
    THE CENTRAL NATIONAL BANK OF THE CITY OF NEW YORK, Plaintiffs and Respondents, v. GEORGE D. ARTHUR and WILLIAM H. ARTHUR, Defendants and Appellants.
    
      [Decided March 5, 1870.]
    Since the law authorizing the examination of parties as witnesses, there is no difference between such witnesses and any other witness in respect to the manner of bringing them into court, or of their examination.
    To bring a party into court to testify, merely, a subpoena ad testificandum is necessary. To compel him to produce books or papers, a subpoena duces tecum is proper.
    The process is the same upon the examination of a party before trial, as at the trial, except that a summons is substituted for a subpoena where the party is merely to be examined as a witness before trial. If his books, etc., are required a subpoena duces tecum must be served.
    Before Monell, Freedman, and Spencer, JJ.
    Appeal from an order made at Special Term by Mr. Justice Jones.
    The action was to recover money received by the defendants to the plaintiffs’ use.
    After issue joined, the defendants were summoned by one of the judges of this court to be examined as witnesses before the trial, at the instance of the plaintiffs. The defendants were at the same time served with a subpoena duces tecum, requiring them to produce at such examination the ledgers and other books of their firm which contained any entries of accounts with one William H. Sandford.
    The defendants on such examination refused to produce their books. Thereupon the court adjudged them guilty of contempt . and ordered that an attachment issue.
    The defendants appealed.
    
      
      Mr. Joseph S. Bosworth for appellants.
    Prior to the Code, a party to an action at law could not be examined as a witness therein, either in his own behalf or at the instance of the adverse party. The only mode by which one party could obtain the testimony of the other, was by a bill of discovery filed in the Court of Chancery.
    The .Revised Statutes conferred power on the Supreme Court to compel, by order, the production and discovery of books and papers, being governed therein “ by the principles and practice of the Court of Chancery, in compelling discovery” (3 R. S., 5th edition, 293, sections 60-63 sections 21-24; Hoyt v. American Exchange Bank, 1 Duer, 652).
    Chapter 5 of the Code (3 R. S., 569, 570, section 388, sections 341-352) also conferred powers on the court before which an action is pending, to compel an inspection and copy of books and papers in the possession of a party containing evidence relating to the merits.
    The Code (chapter 6, 3 R. S., 570, section 389) abolished the bill of discovery, and provided for the examination of a party, but enacted that there shall not be any examination of a party had on behalf of the adverse party, except in the manner prescribed by this chapter (chapter 6, section 388).
    Section 390 provides for examining a party at the trial, or conditionally or upon commission. If examined conditionally, or upon commission, it must be done in the same manner, on the same grounds, and by virtue of the same proceedings as any other witness would be examined.
    Section 391 gives to either party a right to examine the adverse party before the trial, instead of at the trial, in the cases and in the manner specified in that section.
    When examined under that section, his attendance is to be compelled in the same manner, and his examinations to be taken and filed in the same manner “ as a witness who is to be examined conditionally ’’(Code, section 392).
    A witness, to be examined conditionally, must be summoned by a “ summons ” to be issued by the officer granting the order to attend before such officer (3 R. S., p. 675, section 10).
    If'the witness does not obey the summons the officer may issue his warrant to the sheriff of the county to apprehend the witness, and bring him before such officer to be examined (3 R. S., p. 684, sections 59, 60, 61).
    The summons, like an ordinary subpoena, only requires the witness to appear and be examined. The statute relating to the conditional examination of a witness out of court, relates to a special proceeding, and nothing can be done which is not clearly authorized.
    There is in this case no subpoena of any kind, and of course there is no subpoena duoes teovm. A summons, and on disobedience to that, a warrant to the sheriff, is the process.
    The first article of the 3d title of chapter 7 of the 3d part of the Eevised Statutes specifies four cases in which a summons may issue to compel the attendance óf a witness, and the contents or requirements of a summons in each case is the same, viz., “ to appear and testify.”
    A witness to be examined conditionally, is to.be summoned, not subpoenaed (3 R. S., p. 675, section 10; Norton v. Abbott, 28 Howard P. R., p. 388; Woods v. De Figaniere, 1 Robertson, p. 659; Green v. Herdes, 30 Howard P. R., p. 210).
    Even when a subpoena duoes teoum has been lawfully issued, and duly served, a witness cannot be compelled to bring into court papers or books not relating to the merits of the action.
    A party, to obtain an attachment for disobedience, must show, grima facie, that the papers required to be produced relate to the merits (Cowen and Hill and Edward’s Phillipps on Evidence, vol. 2, p. 814, note 531; Graham’s Practice, p. 265, ed. of 1836). That was not shown in this case.
    
      Mr. Augustus F. Smith for respondents.
    The Code, by section 390, is explicit in allowing an examination of a party in three cases, viz., at the trial, or conditionally, or upon commission.
    
      In the session of the Legislature before the Code, the right to examine a party was given, but the right was confined to the three cases above mentioned.
    When the Code was passed it gave also, by section 391, the right to examine a party before the trial (see notes to original Code, pp. 244, 245).
    Section 391 has no words that limit the right of a party to examine his adversary before the trial. Certainly he may then examine him precisely as he could at the trial. It has never yet been claimed that upon an examination at the trial, the party could not be compelled to produce his books and papers by a subposna duees teoum (Bonesteel v. Lynde, 8 How. Pr. R., 226).
    The opposition to compelling a party to produce his books upon an examination, has its origin in the deep-seated prejudice of lawyers educated at the common law, to oblige a party to give evidence against himself. But that prejudice is fast disappearing, for in truth there is no reason, in morals or propriety, why a party should be permitted to prosecute or defend a suit while he knows a fact which should defeat his claim, nor why, knowing such a fact, he should not be compelled to disclose it upon his oath.
    This prejudice is very apparent in the opinion in the case of Woods v. De Figaniere, 16 Abb., 159, but besides that the opinion is subject to these criticisms.
    The question of the right to have the books and papers before trial has repeatedly been decided in favor of the right. The first case cited was in the General Term of this court, in 1862, before the six judges (The People v. Dyckman, 24 How., 222; Jarvis v. Clark, 12 Legal Obs., 129, 131, 132; Garighe v. Losche, 6 Abb., 284, 5; Brett v. Bucknam, 32 Barb,, 655; Bonesteel v. Lynde, 8 How., 226).
    Upon the question of the right to examine a party without stating any special reasons, see Partin v. Elliott, 2 Sand. S. C. Rep., 667; Taggard v. Gardner, ibid.; Green v. Wood, 6 Abb., 277; Cook v. Bidwell, 17 Abb., 300, and Horton v. Abbott, 28 How., 388.
   By the Court:

Monell J.

The only question which it was proper for the justice at the Special Term to examine upon the motion made there, and which also is the only question which we can look at on this appeal, was, whether the court had power to enforce the mandate of a subpoena duees teeum, by requiring the production in court of the specified books.

The defendant placed his refusal upon several grounds, nearly all of which related to the competency of the evidence. Such objections could not be considered until the evidence was produced, and as all the preliminary proceedings for the examination of the party were properly taken, the sole question was, whether the command of the writ should be obeyed.

I do not understand that it is claimed that, since the enactment of laws authorizing a party to an action to be examined as a witness at the instance of an adverse party, there is any difference or distinction between parties to the action and other witnesses, either in respect to the manner of bringing the witnesses into court or of their examination when there. The very explicit, language of the Code (sec. 390) forbids any such claim. It is, that such examination shall be subject to the same rules of examination as of any other witness.

It is, however, insisted that upon an examination of a party before trial, the court cannot compel Him to produce his books, on the ground that, inasmuch as such examination is to be conducted in all respects like the conditional examination of an ordinary witness under the provisions of the Revised Statutes, that statute does not confer the requisite power.

The question is, therefore, unembarrassed by any of the several provisions of law in respect to the production before trial, or the inspection of books and papers in actions at law, or by any of the principles of equity relating to bills of discovery.

The only authority to compel the attendance of a party to an action to be examined at the instance of an adverse party, is found in section 392 of the Code, which provides that he may be compelled to attend “ in the same manner as a witness who is to be examined conditionally.”

If, therefore, the court can compel any witness upon a conditional examination to produce books or papers, it follows that the authority may be asserted over parties.

The tenth section of the act in relation to taking conditionally the testimony of witnesses, provides that the officer granting the order may compel the attendance of the witness, “ by issuing a summons for that purpose,” and enforcing the same in the manner prescribed (2 R. S., 393).

The forty-seventh section of the same title (p. 401) provides, that if a witness so summoned shall fail to attend, or, attending, shall, without reasonable cause, “ refuse to be examined or to answer amy legal andpertinent question” he may be committed to the common jail, etc.

There is no doubt, I think, that a “summons” issued by the officer is the only process which can be used upon conditional examinations to bring a witness before the officer. The general power which is vested in courts to issue process of subposna requiring the attendance of a witness (2 R. S., 276, sec. 1) has no application to a conditional examination, so far as relates to the mode of securing his attenda/nce.

It will therefore be seen that a summons in one case, or a subpoena ad testificandum in another, is and can only be used to secure the attendance of a witness. Its functions and powers then cease. To secure any thing more than mere attendance something besides a summons or subpoena must be used, namely, a subpoena duces tecum.

Mr. Phillipps, in his Treatise on Evidence, says (1 Phil. Ev., 3): “ This writ of subpoena duces tecum, as well as the other writ of subpoena ad testificandum, is compulsory upon the witness. And though it will be a question for the consideration of the judge at the trial whether in any particular case the actual production of writings should be enforced, yet the witness ought always to have them ready to be produced, if required, in obedience to the judicial mandate. From the earliest times our courts of law, in order to give effect to their proceedings, have resorted to these compulsory measures for the production of evidence—measures obviously essential to the existence and constitution of courts of justice.”

The propriety of this writ was considered by Lord Ellen-borough in Amey v. Long (9 East, 473), where the obligation to obey writs of that description is fully recognized. •

I am not aware of any statute giving to- or regulating the power of the court in respect to this writ. The power to issue it is not derived from any statute, but is assumed as one of the general or incidental powers necessary to the administration of justice (Bull v. Loveland, 10 Pick., 9, 14), the general statute, as we have seen, not authorizing the issuing of any such writ.

It cannot therefore be doubted that, upon a trial in a court of justice, the compulsory writ of subpoena duces tecum may be issued under the general powers of the court, and its obedience enforced.

In like manner, and under the same authority, the writ may be issued at any time. All the reasons which have sustained the exercise of the power at one time apply with equal force to its exercise at any other needed or appropriate time; and therefore, if it can be issued at the trial, it can also be issued before the trial, upon taking conditionally the testimony of any witness.

And although, to secure the attendance of a witness for such examination, a summons and not a subpoena is the proper process, as in other cases a subpoena would be, yet for the purpose of obtaining proferí of books and papers a subpoena dacces tecum must in all cases be issued.

My conclusion is, that upon taking conditionally the testimony of a witness, he may be required by a subpoena duces tecum to produce any books or papers specified in the writ.

And this applies as well to parties to the action as to any other witness.

The decisions' uniformly, with, I think, a single exception, sustain this view (Bonesteel v. Lynde, 8 How. Pr. R., 226, affirmed by General Term, id., 352; People v. Dyckman, 24 id., 222; Lefferts v. Brampton, id., 257, 262, 263; Morrison v. Sturgis, 26 id., 174,179 ; Lane v. Cole, 12 Barb., 680; Brett v. Bucknam, 32 id., 655; Garighe v. Losche, 6 Abb., 284; Jarvis v. Clerk, 12 N. Y. Legal Obs., 129; Mitchell’s case, 12 Abb., 249, 262).

The only adverse decision was at Special Term (Trotter v. Latson, 7 How. Pr. R., 261), which has since been overruled by the same court in General Term (Brett v. Bucknam, supra).

Disobedience to the mandate of such a writ can be punished as for a contempt, and any party aggrieved may also have an action for damages (Note 5, Cow. & Hill Notes, vol. 3, p. 11).

The affidavit upon which the application for the examination was founded was sufficient and contained all that is required in Green v. Herder (30 How. Pr. R., 210).

There was no error, therefore, in adjudging the defendants' guilty of a contempt, and ordering an attachment therefor to issue.

The order should be affirmed, with costs.  