Opinion
Spring Sessions, 1876.
THIS case was on the list and marked for trial, and having been postponed several days to give the counsel for the defendants time to produce a certain paper or account in the possession of one of the defendants who resided out of the State as alleged in the notice which had been served upon him by the counsel on the other side for that purpose, and the case having now been called for trial,
Higgens, for the plaintiff, called for the production of the paper, as he desired and had a right to see and inspect it before the trial had commenced.
G. B. Rodney, for the defendants: The usual practice for a long time in similar cases had been to call for and produce the paper required in the notice given at the proper and appropriate time in the development of the evidence during the progress of the trial, and objected that the plaintiff had no right to demand the production of it before the trial had commenced.
By the Court: This proceeding is of a somewhat novel and peculiar character in this court, and the notice served is by virtue of a special and comparatively recent statute, under which we have had as yet but little practice. We think, however, a fair and reasonable construction of it requires that the paper called for and demanded should not be produced before the trial has been commenced for the inspection of the counsel on the other side who has called for it, if it can now be produced, and if it cannot that such response shall now be made to the order as the counsel for the defendants may have to make to it.