
    Rose and another against King and others.
    
      Tuesday, June 14.
    , An order of the Court to produce books made on the córdfSdls^6' son, though he tur^agént!"
    Such order ought not to be made during a trial, but previous thereto: and the party should have the same time that he would have to prepare for trial.
    The affidavit on which such order is grounded, should contain a direct averment of the facts necessary to authorise the order, that the writing is pertinent to the issue, and was in the power or possession of the plaintiff, at the time of the notice.
    An affidavit, that the writing is " respecting" the land in dispute, is bad.
    The notice should describe the paper with reasonable certainty.
    In Error.
    By the writ of error, and bill of exceptions returned , ... , , , . . r ~ therewith, it appeared, that this was an ejectment to Septemher Term, 1806, by James Rose, and Robert H. Rose, in the Court of Common Pleas of Lycoming county, against Reed-er King, and Martin Kraeber, and John Kraeber, who were made co-defendants. The cause was tried in the Court low, on the 8th May, 1818. After the plaintiffs had proved their title to a moiety of the lands, the defendants called Martin Kraeber, who swore that he had seen an article of agreement in the hands of Seely Hiding, from James Rose, in his own right, and as attorney for Robert H. Rose, to George Eichelberger, brother-in-law of Seely Ruling, dated .the 12th November, 1803. The plaintiffs thereupon admitted, that Seely Ruling had an agreement with the plaintiffs, that if they recovered, they were to convey to him their moiety of the lands in question ; but stated, that no conveyance had been made. The defendants then called David Watts, who proved, that on the 5th May, 1818, he served the following notice on the plaintiffs5 counsel, and filed the following affidavit.
    
      Robert M(Clure, Esq.
    You are hereby required to produce on the trial of this cause, a certain agreement and writing, dated 12th November, 1803, between James Rose, in his own right, and as attorney in fact for Robert H. Rose, and George Eichelberger, of the city of Baltimore, respecting the land in dispute in the above ejectment.
    
      MARTIN KRAEBER.
    
    5th May, 1818.
    
      Lycoming county, ss.
    
    
      Martin Kraeber, being duly sworn, doth say, that he saw in the possession of Seely Huling, a certain deed in writing, made by James Rose, for himself and Robert H. Rose, dated, as he believes, the 12th November, 1803, which said deed is respecting the land for which an ejectment is brought by the same James Rose, and Robert H. Rose, against Reeder King.
    
    
      MARTIN KRAEBER.
    
    Sworn and subscribed in open
    Court, 8th May, 1818, before me,.
    
      Thomas Hays, prothonotary.
    
      Charles Huston, Esq; was then examined, who stated, that Robert H. Rose was his client, and that he (the witness,) had no such paper, and never had seen any article-of agreement between Robert H. Rose, and George Eichelberger, though he had heard there was one. He had understood from Seeley Huling, and Robert H. Rose, that in case Robert H. Rose succeeded, a deed was to be made to Seely Huling, for the land.
    
      F. C. Campbell, Esq. was also sworn, and testified, that Robert H. Rose was his client; that the witness had no such paper in his possession, and never had, to his/ecollection. That Seely Huling, had never feed him; and that Seely Huling, acted as agent for Robert H. Rose.
    
    The Court thereupon, on motion, made the following order.
    On motion and affidavit filed, and it appearing that Seely Huling has interest as plaintiff in this cause, it is ruled, that Seely Huling forthwith produce a certain deed in writing between James Rose, for himself, and Robert H. Rose, of the one part, and George Eichelberger, of the other part, and that he shew cause, why a judgment of nonsuit should not be entered.
    
      May 8th, 1818. ’ By the Court.
    
      THOS. HATS, proth’ry.
    A notice from Martin Kraeber, to Seely Huling, of this rule, was made out in writing : Seely Huling, being present in Court, he was forthwith served by Martin Kraeber, with the notice, and a copy of the rule : and on motion of the defendant, and affidavit made of such service, the articles of agreement not being produced, the Court ordered a non-suit. To this order the defendants excepted, and the Court sealed a bill of exceptions.
    
      Burnside, for the plaintiff in error,
    contended, that the non-suit entered by the Court below, was erroneous, for various reasons. In the first place, the law is well settled in Girard v. Gettig, and Irving v. Taggart,
      
       that it is out of the power of the Court, to order a nonsuit, against the consent of the plaintiff, who may refuse to enter it, and insist on talcing a verdict. He cited to the same point, 2 Bay. 132. 1 Wash. Rep. 219. Again, the act of assembly of the 27th February, 1798, (3 Sm. Laws, 303,) authorising a nonsuit to be entered, for the non-production of books and writings, does not extend to such a case as the present. That act, applies altogether to parties to the record. It is to them, notice is to be given, and on them, the rule of Court is to be made. Besides, the act requires u due notice” to be given: which cannot be considered as complied with,' by an order made on the trial, to produce them “ forthwith,” as was done here. It was decided in M'Dermot v. The United 
      
      States Insurance Company,
      
       that a Judge at Nisi Prius is not authorised to order a nonsuit, under this act: the order must be made by the Court in bank. The reasons given for this decision, are, that the Court may have time to'deliberate on the order for production of papers, and the party have time to bring the papers to Court. It is there said by Tilghman C. J., that “ an order during the trial, to produce them instanter, might be attended with very great hardship.” The proper course for the defendants to pursue, would have been to issue a subpoena duces tecum for Seely Huling.
    
    
      Hall and Fisher, contra.
    It was proved to the satisfaction of the Court, that Seely Huling was a party. The Court below had a right to decide this fact, and they did decide it. The Court also, are the sole judges what time ought to be allowed for the production of papers : no particular time is necessary; and they must be governed by circumstances. Here Seely Huling was in Court, and refused to produce a paper proved to be in his possession. As he was in fact, a party in interest, he could not have been compelled to obey a subpoena.
    
    
      
       2 Binn. 234.
    
    
      
       1 Serg. & Rawle, 360.
    
    
      
      
        1 Serg. & Rawle,357.
      
    
   The opinion of the Court was delivered by

Gibson J.

Every order to produce papers under the act of assembly, must be founded on a previous affidavit; which, as the law is highly penal, should set forth, with precision, every fact necessary to authorise the Court to proceed. The party is to have due notice of the motion; and, as he is to come prepared to contest the truth of the facts, he ought to have the same length of time previous to the hearing, as would be sufficient for preparation for the trial of an issue before a jury. The notice should describe the book or paper required with sufficient certainty; and the question on the motion, being only incidental, should be decided previously to the trial of the issue. The nonsuit, therefore, was wrong in every view. There was no averment in the affidavit, that the deed was material and pertinent to the issue; and if it were not, the Court could not require it to be produced. Before recourse is had to a measure so severe in its consequences, the fact should be positively sworn to: conjecture or suspicion is not sufficient. A par.ty is not tobe subjected to the risque of being sacrificed to the surmises of his antagonist, without the latter being bound to stand to the truth of what he asserts. There is no hardship in holding him to strict proof. If, in consequence of such strictness, he loses the benefit of the proceeding under the act altogether, the loss is not irretrievable; he still has his remedy at common law, by giving secondary evidence of the contents of the paper or document withheld : whereas, a mistake against the person held to answer, is fatal. Now Martin Kraeber swore, that the deed was “ respecting” the land ; which may be true, and the deed nevertheless not material or pertinent.

The affidavit is also defective, in not alleging, that the deed was in the possession of the plaintiffs. It was seen in the possession of Seely Huling, who- was an agent of the plaintiffs; but whether as an agent or as the owner of it, and, if the former, whether it remained in his possession at the time of the application, does not appear. If it were Seely Muling,s own, or not intrusted to his care by the plaintiffs, it would not be peculiarly in their power; and of course, its production could not be enforced under the act; but the party wishing to use itj would have to resort to the usual means of a subpwna, with a duces tecum. The notice was served, also, at a period altogether too late, being only three days previous to the granting of the rule ; and the rule itself was wrong, being made, not only during the trial, but, personally on Seely Huling, who was at most but an agent: it should have been on the plaintiffs in the cause. A Court has no right to designate a third person, not marked as such on the record, as the real party, and proceed against him: it is the plaintiff of record who is to be nonsuited, and the rule must be against him. It was unnecessary to treat Seely Muling as the party: if he were in fact so, the production of the paper might have been procured by a rule on the plaintiffs of record, which would have given the defendants all the benefit they were entitled to in any shape. If the paper came to his possession as an agent, it was to be considered in the power of the plaintiffs for all purposes beneficial to the defendants in a proceeding on the act: if it were his own, he would, even though substantially interested, be bound to produce it on a subpwna.

This proceeding being in the nature of a bill of discovery, the party to be affected, ought to have a fair opportunity to answer the matter charged. According to the mode which I have indicated, the application for the order, should be grounded on an affidavit describing, with reasonable certainty, ^ k00j¡.s or papers alleged to be withheld, and containing a positive averment, that they are material to the issue, and exclusively in the power of the party against whom relief is sought: if they are equally in the power of bothj this mode cannot be resorted to. The order is to be made previously to the trial, and on such service of notice, as would be sufficient for preparation to try an issue of fact. In all these particulars, and in some others, the proceeding in this case was defective.

Judgment reversed, and a venire facias de novo awarded.  