Cottrell v. Warren

The opinion of the Court was delivered, by Lowrie, J. The Act of 1798 was intended to supply the want of a bill of discovery, so far as relates to the production of papers that are pertinent to the issue to -be tried, -and it ought to be enforced freely and decidedly in its true spirit, in those eourts especially which do not possess the remedy by bill, of discovery. But the latter is, in some respects, a much better remedy; for, by means of it, an opponent may be called upon, not only to produce all books and papers, but to admit all facts material to the issue, [489] unless they relate exclusively to the respondent’s own side of the case, or tend to expose him to some penalty. In such case the mere fact of the materiality of the evidence is sufficient to justify the demand of a full discovery. We allude to this part of the Chancery practice, because it throws much light on the remedy intended by the Act of 1798. It is not necessary in the present case, to decide whether or not a writ of error lies for the matter complained of here; for we have examined the alleged error, and find that the decision of the Court below was right according to the principles that govern in cases of discovery. The party, when called upon to produce his books of entry, answers distinctly and positively that he has none. This assertion is not at all impaired, when he adds, as a reason, that he did but a small and cash business, and therefore kept none, as he merely made memorandums from day to day on a slate or with a pencil in pocket pass-books. The fact remains positively asserted, though the reason may not be satisfactory. Judgment affirmed.