witnesses, as in ordinary cases. And Mr. Justice Lawrence added, that this point had been so ruled by Lord Kenyon in a subsequent case, where the adverse party, having notice to produce a written instrument, produced it accordingly at the trial, and Lord Kenyon held, that the party, who called for it, was bound to call one of the subscribing witnesses to prove the execution. In the case of Gordon and others v. Secretan, which was as action upon a policy of insurance on shipped goods, the plaintiffs averred in their declaration, that they were interested in the subject-matter of the insurance, and the defendant, intending to dispute that fact at the trial, gave the plaintiffs notice to produce certain articles of agreement made between them and the captain of the ship, by which, as it was contended, the contrary would clearly appear; in pursuance of this notice, the plaintiffs at the trial produced the instrument, attested by two witnesses, and insisted, that the defendant should call one of them to prove the execution. The point was so ruled at nisi prius, and afterwards confirmed by the Court of King's Bench. From this case, therefore, it might be in- General rule. ferred, that, if a party to a suit, in consequence of a notice, produces an instrument executed between himself and others, yet that the other party, though a stranger to the instrument, ought to prove the execution, if he means to avail himself of it in evidence. The rule, however, has been properly restricted in certain Exception. cases. In the case of Pearce v. Hooper (1,) and action of 1. Where the trespass, where the question was, whether the place in which party producing claims unthe trespass was alleged, belonged to the plaintiff as part of a der the deed. certain estate; the defendants gave notice to the plaintiff to produce a deed of conveyance, in which the estate had been conveyed to the plaintiff by a description limited to a number of acres, which, it was said, would necessarily exclude the place in question; the plaintiff produced the conveyance, and, on the authority of the cases before mentioned, it was ruled, that the defendant ought to prove the execution, which, as he was not prepared to prove, the instrument could not be received in evidence. But, on a motion afterwards for a new trial, the Court of Common Pleas were of opinion that it was not necessary for the defendants in this case to call the attesting witness, to prove the execution. The Court admitted, that the mere possession of an instrument by one party cannot, in general, absolve the other party who calls for it, from the necessity of producing the attesting witness. "An instance to illustrate this," said the Chief Justice "has been properly put in the case of a will, cited in the case of Gordon v. Secretan; for, supposing that an heir at law is in possession of a will, and the devisee brings an ejectment, and calls on the heir to produce the will, there the heir claims not under the will, but against the will, and it would be hard, that the will should be taken as proved against him, because he produces it. But that is very different from the case, where a man is called upon to produce a deed, under which he holds an estate. The plaintiff, (added the Chief Justice, with reference to the case then before the Court,) has no interest in the fee simple of the estate, if this deed does not convey it: if, then, he produces the deed, under which he claims, shall it not be taken to be a good deed, so far as relates to the execution, as against himself?" The other Judges concurred in opinion, and a new trial was granted. In the case of Orr v. Morice (1,) (g) which was an action for the use and occupation of premises, against the assignees of a bankrupt, the Court of Common Pleas held, that the deed of assignment of the bankrupt's effects, produced by the defendants at the trial, under a notice from the plaintiff, was admissible in evidence, without proof of the execution by the subscribing witness, as it appeared that one of the assignees had continued to occupy the premises for some time after the act of bankruptcy. The principle to be deduced from these cases is, that, when a party to a suit, in pursuance of a notice, produces an instrument, to which he is a party, and under which he claims a beneficial interest, it will not be necessary that the other party should call an attesting witness to prove the execution. (h) (1) 3 Brod. & Bing. 189. tween tenant In an action by a lessee against an assignee, if the defendant Action beproduce the original lease at the trial, it will not be necessary for and landlord. the plaintiff to call a subscribing witness; and the circumstance of the defendant having assigned his interest to a third person, cannot make any difference in the rule. (1) (i) In the last case upon this subject, where the attorney of the lessor of the plaintiff, in an action of ejectment, obtained from one of the defendants a lease of the premises in question, granted to him for a term, in order to prevent the defendants from setting it up to defeat the action; this was held to be such a recognition of the lease by the attorney, on behalf of his client, who was to derive a benefit from the possession of the lease, as would dispense with the formal proof of execution, on the production of the instrument from the hands of the attorney. (2)(j) sheriff. Another very reasonable exception to the general rule has been Action against made, in the case of an action against a sheriff, for taking insufficient pledges in a replevin bond; in which it has been held, that the replevin bond produced by the sheriff, a public officer, whose duty it was to take such bond,) may be admitted, without proof, against him, as duly executed. (3) be read. If a party, in compliance with a notice, produces a written instru- How much to ment in his possession, he is entitled to have the whole read; (4) and if the instrument refer to others with such particularity as to make it necessary to inspect them, that the sense may be complete, or, referring to other writings, adopt them as part of its own meaning, he may insist on having these also read in evidence. (5)(k) Thirdly, as to the admissibility of secondary evidence of writings, which have been lost or destroyed. (1) Burnett v. Lynch, 5 Barn. & Cress. 589. (2) Doe, dem. Tyndale v. Hening, 6 Barn. & Cress 29. been given to the defendant to pro- (4) See ante, p 359. (3) Scott v. Waithman, 3 Starkie, N. P. C. 168. Barnes v. Lucas, Ry. & Mo. 264, S. P. There was no count in the declaration, for omitting to take a replevin-bond. Notice had 171. (5) Johnson v. Gilson, 4 Esp. N. P. C. 21. Wheeler v. Atkins, 5 Esp. 246. Falconer v. Hanson, 1 Campb. (i) See Note 857, p. 1206. (j) See Note 858, p. 1206. (k) See Note 859, p. 1206. Secondary evidence of writings. On non-prcduction. On proof of loss. Power of attorney. If a party intend to use a deed or any other written instrument in evidence, he ought to produce the original, if he has it in his possession;() but, if the instrument is in the possession of the other party, who refuses to produce it after a reasonable notice, or if the original is lost or destroyed, secondary evidence, which is the best that the nature of the case allows, will then be admitted. (m) And the secondary evidence, if in writing, need not be stamped. (1) In case the other party refuse to produce an original deed or agreement, which is in his possession, and which he has had notice to produce, secondary evidence of the contents will be received without proof of the execution of the original. (2) After once refusing to produce, and obliging his opponent to resort to secondary proof, he shall not be at liberty to retract, or by producing the original, when it is not wanted, to insist upon the formal proof of its execution. (3)(n) If the original has been lost or destroyed, and two or more parts have been executed, the loss or destruction of all the parts should be proved, before secondary evidence of the contents can be received (4)(0); and the original deed ought to be proved to have been duly executed (5), unless proof of the execution would be dispens. ed with, if the original itself were produced, or unless the want of the original is occasioned by the default of the other party, in which case, the execution may reasonably be presumed against him. (p) So, where an original note of hand is lost, a copy cannot be read in evidence, unless the note is proved to be genuine. (6) On the impeachment of Lord Melville, (7) the Committee of managers, in order to prove the contents of a letter of attorney, (under which, it was said, Mr. Douglas had been authorized by Lord Melville to apply to the Treasury for monies from time to (1) Munn v. Godbold, 3 Bing. 292. (3) Jackson v. Allen, 3 Stark. N. (4) Bull. N. P. 254. R. v. Castleton, 6 T. R. 236. (5) R. v. Sir T. Culpepper, Skinner, 673, by Holt, C. J. (6) By Lord Hardwicke, C. J. Goodier v. Lake, 1 Atk. 246. (7) 29 Howell St. Tr. 714-723. (1) See Note 860, p. 1207. (m) See Note 861, p. 1214. (n) See Note 862, p. 1219. (0) See Note 863, p. 1220. (p) See Note 864, p. 1220. (q) See Note evidence of time, as his paymaster,) offered in evidence an entry in a book, Secondary kept in the exchequer, which book contained entries of all the writings. letters of attorney for the receipt of money at the Exchequer. It was satisfactorily proved, that no such letter had been found, on at diligent search, among Mr. Douglas's papers shortly after his death; it was proved also, that an official order had been made out for Mr. Douglas to receive money, under a letter of attorney; and the fact of Mr. Douglas's appointment as paymaster clearly appeared from a letter in Lord Melville's handwriting, dated only two days after the date of the proposed entry. The clerk of the office also proved, that he had made the entry from the original letter of attorney; which entry purported to contain the names of persons, as attesting witnesses to the letter. After argument, the entry was rejected. "There is no legal proof," said the Lord Chancellor," of Lord Melville's hand-writing; it does not appear, whether the attesting witnesses are living or dead; nor does it appear, that Mr. Douglas ever received any money under that appointment." For these reasons, it was determined, that the managers had not entitled themselves to read the paper. Upon this, the managers proceeded further (1,) and tendered in evidence a certificate signed by Mr. Douglas as paymaster, and given by him to the Navy-Office, acknowledging the receipt of money by him at the Exchequer; the managers then produced entries in the Bank books, signed by Lord Melville and Mr. Douglas, in the common form of opening an account; and afterwards called a witness, whose name and description corresponded with the name and description of one of the attesting witnesses in the proposed entry; and this witness stated, that he had some recollection, though very slight, (for the entry bore date about 24 years before this time,) of providing a stamp for the power of attorney from Lord Melville to Mr. Douglas, and of attesting it at the navy-pay-office. Upon this evidence, the Lord Chancellor declared his opinion, that the entry was admissible, and the Lords allowed it to be read. (2) On the hearing of an appeal against an order of removal, (3) the principal question was, whether one person only, or more (1) 29 Howell St. Tr. p. 723-739. (2) Ibid. p. 739. (3) R. v. Stoke Golding, 1 Barn. & Ald. 173. |