1816.

ROBSON

v.

and THOMAS

be paid by an approved bill of six months. Now, the time is not yet arrived when the plaintiff would be entitled to recover that bill, according to his agreement; but, by his form of declaring, he GODFREY claims for a present debt; and if he obtain a verdict, he will be entitled to immediate payment. 3. Because there is some excess beyond a special agreement, or a slight deviation from the original plan, it is not, therefore, reasonable to let the whole contract loose, and to take from the defendant all the benefit of his previous stipulations.

GIBBS, C. J.-I agree with the principle laid down by the defendants' counsel; that, up to the extent of the estimate, the plaintiff must be paid according to the estimated prices, and beyond the estimate he is to be compensated on the footing of a quantum meruit. But the objection is no ground of nonsuit. This point has been perplexed by cases; but I have always understood the rule to be, that unless there be something in the terms of the special agreement, which, either by express stipu→ lation, or necessary intendment, precludes the plaintiff from recovering for work and labour generally, he is entitled, after the contract has been executed, to maintain the present form of action. It is every day's practice to bring an action for goods sold and delivered, though they have originally been ordered upon special terms of agreement. This case falls within the rule I have stated. There are stipulations in this contract which render it impossible for the plaintiff to recover on the common counts: the mode

1816.

ROBSON

V.

and THOMAS.

of payment is specifically defined; and the time for which credit was to be given has not yet elapsed. But much of the work was performed under adGODFREY ditional orders, independent of the special contract; and for that portion the plaintiff may recover under the common counts. But looking to the provisions of this agreement, I am of opinion, that he cannot recover for the work and labour which were performed under the terms of the written contract.

The plaintiff had a verdict, and the damages were referred.

Best and Vaughan, serjeants, and Heath, for the plaintiff.

Shepherd, S. G. and Puller, for the defend

ants.

Where a builder contracts for a particular sum, and additions are made to the original plan, the contract remains binding as far as it can be traced, and the excess only is recoverable on a quantum meruit. Pepper v. Burland, Peake, 103. Kenyon, C. J.

But if the plan is entirely abandoned, so that it is impossible to trace the contract,

and to say to what part of the work it shall be applied, in such case the workman shall be permitted to charge for the whole work done, by measure and value; as if no contract had been made. S. C. per Ld. Kenyon.-See likewise Neale and Others v. Viney, 1 Campb. 471. Ellis v. Hamlyn, 3 Taunt. 52. Guy v. Gower, 2 Marsh. Rep. 273.

CORSEN V. DUBOIS.

1816.

T

1. Upon a tecum,a witness

produce a pa

has in his ac

though the le

THIS was an action on a bill of exchange, to which the defendant had pleaded his bank-rent duces ruptcy and certificate. Having sustained the plea is bound to by the production of his certificate, the plaintiff per which he proposed to shew that there had been a prior com- ́tual custody, mission in 1802, against Dubois and his partner, gal right and and that he had not paid 15s. in the pound under property in such paper bethe second commission. In order to obtain evidence long to anoof that commission, a subpœna duces tecum had been Court, howserved upon Mr. Davis, the solicitor of the de- such eases will fendant, to produce the proceedings under it. Upon discretion, in Mr. Davis's examination it appeared, that assignees of the first commission had left the pers in his custody, and he then had them court, but hesitated to produce them.

ther. The

ever, in all

exercise their

the deciding what

papers shall

pa

be produced;

in

Best, serjeant, for the defendant-The witness is not bound to produce the papers: he has not the proceedings as solicitor to the defendant in the cause; but they have been specially confided to him by the assignees, under the former commission. The plaintiff might have obtained the proceedings by adopting either of two modes. He might have called upon the assignees, who would have been bound to produce them; or, he might have petitioned the Chancellor to have had the proceedings enrolled; in which case they would, have been accessible, as a record, to any party who wanted them. But a stranger, like the present

and under what

qualifications,

as respec s the interest of the witness.

2. Such wit

ness is bound

to produce

them, though

there be a re

gular way pre

scribed by

law for ob

taining such documents.

1816.

CORSEN

2.

DUBOIS.

witness, whose custody is special, cannot be permitted, even if he were willing, to do an act which might prejudice the interest of third persons. This case does not fall within the principle of Amey v. Long. In that case there was one way only to obtain the document wanted. Here the law points out the means.

Lens, serjeant, contrà-There has been much litigation on this point, and it would be convenient that the practice were settled. The plaintiff must necessarily subpoena the person who has the custody of the proceedings. It would be idle to take any other course. We have discovered the person who has possession of the documents we want; and he is present with them in court. The objection, therefore, that we are informal, is answered.

GIBBS, C. J. Undoubtedly the practice should be settled; and the rule, as it strikes me, ought to be this: the solicitor, who has the custody of any papers, and is regularly called upon by a subpœna duces tecum, should produce them. I think he ought to do so, though the legal custody may belong to others. I do not say that the solicitor has an unconditional power over them, but he ought to produce them, subject to qualifications. If the production were likely to be prejudicial to the assignees, I would then intercept them. But as I cannot see any prejudice to the persons who have entrusted the solici tor with the proceedings, I think he cannot withhold them. In cases like this, the discretion of

Lens, serjeant, and F. Pollock, for the plaintiff.

Best, serjeant, for the defendant.