Maxwell v. . McDowell

Supreme Court of North Carolina

Maxwell v. . McDowell

50 N.C. 391

DecidedJune 5, 1858

StatusPublished

This text of 50 N.C. 391 (Maxwell v. . McDowell) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maxwell v. . McDowell, 50 N.C. 391 (N.C. 1858).

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Opinion

Battle, J.

The 31st chapter of the Rev. Code, section 82, empowers courts of law. to compel from parties “ books, or writings, in their possession, or control, which contain evidence pertinent to the issue,” which may be on trial, “ in cases and under circumstances, where they might be compelled to produce the same by the ordinary rules of proceeding in equity.” The question, then, is, would a court of equity compel the defendant to produce the title deeds, under which lie claimed the land in controversy ; but we are not. at liberty to decide it upon the record as it now stands. As this Court said, in Wallace v. Reid, 10 Ire. Rep. 61, “ no facts are stated, upon which to enable this Court to decide whether it was erroneous to discharge the rule or not.” “ The affidavit, which is sent as a part of the case, is only evidence. The Court should have ascertained and stated the facts, so as to present the *393 question of law.” Upon the authority of that case, we must affirm the judgment in the present.

Pee Cueiam, Judgment affirmed.

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Battle, J.

The 31st chapter of the Rev. Code, section 82, empowers courts of law. to compel from parties “ books, or writings, in their possession, or control, which contain evidence pertinent to the issue,” which may be on trial, “ in cases and under circumstances, where they might be compelled to produce the same by the ordinary rules of proceeding in equity.” The question, then, is, would a court of equity compel the defendant to produce the title deeds, under which lie claimed the land in controversy ; but we are not. at liberty to decide it upon the record as it now stands. As this Court said, in Wallace v. Reid, 10 Ire. Rep. 61, “ no facts are stated, upon which to enable this Court to decide whether it was erroneous to discharge the rule or not.” “ The affidavit, which is sent as a part of the case, is only evidence. The Court should have ascertained and stated the facts, so as to present the *393 question of law.” Upon the authority of that case, we must affirm the judgment in the present.

Pee Cueiam, Judgment affirmed.

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Bluebook (online)

50 N.C. 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-mcdowell-nc-1858.