p. 399Headnote
eourt wiI1 order th« defendant to allow the piain*lff t0 , take per in his whkiTthe suit ^oughfound'¡d’ plaintiff oncehad a counterpart which is lost.
It is not necessaiy to show that it was delivered to the defendant* to hold as trustee of the plaintiff
The supreme court will grant this rule, as to such a paper, in all cases where chancery would entertain a bill of discovery.
J. I. Roosevelt, for the plaintiff,
moved for a rule that the defendant furnish the plaintiff’s attorney, at the plain-___ „ , . tiff’s expense, with a true copy of the written contract on which this action is founded. He read affidavits showing that the action is assumpsit brought to recover the price of a large quantity of merchandize sold to the defendant by the plaintiff’s agent under a written contract special in its provisions; that one part was retained by the plaintiff’s agent;
p. 400and the counterpart by the defendant; that the part re Gained by the agent had been lost; that a paper produced and annexed to the affidavits was believed to be a copy;' but the plaintiff’s agent and attorney not being certain of. this, feared that the action might fail on account of a vari anee between the declaration to be filed and the contract to be proved in evidence at the trial; and that the counterpart, or a copy of it, was necessary to enable the plaintiff to declare with accuracy; that though one Canning was named in the contract as one of the parties, he, in fact, entered into it as the agent of the plaintiff.P. W. Radcliff, contra,
read an affidavit of the defen dant, neither admitting nor denying that the paper annexed to the plaintiff’s affidavits was a true copy of the agreement ; but stating that when he entered into the contract, he then, and for sometime afterwards, supposed it was with Canning in his own right, and not as agent for the plaintiff ; that the counterpart was delivered to the defendant as his Own property, and for his own use, and not as trustee for Canning, or any other person; that he had, as he believed, fully complied with the agreement on his part; that Canning had, before the commencement of this suit, made a statement in writing concerning the matters in controversy, which he had delivered to the defendant, who had returned it to Canning, all of which was before any dispute had arisen touching the subject of this suit; that the statement may be material to the defendant in his defence, as he is advised by counsel and believes; that he has applied to the plaintiff’s attorney for. a copy of that statement, which, had been denied.
Roosevelt cited Denslow v. Fowler, (2 Cowen’s Rep. 592,) and the cases cited in the note to that case, note (a); Jackson v. Jones, (3 Cowen’s Rep. 17,) and The People v. Vail. (2 Cowen’s Rep. 623.)Radcliff relied on the same authorities; and especially Street v. Brown, (6 Taunt. 602.) In Morrow v. Saunders, (1 Brod. & Bing. 318,) it was expressly sworn that there was but one copy and never had been any other, and it was only
p. 401upon an affidavit going thus far, that the Court would grant the motion. Mr. Cowen, in his note to Denslow v. Fowler, omitted to notice that circumstance. In Dunlap’s Practice, (1 Dunl. Pr. 616,17,) the rule is laid down in the same manner.Curia, per
The power of the Courts in England, to compel a party to produce or furnish copies of papers to his adversary, is said, by the later cases, to rest on the idea that the paper in question was left with the party required to furnish it as a trustee for the other; and the motion has been denied where a counterpart was kept by the party applying. Why this trust should give jurisdiction more than an accidental loss of a counterpart once existing, it is difficult to perceive. If the Courts go upon the analogy to equitable relief, accident is as plain a ground as trust. This Court have certainly, in practice, been confined to neither ground. In Lawrence v. The Ocean Insurance Company, ( 11 John. Rep. 245 , note,) a rule was granted to produce numerous items of written evidence in an insurance cause complicated in its details, and important on account of the amount involved. In Jackson v. Jones, (3 Cowen’s Rep. 17,) deeds of the party were ordered to be deposited for inspection, on an allegation that thereby the adverse party hoped to be enabled to prove them forgeries. The same thing has been done of a promissory note. (Brush v. Gibbon, id. 18, note (a).) In Willis v. Bailey, ( 19 John. Rep. 268 ,) this Court declare the principle upon which they proceeded in Lawrence v. The Ocean Insurance Company, viz. that the necessity of the rule to enable the defendants to defend themselves was fully shown on affidavit; and they adopted the principle that from the facts shown, the defendant would be entitled, on a bill of discovery, to the information sought. It is said the King’s Bench acted on the same principle in the time of Ld. Mansfield. (2 Archb. Pr. 186.) When the Court, in Willis v. Bailey, say they do not mean to adopt the English practice, they allude to the proceeding before a Judge at chambers. The only restriction intimated by that case relative to the subject matter is, that the paper ordered to be produced must constitute, in itself, a cause of action.
p. 402They say that the English practice has not gone beyond this.
There is no doubt that, on a bill of discovery, the plaintiff would be entitled to all that he asks, and even more ; a discovery of the contents of this paper and the oath of the defendant as to its execution. Nor is there any doubt that the paper will be necessary, to enable the plaintiff to proceed in his cause with safety. The paper itself constitutes a cause of action; and on the whole we grant the motion, on condition that the plaintiff deliyer a copy of the statement asked for by the defendant.
Rule accordingly.