Wakeman v. Bailey

The Chancellor.

It was useless and improper to make the counsel of Bailey a party to a mere bill of discovery, even if the matters inquired of by the bill could be properly disclosed, by the respondent, if called as a witness against his client. It is true the case of Kingston v. Gale, (Rep. Temp. Finch, 259,) and several other early cases before Lord Nottingham, referred to in the note to Parkhurst v. Lawton, (1 Swanst. Rep. 221,) appear to have been bills of discovery merely, if they are cor rectly reported. But I can see no possible benefit the complainant could derive from a mere discovery from an attorney in such a case; inasmuch as Ms answer could pot he read in any suit or proceeding between the complainant and his client; the attorney being a mere witness. In ordinary cases it is only necessary to call upon the client to answer as to the contents of the .deeds or papers of which a discovery is sought, alleging that they are in his hands or in the hands of his1 attorney or counsel'and thus within his power. And the court, in the absence of any allegation to the contrary, will presume the client can obtain the actual possession himself by a proper application to bis attorney or counsel. But should that not be the case, the proper-course is to make the bill of discovery, against the client, a bill for relief against him and his attorney or counsel; by .charging that the latter will not deliver the deed or paper to his client, or permit him to examine it for the purpose of setting .out its contents in an answer, or that the client alleges .such to be the fact. And therefore praying that the defendants may not only discover whether the deed of paper is in th.e hands of the. attorney or counsel, but that if it is in the hands .of the latter he and his client may be ordered to produce it; or that the attorney or counsel may be ordered to produce it to his client, so that the latter may set it -forth ip h.is answer. Such appears to have been the opinion of Lord Eldon in the case of Fenwick v. Reed, (1 Meriv. Rep. 123.) In the analogous case of a feme covert who .was ip possession' of vouchers, belonging to her husband, of which a discovery was sought, Lord Eldon allowed -the demurrer of the wife as to th.e discovery sought from her; no relief being prayed against her. (Le Texier v. The Margravine of Anspach, 15 Ves. 164.) The lord chancellor in that case said he expressed no opinion as to what would h.av.e been the effect of a prayer in the bill that the wife produce the vouchers. But I have no doubt that upon a bill properly framed, alleging that she had the vouchers and would not deliver them to her husband, and that he could not obtain them to produce them in the.cause, and prayingthat.she might discover .and produce them, the court would have compelled an answer from her, to prevent a failure of justice; and if she admitted the vouchers to be in her possession, or under her control, would have compelled her and her husband to produce them.

It is true an attorney, upon the trial of a cause to which he is not a party, cannot be called upon to produce a deed which was intrusted to him by his client; or to give evidence of the contents thereof as against his client. But he may be examined, as a witness, to prove the fact that it is in his possession; so as to enable the adverse party to give evidence of its contents, by others. (Brandt v. Klein, 17 John. Rep. 335.) The reason why he cannot be compelled to produce the deed on the trial, under a subpoena duces tecum, is because the privilege is the privilege of his client. But if the client himself were bound to produce the deed, on the trial, then it would no longer be his privilege to have his attorney withhold it for him; and the attorney would be bound to-produce it, on the subpoena, and under the order of the court, made upon his client, at the trial. And" as the client is bound, in this court, upon a bill of discovery or of discovery and relief, to produce or discoverthe contents of deeds and other papers, material to the prosecution or defence of the rights of the adverse party, the court, upon a bill properly framed, will give similar relief; so that no perverseness on the part of the attorney, in refusing to deliver the papers to his client, or any collusion between them, shall prevent the adverse party from obtaining the benefit of a discovery.

But as this bill was not only defective in not containing proper averments as to the withholding of the paper in question from the client, or that the client alleged that it was so withheld, but was also defective in not stating that the paper, if produced, would show that the treasury draft or warrant was received on the individual account of Yail, and not as one of the members of the firm, so as to show that it was material in resisting the set-off claimed, and as no relief, by the production of the paper, was prayed against the respondent, the demurrer was properly allowed by the vice chancellor.

The order appealed from must therefore be affirmed with costs.