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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 (1). 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 probably 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 in 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,
(! Doe on the several demises of Haldane and Urry v, Harvey, 4 Burr. 2484. Z 3
that neither of the lessors had any title." Mr. Justice Aston and Mr. Justice Willes agreed in opinion with Lord 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 does 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.
A parol notice, to produce writings, may be proved by 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(1). 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 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(1). 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)
Proof of notice.
(1) Gotlieb v. Danvers, 1 Esp. N. P. C. 455. N. P. C. 203,
Surtees v. Hubbard, 4 Esp.
contents (1) Per Lord Eldon C. J. Jory v. 237. Philipson v. Chase, 2 Campb. Orchard, 2 Bos. & Pull. 41.
If a party, in compliance with a notice, should produce Deed, proa deed, or other instrument, called for by the adverse party, duced under
3! notice, 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
110. S. P. Ackland v. Pearce, 2 Campb. (2) 2 Bos. & Pull. 39.
601. (3) Anderson v. May, 2 Bos, & Pull. (4) Nodin v. Murray, 3 Campb. 228. Z 4
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 primâ 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 (1).” 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 primâ facie as duly executed. (2)
In the next reported case on this subject, the case of Gordon 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) 2 T. R. 43.
(2) R. v. Inhabitants of Middlezoy, 2T.R. 41.
(3) 8 East, 548. Wetherston v. Edgington, 2 Campb. 94. S. P,
the contrary would clearly appcar: 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 (1). 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 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, 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
(1) 3 Taunt. 6200