#### GIRARD NATIONAL BANK v. ADAM McARTHUR et al.

(Filed 8 April, 1914.)

Statutes — Evidence—Motions to Inspect and Copy — Court’s Discretion.

Where a note sued on is alleged to be a forgery, the judge of the Superior Court wherein the action is pending may, in his discretion, allow, upon due notice, the defendant to inspect the note and taire a photographic copy thereof. Revisal, sec. 1656.

Appeal by plaintiff from Rountree, J., at February Term, 1914, of Cumberland.

Civil action to recover on a note for $15,000, purporting to be signed by Adam and Mrs. M. 0. McArthur and, others and the execution of which was denied by.the defendants named, 'heard on motion to permit the inspection and taking of photographic copy of the note in controversy.

Motion having been allowed, plaintiff'excepted and appealed, assigning for error that the court had not power to make such an order.

Rose & Rose, II. S. Averitt, and Robinson & Lyon for plaintiff-

Shaw & McLean, McLean, Varser & McLean, and Jones & Bailey for defendant.

*375Hoke, J.

Tbe order made by bis Honor comes clearly witbin tbe provisions of our statute applicable to tbe case, wbicb is as follows:

Eevisal, sec. 1656: “Tbe court before wbicb an action is pending, or a judge thereof, may, in tbeir discretion, and upon due notice, order either party to give to tbe other, witbin a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents in bis possession or under bis control, containing evidence relating to tbe merits of tbe action or tbe defense therein. If compliance with tbe order be refused, tbe court, on motion, may exclude tbe paper from being given in evidence, or punish tbe party refusing, or both.”

This statute was primarily designed and intended to afford tbe facilities for tbe ascertainment of truth that were formerly supplied by bill of discovery, and, while it is broader in its scope and effect, tbe decisions on tbe old method of procedure are in certain instances now helpful to its correct interpretation. Fields v. Coleman, 160 N. C., 11; Bailey v. Matthews, 156 N. C., 78, and, under our former procedure by bill in equity, or under statutes expressly referring to tbe equitable rules prevailing in such cases (Eev. Code, cb. 31, sec. 82; Rev. Statutes, cb. 31, sec. 86), on issue.joined as to tbe genuineness of a note, its production for an inspection and copy was considered and held to be a proper instance for tbe exercise of this power by tbe court. Scarboro v. Tunnell, 41 N. C., 103; McGibboney v. Mills, 35 N. C., 163. In this last case Nash, J., delivering tbe opinion, said: “Here tbe defense is that tbe instrument on wbicb tbe action is brought is a forgery. How is it possible for tbe defendant to support bis plea that it is not tbe deed of the testator unless be can have full access to it, both for bis own inspection -and that of bis witnesses ? Such-testimony is pertinent to tbe issue tbe jury have to try. This, too, is tbe course of tbe English courts of chancery,” citing Beckford v. Beckford, 16 Vesey, 438. Nor is tbe objection well, taken that tbe copy is to be made by photography. ’Where a copy of an instrument or a locality has been ordered as properly relevant to tbe inquiry, this method affords, perhaps, tbe most correct and helpful im*376pression of tbe object that could be obtained, and, in a case like tbe present, it is well-nigb indispensable if tbe purpose for wbicb a copy is required may be subserved. In Hampton v. R. R., 120 N. C., 534, a photographic copy of tbe locality was rejected, a majority of tbe Court being of opinion, that owing to tbe length of time intervening and certain changes in conditions tbe impression might have a tendency to mislead rathér than aid tbe jury to a correct conclusion. Even in ’that case there was a dissent by tbe present Chief Jústice, who gave forcible expression of bis views as to tbe admissibility of tbe copy in tbe particular instance and of tbe general value of tbe same as evidence when properly guarded and identified; views wbicb have, in tbe main, since prevailed as tbe controlling opinion of tbe Court, Pickett v. R. R., 153 N. C., 148, and Davis v. R. R., 136 N. C., 115, and wbicb are in accord’ with enlightened decisions in other courts of highest resort. United States v. Otey, 176 U. S., 422; Marey v. Moses, Barnes et al., 16 Mass., 161; Dufful v. The People of Ill., 107 Ill., 113; 1 Thompson on Trials,- sec. 869.

On testimony of tbe same general character, we were referred by counsel for appellee to an impressive utterance of tbe New York Superior Court in Frank v. Bank, 37 N. Y. Sup. Ct., 34, and affirmed in 84 N. Y., 209, as follows: “Tbe administration of justice profits by tbe progress of science, and its history shows it to have been almost tbe earliest in antagonism to popular delusions and superstitions. Tbe revelations of tbe microscope are constantly resorted to, in protection of individual and public interests. It is difficult to conceive of any reason why, in a court of justice,' a different rule of evidence- should exist in respect to tbe magnified image, presented in tbe lens óf tbe photographer’s camera, and permanently delineated upon tbe sensitive paper. Either may be distorted or erroneous through •imperfect instruments or manipulation, but that would be apparent or easily proved. If they are relied upon as agencies for accurate mathematical results in mensuration and astronomy, there is no reason why they should be deemed unreliable in mat*377ters of evidence. Wherever wbat they disclose can aid or elucidate the just determination of legal controversies, there can be no well-formed objection to resorting to them.”

We hold that, in this instance, the order in question has been providently made by the learned judge, and that the same was in pursuance of power conferred upon him by law.

There is no error.

Affirmed.