Exchange Bank v. Monteath

Harris, Justice.

I had supposed that the 388th section of the code was intended to embrace, and did, in fact, embrace every case in which a party should have the right to claim from his adversary a discovery of documentary evidence. It authorizes a discovery of any books, papers, and documents in the possession or under the control of the adverse party containing evidence relating to the merits of the action or the defence therein. The order may be made at any time after the commencement of the action. I cannot conceive of a case proper for a discovery in which it would not be authorized by this section. But some of the judges who met at the general session of the court, held in August last, thought otherwise. Hence the 8th, 9 th, 10th and 11th rules were adopted, with a view to provide for a discovery in cases where it should be needed to enable the party seeking it, properly to frame his pleadings under the still unrepealed provisions of the Revised Statutes. It certainly was not intended by the adoption of those rules, to confine the discovery of documentary evidence to the two cases mentioned in the 8th rule. On the contrary, I understand it was intended to leave all proceedings instituted under the 888th section of the code to be governed by its provisions, uncontrolled and unaffected by the rules. Such, at any rate, is the case. If, therefore, *282the plaintiffs have presented a ease which, by the provisions of the code, entitles them to a discovery, the rules cannot operate to deprive them of their right. Under the Bevised Statutes the party seeking a discovery must proceed by petition; but I suppose that, under the code, if a proper case for a discovery should be made, by affidavit, the court or judge should make the order. All that is required is, that it should be made satisfactorily to appear that the party against whom the application is made, has in his possession, or under his control, books, papers, or documents, “containing evidence relating to the merits of the action, or the defence therein.” Upon showing this, if, after due notice to the adverse party, no good cause be shown against it, the party making the application is entitled to his order for an inspection and copy, or permission to take a copy. I do not deem it necessary that the facts should be made to appear by the oath of the party: they may be shown by the oath of any other person. Nor is it necessary in such an application, for the party to swear that the books, &c., are not in his possession or under his control. It is enough for him to show, what the statute requires, that they are in the possession, or under the control of the adverse party; and in this respect, it is sufficient if he shows a state of facts, which satisfies the court or officer that the party, against whom the application is made, has the ability to comply with the order for a discovery. It is true, that the application is addressed to the discretion of the court or judge; but in the exercise of that discretion, no officer would feel himself justified in withholding an order for a discovery, when satisfied that the application is made in good faith; that the party against whom it is made has the ability to comply with the order, and that the books, &e., of which a discovery is sought, contain material evidence. Guided by these principles, I have no doubt of the plaintiffs’ right to an inspection of the books, papers and documents mentioned in their petition. I shall, therefore, direct that within three days after service of a copy of the order, the defendants give to the plaintiffs the inspection for which they ask, with permission to take a copy of so much of the books, papers and documents, as relate to the merits of the action.