Amendments V and VI
[Volume 5, Page 266]
State v. Squires1 Tyler 147 Vt. 1801
Woodbridge, Chief Judge. The attorney in this case must be considered as the keeper of these notes for his client. If so, in contemplation of law they are in the possession of Thomas Mallery. I doubt the propriety of ordering papers thus situated out of his possession for the purpose of making use of them against him. It is true there are search warrants for the discovery of stolen goods; and magistrates who may seize base coin, are authorised to examine persons through whose hands it may have passed, under oath. But these are statute provisions, which do not controvert the bill of rights. There are no instances of warrants to search for papers correctly issuable at common law.
If Mallery makes use of these notes to support an action, the Court before whom such action is tried may and ought to direct them to be stopped. The case in Burrows I conceive to be in point.
Hall, Judge. I consider the only power the Court have over such papers, while in possession of the party or his attorney, whom I consider to be one in contemplation of law, must be when they are attempted to be exhibited in evidence in this Court. I do not think we have any more power over these notes than we have over any other private papers which Mr. Attorney may suggest are in the custody of Mallery, and which he may esteem requisite to maintain a prosecution against him. I am for discharging the rule.
Smith, Judge. I am of the same opinion.
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