Ex parte Snow

• Decision Date: 02 June 1908
• Parties: Ex parte SNOW. GIBSON et al. v. SNOW et al.
• Court: New Hampshire Supreme Court

70 A. 120

75 N.H. 7

Ex parte SNOW. GIBSON et al.

v. SNOW et al.

Supreme Court of New Hampshire. Carroll.

June 2, 1908.

Exceptions from Superior Court, Carroll County; Chambcrlin, Judge.

Petition for habeas corpus by one Snow and bill for discovery by one Gibson and another, executors, against Snow and another. Petitioner being discharged and the bill being dismissed, defendants excepted. Exceptions overruled.

Snow, the petitioner in the habeas corpus proceeding and one of the defendants in the second action, was employed by the other defendants to contest the will of William Randall. When the will was proved in solemn form, Snow had his stenographer take the testimony of the witnesses to the will. The plaintiffs' counsel took no minutes of the testimony, thinking they could procure a copy from Snow, if one was needed. Some time after the hearing, they tried to procure a copy, but Snow refused to furnish it. They then took his deposition. The summons required him to produce a copy of the testimony of the witnesses to the will, but he refused to comply, and was committed for contempt. The plaintiffs then brought the proceeding for discovery, making Snow and his clients defendants, and alleging that the plaintiffs' case could not be prepared for trial without the copy of the testimony in question. The only evidence to sustain that allegation was the testimony of one of the plaintiffs' attorneys. The court discharged Snow on habeas corpus and dismissed the bill in equity, and the plaintiffs excepted.

Sargent & Niles and John B. Nash, for plaintiffs.

Leslie P. Snow and John C. L. Wood, for defendants.

YOUNG, J. 1. The plaintiffs undertook to compel Snow to produce the copy as a part of his deposition, and he refused on the ground that his possession was the possession of his clients, and that they could not be compelled to produce it because of section 14, c. 224, Pub. St. 1901. It is clear that they could not be compelled to produce the copy in that way, for it is a writing within the meaning of that section. If it either is or may be admissible on any issue in the case, it would come within the provision of that section; and, if it is inadmissible as to every issue, it is elementary that they could not be punished for refusing to produce it. The copy of the evidence was their property, and was in Snow's possession because he was their attorney. Since this is so, the plaintiffs' exception to Snow's discharge on habeas corpus must be overruled if his possession of the copy was the possession of his clients.

It is usually held that, if an attorney has a paper belonging to his clients, his possession is their possession (Anonymous, 8 Mass. 370), and that the test to determine whether he can be compelled to produce it is to inquire whether his clients might be required to do so. 4 Wig. Ev. § 2307. The plaintiffs say, however, that this rule does not obtain in this jurisdiction, and rely on Bradley's Petition, 71 N. H. 54, 51 Atl. 264, to sustain their contention. The only point that case decides is that section 14, c. 224, Pub. St. 1901, will not protect an employe of a corporation, if, when giving a deposition in an action against the corporation by one who was injured in an accident, he refuses to disclose the names of those he knows were present The case does not sustain the plaintiffs' contention, and there is nothing to show that the section above cited was intended to modify the general rule that an attorney's possession of a writing...