NOTICE, TO PRODUCE PAPERS, practice, evidence. When it is intended to give
secondary evidence of a written instrument or paper, which is in: the
possession of the opposite party, it is, in general, requisite to give him
notice to produce the same on the trial of the cause, before such secondary
evidence can be admitted.
2. To this general rule there are some exceptions: 1st. In cases where, from the nature of the proceedings, the party in possession of the instrument has notice that he is charged with the possession of it, as in the case of trover for a bond. 14 East, R. 274; 4 Taunt. R. 865; 6 S. & R. 154; 4 Wend. 626; 1 Camp. 143. 2d. When the party in possession has obtained the instrument by fraud. 4 Esp. R. 256. Vide 1 Phil. Ev. 425; 1 Stark. Ev. 862; Rosc. Civ. Ev. 4.
3. It will be proper to consider the form of the notice; to whom it should be given; when it must be served; and its effects.
4.-1. In general, a notice to produce papers ought to be given in writing, and state the title of the cause in which it is proposed to use the papers or instruments required. 2 Stark. R. 19; S. C. 3 E. C. L. R. 222. It seems, however, that the notice may be by parol. 1 Campb. R. 440. It must describe with sufficient certainty the papers or instruments called! for, and must not be too general, and by that means be uncertain. R. & M. 341; McCl. & Y. 139.
5.-2. The notice may be given to the party himself, or to his attorney. 3 T. R. 806; 2 T. It. 203, n.; R. & M. 827; 1 M. & M. 96.
6.-3. The notice must be served a reasonable time before trial, so as to afford an opportunity to the party to search for and produce the instrument or paper in question. 1 Stark. R. 283; S. C. 2 E. C. L. R. 391; R. & M. 47, 827; 1 M. & M. 96, 335, n.
7.-4. When a notice to produce an instrument or paper in the cause has been proved, and it is also proved that such paper or instrument was, at the time of the notice, in the hands of the party or his privy, and, upon request in court, he refuses or neglects to produce it, the party having given such notice, and made such proof, will he entitled to give secondary evidence of such paper or instrument thus withheld.
8. The 15th section of the, judiciary act of the United States provides, "that all the courts of the United: States shall have power, in the trial of actions at law, on motion, and due notice there of being given, to require the parties to produce books or writings in their possession or power, which contain 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, it shall be lawful for the courts, respectively, on motion, to give the like judgment for the defendant, as in cases of nonsuit; and if the defendant fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion as aforesaid, to give judgment against him or her by default."
9. The proper course to pursue under this act, is to move the court for an order on the opposite party to produce such books or papers. See, as to the rules in courts of equity to compel the production of books and papers, 1 Baldw. Rep. 388, 9; 1 Vern. 408, 425; 1 Sch. & Lef. 222; 1 P. Wins. 731, 732; 2 P. Wms. 749; 3 Atk. 360. See Evidence, secondary.