Tuttle v. Mechanics & Tradesman's Loan Co.

The opinion of the Court was delivered by Sergeawt, J. When the court in bank have, under the provisions of the act of assembly of the 27th February, 1798, made an order on the defendants to produce at the trial certain writings specified, the judge at Nisi Prius cannot inquire whether they are pertinent to the issue, or whether they would or would not be evidence, if produced. The order of the court is peremptory and conclusive on these points. It is when the rule is about being granted, that the party should make his objections, if he relies upon them; and if they [219] are valid, the rule will be refused or modified according to circumstances. And perhaps a case might arise where, even after granting the rule, it might be rescinded; but that could only be done by the court in bank. If neither of these courses be taken, but the rule is made absolute, it is to be presumed the court were satisfied when they made the rule, that the'evidence was pertinent to the issue, and that the party should produce it. Whether, on being produced, it would be competent evidence, is another question, which cannot arise where the party withholds the evidence at the trial, and refuses to produce it under the rule. The defendants then, according to the act of assembly, when such a rule is made, must either produce the writings named in it, or satisfy the judge why it is not in his power to produce them. These are the only answers he can make at the trial; and as the defendant in the present case, withheld several of the papers ordered to be produced, the only question is, whether the evidence he gave to account for the non-production of them, was satisfactory. The judge who tried the cause, thought it was not; and the court are of the same opinion. Though the counsel made all the search he could, on the morning of the trial, yet we think the officers of the institution, or some of them, ought to have been, produced, to account for these papers, or show that they had used due diligence to discover them. Instead of that, neither the former president and cashier were offered, nor the present, nor any clerk of the institution; to some of whom, it appears, the notice had been delivered a year ago. If the officers of a corporate institution are so remiss in attending to the order of the court in a suit depending, they can lay little claim to the merit of diligence. Under the peculiar circumstances of the case, however, we deem it proper, in accordance with the request of the defendants’ counsel, that the assessment of damages should be made in court, agreeably to the act of 1772, as was done by the District Court in Crane v. Wright, (13 Serg. & Rawle, 447.) Judgment for the plaintiff: and damages to be inquired into and assessed at the Court of Nisi Prius.