NOTICE TO PRODUCE PAPERS In Practice. When it is intended to give secondary evidence of a written instrument or paper which is in the possession of the op posite 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 ex ceptions: first, in cases where, from the na ture of the proceedings, the party in posses sion 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, 274 ; 4 Taunt. 865 ; 6 Serg. & R. Penn. 154 ; 4 Wend. N. Y. 626 ; 1 Campb. 143 ; secotid, where the party in possession has obtained the instru ment by fraud. 4 Esp. 256. See 1 Phillipps, Ev. 425 ; 1 Starkie, Ev. 362; Roscoe, Civ. Ev. 4.
3. 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. 19. It Seems, however, that the notice may be by parol. 1 Canapb. 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. Ry. & M. 341 ; M'Clel. & Y. Exch. 139.
4. The notice may be given to the party himself, or to his attorney. 2 Term, 203, n.; 3 id. 306 ; Ry. & M. 327 ; 1 Mood. & M. 96.
The notice must be served a reasonable time before trial, so as to afford an oppor tunity to the party to search for and produce the instrument cr paper in question. 1 Stark. 283 ; Ry. & M. 47, 327 ; 1 Mood. & M. 96, 335, n.
5. When a notice to produce an instru ment 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 be entitled to give secondary evidence of such paper or instrument thus withheld.