Willis v. Bailey

Per Curiam. This Court has never gone farther in directing the plaintiff to submit to the inspectioii of the defendant, or his counsel, any papers in his possession, than is contained in the rule granted in the case of Lawrence v. The Ocean Insurance Company. (11 Johns. Rep. 245. note.) That rule was granted on great consideration, and not without some hesitation. The necessity of it, to enable the defendants to defend themselves, was fully shown on affidavit; and we proceed on the principle, that, from the facts shown, the defendant would be entitled, on a bill of discovery, to the information sought for. Here the order has been granted without any affidavit whatever, that there were any papers, letters, or documents in the plaintiff’s possession, necessary for the defendant’s defence, and in opposition to an affidavit by the plaintiff’s attorney, that the declaration was not founded on any written instrument whatever. This practice is entirely new, and is unwarranted by any proceedings, either in this Court, or by the judges at chambers. We never grant an order for a bill of particulars, without the necessity of such order being shown on affidavit | for although the count may be general, the defendant may well know the grounds of the plaintiff’s action. We do not think that in any case, a judge, at chambers, should grant an order upon the party to produce papers, for the inspection of the other party, or that he should furnish copies of papers in his possession. Such an application should be addressed to this Court, on regular motion. We have not adopted, nor do we mean to adopt, the English practice in this respect. But even according to the practice there, the order, in the present case, would be incorrect, for the action not being founded on any written contract, if the plaintiff has in his possession any letters or papers, they are mere items of evidence, and the party is not bound to furnish matters of evidence to his adversary, which evidence, in itself, does not constitute a cause of action. We, therefore, vacate the Recorder’s order. Motion granted.