The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-10-04
Law Intelligence.

UNITED STATES CIRcUIr CoURr.-Octooer 3-Pre-
sent Justices Nelson and Betts-DEcsroNs- ;Yillar,
Sardge Vs. julia De Wolf erecutri1, &c.-This was an
action upon three promssory notes, dated in Febru-
sry 1881 made by the tes,ator to the plaintiff, and
amounting IN the aggregate, with interest, to
S34 554 II. The notes were given at Havana in the
Island OF Cuba, in consideration of agreement Oh
mortgages upon certain coffee and sugar estates in
that island amounting, nominaly, to exceeding
should remain in the hands of a third person as an
escrow until the several mortgages should be duly
discharged Of record the possession of the by
the plaintiff being regarded presumptive evidence
that the condition upon which they were given had
been complied with. The defendant undertook to re-
put TINS presumption at the trial, by proof that the
mortgage had not been cancelled and disch srged as
provided Tor In the agreement, and that the notes,
therefore, had been wrongfuy delivered up to the
Painun For this purpose, counsel offered, in evil
tence the contract under which the notes in question
were given which was in writing and purported to be
executed In Havana at date with the by the
testator In person, and by the plaintiff through hin
agent and to which execution there were subscribing
Witnesses: The handwriting Of the parties was
proved, but not Of the subscribing witnesses or
either OF them There was, also, evidence of the
eSecn::-d by Jura his agent The instrument itself
was not unos seal, and the court admitted it upon
the proof of the hana OF the parties, and admis-
sion Of the execution NOW. astanding objections
Another instrument offered in e,dence oy the de-
fendant for the purpose Of showing that condtop
upon which the notes given, had not bse2 COM
three mortgages executed by the plaintiff short time
before the suit brought which the teator refused
accept, Sufnclent compliance with the terms
OF the agreement was claimed that this fact raised
an implication that or discharge of the
mortgages had been before made; and this insult
ncent and the conditions had not been
complied with and the notes improperly in the
hands ofpaintia and that therefore, he could not re-
cover The counsel, at first, produced copy of the
release which had been rendered and undertook to
account for the nohproduction Of the original. But
before the evidencewas through on the point the ad.
verse counsel produced what supposed and believed
at the time to be the original ITSELF and to be identified
by an original entry Of the witness to the
tender on the back and on that ground admitted
evideLce. There Is obscurlty in the case in
respect to the facts on this point and it is at least
GnssSnsP,s whether tho instrument produced and
or only copy, with his endorsement OF the
fact Of the tender. 1t may be- and probably
endorsement upon copy as well upon the original
paper rendered and that it the copy that pro-
duced and admitted in evidence That the paper pro-
duced was the original seems to have been rather an
infere of the Court from the fact of the endorse
Mentin the handwriting Of the witness to the tender,
sion seems, perhaps, hardly warranted from the aess
There is some difference of opinion between the
the agreement under which the notes were given Was
properly admitted In evidence ON proof Of the hand
writing Of the parties and Of their admissions without
further accounting for the subscribing Witnesses the
paper having been executed abroad presumption of
law was undoubtedly that the witnesses were beyond
the jurisdiction Of the Court Their handwriting was
not proved, the omission properly accounted for
The admission Of the party Of the execution of nego
able paper orproof of his handwriting without account
ing for the subscribing witnesses has been held SUM-
cent in New ork ca. r. 45I H. AT; 10 b .os. o
Wend ~; but whether this rule extends r., M nm
scale Instruments may admit Of some d ,ts I1rn,,
the other ground however we think the Sa. p,1
be get aside and the cause sent dowr for snotSsr tp.
the trial wbaut smS' D%th es entered upon
facts were capable Of the os, Inc nSs
The island Of cnh. -nission to take testimony at
the witnesses resi- acre the contract was made, and
Z comnad viz 20, and the condition complied with,
to tbo pa ., all before the delivery the notes
ment a eta would have removed every embarra.s-
take the trial. We trust that this course will be
before the cause is again prese nted to the Court
CIV trial granted. Costs to abide the event.
b Is's H9DS o,, vs. Sadrss a. Rasi, and ;n
compel the secretary of incorporated association,
OF which the trustees TO produce books
correspondence, and other documentary evidence
before the commissioner taking testimony In the
cause for the inspection OF his counsel list of books,
and papers, and extracts taken from the books sc,
have been, given in the answers of the defendants to
suppemt ntal bill, aud appended to the same,
being included in schedules and e, and embrace
everything in the said books and accounts that relate
in any way to the subject natterin CONTROVERSY Tho
residue OF the contents Of the books have reference to
the general of the defe ndans unconnected
with the subject Of this suit. The compaina mt seeks
TO ontitic himself to general inspection of the books
of the association relating to other matters, without
being confined to the particular subject In contro-
yersy. upon suggt ston that the extracts above
sufpicion We do not think that sunicient fonnda
ton Is laid upon the motion for this extraordinary
interposition OF the powers Of the Court The COM
planant entitled to the production Of the books
containing the extracts, for Inspection the cxa-
miDation; but the other part of the books may be
sealed up and the inspection TO take place under the
supervision of the commissioner. The co mplainant
also asks for the production and Of the pri
yate account book Of George Chase, contained in
the lst furnished In schedule D. which had been for
wardcd with other books Of the association from Pcnsa
cola TO the defendants But on looking into the sup
Elemental BILL We do net perceive any call for dis
covery or production Of this book, either by special
reference to 1t, or in terms that would necessarily
embrace IT, or that show IL TO be material the mat
ters In controversy The order, therefore must be
limited to the production Of books conts ming the
extracts that appended TO the answer in schedule
q with liberty to the defendants to seal up the ether