Wallis v. Murray

Curia, per Savage, Ch. J. The power of the Courts in England, to compel a party to produce or furnish copies of papers to his adversary, is said, by the later cases, to rest on the idea that the paper in question was left with the party required to furnish it as a trustee for the other; and the motion has been denied where a counterpart was kept by the party applying. Why this trust should give jurisdiction more than an accidental loss of a counterpart once existing, it is difficult to perceive. If the Courts go upon the analogy to equitable relief, accident is as plain a ground as trust. This Court have certainly, in practice, been confined to neither ground. In Lawrence v. The Ocean Insurance Company, (11 John. Rep. 245, note,) a rule was granted to produce numerous items of written evidence in an insurance cause complicated in its details, and important on account of the amount involved. In Jackson v. Jones, (3 Cowen’s Rep. 17,) deeds of the party were ordered to be deposited for inspection, on an allegation that thereby the adverse party hoped to be enabled to prove them forgeries. The same thing has been done of a promissory note. (Brush v. Gibbon, id. 18, note (a).) In Willis v. Bailey, (19 John. Rep. 268,) this Court declare the principle upon which they proceeded in Lawrence v. The Ocean Insurance Company, viz. that the necessity of the rule to enable the defendants to defend themselves was fully shown on affidavit; and they adopted the principle that from the facts shown, the defendant would be entitled, on a bill of discovery, to the information sought. It is said the King’s Bench acted on the same principle in the time of Ld. Mansfield. (2 Archb. Pr. 186.) When the Court, in Willis v. Bailey, say they do not mean to adopt the English practice, they allude to the proceeding before a Judge at chambers. The only restriction intimated by that case relative to the subject matter is, that the paper ordered to be produced must constitute, in itself, a cause of action. [402] They say that the English practice has not gone beyond this. There is no doubt that, on a bill of discovery, the plaintiff would be entitled to all that he asks, and even more ; a discovery of the contents of this paper and the oath of the defendant as to its execution. Nor is there any doubt that the paper will be necessary, to enable the plaintiff to proceed in his cause with safety. The paper itself constitutes a cause of action; and on the whole we grant the motion, on condition that the plaintiff deliyer a copy of the statement asked for by the defendant. Rule accordingly.