at the office of the latter (p). If a new trial is ordered fresh notices to produce are not necessary (7). The notice is not required to be in any precise or minutely descriptive form, and the courts will not entertain frivolous or technical objections to its validity, if it points out, with general distinctness, to the adverse party the documents which he is required to produce (r). Notices to produce "all letters written by the plaintiff to the defendant, relating to the matters in dispute in the action" (s); or "all letters written to and received by the plaintiff between the years 1837 and 1841, both inclusive, by and from the defendants, or either of them, or any person on their behalf; and also all books, papers, &c., relating to the subject-matter of this cause" (f); or "all accounts relating to the matters in question in this cause" (u); have been held sufficient notice to produce any document reasonably included in the description. Notice to produce a letter purporting to enclose an account has been held sufficient notice to produce the account (r). The notice ought to be within a reasonable time before the trial comes on; and it will be for the judge to determine, on the circumstances of the case, whether the notice has been served within a reasonable time previously to the trial (y). (p) Evans v. Sweet, Ry. & M. 84. (8) Jacob v. Lee, 2 M. & Rob. 33. (t) Morris v. Hanser, 2 M. & Rob. 392. (u) Rogers v. Custance, 2 M. & Rob. 179. (x) Engall v. Bruce, 9 W. R. 536. (y) Per Parke, B., Lloyd v. Mostyn, 10 M. & W. 483. In town causes, and also in country causes, where the solicitor lives in the assize town, if the documents are such as from the nature of the case may reasonably be presumed to be in his hands, notice may be served not later than early in the evening of the day preceding the trial (~); but if they are not such as are immediately connected with the cause, or are such as would presumably be in the hands of a client or other person, the notice must be proportionably earlier, according to an estimate of the time necessary to obtain them (a). In such a case, and especially in country causes, where the adverse solicitor does not live in the assize town, the notice ought to be served on him before the commission day, and within a reasonable time before he is required to leave home for the assize town (b); but if he has the document with him at the assize town, service there will be sufficient (c). Where the adverse holder is abroad, or beyond the jurisdiction of the court, and leaves his solicitor to conduct his cause, it will be presumed that he has also left with him all papers naturally connected with his case; and the courts, under such circumstances, have been inclined to maintain the validity of a notice to the solicitor (d); but the circumstances must be such as to support a supposition that the papers are producible, and the notice sufficient. Thus, a three (e) Atkyns v. Meredith, 4 Dowl. 658. days' notice to produce letters written by a defendant to his partners in New South Wales, was held sufficient, on its appearing that there had been litigation between the same parties some years previously, for the purposes of which it was reasonable to suppose that the letters must have been remitted to England (e). If a party, on being served with notice to produce, states that the document does not exist, secondary evidence will be admissible, and the adverse party cannot object to the lateness of the notice (f). The 8th rule of Ord. 32 provides, that "Notice to produce documents shall be in the form No. 14 in Appendix B. (g), with such variations as circumstances may require. 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 evidence of the service of the notice, and of the time when it was served." Sufficient evidence in this rule means primâ facie and not conclusive evidence (h). Notice to produce is unnecessary 1st. Where a party holds a duplicate original, or a counterpart of his adversary's docu ment (i). Such duplicate or counterpart must not be a mere copy, but in all respects of equal and co-extensive (e) Sturge v. Buchanan, 10 A. & E. 598. (f) Foster v. Pointer, 9 C. & P. 720. (9) See this form in the Appendix. (h) See Barraclough v. Greenhough, L. R., 2 Q. B. 612. character and validity with the adversary's document. In such a case it is receivable as being itself primary evidence. 2nd. When the nature of the case and proceedings sufficiently inform the adverse party that he will be required to produce the document. Thus in an action to recover for a bond or other instrument (), or on an indictment for stealing a writing (1), the plaintiff or prosecutor may give secondary evidence without proving notice to produce. "Where the nature of the action or indictment is such that the defendant must know that he is charged with the possession of the document, and is called upon to produce it, notice is not necessary, and such is the case in an action of trover or on an indictment for stealing; but if the matter is collateral, it is unnecessary to give notice (m). Hence, where on an indictment for perjury, the prisoner having sworn that a certain draft did not exist, and the materiality of its existence depended on its contents and certain alleged alterations in it, it was held that no parol evidence was admissible, either of its existence or of its contents, without notice to produce" (n). The general rule stated above is subject to several special limitations. Thus, in forgery, the prosecutor must (k) Scott v. Jones, 4 Taunt. 865. (1) R. v. Aickles, 1 Leach, 294. (m) Per Kelly, C. B., R. v. Elworthy, L. R., 1 C. C. R. 103; 37 L. J., M. C. 3; 16 W. R. 207. (n) Ibid. give notice to the prisoner to produce the original (o); in arson, for setting fire to a dwelling-house, with intent to defraud an insurance company, notice must be given to produce the policy (p). So, in civil cases, in an action on a cheque or a bill, if the defendant does not traverse the making or acceptance, but only avoids, the plaintiff need not produce without notice (2). 3rd. A notice to produce a notice is not required (»), e. g., a notice to quit, a notice of action, notice of dishonour of a bill, notice to produce a signed solicitor's bill in an action on it (s). The principle of this rule is that the service of the original notice is in itself a sufficient notice to produce it at the trial if required. It does not apply where the notice has been given to one who is not a party to the action, nor where it contains the terms of a contract; as where a carrier, relying upon a notice served on the plaintiff to limit his liability, was held bound to give notice to produce it (†). 4th. If a party or his solicitor is shown to have an original with him in court, and refuses to produce it, secondary evidence will be received, notwithstanding the want of a notice to produce (u). (0) R. v. Halworth, 4 C. & P. 254. |