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established by the cases seems to be that a mere unaccepted proposal, executory memorandum, private minute or unauthorised entry of one of the parties, will not exclude oral proof. But where an oral contract expressly incorporates, or refers to, a written paper as part of its terms, that paper ought to be produced in order to prove those terms. See Hill v. Nuttall, 17 C. B., N. S. 262; 33 L. J., C. P. 303.
In order to render the production of a writing necessary, it must appear to relate to the matter in question. Thus where oral evidence is offered to prove a tenancy, it is not a valid objection that there is some written agreement relative to the holding, unless it also appears that the agreement was between the parties as landlord and tenant, and that it continues in force at the very time to which the oral evidence applies. Doed. Wood v. Morris, 12 East, 237; Stevens v. Pinney, 2 B. Moore, 349. Oral evidence of the terms of a demise is admissible, although the witness called to prove them states that the lessor read them from some paper held in his hand at the time, but which was not shown to, or signed by the lessee. Trewhitt v. Lambert, 10 Ad. & E. 470.
If, in an action for work and labour, it appear that the claim is for extras on a written contract, the written contract must be produced. Vincent v.
Cole, M. & M. 257; Buxton v. Cornish, 12 M. & W. 426. But if an entirely separate order be given for the extras, then production of the written contract is not necessary. Reid v. Batte, M. & M. 413.
If oral evidence of an agreement be given at a trial, the party desirous of excluding it may at once interpose and ask the witness whether it was not in writing; if the witness deny this, he may then give evidence on a collateral issue to show that the agreement was in writing; Cox v. Couveless, 2 F. & F. 139; or he may reserve the question for cross-examination, and may inquire as to the contents of the writing, so far as may be necessary, to show that oral evidence is inadmissible. Curtis v. Greated, 1 Ad. & E. 167. It is not enough to prove, by a witness, that the solicitor of the opposite party has admitted in conversation that there was a written agreement on the subject; for a solicitor is not an agent of his client to make such admissions. Watson v. King, 3 C. B. 608.
Whether the existence of a writing is sufficiently proved to exclude oral evidence is a question for the judge.
Secondary evidence is admitted in cases where the principle which excludes it, namely, the supposed existence of better evidence behind, which it is in the power of the party to produce, does not apply. Thus, it is admissible if a ground be laid for it by proving that better evidence cannot be obtained. Rainy v. Bravo, L. R., 4 P. Č. 287. In the case of a lost deed, the loss or destruction must be proved; and if it appears that two or more parts have been executed, the loss of all the parts should, it is said, be proved, otherwise “perhaps” a copy will not be admitted. B. N. P. 251; and see R. v. Castleton, 6 T. R. 236; and Munn v. Godbold, 3 Bing. 292, 294, per Best, C. J. So where an instrument is in the possession of the opposite party, oral evidence of its contents may be given, on proof of the service of a notice to produce it. All the proper sources from which the primary evidence can be procured must be exhausted before secondary evidence can be admitted. Thus, the party who has the legal custody of an instrument must be applied to. R. v. Stoke Golding, 1 B. & A. 173. So where a letter, which had been in the possession of the defendant, was filed in the Court of Chancery pursuant to an order of that court, it was ruled that secondary evidence of it was not admissible, it being in the power of either party to produce it on application to the court. Williams v. Munnings, Ry. & M. 18. The construction of a lost document, though proved by oral evidence, is for the judge, where the veracity of the witness as to its contents is not questioned. Berwick v. Horsfall, 4 C. B., N. S. 450 ; 27 L. J., C. P. 193.
The wrongful refusal of a third party to produce a document in his possession on subpoenâ duces, will not let in oral evidence of it. Jesus College v. Gibbs, 1 Y. & C. 156; R. v. Llanfaethly, 2 E. & B. 940; 23 L. J., M. C. 33. But where a document is in the hands of a party, as a solicitor, who is called to produce it, but declines to do so, relying upon his privilege or upon his lien, secondary evidence of its contents may be given. Marston v. Downes, 1 Ad. & E. 31; R. v. Leatham, 8 Cox, Č. C. 498; 30 L. J., Q. B. 205, per Hill, J.; Doe d. Gilbert v. Ross, 7 M. & W. 102. In the last case, it was suggested by the court that, where the solicitor refuses on the ground of privilege, it may perhaps be necessary to show that his client also objects to the production. It has, however, been ruled that where the solicitor has it in court, but states that he is instructed by his client (a third person) to refuse it, it is unnecessary to go further and prove, by the client in person, that he objects. Phelps v. Preu, 3 E. & B. 430 ; 23 L. J., Q. B. 140. See also Newton v. Chaplin, 10 C. B. 356; 19 L. J., O. P. 374. The secondary evidence cannot be received unless the solicitor has been duly served with a subpoen i duces ; Hibberd v. Knight, 2 Exch. 11; or has the document in court, and refuses on demand to produce it. Semb. Dwyer v. Collins, 7 Exch. 639; 21 L. J., Ex. 225, cited post, p. 9. In Boyle v. Il'iseman, 10 Exch. 647; 24 L. J., Ex. 160, it was considered by the judges that where a private letter was in the hands of a person resident abroad, and out of the jurisdiction of the English courts, who refused to part with it or produce it on the trial of a cause, the contents might be proved by secondary evidence, if all reasonable exertions have been made to produce the original. In such a case, the person requiring the production should disclose to the proprietor of the instrument the object of the application. See Broun v. Thornton, 6 Ad. & E. 185; Quilter v. Torss, 14 C. B., N. S. 747.
The contents of documents of a public nature, required by law to be kept, may be proved by examined (and in some cases by office or certified) copies without accounting for the non-production of the original document; vide Proof of documents by copies, post, pp. 96 et seq.; and the same rule applies to public registers and documents kept abroad; vide post, p. 98. But in the case of a private document filed in a foreign court, it is necessary to prove that an unsuccessful application has been made to the legal custodian thereof, viz., to the court, before secondary evidence is admissible; an application to an inferior officer of the court, though he have the actual custody of it, is not enough. Crispin v. Doglioni, 32 L. J., P. M. & A. 109.
In some cases secondary evidence of oral testimony is admitted; as where the testimony of a witness on a former trial is admitted on another trial without producing him in person. The circumstances under which this may be done will be found post, p. 115. So, where the evidence of a witness is taken out of court by affidavit or deposition, by proper authority; vide Proof by affidavits or depositions, post, p. 184.
Proof of loss of document.] Where secondary evidence is offered in consequence of the loss of the primary evidence, it must be shown to the satisfaction of the judge that diligent search has been made in those quarters in which the primary evidence was likely to be procured. Where the publisher of a paper, in which a libel had appeared, stated that he believed the original was either destroyed or lost, having been thrown aside as useless, this was held sufficient to let in secondary evidence. R. v. Johnson, 7 East, 66. So where a licence to trade had been returned to the secretary of the governor who had granted it, and the secretary swore that it was his custom to destroy or put aside such licences as waste paper, and that he had disposed of the licence in question in the same manner as other licences; that he had searched for it, but had not found it, the court held the loss sufficiently proved. Kensington v. Inglis, 8 East, 278. So where it became necessary to account for the nonproduction of a policy, and it was proved that it had been effected about seven years before, and, having become useless on account of a second policy being effected, had probably been returned to the plaintiff; and the clerk of the plaintiff's attorney searched for it in the plaintiff's house, not only in every place pointed out by the plaintiff, but in every place likely to contain a paper of this description, the search was held to be sufficient. Brewster v. Sewell, 3 B. & A. 296. As a general rule, to admit secondary evidence of a deed of apprenticeship, proof should be given that a search has been made for the original instrument among the papers both of the master and apprentice. R. v. Hinchley, 3 B. & S. 885; 32 L. J., M. C. 158. But in that case it was held that long after the expiration of the terın of apprenticeship, the deed was probably in the custody of the apprentice, as he was then most interested in it, and that a search among his papers was sufficient. So in another settlement case, where it was proved that one part only of an indenture had been executed, that the pauper apprentice and master were both dead at the time of trial, and that an inquiry for it had been made of the pauper shortly before his death, who said that the indenture had been given up to him after the expiration of the apprenticeship, and that he had burnt it; and that an inquiry had also been made of the daughter and sole executrix of the master, who said she knew nothing about it, it was held that a sufficient inquiry had been made to render parol evidence of the contents admissible. R. v. Morton, 4 M. & S. 48. See R. v. Piddlehinton, 3 B. & Ad. 460. But where the only evidence of loss consisted of the declarations of the deceased pauper, who stated that the indenture had been given back to him and worn out, parol evidence was held inadmissible. R. v. Rawden, 2 Ad. & E. 156.
When the party, in whose possession the instrument was, is alive, it has in some cases been held that he ought to be called, and his declarations are not admissible. R. v. Denio, 7 B. & C. 620; R. v. Castleton, 6 T. R. 236. But, generally, the declarations of the persons applied to are received in evidence, to show that due inquiry and search has been made, and the judge determines whether the search is sufficient. R. v. Kenilworth, 7 Q. B. 642; R. v. Braintree, 1 E. & E. 51; 28 L. J., M. C. 1. And the inclination of the court in R. v. Saffron Hill, 1 E. & B. 93; 22 L. J., M. C. 22, seems to have been that it is not in every case necessary to call the person applied to as a witness; it is a question for the judge, subject to review by the court.
Where the loss or destruction of the paper is probable, very slight evidence of its loss or destruction will be required, and a useless paper will be presumed to be destroyed. R. v. E. Farleigh, 6 D. & Ry. 153 ; and per Abbott, C. J., Brewster v. Sewell, 3 B. & A. 296, and cases cited supra. Thus, where depositions had been delivered to the clerk of the peace or his deputy, it appearing to be the practice to throw them away as useless, slight evidence of a search for them was held sufficient, and the deputy need not be called, it being his duty to deliver them to his principal. Freeman v. Arkell, 2 B. & Č. 496. A constable, who levied under a warrant issued by the defendant, and was entitled to the custody of it, said that he had deposited it in his office, but was unable, upon search, to find it: held, that secondary evidence of it was admissible against the defendant, though no notice to pro was served on him. Fernley v. Worthington, 1 M. & Gr. 491. The degree of diligence to be used in searching for a deed must depend on the importance of the deed, and the particular circumstances of the case. Per Cur. in Gully v. Bp. of Exeter, 4 Bing. 298. If not found in its proper place of deposit, further search may generally be dispensed with ; as where it was the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is that it is lost or destroyed. Thus a fruitless search in the parish chest for indentures, given up to the parish officers long ago, is sufficient to let in parol evidence of them. R. v. Stourbridge, 8 B. & C. 96; 2 M. & Ry. 43. See also R. v. Hinchley, ante, p. 6.
A cheque drawn on account of a parish was delivered to the defendant, who was then paying clerk of the parish; it was shown that the bankers of the parish, on the same day, paid the cheque, and that their custom was to return the paid cheques to the paying clerk, who deposited them in an apartment in the workhouse; the defendant was no longer in office as paying clerk, and his successor was not called ; a witness stated that he had made application to him for an inspection of the cheques, and that he had handed him several bundles, which the witness looked through without finding the cheque in question; it was held that secondary evidence of the contents of the cheque was admissible. M'Gahey v. Alston, 2 M. & W. 206. In Purdoe v. Price, 13 M. & W. 267, a search for a security, given to one K. in an attorney's office, where the papers of K. and of his executrix were deposited, was held to be sufficient to let in sexcondary evidence.
If there are several places of probable deposit, all should be searched. Where a conveyance of freehold and leasehold in trust was alleged to be lost, and one of the trustees and the heir of another, deceased, negatived possession of it, it was held insufficient unless the executor of the deceased trustee was also questioned, who had taken possession of his papers. Doe d. Richards v. Lewis, 11 C. B. 1035; 20 L. J., C. P. 177. And where there were duplicate instruments executed, a search for both seems necesSury; ante, p. 4.
Secondary evidence of a bill or note in a negotiable state cannot be admitted, when the loss is specially pleaded, unless the destruction, and not the mere loss, of it be provod. See Action on Bills of Exchange ; Production of the Bill, post, p. 346.
Though proof of the destruction of the original lets in secondary proof, yet if the destruction is alleged to have been by, or while in the possession of, the opposite party, a notice to produce is required. Doe d. Phillips v. Morris, 3 Ad. & E. 46, cited post, p. 8.
The objection that secondary evidence of a document is offered without proof of due search for the original must be distinctly made at the trial; otherwise the court will not entertain it on a motion for a new trial. Williams v. Wilcox, 8 Ad. & E. 314.
Notice to produce when necessary.] In general, when any written instrument is in the possession or power of the opposite party, secondary evidence of its contents is inadmissible without previous proof of a notice to produce the original. R. v. Elworthy, L. R., 1 0. C. 105. But where, from the nature of the proceedings, the party in possession of the
instrument necessarily has notice that he is to be charged with the possession of it, as in the case of troyer for a bond, a notice to produce is unnecessary. How v. Hall, 14 East, 274; Scott v. Jones, 4 Taunt. 865. And the plaintiff may prove the nature and description of the document, for which troyer is brought, by secondary evidence, though the defendant offers to produce it; for that is part of the defendant's evidence. Whitehead v. Scott, 1 M. & Rob. 2. So a notice is not required where the party has procured the possession of the instrument by fraud, after the action commenced, from a witness called for the purpose of producing it under a subpoenâ duces tecum. Leeds v. Cook, 4 Esp. 256. A counterpart executed by the defendant may be read by the plaintiff without a notice to produce the original. Burleigh v. Stibbs, 5 T. R. 465. See also other cases cited ante, p. 3. In trover against a sheriff for executing a fi. fa., plaintiff may give evidence of the warrant and its loss, without notice to produce it. Minshall v. Lloyd, 2 M. & W. 450. In an action for seamen's wages, secondary evidence of the ship's articles is admissible under 17 & 18 Vict. c. 104, s. 164, without any notice to produce them. See Bowman v. Manzelman, 2 Camp. 315, decided under an earlier statute. But where defendant pleaded to an action by drawer of a bill, that he accepted in part payment of a debt due from defendant to plaintiff, in order to induce him to prove his debt under a fiat then pending against the defendant, to which plaintiff replied by denying acceptance in part payment of such debt: held that plaintiff was not bound to produce the bill without notice to produce; Goodered v. Armour, 3 Q. B. 956; and the same point was ruled where the defendant pleaded that his acceptance was obtained by fraud, and issue was joined thereon. Lawrence v. Clark, 14 M. & W. 250. In ejectment the defendant relied upon a will; on the cross-examination of one of his witnesses he stated that, about a fortnight after the execution of the will, a second will was prepared, which had come to the possession of the defendant: the plaintiff's counsel was not allowed to ask whether the latter paper was duly signed by three witnesses, and whether the testator had declared it to be his last will, no notice to produce it having been given. Doe d. Phillips v. Morris, 3 Ad. & E. 46.
Notice to produce a notice to produce is, for obvious reasons, not necessary; and, generally, a notice to produce any notice on which the action is founded is also unnecessary. It is usual in business to make two copies of them, and to serve one and retain the other; indorsing on the one retained the time and mode of service. There can be no doubt that in this case the notice served is, strictly speaking, the only primary evidence. But a custom, and not an unreasonable one, of admitting the copy, which is almost a duplicate original, has obtained. There is some little doubt as to what are the notices to which the rule extends. It clearly extends to a notice to produce documents; it has also been held to extend to a notice to quit; Doe d. Fleming v. Somerton, 7 Q. B. 58; to a notice of dishonour; Swain v. Lewis, 2 C. M. & R. 261; Kine v. Beaumont, 3 B. & B. 288; and to a notice of demand of a copy of the warrant pursuant to the 24 Geo. 2, c. 44, s. 6; Jory v. Orchard, 2 B. & P. 39. But the rule does not extend to notice of dishonour of bills other than the bill sued on. Lanauze v. Palmer, M. & M. 31.
In order to prove the delivery of a solicitor's signed bill of costs, it is not necessary to give notice to produce the bill delivered, which is itself a notice. Colling v. Treweek, 6 B. & C. 394. See also the 6 & 7 Vict. c. 73,
By Rules, 1883, 0. xxxi., r. 8, “an affidavit of the solicitor or his clerk of the service of any notice to produce and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evi