BOLLAND, B.-It appears to me that this form has been Exch. of Pleas, pursued from the earliest times, and has the concurrent authority of all the precedents. It must, in my opinion,

be pursued.

GURNEY, B., concurred.

Judgment for the defendant.

1832.

NICKLING

V.

DICKENS.

TRAVIS v. COLLINS.

HATFIELD entered into an agreement with Collins, by which the latter took a mill from Hatfield, and undertook to keep the same in tenantable repair. Hatfield sold the mill to the plaintiff, and the mill having been destroyed by fire, the plaintiff filed a bill in Chancery to compel the defendant to rebuild it; and, in the defendant's answer, the existence of the agreement was admitted, and a copy set out.

If two parts of an agreement be interchangeably executed be

tween landlord

and tenant, in an

agreement by a purchaser of tha premises, the Court will not compel the tenant to produce

action upon the

The plaintiff afterwards brought an action upon the his part to be agreement, and

Cowling moved for a rule to shew cause why the defendant should not produce the agreement at the stamp office, to have it stamped, and why he should not produce it at the trial, and give the plaintiff a copy.

The former part only of the rule was granted, because it was observed by Bayley, B., that the plaintiff might give

secondary evidence, if the original was not produced at

stamped, unless such purchaser has applied to the vendor, or

used every en

deavour, without success, to

find him.

Quære, as to the power of the Court to restrain a party from taking an

objection to evi

dence at Nisi

Prius-e. g. the production of an

unstamped

the trial, and it might be unjust to allow the plaintiff to agreement. read the agreement, without also taking the explanation which might be given of it in the defendant's answer.

Exch. of Pleas, 1832.

TRAVIS

C.

COLLINS.

It was sworn in answer to this application, that the defendant's copy of the agreement had been destroyed after it was returned from Chancery; and cause was shewn by

Wightman. The defendant cannot produce what he has not. But, even if his copy was in existence, the vendor, Hatfield, under whom the plaintiff claims, was the proper person to have resorted to; for, he must have, or ought to have, a copy; and, until application has been made to him, no order can be granted against the defendant. Moreover, the plaintiff is no party to the agreement, and upon that ground the Court cannot interfere. In Lawrence v. Hooker (a), the Court refused to compel the production of an instrument for the purpose of having it stamped, at the instance of a plaintiff who was no party to it, because it would be dangerous to interfere with the rights and liabilities of third parties. The ground upon which the Courts have interfered, is, that the party who has the custody of the instrument held it as a trustee for the applicant. Street v. Brown (b). But, where the applicant is no party to the instrument, or the information can be obtained from another source, Brown v. Rose (c), the Court will make no order.

Cowling, contrà, prayed a reference to the Master, to ascertain when the defendant's copy of the agreement had been destroyed, and, if found to have been destroyed designedly, for a rule to shew cause why secondary evidence of it should not be given without a notice to produce the original; and he cited as a precedent for the application, Bousfield v. Godfrey (d).

LORD LYNDHURST, C. B.-In the case cited, there was

(a) 2 M. & P. 9; S. C. 5 Bing. 6.

(b) 6 Taunt. 302.

(d) 2 M. & P. 771; S. C. 5 Bing. 418.

(c) 6 Taunt. 283.

1832.

a copy of the agreement in the defendant's custody; in this Exch. of Pleas, there is not. If we were to make such an order, the defendant might, nevertheless, tender a bill of exceptions for the reception of improper evidence.

Rule discharged.

TRAVIS

V.

COLLINS.

On a subsequent day, Cowling again moved for leave to stamp a copy of the agreement, and for a rule to shew cause why the defendant should not be precluded from producing the original at the trial, or from objecting to the want of any stamp thereon; or why an attachment should not issue against the defendant for destroying the agreement, if it should appear to have been destroyed after the rule to produce it was obtained. Several applications had been made to Bolland, B., at Chambers; the first was made on the 26th January, which was discharged. It was again renewed on the 18th February: and, after several attendances, an order was made for the production; which, on the 24th February, was recalled. He cited Bousfield v. Godfrey, and relied upon Alver v. George (a) as supporting the equitable jurisdiction of the Court to interfere and prevent the defendant from producing the original agreement, or objecting to the production of a copy because the original was not stamped; and, in answer to the observation that the defendant might tender a bill of exceptions, he mentioned Gulley v. Bishop of Exeter (b), to shew that a Court of error would not inquire into the propriety of an order made by the Court. [Bayley, B.-The Court cannot do more than grant a rule to shew cause why the copy should not be stamped, in order that it may be used at the trial, if available. It is doubtful whether we can restrain the defendant from objecting that the ori

1832.

Exch. of Pleas, ginal was not stamped; for, the effect of such an order would be, to alter the rule of evidence, and I do not see how a Judge at the trial, could, under the circumstances, refuse to seal a bill of exceptions.]

TRAVIS

บ.

COLLINS.

The rule was accordingly drawn up to stamp the copy, and for the attachment; and, in answer, the defendant shewed that his copy of the agreement had been destroyed before the making and recalling of the order of the 24th February, and that two originals of the agreement had been executed, one of which the defendant believed to be in the custody and under the control of Hatfield, the vendor.

Wightman shewed cause, and contended that there was no necessity to call upon the defendant to produce the agreement, and that the plaintiff stood in the situation of Hatfield, who could not have compelled the defendant to produce his part of the agreement; and, further, that the plaintiff ought not be allowed to stamp a copy of the agreement and produce it in evidence, as there was one part of it in Hatfield's hands.

Cowling, in support of the rule, insisted that the rule was in advancement of justice, as Hatfield could not be found by the plaintiff, and might be called by the defendant to shew that he had an original, which, if not stamped, would render the copy inadmissible in evidence.

BAYLEY, B.-The facts are now more fully before the Court than upon the former discussion. There were originally two parts of the agreement, one of which is sworn to be in the possession of Hatfield, through whom the plaintiff claims, and from whom he purchased. That part should properly be in the possession of the plaintiff. If only one part of this agreement had originally existed, the Court would have ordered the party in whose possession it was to attend at the stamp office for the purpose of having it stamped; and, had it been found, that, for the

1832.

TRAVIS

V.

COLLINS.

purpose of evading the order of the Court, the instrument Exch. of Pleas, had been destroyed, the Court might, under such circumstances, have ordered a copy to be stamped; but, whether such order would have made the stamped copy admissible in evidence, would have been a matter of very great doubt. The rule that a party who has an instrument in his possession shall be compelled to produce it for the purpose of stamping it, does not apply if it appears that, at the time when the agreement was made, there were two parts interchangeably executed. Here it is sworn that the defendant believes that one part is in the possession of Hatfield, and therefore this case is not within the ordinary rule. The plain ground upon which the Court are bound to discharge this rule, is, that, as there were two parts of the agreement, there was no foundation for applying to this Court to order the defendant to produce his part to be stamped, as the Court could not have made the order - without being satisfied that every attempt had been made to obtain that copy which was originally in Hatfield's possession. However, as the existence of the two parts is now mentioned for the first time, the rule should be discharged without costs.

VAUGHAN, B.-It is only where there is but one part of the agreement that the Courts are in the habit of interfering. There was only one part in Bousfield v. Godfrey, and that had been surreptitiously obtained by the defendant.

BOLLAND, B.-In the discussions before me it was never intimated that there were two parts of the agreement, and therefore I think that the rule should be discharged with

out costs.

Rule discharged, without costs.