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 subpoena 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 sworn 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 had 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, O. xxxii., r. 8, specifies the form of a notice to produce, and O. lxvi., r. 1,

Notice to Produce.

11

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 a particular letter not otherwise specified. So in Rogers v. Custance, Id. 179, Ld. Denman, C. J., held a notice to produce "all accounts, papers and writings in any way relating to the matters in question in this case sufficiently to particularise a written account of the work done by the plaintiff, delivered to the defendant, and admitted by him to be correct; affirmed 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'Cl. & 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.

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, though 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, Ry. & 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. lxiv. 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. Sed quære, if 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, O. 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 such 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. D. 42, C. A., explaining Webster v. Whewall, 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 by 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 still only 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