CHAPTER XX.

PRODUCTION AND INSPECTION OF DOCUMENTS.

§ 370. In general.

The question of the production of documents, in the absence of statute, has been shorn of much of its importance on account of statutes, in most jurisdictions, regulating the right of a party to compel an adverse party to produce documents, either essential to framing the pleadings in the cause of action or to the defense of the party seeking it, or on the hearing. Previous to the final hearing the court only orders the production of books and papers upon two principles,-security pending litigation, and discovery or inspection for the purposes of the pending suit. The court will not make an order which will amount to an anticipation of the final decree, by giving the complainant any other advantages from the production than those above mentioned. It is the practice to order deeds and other papers contested as false and fraudulent to be brought into court for inspection. This will be done, under special circumstances, although a deed sought to be impeached is in the custody of a purchaser for a valuable consideration. The power to compel the production of books and papers should be exercised with caution, and the party invoking it must designate with reasonable certainty the books and papers required, and the facts ex

11 Barbour, Ch. Pr. 101; Watts v. Lawrence, 3 Paige (N. Y.) 159; Rogert v. Bogert, 2 Edw. Ch. (N. Y.) 404; Eager v. Wiswall, 2 Paige (N. Y.) 369.

2 Lingen v. Simpson, 6 Madd. 290; 1 Barbour, Ch. Pr. 229; Watts v. Lawrence, 3 Paige (N. Y.) 159.

$1 Barbour, Ch. Pr. 234; Fencott v. Clarke, 6 Sim. 8; Kennedy v. Green, 6 Sim. 6; Apthorpe v. Comstock, Hopk. Ch. (N. Y.) 144.

4 Kennedy v. Green, 6 Sim. 6; Beckford v. Wildman, 16 Ves. 438.

pected to be shown by them." In respect of documents belonging to the complainant which may be material to him on a reference, and which are withheld from him by the defendant, the court will order their restoration, with a provision that no use be made of the order, or the fact of the restoration, or any cireumstance connected with it, by way of evidence in the cause. § 371. Production by defendant.

Where the answer admits that the defendant is in possession of documents, the court will, upon motion or petition, founded upon the admission in the answer, and upon evidence that the complainant has a direct and immediate interest in such deeds or documents, grant an order for their production. This is a special motion, and notice must be given of it. The motion

Williams v. Williams, 1 Md. Ch. 199, Williams v. Savage Mfg. Co., 3 Md. Ch. 418.

6 Carpenter v. Benson, 4 Sandf. Ch. (N. Y.) 496. See, for power of court to order production of documents, Lawless v Fleming, 56 N. J. Eq. 815, 40 Atl. 638; Victor G. Bloede Co. v. Bancroft & Sons Co.. 98 Fed. 175, discussing practice in federal courts, and reviewing the authorities; United States v National Lead Co., 75 Fed. 94; Owyhee Land & Irrigation Co. v. Tautphaus, 109 Fed. 547.

7 Bischoffsheim v. Brown, 29 Fed. 341; 1 Barbour, Ch. Pr. 229; Watson v.. Renwick, 4 Johns. Ch. (N. Y. 384, Eager v. Wiswall, 2 Paige (N. Y.) 369. The question (it has been said) may arise under three different aspects of an answer: (1) The documents and papers may not be referred to in the answer, but they may be admitted to be in the defendant's possession. (2) They may be referred to in the answer, and not be admitted to be in the defendant's possession. (3) They may be in part set forth or shortly stated in the answer as in the defendant's possession, and referred to in the answer for greater certainty, when produced; or, according to the common form, "as will appear by the said documents and papers, to which, for greater certainty, the defendant craves leave to refer." In the first case, the question whether the defendant shall produce the documents and pa pers or not is determined by considering whether the documents do or do not relate to the complainant's title. If they relate solely to the defendant's title, they will not be required to be produced. If they relate to the complainant's title, they will In the second case, the court cannot order the production of the documents and papers unless they respect the complainant's title, and unless, although stated not to be in the possession of the defendant, they happen to be in the hands of

8

must be founded on an admission in the answer, and, in order to obtain such an admission, leave to amend the bill will be given when requisite, although the cause is at issue. The complainant is not entitled, as a matter of right, to the discovery or production of any documents or papers called for by the bill, except those which appertain to his own case, or the title made by his bill. Documents and papers which wholly and solely respect the defendant's title or defense, he is not compellable by his answer to discover or produce." To entitle the complainant, before hearing, or issue joined, to call for the inspection of documents, it is not sufficient that there has been a general reference to them in the answer. They must be described with reasonable certainty in the answer, or in the schedule annexed to it, so as to be considered by reference as incorporated in the answer, which must admit them to be in the possession or power of the defendant, and it must appear that the complainant has an interest in the production of the books, papers, or documents sought after.10 If the answer offers to produce the deed or documents for the inspection of the complainant, an order for their production, and giving leave to the complainant to inspect them, will be made, upon reading the

some person over whom the defendant evidently has a control. In the third case, it seems that although the documents and papers solely respect the defendant's title, yet the court will require their production; for the defendant has, by his mode of referring to them, made them a part of his answer. Story, Eq. Pl. § 859; Hardman v. Ellames, 2 Mylne & K. 756; Adams v. Fisher, 3 Mylne & C. 526. See Vermont Farm Machine Co. v. Batchelder, 68 Vt. 430, 35 Atl. 378; Robbins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11,880.

8 Erskine v. Bize, 2 Cox, 226; 1 Barbour, Ch. Pr. 229; Barnett v. Noble, 1 Jac. & W. 227.

Story, Eq. Pl. § 858; Champernoon v. Totness, 2 Atk. 112; Wilson v. Webber, 2 Gray (Mass.) 558; Haskell v. Haskell, 3 Cush. (Mass.) 542; Vermont Farm Machine Co. v. Batchelder, 68 Vt. 430, 35 Atl. 378. 101 Barbour, Ch. Pr. 230; Watson v. Renwick, 4 Johns. Ch. (N. Y.) 381; Gardiner v. Mason, 4 Brown, Ch. 479; Smith v. Northumberland, 1 Cox, 363; Princess of Wales v. Earl of Liverpool, 1 Swanst. 114; Robbins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11,880.

(401)

admission and upon notice.11 A voluntary offer of this nature is considered as dispensing with some of the safeguards which the practice affords the defendant, but an offer to produce a deed as the court shall direct, or if the court shall require it, is not a voluntary, but a qualified, offer. It is merely a submission to the discretion of the court, and only binds the party to produce the paper if the court should think it necessary, and upon such a qualified offer the court will enter fully into the merits of the question as to the right of inspection.12 A reference to papers in the answer is not sufficient without an admission that they are in the custody or power of the defendant.13 Where no allusion is made in the answer to papers, though referred to in the bill, the complainant is not entitled by summary motion, based on the allegations of the bill, or on his proofs, to call for a disclosure of those documents. He should except to the answer for failing to reply to his allegation of their existence and possession by the defendant.14 If the defendant merely states the effect of documents admitted to be in his possession, yet for greater certainty craves leave to refer to them when produced, the complainant is entitled to move for their production, though the answer positively states that they form part of the defendant's title and in no way assist or make out the title of the complainant;15 but if no order for production is obtained, and the deed itself is not produced upon the hearing, only the substance of such deed as it is stated in the answer is considered before the court as a part of the pleadings in the

111 Barbour, Ch. Pr. 229; 2 Fowler, Exch. Pr. 54.

12 Cooper, Eq. Pl. 317; 1 Barbour, Ch. Pr. 229; Atkyns v. Wright, 14 Ves. 211; Stanhope v. Roberts, 2 Atk. 213.

181 Barbour, Ch. Pr. 230. An answer only admitting the execution of an instrument craving leave to refer to it when produced is not a sufficient ground to apply to the court for its production, the answer not admitting it to be in the possession or power of the defendant. Story, Eq. Pl. § 860; Dawson v. Clarke, 18 Ves. 247.

14 Robbins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11,880, citing Story, Eq. Pl. §§ 856-860.

15 Hardman v. Ellames, 2 Mylne & K. 732; 1 Barbour, Ch. Pr. 231.

suit.16 Concerning the kind of possession which will entitle the court to order the defendant to produce the document, it has been held that it must be a present, and not a past, possession.17 If the documents are within the power or under the control of the defendant, he must produce them within a reasonable time, although they are in the hands of his agent in a foreign country.18 An admission of the joint ownership and joint possession of a document with another person is not sufficient. 19 With regard to the nature of the interest which will entitle him to an order for the production of a deed or document, it is laid down as a general rule that, if the applicant has what is termed a common interest in the instrument with the other party, he is entitled to its production.20 If, however, the defendant has in his possession a deed relating to the title of both parties, production of it will be ordered. So, if the complainant has a direct interest in deeds in the defendant's possession, and they do not relate solely to any separate and independent title of the defendant, they will be ordered to be produced.21 The production of documents by the defendant, on motion, for the purpose of aiding the complainant in sustaining his suit, is in the nature of an exception to the defendant's answer; and, where an exception would not be sustained if the bill called

18 Roosevelt v. Ellithorp, 10 Paige (N. Y.) 415.

171 Barbour, Ch. Pr. 231; Heeman v. Midland, 4 Madd. 391.

18 Story, Eq. Pl. § 859; 1 Barbour, Ch. Pr. 231; Eager v. Wiswall, 2 Paige (N. Y.) 369; Walburn v. Ingilby, 1 Mylne & K. 61; Hornby V. Pemberton, Mos. 57; McCann v. Beere, 1 Hogan, 129; Hardman v. Ellames, 2 Mylne & K. 756.

19 Reid v. Langlois, 1 Macn. & G. 627; Lopez v. Deacon, 6 Beav. 254. 201 Barbour, Ch. Pr. 232; Burton v. Neville, 2 Cox, 242; Smith v. Northumberland, 1 Cox, 363; Inman v. Hodgson, 1 Younge & J. 28; Salisbury v. Cecil, 1 Cox, 277; Kelly v. Eckford, 5 Paige (N. Y.) 548; Pickering v. Rigby, 18 Ves. 484.

211 Barbour, Ch. Pr. 232; Bolton v. Corporation of Liverpool, 3 Sim. 489; Attorney General v. Ellison, 4 Sim. 238. See, as to title or interest of complainant, Shaftesbury v. Arrowsmith, 4 Ves. 66; Shaw v. Shaw, 12 Price, 163; Shehan v. Glynn, 2 Molloy, 387; Wilson v. Forster McClel. & Y. 274; Burrell v. Nicholson, 1 Mylne & K. 680; Newton v Beresford, 1 Younge, 377.