before the master, upon the reference, they should have called upon him to produce them, as evidence, by a subpoena duces tecum, in the usual way.

The order appealed from is therefore erroneous and must be Reversed; and the application must be denied, with costs.