
    
      WOODRUFF vs. BRADFORD & AL.
    
    Where a party is ordered to produce papers, until he does so, or shows that it was not in his power to comply with the order, the cause ought not to be tried.
    Appeal from the court of the third district, thejudge of the fourth presiding.
   The facts of this case are fully stated in the opinion of the court.

Porter J.

delivered the opinion of the court. This case originated in an application to enjoin an order of seizure and sale, which the defendants had obtained against property of the plaintiff, for a debt due to them. One of the grounds on which the injunction was asked, is a deficiency in the quantity of land purchased by the plaintiff, which land was in part the consideration of the debt, on which the seizure had been obtained.

On the 7th of December, the defendants filed exceptions, in which they stated, that the facts alleged in the petition did not authorize an injunction. These exceptions were argued on the 19th of the same month, and on the 21st overruled. Immediately after, viz, on the same day, the plaintiff moved to have a survey made of the land, which the court granted, but the survey not being made, on the 24th, the judge ordered the case for trial on its merits.

is o"de»d topro-dace papera, un-tu he does so, or shows that it is not in his power theC°order, "the tobe tried!11 "ot

It appears to us the court was too precipitate. The answer of two of the defendants was not put in until the 23d the daybefore the cause was tried. So that the trial not only took place at the first term the cause was at issue, but on the second day. The court had ordered the defendants to bring in their original . . . ... grant, and survey, and until they did so, or ... ... , showed it was not m their power to comply with the order, the cause should not have been tried. The case under all its circumstances, appears to us to require the application of the 468th article of the Code of Practice.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that the case be remanded for a new trial, the appel-lees paying the costs of this appeal.  