Thompson v. Selden

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. John S. Tyson for the plaintiff in error, and by Mr. Magruder for the defendants. On that side, also, was a brief by Messrs. Davidge, Ingle, and Chilton.

Mr. Tyson, for the plaintiff in error, made the following points:

The act of Congress, September 24, 1789, empowers the Circuit Courts of the United States, in the trial of actions at law, on motion and due notice thereof being given, to require the plaintiffs to produce books or writings, in their possession or power, which contain evidence pertinent to the issue in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery.

The record, page 9, (affidavit No. 1,) shows that said books were pertinent to the issue, and (affidavit No. 2) that due notice was given to plaintiffs below to produce said books and papers.

The court's refusal to grant the order, which was an order nisi only, was error.

The order nisi issues, as a matter of course-ex debito justitiae. (2 Dall., 333, Geyger v. Geyger; 11 Johns. R., 245; Lawrence v. The Ocean Ins. Co.; 3 Wash. C. C., R., 381, Joseph Bas et al. v. Steele.)

It is not necessary that the party applying for the order nisi should first produce proof of the pertinency of the evidence a simple suggestion to that effect is sufficient. (Hylton v. Brown, 1 Wash. C. C. R., 298.)

If that suggestion was not sufficient in affidavit No. 1, p. 9, it was rendered completely so by affidavit No. 3, p. 10.

The court, therefore, certainly erred in refusing the order nisi moved after the filing of the affidavit No. 3.

Competency and pertinency of the evidence sought fully shown by that affidavit.

Entries on partnership books may be given in evidence, if made before dissolution. (2 Wash. C. C. R., Assignees of Simonton v. Boucher et al.; ib., 482, Jordan v. Wilkins.)

A fortiori, entries on the books of a banking establishment.

This proceeding, under the act of 1789, is in the nature of a bill of discovery, and proceedings under it. (Wendall's Rep., vol. 9, 458, 6 Cowen, 62, Bank of Utica v. Hilliard; 1 Johns. R., 395, Kenny v. Vanhorne and Clarkson; Cowen and Hill's Notes to Ph., 191; Notes to Phill., 197.)

The right to a bill of discovery, although said to be a right of the plaintiff, is also a right of the defendant, because by cross bill he can always make himself plaintiff. (Wigram on Discovery, 24, 25.)

To a bill of discovery a party must answer. (Ib., 207.)

By an act of the General Assembly of Maryland, chap. 72, sec. 21, passed in 1785, the defendant in equity has the same power to interrogate the plaintiff that he has to interrogate the defendant. (Gresley's Treatise of the Law of Evidence in Courts of Equity, 43 to 46.)

So upon an order nisi, if the party refuses to show cause, the order becomes absolute. (Hylton v. Brown, 1 Wash. C. C. R., 298.)

The court further erred in refusing the necessary order, after the jury was sworn.

The plaintiff below could not resort to the alternative of giving evidence of the contents of the books and papers called for, because impossible. He was in that state of necessity which the law always respects and relieves. The court, in this necessity, refused even to continue the cause. In general, the refusal to continue a cause is not error, but it is presumed that this rule is not without exceptions, and that in a case like this, where by the action of the court the defendant is placed at the mercy of the plaintiff, the least the court could do would be to continue the cause. (Act Assem. Maryland, 1787, chap. 9, sec. 8.)

Upon the whole, the whole action of the court was the withholding from the jury of competent evidence offered by the defendant below, and that is error. (12 Pet., 154, Martha Bradstreet v. Anson Thomas; 17 How., p. 13, Cowen and Hill's Notes, vol. 4, p. 775, 776; 1 Duer, Sup. C. R., 431, 434.)

The counsel for the defendant in error made the following points:

I. That the notice to produce books and papers, served by the defendant on the plaintiffs' counsel below, in the record referred to, was insufficient in point of time, and too general in its terms and extent. (1 vol. Stat. at Large, p. 82; 2 Cranch C. C. R., 427; ib., 336; 3 Cranch C. C. R., 646.)II. That the said notice and affidavits filed therewith are defective, because they do not show or aver that the evidence sought was 'pertinent to the issue,' and such as the plaintiffs 'might be compelled to produce by the ordinary rules of proceeding in chancery.' (3 Johns. C. R., 45; 16 Johns. R., 591, 598.)

III. That the exercise of the power invoked by the defendant's motion to produce books, &c., is matter of sound discretion with the court, and not imperative and unconditional, and that the record does not show that this discretion has been abused by the court below.

IV. That the refusal of the court to continue the cause is not error-such a motion being always addressed to the sound discretion of the court. (6 Cranch, 206, 218.)

V. That the record does not show any proper ground on which the writ of error can be sustained; and that if this result be attributable to the meagreness or omissions of the transcript, such defects must operate to defeat the plaintiffs in error, since the rule of the court, and all the intendments of the law, are in favor of the correct ruling of the court below.

Mr. Chief Justice TANEY delivered the opinion of the court.