—This application, for discovery is made under 2 Revised Statutes, 199, section 21, &c. The third subdivision of section 24 provides that such an order may be vacated, “ upon the party required to make the discovery denying, on oath, the possession or control of the books, papers, or documents ordered to be produced.”
The defendant admits (by not denying) the statements in plaintiff’s petition, that the papers in question were delivered to him in July and August, 1853. He does not state that he has ever parted with the possession of the papers, or has destroyed, lost, or mislaid them. His statement is, that he has made diligent search therefor (without stating when or where he made such search), and has been unable to find any such papers or documents; and that the same are not now in his possession, &c., and that he is unable, from any knowledge he now has, to produce them. The affidavit appears to me to have been drawn with much caution and carefully qualified, and to be evasive. Let an absolute order, drawn in conformity with the rules of the court, now be entered, to be settled on not less than two days’ notice.