¶1— The only question presented is, whether the testimony of a witness offered to prove the contents of a declaration inserted in a writ of attachment, which had been settled and continued to be in possession of the attorney, who commenced the suit, without having been filed in court, was properly excluded.
¶2The attorney for the plaintiff appears to have been the attorney for another person, who caused that suit to be commenced against the plaintiff and another.
¶3The notice given to the attorney during the trial to produce that writ was ineffectual and unimportant; and any notice more seasonably and regularly given would have been equally so, because that writ does- not appear to have been in the possession of the plaintiff, or subject to his control. Proof of this was indispensable. 1 Greenl. Ev. sect. 560, note 2. Although the writ was in the possession of the plaintiff’s attorney, it was not held by him as the attorney or agent of the plaintiff or subject to his control.
¶4The defendant might have obtained the writ by a subpoena duses tecum; but neglecting to pursue that course, he could not have been legally permitted to prove the contents of the declaration by the testimony of a witness.
¶5The case of Frost v. Shapleigh, 7 Greenl. 236, is not similar in principle. The officer in that case had not made upon the writs of attachment any returns, because the suits had been settled. The writs were produced, and the doings of the officer not existing in writing, were permitted to be proved by the testimony of witnesses. Exceptions overruled.