#### *H. Summer, executor of Clement Nance, deceased,*v. *R.*& *J. Caldwell et al.*

COLUMBIA,

May, 1848.

If, in a bill to marshall assets and obtain the instructions of the Court, the complainant seeks any *information from*the defendants, his bill should be framed with that aspect, and with apt charges, and the discovery should be made with those guards, to the protection of which a defendant is entitled.

It cannot be expedient to give the plaintiff, in the first instance, a sweeping order for the inspection of the books and documents in the possession of the defendants, and belonging to their ordinary business transactions, merely to see if the plaintiff, or the other parties referred to in the order, cannot discover something in them which will afford a ground of defence to the defendant’s claim.

*Before*Harper, Ch. *at Newberry, July Sittings,*1847.

This was a bill to marshall assets and for relief.

It is stated in the bill, amongst other things, that the firm of R. & J. Caldwell, of Charleston, had given notice of a large demand against F. A. Nance, a son and legatee of the complainant’s testator ; and that they hold the testator’s estate liable as guarantor of said debt, which, if established against said estate, would render it insufficient for the *payment*of the other debts and legacies.

And the complainant has been notified by some of the simple contract creditors and legatees, not to pay the demand of said R. &. J. Caldwell.

The bill prays to have the assets marshalled.; and that the said R. &. J. Caldwell, and all the other creditors, may establish their demands against the estate, and that the legatees may contest said demands; and that the administrator might be instructed how to pay out the funds of said estate.

The defendants, R. *& J.*Caldwell, by *their answer,*admitted that they had given notice of a claim against the estate, on a guarantee given by testator to them, for his son, the said F. A. Nance, and insisted that the estate of said testator was liable to pay the amount due thereon.

The case was heard on bill and answer, whereupon the following order of reference was made.

Harper, Ch. On hearing the pleadings: ordered, that it be referred to the Commissioner to take an account of the estate of Clement Nance, deceased; and that he ascertain and report the debts outstanding against said estate, and their rank ; and for this purpose, that he call in the creditors, to present and establish their demands before him, by a day to be fixed by him — giving thirtydays notice in one of the newspapers published in Columbia.

And as to the demand set up by. the defendants, R. & J. Caldwell, it is ordered, that they bring into the Connnission*156er’s office, for the inspection of the other parties, all the books, letters and papers in their possession or power, which may be necessary to enable the other parties to understand how and when their demand arose, and how much it was at the various stages in its progress, and how it now stands.

JSb 2 g?1 § ' PL tsS

The defendants, K,. & J. Caldwell, appealed, and moved the Court of Appeals in Equity to reverse so much of the above order as requires them “to bring into the Commissioner’s office, for the inspection of the other parties, all the books, letters and papers in their possession or- power, which may be necessary to enable the other parties to understand how and when their demand arose, and how much it was at the various stages in its progress, and how it now stands,” on the following grounds, viz :

1st. Because the defendants were not bound, in Law or Equity, to furnish information to the other creditors or legatees, to enable them to understand this claim; provided these defendants furnished sufficient evidence of their claim, and the liability of the testator’s estate to pay it.

2d. Because His Honor erred in requiring the defendants to establish their claim against the estate in any other way than by legal evidence, as in any other case.

3d. Because this part of the order is contrary to the established practice of the Court.

Fair, for the motion.

Pope, contra.

Dunkin, Ch.

delivered the opinion of the Court.

The rule in regard to the production of books and papers is discussed by Lord Eldon in the *Princess of Wales*v. *the Earl of Liverpool,*and the authorities are reviewed by Chancellor Kent in *Watson*v. *Renwick. It is*indispensible that the party should show, or make it appear, that he has an interest in the papers called for, to entitle him to the production of them. The most ordinary case is in suits between partners, or between principal and agent. That in 1 *Swanst.*was a bill of discovery. The answer must contain an admission that the books, &c., are in possession of the defendant, and they must be so referred to in his answer as to become incorporated into it and become a part of it. This is not a bill of discovery, but to marshall assets and obtain the instructions of the Court. If the complainant seeks any information from the defendants, his bill should be framed with that aspect, and with apt charges, and the discovery should be made with those guards to the protection of which a defendant is entitled.

It is merely stated that they have a claim against the estate. It capnpt be expedient, (a,s was suggested in *Watson**157*v. Renwick,) to give to the plaintiff; in the first instance, a sweeping order for the inspection of the books and documents in the possessipu of the defendants, and belonging to their ordinary business transactions, merely to see if the plaintift or the other parties referred to in the order, cannot discover something in them which will afford a ground of defence to the defendants's claim.*

It is ordered and decreed that the motion be granted, and that the order requiring the defendants to bring into the Commissioner’s office their books, letters and papers, be rescinded.

Johnston, Ch. and Dargan, Ch. concurred.

Caldwell, Ch. having been of counsel, gave no opinion.

*Order rescinded.*