Davis v Dale
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1830 |
| Date | 07 June 1830 |
| Court | Court of Common Pleas |
English Reports Citation: 172 E.R. 729
COURT OF COMMON PLEAS.
S. C. Mood. & M. 514.
[335] couet oj1 common pleas. Adjourned Sittings in London, after Easter Term, 1830, before Lord Chief Justice Tmdal. June 5th, 1830. davis v. dale. (If a person having the custody of papers be subpoenaed to produce them on the trial f a cause, he may be called on to put them in without being sworn as a witness.) [S C. Mood. & M. 514.] In the course of the plaintiff's case, it became necessary to give m evidence certain written agreements ; and for the purpose of producing them, a person, who held them as an agent, was called. He had been served with a subpcena duce tecum ; but, on his appearing- Wilde, Seijt., for the plaintiff, proposed to call on him to put in the papers without being sworn as a witness in the cause. Ludlow and Bompas, Serjts., objected to this course of proceeding ; they submitted that a person could not be called to produce papers, without being sworn as a witness. Wilde, Serjt., and Follett, in answer to the objection.-Two cases have been decided on the subject one was a case in which a justice of the peace was called to produce an information taken before him ; and it was held, that the parties calling for the paper were not compellable to examine the justice as a witness, but might prove the information in any other way. In the other case, Mr. Justice Gaselee allowed an attorney to be called, to produce certain papers, without compelling the party who called him to have him sworn, as a witness. [336J I/udlew, and Bompas, Serjts., in reply, contended, that the course pursued by the party calling such a person, assumed that he was in possession of the papers required, which assumption they had no right to make, but could only ascertain the fact by putting the question to him ; and the putting of that question would clearly render Mm a witness, and entitle the other side to cross-examine. Tindal, C. J.-If the question were now submitted to me as a new question, I should know how to decide it; but, I am told, that there are cases on the subject; amd though the report of those cases has not been quoted, yet I have no doubt that they have been correctly stated by the counsel; and, under these circumstances, I shall prefer following the practice of others, to laying down any new rule of practice myself. The papers were then allowed to be put in without the party who produced them being sworn. Verdict lor the plaintiff.* Wilde,, Serjt...
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...was called only to produce documents, need not be sworn; and thus could not be cross-examined at large, see Davis v. Dale (1830) 1 Moody & Malkin, p. 514: and this was confirmed by the Court of Excheouer, see Summers v. Moseley (1834) 2, Crompton & Meeson, p. 478, Perry v. Gibson (1834) 1 A......
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