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Proof of Loss of Document.
7 its proper place of deposit, further search may generally be dispensed with ; as where it was the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is that it is lost or destroyed. Thus a fruitless search in the parish chest for indentures, given up to the parish officers long ago, is sufficient to let in parol evidence of them. R. v. Stourbridge, 8 B. & C. 96; 2 M. & Ry. 43. See also R. v. Hinchley, ante, p. 6.
A cheque drawn on account of a parish was delivered to the defendant, who was then paying clerk of the parish ; it was shown that the bankers of the parish, on the same day, paid the cheque, and that their custom was to return the paid cheques to the paying clerk, who deposited them in an apartment in the workhouse; the defendant was no longer in office as paying clerk, and his successor was not called ; a witness stated that he had made application to him for an inspection of the cheques, and that he had handed him several bundles, which the witness looked through without finding the cheque in question ; it was held that secondary evidence of the contents of the cheque was admissible. M'Gahey v. Alston, 2 M. & W. 206. In Pardoe v. Price, 13 M. & W. 267, a search for a security given to one K. in an attorney's office, where the papers of K. and of his executrix were deposited, was held to be sufficient to let in secondary evidence.
If there are several places of probable deposit, all should be searched. Where a conveyance of freehold and leasehold in trust was alleged to be lost, and one of the trustees and the heir of another, deceased, negatived possession of it, it was held insufficient unless the executor of the deceased trustee was also questioned, who had taken possession of his papers. Doe d. Richards v. Lewis, 11 C. B. 1035 ; 20 L. J., C. P. 177. And where there were duplicate instruments executed, a search for both seems necessary, ante, p. 4.
Secondary evidence of a bill or note in a negotiable state cannot be admitted, when the loss is specially pleaded, unless the destruction, and not the mere loss, of it be proved. See post, Part II., Action on Bills of Exchange ; Production of the Bill.
Though proof of the destruction of the original lets in secondary proof, yet if the destruction is alleged to have been by, or while in the possession of, the opposite party, a notice to produce is required. Doe d. Phillips v. Morris, 3 Ad. & E. 46, cited post, p. 8.
The objection that secondary evidence of a document is offered without proof of due search for the original must be distinctly made at the trial ; otherwise the court will not entertain it on a motion for a new trial. Williams v. Wilcox, 8 Ad. & E. 314.
Notice to produce when necessary.] In general, when any written instrument is in the possession or power of the opposite party, secondary evidence of its contents is inadmissible without previous proof of a notice to produce the original. R. v. Elworthy, L. R., 1 C. C. 105. But where, from the nature of the proceedings, the party in possession of the instrument necessarily has notice that he is to be charged with the possession of it, as in the case of trover for a bond, a notice to produce is unnecessary. How v. Hall, 14 East, 274 ; Scott v. Jones, 4 Taunt. 865. And the plaintiff may prove the nature and description of the document for which trover is brought by secondary evidence, though the defendant offers to produce it; for that is part of the defendant's evidence. Whitehead v. Scott, 1 M. & Rob. 2. So à notice is not required where the party has procured the possession of the instrument by fraud, after the action commenced, from a witness called for the
purpose of producing it under a subpænâ duces tecum. Leeds v. Cook, 4 Esp. 256. A counterpart executed by the defendant may be read by the plaintiff with
out a notice to produce the original. Burleigh v. Stibbs, 5 T. R. 465. See also other cases cited, ante, p. 3. In trover against a sheriff for executing a fi. fa., plaintiff may give evidence of the warrant and its loss, without notice to produce it. Minshall v. Lloyd, 2 M. & W. 450. In an action for seamen's wages, secondary evidence of the ship's articles is admissible under 17 & 18 Vict. c. 104, s. 164, without any notice to produce them. See Bouman v. Manzelman, 2 Camp. 315, decided under an earlier statute. But where defendant pleaded to an action by drawer of a bill, that he accepted in part payment of a debt due from defendant to plaintiff in order to induce him to prove his debt under a fiat then pending against the defendant, to which plaintiff replied by denying acceptance in part payment of such debt: held that plaintiff was not bound to produce the bill without notice to produce ; Goodered v. Armour, 3 Q. B. 956; and the same point was ruled where the defendant pleaded that his acceptance was obtained by fraud, and issue was joined thereon. Laurence v. Clark, 14 M. & W. 250. In ejectment the defendant relied upon a will ; on the cross-examination of one of his witnesses he stated that, about a fortnight after the execution of the will, a second will was prepared, which had come to the possession of the defendant : the plaintiff's counsel was not allowed to ask whether the latter paper was duly signed by three witnesses, and whether the testator had declared it to be his last will, no notice to produce it having been given. Doe d. Phillips v. Morris, 3 Ád. & E. 46.
Notice to produce a notice to produce is, for obvious reasons, not necessary; and, generally, a notice to produce any notice on which the action is founded is also unnecessary. It is usual in business to make two copies of them, and to serve one and retain the other ; indorsing on the one retained the time and mode of service. There can be no doubt that in this case the notice served is, strictly speaking, the only primary evidence. But a custom, and not an unreasonable one, of admitting the copy, which is almost a duplicate original, has obtained. There is some little doubt as to what are the notices to which the rule extends. It clearly extends to a notice to produce documents ; it has also been held to extend to a notice to quit; Doe d. Fleming v. Somerton, 7. Q. B. 58 ; to a notice of dishonour ; Swain v. Lewis, 2 C. M. & R. 261; Kine v. Beaumont, 3 B. & B. 288; and to a notice of demand of a copy of the warrant pursuant to the 24 Geo. 2, c. 44, s. 6; Jory v. Orchard, 2 B. & P. 39. But the rule does not extend to notice of dishonour of bills other than the bill sued on. Lanauze v. Palmer, M. & M. 31.
In order to prove the delivery of a solicitor's signed bill of costs, it is not necessary to give notice to produce the bill delivered, which is itself a notice. Colling V. Treweek, 6 B. & C. 394. See also the 6 & 7 Vict. c. 73,
By Rules, 1883, 0. xxxii., r. 8, “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
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." It would seem that “sufficient evidence” means in this rule primâ facie evidence only ; see Barraclough v. Greenhough, L. R., 2 Q. B. 612, Ex. Ch., post, p. 141. This rule dispenses with the notice to admit which was required under the C. L. P. Act, 1852, s. 119, now repealed by the Statute Law Revision and Civil Procedure Act, 1883, 46 & 47 Vict. c. 49.
It has been held that a party is not to be allowed, either in an examination in chief or in cross-examination, to inquire into the contents of a deed, merely because the opposite party has the original deed in his possession in court at the time of the trial, not having received a notice to produce. Roe d. Haldane v. Harvey, 4 Burr. 2484 ; Bate v. Kinsey, 1 C. M. & R. 38. But
this doctrine has been denied, and the cases on which it is foundedl
, distinguished in Dwyer v. Collins, 7 Exch. 639 ; 21 L.J., Ex. 225, where it was held that if a party has the document in court at the trial, a requisition to produce it, given at the trial, will be sufficient to let in secondary evidence to it, if production is refused ; and the solicitor of one party may be asked in court whether he has the document in court, and is bound to answer the question, though he may be justified in refusing to produce it on the ground of confidence. For the object of a notice is only to give the party an opportunity to produce it, if he pleases.
Although the contents of a document may be proved by an admission of the opposite party out of court, yet it seems that the party cannot himself be cross-examined (when produced as a witness) respecting its contents unless he has had notice to produce it. Darby v. Ouseley, 25 L. J., Ex. 227. In this last case it did not appear that the party interrogated had the document in his power or possession, and the language of the court almost goes to the extent of showing that a party cannot be called on to say whether he admits the contents of any document, though his admission out of court would have been evidence according to Slatterie v. Pooley, ante, p. 2. The court considered that there was a difference between proving an admission and calling upon the party in court to make one. See also Whyman v. Garth, 8 Exch. 803 ; 22 L. J., Ex. 316, cited post, p. 124.
An admission in the usual form, under a notice to admit, as now required, of the accuracy of a copy, will not dispense with a notice to produce the original, if in the opposite party's possession, or with other pre-requisites for the reception of secondary evidence. See Sharpe v. Lamb, 11 Ad. & E. 805 ; Admission under notice to admit, post, pp. 70, et seq.
Notice to produce ; proof of possession of original.] In order to render a notice to produce available, it must be proved that the original instrument is in the hands of the opposite party, or of some person in privity with him. The nature of this evidence must vary according to the nature of the instrument. Where it belongs exclusively to the party, slight evidence is sufficient to raise a presumption that it is in his possession. Thus, where a solicitor proved that he had been employed by the defendant to solicit his certificate, and that looking at his entry of charges he had no doubt the certificate was allowed, this was held to be presumptive proof of the certificate having come to the defendant's hands. Henry v. Leigh, 3 Camp. 502. Where the instrument has been delivered to a third person, between whom and the party to the suit there exists a privity, notice to the latter is sufficient; as in an action against the owner of a vessel for goods supplied to the use of the vessel, a notice to the defendant to produce the order for the goods, which had been delivered to the master by the defendant, is sufficient. Baldney v. Ritchie, 1 Stark. 338. So in an action against the sheriff
, a notice to his solicitor to produce a warrant, which has been returned to the undersheriff while the defendant was in office, is sufficient, whether the defendant be in or out of office at the time of notice. Taplin v. Atty, 3 Bing. 164 ; Suter v. Burrell, 2 H. & N. 867; 27 L. J., Ex. 193. So also notice to a defendant to produce a cheque drawn by him, and paid by his banker, is sufficient to entitle the plaintiff to give secondary evidence of its contents, although the cheque remains in the banker's hands. Partridge v. Coates, Ry. & M. 156. So notice to a party to the action to produce a document in the possession of his solicitor in another action is sufficient. Irwin v. Lever, 2 F. & F. 296. If the instrument was in possession of the party at the time of the service of notice he cannot afterwards voluntarily part with it so as to get rid of the effect of the notice. Dallas, C. J., in Knight v. Martin, Gow, 104 ; and "Best, C. J., in Sinclair v. Stevenson, 1 C. & P. 585. But where the plaintiff was nonsuited in a cause in which he had given defendant notice to produce a lease, and afterwards defendant assigned the lease, and on a second trial plaintiff again gave defendant's attorney notice to produce it, and was then told by him of the assignment, it was held that secondary evidence was inadmissible and a subpæna necessary. Knight v. Martin, Gow, 103. Where a paper had been delivered to a third person under whom the defendant justified in an action of trespass, and by whose directions he acted, a notice to produce, served upon the defendant, was held not sufficient to authorise the admission of secondary evidence. Evans v. Sweet, Ry. & M. 83. It is said, however, in B. N. P. 254, that “if it were proved that the deed came into the hands of the defendant's brother, under whom the defendant claims, a copy ought to be read, even though the defendant have swom in an answer in Chancery that he has not.got the original.” For this the learned author refers to Thurston v. Delahay, Hereford Ass. 1744 ; Pritchard v. Symonds, Hereford, 1744 ; Bartlett v. Gawler, 14 Geo. 2, K. B. But the statement is rather loose. When a document is in the hands of a person who holds it as stakeholder between the defendant and a third party, the notice to produce is not sufficient to let in secondary evidence ; Parry v. May, 1 M. & Rob. 279 ; for though it need not be shown that the document is in the actual possession of the party, it must be in the hands of some one who is bound to give up possession to him. S. C. See also Wright v. Bunyard, 2 F. & F. 193.
The question whether there is sufficient proof of possession in the opposite party is in general solely for the judge ; and, where the notice to produce is given by the plaintiff, the defendant may interpose with evidence to disprove possession ; and such evidence (being, in fact, for the information of the judge) gives the plaintiff no reply to the jury. Harvey v. Mitchell, 2 M. & Rob. 366. Notice to produce a book containing the terms of an agreement was served on defendant; at the trial defendant produced such a book, but plaintiff denied that it was the right one, though defendant denied possession of any other ; the question of the existence of another was held to be for the judge, but he might, by consent, take the opinion of the jury on it as an interlocutory issue. Froude v. Hobbs, 1 F. & F. 612. “Where the objection to the reading of a copy concedes that there was primary evidence of some sort in existence, but defective in some collateral matter, as, for instance, where the objection is a pure stamp objection, the judge must, before he admits the copy, hear and determine whether the objection is well founded. But where the objection goes to show that the very substratum and foundation of the cause of action is wanting, the judge must not decide upon the matter, but receive the copy, and leave the main question to the jury.” Stowe v. Querner, L. R., 5 Ex. 155, 158, 159, per Bramwell, B. This was an action on a policy of insurance, in which the existence of the policy was in issue ; the defendant did not produce the policy at the trial pursuant to notice, and thereupon the plaintiff put in a copy received from defendant's broker; the defendant objected, and offered evidence to show that there never was an original policy, but the judge admitted the copy. The evidence was subsequently given, and the judge left it to the jury to say whether the defendant ħad executed a stamped policy. The jury found in the affirmative. It was held that the question was rightly left to them, inasmuch as if the judge had himself decided it he would have decided the main issue between the parties.
Notice to produce; form of.] The rule formerly was that a notice to produce might be oral, and if both a written and oral notice have been given, proof of either was sufficient. Smith v. Young, 1 Camp. 440. Rules, 1883, 0. xxxii., r. 8, specifies the form of a notice to produce, and O. lxvi., r. 1,
provides that “all notices required by these rules shall be in writing, unless expressly authorised by the court or a judge to be given orally.” It is not easy to say precisely to what extent the notice to produce a document ought to define it. Several documents are generally required, and the practice is to include them all in one notice. It is also usual to give some particular description of the documents required, but it is better to give a general description than to risk giving an erroneous one. A notice to produce “ all letters written by plaintiff to defendant relating to the matters in dispute in this action” (Jacob v. Lee, 2 M. & Rob. 33 ; Patteson, J.), or "all letters written to, and received by, plaintiff between 1837 and 1841, both inclusive, by and from the defendants, or either of them, and all papers, &c., relating to the subject matter of this cause,” (Morris v. Hauser, Id. 392, Ld. Denman, C. J.) has been held sufficient to let in secondary evidence of particular letter not otherwise specified. So in Rogers v. Custance, Id. 179, Ld. Denman, C. J., held a notice to produce “ail accounts, papers and writings in any way relating to the matters in question in this case” suffciently to particularise a written account of the work done by the plaintiff, delivered to the defendant, and admitted by him to be correct; aftirmed by Q. B. Id. 181. And in the recent case of Conybeare v. Farries, L. R., 5 Ex. 16, a notice to produce "all letters relating to your tenancy of a room, &c.," was held sufficient to include a letter which, with the plaintiff's reply, constituted the tenancy. The notice must not, however, be too general, as “all letters." Gardner v. Wright, 15 L. T., N. S. 325, Blackburn, J. See also Jones v. Edwards, M.CI. & Y. 139. 'In France v. Lucy, Ry. & M. 341, it was held by Best, C. J., that a notice to produce “all letters, papers and documents touching or concerning the bill of exchange mentioned in the declaration, and the bill sought to be recovered,” did not sufficiently describe a notice of dishonour sent by the plaintiff to the defendant. But this decision is hardly consistent with the more recent cases cited above. If the title of the cause is misdescribed in the notice, it has been held bad ; Harvey v. Morgan, 2 Stark. 19; but semb. no title at all was necessary, and there were other grounds of decision in this case : nor was there in that case any ground for supposing that the misdescription could mislead. In a later case, where the notice entitled in a wrong court, it was considered sufficient. Lawrence v. Clark, 14 M. & W. 250. Notice to produce a letter purporting to enclose an account is sufficient notice to produce the account. Engall v. Druce, 9 W. R. 536, E. T. 1861, C. P.
Notice to produce; service of, on whom.] In general it is sufficient to serve the notice to produce on the solicitor or agent of the party. Cates v. Winter, 3 T. R. 306. Indeed, it seems more proper to do so where there is a solicitor. Houseman v. Roberts, 5 C. & P. 394. But notice served on the party is sufficient. Hughes v. Budd, 8 Dowl. 315. A notice to produce papers not necessarily connected with the cause, served on the solicitor so late as to prevent the party (i.e., his client) from receiving it in time before the trial, is not good.
Vice v. Anson, Ly., M. & M. 96. Where the solicitor has been changed, a notice to produce served on the first solicitor before the change will entitle the party to call for production of the paper.
Doe d. Martin v. Martin, 1 M. & Rob. 242. It is sufficient to leave the notice with the servant of the party at his dwelling-house. Evans v. Sweet, Ry. & M. 83, 84, per Best, C. J.
Notice to produce ; time and place of service.] The proper time and place of service of a notice to produce will depend on the circumstances of the case. The notice must be such as to satisfy the judge that the party called upon to produce the document might, by using reasonable diligence, have done so.