the clerk of the court below is the legal custodian of the records and files therein, and we have no power to compel him to surrender them to any other person. We may, as we often have done, request the clerk to send to us ^original papers which are in his custody, for our inspection, upon mere suggestion that such inspection would be important in determining the rights of parties, and have no doubt he will readily comply.
We might, perhaps, upon proper application, the necessity of so doing being shown, award a subpoena duces tecum, and thereby require the clerk to appear in person and produce the original papers for the inspection of the court.
In this case we will direct the clerk of this court to communicate to the clerk below, the request of the court to send up the papers, and should that request not be complied with, counsel can then apply for the subpoena duces tecum, if he desires.