available for the trial on appeal, and if the instrument was not produced there, evidence of an inferior degree would be admitted.1 § 1286. Time of Notice. A reasonable time must elapse between the service of the notice and the trial, to allow the party to procure the writing. What is reasonable time must necessarily depend upon the circumstances of each case. As where the service was at noon of the day preceding the trial, it was regarded as reasonable in point of time, and where the situation of the party was such as to have enabled him to attend the trial with the document, without serious inconvenience. And when the notice was to produce the book of accounts of the party, in consideration of the fact that his counting-house was very near, it was held sufficient if served on the evening preceding the trial. So where it was proved that at half-past six on the evening preceding the trial, plaintiff's attorney caused notice to produce a letter previously written to defendant, to be served on defendant at his residence by leaving it with his wife, and that he caused a similar notice to be served at the office of defendant's attorney a few minutes later in the evening, this was held not too late.1 So, also, a notice given to the attorney several days before the trial, was held served within a reasonable time, although the party himself resided outside of the state. It was also held where the notice was served on the day preceding the trial, and it appeared that the paper was in the hands of a party residing at a distance of eighty miles from the place of trial, that the court would not take judicial notice of the fact that he could not have procured it, and in the absence of any showing of his inability to do so, secondary evidence of its contents was admissible. Reab v. Moor, Supra. 5 Regina v. Hankins, 2 Carr. & Kir., 822 3 Shreve v. Dulany, 1 Cranch C. Ct., 499. $1287. Served at Trial Too Late. The notice will be regarded as too late when served at the time of trial, except where it can be shown that the books or papers are in court, or are of easy access. So, where it was to produce a letter in reference to the note upon which suit was brought, and the service was at a quarter before nine o'clock on the evening before trial, it was held too late. So, also, where the notice was served at half-past eight on one evening, and the trial was set for the hour of ten on the following morning, it was held not served in time to require the production of the paper, nor to warrant secondary evidence when the original was not produced.3 § 1288. Party not Required to Incur Expense. Where the notice was given on Saturday, to produce certain deeds, plaintiff's attorney went to town and procured them, and on the evening of the following Monday was served with another notice to produce an additional deed, which he said would be there in time for the trial, if defendant would bear the expense of sending for it. This, however, defendant did not do, but at the trial, on the following Thursday, offered parol testimony of the contents of the deed, which the court refused to admit, and it was held, on appeal, that such refusal was proper, as it was unreasonable for plaintiff to repeat his journey to town at his own expense.* § 1289. Original not in Existence. Objections on account of lateness of service will not be sustained when the party or his attorney admits that the original is not in existence. In such case secondary evidence may be given without notice.5 1290. Opposite Attorney in Possession of Papers.-The notice to produce may be served upon the attorney of the party in possession of the instrument, as effectively as if served upon 1 Atwell v. Miller, 6 Md., 10; Barton v. Kane, 17 Wis., 37. Holt v. Miers, 9 Carr. & P., 191. 3 Lawrence. Clark, 14 Mees. & Wels, 250. 4 Doe v. Spitty, 3 Barn. & Adol., 182. 5 Foster v. Pointer, 9 Carr. & P., 718. the party himself.1 And service upon the attorney or agent is as good in actions of a penal nature as in any other. A subsequent change of attorneys will not invalidate the notice, provided it was served upon the attorney for the time being. §1291. One of Several Joint Parties. - Either one of two or more joint plaintiff's or defendants may be served with notice of this kind with like effect as though it were served upon each of them, provided they have possession or control of the desired document, and an admission by either that the instrument is destroyed, will dispense with notice entirely, and warrant proof of the contents of the instrument destroyed, by the next best evidence at the command of the party. $1292. Personal Service not Indispensable. It is not essential in all cases to show personal service of the notice to produce. It has been held well served when left at the usual place of abode of the party intended to be affected thereby, with some person of competent age, or where it was left at the office of the attorney. But in case of service otherwise than personal, when, through no fault of the party required to produce, the notice fails to reach him in time, reasonable indulgence should be extended to him to enable him to produce the original, in order to correct any errors or false statements by which he might be prejudiced, in the copy, or the parol testimony. 1 Simington v. Kent, 8 Ala., 691; Jefford v. Ringgold, 6 Ala., 544. Cates v. Winter, 3 T. R., 306. Doe v. Martin, 1 M. & Rob., 242. Marlow v. Marlow, 77 Ill., 633; King v. Lowry, 20 Barb., 532. VII. SERVICE. § 1293. Importance of Proper Service. 1294. Division of Subject. 1295. By whom Served. 1296. Not by Party in Interest. 1297. By Unofficial Person. 1298. When the Officer a Party. 1299. Notice of Motions, etc. 1300. To take Depositions. 1301. Upon whom Served. 1302. Original Process Served on Agent. 1303. Service upon Corporations. 1304. Statute for Benefit of Residents. 1305. Reasonableness of Rule. 1306. Service upon Foreign Corporations-Federal Judiciary Act. 1307. United States Circuit Courts have Limited Jurisdiction. 1308. How Jurisdiction Obtained in Federal Courts. 1309. How Corporations Served. 1310. Service upon Ticket Agent. 1311. Where the Statute Directory and Permissive. 1312. Service on Municipal Corporation. 1313. Upon City Clerk Insufficient. 1314. Service upon Partners. 1315. Principal Defendant. 1316. Service upon Minors. 1317. Upon Convicts. 1318. Service upon Party by Wrong Name. 1319. Variance between Name in Process and Other Papers. 1320. Several Defendants in Different Counties. 1321. Service upon Attorney. 1322. Same in Suit before Justice of Peace. 1323. Should not be upon Attorney whose Connection with Case has Ceased. 1324. "Due" Notice. 1325. Application for Injunction. 1326. Construction of "Reasonable" Notice. 1327. Time Fixed by Statute. 1328. Admission of Notice. 1329. Time of Notice of Motion for New Trial. 1330. Time Computed from Date of Service. 1331. How Time Computed. 1332. Summons Must be for Full Time. 1333. Reference to Other Parts of Chapter. 1334. Manner and Mode of Service. 1335. Personal Service. 1336. Leaving it at Place of Abode not Sufficient. 1337. Personal upon Attorney. 1338. Strict Requirement as to Summons. 1339. Different Modes of Personal Service. 1340. By Reading Original, or Delivering Writing. 1341. Written, Must be by Delivery. 1342. Rule Deduced from Foregoing. 1343. Service at Place of Abode. 1344. General Remarks. 1345. Leaving at Residence or Place of Business only Prescribed by Statute. 1346. In what Cases Officer may Elect Mode. 1347. Leaving at Place of Residence. 1348. Family of which Party is a Member. 1349. Must be at Present Place of Abode. 1350. Necessity for Strict Construction. 1351. Actions Against Property. 1352. Personal Service in Foreign State. 1353. Proof of Foreign Service. 1354. Acknowledgment of Service. 1355. Service by Mail. 1356. Chancery Proceedings in U. S. Court. 1357. On Board Foreign Vessel. 1358. Non-Resident Temporaily within Jurisdiction-when may be Effectually Served, and when Exempt. 1359. Sunday or Legal Holiday. 1360. Reference to Other Chapters. § 1293. Importance of Proper Service. - No step taken in any proceeding which has for its object the giving of notice of any thing done or to be done, in the past, present, or future, in the course of practice in the courts, is of greater, or perhaps equal importance to that of serving notice upon the party to be affected by the proceeding. The importance of careful attention to this matter arises from the fact that it is an act for the performance of which numerous ways are provided, and conse |