to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses, incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial.

CHAPTER V.

Admission or Inspection of Writings.

SECTION 388. A party may be required to admit a paper to be genuine, or pay expense of proving it. Inspection and copy of books, papers, and documents, how obtained."

§ 388. [341, 342.] (Amended 1849.) Existing suits. In. spection and copy of books, papers, and documents, how obtained. Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper material to the action, and request an admission in writing of its genuineness. If the adverse party or his attorney fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission, unless it appear to the satisfaction of the court that there were good reasons for the refusal.* The court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents, in his possession or under his control, conraining evidence relating to the merits of the action or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.

a. This section is substituted for sections 341 and 342 in the code of 1848. The asterisk divides this section into parts corresponding to the division in the code of 1848.

a. The section 342 of the code of 1848, used only the word "papers," and not "books, papers, and documents;" and it was held that that section applied only to "papers" and not to "books," and that to obtain an 'inspection, &c., of "books" it was necessary to resort to a petition under the revised statutes. (2 R. S., 199, 200.) Sill, J., said, "The only effect of this section is to sanction by legislative enactment part of rule 29 of the supreme court (supreme court rules of 1847). It applies only to "papers," not to “books," and omits the requirement that the copy should be verified, which the courts deemed proper to guard against imposition and fraud by serving false copies. "Formerly a paper might be ordered to be deposited, thus enabling the party to inspect or take a copy of it. The revised statutes authorized the order when the court or officer deemed it proper, and the new law refers it to the discretion of the court or justice. A proper exercise of this discretion would require the applicant to show substantially what is required by the 28th rule (rules of supreme court, 1847). This section, 342 (now 388), omits to direct the particular manner in which the inspection and copy are to be obtained, leaving it to be prescribed by the court. In my opinion, the standing rules of the court regulate alike the practice in this section and the statute in force when the code took effect, or, in other words, this section has not in any manner changed the practice or given any new additional remedy. The former practice of the court is retained by sections 389 (now 469), 390 (now 471)." Follett v. Weed, 1 Code Rep., 65.

b. This section does not repeal the provision of the revised statutes on the same subject, and the two systems may well stand together. If a party come by petition under the revised statutes, and ask for a discovery, he has a right to it. It is a different proceeding from that under the code. The court exercises different powers in respect of it, having a discretion as to the manner of ordering it, and there being provided a different mode of enforcing the discovery. There is no incongruity between the two systems, and they may stand together. Ib.

c. The case of Follett v. Weed, supra, was a decision upon the code of 1848, but "the slight amendment of section 388 has not rendered that decision inapplicable to the present practice." Sill, J., Dole v. Fellows, 1 Code Rep. N. S., 146.

d. The new rules of the supreme court show the court did not deem the code to have superseded the old system. That court has made rules which carry out the latter, in respect of sworn copies and the like. The application before us comes under the old system. There is not enough in the papers to show why or how it is necessary to have the discovery asked, in order to prepare the answer. This should be shown as well as the nature of the documents. Sandford, J., Stanton v. Del. Mut. Ins. Co., 2 Sand., 662.

e. This section is not a substitute for the provisions of the revised statutes, but is auxiliary thereto. Gould v. McCarthy, 1 Kernan, 575.

f. The provision in the revised statutes (2 R. S., 3d ed., 262) as to the discovery of books, papers, &c., is as follows:

§30. The supreme court shall have power, in such cases as shall be deemed proper, to compel any party to a suit pending therein, to produce and discover books, papers, and documents, in his possession or power, relating to the merits of any such suit, or of any defence therein (9 Wend., 458; 20 ib., 682; 5 Cow., 27; 2 Hall, 520).

31. The court shall, by general rules, prescribe the cases in which such discov ery may be compelled, and the proceedings for that purpose, where the same are not herein provided; and therein the court shall be governed by the principles and practice of the court of chancery, in compelling discovery, except that the costs of such proceedings shall always be awarded in the discretion of the court.

§32. To entitle a party to any such discovery, he shall present a petition, verified by oath, to the court, or to any justice thereof, or to any circuit judge in vacation, upon which an order may be granted by the court, or such officer for the dis-. covery sought, or that the party against whom the same is sought should show cause why the prayer of such petition should not be granted.

33. Every such order may be vacated by the officer granting the same, or by the court,

1. Upon satisfactory evidence that it ought not to have been granted. 2. Upon the discovery sought being made.

3. Upon the party required to make the discovery denying on oath the possession or control of the books, papers, or documents ordered to be produced.

34. The court shall provide, by general rules, for the staying the proceedings of any party against whom such discovery shall have been ordered, either by the court or any officer, until the same shall have been complied with or vacated.

§35. In case of the party refusing or neglecting to obey such order for a discovery within such time as the court shall deem reasonable, the court may nonsuit him, or may strike out any plea or notice he may have given, or may debar him of any particular defence in relation to which such discovery was sought; and the power of the court to compel such discovery shall be confined to the remedies herein provided, and shall not extend to authorize any other proceedings against the person or property of the party so refusing or neglecting.

§36. The books, papers, and documents, produced under any order made in pursuance of the preceding sections, shall have the same effect, when used by the party requiring them, as if produced upon notice according to the practice of the court.

a. By 2 R. S., 3d ed., 377, s. 16, the like powers are given to the superior court, the common-pleas, recorders', and mayors' courts, and the rules of the supreme court are to apply.

b. The supreme court is authorized by the revised statutes (2 R. S. 199), to compel a defendant in a suit pending therein to make discovery of books, papers and documents in his possession or power, relating to the merits thereof, and which are necessary to the plaintiff to enable him to prepare for the trial. Gould v. Mc Carty, 1 Kernan, 575.

c. The superior court of the city of New York has the same powers to compe discovery by the parties to a suit pending in that court, which are conferred by the revised statutes on the supreme court (laws of 1841, p. 22). And where the defendant in an action pending in that court refused to comply with an order directing him to make discovery to enable the plaintiff to prepare for trial-held, that the court was authorized to strike out his answer and render judgment as though no answer to the complaint had been made. Ib. confirming Moore v. Pentz, 2 Sand. 664.

d. In Hoyt v. The American Exchange Bank (8 Pr. R., 89; 1 Duer, 652); Bosworth, J. said, it is important that the views which govern the action of the court in these proceedings should be distinctly stated, in order that the cases in which a discovery may be made, and the manner in which it will be ordered to be made, may be understood; and he stated the views of the court, as follow:

"If a party applies under the revised statutes, and makes a case provided for by them and the rules made under them, he has a right to a discovery. The court will exercise its discretion in specifying the manner in which it is to be made. In ordinary cases, and unless indispensable to protect the rights of the party apply. ing, it will not order an inspection to be given, or a deposit to be made.

"Sworn copies of books, entries, or papers and documents, to the discovery of which the applicant shows a right, will be ordered to be furnished.

"Enough must be stated to justify a presumption that entries, papers, or documents relating to a specified subject matter exist, are in the possession or control of the other party, and that they will tend to establish some claim or defence of the party asking for the discovery, and that they are not in his possession or under his control (Rule 9, Supreme Court).

"If in answer to the order, the opposite party denies fully and explicitly that there are any such entries, books, or papers under his control, that is an end of the application.

"He cannot be subjected to a fishing examination or investigation, with a view to ascertain the fact whether he has or has not books, papers, or documents which may contain evidence relating to the merits of the action, or of the defence, u nless he is examined as a witness, so that his deposition may be made evidence as well for as against him. (Code, s. 389.)

According to the practice of the court of chancery it was necessary to set forth

in the bill the particulars of which the discovery was sought. The opposite party was not required to answer vague and loose surmises. An averment that the matters as to which a discovery was sought were material to the defence, was not suffi cient. It was requisite to so state the case, that the court could see how they might be material on the trial of the suit at law.

"As soon as the answer was perfected, the defendant might move for costs, and to dissolve any injunction that had been granted staying proceedings at law until the discovery was made.

"It was almost a matter of course to grant both motions, unless before the bill was filed he had been applied to for the discovery and had refused to make it, in which case costs were not allowed to him. (2 Barb. Ch. Pr., 106, 111, 115).

"The practice in case of applications under the revised statutes, is deemed to be well settled. (18 Wend. 529; 2 Sand. 662).

"The applicant must state the particulars of which a discovery is sought, and enough to satisfy the court that it is in the power of the opposite party to furnish it, and that it is material for the support of the claim or defence of the applicant that it should be made.

"If the party answer distinctly and unevasively, that as to all or any of the papers or documents or entries of which a discovery is sought, that there are no such papers or documents in his possession or under his control, and that there are no entries relating to the specified subject matter, or except such as he has furnished copies of, the applicant must abide by the answer so far as the proceedings for a discovery are concerned. If dissatisfied with the result of the proceedings, he must examine him as a witness, or rely on such other evidence as he may be able to command.

"He has no right to have a general, inquisitorial examination of all the books, papers, and documents of his adversary, with a view to ascertain if perchance something cannot be found which will possibly aid him.

"If rules 8, 9, 10, and 11, are to be regarded as regulating the practice in applications under the revised statutes only, and as having no reference to proceedings under s. 388 of the code, then a discovery can be directed to be made in only one of the modes specified in rule 10.

"Giving permission to take a copy, is necessarily giving power to inspect, as a copy cannot be made without inspecting the book, paper, or document to be copied.

"The only discretion which the court can exercise, under this section of the code, is in determining whether it will order an inspection to be given at all. If it grants a discovery under this section, it has no discretion in directing the manner in which it is to be made. An inspection is to be given at all events, and the only alternatives that can be presented to the party against whom the motion is made, are, to either give a copy or submit to the inconvenience of allowing the petitioner to make a copy.

"If either party applies under the code, he should be required to make a case as strong and urgent as is deemed necessary to entitle him to a production and deposit of books, papers, and documents, instead of sworn copies. Neither reason, principle, nor policy, demands that a party's books and papers, or any part of them, should be submitted to the inspection of his adversary when the court would not order them to be deposited in order that they might be inspected. Such an order should be made only in those cases in which one for production and deposit would be granted, unless an inspection was ordered as a substitute for deposit, on the sole ground that a deposit and production would be a substantial inconvenience to the owner of the books, papers, and documents, and would be of no benefit to the applicant beyond that which an inspection would confer.

"Where the sworn copies furnished in obedience to an order for a discovery indicate that the discovery may not be complete, it is proper for the petitioner to apply for a further order based on the return and previous proceedings, or on them and further affidavits, for an order requiring the opposite party to show cause at a time to be named why sworn copies should not be furnished of such other entries, papers, or documents relating to the points as to which a discovery had been ordered, as the return and other papers may induce the court to believe to be in his possession or control; and unless the possession and control of such papers and documents, or the existence of such entries be explicitly and unequivocally denied, a peremptory order would be granted."

a. In an action on a book account for goods sold and delivered to defendant by C. and H., the assignors of the plaintiff; the defendant set up a counter-claim, and an order had been obtained calling on him to deliver particulars thereof; he then moved at chambers on petition, "that plaintiff be ordered to produce and discover to defendant the day books, journals, ledgers, lumber book, memorandum books, and receipts, of C. and H.," and that defendant may be at liberty to inspect same at all reasonable times, and that he, defendant, could not give dates and items of his counter-claim without such inspection. The plaintiff admitted possession of the books referred to. The court ordered plaintiff to deliver sworn copies of the entries of the credits of the defendant, on the books in the possession of the plaintiff. Brevoort v. Warner, 8 Pr. R., 321. And per Hand, J., "Section 388 extends only to inspection (which implies production), and a copy, and not to discovery. * The party can

now be examined in the same suit. And although it is provided that he shall be subject to the same rules of examination as other witnesses, I have no doubt the old rules relating to discovery apply, and I think a mere discovery, properly so called, as to books, papers, and documents, should be in no other way than an examination of the party. There is a mighty difference between simply producing an instrument and producing it in answer to a bill of discovery, where the defendant has an opportunity of accompanying the production with a statement of every thing which is necessary to protect him from the consequences.' Lord Eldon in Princess of Wales v. Earl of Liverpool (1 Swanst., 120). This proposition is self-evident. It is considered irregular to permit an adversary to call for an isolated fact. William v. Harden (1 Barb. Ch. R., 298) Jewett v. Belden (11 Paige, 618). There is no provision making the affidavit of the opposing party, on a motion to compel discovery under the revised statutes, or the discovery itself, evidence for him. The proceeding is only adapted to the production of specified documents, &c. Under the former equity system, by a bill of discovery, a full discovery could have been required. And the court, it was said, might compel a disclosure of what the party had said respecting his case, and could even wring his conscience to disclose his belief,-all he knows, believes, and thinks, respecting his own case. Lord Brougham in Bolton v. Corp. of Liverpool (1 My. and K., 88). * But neither at law nor in equity has a party a right to make a general search and examination for evidence among the books and papers of his adversary; what Earl, J., in Galsworthy v. Norman (9 Eng. L, and E. R., 329), calls an indefinite search. Such an order might lead to great abuses, and be a judicial sanction to a dangerous, vexatious, and impertinent meddling with the private business and affairs of another. In this case,

*

I think the defendant is entitled to these entries. But, until he shows more than he has on this motion, he cannot claim to inspect, or have copies of the charges against him. A party has a right to know the case of his opponent, but not the evidence by which that case is to be supported, Llewelyn v. Badely (1 Hare, 527.)" Ib.

At what stage of the action the order may be made.

b. The order may be made in any stage of the action (Miller v. Mather, 5 Pr. R., 160. It was there made and enforced before issue.) To enable a defendant to make his defence (Stanton v. Del. Mut. Ins. Co., 2 Sand., 662; 2 Code Rep., 83; Powers v. Elmendorf, 2 Code Rep., 44; 4 Pr. R., 60; Gelston v. Marshall, 6 ib.,. 398), or a plaintiff to reply or prepare for trial (ib.); but it is doubtful if the order would be granted before service of a complaint in an action for libel, and to enable the plaintiff to frame his complaint (Keeler v. Dusenbury, 1 Duer, 660); and where the justice of the case requires it, the court will order the discovery of papers, &c., pending a trial before referees. Mechanics' Bk. v. James, 2 Code Rep., 46.

Who may make the order.

a. The power to order the production of books, &c., under this section, is limited to the court or a justice thereof, whether exercised under the code or the revised statutes. A referee cannot make the order (Frazer v. Phelps, 3 Sand., 741; 1 Code, Rep. N. S. 214), unless, indeed, provision to that effect is contained in the order of reference.