§ 351. Judges are not compellable to testify as to matters in which they have been judicially engaged.

§ 352. A case of Arbitration is governed by the same policy. Arbitrators cannot be compelled to disclose the grounds of their award, unless under very cogent circumstances, such as an allegation of fraud: and this may be taken as another illustration of the maxim, "Interest reipublicæ ut sit finis litium." On this subject, Taylor, § 682, writes:

"Judges, arbitrators and Counsel may be mentioned as forming a second class of persons, who, from motives of public policy, are not compelled to testify as to certain matters, in which they have been judicially or professionally engaged; though, like ordinary persons, they might be called upon to speak to any foreign and collateral matters, which happened in their presence, while the trial was pending, or after it was ended. In regard to Judges of Courts of record, it is considered dangerous, or at least highly inconvenient, to compel them to state what occurred before them in Court; and on this ground the grand jury have been advised not to examine the chairman of the Quarter Sessions, as to what a person testified in a trial in that Court. The case of arbitrators is governed by the same general policy; and neither the Courts of law nor of equity will disturb decisions deliberately made by arbitrators, by requiring them to disclose the grounds of their award, unless under very cogent circumstances, such as upon an allegation of fraud; for Interest reipublicæ ut sit finis litium. If an award be made in favor of a defendant, upon the examination of the parties, or the inspection of their books, which would not have been legal evidence had the cause been tried, the arbitrator in an action for a malicious arrest, brought by the defendant against the former plaintiff, will not be permitted to depose as to what transpired before him, though, in ordinary cases, where he has proceeded according to strict rules of law, he may, by his own consent, be examined respecting the facts proved, or the matters claimed, at the reference. On the same ground, it has been held that a barrister cannot be forced to prove what was stated by him on a motion before the Court; and the like privilege has been strenuously claimed, though not expressly recognised, where a Counsel was called upon as a witness to disclose a confidential negotiation into which, on behalf of his client, he had entered with a third party, though the client himself waived all objection to the course of examination proposed.”

to

§ 353. Grand jurors are within the rule. They are sworn keep secret their fellow's counsel and their own." See Taylor, § 686.

of documents, it is convenient to exhaust the subject of privileged communications, when once entered upon.

§ 354. So also are petty jurors. On this point, Taylor, 687, writes as follows:-

"On similar grounds of public policy, and for the protection of parties. against fraud, the law excludes the testimony of traverse or petty jurors, when offered to prove mistake or misbehaviour in the jury in regard to the verdict. Thus, where a motion was made to amend the postea by increasing the damages, the Court refused to admit an affidavit sworn by all the jurymen, in which they stated their intention to have been to give the plaintiff such increased sum. So, also, on several occasions, affidavits that verdicts have been decided by lot have been rejected on motions for new trials, whether such affidavits were sworn by individual jurymen, or by strangers, stating the subsequent admissions of jurors to themselves, or even that a declaration had been made by one juror in the hearing of his fellows in open Court after the verdict had been pronounced. In all cases of this kind, the Court must obtain their knowledge of the misconduct complained of, either from the officer who had charge of the jury, or from some other person who actually witnessed the transaction."

§ 355. Allied to this, is the objection that the communication relates to secrets of State. See ante, § 70, note, and see Secs. 21 and 23 of Act II of 1855. The various cases falling under this description are thus enumerated by Taylor, § 689.

"On similar grounds, the official transactions between the heads of the departments of Government and their subordinate officers, are, in general, treated as secrets of State. Thus, communications between a colonial governor and his attorney-general, on the condition of the colony or the conduct of its officers; or between such governor and a military officer under his authority; the report of a military commission of enquiry, made to the commander-in-chief; and the correspondence between an agent of the Government and a Secretary of State; or between the Directors of the East India Company and the Board of Control; or between an officer of the Customs and the Board of Commissioners,-are confidential and privileged matters, which the interests of the State will not permit to be revealed. The President of the United States, and the Governors of the several States are not bound to produce papers or disclose information communicated to them, where, in their own judgment, the disclosure would on public considerations be inexpedient. And where the law is restrained by public policy from enforcing the production of papers, the like necessity restrains it from doing what would be the same thing in effect, namely, receiving secondary evidence of their contents. It has, however, been held, that, in an action of trespass brought against the governor of a colony, a military officer under his control might be asked in general terms, whether he did not act by the direction of the defendant, though the written instructions could not be given

in evidence. But communications, though made to official persons, are not privileged, where they are not made in the discharge of any public duty; such for example, as a letter by a private individual to the chief secretary of the postmaster-general, complaining of the conduct of the guard of the mail towards a passenger."

§ 355a. Since this was written, two important cases have been decided on this subject, which should be studied, as well as that of the Rajah of Coorg's case cited above. The two cases are Dickson v. The Earl of Wilton, (e) and Beatson v. Skene. In the first case Lord Campbell compelled the production of a letter (without arguments or objection however) by a Clerk from the War Office, who submitted whether or no he was bound to produce it.

In the latter case the following important points were laid down:"If the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a Court of Justice.

"The question, whether the production of the document would be injurious to the public service, must be determined, not by the Judge, but by the head of the department having the custody of the paper.

"If the head of the department does not attend personally to say that the production will be injurious, but sends the document to be produced or not, as the Judge may think proper, or if a subordinate is sent with the document, with instructions to object, but nothing more, the case may be different.

"Sed per Martin, B.-Whenever the Judge is satisfied that the document may be made public without prejudice to the public service, he ought to compel its production, notwithstanding the reluctance of the head of the department to produce it.

"Per Curiam.-Perhaps cases might arise where the matter would be so clear that the Judge might well ask for the document in spite of some official scruples as to producing it.

"Whenever the question, whether a communication was privileged or not, involves a matter of fact, it should be left to the jury.

"When once a confidential relation is established between two persons with regard to an enquiry of a private nature, whatever takes place between them relevant to the same subject, though at a time and place different from those at which the confidential relation began, may be entitled to protection, as well as what passed at the original interview; and it is a question for the jury, whether any further conversation on the same subject, though apparent

(e) 1 Fost. and Finl., p. 419.

(f) 6 Jur. N. S., p. 780.

casual and voluntary, does not take place under the influence of the confidential relation already established between them, and is therefore entitled to the same protection."

§ 356. Letters addressed to Government officially are not producible without the consent of Government. See Hayes v. Graham, East's notes of cases, case 74, decided 29th Jan. 1818,(9) and this objection may be taken on behalf of Government by a Collector. See C. O. S. A., 17th June 1824. See acc. McElveney v. Connellan, 17 Ir. C. L. R. 55 Ex. There it was held that reports made on the discharge of the duties of their respective offices by Government officials to the Crown, are State documents, and their production cannot be enforced in a Court of Law.

§ 356a. The object of inspecting an adversary's documents must be that of supporting the applicant's own case, not of seeing how the adversary's case stands, or what answer can be made to it. So in Shadwell v. Shadwell, (4) it was held that,

"Neither by statute, nor at common law, has the Court any power to grant an order for the inspection of documents to a plaintiff who seeks it, not in order to support his own case, but to see whether any, and if so, by what means any defence can be made out against him.

"Neither directly nor indirectly can one party have the right to a discovery of the mode in which the opposite party proposes to maintain his case.”

But it is not an objection to the inspection of a document in the possession of a party, that it relates to his own case, if it also sustains the case of the party applying for the inspection. London Gas Light Company v. Vestry of Chelsea. (i)

§ 357. The neglect of a witness to produce a document will not be sufficient ground for admitting secondary evidence of its contents; but where a document has been transferred to the adverse party with the fraudulent intention of preventing its production, secondary evidence of its contents is admissible. If this rule were otherwise, a party might in many cases be able to deprive his adversary of importantevidence by collusion with his adversary's witnesses; on the other hand too, ifthe secondary evidence were admissible merely on the ground that a document was not forthcoming, no fraud being shown, it might lead to very inconvenient latitude in the reception of inferior evidence; as when a

(g) Sir Hyde East's notes of cases, and also Sir Erskine Perry's, are collected in the 2nd Vol. of Morley's Digest. Sir E. Perry has also published his notes in a separate

party prevented his own witness from producing a document; and therefore, on the score of general convenience, the law determines that as the least of two evils, the party requiring the evidence, shall under such circumstances lose the benefit of it, rather than open the door to the chance of fraud.

§ 358. Notice of summons to produce a document must be given a reasonable time before the trial. The Court will decide what is a reasonable time, which will vary with the particular circumstances of each case; according to the distance at which the witness resides, the necessity for search, and the like.

§ 359. The Notice or Summons should specify the document required with as much particularity as lies in the party's power.

CHAPTER XXIa.

OF STAMPS.

§ 359a. Act X of 1862 has consolidated the Laws relating to Stamps. It is of primary importance to the Pleader to see that he is not met by objection for want of a Stamp to any document he produces; and it is equally important to the opposite Pleader to take the objection, the proper time for which is the first opportunity he has of bringing it to the notice of the Court; and at any rate before the same is received in evidence. (a) The Court will probably keep a sharpe eye on this sponte sud; but Pleaders must nevertheless look out for themselves. The system of Stamps affords very efficient protection against fraud and forgery; though I am sorry to see that in the Madras Presidency, the old custom of the Stamp vendor's endorsing the purposes for which the paper or cadjanis required, seems to have been abandoned. § 3596. By Section XIV it is provided as follows :—

Except as otherwise provided by this Act, no Deed, Instrument, or Writing, for which any duty shall be payable under Section II of this Act, shall be received as creating, transferring, or extinguishing any right or obligation, or as evidence in any Civil Proceeding in any Court of Justice, whether established by Royal Charter or otherwise, or shall be acted upon in any such Court, or by any public Officer, or shall be registered in any public Office or authenticated by any public Officer, unless such Deed, Instrument, or Writing be upon a Stamp, or when an adhesive Stamp shall be allowed to be used,

(a) Foss v. Wagner, 7 A, & E. 116.