President v. Hillard — 6 Cow. 62

Majority

p. 62

The President, Directors and Company of the Bank of Utica against Hillard.

UTICA,

Aug. 1826.

Headnote

The English practice of ordering a party per^or^al/ow-copies to be fufnishing cvi-denceagainst himself, has not been adop-prcme ^ouii" except where the paper ⅛ the immediate foundation of and in ^'few other cases depending on peculiar eir-°Motion spect the bank, or compel them to allow copies to be taken, denied.

j J, Spencer, for the defendant,

moved for a rule upon 1 # , the plaintiffs, that they furnish to the defendant’s attorney C0P'es °f certain entries made in their books relating to the note which they had declared on in this cause, or allow some proper person to inspect and take copies of their books,

He cited Cliff ord v. Taylor, (1 Taunt.- 167;) Gold-' sehmidt v. Marryat, (1 Campb. Rep. 561,2;) Potts v, Adair, (1 Anstr. 259,) and Gabbit v. Cavendish, (2 Anstr. 547.)

& Beardsley, contra.

This is not a motion by corpo-rators, who have an interest in the books sought to be in- ° . spec ted ; but by a mere stranger, who has no right to look *n*° ^16 private account books of his adversary. There is no difference, in this respect, between a corporation and a private person. When the writing sought to be exam-¡ned, does not constitute the immediate foundation of the % action or defence, the court will not order an inspection, or a copy to be delivered, except in cases where forgery is alleged, or in actions on policies of insurance.

It seems by one of the cases cited in support of this motion, that the English courts go great lengths in granting the description of order applied for. It is granted by a judge at chambers ; and the party is compelled to furnish evidence to the full extent of what he would be bound to do on a bill of discovery. This practice is of recent origin in England. It has not been adopted by this court ; and we have often declined to follow it, on motion to compel the party to furnish evidence in this way against himself, except in certain cases ; as where the instrument to be inspected or copied is the immediate foundation of the action ; and in a few other cases, depending on peculiar circumstances. ( Willis v. Bailey, 19 John. 268 , 9.)

p. 63

We see no reason, in the instance before us, for going farther.

Motion denied,^[1]

(a) (a) .) Vid. 5 Cowen, 419, S. C. and Clark v. Spencer, ante, 59.