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contents may be proved to a certainty by the production of the notice itself; but, on the other hand, extreme inconvenience would arise from a stricter medium of proof; for, if a duplicate notice to quit is not sufficient, no more is a duplicate of the notice to produce, and thus notices might be required in infinitum. The practice of allowing duplicates of this kind in evidence seems further to be sanctioned by this principle, that, as the original delivered is in the hands of the other party, it is in his power to contradict the duplicate original, by producing the other, if they vary(i). Upon the same principle, where a notice is given to a magistrate previous to the commencement of an action against him, or where a demand is made of a copy of a warrant preparatory to an action against a constable, if another paper is made out at the same time precisely to the same effect as that delivered, both may be considered originals, and the paper so preserved may be received in evidence without a notice to produce the one delivered (2). From analogy to these cases, in an action on an attorney's bill, though the plaintiff cannot produce parol evidence of the contents of the bill delivered, without giving notice to produce it, yet a copy, made out at the same time and proved to be correct, has been admitted to be good evidence (3). A duplicate, which has been taken from an original letter at a single impression by means of a copying machine, is still only a copy; and therefore cannot be read, without a previous notice to the other party to produce the original. (4)
If a party, in compliance with a notice, shouW produce Deed, proa deed, or other instrument, called for by the adverse party, duc.e<1 under
. , ' 'nonce, how
the next question is, which of the parties ought to prove proved, the execution, the one who calls for its production, or the other who produces. The general rule, laid down by Mr. Justice Buller, is, that "in civil actions, where a plaintiff
(1) Per Lord EUon C.J. Jory v. 137. Philipson v. Chase, 2 C«mpb.
Orchard, 2 Bos. Sc Pull. 41. 110. S. P. Ackland v. Pearce, 1 Camib.
(1) aBos. & Pull. 39. 601.
[3) Anderson v. May, 1 Bos. Sc Pull. (4) Nodin v. Murray, 3 Campb. 228.
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wishes to give in evidence a deed in the defendant's custody, he gives the defendant notice to produce it; and the deed, when produced, must prima facie be taken to be duly executed; because the plaintiff, not knowing who are the subscribing witnesses, cannot come prepared at the trial to prove the execution (i)." Therefore, in a case of settlement, where the respondents had given notice to the appellants to produce an indenture of apprenticeship, by which the pauper was bound in the appellant parish, and which indenture was accordingly produced at the trial of the appeal, the court of King's Bench held, that the court below ought not to have required the respondents to prove the execution, but that the indenture should have been admitted prima facie as duly executed. (2)
In the next reported case on this subject, the case ofGordon and others v. Secretan (3), Ld. Ellenborough C. J. said, that the case of the Kingv.Middlezoy had been much questioned at the time, and since overruled; and that the production of an instrument at the trial, in pursuance of a notice, would not supersede the necessity of proving it by one of the subscribing 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 an action upon a policy of insurance on shipped goods, the plaintiffs averred in their declaration that they were interested in the subjectmatter 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,
(1) 1T. R.43. (}) 8 E«t, 548. WetherJton r.
,f1) *• v. Inhibitants of Middleioy, Edsington, i Campb. 94. S. P.
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 inferred, 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 by the late case of Pearce v. Hooper and others (i). That was an action of trespass, and the question at the trial was, whether the place, in which the trespass was alleged, belonged to the plaintiff as part of a 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 adu :tte<4 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, had been properly put in the case of a will, cited in 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
(i) 3 Taunt. 61.
to 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 defendant (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. The result therefore at present appears to be, 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 estate, it will not be necessary, that the other party, a stranger to the instrument, should call an attesting witness to prove the execution; but that, in other cases, the execution ought to be regularly proved by the party, who offers the instrument as part of his evidence in the cause. *
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 in that case be admitted. The party, after proving any of these circumstances, to account
• The plaintiff may have a rule nisi, calling on the defendant, to [ reduce a deed before the commifsioners of the stamp offi e, to be stamped; or to give the plaintiff a copy of a deed, in order that he may declare upon it. Cooke v. Stocks, 36 G. 3. K. B. 1 TidJ. Prac. 486. Bateman v. Philips, 52 U.3. C P. ib. And where the i.laintiff commenced an action of covenant on an indenture of assignment of a lease, only one part of which had been executed, and that was in the hand* of the defendant, the court of Commcn Pleas granted the plaintiff a rule nisi, for readmg and taking a copy of this pair. Blakey v.Porter, 1 Taunt.386. See ante, p. 436.
Secondary evidence, when admitted.
for the absence of the original, may read the counter-part; or, ,if there is no counter-part, an examined copy; or, if there should be no examined copy, he may give parol evidence of the contents (i). Proof by a witness, that the paper in question was thrown aside as useless, and that he believes it to be lost or destroyed, will be sufficient to let in the secondary evidence (2). And, in a late case, where it appeared, that the defendant had acknowledged the receipt of a letter of a particular date, which he refused to produce at the trial, it was ruled, that an entry in a letter-book, (purporting to be a copy of a letter of the same date from the plaintiff to the defendant, and inserted by a deceased clerk, w ho kept the book according to the course of business, and with great punctuality,) was admissible evidence of the contents of the letter in question (3). It is scarcely necessary to observe, that the rule in this respect is precisely the same both in criminal and in civil cases.
If the ground for admitting the secondary evidence is, that the original has been lost, it ought to be shewn, that every reasonable enquiry has been made, and the last person, into whose possession it is traced, should be called to give some account of the instrument. Thus, in a case of settlement, where it appeared that an indenture of apprenticeship consisted of two parts, one of which had been destroyed, and the other had come to the hands of a person, who was living and had not been subpeena'd, but had beep heard to say, that he could not find the part, and did not know where it was, the court of King's Bench was#f opinion, that this was not a sufficient ground for admitting parol evidence of the contents (4). But if the indenture were to be traced into the hands of a deceased person, who, in answer to inquiries respecting it, had stated, that it was destroyed while in his possession, any further search for
(t) Vill:ers v. Villiers, 2 Atk.71. (3) Pritt v. Fairclough, 3 Camplv
(2) R. v Mr. Just. Johnson, 7 2ast, 305. 66. 8 East,284. (4)R.v. Castleton, 6T.R, 236. R.
v. St. Sepulchre, 2 Bott. 353.