Form of notice. Extent of enactment as to notice to admit. Effect of admission. tions; and in case of refusal or neglect to admit, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the judge shall certify that the refusal to admit was reasonable, and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the master, a saving of expense. A form of notice to admit is given by R. G., H. T. 1853, r. 29, which see, and note thereon, post. See as to abuse of such a form, Edmunds v. Great Western Railway Company (12 C. B. 419). See as to costs after neglect to give notice, or to admit upon notice, R. G., H. T. 1853, r. 30, post. These provisions apply to every document a party means to adduce in evidence, and are not confined to documents in his custody or control (Rutter v. Chapman, 8 M. & W.388); in which case the costs of proving signatures to a petition for a charter, under 1 Vict. c. 71, s. 49, were not allowed, no notice to admit having been given; and "any document" includes, semble, a foreign judgment (Smith v. Bird, 3 Dowl. 310). A party who proposes to adduce a document in evidence is bound, therefore, in every case, in order to entitle himself to the costs of proving it, to give a notice to admit, that the other party may have an opportunity of admitting it, and thus saving costs. And this rule applies to documents the validity of which is directly in issue (Spencer v. Barough, M. & W. 425, where the attorney on the other side, when applied to, had refused to admit, on the ground that the document was a forgery). The court will rather enlarge than restrict the provisions of the section (Per Alderson, B., in Rutter v. Chapman, ubi supra). So, where plaintiff's attorney was in possession of a probate of a will essential to the defendant's case, and on being called upon to give an undertaking to produce it, refused to do so, and the defendant then warned him that an exemplification of the will must be procured at a heavy expense, it was held that the defendant who obtained the verdict, was entitled only to the expense of an ordinary copy, as he might have called on the plaintiff to admit a copy (Goldstone v. Tovey, 6 Bing. N. Č. 274). The admission is to be made, "saving all just exceptions." A party admitting his handwriting to a bill, is not precluded from objecting to its admissibility in evidence on the ground of its being unstamped (Vane v. Whittington, 2 Dowl. N. S. 757). But where a party admitted a document described as a "counterpart lease," and at the trial the instrument turned out to be a lease with a counterpart stamp only, he was considered precluded from taking the objection (Doe d. Wright v. Smith, 8 A. & E. 255). The admission of the mere signature will not dispense with the production of the bill at the trial (Vane v. Whittington, ubi supra; see Chaplin v. Levy, 9 Exch. 531, where there was no reserve of just exceptions). Nor will the admission that the copy is a true copy dispense with the necessity of accounting for the non-production of the original, before the copy can be admitted in evidence (Sharpe v. Lambe, 11 A. & E. 805). An admission of a document, as of a certain date, will preclude the party from calling for an explanation, if the date appears to be written on an erasure (Poole v. Palmer, 1 Car. & M. 69). So, after the admission of a deed, an objection to its being received in evidence, on the ground of an interlineation, is waived (Freeman v. Steggall, 14 Q. B. 202; L. J. 19, Q. B. 18). So an admission of a bill "drawn by the plaintiff upon, and directed to the defendants as A. & Co., and accepted by B. for the defendants as A. & Co.," precludes the defendants from denying the authority of B. to bind A. & Co. by such acceptance, and it is not a mere admission that he signed an acceptance purporting to bind A. & Co. (Wilkes v. Hopkins, 1 C. B. 737; and see Hunt v. Wise, 1 F. & F. 445); but a party may, without peril of costs in any event, refuse to admit documents, when he is also required to admit the authority of the writer (Oxford, &c., Railway Company v. Scudamore, 1 H. & N. 666). An admission once made cannot, it would seem, be withdrawn; it will bind the party, for instance, on a new trial (Doe v. Bird, 7 C. & P. 6). A formal admission only should be relied upon (Holford v. Hughes, 10 W. R. 60; Ex., M. T. 1861). See further upon the effect of admissions, Hawk v. Freund (1 F. & F. 294), and Hills v. London Gas Light Company (1 F. & F. 346). The notice to admit must be given a reasonable time before the trial. The object of the notice necessitates the observance of this. A notice to admit documents, the originals of which were in Harwich, served on the agent in London of the defendant's attorney, who lived in Harwich, four days before the commissionday at Newcastle, was not considered a reasonable time before the trial, and the Master, who had disallowed the costs of proving the documents, was ordered to review his taxation (Tynn v. Billingsley, 3 Dowl. 310). The costs of proving a document which is not admissible in evidence will not be allowed (Phillips v. Harris, 1 Car. & M. 492); nor where the proof of the documents is not to the satisfaction of the judge (Doe d. Peters v. Peters, 1 Car. & K. 279). The omission of a notice to admit will be excusable, when a saving of expense will be thereby effected, as where a party necessarily called to prove some other part of the case can prove the documents. See R. G., H. T. 1853, r. 30, post. A notice to admit holds good upon a subsequent trial of the cause (Hope v. Beadon, 2 L. M. & P. 593, as to notice to produce; and Doe v. Bird, ubi supra). As to obtaining the judge's certificate, see Day v. Vinson (L. J. 33, Ex. 171). Time within notice to Of a somewhat similar nature to a notice to admit is the sta- Notice under tutory notice of a party's intention to adduce a probate in evi- Probate Court dence of a devise of real estate. This notice is given under Act. sect. 64 of the Probate Court Act (20 & 21 Vict. c. 77), which enacts, that "in any action at law or suit in equity, where, according to the existing law, it would be necessary to produce and prove an original will in order to establish a devise or other tes tamentary disposition of or affecting real estate, it shall be lawful for the party intending to establish in proof such devise or other testamentary disposition to give to the opposite party, ten days at least before the trial or proceeding in which the said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition the probate of the said will or the letters of administration with the will annexed, or a copy thereof, stamped with any seal of the Court of Probate; and in every such case such probate or letters of administration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of such will and of its validity and contents, notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid in a contentious cause or matter, as herein provided, unless the party receiving such notice shall, within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary dispo sition." As to the meaning of the above words, "sufficient evidence," see Barraclough v. Greenhough (L. R. 2 Q. B. 1; reversed on appeal, 2 Weekly Notes, 1867, p. 193, T.T.). In this case the Court of Exchequer Chamber intimated a strong opinion that the notice should be served on the attorney of the opposite party and not upon the party in person. 118. An affidavit of the attorney in the cause, or his clerk, of the due signature of any admissions made in pursuance of such notice, and annexed to the affidavit, shall be in all cases sufficient evidence of such admissions. The admission, if made, will, of course, be either generally of the documents mentioned in the notice, or of some one or more of them. The admission may be endorsed on or subscribed to the notice. Care should be taken in examining the terms of the notice and of the admission sought; and particularly that there be the proper reserve of all just exceptions (Chaplin v. Levy, 9 Exch. 531). Where a plaintiff was nonsuited in consequence of the defendant's counsel refusing to admit certain documents, which had been agreed to be admitted, a new trial was granted on the ground of a breach of good faith, with costs to be paid by the defendant (Doe d. Tindal v. Roe, 5 Dowl. 420). 119. An affidavit of the attorney in the cause, or his clerk, of the service of any notice to produce in respect of which notice to admit shall have been given, and of the time when it was served, with a copy of such notice to produce annexed to such affidavit, shall be sufficient evidence of the service of the original of such notice, and of the time when it was served. An enumeration of the cases in which it is necessary to give a notice to produce, forms a part of the law of evidence; as does the statement of the amount of proof of possession by the party who has the original, which is required, in order to make secondary evidence admissible. The object of the notice is merely to give the opposite party sufficient opportunity to produce the document if he pleases; and not that he may be enabled to prepare evidence to explain, nullify or confirm it (Dwyer v. Collins, 7 Ex. 639; L. J. 21, Ex. 225). The notice should be in writing, and entitled in the cause, and Form of should specify the document sufficiently for the information of notice. the party to whom it is addressed. The words "all and every letters written by the plaintiff to the defendant, and relating to the matters in dispute of the action," were held sufficient to let in secondary evidence of a particular letter of which the date is not specified (Jacob v. Lees, 2 M. & Rob. 33); and "all accounts relating to the matters in question in this cause" was held sufficient to let in secondary evidence of an account for work done, which had been delivered to the defendant and admitted by him to be correct though no dates were specified (Rogers v. Constance, 2 M. & R. 179). Notice to produce a letter purporting to enclose an account, is sufficient notice to produce the account (Engall v. Druce, 9 W. R. 536; C. P., E. T. 1861). What will constitute a sufficient service of notice is a question for the judge at the trial. It should be served on the attorney or agent (Houseman v. Roberts, 5 C. & P. 394); or on the party himself (Hughes v. Budd, 8 Dowl. 315); and the sufficiency of the time allowed to search for the documents, the production of which is required, will generally depend on the facts of each case. It should be given within a reasonable time before the trial (George v. Thompson, 4 Dowl. 656): and the night before the trial is not generally a reasonable time (Atkins v. Meredith, 4 Dowl. 658); though if it were to produce a document shown to be in the possession of the attorney, it would be sufficient (Lloyd v. Mostyn, 2 Dowl. N. S. 476); even if the service is in the evening, at the office of the attorney (Leaf v. Butt, 1 Car. & M. 451); and on one of his clerks, if he has the management of the cause (Gibbons v. Powell, 9 C. & P. 634). Service of notice to pro duce. Three days' notice to produce letters which had been used in a Sufficiency of chancery suit six years before the trial (Sturge v. Buchanan, 10 notice. A. & E. 598); two days' notice to the attorney to produce documents, the party himself being abroad (Bryan v. Wagstaff, 2 C. & P. 126), have been held sufficient. A notice to produce, served on the commission-day, the attorney having left his office for the assizes (George v. Thompson, ubi supra); a notice served on the evening before the trial, on the defendant's attorney at his residence, twenty miles from the place of trial, where the defendant resided in the same town with the attorney, but was not at home till midnight (Howard v. Williams, 9 M. & W. 725); a notice served at the office of the attorney on a woman who took care of the chambers, the evening before the trial (Sims v. Kitchen, 5 Esp. 46), were all held insufficient. A notice to produce served in the assize town is, in general, insufficient (Foster v. Pointer, 9 C. & P. 718; and see Coombs v. Bristol and Exeter Railway Company, 1 F. & F. 206). Where a document is in court at the time of the trial, a notice to produce it then is sufficient (Dwyer v. Collins, 7 Ex. 639; L. J. 21, Ex. 225). A document was called for under a notice to produce; a docu- Proof of service. Execution after trial. Application to stay execution. When execution may issue. ment was thereupon produced, which the other side denied to be the document called for; Byles, J., held that he must decide that question, before he admitted secondary evidence (Froude v. Hobbs, 1 F. & F. 612). Service of notice to produce may be proved by an affidavit by the attorney in the cause, or his clerk, where notice to admit has been given. This mode of proof will generally be resorted to in country causes. But to render this affidavit admissible, it would appear that proof of the service of the notice to admit must first be given, by calling the person who served such notice, for the proof of the service of a notice to admit may not be by affidavit. It may be observed that a notice to produce given for one trial need not be repeated in the case of a new trial (Hope v. Beadon, 2 L. M. & P. 593; L. J. 21, Q. B. 25). EXECUTION. And with respect to execution, be it enacted as follows: 120. A plaintiff or defendant, having obtained a verdict in a cause tried out of term, shall be entitled to issue execution in fourteen days, unless the judge who tries the cause, or some other judge, or the court, shall order execution to issue at an earlier or later period, with or without terms. As to the incipitur and signing judgment, see s. 206, post. It will be observed, that this enactment is confined to causes tried out of term, and in which a verdict has been obtained; but by R. G., H. T. 1853, r. 57, post, similar provision is made for causes tried in term, and for nonsuits. The application to expedite or stay execution may be made either to the judge who tries the cause, to a judge at chambers, or to the court. When a judge at chambers or the court is asked to grant early execution, it is necessary to show facts justifying such an application. If they appear in evidence upon the trial, and the application is made there and then, no affidavit is necessary; but otherwise, an affidavit is required (Ruddich v. Simmons, 1 M. & Rob. 184; Gervas v. Burtchley, ib. 150). The application was formerly made to the judge at the trial, by virtue of the power given to him by 1 Will. 4, c. 7, s. 2, to certify for immediate execution, and no affidavit was required; the necessity of a party waiting till the following term before signing judgment, being often deemed a sufficient cause to justify the granting of a certificate. The power given by the above statute to the judge who tries the cause is left untouched by this section; and it is now usual to grant speedy (four days) execution in all substantially undefended actions for liquidated claims; and (in ejectment) to recover vacant possessions. No application to stay execution need be made if a point is reserved for the court or leave is given to move to enter a nonsuit or verdict. The terms (if any) on which execution will be stayed are in the discretion of the judge making the order. Final judgment being signed, the power of the judge is at an end; and execution follows according to the terms of the order, |