Eddy v. Bay Circuit Judge

Montgomery, J. Mandamus is sought to compel the vacation of an order requiring relators to produce certain books and papers for the inspection of the attorneys of Edwin T. Bennett in a suit instituted by said Bennett against relators for malicious prosecution. It is contended that, as no rules are now in force relating to the production of books and papers (those formerly in force Cir. Ct. Rules Nos. 40 to 43 having been omitted in the revision), no such right now exists. It is true, there is no statute or rule governing the case, but, at the common law, production of books and papers can be compelled' where a trust relation exists. 1 Whart. Ev. § 743; 19 Am. & Eng. Enc. Law, 243. In this case the books ordered produced belonged to a corporation in which the defendants are stockholders. The custodians of these books are, in a [669] sense, trustees of plaintiff, and, under the circumstances of the case stated, the order of the circuit judge was justified. The case is clearly distinguishable from Cummer v. Kent Circuit Judge, 38 Mich. 351, and Grow v. Bay Circuit Judge (June 2, 1894), unreported. In neither of these cases was there a trust relation. The writ will be denied. The other Justices concurred.