fendant had already been at the expense of his attorney's journey to London for the other deeds, and they thought he was justified in refusing to comply with the second notice, as the plaintiff declined paying the expense. 3 B. & Ad. 182. Where the defendant was a foreigner usually residing abroad, a notice to produce letters written to him whilst abroad several years before, was served on him in London on Saturday the 10th of April, the cause coming on for trial on the 14th: it was objected that time should have been allowed him to send for the letters; but Abbott, C. J. said, that as it would lead to great inconvenience and delay, if trials were to be postponed upon objections such as this, it would be dangerous to hold that secondary evidence should not be admitted in such a case; he accordingly ruled that secondary evidence might be given of the letters. Ry. & M. 47. So, where a party went abroad before an action brought against him, and a notice was given on the 13th to his attorney, to produce at the trial, which was to be on the 15th, a letter written to his client three years before: Abbott, C. J. held that the notice was sufficient; a party leaving the country, and putting his cause into the hands of his attorney, must be presumed to leave in his hands all papers material to the cause, and the letter in question was most material. 2 Car. & P. 126. 125.

But in order to give effect to a notice to produce, it must appear, either expressly, or from circumstances from which the court may fairly presume it, that the original document is in the hands of the party who is required to produce it, or of his agent, &c. See ante, p. 382. As for instance, where a letter is sent to a party, and he returns an answer to it, it is to be presumed that the letter still remains in his hands. So, if a letter be proved to have been sent to a party by post, and it is not returned, the presumption is that it has reached him, and that he has it. But where in such a case it was merely proved that such a letter was copied into the letter book, and that the practice of the office was, that the clerk who copied such letters gave them to the principal to seal, who then gave them to a clerk to take to the post-office, but whether it was so done in that particular instance could not be proved: Lord Tenterden, C. J., held that this was not sufficient to let in secondary evidence, upon the original not neing produced on notice. Moody & M. 129. So, in an action against an executrix, Best, C. J., ruled, that proof of a letter being sent to the testatrix some years before her death, was no proof that it reached the hands of her executrix. 2 Car. & P. 198. In an action by the secretary of a charitable institution (which had been dissolved,) against three only out of several members of the committee, for his salary, it became necessary to produce the book of resolutions of the society, which the plaintiff had given the defendants notice to

59

produce; but because there was no proof that the book had ever been in the possession of the defendants, but merely of another member of the committee, who might have been compelled to attend with it by a subpœna duces tecum, if the plaintiff thought fit, the court held that secondary evidence could not be given of an entry in it, upon its not being produced in pursuance of the notice. 10 Bing. 395. Where a man sold a horse under a written warranty of soundness, and his son, who was in his service, afterwards obtained possession of the warranty by a fraudulent contrivance; in an action against the father on the warranty, Best, C. J., held, that as there was no evidence that the son acted as the agent of his father in the transaction, although he was present at the time of the sale, a notice served on the defendant to produce the warranty, did not enable the plaintiff to give secondary evidence of its contents. 1 Car. & P. 632. Where a notice was given to produce a letter, and it was proved, by the attorney of the party required to pro. duce it, that it was filed in the Court of Chancery, in pursuance of an order of that court, in a suit between the same parties: Abbot, C. J., held that no secondary evidence could be given of it, upon its not being produced upon notice; the letter was as much in the power of one party as the other, as either might, upon application to the Court of Chancery, have obtained permission to produce it. Ry. & M. 18.

Where there has been a notice to produce, the party giving it, may afterwards, at the trial, call for it or not, at his discretion; if he do not, the opposite party cannot in any way compel him to make it a part of his evidence. In an action of covenant, the plaintiff having lost his part of the deed, which was duly stamped, gave the defendant notice to produce the counterpart, which was not stamped; at the trial, however the plaintiff, instead of calling for the counterpart, (which was in court and ready to be produced,) gave secondary evidence of the lost deed from the draft of it, which was objected to by the defendant, on the ground that the counterpart was the best secondary evidence of the deed; but Best, C. J., overruled the objection, and the court afterwards held that the draft had properly been received in evidence. 2 Car. & P. 97. If the document mentioned in the notice be called for, the opposite party must at once make up his mind whether he will produce it or not; for if he decline to produce it when called for, he will not afterwards in the course of the cause be allowed to make use of it for any purpose whatever. Where notice had been given to a defendant to produce a receipt, and he declined to produce it at the trial when called for, in consequence of which a witness gave parol evidence of its contents; in cross-examination of this witness, the defendant's counsel pat the receipt into his hands, and proposed to ask him at what time an

interlineation in it was made: but Alderson, B., held, that as he refused to produce it when called for, he could not be allowed to produce it afterwards; a party, called upon by notice to produce a document, must produce it when it is called for or never. 6 Car. & P. 525. But if not produced when called for, the only effect of its non-production will be, that the party who gave the notice may then give secondary evidence of its contents. And on the other hand, the production of the document when called for, will not have the effect of making it evidence for the other party; it is still open to *objection for any interlineation or other defect appearing upon the face of it, 6 Car. & P. 525, or to the objection that it is not legal evidence in the cause. 3 Car. & P. 103: So, if the document be not produced when called for, and the opposite party propose to give secondary evidence of its contents, it may be opposed, if it appear sufficiently from the notice or otherwise that the original document, if forthcoming, would not be evidence. See 3 Car. & P. 103.

Subpana duces tecum.] If a deed or other original document, which is necessary evidence in a cause, be in the hands of a person who is not a party to the cause, the party requiring its production may serve the person who has it with a subpoena duces tecum to produce it. And if afterwards at the trial he appear, but object to the production of the document, for a reason which the judge may deem sufficient, as if he state it to be one of his own title-deeds, or that he is an attorney, and that it is the title deed of his client, in which case he cannot be compelled to produce it, then the judge upon application will allow the party to give secondary evidence of its contents. 6 Car. & P. 728, cor. Parke, B.; 1 Car. & P. 161, Abbott, cor. C. J. So, where a witness, who had been subpoenaed to produce a letter, stated in his examination at the trial, that after action brought he gave it to the opposite party, who said he wished to give it to his attorney; upon this, the attorney was called upon to produce the letter, and it not being produced, Lord Kenyon, C. J., allowed the other party to give parol evidence of its contents. 4 Esp. 256.

[*387]

CHAPTER II.

WRITTEN EVIDENCE.

SECT. 1. Records.

2. Mutters quasi of Record.

3. Written Instruments of a Private Nature.

SECT. 1.

Records.

Statutes.] Public statutes, the rules of the common law, and the general customs of the realm, are never required to be proved at the trial, for the same reason that they are not set forth in the pleadings, namely, because the court are bound ex officio to take notice of them; (a) and therefore, when the printed copy of a †public statute is produced at a trial, as is frequently the case, it is not to be deemed to be produced as evidence, but rather in aid of the memory of the court and jury. See Gilb. Ev. 10. By stat. 41 G. 3, c. 90, s. 9, the statutes of Ireland prior

(a) The proceedings in an action form a complete hypothetical syllogism. As thus :—" If any man take the goods of another, without lawful excuse, he shall pay to the other such damages as he may have sustained by reason of the said taking: But J. S. took such and such goods from J. N, without lawful excuse; and J. N. hath thereby sustained damage to the value of 101. Therefore J. S. shall pay to J. N. the sum of 101. being the amount of the damages the said J. N. hath sustained by reason of the said unlawful taking." The major proposition here is always either a statute, or a rule of the cominon law, or some general or special custom: the minor proposition is made up of the pleadings, evidence and verdict; and the judgment of the court is the conclusion. When the major proposi. tion consists of a private statute or particular custoin, it is set out in the declaration; and the proceedings then form the ordinary hypothetical syllogism, such as that now mentioned. But when a public statute, r a rule of the common law, or a general custom of the real-n, constitutes the major proposition, the syllogism is then what logicians term an enthymem7, that is, a syllogism consisting of the minor and conclusion only, the major proposition being understood.

So, where a plea, replication or other pleadiny, consisting of a confession and avoidance, is put in issue, the issue, verdict and judgment may be reduced to a syllogism in the like mannor.

the union, printed and published by the king's printer, shall be received as conclusive evidence in any court of Great Britain. These however are the statutes of another kingdom. But the statutes relating to Ireland, which have been made since the union, are taken notice of ex officio by the court, and need not be pleaded or proved.

Private statutes and particular customs, on the contrary, must be proved at the trial, for the same reason that they are required to be set forth in pleading. A private statute must be proved by an examined copy; Gilb. Ev. 12. see 1 Arch. Pr. C. P. 130. and see 12 East, 479; unless it be otherwise directed by the statute itself. See 10 Bing. 404. but see Moody & M. 421.

Private statutes may be given in evidence, not only when the matter of them is directly put in issue, but also if they become necessary incidentally. As where the issue was whether certain lands passed by a grant of King Henry 8, the defendant was allowed to give in evidence a private statute, 35 H. 8, by which it is enacted, that lands should pass by that king's grants, notwithstanding any misrecital of them in the patents. Hob. 226, 227. Gilb. Ev. 42. Also, where the printed copy of a public statute was produced, as proof of certain facts recited in the preamble, the court held that it was admissible evidence for that purpose. 4 M. & S. 532.

The distinction between public and private statutes is this; a general or public act is an universal rule, that regards the whole community; but special or private acts are rather exceptions than rules, being those which operate upon private personsand private concerns. 1 Bl. Com. 86; Gilb. Ev. 45. If a statute relate to all the subjects of the realm, it is a public statute. 8 Co. 138. But a statute which relates to particular persons, see 1 Salk. 168, or to particular places, as to one or more particular manors or towns, &c., 4 Co. 76 b., Skin. 350, or to one or more particular counties. 4 Co. 76 b., as for instance the stat. 3 J. 1, c. 5, which gives the benefices of recusants in particular counties to the universities, R. 10 Co. 57, c., and the stat. 18 El. c. 6, relating to colleges in the universities, 4 Co. 76, a., and the like, are private statutes. All statutes which concern the king, R. 8 Co. 28, a. R. 4 Co. 13. 77, a. Hob. 227, or the queen, 8 Co. 28 b. Plowd. 231, a. or the heir, R. 8 Co. 28, b., are public statutes. statute, by which all corporations or licences granted by Henry 6 are declared to be void, was holden a private statute. Plowd. 65; 13 E. 4,8. b. A statute relating to all spiritual persons, such as the stat. 21 II. 8, c. 13, stat. 13 El. c. 10, stat. 18 El. c. 11, and the like, is a public statute; R. 4 Co. 76, a. 120, b. 1 Brownl. 208. 2 Ro. Abr. 465: but a statute which concerns a part of the spirituality only, such as

prince, their eldest son and See 8 B. & C. 743. But a