N. Y. Sup. Court.-T. Stalker & W. H. Newberry agst. J. Gaunt & J. T. Derrickson. provisions are in force, unrepealed by the Code, and relate to discovery in its technical meaning. (2 Sandf. S. Ct. Rep., 602; Ibid, 664; Gelton v. Marshall, (6 Howard, 398,) and Hoyt v. American Exchange Bank, ut supra.)

In directing the production and discovery of books, papers and documents, the Court is to be governed by the principles and practice of the Court of Chancery in compelling discovery, where not otherwise provided in the statute. (2 R. S., p. 199, § 30, 31.)

The discovery afforded in a Court of Chancery by a production of books and papers was of a two-fold character. In the first place, it was granted where the applicant had an interest and right in them, which justified an unlimited inspection, and this right was the attendant of a relief to which he was entitled. Such was the case of books kept by an executor or trustee, partnership books, those of agents, books of a mortgagee upon a bill to redeem, and those of a tenant in common. These instances will suffice. (See the cases, Hoffman Ch. Pr., notes to pages 307, 310.)

In such cases the production of all books and documents relating to the subject matter could be compelled on the ground of a common interest. If accidently, or otherwise, such books contained private entries, the passages were allowed to be sealed up under oath.

Depending upon the said principle, and as a branch of it, is the long list of cases in which there is no unlimited inspection of books, &c., for the mere purpose of getting testimony, but a right to have produced and inspected, documents or books of a particular class, or specific entries in such books, or specific deeds and document. It is in relation to this class of cases that so many questions of great nicety arise, as the interest of the applicant in the document which will entitle him to the examination. (See Wigram on Discovery, p. 295, and the leading cases of Fisher v. Lowe, (13 Price, 193;) Adams v. Fisher, (3 Milne & Craig, 526;) Newton v. Beresford, (Young's Ex. Rep., 377;) Smith v. The Duke of Beaufort, (1 Phillips' Rep., 250); Flight v. Robinson, (8 Beavan, 22;) Harris v. Harris, (4 Hare, 184.)

Again, there are cases of a distinctive special character where the party has a right to look at a document which the defendant sets up in his answer, and relies upon. The plaintiff is not compelled to be satisfied with the defendant's version of the instrument. He may call for its examination, not upon the grounds of an interest in it himself, but by reasons of the defendants resting upon it: Of this character are Hardman v. Ellames, 2 Mylne & Keen, 732, and Eager v. Price, 2 Paige, 371.

But in the next place, discovery was the mere instrument for obtaining evidence to make a legal or equitable right available, without pronouncing a decision on such right. (Hare on Discovery, p. 110.) Hence it was essential that a bill for that purpose should state that it was in aid of some judicial proceeding. (Attorney General v. Ross, 8 Price, 205; Condale v. Watkins, 5 Mead., 18.)

The Revised Statutes do not change this principle. There must be a suit pending in the Supreme Court when the petition is presented.

N. Y. Sup. Court.-T. Stalker & W. H. Newberry agst. J. Gaunt & J. T. Derrickson.

The change, by permitting an application to the Common Law Court itself instead of resorting to another tribunal, is but matter of convenient practice.

Now the foundation of such a bill was the inability of the party to establish his case by competent testimony without it. It is said generally, that it is because he cannot otherwise prove the facts, or in aid of proof. The meaning of the last clause I take to be, that the aid is necessary in order to establish one or more facts in a series of facts which the party must prove, or to supply a partial defect in the testimony as to one or more of such facts, or as to the single fact on which the right depends. Whether the suit was in the Court of Chancery or in another Court was immaterial as to the rules which governed discovery. The case of The Marquis of Bute v. The Glamorganshire Canal Co., (1 Phillip, 681,) a case for a commission to settle boundaries, is a leading one upon the subject, where the suit was in Chancery, and illustrates the doctrine of the Court.

66

I have carfully examined the authorities cited below, (a,) and while there are to be found some modifications and exceptions to the rule, yet I apprehend the doctrine stated in the explicit language of Chancellor Kent remains to this day substantially the doctrine of the Court: "If a bill seeks discovery in aid of the jurisdiction of a court of law, it "ought to appear that such aid is required. It is not denied in this case but that every fact material to the defence at law can be prov"ed by the ordinary means of law without resorting to the aid of this "Court. I should presume from the bill that every material fact "respecting the ownership of the vessel could be commanded without "coming to this Court, and such trials are not to be delayed, and dis"coveries required, when the necessity of such delay and discovery is "not made to appear." (Gelston v. Hoyt, 1 John. C. R., 546.)

It is true, that in Marsh v. Davison, the Chancellor corrects the head-note of Leggett v. Postley, and observes, "that in a pure bill of of discovery, it is only necessary to state, that the matters to be disclosed are material to the defence at law, not that they are absolutely necessary. But he says nothing to impair the rule requiring a statement of what matters are material, and why they cannot be proved.

The present case is at issue. The object of the defendant's application is to procure evidence by the examination of the parties, or the books, or both, to enable him to go to trial. An order to stay proceedings upon such petitions is of frequent occurrence. In districts where a calendar is gone through at each Trial Term, it might be absolutely necessary. This order is equivalent to an injunction on a bill of discovery. In short, the analogy between them appears to me extremely close.

One other observation strikes me as important.

(a.) Seymour v. Seymour, 4 Johns. C. R., 410; Gelsten v. Hoyt, 1 John. C. R.. 543; Leggett v. Postly, 2 Paige, 599; Newkirks v. Willis, 2 Cha. Ca., 296; March v. Davison, 9 Paige, 580; Bass v. Bass, 4 Hen. & Mumf., 475; Lowe v. Stebbins, 9 Paige, 624; Vance v. Andrews, 2 Barb. Ch. R., 370; Duvrll v. Ross, 2 Mumford, 290; Mitford, 53, 307; Norwalk R. R. Co. v. Story, 17 Con. Rep., 213.

N. Y. Sup. Court.-T. Stalker & W. H. Newberry agst. J. Gaunt & J. T. Derrickson.

The 389th section of the Code has abolished a bill of discovery as such, and an examination of a party as such; and the 390th section defines the examination of a party as that of a witness. The just construction of the Code requires the cause to be at issue, subject to the exceptions, as in cases of other witnesses.

This alteration leads me to the conclusion, that when the testimony sought, appears attainable from the oath of the party examined as witness, there is an additional reason for not resorting to the delicate, and often dangerous source of evidence, an inspection of private books. The unlimited exercise of such a power it has been well said, "would open every muniment room in the land, and every merchant's accounts, and every man's private papers, to the inspection of the merely curious."

But in this view, entries in books or written papers may be brought in question, and sometimes must be produced. I apprehend that this will be under the same rules and limitations, as in cases of entries referred to by other witnesses. I presume the general rule to be, that if a witness swears from express recollection to a fact, but refers to an entry for some details, or precise sum, the memorandum or entry need not be produced.

On the other side, if the entry is the real source of his testimony, so that he cannot depose to the fact without it, production is neces(Greenleaf on Evidence, 436, 437, and Cases.)

Two important principles appear to me deducible from this examination of the subject, and by which the present petition can be determined. If the discovery is plainly attainable by competent and available testimony, other than that of the party, a production of books should not be allowed without special circumstances. If it is attainable by an examination of the party as a witness, it should be also refused, except upon some special ground.

Tested by these rules, there is not one of the points for which the production is required, which cannot be fully and plainly settled by testimony within the power of the party, and easily to be obtained. An examination of Leggett, or the other member of the firm, and one of the officers of the bank, will supply every information under the three first heads, except as to motives, as to which the defendants may best answer. The examination of the defendants, is a clear, and the best source of information as to the fourth and fifth specifications.

I do not think that the plaintiff has established a right to a production of the books and papers, as to any one of the particulars stated in his petition. The petition must be dismissed, with $10 costs.

N. Y. Sup. Court.--Jerome Terry and others agst. Francis Rabel.

[Special Term-26th February, 1854.]

JEROME TERRY, and others, agst. FRANCIS RUBEL.

PRODUCTION OF BOOKS AND PAPERS UNDER THE PROVISIONS
OF THE REVISED STATUTES.

Production (or a sworn copy at defendant's election) of a book containing evidence relating to the alleged agreement, and with similar agreements with others, to shew a

custom.

Objects of and cases under the rules of 1837 and 1847 stated, and considered in relation to the Code.

Distinction of cases under the three first of such rules, and the last, which is for discovery proper, and governed by the statute.

This was a petition for inspection of books and papers, under the provisions of the Revised Statutes; the facts sufficiently appear in the opinion.

Demill, for plaintiffs.

for defendant.

HOFFMAN, Justice.-The action is for damages arising from a breach of contract by the defendant, to furnish a military company with a band of music during a target excursion.

The answer admits the agreement to a certain extent, insisting, however, that it was part of the contract that the services were to cease at 6 o'clock in the evening, and averring compliance with it down to that time.

The cause being now ready for trial, a petition is presented by the plaintiffs, asking that the defendant be ordered to produce and discover any books, papers or documents containing evidence relating to the merits of the action, and in particular a certain book, in which the defendant was accustomed to enter memoranda of the contracts made by him in relation to the furnishing of bands of music, or in which the defendant did enter memoranda of such a contract with the plaintiffs; that he deposit the same with the clerk of the court; and that the petitioner be at liberty to inspect and peruse the same, to take copies thereof, and to use the same on the trial.

There is an affidavit of the demand having been made for the inspection, and a refusal.

N. Y. Sup. Court.-Jerome Terry and others agst. Francis Rubel.

This subject becomes in every day's practice of such importance that I felt bound to give it, in every branch of it which has arisen before me, a full consideration, and to submit my own views at length for revision and correction by a superior authority, if they are

wrong.

The office and extent of the provision of the Code, (§ 388,) and that of the Revised Statutes, (2 R. S. 199,) have given rise to no little doubt and difference of opinion.

Prior to the statute of 1829, authorizing the Superior Court to direct the discovery and production of books and papers, that tribunal exercised, in several cases, a power derived from the common law, and English expositions of it.

Thus in Denslow vs. Fowler, (2 Cowen, 592,) the application was in an action of trover for a bond, and was to compel a delivery or copy, to enable the plaintiff to declare on it. It was denied, because the action was for a tort. Such rules were granted in actions ex contractu. As to this distinction, see Thorpe vs. Macauly, (5 Mad. Rep. 227,) and the cases in the House of Lords there cited.

The subject was carefully considered in Wallis vs. Murray, (4 Cowen, 399,) and a copy of a written agreement ordered to be furnished in order to enable the plaintiff to declare with accuracy. In Clarke vs. Spencer, (6 Cowen, 59,) the opinion of the Court was intimated, that the order for production would be confined to documents which are the direct foundation of the suit or defence. And in The Bank of Utica vs. Hillend, (Ibid, 62,) this rule was expressly stated, and copies of entries in the plaintiff's book respecting the note declared on, were refused.

The statute of 1829, (2 R. S. 199, § 21,) provided that the Supreme Court should have power in such cases as shall be deemed proper, to compel any party to a suit pending therein, to produce and discover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defence therein.

The Court was to prescribe the cases in which such discovery should be compelled, and the proceedings for that purpose, where the same were not provided in the act; and therein the Court was to be governed by the principles and practice of the Court of Chancery in compelling discovery, except as to costs. The statute then directed a proceeding by petition, and made many other regulations.

Rules of the court upon this subject were first adopted in 1830, and revised in 1837; again in 1847; and remained in force until after the Code. They provided for four cases :

1. An application by the plaintiff to compel the discovery of papers or documents, to enable him to declare, or to answer any pleading of

the defendant.

2. By the defendant, to enable him to answer any pleading of the plaintiff.

3. By either party, after pleading, to produce and discover all papers or documents, on which the action or defence is founded.

4. And after issue joined, to compel either party to produce all