Henry Frank v. George C. Frank's Administrator

Henry Frank v. George C. Frank's Administrator. The Court will not compel the production of a promissory note by a plaintiff before trial for the inspection of the defendant, although he is an administrator, on an affidavit submitted by him, alleging grounds to suspect its genuineness, and that the plaintiff had refused to allow the defendant to see it. This was an,action of assumpsit on three promissory notes, purporting to be made by George C. Frank, payable to the order of Henry Frank, amounting, in the aggregate, to six thousand dollars. The case was at issue and on the list for trial; and, at an early day in the term, the defendant filed an affidavit that he had been intimately acquainted with George C. Frank for thirty years before his death, and, for the last five or six years of his life, had transacted much business for him, and was therefore- conversant with the relations existing between him and the plaintiff. That he never knew or had heard of any indebtedness of the deceased to the plaintiff, or of the existence of the promissory notes declared on, until after the institution of this case; and he was informed by the heirs at law of the deceased that they had never heard, of them until the commencement of this suit. That the deceased, for several years preceding his death, was infirm of body and imbecile in mind; and that he made diligent inquiry, and, from the information which he had received, he was of opinion that a strong suspicion attached to the making and signature of the said promissory notes; but he had not as yet been enabled to obtain a view of them, as the plaintiff had refused, upon his request, to exhibit them to him; and that; to enable him to discharge his duty, and to protect and defend the estate of the deceased committed to his administration, it was highly necessary and important that he should be allowed a reasonable opportunity for the examination and inspection of the said notes before the trial of the case. And on this affidavit he applied for and obtained a rule upon the plaintiff to show cause wherefore the said promissory notes should not be produced in Court and deposited with the prothonotary, for the inspection of the defendant, a reasonable time before trial. Patterson, for the plaintiff in the rule: There is every reason to suspect the genuineness of these notes, and the refusal even to show them to an administrator of whom payment is demanded on them, is itself a pregnant circumstance to justify that suspicion; and, although the application was a novel one in this court, it was in conformity with the practice of courts organized and constituted as this is elsewhere; and he had, therefore, no doubt of the power and authority of the Court to grant the application and to enforce the production of the notes under the circumstances, and for the purposes stated in the affidavit. Revised Code, 317,382; 3 Dan. Ch. Pl. & Pr. 2038, 2048, 2057, 2070; 1 Hopk. Ch. Rep. 143; 4 Taunt. 157; 8 Eng. C. L. R. 281; 1 Tidd Pr. 489, 586. McCaulley, for defendant in the rule: Most of the cases cited are decisions in chancery, and are not authority here, though the application is on what is termed the equity side of this Court. In all the cases at common law I have found but one solitary ease 'in which a similar application has been made, and in that case it was refused. 8 Eng. C. L. R. 376. [MAJORITY — By the Court:] By the Court: We discharge the rule, and should not have laid it, except to afford the party applying for it an opportunity to show authority for it, if he could. But whatever may be the suspicions attaching to the conduct of the plaintiff, as alleged in the affidavit, we have no power to command the production of these notes for the purposes stated, or for any other purpose, in this stage of the case; and we have, therefore, no hesitation in dismissing it.