SUBPCENA DUCES TECUM. A writ or process of the same kind as the subpoena ad testiftccundum, but with a clause requiring the witness to bring with him and produce to the court books, papers, etc., in his hands, tending to elucidate the matter in issue. 2 Bla. Com. 382.
This is the only method in most cases, of obtaining the production of a document in the hands of a person not a party to the ac tion. The use of such processes seems to be, as suggested by Lord Ellenborough, C. J., "essential to the very existence and constitu tion of a court of common law" ; 9 East 483, where he states that such writs cannot be traced earlier than the time of Charles II.
In the 16th century the practice of proving by witnesses the facts stated in the pleadings was growing. 3 Holdsw. Hist. E. L. 489. By the middle of the 17th century the witnesses and the jury were regarded as so distinct that, if a party desired to have a juror testi fy, he was examined in open court. 1 id. 160. A statute in 1563 allowed process to compel the attendance of witnesses in chancery ; id. 161.
In Wilson v. U. S., 221 U. S. 361, 31 Sup. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558, the opinion of Bayley, B., in 2 Cr. & M. 477 (a fully considered case), was quoted: "The origin of the subpoena duces tecum does not distinctly appear. It has been said that it was not introduced or known in practice till the reign of Charles II. . . . But there must have been some process similar to the subpoena duces tecum to compel the produc tion of documents, not only before that time, but even before the statute of the 5th of Elizabeth. Prior to that statute there must have been a power in the crown (for it would have been utterly impossible to carry on the administration of justice without such pow er) to require the attendance in courts of jus tice of persons capable of giving evidence and the production of documents material to the cause, though in the possession of a stranger. . . . Whether he could require to be sworn not ad testificandum, but true answer to make to such questions as the court should demand of him, touching the posses sion or custody of the document, is not now the question. Perhaps he might ; but we are
clearly of opinion that he has no right to re quire that a party bringing him into court for the mere purpose of producing a docu ment should have him sworn in such a way as to make him a witness in the cause, when it may often happen that he is a mere de pository and knows nothing of the docu ments, of which he has the custody." The opinion proceeded : "Where the documents of a corporation are sought, the practice has been to subpoena the officer who has them in his custody. But there would seem to be no reason why the subpoena duces teem should not be direct ed to the corporation itself. Corporate ex istence implies amenability to legal process. The corporation may be sued ; it may be compelled by mandamus, and restrained by injunction, directed to it. Possessing the privileges of a legal entity and having rec ords, books and papers, it is under a duty to produce them when they' may properly be required in the administration of justice." It was held that the ad testifleandum clause is not essential to a subpoena duces teeum; the person producing the papers 'need not be sworn ; they may be proved by others.
It can only be used to compel the produc tion of books, papers, accounts, and the like which are comprehended under the term documentary evidence, and not to bring in court such things as stove patterns, for example ; In re Shepherd, 3 Fed. 12; Johnson Steel Street-Rail Co. v. Steel Co., 48 Fed. 191.
The writ may issue to a party to the ac tion where he is competent as a witness not withstanding a statute providing for an or der for production to enable an inspection by the adverse party ; Bonesteel v. Lynde, 8 How. Pr. (N. Y.) 226; contra, Trotter v. Latson, 7 How. Pr. (N. Y.) 261; Murray v. Elston, 23 N. J. Eq. 212.