Power is conferred upon the circuit court, by the fifteenth section of the judiciary act, in the trial of actions at law, on motion of either party, and due notice thereof being given, to require the opposite party to produce any books or writings in his possession or power, which contain evidence pertinent to the issue in cases, and under circumstances where the party might be compelled to produce the same by the ordinary rules of proceeding in chancery. 1 Stat. 82.
Evidently the word “require,” when taken in connection with the subsequent clause of the same section, does not include a power to compel a compliance with the order and direction of the court. On the contrary, the provision is, that if a plaintiff shall fail to comply with such order, it shall be lawful for the court, on motion, to give the like judgment for the defendant as in case of nonsuit, and if a defendant fail to comply with the order it shall be lawful for the court, on motion, to give judgment for the plaintiff, as in case of a default. Evidence is essential in the trial of actions at law; and the acts of congress, and the rules and usages of courts, provide the means for compelling the attendance of necessary witnesses for the purpose, and the production of books and writings material to the issue. Circuit courts, as well as all other federal courts, may issue any writ necessary fortheexerciseof jurisdiction, agreeably to the principles and usages of law, and of course they may issue the writ of subpoena, to compel the attendance of witnesses. They may also issue the writ of subpoena duces tecum, to compel the attendance of a witness, and also to require him to bring with him books and writings in his possession containing evidence material to the issue in a pending action. Parties were not competent witnesses at common law, and of course they could not be compelled to attend the trial, by the writ of subpoena, or to attend and bring with them any books or writings in their possession which were pertinent to the issue, or which might tend to elucidate the matter in controversy, by the writ of subpoena duces tecum. Notice to produce was the only remedy of a party in a suit at law, unless he resorted to equity, in ease the other party to the record had in his possession books or writings containing evidence material in the trial. Such notice, however, never enabled the party to compel the production of such books or writings. All the effect it had was to lay the foundation for the introduction of parol or secondary proof of their contents. in case it appeared that the books and
Danger that the evidence, if any, will be suppressed, or that the books and witnesses will be transferred, or that they will’ be removed out of the jurisdiction, is not suggested in this case, and the evidence to show that the case is one within the conditions of the provision is not entirely satisfactory. Were there no other objections to the granting of the motion, we should be constrained to deny it, but there is another even more decisive than those already suggested. Incorporated banks have officers for the transaction of their business, and some one or more of those officers, as provided by law, and the usages of such institutions, have the possession of the books and papers, and are known as the legal custodians of everything belonging to the corporation. Heretofore the commands of the subpoena duces tecum have been ample to obtain such evidence as that described in the motion, and the court is not satisfied that the same process will not have a like salutary effect in this case. Should it fail, it will then become the duty of the court, in case a proper application is made, to exercise all the power it possesses to afford an adequate remedy to the moving party in this case.
Motion denied.