McGibboney v. Mills, 35 N.C. 163, 13 Ired. 163 (1851)

Dec. 1851 · Supreme Court of North Carolina

35 N.C. 163, 13 Ired. 163

JOHN McGIBBONEY vs. JAMES N. MILLS, EX’OR, &c.

In an action upon a bond, tbe Court, on affidavit that tbe bond is believed tp be a forgery, may, at the appearance term, under the act, Rev. Stat, ch. 81. sec. 86, order tbe plaintiff to file the instrument for such time as the Court may think proper, ia the Clerk’s Office, for the inspection of the defendant and others.

The cases of Scarborough v Tunnell, 6 Ire. Eq. 103, and Cooper v Cooper, 2 Dev. Eq. 298, cited and approved.

Appeal from an interlocutory order made at tbe Superior Court of Law of Guilford County, at the Fall Term, 1851, his Honor Judge Ellis presiding.

The case was this ': an action of debt was brought by the plaintiff against the defendant, as executor of David Mc-Gibboney, returnable to Guilford Superior Court of Law, at the Fall Term, 1851. The plaintiff declared upon a bond, executed by the defendant’s testator. At the same term the 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 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 the 1st day of January, 1852, to the 15th of January, 1852.

From this order, the plaintiff, by leave of the Court, appealed.'

Kerr, for the plaintiff.

Gilmer and Miller, for the defendant.

Nash, J.

The order in this case was made under the acts of the General Assembly of ’21 and ’28, 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 the 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 pro•duce the same, by the ordinary rules of proceedings in •Chancery.” The case of Scarboro v Tunnell, 6 Ire. Eq. 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 claim- ■ ed 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 and Cooper, 2 Dev. Eq. 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 defence 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 Vez. 438.

There is no error in the interlocutory order of the Court . below, which will be certified.

Per Curum. Ordered to be certified accordingly.