McGibboney v. . Mills

| N.C. | Dec 5, 1851

The case was this: An action of debt was brought by plaintiff against defendant, as executor of David McGibboney, returnable to Guilford Superior Court of Law, at Fall Term, 1851. Plaintiff declared upon a bond, executed by defendant's testator. At the same term defendant craved "oyer," and filed the following affidavit: "James N. Mills, defendant, makes oath that he is advised and believes that the bond, the alleged foundation of this suit, is spurious; that it is, if so, likely the work of the plaintiff, the son of the testator, who was well acquainted with the form and character of his father's handwriting, and that to detect successfully the forgery, if it really is a forgery, it is, he is advised, material and necessary that the bond sued on should be filed, so as to give witnesses, before being examined as to the writing and signature, an opportunity of examining the same." Another affidavit to the same purport was made by a party interested.

Upon these affidavits the court made the following order: "On (164) affidavits filed, it is ordered by the court that the plaintiff file with the clerk of this court, for the inspection of the defendant, the bond sued on, from 1 January, 1852, to 15 January, 1852."

From this order the plaintiff, by leave of the court, appealed. The order in this case was made under the acts of the General Assembly of 1821 and 1828, Rev. Stat., ch. 30, sec. 86. The action in which it was made was brought upon a bond or alleged bond of the defendant's testator, and defendant filed an affidavit stating that the alleged bond was a forgery, and moved the court for an order upon the plaintiff to file the paper-writing with the clerk of the court, for the inspection of the defendant. The order was made, and from it the plaintiff appealed.

If this case does not come within the statute, we are at a loss to conceive one that does. It gives to the court the power, upon a proper motion, to compel the parties to a suit to produce books or writings in their possession or power and 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 proceedings in chancery."Scarborough v. Tunnell, 41 N.C. 103" court="N.C." date_filed="1849-06-05" href="https://app.midpage.ai/document/scarborough-v--tunnell-3679004?utm_source=webapp" opinion_id="3679004">41 N.C. 103, is decisive of the power of the court of chancery to make such an order as the one in this case. The bill was filed to set aside a deed under which the defendant claimed the property in dispute, upon the ground of forgery, which was denied by the answer. The Court declares that it has always been the course in this State to order the instrument in such cases to be brought into court for the purpose of inspection. In Cooper v. Cooper, 17 N.C. (165) 298, "Clearly," says the Court, "the inspection of the instrument is indispensable to the plaintiff's preparation for the hearing, as it is impossible, without the deed, that he can give evidence as to the handwriting and various other matters tending to show that the instrument is not genuine." Here the defense is that the instrument on which the action is brought is a forgery. How is it possible for the defendant to support his plea, that it is not the deed of his testator, unless he can have free access to it, both for his own inspection and that of his witnesses? Such testimony is pertinent to the issue the jury have to try. This, too, is the course of the English courts of chancery. Beckford v.Beckford, 16 Ves., 438.

There is no error in the interlocutory order of the court below.

PER CURIAM. Affirmed.

Cited: Branson v. Fentress, post, 166; Long v. Oxford, 104 N.C. 409;Bank v. McArthur, 165 N.C. 375; Mica Co. v. Express Co., 182 N.C. 672.