Elder v. Executors of Bogardus , 1 Edm. Sel. Cas. 110 ( 1845 )


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  • The Circuit Judge decided that the person from whom a discovery is sought is not allowed to be the judge whether the document sought to be discovered is material or not, which would be the effect, if his affidavit that it contained no entry relative to the matters in controversy, were held to be a sufficient objection to the application. And that the fact suggested in regard to the other book, viz.: that it contained private entries, was perhaps one of the best reasons why the discovery should be allowed. The intention of the statute was to discover the truth, and it would not do to allow that intention to be defeated by the party taking extraordinary pains to conceal the evidence of it.

    The suggestion that the book contained other private entries,, in no way connected with this suit, was entitled to weight, for while the plaintiff had a right to inspect so much of the book as related to the matters involved in this suit, the defendant had an equal right to have other private matters protected from the gaze of idle or impertinent curiosity.

    He therefore ordered the discovery sought for, but the private memorandum book to be first submitted to his examination, in order that such parts as were purely private, and unconnected with this suit, should be sealed up.

    [At the June Special Term of the Supreme Court (Jewett, J., presiding); the order of the circuit judge was confirmed, but modified so as to permit the defendant to seal up the parts of the book purely private, etc.]

Document Info

Citation Numbers: 1 Edm. Sel. Cas. 110

Filed Date: 5/10/1845

Precedential Status: Precedential

Modified Date: 2/5/2022