NOTICE TO PRODUCE PAPERS. 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 pro duce the same on the trial of the cause, be fore such secondary evidence can be admit ted. See Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083.
To this general rule there are some excep tions: first, in cases where, from•the nature of the procpedings, the party in possession of the instrument has notice that he is charged With the possession of it, as in the case of Hover for a bond. McClean v. Hert zog, 6 S. & R. (Pa.) 154; 1 Campb. 143; State v. Mayberry, 48 Me. 218; Forward v. Harris, 30 Barb. (N. Y.) 338; Morrill v. R. R., 58 N. H. 68; second, where the party in pos session has obtained the instrument by fraud ; 4 Esp. 256.
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 no tice may be by parol; 1 Campb. 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'Cl. & Y. 139.
The notice may be given to the party him self, or to his attorney; 2 Term 203, n.; 3 id. 306; Ry. & M. 327.
The notice must be served a reasonable time before trial, so as to afford an oppor tunity to the party to search for and pro dike the instrument or paper in question; 1 Stark. 283; Pitt v. Emmons, 92 Mich. 542, 52 N. W. 1004; Burlington Lumber Co. v. Min. Co., 66 Ia. 292, 23 N. W. 674.
When a notice to produce an instrument or paper in the cause has been proved, and it is also proved that such paper or instru ment 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 no tice and made such proof will be entitled to give secondary evidence thereof. See Mo meyer v. Wool Co., 66 Hun 626, 20 N. Y. Supp. 814; Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525.
Where a party is notified to produce cer tain writings, and the same are shown not to be within the state, copies may be intro duced ; Danforth v, R. Co., 99 Ala. 331, 13 South. 51; Smith v. Bank,, 82 Tex. 368, 17 S. W. 779. See PRODUCTION OF BOOKS.