Fuller v. . McMillan , 44 N.C. 206 ( 1853 )

At Fall Term, 1852, the defendant filed his affidavit (under the 86th section of the 31st chapter, Revised Statutes), stating that a certain letter written to him by the plaintiff, and by him afterwards returned to the plaintiff or his clerk, was material and necessary to his defense to the action, as containing the terms of the contract declared on by the plaintiff; and accordingly an order was made directing the plaintiff to produce upon the trial the said letter or a copy thereof, or show cause to the contrary. Afterwards, at the same term of the court, the plaintiff filed his affidavit, in which he admitted that he wrote to the defendant the letter in question, but stated that to the best of his recollection, he never saw it after it was mailed; that he had made diligent search for it, intending himself to rely on its contents for the maintaining of his action, but that he could not find it, and that he had preserved no copy of it; and he then stated substantially his recollection of its contents.

Upon consideration of the premises, his Honor was of opinion that the rule against the plaintiff should be made absolute, and accordingly entered judgment of nonsuit, from which the plaintiff appealed to the Supreme Court. We are of opinion that his Honor erred in directing the judgment of nonsuit. The order under which the plaintiff was required to produce upon the trial the letter in question, was (208) founded upon the 86th section of the 31st chapter of the Revised Statutes. That section declares that courts of law "shall have full power, in the trial of actions before them, on motion and due notice thereof being given, to require the parties 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; and if a plaintiff shall fail to comply with such order to produce books or writings, or shall not satisfactorily account for such failure, it shall be lawful for such courts respectively, on motion, to give the like judgment for the defendant as in cases of nonsuit; and if a defendant shall fail to comply with such order to produce books or writings, or shall not satisfactorily account for such failure, it shall be lawful for such courts respectively, on motion as aforesaid, to give judgment against him or her by default." Supposing that the court had the power, upon the defendant's affidavit, to make the order requiring the plaintiff to produce the letter in question (and we think it had), the act itself shows that he was not required to perform an impossibility, upon pain of losing his suit. He might fail to comply with the order, and yet if he could give a satisfactory account of the cause of such failure, he was to be excused. We cannot well imagine how a more satisfactory account could have been given than was done in this case. Assuming that the letter came to the hands of the plaintiff, which is not certain, he swears that he has no recollection of having ever seen it since he wrote and dispatched it to the defendant; that he has not knowingly or wilfully destroyed it; that after a most diligent search — a search stimulated by the desire of using it as evidence for himself — he cannot find it; that he does not believe that he has it in his possession, and that he has no copy of it. He then does the best he can, by stating his recollection of its contents. We have no idea that a Court of Chancery would, under such circumstances, have insisted upon the production of the paper (Adam's Eq., 14; 3 Dan. Chan. Pr., 2049); and the power of a Court of Law is expressly limited by that of the Court of Chancery.

(209) The judgment must be reversed, which will be certified to the Superior Court of Law for Cumberland County, to the end that the plaintiff may proceed in his action.

PER CURIAM. Judgment reversed.

Cited: Ward v. Simmons, 46 N.C. 406; Justice v. Bank, 83 N.C. 8.