King v. . Leighton

Johnson, J. If the Supreme Court had power to make the order appealed from, the question whether it should be made in the particular case presented involved the exercise of a discretion not reviewable in this court. The provisions of the Revised Statutes in respect to the discovery of books and papers were introduced to remedy the defects of power in common-law courts over that subject. Originally confined to the Supreme Court, they were extended to certain other *385 courts by chapter 38 of the Laws of 1841; but they neither conferred or controlled the power of the Court of Chancery. That court acted by virtue of its inherent jurisdiction over discovery and framed its own rules, fixed the limits within which it would proceed and from time to time adjusted its procedure to meet the requirements of justice.' In cases of partnership, a decree for an account and for the production of books and papers warranted the master to whom the matter was referred to compel the party accounting to produce books and papers; and where the prosecuting party believed a full production was not made, he might exhibit interrogatories on the subject or summon the party before the master, to be orally examined touching them. (Hoffman’s Master, 10, 11.) Prior to a decree, an order for the production of books and papers could only be made, according to the settled practice, upon the admission of the defendant in his answer. He was examined as to his possession and control of the books and papers sought to be discovered by means of the interrogatories in the bill, whether it were for discovery alone or for discovery and relief combined. If his answers to these were evasive, his conscience could be further probed by exceptions to the answer for insufficiency, or if necessary by the amendment of the bill and the introduction of further charges and interrogatories, until a sufficient disclosure was procured to enable the court to say whether possession and control were so admitted as to warrant an order requiring the production. (Wigram on Discovery, 199 and following; Hare on Discovery, 273, 276, part 4, chap. 1, § 7; Gresley’s Equity, p. 25, 36, 37.) But in all cases the admission of the party of the fact of possession or control was the necessary foundation for an order requiring production. If, instead of admitting possession, the party against whom discovery was sought had alleged a voluntary destruction of the documents, even for the purpose of preventing a discovery and production, the court could at most have punished the misconduct; but the other party would have obtained the advantage of all those presumptions which a spoliation of written evidence *386 creates against its perpetrator. Production, when ordered, was ordered on the footing of its necessity to perfect the answer of the defendant, and as a part of that complete discovery to which the plaintiff was entitled. These principles, which were well settled and recognized, throw light upon the provisions of the Code. Inasmuch as the production of books and papers was part of the discovery procured through 'the examination of the defendant, on behalf of the plaintiff, by means of his compulsory answer to the interrogatories of the bill, it is difficult to see how any equivalent examination of the defendant can be had under the Code, except by the single method there pointed out. Section 389 is very positive in its terms. Ho action to obtain discovery under oath in aid of the prosecution or defence of another action shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed in this chapter. That manner is by a general examination as a witness in the cause, either at or before the trial, as pointed out in sections 390 to 397, and does not include such an examination as is directed in the order appealed from. ■Subdivision 7 of section 401 should, I think, be construed in subordination to the general scheme disclosed by the Code in regard to the examination of parties. The word “ persons ” is, in the section itself, contrasted with the word “ party,” and ought not to be construed as embracing parties, and thus, by an implication, doubtful at least in its character, to overthrow a clear and leading feature of the Code. The only ground on which'the contrary construction rests is, that this subdivisión was enacted at a later period than the other. But it should, nevertheless, be regarded as enacted in view of the positive restriction of the other section, and it is fair to conclude that plain words would have been used to disclose the legislative intent, if that had really been to allow a party to be thus examined. The cases of Hodgskin v. Atlantic & P. R. Co. (3 Daly, 70) and Cockey v. Hurd (43 How. Pr., 140; 4 Jones & Spencer, 42) show the conflicting views of the New York Common Pleas and Superior Courts on this subject, *387 which are ably maintained in the cases cited. Besides, that subdivision only applies in case the person whose affidavit is wanted shall have refused to make the same, while in this case no refusal is shown ; on the contrary, the difficulty is that the party has made too much affidavit already for the mover’s wants. It is undoubtedly true that, under section 271, subdivision 3, “ a reference may be ordered, when a question of fact, other than upon the pleadings, shall arise upon motion, or otherwise, in any stage of the action.” But it does not follow, conceding that a reference may be ordered, that the party can be compelled to submit to an examination. Authority for that purpose must be found elsewhere. The last clause of section 288 provides that the court before which an action is pending, or a judge or justice thereof, may, in their discretion and upon due notice, order either party to give to the other an inspection and copy of any books, papers or documents in his possession or under his control, containing evidence relating to the merits of the action or the defence therein. But neither does this, which is the only further section directly relating to discovery contained in the Code, nor do the provisions of the Bevised Statutes in relation to discovery, they being still in force, carry the argument in favor of the power to examine the party, beyond the general provision before stated on the subject of the examination of a party at the suit of another. For this step it always was necessary, and still is, to allege some distinct and definite authority. For the general rule is, that a party is not to be compelled to speak against himself. We are, therefore, of opinion that the court had no power to order the party to submit to an examination in this-case, and that the order appealed from should be modified, by striking out the direction to the referee to examine the defendant. All concur, except Church, Ch. J., and Allen and Andrews, JJ., not voting. Ordered accordingly.