DUVALL v. THE FARMERS' BANK. A petition for the production of books and papers to be used on a trial at law, must give a sufficient description of such documentary evidence. THIS petition was filed on the 11th of October, 1830, by Grafton B. Duvall against The President, Directors and Company of the Farmers' Bank of Maryland. The petition states, on oath, that the petitioner had been sued by the defendant in Anne Arundel County Court, on two several promissory notes, endorsed by him and a certain Richard Duvall, and drawn by the late Lewis Duvall, that those suits stand for trial at the next term of that court; that the books, writings and papers of the said bank now in its possession or power, contain material and necessary evidence; and that he cannot safely proceed to the trial of those cases without the benefit of the said testimony. The petitioner tor or administrator in full acknowledged and recorded in manner and time as prescribed for acknowledging and recording conveyances of lands by way of mortgage, shall have the same effect as a release to the grantor. 1833, ch. 181, s. 1. And moreover, that it shall not be necessary in any cause of foreclosure or sale of mortgaged property, to make the heirs of the mortgagee parties to the same; but that any decree upon any bill for foreclosure or sale aforesaid, filed by the executor or administrator of the mortgagee, shall have the same effect as if the said heirs were parties as aforesaid. 1833, ch. 283. How far these acts of assembly may have made any material change in the nature of the estate of the heirs of the mortgagee; and their right to have a foreclosure in opposition to the claims of the widow and next of kin upon the fund considered as personalty gathered into the hands of the executor or administrator; or in what manner they operate upon the interests of his heirs or devisees in general; or upon any such peculiar interest as has arisen in this case; or upon the title of a purchaser under a decree for a sale, remains to be determined. For it may be made a question, how far the general assembly can, constitutionally, change the nature of an estate, or dispense with the presence of any one as a party to a suit so as, in effect, to deprive him of his property; or to divest him, arbitrarily, and without compensation, of any pecuniary advantage to which, according to the confessedly legal terms of his contract, he would be entitled. According to the law, as well settled before and at the time when these acts were passed, the mortgagor could not recover in ejectment unless he proved, that the mortgage had been satisfied previous to the bringing of his action; or there was a sufficient foundation to presume such a re-conveyance as extinguished the mortgage. Powell Mortg. 397; Beal v. Harwood, 2 H. & J. 172. But satisfaction must be shewn by deed or the presumption of a deed; otherwise a legal title might, contrary to the spirit of the law, rest on mere parol proof not recorded, nor sanctioned by circumstances and lapse of time. The proceedings in equity are properly conclusive against the executor or administrator; but upon what principle can they be made to operate against the holder of the legal estate who is no party to them? Moore v. Plymouth, 5 Com. Law Rep. 232. therefore prayed, that the bank might be ordered to produce either the original books, writings, and papers, or copies of such parts of them, certified by a justice of the peace, as contain evidence pertinent to the issue or relative to the matters in dispute between the parties. 11th October, 1830.-BLAND, Chancellor.-It is required and Decreed, that the President, Directors and Company of the Farmers' Bank of Maryland, on or before the first day of the next term of Anne Arundel County Court, produce, on oath, by the cashier of the said institution, either the original books, writings, or papers, or copies thereof, certified by a justice of the peace, as prayed; provided, that a copy of this order, together with a copy of the said petition, be served on the president or cashier of the said institution on or before the 15th instant; and provided also, that any cause shewn against the execution of this decree may be heard on the 21st instant. The bank, by its answer, filed on the 12th of October, 1830, shewed cause and insisted, that, before it could be required to produce their books and papers as ordered, the petitioner should specify the particular extract, or writings, or paper which he supposes would be pertinent to the issue in the said cases, without which it would be impossible for it to comply with the order; and it alleged, that it was not aware of any paper being in its possession which would be of service to the petitioner in defending the said suits; or indeed of the defence which he intended to make. 23d October, 1830.-BLAND, Chancellor.-This case standing ready for hearing, and having been submitted by the plaintiff on the petition and answer alone, the proceedings were read and considered. This is a proceeding under the special provisions of the act of assembly, which authorizes this court to require the production of books and papers relative to the matter in issue on a bill instituted in this court, or on the trial of any action at law. (a) In all such cases it should appear, that the applicant has an interest in the document for that special purpose; (b) and the petition should, with some reasonable degree of certainty, designate the books and papers wanted, if practicable, by their marks, number and names; and also should specify the facts expected to be proved by them at (a) 1798, ch. 84; McMechen v. McLaughlin, 4 H. & McH. 166.—(b) Wigram on Discovery, 199; Calvert on Parties, 10. the trial in the court of common law. This is a proceeding which can only be regarded as one of the modes whereby a party may obtain testimony to sustain his case; and therefore, as on all similar applications, the granting of which may be attended with delay, where the propriety of granting it does not sufficiently appear from the nature of the case; or the documentary evidence, called for, is not described in the proceedings of the suit in which the application is made, the petition should be at least as specially descriptive of the evidence and proof of facts, expected to be obtained from the books and papers required, as in an affidavit, stating the nature and materiality of the proof expected to be obtained from an absent witness, without whose testimony, a party alleges, that he cannot safely go to trial, and, therefore moves for a continuance of his case in a court of common law. The cases are so strikingly analogous, that the rules and principles, with few exceptions, applicable to one class of cases, may be well applied to the other. (c) In this instance, the petition is entirely too indefinite and general. Whereupon, it is Decreed, that, the cause shewn being deemed sufficient, the decree of the 11th instant be rescinded; and the petition be dismissed with costs to be taxed by the register. (c) 1 Vern. 334; Jessup v. Duport, Barnar. 192; Steward v. The East India Company, 9 Mod. 387; Smith v. Northumberland, 1 Cox, 363; Burton v. Neville, 2 Cox, 242; Oldham v. Carleton, 4 Bro. C. C. 88; Rougemont v. The Royal Exchange, &c. 7 Ves. 304; The Princess of Wales v. Liverpool, 1 Swan. 119; Jones . Lewis, 1 Cond. Cha. Rep. 438; Mendizabel v. Machado, 1 Cond. Cha. Rep. 553. INDEX. ABATEMENT. A petition by some of several infants 440. ACCOUNT. A decree to account with special direc- A commission to state accounts, ordered Decree that tenants in common of a ferry, ACTS OF ASSEMBLY. As to private acts, some evidence may, The meaning of an act of assembly may A private act, giving the Chancellor au- No fact can be assumed by the legislature 676. An act of assembly may be declared void, A marriage originally valid between then An act giving authority to mortgage the The acts in relation to proceedings against ALIMONY. The nature of alimony, and the cases ANSWER. The exceptions to an answer heard and A defendant may sufficiently answer by Upon an answer of an infant or lunatic, 222. An answer to the same facts over-rules the plea.-The Bank v. Dugan, 257. An answer may, by consent, be received An answer on affirmation, before the re- A plaintiff not allowed to file new excep- tions, but must have the new answer APPEAL. A decree of the Court of Appeals sent to Where there is a reasonable doubt, in a ARBITRATION. No direction in a will, nor any agreement Upon an award, returned under an order This court never compels the performance ATTACHMENT. A party may be arrested any where, and It is in most cases, better to decide on A person may be ordered to remove an A party taken under an attachment to AUDITOR. The auditor may be ordered to proceed Auditor's fees under the provincial go- Report under a decretal order to account. An exceptant ordered to pay a fine, for A commission to account with special A trustee having the profits of the estate 176. A witness or party, ordered to account, may be summoned, and compelled to In a creditor's suit, the auditor's report |