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dence of the service of the notice, and of the time when it was served.” It would seem that “sufficient evidence” means in this rule primâ facie evidence only; see Barraclough v. Greenhough, L. R., 2 Q. B.612, Ex. Ch., post, p. 149. This rule dispenses with the notice to admit which was required under the C. L. P. Act, 1852, s. 119, now repealed by the Statute Law Revision and Civil Procedure Act, 1883, 46 & 47 Vict. c. 49.
It has been held that a party is not to be allowed, either in an examination in chief or in cross-examination, to inquire into the contents of a deed, merely because the opposite party has the original deed in his possession in court at the time of the trial, not having received a notice to produce. Roe d. Haldane v. Harvey, 4 Burr. 2484; Bute v. Kinsey, 1 C. M. & R. 38. But this doctrine has been denied, and the cases on which it is founded, distinguished in Dwyer v. Collins, 1 Exch. 639; 21 L.J., Ex. 225, where it was held that if a party have the document in court at the trial, a requisition to produce it, given at the trial, will be sufficient to let in secondary evidence to it, if production be refused ; and the solicitor of one party may be asked in court whether he has the document in court, and is bound to answer the question, though he may be justified in refusing to produce it on the ground of confidence. For the object of a notice is only to give the party an opportunity to produce it, if he please.
Although the contents of a document may be proved by an admission of the opposite party out of court, yet it seems that the party cannot himself be cross-examined (when produced as a witness) respecting its contents, unless he has had notice to produce it. Durby v. Ouseley, 25 L. J., Ex. 227. In this last case it did not appear that the party interrogated had the document in his power or possession, and the language of the court almost goes to the extent of showing that a party cannot be called on to say whether he admits the contents of any document, though his admission out of court would have been evidence according to Slatterie v. Pooley, ante, p. 2. The court considered that there was a difference between proving an admission and calling upon the party in court to make one. See also Whyman v. Garth, 8 Exch. 803 ; 22 L. J., Ex. 316, cited post, p. 131.
An admission in the usual form, under a notice to admit, as now required, of the accuracy of a copy, will not dispense with a notice to produce the original, if in the opposite party's possession, or with other pre-requisites for_the reception of secondary evidence. See Sharpe v. Lamb, 11 Ad. & E. 803; Ādmission under notice to admit, post, pp. 73
Notice to produce; proof of possession of original.] In order to render a notice to produce available, it must be proved that the original instrument is in the hards of the opposite party, or of some person in privity with him. The nature of this evidence must vary according to the nature of the instrument. Where it belongs exclusively to the party, slight evidence is sufficient to raise a presumption that it is in his possession. Thus, where a solicitor proved that he had been employed by the defendant to solicit his certificate, and that looking at his entry of charges he had no doubt the certificate was allowed, this was held to be presumptive proof of the certificate having come to the defendant's hands. Henry v. Leigh, 3 Camp. 502. Where the instrument has been delivered to a third person, between whom and the party to the suit there exists a privity, notice to the latter is sufficient; as in an action against the owner of a vessel for goods supplied to the use of the vessel, a notice to the defendant to produce the order for the goods, which had been delivered to the master by the defendant, is sufficient. Baldney v. Ritchie, 1 Stark. 338. So in an action against the sheriff, a notice to his solicitor to produce a warrant, which has been returned to the under-sheriff while the defendant was in office, is sufficient, whether the defendant be in or out of office at the time of notice._Taplin v. Atty, 3 Bing. 164; Suter v. Burrell, 2 H. & N. $67; 27 L. J., Ex. 193. So also notice to a defendant to produce a cheque drawn by him, and paid by his banker, is sufficient to entitle the plaintiff to give secondary evidence of its contents, although the cheque remains in the banker's hands. Partridge v. Coates, Ry. & M. 156. So notice to a party to the action to produce a document in the possession of his solicitor in another action is sufficient. Irwin v. Lever, 2 F. & F. 296. If the instrument were in possession of the party at the time of the service of notice he cannot afterwards voluntarily part with it so as to get rid of the effect of the notice. Dallas, C. J., in Knight v. Martin, Gow, 104 ; and Best, C. J., in Sinclair v. Stevenson, 1 C. & P. 585. But where the plaintiff was nonsuited in a cause in which he had given defendant notice to produce a lease, and afterwards defendant assigned the lease, and on a second trial plaintiff again gave defendant's attorney notice to produce it, and was then told by him of the assignment, it was held that secondary evidence was inadmissible and a subpæna necessary. Knight v. Martin, Gow, 103. Where a paper had been delivered to a third person under whom the defendant justified in an action of trespass, and by whose directions he acted, a notice to produce, served upon the defendant, was held not sufficient to authorise the admission of secondary evidence. Erans v. Sweet, Ry. & M. 83. It is said, however, in B. N. P. 254, that “if it were proved that the deed came into the hands of the defendant's brother, under whom the defendant claims, a copy ought to be read, even though the defendant have sworn in an answer in Chancery that he has not got the original.” For this the learned author refers to Thurston v. Delahay, Hereford Ass. 1744; Pritchard v. Symonds, Hereford, 1744; Bartlett v. Gawler, 14 Geo. 2, K. B. But the statement is rather loose. When a document is in the hands of a person who holds it as stakeholder between the defendant and a third party, the notice to produce is not sufficient to let in secondary evidence; Parry v. May, 1 M. & Rob. 279; for though it need not be shown that the document is in the actual possession of the party, it must be in the hands of some one who is bound to give up possession to him. S. C. See also Wright v. Bunyard, 2 F. & F. 193.
The question whether there is sufficient proof of possession in the opposite party, is in general solely for the judge; and, where the notice to produce is given by the plaintiff, the defendant may interpose with evidence to disprove possession; and such evidence (being, in fact, for the information of the judge) gives the plaintiff no reply to the jury. Harvey v. Mitchell, 2 M. & Rób. 366. Notice to produce a book containing the terms of an agreement was served on defendant; at the trial defendant produced such a book, but plaintiff denied that it was the right one, though defendant denied possession of any other; the question of the existence of another was held to be for the judge, but he might, by consent, take the opinion of the jury on it as an interlocutory issue. Froude v. Hobbs, 1 F. & F. 612. * Where the objection to the reading of a copy concedes that there was primary evidence of some sort in existence, but defective in some collateral matter, as, for instance, where the objection is a pure stamp objection, the judge must, before he admits the copy, hear and determine whether the objection is well founded. But where the objection goes to show that the very substratum and foundation of the cause of action is wanting, the judge must not decide upon the matter, but receive the copy, and leave the main question to the jury.” Stowe v. Querner, L. R., 5 Ex, 155, 158, 159, per Bramwell, B. This was
an erroneous one.
an action on a policy of insurance, in which the existence of the policy was in issue; the defendant did not produce the policy at the trial pursuant to notice, and thereupon the plaintiff put in a copy received from defendant's broker; the defendant objected, and offered evidence to show that there never was an original policy, but the judge admitted the copy. The evidence was subsequently given, and the judge left it to the jury to say whether the defendant had executed a stamped policy. The jury found in the affirmative. It was held that the question was rightly left to them, inasmuch as if the judge had himself decided it he would have decided the main issue between the parties.
Notice to produce; form of.] The rule formerly was that a notice to produce might be oral, and if both a written and oral notice have been given, proof of either was sufficient. Smith v. Young, 1 Camp. 440. Rules, 1883, 0. xxxii. r. 8, specifies the form of a notice to produce, and 0. lxvi. r. 1, provides that “all notices required by these rules shall be in writing, unless expressly authorised by the court or a judge to be given orally.” It is not easy to say precisely to what extent the notice to produce a document ought to define it. Several documents are generally required, and the practice is to include them all in one notice. It is also usual to give some particular description of the documents required, but it is better to give a general description than to risk giving
A notice to produce “ all letters written by plaintiff to defendant relating to the matters in dispute in this action" (Jacob v. Lee, 2 M. & Rob. 33; Patteson, J.), or all letters written to, and received by, plaintiff between 1837 and 1841, both inclusive, by and from the defendants, or either of them, and all papers, &c., relating to the subject-matter of this cause" (Morris v. Hauser, Id. 392, Ld. Denman, C.J.), has been held sufficient to let in secondary evidence of a particular letter not otherwise specified. So in Rogers v. Custance, Id. 179, Ld. Denman, C. J., held à notice to produce “ all accounts, papers, and writings in any way relating to the matters in question in this case sufficiently to particularise a written account of the work done by the plaintiff, delivered to the defendant, and admitted by him to be correct; affirmed by Q. B. Id. 181. And in the recent case of Conybeare v. Farries, L. R., j Ex. 16, a notice to produce “all letters relating to your tenancy of a room, &c.” was held sufficient to include a letter which, with the plaintiff's reply, constituted the tenancy. The notice must not, however, be too general, as "all letters." Gardner v. Wright, 15 L. T., N. S. 325, Blackburn, J. See also Jones v. Edwards, M'Cl. & Y. 139. In France v. Lucy, Ry. & M. 341, it was held by Best, C. J., that a notice to produce “all letters, papers and documents touching or concerning the bill of exchange mentioned in the declaration, and the bill sought to bo recovered," did not sufficiently describe a notice of dishonour sent by the plaintiff to the defendant. But this decision is hardly consistent with the more recent cases cited above. If the title of the cause be misdescribed in the notice, it has been held bad; Harvey v. Morgan, 2 Stark. 19; but semb. no title at all was necessary, and there were other grounds of decision in this case: nor was there in that case any ground for supposing that the misdescription could mislead. In a later case, where the notice was entitled in a wrong court, it was considered sufficient. Lawrence v. Clark, 14 M. & W. 250. Notice to produce a letter purporting to enclose an account is sufficient notice to produce the ac unt. Engall v. Druce, 9 W. R. 536, E. T. 1861, C. P.
Notice to produce; service of, on whom.] In general it is sufficient to
serve the notice to produce on the solicitor or agent of the party. Cates v. I'inter, 3 T. R. 306. Indeed, it seems more proper to do so where there is a solicitor. Houseman v. Roberts, 5 C. & P. 394. But notice served on the party is sufficient. Hughes v. Budd, 8 Dowl. 315. A notice to produce papers not necessarily connected with the cause, served on the solicitor so late as to
(i.c., his client) from receiving it in time before the trial, is not good. Vice v. Anson, Ly., M. & M. 96. Where the solicitor has been changed, a notice to produce served on the first solicitor before the change will entitle the party to call for production of the paper. Doe d. Martin v. Martin, 1 M. & Rob. 242. It is sufficient to leave the notice with the servant of the party at his dwelling-house. Evans v. Sweet, Ry. & M. 83, 84, per Best, C. J.
Notice to produce; time and place of service.] The proper time and place of service of a notice to produce will depend on the circumstances of the
The notice must be such as to satisfy the judge that the party called upon to produce the document might, by using reasonable diligence, have done so. Service of the notice upon the wife of the defendant's attorney in a town cause late in the evening before the trial was held insufficient. Doe d. Wartney v. Grey, 1 Stark. 283. So service in the attorney's office letter-box late over night. Lawrence v. Clark, 14 M. & W. 230. But notice to produce a letter, served on the attorney of the party on the evening next but one before the trial, was ruled to be sufficient, though the party was out of England; the presumption being that, on going abroad, the party had left with his attorney the papers necessary for the conduct of the trial. Bryan v. Wagstaff, Ry. & M. 327. See also Aflalo v. F'ourdrinier, M. & M. 335, n. A notice served on the 10th of April, the trial being on the 14th, was ruled to be sufficient to let in secondary evidence of letters written eighteen years back, and addressed to the defendant, a foreigner, at his residence abroad. Drabble v. Donner, Ry. & M. 47. A notice to produce certain deeds was served on an attorney in Essex on Saturday, Monday being the commission day: he fetched them from London; on Monday evening notice was given to produce another deed ; the attorney said it was in London, but should be fetched if the party would pay the expense of the journey; no offer to pay was inade, and the trial came on on Thursday: the second notice was held insufficient. Doe d. Curtis v. Spitty, 3 B. & Ad. 182. Notice served on tie attorney at his office on the evening before the trial, at 7 h. 30 m. P.M., was held insufficient to let in secondary evidence of a letter in his client's possession. Byrne v. Harvey, 2 M. & Rob. 89. And now, by Rules, 1883, 0. lxiv. r. 11, service of notices shall be made before 6 P.M., on every day but Saturday, when it must be before 2 P.M., otherwise it will be deemed service on the next following day, or on Monday, respectively. This rule includes notices to produce, at least when served on solicitors. Sed quære, if they apply to such notices as the above given at assizes or sittings at Nisi Prius? In a town case, both party and attorney living there, serrice at 7 P.M., over-night, was held sufficient by Alderson, B. Leap v. Butt, Car. & M. 451; Meyrick v. Woods, Id. 452.
Notice to produce must in general be served before the commission day, when parties are living away from the assize town; Trist v. Johnson, 1 M. & Rob. 259 ; accord. R. v. Ellicombe, Id. 260 ; but there seems to be no inflexible rule as to time; for where both attorney and client lived in the assize town, a notice served two days before trial, though after the cominission day, has been held sufficient; Firkin v. Edwards, 9 C. & P. 478; and where a paper might be expected to be in the solicitor's hands, a notice on him at his office a day before the trial of a town cause may be yood. Gibbons v. Powell, Id. 634. A three days' notice was held sufficient in the case of letters written by defendant to a person in New South Wales, where long litigation on the subject of them made it presumable that they had been remitted to him in this country. Sturge v. Buchanan, 10 Ad. & E. 598. But in one case a notice served on a defendant shortly before the assizes to produce a letter written to his firm at Bombay, where their only place of business was, was held insufficient. Ehrensperger v. Anderson, 3 Exch. 148. Service of a notice on Sunday is probably bad ; or, at all events, will only operate as service on the next day. Hughes v. Budd, 8 Dowl. 315, 317. The notice may be served even after the trial has commenced, if there be time to produce before the adjournment day. Sturm v. Jeffree, 2 Car. & K. 442.
All the cases prior to Dwyer v. Collins, 7 Exch. 639; 21 L. J., Ex. 225, ante, p. 9, ought now to be considered with reference to that case. It had formerly been sometimes thought that the object of a notice to produce a document was to inform the opposite party of the intention to use it, but this notion was entirely repudiated in that case after full consideration. And it was there held that the object of the notice to produce was merely to give the party holding the document an opportunity to produce it, if he wished, and, in default of his doing so, to enable the party giving the notice to give secondary evidence of its contents. And on this ground the court held that the attorney of one of the parties present in court, and having the document with him, could be called upon, then and there, to produce it, and if he did not do so, that secondary evidence was admissible.
After a new trial is ordered it is not necessary to serve fresh notices to produce, those served on the former trial being available. Hope v. Beadon, 17 Q. B. 209; 21 L. J., Q. B. 25.
Notice to produce; effect of.] If the party refuse to produce the papers required, such a circumstance is not of itself evidence against him; it inerely entitles the other party to give secondary evidence. Cooper v. Gibbons, 3 Camp. 363; Lawson v. Sherwood, 1 Stark. 315. The refusal to produce them is, however, matter for observation to the jury. Semb. Ld. Lyndhurst, C. B., Bate v. Kinsey, 1 C. M. & R. 41. But see Doe d. Bridger v. Whitehead, 8 Ad. & E. 571. If the party giving the notice lecline to use the papers when produced, this, though matter of observation, will not make them evidence for the adverse party; Sayer v. Kitchen, 1 Esp. 210; though it is otherwise if the papers are used or inspected by the party calling for them. Wilson v. Bowie, 1 C. & P. 10; and see Wharam v. Routledge, 5 Esp. 235. Notice to produce papers will not entitle the party who gives it to cross-examine a witness as to their contents; Graham v. Dyster, 2 Stark. 23; except after refusal to produce. If the party refuse, he cannot afterwards use the original either to contradict the secondary proof; Doe d. Thomson v. Hodgson, 12 Ad. & E. 135; or to show that there are attesting witnesses who ought to be called ; Jackson v. Allen, 3 Stark. 74; Edmonds v. Challis, 7 C. B. 413; or to refresh the memory of a witness; Till v. Ainsworth, Bristol, 1874, Wilde, C. J., MS.; or it seems for any purpose, Collins v. Garbon, 2 F. & F. 47, Byles, J. He is, in effect, bound by any legal and satisfactory evidence produced on the other side.
This principle has been extended by Rules, 1883, 0. xxxi. r. 15, which provides that, “Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his