Merchants' National Bank v. State National Bank. books or writings conSuch notice, however, duces tecum. Notice to produce was the only remedy of a party in a suit at law, unless he resorted to equity, in case the other party to the record had in his possession taining evidence material in the trial. 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 writings described in the notice were in the possession of the party notified, and that he refused to produce them at the trial, as requested. Recent acts of Congress make parties, where the suit is between individuals, competent witnesses, which in many cases affords a better and more certain remedy in relation to books and writings in possession of the opposite side, than notice to produce. Besides these common-law remedies to obtain such books and writings, when "pertinent to the issue," power is conferred upon the Circuit and District Courts of the United States to require a party, in the trial of actions at law, to produce books or writings in his possession or power, if it appears that they contain evidence pertinent to the issue, and the case and circumstances are such that he might be compelled to produce the same by the ordinary rules of proceedings in chancery suits. Undoubtedly the power conferred is a discretionary power, but it is one which should be firmly exercised in a case falling within the conditions specified in the provision, when it appears that there is just ground to apprehend that delay will defeat the action of the court, and that the party is unable to obtain the evidence by subpoena duces tecum, and that the case and circumstances are such that notice to produce is not a safe and adequate remedy. Unless the case is shown to be one within the conditions specified in the provision, the power " to require " or pass the order does not exist. Those conditions are that the motion must be in a case at law, and on due notice to the opposite party, and it must appear that the books or writings are in the possession or power of the other party, and that they contain evidence pertinent to the issue, and that the case and circumstances are such that the party might be compelled to produce the same, as therein pro Merchants' National Bank v. State National Bank. vided. No doubt is entertained that the motion may be made, in a pending action at law, before the day of trial; but the requirement of the order of the court must perhaps be that the books and writings be produced at the trial of the action. Such an order may be absolute or nisi, as the circumstances may justify or require. Production before the trial is not perhaps contemplated by the words of the provision, nor is it in general necessary, as the penalty, in case of failure to comply with the order, is not arrest and imprisonment until the party comply, as for a contempt, but a judgment of nonsuit, or default, as the plaintiff or defendant is the offending party. Where the motion is accompanied by satisfactory proof that the case is one in all respects within the conditions of the provision, and it is also satisfactorily shown that there is just ground to apprehend that the books and writings may be destroyed or transferred to another, or removed out of the jurisdiction before the day of trial, the order should be made without delay, and be absolute. On the other hand, if there is no suggestion of fraudulent intent to suppress the documents, and the evidence to show that they contain any matter pertinent to the issue is not satisfactory, the order, if made at all, should be made nisi, or the application may be refused. 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 Merchants' National Bank v. State National Bank. 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. THE MERCHANTS' NATIONAL BANK OF BOSTON v. THE STATE NATIONAL BANK OF BOSTON. BEFORE CLIFFORD AND LOWELL, JJ. Judges of the Circuit Courts cannot direct a peremptory nonsuit, but the defendant, when the plaintiff's care is closed, may move the court to instruct the jury that the evidence introduced by the plaintiff is not sufficient to warrant a verdict, and that, as matter of law, their verdict should be for the defendant. The motion must be made at the close of the plaintiff's case, or the trial must proceed. The motion is rot addressed to the discretion; it presents a question of law, and the ruling of the court is a subject of exception. A power evidenced by a usage must be considered as defined and limited by that usage; and if it appeared that a usage existed among certain banks other than the defendant bank for the cashier to certify checks upon them, it is doubtful if it could be regarded as evidence that the cashier of the defendant bank had any such authority. The motion by the defendant in this case, that the court instruct the jury that the evidence introduced by the plaintiff was not sufficient to warrant a verdict, was allowed, because it was held that the act of June 3, 1864, conferred no authority upon the cashier of the defendant bank to certify as good the checks described in the declaration. ASSUMPSIT upon certain checks upon the defendant bank, and certified as good by the cashier thereof. At the close of the plaintiff's case the defendant moved that the court instruct the jury that the evidence introduced by the plaintiff was not sufficient to warrant a verdict. Sidney Bartlett, J. G. Abbott, for plaintiffs. B. R. Curtis, C. B. Goodrich, B. F. Thomas, for defendants. CLIFFORD, J. Repeated decisions of the Supreme Court have established the rule that the judges of the Circuit Courts cannot direct a peremptory nonsuit when the plaintiff is present in court and claims the right to submit his case to the jury. But the defendant instead thereof, when the plaintiff's case is closed, may, Merchants' National Bank v. State National Bank. if he sees fit, move the court to instruct the jury that the evidence introduced by the plaintiff is not sufficient to warrant a verdict in his favor, and that as matter of law their verdict should be for the defendant. Unless such a motion is made for the defendant at the close of the plaintiff's case, the trial must proceed, and the evidence must be submitted to the jury, under the instructions of the court. When made, the motion is not one addressed to the discretion of the court, but it presents a question of law, which it is the duty of the court to decide, and the ruling of the court, in granting or refusing the motion, is as much the subject of exceptions by the party aggrieved as any other ruling of the court in the course of the trial. In considering the motion, the court proceeds upon the ground that all the facts stated by the plaintiff's witnesses are true; and the rule is, that the motion should be denied, unless the court is of the opinion, in view of the whole of the plaintiff's evidence, oral and written, and of every inference the law allows to be drawn from it, that the plaintiff has not made out a case which would warrant the jury to find a verdict in his favor. Evidently the plaintiff's case, when viewed in that light, presents a question of law for the court, and it is well settled by the highest authority that it is the duty of the court to give the instruction whenever it appears that the evidence is not legally sufficient to serve as a foundation for a verdict for the plaintiff. Scuchardt v. Allens, 1 Wall. 370; Parks v. Ross, 11 How. 362; Bliven et al. v. New England Screw Company, 23 How. 433. Guided by these views, the court has come to the conclusion that the prayer for instruction presented by the defendants must be granted. Considering that the case is one which will probably be removed into the Supreme Court for review, the court does not deem it necessary or expedient to enter into any extended discussion of the several questions involved in the motion. Briefly expressed, the grounds of the decision of the court may be stated in the following propositions, in which both judges concur: 1. That the act of Congress of the 3d of June, 1864, entitled An Act to provide a National Currency, etc. conferred no au Merchants' National Bank v. State National Bank. thority upon the cashier of the defendant bank to certify, as good, the several checks described in the first eight counts of the declaration. 13 Stat. at Large, 99. §§ 8 and 23. 2. That the power to certify the checks of third persons, in behalf of the corporation, is not inherent in the office of a cashier of a national bank, nor is the exercise of such a power within the scope of his usual and ordinary duties. United States v. The City Bank of Columbus, 21 How. 56; Miner et al. v. The Mechanics' Bank of Alexandria, 1 Pet. 71; Bank of United States v. Dunn, 6 Pet. 51; Fleckner v. United States Bank, 8 Wheat. 360; Osborn v. Bank of United States, 9 Wheat. 738; Mussey v. The Eagle Bank, 9 Met. 306; Kirk v. Bell, 16 Q. B. 290; Same Case, 12 Eng. L. & Eq. 389; Hoyt v. Thompson, 1 Seld. 320; Bank Comers v. Bank of Buffalo, 6 Pease, 497; 1 Am. Lea. Cas. 460-472. Recent cases decided in the courts of New York, referred to by the plaintiffs, do not affect the question, as they were founded upon either an admission in the pleadings, or an agreed statement of facts, admitting that the usage was that cashiers might certify checks, or on proof that such had been the practice of different banks. Whether the teller had authority from the bank to certify checks was not a question in the case of Willets v. The Phoenix Bank, 2 Duer, 129, because the opinion of the court shows that the complaint averred, and the answer admitted, that the certifying the checks was the act of the defendant bank. Slight examination also of the case of The Farmers and Mechanics' Bank of Kent County v. The Butchers and Drovers' Bank, 4 Duer, 219, will show that it contains nothing to support the theory that the cashier of the defendant bank had authority to certify as good the checks in question in this case. The statement of the court in that case was that the teller "had general authority to certify checks," but the exception to his acts was, that his general authority in that behalf was qualified by directions not to give such certificates, unless the customer had funds. Contrary to those instructions, the charge of the defendant bank was, that he colluded with a customer, and certified his checks, when the customer had no funds on deposit. The decision of the |