15 Ga. 486 | Ga. | 1854
By the Court.
delivering the opinion.
Apart of the sixth section of the Judiciary Act of 1799, is in these words : “ The said Courts shall have power, on the 'trial of causes cognizable before them, . respectively, on ten days’ notice, and proof thereof being previously given to the opposite party, or his, her or their attorney, on motion to require either party to produce books and other writings, in his, her or their possession, power or custody, which shall contain evidence pertinent to the cause in question, under circumstances where such party might be compelled to produce the same, by the ordinary rules of proceeding in Equity; and if the plaintiff shall fail or refuse to comply with such order, it shall be lawful for the Court-, on motion, to give judgment against such plaintiff, as in cases of non-suit; and if the defendant
And the question is, at what time may the motion' to- produce, which is by these words1 given, consequent upon a notice, be made ?
The Courts, it is clear, have ££ power” to hear this motion, on the instant of the expiration of the ten days; for they may, at that instant, ££ require either party to produce”, &e. It would seem to follow, that the motion may be made, at least as early as at that instant, for a Court can hardly be said to- have power to hear a motion, until after some party has acquired a right to-make the motion.
Ought the Courts to hear the motion, at a period so early as this? What-is the object to be accomplished? It is the same object which might be accomplished by a proceeding in Equity —by a bill. What object does a bill accomplish ? It givestho plaintiif in it, the benefit of inspecting and copying the writing sought for, at the time of the filing of the answer; and after-wards, at the time of the hearing, it gives him the benefit of using the writing itself, as evidence. (Adams’ Equity, 12, 13, 195.)
In Equity, then, the plaintiff obtains a view of the writing, and the right to a copy of it, before the hearing—before even being compelled to join issue. The advantage of this is too* obvious to need explanation. The object of the Statute, is to give the same benefit at Law, which is given in Equity. This object cannot be accomplished, unless the motion consequent upon the notice, may be made at a time before the trial—at such a time before the trial, as will enable the movant to obtain the same benefit from inspecting and copying the document produced, that he would have been able to obtain from inspecting and copying it upon the coming in of the answer, had he chosen to proceed in Equity.
And so thinking, we are obliged to say we consider the Court below to have been wrong, in not requiring the notice to be responded to, before requiring the 'parties giving the notice,, to announce themselves ready for trial.
Did the declaration contain a cause of action ? Should the demurrer to it have been sustained ? We think it should have been.
What is the law, on this point, is so well stated and proved by a late writer on Contracts—Addison—that I shall be excused for preferring his words to my own.
Now it is not alleged in the declaration, that the defendant, Paco, the depositary of Mary Worthy’s money, promised the plaintiffs, the trustees of the college, to=pay over the money to them or to hold it for their use; or that he gave to them, and they received from him, credit for the money; or, indeed, that
It follows, most clearly, that the trustees of the college had no right of action against Pace. In so deciding, therefore, the Court below decided correctly.