
    Keeler v. Dusenbury & Ogden.
    January, 1853.
    The examination, of parties as witnesses, or the production of their books, cannot be compelled, under the provisions of the Revised Statutes, to perpetuate testimony.
    Where no complaint has been filed, and the nature of the relief sought by the action is not shown by affidavit, the merits of the case cannot appear, and the court in its discretion should not compel the production of books.
    The summons in this case was for general relief. The defendants appeared, but no complaint was served. The plaintiff applied under the provisions of the Eevised Statutes, to perpetuate testimony (Part Sd, ch. 7, Tit. 3, art. 5), for an order and summons to examine the defendants, and to compel them to produce certain books and papers in their possession, containing reports and entries concerning the plaintiff’s standing and credit as a merchant. On the day fixed for the examinatión of the defendants under the summons and order, obj ection was made by the counsel for the defendants, that their examination as witnesses or the production of their books could not be compelled by the proceedings which the plaintiff had taken for that purpose, viz. under the provisions of the Eevised Statutes to perpetuate testimony.
   Emmet, J.

I have looked into this question, and" am of opinion that "the objection is well taken. The Code, § 390, provides'for the examination of a party as a witness, either at the trial, or conditionally, or upon commission; and expressly declares (§ 389), that no examination of a party shall be had on behalf of the adverse party, except in one of those modes. The present proceeding is not under the Code, but expressly under the provisions of the Revised Statutes to perpetuate testimony, which never contemplated the examination of a party. The examination of parties as witnesses was not then known to the law.

¡Neither do those provisions of the Revised Statutes give power to compel a party to produce his books, &c. That object can only be attained under Tit. 3d, ch. 1, part 3, § 30, &c., of the Revised Statutes, or under § 388 of the Code.

Both those enactments leave it to the discretion of the court to compel such production, and both make it a condition that the books, &c., required should contain evidence relating to the merits of the case.

If this application had been made under either of these acts, I do not think it should be granted. It is not easy to conceive what the merits of an action may be, or, indeed, that it can have any merits, on a bare summons for general relief, and before any complaint has been exhibited, and without even an affidavit disclosing the nature of the relief sought.

Strictly speaking, the merits of an action can only appear from the pleadings on hoth sides, and cannot be fairly presented until the cause is at issue. But, assuming that it is sufficiently apparent, that the plaintiff’s object in this proceeding is to obtain the necessary materials from the defendants’ books to frame a complaint against them for a libel, I should much doubt the propriety of exercising the power of the court to facilitate such a purpose under any form of application, without strong affidavits, showing its necessity to enable a plaintiff to obtain redress.

The motion to compel, obedience to the order and summons must be denied, but without costs, the question having been submitted as somewhat novel in its character.

Approved on consultation.  