1 also, if a solicitor, who is not acting under special instructions from his client, declines to produce an instrument on the ground of privilege, it may be very questionable whether the client must not be subpoenaed, in order to ascertain whether he also relies on his right to withhold the deed; and this course will assuredly be prudent, inasmuch as the privilege is, in strictness, not that of the solicitor, but that of the client. If, indeed, the solicitor can undertake to swear that his client has instructed him not to produce the instrument, it will not be necessary to subpoena the client; for in such a case the court would very properly assume that the client, if called, would continue to be of the same mind.2 3 § 458. Upon principles of reason and equity, judges will refuse to compel either a witness or a party to a cause to produce either his title deeds, or any document the production of which may tend to criminate him," or any document which he holds as mortgagee or pledgee. But a witness will not be allowed to resist a subpoena duces tecum on the ground of any lien he may have on the document called for as evidence, unless the party requiring the produc1 Doe v. Ross, 7 M. & W. 122; Newton v. Chaplin, 10 Com. B. 356; In re Cameron's Coalbrook, &c., Rail. Co., 25 Beav. 1. 2 Phelps v. Prew, 3 E. & B. 430 3 The rule, so far as it relates to parties, appears to be this; a plaintiff will not be compelled to produce muniments of title which he swears do not, to the best of his knowledge, information, and belief, contain anything impeaching his case, or supporting or material to the case of the defendant.. Minet v. Morgan, 8 Law Rep., Ch. Ap. 361; 42 L. J., Ch. 627, S. C. 4 Pickering v. Noyes, 1 B. & C. 263; 2 D. & R. 386, S. C.; Harris v. Hill, 2 Stark. R. 140, per Abbott, C. J.; D. & R., N. P. R. 17, S. C.; R. v. UpperBoddington, 8 D. & R. 726; Doe v. Clifford, 2 C. & Kir. 448; Egremont Burial Board v. Egremont Iron Ore Co., L. R., 14 Ch. D. 158, per Malins,. V.-C.; 49 L. J., Ch. 623, S. C. 5 See Whitaker v. Izod, 2 Taunt. 115. 6 Doe v. Ross, 7 M. & W. 102, 122; 8 Dowl. 389, S. C., explained by Ld. Just. Turner in Hope v. Liddell, 24 L. J., Ch. 694; 7 De Gex, M. & G. 338, S. C.; Chichester v. Marq. of Donegall, 39 L. J., Ch. 694, per Giffard, L. J.; Costa Rica, Republic of, v. Erlanger, 44 L. J., Ch. 281. 7 See Ex parte Shaw, Jac. 270. 8 In the Courts of Bankruptcy, "no person shall, as against the official receiver or trustee, be entitled to withhold possession of the books of account, belonging to the debtor, or to set up any lien thereon." Bankruptcy Rules, 1883, r. 259. 9 Hunter v. Leathley 10 B. & C. 858; recognised by Parke, B., in Ley v. Barlow, 1 Ex. R. 801; Thompson v. Mosely, 5 C. & P. 501, per Ld. Lyndhurst; Brassington v. Brassington, 1 Sim. & St. 455, per Leach, V.-C.; Pratt 6 LAW OF EVID.-V. II. (3287) 8 428 tion be himself the person against whom the claim of lien is made.1 If the witness be a solicitor, though he will be permitted, he will certainly not be forced,2-except in some cases for the purpose of identification,3-to produce any instrument which he holds confidentially for his client, and which his client has a right to keep back;" but, in this case, as has just been noticed, it by no means necessarily follows that, in the event of the client himself not being summoned, secondary evidence will be admissible. § 459. The rule exempting witnesses from producing title deeds 429 has been applied to a will, under which the witness claimed as devisee, though it was suggested that this will extended to personalty as well as to realty, and, therefore, ought to have been deposited in the Ecclesiastical Court, where the public might have had access to it." Still, unless it appears that the title of the person possessing the document will in some way be affected by its production, the rule will not prevail; and, therefore, in an old action of ejectment, where the title of the lessor of the plaintiff was disputed, the solicitor of a gentleman, who had been in treaty with him for the purchase of the property, but which treaty had gone off, was allowed to produce on behalf of the defendant the abstract that had been delivered to his client, as furnishing secondary evidence v. Pratt, 51 L. J., Ch. 838, per Bacon, V.-C.; Furlong v. Howard, 2 Sch. & Lef. 115, per Ld. Redesdale; In re Cameron's Coalbrook, &c., Rail. Co., 25 Beav. 1; Hope v. Liddell, 7 De Gex, M. & G. 331; 24 L. J., Ch. 691; and 20 Beav. 438, S. C., overruling Griffith v. Ricketts, 7 Hare, 303. See, also, Lockett v. Cary, 3 New R. 405, per Romilly, M. R.; Ex p. Paine & Layton, 4 Law Rep., Ch. Ap. 215; 38 L. J., Ch. 305, S. C.; Re Toleman, ex p. Bramble, L. R., 13 Ch. D. 885. 1 Kemp & King, 2 M. & Rob. 437, per Ld. Denman; recognised in Hope 13 L. R. Ir. 312. 2 Hibberd v. Knight, 2 Ex. R. 11, explaining Marston v. Downes, 6 C. & P. 381; 1 A. & E. 31, S. C. 3 Phelps v. Prew, 3 E. & B. 430. Harris v. Hill, 3 Stark. R. 140; Volant v. Soyer, 13 Com. B. 231; Doe v. James, 2 M. & Rob. 47, per Ld. Denman; Ditcher v. Kenrick, 1 C. & P. 161. See Doe v. Langdon, 12 Q. B. 711. 5 Doe v. James, 2 M. & Rob. 48, per Ld. Denman. Lee v. Merest, 39 L. J., Ec. C. 53. of the contents of the deeds relating to property, which the lessor of the plaintiff, after notice, had refused to produce.' § 460. Again, the mere circumstance, that the production of the 430 document may render the witness liable to a civil action, does not come within the protection of the rule. Thus, in an action of ejectment, in which the lessor of the plaintiff claimed as devisee in remainder, and the defendant held under an invalid lease made by the late tenant for life, a witness, who was an executor and legatee of the late tenant for life, was compelled to produce his testator's rent-book, for the purpose of enabling the lessor of the plaintiff to identify the lands in question with the lands originally devised, though the witness, as executor, was bound to indemnify the defendant from all loss he might sustain from an adverse verdict, under a covenant contained in the lease granted by the late tenant for life. Where a witness, who was steward of a borough, and attorney for the lord, declined to produce certain old precepts, books of presentment, and a case, relative to his office, on which the opinion of counsel had been taken by a former steward, saying that he held them as attorney for the lord, and that their production would prejudice his client's interest, Lord Denman decided that he was bound to produce the precepts and presentments, they being public documents, but that the case and opinion might be withheld.3 § 461. Fifthly, in consequence of the strong presumption, which 431 arises from the undisturbed exercise of a public office, that the appointment to it is valid, the law does not in general require that the written appointments of public officers should be produced, but it will be sufficient to show that such officers have acted in an official capacity." § 462. A sixth relaxation of the rule demanding primary proof 432 1 Doe v. Langdon, 12 Q. B. 711. 2 Doe v. Date, 3 Q. B. 609. Gr. Ev. 92, in great part. 3 R. v. Woodley, 1 M. & Rob. 390. 5 See ante, 171. See, also, Brewster v. Sewell, 3 B. & A. 302, per Holroyd, J. 6 Gr. Ev. 93, in great part. has been admitted, where the evidence required is the result of voluminous facts, or of the inspection of many books and papers, the examination of which could not conveniently take place in court.' Thus, if bills of exchange have been drawn between particular parties in one invariable mode, this may be proved by the testimony of a witness conversant with their habits of business, and speaking generally of the fact, without producing the bills; though, if the mode of dealing has not been uniform, the case does not fall within this exception, but is governed by the rule requiring the production of the writings.2. So, a witness, who has inspected the accounts of the parties, though he may not give evidence of their particular contents, will be allowed to speak to the general balance without producing the accounts.3 And, where the question turns upon the solvency of a party at a particular time, the general result of an examination of his books and securities may be stated in like manner. This exception, however, will not enable a witness to state the general contents of a number of letters received by him from one of the parties in the cause, though such letters have since been destroyed, if the object of the examination be to elicit from the witness the impression which they produced on his mind, with reference to the degree of friendship subsisting between the writer and a third party. The distinction between this and the preceding cases is obvious; since in those, the fact in question was one, the truth of which simply depended on the honesty of the witness, whereas here, not only his honesty, but his taste and feelings were involved, and he might, from perusing the letters, conscientiously draw a very different inference as to their legitimate construction from that which would be drawn by an unbiased jury. 1 Ph. Ev. 433. The rules of pleading have, for a similar reason, been made to yield to public convenience in the administration of justice, and a general allegation is frequently allowed, "when the matters to be pleaded tend to infiniteness and multiplicity whereby the rolls shall be incumbered with the length thereof." Mints v. Bethil, Cro. Eliz. 749, Steph. Pl. 392396. See Rules of Sup. Ct. 1883, Ord. XIX., R. 2; Ord. LXV., R. 27, subs. 20. The courts admit the same exception in regard to parties to actions, where they are numerous, on the like grounds of convenience; Ord. XVI., R. 9. 2 Spencer v. Billing, 3 Camp. 310, per Ld. Ellenborough. Roberts v. Doxon, Pea. R. 83, per Ld. Kenyon. But see Johnson v. Kershaw, 1 De Gex & Sm. 260, where this course was not allowed by Knight Bruce, V.-C. Meyer v. Sefton, 2 Stark. R. 274, per Holroyd, J. 5 Topham v. M'Gregor, 1 C. & Kir. 320, per Rolfe, B. See Taylor v. Carpenter, 2 Woodb. & M. 5, 6. § 463. Secondary evidence is admissible in the examination of a 433 witness on the voire dire, and in preliminary inquiries of the same nature. But as this rule, owing to the modern improvements in the law of evidence on the subject of the competency of witnesses. has now become practically inoperative, further reference to it here is deemed unnecessary.1 § 464. Passing now to the consideration of the circumstances, 434 under which secondary evidence of oral testimony will be received, and bearing in mind the broad proposition before stated,' that such proof is only admissible where the production of primary evidence is out of the party's power, it may be advanced as a general rule of law, that where a witness has given his testimony under oath in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given, will, if the witness himself cannot be called, be admitted in any subsequent suit between the same parties, or those claiming under them, provided it relate to the same subject, or substantially involve the same material questions.3 § 465. In discussing the effect and extent of this rule, which is now recognised by all courts of justice, it seems almost needless to observe, that, in order to render admissible secondary evidence of the testimony of a witness, it must be proved that the witness was duly sworn in some judicial proceeding, to the authority of which the party, against whom his testimony is offered, was legally bound to submit, and in which he might have exercised the right of crossexamination; for, if this were not the case, the preposterous con 1 See 1st Ed. of this work, & 342; and cases cited in this Ed., post, & 1393, last note. 2 Ante, 428. 3 B. N. P. 239–243; May. of Doncaster v. Day, 3 Taunt. 262, Strutt v. Bovingdon, 5 Esp. 56, per Ld. Ellenborough; R. v. Jolliffe, 4 T. R. 290, per Ld. Kenyon; Pyke v. Crouch, 1 Ld. Ray. 730, 5th Res.; Wright . Doe d. Tatham, 1 A. & E. 3; Glass v. Beach, 5 Vern. 172; Lightner v. Wike, 4 Serg. & R. 203. * See Lawrence v. Maule, 4 Drew. 472, 479, 480, per Kindersley, V.-C. The rule has been extended to answers, Parker v. M'Kenna, 43 L. J., Ch. 802, and to affidavits, Dunne v. English, 18 Law Rep., Eq. 524. See Meyrick v. James, 46 L. J., Ch. 579. 434 |