Maye v. Carbery

(iiem. con.) decided that the plaintiff was not entitled to judgment by default, under the 15th section of the Judiciary Act of 1789, [1 Stat. at Large, 73,] because he had not given notice of a motion to the Court for an order to compel the defendant to produce the paper. And that the plaintiff must lay the foundation for his secondary evidence, by satisfying the Court by his own affidavit, or otherwise, that the original once existed, and that it was not in his power to produce it.