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practice has been adopted for its great convenience, as it saves the delay and expence of a bill in equity. But the practice in Chancery invariably is, that a party is entitled only to extracts of letters, if the other party will swear, that the passages extracted are the only parts relating to the subject-matter, (i)
But, in general, one party has not the means of compelling the other party to produce any writings in his possession, however necessary they may be for the prosecution of his suit. If such evidence is required, the rule, both in civil and in criminal cases (2), is to give the opposite party or his attorney (3) a regular notice to produce the original; not, that on proof of the notice he is compellable to give evidence against himself, or that, if he refuses to produce the papers required, such a circumstance is to be considered as conclusive against him (4), but the consequence will merely be, that the other party, who has done all in his p6wer to supply the best evidence, will be allowed to go into evidence of an inferior kind, and may read an examined copy, or give parol evidence of the contents. But, before this secondary evidence can be admitted, it ought to be clearly shewn, that the writing required is in the possession of the other party, and that n notice to produce it has been regularly served. If, in compliance with a notice, the party produces the writings in his possession, he is entitled to have the whole read (5); and if a writing produced refers to others with such particularity as to make it necessary to inspect them, that the sense may be complete, he may insist on having these also read in evidence. (6)
The rule, which requires, that a party shall have previous notice to produce a written instrument in his possession!
(1) I Taunt. 167. (4) Cooper r. Gibbons, 3 Campb.
(1) The Attorney-General v. Le 363.
JVUrrhant, 2 T. R. 201. n. (5) See ante, p. 79.265.
(3) 1 T. R. 203. n. Cates q. t. v. (6) Johnson v. GiUon, 4E«p. N. P.
Winter, 3 T. R. jc6. C. 11.
1 before before the contents can be proved as evidence in the cause, has been made with good reason; in order that the party may not be taken by surprize, in cases where it must be uncertain, whether such evidence will be brought forward at the trial by the adverse party. But this reason will not apply to cases, where from the nature of the proceedings the defendant has notice, that the plaintiff means to charge him with the possession of the instrument. It cannot here be necessary to give any other notice, than the action itself supplies. In an action of trover, therefore, for a bond, the plaintiff was. allowed to give parol evidence of the contents, to support the general description of the instrument in the declaration, without having given the defendant previous notice to produce it (i). And on a prosecution for stealing a promissory note or other writing described in the indictment, parol evidence of the contents will be received, without any formal notice to the prisoner to produce the original. In Aickles' case (2}, on an indictment for stealing a bill of exchange, all the judges held, that such evidence had been properly admitted, though it was proved in that case, that the bill had been seen, only a few days before the trial, in a state of negotiation, in the hands of a third person, who had been served with a subpoena duces tecum, but who did not appear. And in Layer's case (3), on an indictment for high treason, where it was proved, that the prisoner had shewn a person the paper, containing the treasonable matter laid in the indictment, and then immediately put it into his pocket, that person was permitted to give parol evidence of the contents of the paper. And in the case of De la Motte (4), on an indictment for a traiterous correspondence with the French government, where the question was, whether examined copies of the treasonable papers (which had been
(i) How v. Hall, 14 East, 174. Scott Go'a'd J. These copies were rejected
V. Jones, 4 Taunt. 865. on another ground, because the triginals
I?) t Leach, Cr. C. 330. had not been traced to the prisoner's
(3) 6 St. Tr. 263. possewion. See Howell's ColL of St. Tr.
(4) Cor. Buller J. and Heath}. O.B. vol. 21. p.737. 1781,1 East, P. C. 114. from MS. of
Z 2 secretly secretly opened at the post-office, and copied, and then forwarded to their place of destination,) were admissible in evidence, the court held, that they might be admitted, after proof that the originals were in the hand-writing of the prisoner.
Nor does the principle of the rule apply to the case, where a party to the suit has fraudulently got possession of" a written instrument belonging to a third person; as, where a witness was called, on the part of the defendant, to produce a letter written to him by the plaintiffj and it appeared that after the commencement of the action he had given it to the plaintiff; in this case, though notice to produce had not been given, parol evidence of the contents was admitted, because the paper belonged to the witness, and had been secreted, in fraud of the subpoena. (i)
The counterpart of a deed is evidence against the person who signed it, and against his assignee, without giving notice to produce the original. Thus in an action against the master of an apprentice, for not inserting in the indenture of apprenticeship the true consideration, an averment in the declaration, that A. B. by a certain indenture put himself apprentice to the defendant, may be proved by that part of the indenture which the defendant executed (2). So, in an action of ejectment, upon a condition of reentry for non-payment of rent, against the absignee of a lease, proof of the counterpart, executed by the original tenant, is sufficient proof of the assignee's holding on the same terms. (3)
Another case may here be mentioned, in which a majority of the judges in the Court of King's Bench were of opinion, that want of notice was not a sufficient objection,
(1) Leedi v. Cook, 4 Esp. N. P. C. (3) Roe dcm. West v. Daaia, 7 Eart,
,2; Burleigh v. Stiblis, 5 T. R. 465.
against against receiving parol evidence of the contents of a deed, because it appeared that the deed itself was in court in the possession of the opposite party (i). At the trial of an ejectment, on the several demises of Haldane and Urry, title was deduced to Haldane under a will; but one of the plaintiff's witnesses said, on cross-examination, that Haldane had conveyed all interest in the premises to Urry, before the time of the demise in the declaration, and that the deed was in court. Upon this, it was insisted, that as the plaintiff's witness proved the title out of Haldane, and as the deed of conveyance was in the court, the deed ought to be produced in evidence to shew a title in Urry, the other lessor of the plaintiff. The counsel for the plaintiff, on the contrary, refused to produce the deed, insisting that the plaintiff ought to recover under one or the other of the lessors; for, if the one had parted with the title, the other had acquired it. But Mr. J. Aston, who tried the cause, being of opinion that the plaintiff ought to give further evidence to ascertain the title, under which he was to recover the term, nonsuited the plaintiff; and on a motion afterwards for setting aside this nonsuit, Lord Mansfield, after observing that in the action of ejectment the plaintiff could not recover but upon the strength of his own title, said, "it was plain the plaintiff had no title under Haldane, who had conveyed away all the interest in the premises to the other lessor, and, that as to his claim of a title under Urry, the plaintiff had not proved any title; the jury could not have found for the plaintiff under the deed of conveyance to Urry, unless it were produced, and probfbly there was something in the deed, which would have shewn, that Urry had no title." Lord Mansfield laid the principal stress on the fact of the plaintiff's refusing to produce the conveyance from Haldane, which was admitted to be iq court. "The want of notice," he said, "was no objection in this case, because they had the deed in court; and the refusal to produce it warranted the strongest presumption,
that neither of the lessors had any title." Mr. Justice Aston and Mr. Justice Willes agreed in opinion with Lor4 Mansfield. But Mr. Justice Yates differed from the rest of the court. "He founded himself," he said, " upon the rules of evidence. The fact of the conveyance coming out on cross-examination could make no difference. The plaintiffs' counsel were not obliged to produce the deed, for no man can be obliged to produce evidence agninst himself; the only consequence of a notice to produce would have been the admission of inferior evidence." Upon this case it may be observed, that the fact of Haldane's having conveyed away all his interest to Urry seems to have been assumed as satisfactorily proved; but from the opinion of Mr. Justice Yates, (which seems to be the better opinion,) it may be collected, that there was no legal proof of any conveyance of title out of Haldane, and that the answer of the witness, upon which the defendant's argument rested, was as inadmissible in evidence on the cross-examination, as it would have been on an examination in chief. The true objection to such evidence is, that the witness was speaking to the contents of a deed, when there had been no notice given to produce the original; and it docs not appear to be a sufficient answer to say, that the deed is in court; for, if the party had received a regular notice to produce it, he might have come prepared with evidence to repel any inference, which the production of the deed might have raised against him.
Proof of A panj>l notice, to produce writings, may be proved by notice. a third person who delivered the notice, or by one who heard it delivered; and a written notice may be proved by a duplicate original (i). A notice to quit may be proved in the same manner by a duplicate original, in an action of ejectment. It may be objected, that the duplicate is not the best evidence of the contents of the notice delivered, as the supposed duplicate original may be inaccurate, and the
fi) Gotlieb v. Danver1, I Esp. N. P. C. 455. Surtees v. Hubbard, 4 Ejp.