Corsen v Dubois
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 171 E.R. 228
IN THE COURT OF COMMON PLEAS
228 CORSEN V. DUBOIS HOLT 239. [239] corsen v. dubqis. (1. Upon a subpoena duces tecum, a witness is bound to produce a paper which he has in his actual custody, though the legal right and property in such paper belong to another. The Court, however, in all such cases will exercise their discretion, in deciding what papers shall be produced ; and under what qualifications, as respects the interest of the witness. 2. Such witness is bound to produce them, thougk there be a regular way prescribed by law for obtaining such documents.) This was an action on a bill of exchange, to which the defendant had pleaded his bankruptcy and certificate. Having sustained the plea by the production of his certificate, the plaintiff proposed to shew that there had been a prior commission in 1802, against Dubois and his partner, and that he had not paid 15s. in the pound under the second commission. In order to obtain evidence of that commission, a subpoena duces tecum had been served upon Mr. Davis, the solicitor of the defendant, to produce the proceedings under it. Upon Mr. Davis's examination it appeared, that the assignees of the first commission had left the papers in his custody, and he then had them in Court, but hesitated to produce them. Best, serjeant, for the defendant. The witness is not bound to produce the papers ; he has not the proceedings as solicitor to the defendant in the cause ; but they have been specially confided to him by the assignees, under the former commission. The plaintiff might have obtained the proceedings by adopting either of two modes. He might have called upon the assignees, who would have been bound to produce them ; or, he might have petitioned the Chancellor to have had the proceedings enrolled ; in which case they would have been accessible, as a record, to any party who wanted them But a stranger, like the piesent [240] wi.ta.ess, whose custody is special, cannot be permitted, even if he were willing, to do an act which might prejudice the interest of third persons. This case does not iall within the principle of Amey v. Long. In that case there was one way only to obtain the document wanted. Here the law points out the means Leas, serjeant, contra. There has been much litigation on this point, and it would be convenient that the practsce were settled. The plaintiff must necessarily subpoena the person who has the custody of the proceedings...
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...said, that he considered it a public duty to have the proceedings produced, Pearson v Fletcher, 5 Esp. 90, and see Coi^en v Duboi*, I Holt, 239, and Cohen v Templar, 2 Stark 260, ace (6) From what Mr J Yates is reported to have said of this case in 4 Burr 248H, it should seem that he sat as......