[EQUITY]

LEE v. ANGAS.

Practice - Production of Documents - Witness - Subpeona duces tecum.

A subpoena duces tecum requiring a solicitor, not a party to the suit, to produce all papers, &c., relating to all dealings and transactions between his firm and the Plaintiffs or Defendants (as the case may be), for a period of thirty years, without specifying any particular documents required, is too vague, and the witness is entitled to refuse production. But if the witness, who has been served with a subpoena in this general form, admits that he has in his possession "the documents thereby required," he must produce them, and cannot insist upon being first sworn.

THIS was a motion on behalf of the Defendants, that Mary Conyers and James Milnes Jennings might be ordered to attend the Examiner and produce all accounts, &c., relating to the dealings and transactions of the firm of Jennings & Conyers & E. D. Conyers with the Plaintiffs, or with them and Hannah Lee, between 1830 and 1863; and generally, all other books, accounts, letters, papers, and documents in the possession or power of Mary Conyers and J. M. Jennings, in any way relating to the affairs and concerns of the Plaintiffs, or Hannah Lee, and all books, accounts, papers, and documents received by J. M. Jennings from H. E. Silvester as solicitor of Mary Conyers, "being the documents

mentioned in the subpoena duces tecum, served upon them on the 2nd and 3rd of March, 1866, and in default thereof, that the said Mary Conyers and James Milnes Jennings may respectively stand committed, and that the said Mary Conyers and J. M. Jenningsmay be ordered to pay to the Defendants all the costs of this application, and also all costs occasioned to Defendants by the neglect or refusal of Mary Conyers and J. M. Jennings to produce the said documents, and the non-production thereof before the Examiner on the 8th of March instant, pursuant to the exigency of the said subpoena duces tecum."

The issue raised in the suit turned upon the validity of certain mortgage transactions, in which the late Edmund Dade Conyershad acted both for the Plaintiffs and also for parties whose interests were now represented by the Defendants. Jennings, the present solicitor of the Plaintiffs, and the late partner of Conyers, admitted having received from Mr. Silvester, who had for a short time acted as solicitor for Mary Conyers, the widow of the said E. D. Conyers, a box full of the papers of the late Mr. Conyers, many of them relating to transactions between him and the Lees.

The Defendants being advised that an inspection of these documents, which were not included in the Plaintiffs' affidavit as to documents, was material to their case, had applied, but without success, for an inspection of them to Jennings, who claimed to hold them either as Mrs. Conyers' solicitor, or as Mr. Conyers' surviving partner. In the correspondence that took place on the subject, Jennings had at first consented but ultimately refused to produce them, stating that he was acting under the advice of counsel. Under these circumstances the Defendants, who did not wish to call Jennings as a witness, served Mrs. Conyers with a subpoena duces tecum to attend before the Examiner. Mrs. Conyers attended before the Examiner pursuant to her subpoena, but did not bring the documents with her, on the ground, as she said, that they were not in her possession, but in that of Jennings.

The examination was accordingly adjourned until the 8th of March, and on the 2nd of March, a subpoena duces tecum was served on Jennings, calling upon him to appear and produce all accounts and copies, or drafts of accounts relating to the receipt of the rents of a certain farm in which the Plaintiffs

were interested, received by the late firm of Jennings & Conyers, between 1830 and 1863, all accounts, &c., relating to the dealings and transactions of the said firm of Jennings & Conyers, and the said E. D. Conyers, with the Plaintiffs, or either of them, or with them and Hannah Lee between 1830 and 1863; all copies of letters written by the said firm of Jennings & Conyers, and the said E. D. Conyers respectively, to the Plaintiffs, or either of them, between the above dates; all letters written and sent by the Plaintiffs, or either of them, to Jennings & Conyers & E. D. Conyers, between the above dates; all cheques and receipts, books belonging to the firm and E. D. Conyers, containing any entry or memorandum relating to his dealings and transactions for or on account of the Plaintiffs or Hannah Lee, "and all other books, accounts, letters, papers, and documents in your possession or power, in any wise relating to the affairs and concerns of the said Plaintiffs, or either of them, or the said Hannah Lee, and all books, accounts, letters, papers, and documents received by you from H. E. Silvester, as solicitor of Mary Conyers."

On the 8th of March Jennings and Mrs. Conyers attended the Examiner upon their subpoena. According to the note made by the Examiner, counsel for the Defendants called upon Jenningsto produce the documents mentioned in the subpoena. Jenningsdeclined to answer any question until he was sworn. The matter was thereupon referred to the Court by the Examiner, who stated his opinion that the witness ought to produce the documents, or give a valid reason for their absence, and that for that purpose he could not require to be sworn. Under these circumstances the Defendants moved for the attendance of Mrs. Conyers and Jennings before the Examiner, and production by them of the documents mentioned in the subpoena duces tecum served upon them on the 2nd and 3rd of March.

Jennings had filed an affidavit, in which he stated that he claimed to hold all the books, accounts, letters, papers, and documents mentioned or referred to in the subpoena of the 2nd of March in his own right, or to have a lien thereon for moneys due from the estate of the late Mr. Conyers; that he attended at the time and place mentioned in the subpoena and notice, and took all the books and documents required thereby, and that upon his

declining to answer any question until he was sworn, he was not called upon to give any reason for so doing.

Mr. H. W. Cole, Q.C., and Mr. E. E. Kay, in support of the motion, contended that the form of the subpoena duces tecum under which Jennings had attended on the 8th of March was perfectly regular, and that having been called for the mere purpose of producing documents, he was bound to answer questions confined to the mere purpose of production, without requiring first to be sworn: Griffith v. Ricketts (1); Perry v. Gibson(2); Hope v. Liddell (3); Bradshaw v. Bradshaw(4); Re the Cameron's Coalbrook Railway Company (5). But any objection to the form of the subpoena had been waived by Jennings, who stated in his affidavit that he had attended with the documents referred to in the subpoena. Upon the form of the subpoena they referred to Taylor on Evidence (6).

Mr. Rolt, Q.C., and Mr. Fry, on behalf of Jennings, opposed the motion, and contended that the subpoena on which he had been summoned was too vague for the Court to act upon, inasmuch as it did not specify any particular documents which the witness was required to produce. The subpoena not being in proper form, it was immaterial that Jennings had brought a box of papers with him which he believed to be the papers referred to. Jennings had no interest in the matter, and had nothing whatever to do with the matters in dispute between the Plaintiffs and Defendants, and could not, therefore, be compulsorily called upon to ransack his books and papers for a space of thirty-three years, or rendered liable, being only a witness, to this species of bill of discovery: The Attorney-General v. Wilson (7); Amey v. Long(8).

Mr. Cole, Q.C., in reply, distinguished the case of the Attorney-General v. Wilson, observing that the observations relied upon, in opposition to this motion, were mere obiter dicta, and that the circumstances of the two cases were different. In that case the objection to producing the books mentioned in the subpoena was,

(1) 7 Hare, 299.

(2) 1 A. & E. 48.

(3) 7 D. M. & G. 331.

(4) 1 Russ. & My. 358.

(5) 25 Beav. 1.

(6) P. 963 (2nd ed.).

(7) 9 Sim. 526.

(8) 9 East, 473.

that they were partnership property - not in the individual possession of the witness - and that without the consent of his co-partners, it was not competent to him to produce them. The objection as to the subpoena being too wide in form, was taken by counsel at the bar, and had nothing to do with the real ground of decision.

SIR W. PAGE WOOD, V.C.:-

A subpoena in this general form, not for production of any document in particular, but calling upon the witness to ransack his papers for a period of thirty-three years, is too wide, being in effect a bill of discovery against a witness. There is no case to shew that Courts, either of common law or equity, will act upon a subpoena so in general form. On the other hand, there is an express decision by the Vice-Chancellor of England, in the Attorney-General v. Wilson (1), upon both points there raised, not only that the books required being partnership books, could not be produced without the consent of the co-partners, but also that the language of the subpoena was too general for the Court to act upon. I cannot hold that it was a mere dictum of the Vice-Chancellor of England, and the decision is founded on the best possible reason, as, if production were enforced upon a subpoena in this general form, witnesses having nothing whatever to do with the case might be subjected to a most harassing duty.

No person is to be subjected to the performance of duties not incumbent upon him by any legal or moral obligation, nor to penalties for non-compliance. I have asked in vain for any case in which such a subpena has been enforced. Such a search as would be required would be very onerous even upon a Defendant, but in the case of a solicitor, who is not a party to the suit, he is not bound to expose himself, without receiving any reward or compensation, to the trouble and expense of searching for particulars of everything that has happened in his office for the last thirty-three years. He must speak the truth within his knowledge, but he is not bound to make this burdensome search for evidence at his own expense. With respect to the letters, and the letters only, I do find a sufficiently definite description in the subpoena.

(1) 9 Sim. 526.

The witness, however, has himself made an affidavit in which he says that he attended at the Examiner's Office "with all the books and documents required by the subpoena." If he has got them all ready there is no reason why he should not produce them. You are entitled to ask him what documents he has with him, and to call for their production, and he is bound to answer the question without being sworn: as was decided in Griffiths v. Ricketts (1).

The order will be for Mrs. Conyers & Jennings to attend the Examiner at their own expense, and to bring with them, to be dealt with according to the exigencies of the subpoena, the accounts, &c. (following the words of the subpoena), Jenningshaving admitted, by his affidavit, that he had in his possession in the Examiner's Office all the books and documents mentioned in the subpoena. It is not a case for giving costs either way.

Solicitors for the Plaintiff: Messrs. Hollings, Sharp & Ullithorne.

Solicitor for the Defendants: Mr. F. W. Blake.

(1) 7 Hare, 300.