We have repeatedly held that application for discovery of books and • papers must specially state what information is wanted, and that the books or papers referred to contain such entries, and this must be stated on positive affirmation, and not on information and belief. It is not enough to dispense with this positive oath that the party should be absent. If so, some other person, who has knowledge of the facts, should swear to the petition. And if there is no one who .can make such affidavit, then the application cannot ordinarily be granted.
Although the plaintiff in this case was absent, still the assignor was not, and he would have more knowledge on this subject even than the plaintiff.
That the party making the affidavit in the petition had no knowledge, that the .books of which a- discovery is sought, contained any entries on this subject, is apparent from the manner in which such charge is made. The petition says that the ledgers, day-books, journals, cash-books, deposit-books, and bill-books, or some or one of them, for the years 1857, 1858, 1859, 1860, and 1861, contain entries showing when the bonds were sold, to whom Sold, and how much were received for them; that said books also contained entries showing how much was received for interest, &c.; that the cash accounts, profit and loss account, and bills receivable account, in the ledger of the defendant, contain entries showing the same facts, corresponding to the entries in the other books.
The order appealed from, directs not only the deposit of the books before referred to, for the period of five years, but also all other books of the defendants which contain' any accounts or entries, showing, or tending to show, the times when the bonds were sold, &c.
Such an order appears to me to be extending the right of a party to examine his adversary’s books much beyond what was contemplated by the law, or what has ever been sanctioned by the coprts.
The uniform course of decision has been against any attempt to use this power of the court for the mere purpose of hunting for evidence, without some knowledge on the part of the applicant as to what the entries are, and in what paper or book it is contained. It is very evident no such knowledge *115exists in the present ease, and the whole petition rests upon the supposition that there must be some entries in the defendant’s books, and if the plaintiff can obtain an inspection of the defendant’s books, he can obtain some information beneficial to Mm in conducting this prosecution. Such a rule if carried out to this extent would give to a party the privilege of always examining his adversary’s books, if he can swear that the litigation relates to matters which ought to be entered in the books, and that he believes he keeps correct ones. I cannot believe that it was ever intended to carry the rules of discovery to this extent, and I am not willing to give my sanction to what seems to me to be a gross invasion of the right of a party to the control of his own books and papers. (6 Abbotts’ Pr., 179 ; 18 Ib., 270 ; 24 How. Pr., 260 ; Colgate a. Buckingham, Ms., Feb., 1863.)
There are some matters concerning which discovery is sought Which are stated sufficiently definitely to call for a discovery, and which, if the petition had been sworn to by a person having any knowledge in the matter, might be sustained. I refer to those parts of the petition which refer to account-sales of the bond and stock and other securities in the defendant’s possession.
But the difficulty as to the proof of the existence of such papers extends to the whole petition, and in my judgment the verification should be of something more than information and belief. It may be that in some cases information from* others might be sufficient,—where it is so, the information should be disclosed:
The order should be reversed, but with leave to plaintiff to renew Ms application upon upon other papers.
Order reversed, with leave to plaintiff to apply ane.w on other papers for discovery of entries to be designated in the papers.