#### J. H. LeROY v. JOHN SALIBA.

(Filed 15 September, 1920.)

1. Appeal and Error — Inspection of Papers — Judgments—Orders—Finding of Facts — Presumptions—Statutes—Partnership.

In an action by a partner for the dissolution of the partnership and an accounting against the managing partner, charging him with fraud, it will be assumed, on-appeal from an order of the Superior Court judge for an inspection and production of papers, etc., in the possession of the defendant, Rev., 1655, 1657, that the judge found such facts as were sufficient to support his ruling, in the absence of any written finding, and he was not requested by the appellant to find the facts.

S. Same — Evidence—Fraud.

There must be some evidence upon which the trial court bases its order for the inspection and production of papers, etc., in an action to dissolve a partnership, Rev., 1656, 1657; but allegations in an' affidavit that the plaintiff had received certain checks from the managing partner of a firm, in which he was a partner, for his share of the partnership profits, which had been paid, and the contents were then unknown to him, and that they related to the merits of the action, are sufficient when there are allegations that the managing partner had committed fraud in the conduct of the *16partnership affairs and intended to depart from the State and remove his property and effects therefrom for the purpose of defrauding and defeating his creditors.

Civil action, tried before Stacy, J., at January Term, 1920, of Pas-quotanic. Defendant appealed.

Fhringhaus c& Small, Meeleins & McMullan, and Thompson <& Wilson for plaintiff.

Aydlett & Simpson for defendant.

"Walker, J.

'This is a motion in tbe cause for an inspection and production of papers and documents, in possession of tbe defendant, wbicb relate to tbe merits of tbe action, or tbe defense therein, under Rev., 1656 and 1657. Tbe action was brought for a dissolution of a co-partnership, and an accounting by defendant, who managed its business, and has bad possession of its books and papers. Tbe verified pleadings were, by consent, used as affidavits. Tbe defendant is charged in the complaint with fraud committed in tbe conduct of tbe partnership affairs, and further- with tbe intention of departing from tbe State and removing bis property and effects therefrom for tbe purpose of defrauding and defeating bis creditors, and particularly tbe plaintiff, wbicb allegation is based upon statements made by tbe defendant.

It is further charged that be lias secreted bis property with tbe same fraudulent intent.

Tbe judge granted plaintiff’s motion. He did not find any facts, nor was be requested by defendant so to do. In tbe absence of such a special finding we must assume that tbe judge found such facts as were sufficient to support bis ruling. This is well settled. Albertson v. Terry, 108 N. C., 75; Hardware Co. v. Buhman, 159 N. C., 511; Jones v. Fowler, 161 N. C., 354; McLeod v. Gooch, 162 N. C., 122. It must, of course, appear that there is some evidence to justify tbe decision upon tbe motion. It does appear in tbe complaint, treated as an affidavit, that tbe contents of tbe checks, wbicb were included in tbe order for an inspection by name, were not known to tbe plaintiff, and that they “related to tbe merits of tbe action,” using tbe language of tbe statute (Rev., 1656), and this cannot be questioned. Tbe checks were given to tbe plaintiff in part payment of bis share of tbe partnership profits, and, therefore, be bad seen them at tbe time, but they were sent to tbe bank on wbicb they were drawn and by it returned to tbe defendant. This does not necessarily prove that be remembers their contents, as tbe transaction took place some time ago, and, besides, tbe complaint shows that they are pertinent to tbe issue joined between tbe parties. It was said in Sheek v. Sain, 127 N. C., 266: “Although it appears to us from defendant’s affidavit *17that such exhibition (of the check) could have done him no good, still we would have sustained the ruling of the court upon the ground that the statute gives the judge discretion to make an order requiring the plaintiff to exhibit the check to the defendant, and to give him, or to allow him to take, a copy of the same.” Other cases sustaining the ruling of the Court are Whitten v. Tel. Co., 141 N. C., 361; Evans v. R. R., 167 N. C., 415; Bank v. Newton, 165 N. C., 363. Justice Ilohe said in the last case: “A perusal of the statute will disclose that the question rests in the sound legal discretion of the court, and as we find no such abuse of discretion on the part of his Honor as to raise a legal question for our decision, the judgment is af&rmed.” And Justice Brown, commenting upon that language, said, in Evans v. R. R., supra: “Under the authority of that case (Bank v. Newton), we deem it proper to sáy that when this case is tried it will still be competent for the judge, in his sound discretion, to compel the production of this Form 408 when its competency and pertinency as evidence bearing upon the issue may the better be determined.”

There is no error in the ruling of the court.

Affirmed.