{ "id": 11274405, "name": "JOHN McGIBBONEY vs. JAMES N. MILLS, EX'OR, &c.", "name_abbreviation": "McGibboney v. Mills", "decision_date": "1851-12", "docket_number": "", "first_page": "163", "last_page": "165", "citations": [ { "type": "nominative", "cite": "13 Ired. 163" }, { "type": "official", "cite": "35 N.C. 163" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "2 Dev. Eq. 298", "category": "reporters:state", "reporter": "Dev. Eq.", "case_ids": [ 8689838 ], "opinion_index": -1, "case_paths": [ "/nc/17/0298-01" ] }, { "cite": "2 Dev. Eq. 298", "category": "reporters:state", "reporter": "Dev. Eq.", "case_ids": [ 8689838 ], "opinion_index": 0, "case_paths": [ "/nc/17/0298-01" ] } ], "analysis": { "cardinality": 277, "char_count": 4375, "ocr_confidence": 0.523, "pagerank": { "raw": 9.913738877884801e-08, "percentile": 0.5358509318496947 }, "sha256": "3b38bc6e1d0988cbd05d279fb5877229e85f948b085dc06cdea942fc2062511d", "simhash": "1:35b979f5f816c594", "word_count": 781 }, "last_updated": "2023-07-14T16:11:31.390339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN McGIBBONEY vs. JAMES N. MILLS, EX\u2019OR, &c." ], "opinions": [ { "text": "Nash, J.\nThe order in this case was made under the acts of the General Assembly of \u201921 and \u201928, Rev. Stat. ch. 30, sec. 86. The action in which it was made, was brought \"upon a bond or alleged bond of the defendant\u2019s testator, -and the defendant filed an affidavit, stating that the alleged bond was a forgery, and moved the Court for an order upon the plaintiff, to file the paper writing with the Clerk of the Court, for the inspection of the defendant. The order was made, and from it the plaintiff appealed. If this case does \u00a1not come within the Statute, we are at a loss to conceive one that does. It gives to the Court the power, upon a proper motion, to compel the parties to a suit to produce books or writings, in their possession or power, and which \u25a0 contain evidence pertinent to the issue, \u201c in cases, and under circumstances, where they might be compelled to pro\u2022duce the same, by the ordinary rules of proceedings in \u2022Chancery.\u201d The case of Scarboro v Tunnell, 6 Ire. Eq. 103, is decisive of the power of the Court of Chancery to .make such an order as the one in this case. The bill was \u25a0filed to set aside a deed, under which the defendant claim- \u25a0 ed the property in dispute, upon the ground of forgery, which was denied by the answer. The Court declares, that it has always been the course in this State, to order the \u2022instrument, in such cases, to be brought into Court for the \u2022purpose of inspection. In Cooper and Cooper, 2 Dev. Eq. 298, \u201cClearly,\u201d says the Court, \u201cthe inspection of the instrument is indispensable to the plaintiff\u2019s preparation for the hearing, as it is impossible, without the deed, that he can give evidence as to the handwriting, and various' other \u25a0 matters, tending to show that the instrument is not genuine.'\u2019 Here the defence is, that the instrument on which . the action is brought, is a forgery. How is it possible for the defendant to support his plea, that it is not the deed of his testator, unless he can have free access to it, both for his own inspection, and that of his witnesses ? Such testimony is pertinent to the issue the Jury have to.try. This, too, is the course of the English Courts of Chancery.\u2014 Beckford v Beckford, 16 Vez. 438.\nThere is no error in the interlocutory order of the Court . below, which will be certified.\nPer Curum. Ordered to be certified accordingly.", "type": "majority", "author": "Nash, J." } ], "attorneys": [ "Kerr, for the plaintiff.", "Gilmer and Miller, for the defendant." ], "corrections": "", "head_matter": "JOHN McGIBBONEY vs. JAMES N. MILLS, EX\u2019OR, &c.\nIn an action upon a bond, tbe Court, on affidavit that tbe bond is believed tp be a forgery, may, at the appearance term, under the act, Rev. Stat, ch. 81. sec. 86, order tbe plaintiff to file the instrument for such time as the Court may think proper, ia the Clerk\u2019s Office, for the inspection of the defendant and others.\nThe cases of Scarborough v Tunnell, 6 Ire. Eq. 103, and Cooper v Cooper, 2 Dev. Eq. 298, cited and approved.\nAppeal from an interlocutory order made at tbe Superior Court of Law of Guilford County, at the Fall Term, 1851, his Honor Judge Ellis presiding.\nThe case was this ': an action of debt was brought by the plaintiff against the defendant, as executor of David Mc-Gibboney, returnable to Guilford Superior Court of Law, at the Fall Term, 1851. The plaintiff declared upon a bond, executed by the defendant\u2019s testator. At the same term the defendant craved \u201c oyer,\u2019\u2019 and filed the following affidavit: James N. Mills, defendant, makes oath, that he is advised and believes, that the bond, the alleged foundation of this suit, is spurious; that it is, if so, likely the work of the plaintiff, the son of the testator, who was well acquainted with the form and character of his father\u2019s handwriting, and that, to detect, successfully, the forgery, if it really is a forgery, it is, he is advised, material and necessary, that the bond sued on should be filed, so as to give witnesses, before being examined as to the writing and signature, an opportunity of examining the same. Another affidavit to the same purport, was made by a party interested.\nUpon these affidavits, the Court made the following order : On affidavits filed, it is ordered by the Court,'that the plaintiff file with the Clerk of this Court, for the inspection of the defendant, the bond sued on, from the 1st day of January, 1852, to the 15th of January, 1852.\nFrom this order, the plaintiff, by leave of the Court, appealed.'\nKerr, for the plaintiff.\nGilmer and Miller, for the defendant." }, "file_name": "0163-01", "first_page_order": 171, "last_page_order": 173 }