to him during the time the sheriff remained in office. Taplin v. Atty, 3 Bing. 164. So notice to a defendant to produce a check drawn by him, and paid by his banker, is sufficient to entitle the plaintiff to give secondary evidence of its contents, though the check remains in the banker's hands; for the possession of the banker is the possession of his customer. Partridge v. Coates, Ry. & Mood. N. P. C. 156., per Abbott C. J.: S. P. Burton v. Payne, 2 Carr. & P. 520. per Bayley J.(a) But it is otherwise where the document is held by one as the common agent of the party in the cause and a third person. Parry v. May, 1 Mood. & Rob. 280., coram Littledale J.

A letter which had been in the possession of the defendant was proved on the part of the defendant to be then filed in chancery, pursuant to an order of that court: Abbott C. J. was of opinion, that the plaintiff, upon proof of notice to produce, was not entitled to give secondary evidence of the contents; for the letter was as much in the possession of the one party as the other. Either party might, on application to the court of chancery, have obtained permission to produce it. Williams v. Munnings, 1 Ry. & Mood. N.P.C. I 18. But where a document was traced to the possession of the defendant, upon whom notice to produce it had been served, but he proved that it was then in the stamp office (where it had been delivered to have some duties allowed), Best C. J. held, that as he had not informed the plaintiff of that circumstance when serving the notice, secondary evidence was allowable. Sinclair v. Stevenson, 1 Carr. & P. 582.

Instrument once in party's possession, but since parted.

Notice to pro

After the possession of the primary evidence is proved to be in the adverse party, the party offering secondary evidence must duce: prove that he has given notice to the other side to produce the primary evidence. (4) Such notice may be by parol as well as in its form : writing; and if both a parol and written notice have been given, proof of either is sufficient. Smith v. Young, 1 Campb. 440. It should be properly entitled: Harvey v. Morgan, 2 Stark. 17.; and must not be general, but should specify the document to be produced. Thus, a notice "to produce all letters, papers, and documents touching a bill of exchange mentioned in the declaration, and the debt sought to be recovered," was held too vague. France v. Lucy, Ry. & Mood. N. P. C. 341. So a notice "to produce letters and copies of letters, also all books relating to the cause," was held insufficient to let in secondary evidence of a letter alleged to have been written nine years before. Jones Edwards, M Clel. & Y. 139.

V.

whom to be

It should also be served in reasonable time. (c) A prisoner when and upon (a) See also Sinclair v. Stevenson, 1 Carr. & P. 584., where Best C. J. held served: it was enough to trace the primary evidence to the possession of an agent. But there is no such privity between the defendant and a third person under whom he justifies, so as to make proof of the possession of such third party equivalent to the possession of the defendant. Evans v. Sweet, 1 Ry. & Mood. N. P. C. 85., per Best C. J. And Ld. Kenyon held, on the trial of an information for a libel, that proof of the delivery of a paper to the servant of the defendant was not proof of the fact of the paper being in the defendant's possession, so as to let in parol evidence of its contents, upon notice to the defendant to produce it. Rex v. Pearce, Peake, N. P. C. 76. (But see contrà, Pritchard v. Symonds, Bull. N. P. 254., Rosc. Ev. 4., and Colonel Gordon's case, 1 Leach, 300. n. (a) to Aickles's case.)

(b) Where a document is proved to have come into the hands of one party to a cause, the opposite party cannot entitle himself to give secondary evidence of its contents by shewing that it has been since lost or destroyed, unless he has served notice to produce. Doe dem. Phillips v. Morris, 3 Adol. & Ellis, 46.

(c) As to what is considered a reasonable notice in civil cases, see Doe v. Grey,

when notice unnecessary.

was indicted for arson: the commission day was on the 15th of March, and the trial came on on the 20th: a notice to produce a policy of insurance, served on the prisoner in gaol (his residence being ten miles distant) on the 18th, was held insufficient by Littledale J., after consulting with Park J. Rex v. Ellicombe, 5 C. & P. 522. S. C. 1 Mood. & Rob. 260. It may be served either on the party himself or his attorney. There is no difference in this respect between criminal and civil cases: The Attorney-General v. Le Merchant, 2 T. R. 203., in note (a) to Rex v. Watson.

Mr. Justice Bayley, in delivering the judgment of the court of K. B. in Colling v. Treweek, 6 B. &C. 398., said, "There are three descriptions of cases where notice to produce an instrument is unnecessary 1st, where the instrument produced and that to be proved are duplicate originals; 2dly, where the instrument to be proved is a notice, as a notice to quit, or a notice of the dishonour of a bill of exchange (see also Swain v. Lewis, 1 Cr. Mees. & R. 261.); the 3d case is where, from the nature of the suit, the opposite party must know that he is charged with the possession of the instrument. Thus, in an action of trover for a bond or note, parol evidence of the instrument may be given, although no previous notice be proved."

So on a prosecution for stealing a promissory note or other writing described in the indictment, parol evidence of the contents will be admissible, without any formal notice to the prisoner to produce the original. In Aickle's case, 1 Leach, 294., on an indictment for stealing a bill of exchange, all the judges held, that such evidence had been properly admitted, though it was proved, in that case, that the bill had been seen, only a few days before the trial, in a state of negociation, in the hands of a third person, who had been served with a subpoena, and did not appear: And if it had been proved to have been in the custody of the prisoner, parol evidence might have been given of its contents without notice to produce. 1 Leach, 297., per Heath J. So in Spragge's case, who was tried before Buller J. on an indictment for forging a note, which the pri soner afterwards got possession of and swallowed, parol evidence was permitted to be given of the contents of the note, though no notice to produce it had been given. Cited by Lord Ellenborough in How v. Hall, 13 East, 276. In Layer's case, 6 St. Tr. 263., on an indictment for high treason, where it was proved that the prisoner had shewn a person the paper, containing the treasonable matter laid in the indictment, and then immediately put it into his pocket, that person was permitted to give parol evidence of the contents of the paper. And in the case of De la Motte, coram Buller and Heath Js., 1 East, P. C. c. 2. s. 58. 124., on an indictment for a traitorous correspondence with the French government, where the question was, whether examined copies of the treasonable papers, which had been secretly opened at the post-office, and copied, and then forwarded to their place of destination, were admissible in evidence; the court held, that they might be admitted, after proof that the originals were in the handwriting of the pri soner. So on the trial of an indictment for administering an unlawful oath, it was held that a witness might prove that the

1 Stark. N.P.C. 283. Bryan v. Wagstaff, 1 Ry. & Mood. N. P. C. 327. Drabble v. Donner, ibid. 47. Doe v. Spitty, 3 B. & Adol. 182.

prisoner read an oath from a paper, without giving him notice to produce it. Rex v. Moors, 6 East, 419., note to Rex v. Nield. (a)

court.

It seems to be the better opinion, that neither party will be Necessary allowed either in an examination in chief, or in a cross-examination, though docuto inquire into the contents of a deed, merely because the opposite ment is in party has the original deed in his possession, in court, at the time of the trial; and that the opposite party may object to parol evidence of the contents on account of his not having received a notice to produce the original. Cook v. Hearn, 1 Mood. & Rob. 201.: Bate v. Kinsey, 1 Cr. Mees. & Rosc. 38. (And see Doe v. Grey, 1 Stark. 283.: Doe v. Harvey, 4 Burr, 2484.)

If upon a notice to the adverse party to produce primary evidence in his possession, he refuses to produce the instruments required, it has been held that no inference is to be drawn from such refusal; but that the only consequence is, that the other party, who has done all in his power to supply the best evidence, will be allowed to go into secondary evidence. (b) If the party giving due notice declines 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. N. P. C. 210.; though it is otherwise when the papers are inspected: Wharam v. Routledge, 5 Esp. N. P. C. 235.; if they are at all material to the case: Wilson v. Bowie, 1 Carr. & P. 10., cor. Park J. Secondary evidence of papers, to produce which notice has been given, cannot be entered into till the party calling for them has opened his case, before which time there can be no cross-examination as to their contents. Graham

v. Dyster, 2 Stark. 23. Where a party after notice refuses to produce an agreement, it is to be presumed, as against him, that it is properly stamped. Crisp v. Anderson, 1 Stark. N. P. C. 35. But the party refusing is at liberty to prove the contrary. Ibid.

Consequences

of giving notice to produce.

3. It remains to be considered what is good secondary evi- 3. What is dence. (c) It must be observed, that previous to giving any such good secondary evidence of the contents of a deed, the original deed ought to be proved to have been duly executed. Bull, N. P. 254. Rex v.

(a) See also Rex v. Hunt, 3 B. & A. 566., antè, p. 1101. And see the same case as to proving inscriptions on banners, &c. without notice to produce, antè, p. 1101. So the principle of the rule requiring notice to produce does not extend to a case where a party to the suit has fraudulently got possession of a written instrument belonging to a third person; as where a witness was called on the part of the defendant to produce a letter written to him by the plaintiff, and it appeared that, after the commencement of the action, he had given it to the plaintiff; in this case, though a notice to produce had not been given, parol evidence was admitted; because the paper belonged to the witness, and had been secreted in fraud of the subpoena. Leeds v. Cook, 4 Esp. N. P. C. 256.

(b) See Cooper and another v. Gibbons, 3 Campb. 363. That was an action for the value of a pipe of wine; notice had been given by the defendant to the plaintiff's to produce their books, but they were not produced. It was insisted for the defendant, that the jury were bound to draw an inference against the plaintiffs from such non-production. But Gibbs C. J. said, "I have considered this subject a good deal, and I am of opinion that the jury are not authorized to draw any such inference from the circumstance relied on. The non-production of the plaintiffs' books, after a notice to produce them, merely entitles the defendants to give parol evidence of their contents."

(c) When secondary evidence is let in, it is subject to the same rules as the best evidence which the case admits of: the evidence as to the contents of written instruments, when they cannot be produced themselves, must be of a nature which the law would receive in other instances. Per Ld. Ellenborough in Fisher ▼. Samuda, 1 Campb. 193. (See also Liebman v. Pooley, 1 Stark. N. P. C. 167.)

evidence.

Of a deed:

original instrument must be proved to have been duly executed.

Of a letter.

trade.

of

Culpepper, Shin. 673. So where an original note of hand is lost, a copy cannot be read in evidence, unless the note is first proved to be genuine: By Lord Hardwicke C. J., in Goodier v. Lake, 1 Atk. 246. The next best secondary evidence of a deed is a counterpart, if in existence. Bull. N. P. 254. (a) If there be no coun terpart, an examined copy; if no examined copy, parol evidence. 1 Phil. Ev. 438. However, it was said by J. Parke J., in Brown v. Woodman, 6 C. & P. 206., that there are no degrees of secondary evidence; and he ruled that where a defendant had kept a copy a letter of which he had given the plaintiff notice to produce the original, he might, on non-production, give parol evidence of the contents and was not obliged to give in evidence the copy. The evidence of any one who recollects the contents of a letter is good secondary evidence of them, although it is in the party's power to produce the clerk who wrote the letter. Liebman v. Pooley, 1 Stark. N. P. C. 167., by Lord Ellenborough. But a copy of the original copy of a letter is not good secondary evidence. Of a licence to Ibid. If it be necessary to prove the contents of a licence to trade granted from the crown, proof of its loss is not enough to let in parol evidence of them, because there must be some register of it at the secretary of state's office, and that register would be better than parol evidence. Rhind v. Wilkinson, 2 Taunt. 237. Eyrev. Palsgrave, 2 Campb. 605. So where it was proposed to prove that defendant was owner of a ship, by means of his affidavit, sworn for the purpose of obtaining a certificate of register; and a proper ground for the reception of secondary evidence had been laid; Ld. Ellenborough held, that an entry in the register book at the customhouse, stating that the certificate had been granted on an affidavit of the defendant that he was owner, was not admissible as second. ary evidence; the collector's clerk, or some person who had seen the affidavit, and knew that it was made by the defendant, ought to have been called. Teed v. Martin, 4 Campb. 90. Where there are two parts of a written agreement, both executed at the same time, the one stamped and the other unstamped, the unstamped part is admissible as secondary evidence of the contents of the stamped part. Waller v. Horsfall, 1 Campb. 501. So where there was a properly stamped agreement under seal, and a counterpart of it unstamped, and the plaintiff proved the loss of the deed itself, and proposed to read a draft copy in evidence; it was held that the counterpart, which was produced after notice by the defendant, ought to be read as the best secondary evidence of the contents of the lost deed. Munn v. Godbold, 3 Bing. 292. (See also Garnows v. Swift, 1 Taunt. 507.)

Of an affidavit of ownership of

ship.

Of lost agreement, &c. by unstamped counterpart.

Cases where

the rule is relaxed.

Public books.

Post-office marks.

There are some particular cases, where the rule that the best possible evidence must be produced has been relaxed. Where it is necessary to prove an entry in a public book, the original book need not be shewn; but, from a principle of general convenience, an examined copy will be admitted. 1 Phil. Ev. 215. The postoffice marks in town or country, proved to be such, are evidence that the letters on which they are were in the office to which those marks belong at the dates those marks specify. Rev. Plumer, Russ. & Ry. C. C. R. 264. But a mark of double postage on such a letter is not in itself evidence that the Muster books. letter contained an inclosure. Ibid. The muster books of the

(a) And see the judgment of Best C. J. in Munn v. Godbold, 3 Bing. 294.

ing's ships, documented in the navy office, to which returns are egularly made, by the commanders, of the names, &c. of their espective crews, may be admitted as evidence of the persons herein named having served on board the several ships in the caacity there mentioned. Rhodes's case, 1 Leach, 24. (And see lickles's case, 1 Leach, 391., where it was held that the daily book f a prison is good evidence to prove the time of a prisoner's disharge.) So in the case of all peace officers, justices of the peace, Persons acting onstables, &c., it is sufficient to prove that they acted in these in a public caharacters without producing their appointments; and that even in pacity. case of murder. By Buller J., in Berryman v. Wise, 4 T. R. 366. A witness may be examined on the voire dire, as to the contents of On the voire written instrument without notice having been given to produce dire. :: antè, p. 1040. And where a witness is cross-examined for the On cross-exaurpose of impeaching his credit, such cross-examination is some- mination to imes allowed to be conducted without regard to the rule under impeach a witonsideration. Thus an accomplice or other witness, who appears or the crown on a criminal prosecution, is often asked on the part f the prisoner, without any objection, whether he has not himself een tried for some offence, although, if the rule were strictly aplied, that fact could only be proved by the best possible evidence, iz. the record: antè, p. 1064.

ness's credit.

Since parol evidence is inferior to written evidence, it is A writing canot admissible to vary or contradict the expressed terms of not be varied or ny instrument in writing, which, according to the principle contradicted by bove stated, has become the primary evidence of the facts which parol evidence. re the subject of it. An example may be found in the point, which snow fully settled, that if a promissory note is made, on the face of = payable on a day certain, parol evidence is inadmissible to shew hat it was to be payable only on a contingency: Foster v. Jolly, Cromp. Mees. & Rosc. 703.; or not to be payable until a given vent happens: Moseley v. Handford, 10 B. & C. 729. So where a ond has been given conditioned for payment absolutely, the party ound cannot set up that it was agreed that the bond should merely perate as an indemnity: Mease v. Mease, Cowp. Rep.47. So where I was agreed in writing that A. for certain considerations should ave the produce of Boreham meadow, it was held, that he could ot prove by parol that he was to have both the soil and prouce of Millcroft and of Boreham meadow: Meres v. Ansell, Wils. 275. So, although parol evidence may be admissible to rove an additional consideration in a written instrument consistent ith the consideration expressed (see post, Vol. IV., tit. Poor, - 1012, 1013.), yet a party cannot set up a consideration contrary hereto. Mildmay's case, 1 Co. Rep. 176. Bedell's case, 7 Co. Rep. 40.

Nevertheless a deed may be averred to have been made on a Admissible ifferent day from that on which it bears date; for it takes effect in certain cases. om the delivery. Hall v. Cagenoze, 4 East, 477. So where a ase purported on the face of it to have been made on the 25th March 1783, habendum to the lessee from the 25th March now last ust for thirty-five years: there was evidence to shew that the ase was not executed until after the 25th March 1783: It was eld, that it took effect from the time of delivery, and not from the ay of the date, and consequently that the term commenced on the 5th March 1783, and not on the 25th March preceding the date the deed. Steele v. Mart, 4 B. & C. 272.

Again, parol evidence is admissible to shew that a written contract