#### ELIJAH FULLER vs. JOHN I. McMILLAN.

Where a rule was obtained against the plaintiff in a suit at law (under the S6t.h sec., 31st ch. Rev.Stat.,) to produce on the trial a. certain letter written by the plaintiff to the defendant, and alleged by the latter to have been returned to the plaintiff: — Held that the plaintiff’s affidavit stating that he had not seen the letter since he first sent it — that he had not knowingly destroyed it— and had made diligent search for it and could not find it — was a sufficient cause shown for its non-production, and for a discharge of the rule.

This was an action of assumpsit brought upon a promissory note ; and, as appears by the transcript of the record, the follow*207ing was the case, at Cumberland Superior Court of Law, on the last Spring Circuit, his Honor Judge Dick presiding.

At Fall Term, 1852, the defendant filed his affidavit (under the 86th sec. of the 31st ch. Rev. Stat.,) stating that a certain letter written to him by the plaintiff, and by him afterwards returned to the plaintiff or his clerk, was material and necessary to his defence to the action, as containing the terms of the contract declared on by the plaintiff; and accordingly an order was made\ directing the plaintiff to produce upon the trial the said letter or a copy thereof, or show cause to the contrary. Afterwards, at the same term of the Court, the plaintiff filed his affidavit, in which he admitted that he wrote to the defendant the letter in question, but stated that to the best of his recollection he never saw it after it was mailed ; that he had made diligent search for it, intending himself to rely on its contents for the maintaining of his action, but that he could not find it, and that he had preserved no copy of it; and he then stated substantially his recollection of its contents.

Upon consideration of the premises, his Honor was of opinion that the rule against the plaintiff should be made absolute, and accordingly entered judgment of nonsuit, from which the plaintiff appealed to the Supreme Court.

Strange for the plaintiff: As to what books and writings are required to be produced by the Act of Assembly, according to the ordinary proceedings in Chancery, see Adams Eq. 13 to 20. And at page 14, “ the admission necessary to compel the production, is that the documents are in the defendant’s possession or power. See also pages 349, 350, and also note to Hoyer v. Sy-denham, McNaughten’s select cases, 7. He also referred to Daniel Ch. Pr. 1038, and especially at 2049, Hoyt v. Martin, 2 Dev. & Bat. Eq. 379, Smith v. Thomas, 2 Ibid 126, Gfrahmn v. Hamilton, 3 Ire. 381,_ McGibbony v. Mills, 13 Ire. 163, Branson v. Fentriss, lb. 165, Scarborough v. Tunnell, 6 Re. Eq. 103.

No counsel for the defendant in this Court.

Battle, J.

We are of opinion that his Honor erred in direct*208ing the judgment of nonsuit. The order under which the plaintiff was required to produce upon the trial the letter in question, was founded upon the 86th section of the 31st chapter of the Revised Statutes. That section declares that Courts of law “ shall have full power, in the trial of actions before them, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which con-(ain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in Chancery ; and if a plaintiff shall fail to comply with such order to produce books or writings, or shall not satisfactorily account for such failure, it shall be lawful for such Courts respectively, on motion, to give the like judgment for the defendant as in cases of nonsuit; and if a defendant shall fail to comply with such order to produce books or writings, or shall not satisfactorily account for such failure, it shall be lawful for such Courts respectively, on motion as aforesaid,.to give judgment against him or her by default.” Supposing that the Court had the power, upon the defendant’s affidavit, to make (he order requiring the plaintiff to produce the letter in question, (and we think it had) the Act itself shows that he was not required to perform an impossibility, upon pain of losing his suit. He might fail to comply with the order, and yet if he could give a satiractory account of the cause of such failure, he was to be excused. We cannot well imagine how a more satisfactory account could have been given than was done in this case. Assuming that the letter came to the hands of the plaintiff, which is not' certain, he swears that he has no recollection of having ever seen if since he wrote and despatched it to the defendant; that he has not knowingly or wilfully destroyed it; that after a most diligent search — a search stimulated by the desire of using it as evidence for himself — he cannot find it; that he does not believe that he has it in his possession, and that he has no copy of it. He then does the best lie can, by stating his recollection of its contents. We have no idea that a Court of Chancery would, under such circumstances, have insisted upon the production of the paper, (Adam’s Eq. 14; 3 Dan. Chan. Pr. 2049); and the power of a ■Jourt of Law is expressly limited by that of the Court of Chan-lery.

*209The judgment must be reversed, which will be certified to the Superior Court of law for Cumberland county,' to the end that the plaintiff may proceed in his action.

Pek Curiam. Judgment reversed.