Case No. 5,375.

#### GEYGER’S LESSEE v. GEYGER.

[2 Dall. 332.]

Circuit Court, D. Pennsylvania.

1795.

Practice — Production or Books, Etc. — Service of Notice on Attorney.

[Requiring the production of books and papers “ou motion and due notice,” pursuant to the statute, is a procedure to be kept under the control of the court for the purposes of substantial justice. And where notice to produce deeds is served on the attorney of a party who lives at a distance, and the attorney offers to give references to the pages, etc., where the deeds are recorded, this is sufficient, without service on the party himself.]

[Cited in Rockhill v. Hanna, Case No. 11,-979.]

A rule has been obtained by tbe plaintiff [Geyger’s lessee], requiring tbe defendant to shew cause why an order should not be made for tbe production of certain deeds and papers on tbe trial of this cause, agreeably to tbe provision of tbe 13th section of tbe judicial act [of 17S9 (1 Stat. 73)], and now, on proof that a copy of the rule was served on tbe defendant’s attorney, it was moved to make tbe same absolute. But, for tbe defendant, it was contended, that the notice of tbe rule should have been given to the party, and not to bis attorney. In Rivers v. Walker, 1 Dall. [1 U. S.] 81, notice, "in the case of referees, is directed to be giv■en to tbe party; and tbe reason is stronger in tbe present instance, as the defendant lives at a great distance, and tbe attorney ought not to be put to tbe trouble and ex-•pence of transmitting tbe notice. Besides, there is no certificate produced that tbe • deeds are not on record; and the fact is that they are recorded; so that tbe plaintiff might, at any time, procure exemplifications.

Levy & Blair, for plaintiff.

Tilgbman & Armstrong, for defendant.

BY

THE COURT.

Tbe provision contained in tbe judicial act was intended to prevent tbe necessity of instituting suits in equity, merely to obtain from an adverse party tbe production of deeds and papers relative to tbe litigated issue. Tbe act says, generally, that tbe court shall have power, “on motion and due notice thereof being given, to require tbe parties to produce books •or writings, &e.” without designating to whom tbe notice shall be given, tbe party himself, or bis attorney. But we will always keep the cause under our control for tbe purposes of substantial justice, and nev-er suffer either party to be entrapped. If, for instance, notice is served on an attorney, whose client lives at a great distance, this will always be deemed a sufficient reason to postpone tbe trial, “till a full opportunity has been afforded for the attorney’s communicating tbe rule to tbe client.” If, likewise, tbe court find that the deeds are actually on record, we will not indulge" the party with a rule for producing them, merely as a cheap mode of procuring evidence. Tbe originals may sometimes, indeed, be necessary, for a special reason, detached from tbe evidence; but, in that case, tbe special reason must be assigned to tbe court.

Tbe defendant’s counsel offering to refer their opponents to the pages, &c. where tbe deeds in question are recorded, the court declared that this put an end to tbe matter; but added, that if it was not satisfactorily done, they would not allow tbe cause to be brought to trial.