Year: 1862

ants Counsel for an order Defendant TO produce


Books and Papers appertaining 10 the PuuOa Estate


The bill alleges that the estate of Puuoa Salt Works
is held in trust by the respondent, for the complain
ants benefit and that the stock and furniture the
said estate is the property of complainant The trust is
denied by the respondent and that title in the stock is
in him and that he supposed that the furniture be-
longed to c. w. Vincent, who conveyed the estate to
him at request Of complainant but does not aver that
was conveyed to him.


The complainant further alleges that the estate being
so held trust, 1t was agreed that said respondent
should manage and carry said estate paying to the
complainant 500 per month"; and that, on settlement,
at the end of each year. he should have for his labor
onehird of the profits of the Works. and the complain
ant two-thirds-less the advances made to him ; and
he further alleges that, for long time, the respondent
continued to pay to him of money, though there
has not been any regular settlement, and that he has
the charge of the books and papers, but that the
respondent has, and that he cannot state the amount
he has received and lately he has refused to pay him
anything and denies that he has any interest in the
estate.


The complainant further AYERS that the accounts of
the estate kept in books which wont to be
shown to him, but that of ae the said respondent has
concealed the said accounts from him, and has refused
to show them to him.


The respondent denies these averments with the ex-
ception that he had paid complainant of money.
The complainant prays among other things, that the
respondent be commanded to bring into Court all the
books papers and accounts appertanng to said estate
on account


The complainant now moves the Court that said re-
spondent may be ordered to bring into Court all books
| and papers appertaining to said estate.


1t is conended by the counsel for the respondent that
the motion ought to be granted because it is
forth in the bill that the books contain matters essential
to the complainants case and further, he has not
stated in his bill for what purpose he wants them, and
he has not set forth any specific reasons in his bill for
the motion.


The complainant has set forth the nature and charac-
ter of the trust by virtue of which the respondent was
accustomed to pay him certain of money and he
alleges that he has not charge of the books containing
these accounts but the respondent has, and that he
formerly accustomed to the books which contain the
of the estate but of late this privilege has been
denied.


"It seems Clear, says Story, that " the plaintiff is
not entitled matter of right, to the discovery and
production of any document papers, called for by
the BILL except those which appertan to his case
or the title made by the BILL Documents and papers,
which wholly and solely respect the defendants title
and Defence he is not cOmpellbe, by his answer, to
discover to produce" The first question is Do
these books and documents appertan to the case and
is it so alleged in the bill They, unquesonably will
have bearing the case. to some extent-at least
far the accuracy of statement and integrity of evil
dence is concerned. They will also present account
of advances made to the complainant, and if made to
him trustee, it material his title. think it is
sufficiently set forth, that in the bill the books and
documents called for relate to the matter in issue in the
| complainant's suit


| Inc respondent ADMITS That he Kept DOCK OF ac-
counts of said estate but denies that the complainant
ever asserted any right, made any request de-
mand, Tor the production of said books since respon
dents purchase.


In Watts Lawrence, 8, page l59, it is declared
that previous to the final hearing of cause the Court
orders the production of books and papers only upon
two prncples-security pending the litigation, and dis
covery and inspection, for the purposes of the suit in
Court.


wgrain in his Treatise says that it is the right as
| a in ity IN fr5m hp
defendant discovery upon oath as to all matters of
fact which being well pleaded in the BILL material
to the plaintiffs case about to for trial. and
which the defendant by his own form of pleading. does
not admit.


The practice formerly to frame the bill in such
manner to call upon the defendant to set forth the
contents of the deeds in question. produce them
The expense of setting out the contents of deed in the
answer has, in some respects, modified this practice,
and the custom is for the plaintiff to charge gene
rally in his bill that the defendant has deeds and docu
mens relating to the matter In question in his posses
sion. If such admission be obtained t is then
petent for the lanti to apply to the Court by mott H.
that the defendant produce the required documents
and this motion for the production is in the nature of
exception to the answer In this case, the admis
sion is the keeping of books of the estate in question.
The next question is Has the plaintiff sufficient in
terest in the books to enable him to sustain the motion
II appears by the bill that the plaintiff has right to
the books and it is admitted in the that the
defendant is in possession of the furniture of the estate
which has been proved have been purchased by the
complainant, and to be at this time his property.


The word interest," gays Wigran. ' must be un-
dersood in these to interest in the pro-
duction of document, for the purpose of the trial
| about to take place. According to this definition of
the word interest if the object of the suit action be
the recovery of estate, the defendant in bill in
aid Of proceedings that estate, will, prma
face, be entitled before the hearing of to the
production of every document. the contents of which
will be evidence the hearing of his right the
TI,ao Of EtSbar 10 OvUhich fbo
for the respondent has referred authority In fa
of the general doctrine that where the respondent
denies the compliments whole right to sue. and al
though this defence raised by answer, and not by
plea, still the complainant refused a schedule and
production of books and papers Wgrain elaborately
crcses the decision in this case, and considers it
introducing exception to the general rule which en-
| titles q plaintiff to discovery in support of his
case. "Tbe why this may be considered to
be contrary the general principles of the Court
to be shortly this The discovery IN question would
have been applicable to determine the amount or ex-
tent of the demand of the plaintiff, and therefore
material for the purpose OF the decree sought by the
bill Although, therefore, the amount of the demand
was subordinate point in the cause, and the right of
the plaintiff to sue the principal subject of dispute
still the defendant, by submitting to answer, had made
himself liable to give, before the decree discovery both
as to the principal, and also as to the subordinate
points in the cause The refusal, therefore, of the
Court to order production of the required document,
Lted the defendant from giving discovery for the
purpose Of the suit concerning one of the issues about
| to come for trial


1t seems to be admitted rule in equity proceed
ings, that when the complainant could have compelled
the defendant set out the contents Of books and docu
ments in his answer, that he had right motion to
have them produced in Court. By interrogaores, the
complainant could have compelled the respondent to
have answered touching all matters in the books rela
tive to matters in issue but the production Of the
books and documents is the most satisfactory to the
Court in the investigation of the Especially in
alleged trusts, in partnership, the books of i'm
portanee In this case should think it consolation
TO the respondent be able to introduce this kind Of
evidence, for it viii at least be negative support, if
been kept in conformity his sHnrn nnsxar