The writ is compulsory and must be obey ed by the party to whom it is addressed; 4 Dowl. 273; U. S. v. Hunter, 15 Fed. 712; and it is a question for the court whether there is any valid reason why the paper Shall not be produced and upon what condi tions ; id.; 2 Jones & Sp. 28 ; Chaplain v. Briscoe, 5 Sm. & M. (Miss.) 198. That the papers are private is not of itself ground for refusal ; In re Dunn, 9 Mo. App. 261; Burnham v. Morrissey, 14 Gray (Mass.) 240, 74 Am. Dec. 676. He must bring them into court for its inspection, though he need not permit them to be given in evidence, if this would prejudice his rights; Bull v. Loveland, 10 Pick. (Mass.) 9.
"No witness, however, who is not a par ty to a suit, can be compelled to produce his title-deeds to any property, or any docu ment the production of which might tend to criminate him, or expose him to any penalty or forfeiture; 2 Taunt. 115; Byass v. Sulli van, 21 How. Pr. (N. Y.) 50; but a witness is not entitled to refuse to produce a docu ment in his possession only because its pro duction may expose him to a civil action (3 Q. B. D. 618), or because he has a lien upon it." Steph. Dig. Ev. art. 118.
This is stated as the English rule, but in this country it is said that the weight of authority confines the excuse for not pro ducing the document to the exposure to pen alty or forfeiture or criminal prosecution; Bull v. Loveland, 10 Pick. (Mass.) 9.
A custodian of public documents will not be required to bring them into court under a subpcena duces tecum where official copies can be had ; Delaney v. Philadelphia, 1 Yeates (Pa.) 403 ; or where their production would result in injury to the public ; Gray v. Pentland, 2 S. & R. (Pa.) 23 ; 7 Dowl. 693. Papers which are confidential communications are protected as oral statements of the same character would be, as, for example, papers of a client in the hands of his attorney; Dur kee v. Leland; 4 Vt. 612; 9 M. & W. 609. "Although a paper should be in the legal custody of one man, yet if a subpcena duces tecum is served on another who has the means to produce it, he is bound to do so;" 1 Campb. 17.
Telegrams are not privileged, and the of ficers of a telegraph company must produce them under a 'aubpcend duces tecum without respect to rules of the company to the con trary; U. S. v. Babcock, 3 Dill. 566, Fed. Cas. No. 14,484; U. S. v. Hunter, 15 Fed. 712 ; Ex parte Brown, 72 Mo. 83, 37 Am. Rep. 426; notwithstanding statutes for bidding the disclosure of such messages; Ex parte Brown, 72 Mo. 83. Corporations generally may be required to produce their books and papers which are essential to the rights of litigants; L. R. 9 C. P. 27; Wert heim v. Trust Co., 15 Fed. 718. See id., 15 Fed. 718.
A subpcena is ordinarily granted as of course; the applicant drafts his own form and he purchases it at his peril. The court may refuse to allow an excessive number of witnesses to be summoned; Butler v. State, 97 Ind. 378. A witness who denies its regu larity should move before the return day ; but where it was not served in time, he may appear then and move to set it aside. A second subpcena cannot issue after the first has been• served and while it remains unre turned. The writ cannot be turned into a writ of replevin and used to impair the rights of the witness; Elting v. U. S., 27 Ct. Cl. 158. The federal practice is regulat ed by R. S. § 869.
If a person causes a subpcena to issue against another ostensibly to secure his at tendance as a witness in a case, but in reality to compel him to pay a claim, it is an abuse of legal process; Dishaw v. Wadleigh, 15 App. Div. 205, 44 N. Y. Supp. 207.
A court will, in a proper case, set aside a subpcelia, duces tecum became it is too broad; Hoppe v. W. R. Ostrander & Co., 183 Fed. 786.
A witness is guilty of contempt who, ex pecting to be subpoenaed, but before issue, concealed himself; Aaron v. State, 62 So. 419. A defendant who attempted to persu ade one wanted as a witness to avoid serv ice of the subpcena is guilty of a misdemean or; [1913] Viet. L. R. 380.
See DISCOVERY; PRODUCTION OF DOCUMENTS; SEARCHES AND SEIZURES.