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It was contended for the plaintiff, that this was good prima facie evidence, that the letter had been sent by the post. Lord Ellenborough held, that some evidence ought to be given, that the letter had been taken from the table in the counting-house, and put into the post-office. If the porter had been called, and if he had said, that, although he had no recollection of this particular letter, he invariably carried to the post-office all the letters found upon the table, this might have been sufficient but it was not sufficient to give such general evidence of the course of business in the plaintiff's counting-house.

The rule, which requires, that a party shall have previous notice to produce a written instrument in his possession, *before the contents can be proved as evidence in the cause, has been made with good reason; in order that the party may not be taken by surprise, in cases where it must be uncertain, whether such evidence will be brought forward at the trial by the adverse party. But this reason will not apply to cases, where from the nature of the proceedings the defendant has notice, that the plaintiff means to charge him with the possession of the instrument. (a) It cannot here be necessary to give any other notice, than the action itself supplies. In an action of trover, therefore, for a bond, the plaintiff was allowed to give parol evidence of the contents, to support the general description of the instrument in the declaration, without having given the defendant previous

(a) The grounds on which secondary evidence of the contents of written instrumeats is admitted, are that the party has not the power of producing them, because they are either lost or destroyed, or in the possession or power of the adverse party. At law it is not known till the time of trial what evidence will be offered on either side; a party therefore in order to entitle himself to give parol evidence of a written document, on the ground of its being in the possession of his adversary, ought to give him notice to produce it, for otherwise non constat that the best evidence might not be had: but when from the nature of the proceed. ings, the party must know that the contents of a written instrument in his possession will come in question, it is not necessary to give any notice for its production. ond Strickland, 2 Merivale 464.

notice to produce it. (1) And on a prosecution for stealing a promissory note or other writing described in the indictment, parol evidence of the contents will be received, without any formal notice to the prisoner to produce the original. (a) In Aickles' case, (2) 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 negotiation, in the hands of a third person, who had been served with a subpoena duces tecum, but who did not appear. And in Layer's case, (3) on an indictment for high treason, where it was proved that the prisoner had shown 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, (4) 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 hand-writing of the prisoner. (b)

(1) How v Hall, 14 East, 274. Scott Jones, 4 Taunt. 865 Jolley v Taylor, 1 Campb. 143. Butcher v Jarratt, 3 Bos, & Pull. 143.

(4) Cor. Buller J. and Heath J. O. B. 1781. 1 East, P. C. 124. from MS. of Gould J. These copies were rejected on another ground, because the ori(2) 1 Leach Cr. C. 330. ginals had not been traced to the pris(3) 6 St. Tr. 263. R. v Mcors, 6 oner's possession. See Howell's Col. East, 421. D. of St. Tr. vol. xxi. p. 737.

(392

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(a) Acc. The Commonwealth v Messinger & others, 1 Binney 273. The People v Holbrook, 13 Johns. Rep. 90.

(b) So, in a civil action, in Connecticut, under the statute of that state, by a person injured by a forged note, against the forger, it was held, that the note being in the possession of the defendant, notice to produce it was unnecessary, Ross v Bruce, 1 Day 100. Where an attorney, a witness, refused to produce a

Nor does the principle of the rule apply to the 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 notice to produce had not been given, parol evidence of the contents was admitted, because the paper belonged to the witness, and had been secreted in fraud of the subpœna. (1)

The counterpart of a deed is evidence against the person who signed it, and against his assignee, without giving notice to produce the original. Thus, in an action against the master of an apprentice, for not inserting in the indenture of apprenticeship the true consideration, an averment in the declaration, that A. B. by a certain indenture put himself apprentice to the defendant, may be proved by that part of the indenture which the defendant executed. (2) So, in an action of ejectment, upon a condition of re-entry for non-payment of rent, against the assignee of a lease, proof of the counterpart, executed by the original tenant, is sufficient proof of the assignee's holding on the same terms. (3)

Another case may here be mentioned, in which a majority of the judges in the Court of King's Bench were of opinion, that want of notice was not a sufficient ob*341 jection *against receiving parol evidence of the contents of a deed, because it appeared that the deed itself was in court in the possession of the opposite party.(4)

(1) Leeds v Cook, 4 Esp. N. P. C. 256.

(2) Burleigh Stibbs, 5 T. R. 465. (3) Roe dein. West v Davis, 7 East, 363. Mayor, &c. of Carlisle v Bla

mire, 8 East, 487.

(4) Doe on the several demises of Haldane and Urry v Harvey, 4 Burr. 2484. See Doe dem. Wartney v Grey, 1 Starkie, 283.

paper delivered to him by his client, (whether a party to the cause on trial, or not, does not appear,) a copy was allowed to be given in evidence. Lynde « Judd, 3 Day 499.

At the trial of an ejectment, on the several demises of
Haldane and Urry, title was deduced to Haldane under
a will; but one of the plaintiff's witnesses said, on cross-
examination, that Haldane had conveyed all interest in
the premises to Urry, before the time of the demise in the
declaration, and that the deed was in court. Upon this,
it was insisted, that, as the plaintiff's witness proved the
title out of Haldane, and as the deed of conveyance was
in the court, the deed ought to be produced in evidence
to show a title in Urry, the other lessor of the plaintiff.
The counsel for the plaintiff, on the contrary, refused to
produce the deed, insisting that the plaintiff ought to re-
cover under one or the other of the lessors; for, if the
one had parted with the title, the other had acquired it.
But Mr. J. Aston, who tried the cause, being of opinion
that the plaintiff ought to give further evidence to ascer
tain the title, under which he was to recover the term,
nonsuited the plaintiff; and on a motion afterwards for
setting aside this nonsuit, Lord Mansfield, after observ-
ing that in the action of ejectment the plaintiff could not
recover but upon the strength of his own title, said, "It
was plain the plaintiff had no title under Haldane, who
had conveyed away all the interest in the premises to
the other lessor, and that as to his claim of a title un-
der Urry, the plaintiff.had not proved any title; the jury
could not have found for the plaintiff under the deed of
conveyance to Urry, unless it were produced, and pro-
bably there was something in the deed which would have
shewn that Urry had no title." Lord Mansfield laid the
principal stress on the fact of the plaintiff's refusing to
produce the conveyance from Haldane, which was ad-
mitted to be in court. "The want of notice," he said,
"was no objection in this case, because they had the
deed in court; and the refusal to produce it warranted
the strongest presumption *that neither of the lessors
had any title." Mr. Justice Aston and Mr. Justice Wil-
les agreed in opinion with Lord Mansfield. But Mr.
"IIe
Justice Yates differed from the rest of the Court.
founded himself," he said, "upon the rules of evidence.

[394]

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Proof of notice.

(395)

The fact of the conveyance coming out on cross examination could make no differenee. The plaintiff's counsel were not obliged to produce the deed, for no man can be obliged to produce evidence against himself; the only consequence of a notice to produce would have been the admission of inferior evidence." Upon this case it may be observed, that the fact of Haldane's having conveyed away all his interest to Urry seems to have been assumed as satisfactorily proved; but from the opinion of Mr. Justice Yates, (which seems to be the better opinion,) it may be collected, that there was no legal proof of any conveyance of title out of Haldane, and that the answer of the witness, upon which the defendant's argument rested, was as inadmissible in evidence on the cross-examination, as it would have been on an examination in chief. The true objection to such evidence is, that the witness was speaking to the contents of a deed, when there had been no notice given to produce the original; and it does not appear to be a sufficient answer to say, that the deed is in court; for, if the party had received a regular notice to produce it, he might have come prepared with evidence to repel any inference, which the production of the deed might have raised against him.

A parol notice to produce writings may be proved by a third person who delivered the notice, or by one who heard it delivered; and a written notice may be proved by a duplicate original. (1) A notice to quit may be prov ed in the same manner by a duplicate original, in an action of ejectment. It may be objected, that the duplicate is not the best evidence of the contents of the notice delivered, as the supposed duplicate original may be inaccu* 343 rate, and the contents may be proved to a certainty by the production of the notice itself; but on the other hand, extreme inconvenience would arise from a stricter

(1) Gotlieb v Danvers, 1 Esp. N. P. C. 455. Surtees v Hubbard, 4 Esp. N P. C. 203.