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Service of the notice upon the wife of the defendant's attorney in a town cause late in the evening before the trial was held insufficient. Doe d. Wartney v. Grey, 1 Stark. 283. So service in the attorney's office letter-box late over night. Lawrence v. Clark, 14 M. & W. 250. But notice to produce a letter, served on the attorney of the party on the evening next but one before the trial, was ruled to be sufficient, thongh the party was out of England ; the presumption being that, on going abroad, the party. had left with his attorney the papers necessary for the conduct of the trial. Bryan v. Wagstaff, Ry. & M. 327. See also Aflalo v. Fourdrinier, M. & M. 335, n. A notice served on the 10th of April, the trial being on the 14th, was ruled to be sufficient to let in secondary evidence of letters written eighteen years back, and addressed to the defendant, a foreigner, at his residence abroad. Drabble v. Donner, Rv. & M. 47. A notice to produce certain deeds was served on an attorney in Essex on Saturday, Monday being the commission day: he fetched them from London ; on Monday evening notice was given to produce another deed ; the attorney said it was in London, but should be fetched if the party would pay the expense of the journey ; no offer to pay was made, and the trial came on on Thursday: the second notice was held insufficient. Doe d. Curtis v. Spitty, 3 B. & Ad. 182. Notice served on the attorney at his office on the evening before the trial, at 7 h. 30 m. P.M., was held insufficient to let in secondary evidence of a letter in his client's possession. Byrne v. Harvey, 2 M. & Rob. 89. And now, by Rules, 1883, O. Ixiv. r. 11, service of notices shall be made before 6 P.M., on every day but Saturday, when it must be before 2 P.M., otherwise it will be deemed service on the next following day, or on Monday, respectively. This rule includes notices to produce, at least when served on solicitors.
they apply to such notices as the above given at assizes or sittings at Nisi ‘Prius? In a town case, both party and attorney living there, service at 7 P.M., over-night, was held sufficient by Alderson, B. Leap v. Butt, Car. & M. 451; Meyrick v. Woods, Id. 452.
Notice to produce must in general be served before the commission day, when parties are living away from the assize town; Trist v. Johnson, 1 M. & Rob. 259; accord. R. v. Ellicombe, Id. 260 ; but there seems to be no inflexible rule as to time ; for where both attorney and client lived in the assize town, a notice served two days before trial, though after the commission day, has been held sufficient; Firkin v. Edwards, 9 C. & P. 478 ; and where a paper might be expected to be in the solicitor's hands, a notice on him at his office a day before the trial of a town cause may be good. Gibbons v. Powell, Id. 634. A three days' notice was held sufficient in the case of letters written by defendant to a person in New South Wales, where long litigation on the subject of them made it presumable that they had been remitted to him in this country. Sturge v. Buchanan, 10 Ad. & E. 598. But in one case a notice served on a defendant shortly before the assizes to produce a letter written to his firm at Bombay, where their only place of business was, was held insufficient. Ehrensperger v. Anderson, 3 Exch. 148. Service of a notice on Sunday is probably bad ; or, at all events, will only operate as service on the next day. Hughes v. Budd, 8 Dowl. 315, 317. The notice may be served even after the trial has commenced, if there be time to produce before the adjournment day. Sturm v. Jeffree, 2 Car. & K. 442.
All the cases prior to Dwyer v. Collins, 7 Exch. 639; 21 L. J., Ex. 225, ante, p. 9, ought now to be considered with reference to that case. It had formerly been sometimes thought that the object of a notice to produce a document was to inform the opposite party of the intention to use it, but this notion was entirely repudiated in that case after full consideration. And it was there held that the object of the notice to produce was merely to
give the party holding the document an opportunity to produce it, if he wished, and, in default of his doing so, to enable the party giving the notice to give secondary evidence of its contents. And on this ground the court held that the attorney of one of the parties present in court, and having the document with him, could be called upon, then and there, to produce it, and if he did not do so, that secondary evidence was admissible.
After a new trial is ordered it is not necessary to serve fresh notices to produce, those served on the former trial being available. Hope v. Beadon, 17 Q. B. 209; 21 L. J. Q. B. 25.
Notice to produce; effect of.} If the party refuse to produce the papers required, such a circumstance is not of itself evidence against him ; it merely entitles the other party to give secondary evidence. Cooper v. Gibbons, 3 Camp. 363 ; Lawson v. Sherwood, 1 Stark. 315. The refusal to produce them is, however, matter for observation to the jury. Semb. Ld. Lyndhurst, C.B., Bate v. Kinsey, 1 C. M. & R. 41. But see Doe d. Bridger v. Whitehead, 8 Ad. & E. 571. If the party giving the notice decline 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. 210; though it is otherwise if the papers are used or inspected by the party calling for them. Wilson v. Bowie, 1 C. & P. 10; and see wharam v. Routledge, 5 Esp. 235. Notice to produce papers will not entitle the party who gives it to cross-examine a witness as to their contents ; Graham v. Dyster, 2 Stark. 23 ; except after refusal to produce. If the party refuse, he cannot afterwards use the original either to contradict the secondary proof; Doe d. Thomson v. Hodgson, 12 Ad. & E. 135; or to show that there are attesting witnesses who ought to be called ; Jackson v. Allen, 3 Stark. 74; Edmonds v. Challis, 7 C. B. 413; or to refresh the memory of a witness ; Till v. Ainsworth, Bristol, 1874, Wilde, C. J., MS. ; or it seems for any purpose, Collins v. Garbon, 2 F. & F. 47, Byles, J. He is, in effect, bound by any legal and satisfactory evidence produced on the other side.
This principle has been extended by Rules, 1883, 0. xxxi., r. 15, which provides that, “ Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such docu. ment for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter unless he shall satisfy the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the court or judge shall deem sufficient for not complying with sucir notice; in which case the court or judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge shall think fit.” RR. 16-18, regulate the procedure under this rule. See hereon Quilter v. Heatley, 23 Ch. 1. 42, C. A., explaining Webster v. Whercall, 15 Ch. D. 120.
General nature of secondary evidence.] There are no degrees of secondary evidence ; or, in other words, if the production of the original document is dispensed with, its contents may be proved by the same evidence as any other fact is capable of being proved, and no other restriction is laid upon the party producing the evidence, as to the kind of evidence which he shall produce for this purpose, except that which arises from the risk of having it treated as unsatisfactory by the jury. This is what a jury would very probably do, and might possibly hy a judge be advised to do, if it was patent that more satisfactory evidence was available to the party than that which he had thought fit to produce. Doe d. Gilbert v. Ross, 7 M. & W. 402.
The only exception is where, as in the case of public documents hereafter to be noticed, a special kind of secondary evidence is substituted for the original. But even in this case, if good reason can be shown why neither the original evidence nor the substituted evidence can be produced, secondary evidence of the ordinary kind will be admissible. 1 Taylor, Evid., § 496 ; Thurston v. Slatford, 1 Salk. 284 ; MacDougal v. Young, Ry. & M. 392; Anon., 1 Vent. 257.
Proof of documents by copies.] It is a general custom, especially of persons in business, to keep copies of all the more important documents relating to the matters in which they are engaged. And there is no doubt that a wellauthenticated copy is by far the most satisfactory substitute for the original document.
But, of course, no copy whatever is admissible in evidence unless its accuracy be sworn to, or there be some presumption attached to it from which its accuracy may be inferred. Fisher v. Samuda, 1 Camp. 190. It is not necessary to call the very person who wrote the copy; any person who can testify on oath to the accuracy of it is sufficient. Everingham v. Roundell, 2 M. & Rob. 138.
A copy of a letter taken by a copying machine, though stillonly a copy, will be presumed to be a correct copy: Nodin v. Murray, 3 Camp. 228 ; Simpson v. Thoreton, 2 M. & Rob. 433. And such copy may be used as an admission. Nathan v. Jacob, 1 F. & F. 452. As to the use of an unstamped copy or part as secondary evidence of an original or part, see post, Stamps, -Copy and Duplicate. Where the plaintiff gave the defendant notice to produce certain letters written by the defendant to a third party, and a letter book containing copies thereof, and the defendant consented to admit the copies and produce the book : held, that the copies when produced must be presumed to be correct. Sturge v. Buchanan, 10 Ad. & E. 598. An entry by the plaintiff's deceased clerk in a letter book, purporting to be a copy of a letter from the plaintiff to the defendant, is presumed to be correct, proof being given that, according to the course of business, letters of business written by the plaintiff were copied by this clerk. Pritt v. Fairclough, 3 Camp. 305 ; Hagedorn v. Reid, Id. 377. See further Hearsay,-Entries in course of business, post, p. 57.
Among instances in which copies, though not verified by oath, are admissible, are the following :-A very old instrument, purporting to be a copy or abstract of a conveyance, and which for many years had gone along with the possession of the land, was admitted in evidence without proving it to be a true copy. B. N. P. 254. A copy of an old decree in chancery, establishing certain customs as against the lord of the manor, found among the muniments of his successor, was held to be admissible, and presumed to be correct, against the successor, on account of its place of deposit. Price v. Woodhouse, 3 Exch. 616.
An old ledger or cartulary of an abbey, containing amongst other things an account of the several endowments, and found in the possession of the person who had succeeded to part of the abbey estates, was admitted as secondary evidence of the endowment, search having been made for the original endowment. Bullen v. Michel, 2 Price, 399 ; 4 Dow, 297. So also in Williams v. Wilcox, 8 Ad. & E. 314, a copy of a grant in an old cartulary seems to have been held admissible as secondary evidence. It is not clear whether the admission of old monastic cartularies stands on the same footing as that of Episcopal Registers mentioned post (sub tit. Effect of Documentary
Proof of Documents by Copies.
15 Evidence-Bishop's Registers), or of old copies and abstracts already referred to. In either case the antiquity of the document, and the inevitable exposure to destruction and loss of very old originals,give them a title to reception, which recent unexamined copies cannot claim ; and the known usage of preserving verbatim enrolments and registers of the title-deeds of religious houses imparts to such collections, in some sort, an official character. Such copies, however, have never been admitted unless traced to the custody of some grantee of the corporate lands, and tendered as evidence in support of ancient possession, or preserved among the crown records as muniments of its title. If they come from custody unconnected with the lands, and even from a public national library, they are inadmissible. Swinnerton v. Stafford, Ms. of, 3 Taunt. 91 ; Potts v. Durant, 3 Anst. 789. See further Doe d. Padwick v. Wittcomb, 6 Exch. 601 ; 20 L. J., Ex. 297 ; 4 H. L. C. 425 ; and Proof of Documents—Custody of Ancient Writings, post, p. 97.
Where a will is lost the register or ledger book of the Ecclesiastical Court, or a copy of it, has been admitted as secondary evidence of a will of lands. B. N. P. 246. It is presumed that in this last case the will was of personal as well as real estate. See further, Proof of Probate, post. Where the assignment under a commission of bankrupt was lost before it was enrolled pursuant to the old Act, 6 Geo. 4, c. 16, s. 96, the counterpart of it was admitted as secondary evidence. Giles v. Smith, 1 C. M. & R. 462.
As to the admissibility of secondary evidence where the original document has been attested, vide post, Proof of documents-Proof of attested deed by secondary evidence.
In numerous instances copies of public books and registers are good evidence of documents which are in existence without imposing any obligation to produce, or even to account for the non-production of, the originals. This sort of evidence is no doubt secondary in its nature, but is allowed by common law or statute on the ground of public convenience ; vide, Proof of documents, post, p. 91.
ORAL EVIDENCE TO EXPLAIN OR ADD TO DOCUMENTS. The rule of law is clear that, where a contract is reduced into writing, it is presumed that the writing contains all the terms of it, and evidence will not be admitted of any previous or contemporaneous oral agreement which would have the effect of adding to or varying it in any way. This is a rule of evidence at common law. The Statute of Frauds also requires that certain contracts should be in writing, and therefore, by implication, evidence relating to such contracts which is not in writing is not excluded. In other cases it is the duty of certain officers to record, in a manner more or less solemn, what is said or done ; as in the case of records of courts of law, or depositions taken before magistrates on a criminal charge. How far such authentic memorials are conclusive is not very well settled, but they are certainly so in some cases. It is obvious that evidence might frequently be objected to as infringing more than one of these rules, and, where several objections might be good, it is not always easy to see which of the two in a particular case forms the ratio decidendi. The cases which we are about to consider are those where the decisions have been founded, or seem likely to have been founded, on the common law rule now under consideration.
Another remark which appears to be useful is this : that although the principles upon which the admissibility of evidence in these cases depends would appear to be general as regards all written instruments, they have not been applied in a precisely similar manner to all classes of cases. But perhaps this may be partly explained in the following manner. Inasmuch as the question is whether the written memorandum by its terms excludes oral evidence, the admissibility of the latter is in all cases, to a certain extent, and in some exclusively so, a question of interpretation of the written document. And inasmuch as, in analogy to the use of technical terms, language, by being constantly used for the same purpose, almost always acquires conventional meaning, such (corresponding) groups of cases as have been mentioned naturally arise. In fact, there are two questions of interpretation to be solved, whenever oral evidence is objected to on the ground that it contradicts a written instrument. First, the interpretation of the written contract as it stands ; secondly, the interpretation of the clause which it is proposed to insert by way of addition or explanation, for that is really what is done ; and this explains how it is that the same question as that which is raised upon the admissibility of evidence was formerly sometimes raised upon demurrer.
Under a system of law, like our own, in which there are scarcely any canons of interpretation, and in a country where contracts, especially mercantile contracts, are very loosely drawn, a decision as to the meaning of one contract is rarely an authority as to the meaning of another.
Bearing these remarks in mind, it will be found that the apparent conflict between many of the cases may be reconciled. A good example of the truth of this remark will be found in the cases of Field v. Lelean, and Spartali v, Benecke, post, pp. 23, 24.
The following decisions will illustrate what is said above. Thus where it was agreed in writing that A., for certain considerations, should have the produce of Boreham meadow, it was held that he could not prove that it was at the same time agreed orally that he should have both Milcroft and Boreham meadow. Meres v. Ansell, 3 Wils. 275 ; Angell v. Duke, 32 L. T., N. S. 320, E. T. 1875, Q. B.; and see Hope v. Atkins, i Price, 143. So oral evidence is inadmissible to show that à note, made payable on a day certain, was to be payable on a contingency only. Rawson v. Walker, 1 Stark. 361; Foster v. Jolly, 1 C. M. & R. 703. So where a promissory note is expressed to be made payable on demand, oral evidence of a contemporary agreement, that it should not be paid until a given event happened, is inadmissible. Moseley v. Hanford, 10 B. & C. 729, see also Besant v. Cross, 10 C. B. 895 ; 20 L. J., C. P. 173 ; Adams v. Wordley, 1 M. & W. 374. But defendant may show that the agreement, though not under seal, was in the nature of an escrow, and signed on the express condition that a third party approved. Pym v. Campbell, 6 E. & B. 370 ; 25 L. J., Q. B. 277; Davis v. Jones, 17 C. B. 625 ; 25 L. J., C. P. 91 ; Wallis v. Littell, 11 C. B., N. S. 364; 31 L. J., C. P. 100; Rogers v. Hadley, 32 L. J., Ex. 241; Lindley v. Lacey, 17 C. B., N. S. 578 ; 34 L. J., C. P. 7, cited post, p. 18. Where the conditions of sale described the number and kind of timber trees to be sold by lot, but not the weight of the timber, it was held, in an action for the purchase-money, that oral evidence could not be given by the defendant that the auctioneer had, at the sale, warranted the timber of a certain weight. Powell v. Edmunds, 12 East, 6; Shelton v. Livius, 2 C. & J. 411. So oral evidence is inadmissible to alter the legal effect and construction of a written agreement. Thus, where an agreement for the sale of goods was silent as to the time of delivery, in which case the law implies a contract to deliver in a reasonable time, it was held that oral evidence of an agreement to take them away immediately was inadmissible. Greaves v. Ashlin, 3 Camp. 426 ; Halliley v. Nicholson, 1 Price, 404. So where a contract of sale, being silent as to time of payment, implies payment on delivery, proof of intended credit is inadmissible. Ford v.Yates, 2 M. & Gr. 549. Where the defendant, the day after a sale by him of flour to the plaintiff, sent a memorandum of the sale, "Sold White's X. S.;" and delivered “White's X. S.” accordingly: it was held, that the plantiff could not show that the contract was for "White's X. X. S.” Hamar