The opinion of the Court was delivered by
ItooERs, J.There is nothing in the plaintiff’s exceptions, which has not been already decided in Wright v. Crane, 13 Serg. & Rawle, 450. The act of the 27th February, 1798, under which this proceeding is had., does not require that the affidavit should be positive. It would weaken the act very much, say.s Chief Justice Tilghman, to decide, that positive proof was necessary, of the existence of ihe papers called for, or of their being in the possession of the adverse .party. The affidavit on which the Court made the order, is as positive as the nature of the case would admit: as mueb so, as a regard to truth would allow. And this is all that can be reasonably required. The deponent avers the existence of two notes, given by the defendant to him, dated in the year 1819; and thinks that both were dated the 19th September, 1819. That one was for the sum of ®431, or thereabouts, payable in one year; the other, tor $772 or $775, or thereabouts, payable in three years. lie also distinctly avers, that these papers were left by him in a tin trunk, at the house of the defendant, and in his possession; that he had applied to the defendant for their redelivery, and that he had refused to give them up. From this description, the defendant could be at no loss to know what papers the plaintiff required him to produce. Nor is it wonderful, that the plaintiff should be unable to fix the precise date, or ascertain the exact amount; this is an occurrence that may well happen, and frequently does, particularly to persons extensively engaged in business, or where their recollection may have failed from lapse of time. Under these circumstances, it, was incumbent, os *143the defendant to deny the plaintiff’s allegation altogether, or to admit they were once in his possession, and to assign some, reason why it was not in his power to produce them. If he had denied the existence of the notes, or had said that they were never in his possession, that he had re-delivered them to the plaintiff, or that they had been destroyed by accident, if these allegations had been made, and had been believed, it would have accounted satisfactorily for their non-production.
The Court of Common Pleas, who were'the judges of the whole case, were not satisfied with the answer) nor can we say there was any thing wrong in this. “ It would be perilous for us to reverse, their decision, on a mere difference of opinion, in regard to the weight Of testimony; particularly when.it is recollected that they had the advantage of a viva voce examination of the defendant. But here there is something more than a presumption that the notes were once in the possession of the defendant. It is certain they were atone time in his custody. ’ Why then does he not produce them, or givfe some reason why, in the language of the act, it is not in his power so to do. This is a proceeding in the nature of a bill of discovery, and as such, should be .viewed with a favorable eye. The object is to wrest from the'defendant papers, fraudulently withheld from the rightful owner. The Court must decide, not from detached sentences, but from the whole examination. From this the inference is strong, that the defendant could have given reasons, if it had suited his purposes, why it was not in his power to pro_duce the notes. If the defendant has been injured, it is his own fault; as it is manifest, there has been a want of candour and fair dealing on his par.t. The act imposes no hardships.
Besides, we do not se^ that the defendant has been injured; as the plaintiff was bound, notwithstanding the judgment by default, to prove the amount of the notes. This was an action on the ease, in which the declaration contained the money counts only: the judgment fixed nothing, ascertained no sum. It was therefore necessary for the plaintiff to give evidence of the amount of the notes. In this, the uncertainty is said to consist; for the complaint is, that the affidavit ascertains no certain sum, for which judgment by default can be given. The judgment being interlocutory, a defect in that particular, can be remedied by evidence at the trial. And this was done. here.
. Judgment affirmed.