Produce papers
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.