Notice to pro defendants, who lived in Herefordshire, has been held sufficient. (z) And where a party has been served with a notice to produce sufficiently early to enable him to produce the document, it makes no difference that at the time of the service the case has been part heard. (a) But where in a town cause the service was at seven o'clock the evening before the trial, upon the attorney, who resided in London, between two and three miles from the tradesman, whose books were required to be produced, the Court of Exchequer held the notice insufficient, as the books could not be presumed to be in the possession of the attorney. (b) All these cases depend on their particular circumstances, and the question in each is, whether the notice was given in a reasonable time to enable the party to be prepared to produce the document at the time of the trial. (c) The notice may be served either on the party himself or his attorney. There is no difference in this respect between criminal and civil cases. (d) Where the defendant, an attorney, was indicted for perjury on the trial of an ejectment, in which he had acted as the attorney of the lessor of the plaintiff, and had produced a document and taken it back again, it was held that a notice to produce that document served on the defendant was sufficient, although he was not the attorney on the record in the ejectment. (e) And a notice served on a prisoner in gaol is sufficient. (f) So a notice served on a prisoner for one session of the Central Criminal Court has been held to be sufficient for a subsequent session, to which the trial had been postponed. (g) The reason why notice to produce is required, is not to give the duce when un opponent notice that such a document will be used, so that he may be enabled to prepare evidence to explain or confirm it; (h) but it is merely to enable him to have the document in Court, to produce necessary. (*) Reg. v. Hamp, 6 Cox, C. C. 167. Lord Campbell, C. J. The sheriff had seized the cheque in question in levying for a forfeited recognizance of one of the defendants, but this was held to make no difference. (a) Sturm . Jeffree, 2 C. & K. 442. Pollock, C. B. This cause began on Thursday, and at four o'clock was adjourned; before nine that evening the notice was served all the parties lived in London. On Friday the hearing was resumed, and the document called for; and it was held that the notice was sufficient. (b) Atkins v. Meredith, 4 Dowl. P. R. 658. In Rex v. Haworth, 4 C. & P. 254, Parke, J., held a notice to produce a forged deed served on the prisoner after the commencement of the assizes too late, saying it should have been served a reasonable time before the assizes; but it does not appear whether the prisoner resided in the assize town or not. Royston's case, 1 Lew. 267. See (c) Per Alderson, B., Lawrence v. Clark, 14 M. & W. 250, where a notice dated the 12th of February was put into the letter-box of the plaintiff's attorney in London at half-past eight the evening before the trial, which was on the 19th, but it was not shown whether the document was in the possession of the attorney or the plaintiff, who lived in London; and the notice was held insufficient. (d) The Attorney-General v. Le Merchant, 2 T. R. 201, in note (a) to Rex v. Watson. But it has been observed that the preceding case could not have been a case of felony, and that in felony a prisoner cannot appear by attorney (per Pollock, C. B., Reg. v. Downham, 1 F. & F. 386). As, however, an attorney may in fact be employed by a prisoner, it is clear that a notice served on an attorney so employed is good; but it is, of course, necessary to prove that the attorney is so employed. Reg. v. Downham, supra. Reg. v. Boucher, 1 F. & F. 486. (e) Reg. v. Phillpotts, 5 Cox, C. C. 329, Erle, J. It was strongly urged, but in vain, that the document would be in the possession of the lessor of the plaintiff. (f) Reg. v. Robinson, 5 Cox, C. C. 183. Pollock, C. B., and Erle, J. (g) Reg. v. Robinson, supra. (h) This was stated in 1 Stark. Ev. 404. it, if he likes, and, if he does not, to enable the other party to give secondary evidence of it. It is merely to exclude the argument that the party desirous of proving the document has not taken all reasonable means to procure the original. (i) If, therefore, the document be in Court in the possession of the opponent, it may be called for, and if it be not produced, secondary evidence of it may be given. (j) So notice to produce is unnecessary, when, from the nature of the proceedings, the party in possession of the instrument has notice that he is charged with the possession of it, as in actions of trover, for bonds or bills of exchange. (k) So in a prosecution for stealing a promissory note or other writing described in the indictment, parol evidence of the contents will be admissible, without any formal notice to the prisoner to produce the original. On an indictment for stealing a bill of exchange, all the judges held, that such evidence had been properly admitted, though it was proved 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, and did not appear; (7) and if it had been proved to have been in the custody of the prisoner, parol evidence might have been given of its contents without notice to produce. (m) So on an indictment containing a count for stealing a post letter, the direction of which is stated in the count, the direction may be proved without any notice to produce; for the count gives sufficient notice. (n) So on an indictment for forging a note, which the prisoner afterwards got possession of and swallowed, Buller, J., permitted parol evidence to be given of the contents of the note, though no notice to produce it had been given. (0) But there it might be said, that such a notice would be nugatory, as the thing itself was destroyed. (p) On an indictment for forging a deed of release, it appearing that the prisoner had stated that after he had obtained possession of the deed he had burnt it, it was held that secondary evidence of its contents was admissible. (q) In Layer's case, (r) on an indictment for high treason, where it was proved, that the prisoner had shown a person a 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. So on the trial of an indictment for administering an unlawful oath, it was held that a (i) Per Parke, B., Dwyer v. Collins, 7 Exch. R. 639. (j) Dwyer v. Collins, supra, overruling Cook v. Hearne, 1 M. & Rob. 201. See Doe v. Grey, Stark. 283; Roe v. Harvey, 4 Burr. 2484. And the attorney may be called to prove that the document is in court, ibid. (k) How v. Hall, 14 East, 274. Scott v. Jones, 4 Taunt. 865. Tidd's Pract. 853. The practice used to be otherwise, per Gibbs, J., 4 Taunt. 868. (7) Aickles's case, 1 Leach, 294. (m) 1 Leach, 297, per Heath, J. (n) Reg. v. Clube, 3 Jur. (N. S.) 698, Pollock, C. B., who said, 'It is very common for a person to have on his garments labels stating his name and the date when the garments were furnished by the tailor; suppose a coat with such a label were stolen, surely it would not be requisite to give a notice to produce the label.' Reg. 2. Fenton, post, p. 344, note (u), was cited in this case. See R. v. Farr, 4 F. & F. 336. This case cannot be supported. (0) Spragge's case, cited by Lord Ellenborough, C. J., in How v. Hall, 14 East, 276. (p) Per Lord Ellenborough, C. J.,ibid. (q) Rex v. Haworth, 4 C. & P. 254, Parke, J. See Foster v. Pointer, 9 C. & P. 718. Doe d. Phillips v. Morris, 3 A. & E. 46. (r) 6 St. Tr. 263, De La Motte's case. Coram Buller, and Heath, Js., 1 East, P. C. c. 2, s. 58, p. 124. witness might prove that the prisoner read an oath from a paper, without giving him notice to produce it. (s) But an indictment for setting fire to a house, with intent to defraud an insurance office, does not convey such a notice that the policy of insurance will be required upon the trial, as to dispense with the necessity of a notice to produce it. (t) So where on an indictment for stealing iron out of a canal boat, it appeared that the boat had been weighed at a lock, and a ticket of the weight given to the prisoner, and it was proposed to give secondary evidence of its contents, although no notice to produce it had been given; Parke, J., held that this was not allowable, because the rule which requires notice to be given extends to criminal as well as civil cases, except where the nature of the indictment itself expressly shows the prisoner that the deed or paper in question will be wanted at the trial. (u) Upon an indictment for perjury in falsely swearing on a former trial that there was no draft of a statutory declaration, the materiality of the existence of such draft turned upon its contents, and the fact of certain alterations having been made in it. Parol evidence was admitted, not only of the fact of the existence of the draft, but of its contents and of alterations made in it, which were not in the declaration itself, without any notice to produce the draft having been given to the prisoner. Held, that such parol evidence of the draft and its contents was inadmissible, and that the nature of the indictment was not such as of itself to operate as a notice to produce, and the conviction upon such indictment was quashed. (v) If a witness be sworn and has a document in his possession, he may be compelled to produce it, although he has not been served with a subpoena duces tecum; (y) and if a person be sworn, and decline to produce a document, which he has in Court, on any (s) Rex v. Moors, 6 East, 419, note to Rex v. Nield. See also Rex v. Hunt, 3 B. & A. 566, ante, p. 329. And see the same case as to proving inscriptions on banners, &c., without notice to produce, ibid. So the principle of the rule requiring notice to produce does not extend to a 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 a notice to produce had not been given, parol evidence was admitted, because the paper belonged to the witness, and had been secreted in fraud of the subpoena. Leeds v. Cook, 4 Esp. N. P. C. 256. Tidd, Pr. 853. (t) Reg. v. Kitson, Dears. C. C. 187. Rex v. Ellicombe, 5 C. & P. 522. 1 M. & Rob. 260, Littledale, J. (u) Rex v. Humphries, Stafford Spr. Ass. 1829, MS. C. S. G. See Reg. v. Fenton, cited 3 C. B. 760. On an indictment for larceny of a coat contained in a paper parcel, Parke, B., held that evidence of the direction of the parcel could not be given without notice to produce it. Sed quare, and see the cases ante, p. 343. On an indictment against a son for stealing and a father for receiving boots and shoes, it appeared that a hamper which was alleged to have contained some of the articles had been sent by the son to the father, and it was proposed to prove how it was directed; but Maule, J., doubted whether the evidence was admissible, and thereupon it was withdrawn. Reg. v. Hinley, 2 Cox, C. C. 12, S. C., but not S. P., 2 M. & Rob. 524, Maule, J., said, 'The ground upon which the evidence may be admissible is the presumption that the direction does not exist; whereas there may not be the same reason for presuming that it is in existence. Therefore, unless you can show that it exists, it would appear that the evidence should be admitted.' 'Suppose an inscription on a bale marked "XX," would it be necessary to produce the bale?' According to the report in M. & Rob. the hamper had passed backwards and forwards between the son and father for several months. No authority was referred to in this case. (v) R. v. Elworthy, 37 L. J. M. C. 3. (y) Snelgrove v. Stevens, C. & M. 568, Cresswell, J. a lawful ground, secondary evidence may be given of its contents, Where a document is produced in consequence of a notice to produce, and it is alleged that the document is not the document in question, it is for the Court to decide whether it be so or not. (d) And where a document is called for after notice to produce, and some evidence is given to show that it is in the possession of one party, the other side is entitled at once to give evidence to prove that it is not in the possession or under the control of such party, and it is for the judge to decide this question. (e) The regular time of calling for the production of papers and books is not until the party who requires them has entered into his case; till that period arrives, the other party may refuse to produce them, and there can be no cross-examination as to their contents, although the notice to produce them is admitted. (ƒ) If upon a notice to the adverse party to produce primary evidence in his possession, he refuses to produce the instrument required, the other party who has done all in his power to supply the best evidence will be allowed to go into secondary evidence. (g) If the party, giving due notice, declines to use the papers when produced, this, though matter of observation, will not make them evidence for the adverse party, (h) though it is otherwise when the papers are inspected. (i) Secondary evidence of papers, to produce which notice has been given, cannot be entered into till the party calling for them has opened his case, before which time there can be no cross-examination as to their contents. (j) Where a party, after notice, refuses to produce an agreement, it is to be presumed as against him that it is properly stamped. (k) (z) Doe d. Loscombe v. Clifford, 2 C. & K. 448. Alderson, B. See Doe Gilbert v. Ross, 7 M. & W. 102. (a) 2 Phil. Ev. 220. Doe d. Higgs v. Cockell, 6 C. & P. 525. Jackson v. Allen, 3 Stark. R. 74. Lewis v. Hartley, 7 C. & P. 405. (b) Doe d. Thompson v. Hodgson, 12 A. & E. 135; 2 M. & Rob. 282. (d) Harvey v. Mitchell, 2 M. & Rob. 366. In Froude v. Hobbs, 1 F. & F. 612, Byles, J., with the consent of the parties, left the question to the jury whether a book produced was the book in which the terms of a contract had been entered. But this was only to assist him in deciding the question. (e) Harvey v. Mitchell, 2 M. & Rob. 366, Parke, B. If a defendant interposes such evidence, it does not give any right to the plaintiff to reply, as it is given The document must be produced when called for. The court must decide document is the right one, and in whose custody it is. whether the Time to call for produc tion. Consequences of giving noduce. tice to pro 3. What is good second ary evidence. Of a deed: strument must be proved to have been duly executed. No degrees of secondary evidence. 3. It remains to be considered what is good secondary evidence. (It must be observed that, previous to giving any such evidence of the contents of a deed, the original deed ought to be proved to have been duly executed. (m) Where the sessions found that B. was the attesting witness to a lost indenture of apprenticeship, it was held that evidence of his handwriting was unnecessary; for the proof of handwriting could only be required to establish the identity between the deceased and the attesting witness. (n) So where an original note of hand is lost, a copy cannot be read in evidence unless the note is first proved to be genuine. (0) In secondary evidence there are no degrees, that is, no precedence or superiority in point of admissibility. An attested copy of a written instrument is not of a superior order of proof to an examined copy, nor is an examined copy superior to parol evidence of the contents. (p) As soon, therefore, as a party has accounted for the absence of the original document, he is at liberty to give any kind of secondary evidence. (2) A copy of a document taken by a machine which was worked by the witness who produces it, is good secondary evidence, though it was not compared with the original. () So a document sent by the plaintiff to the defendant with a letter stating it to be a copy of a deed, is evidence against the plaintiff, though notice to produce the deed has been given, and the deed is not called for. (s) But a paper delivered as a copy of a deed from the office of an attorney, but which he states he is unable of his own knowledge to vouch to be a copy, is insufficient. (t) The evidence of any one who recollects the contents of a letter is good secondary evidence of them, (u) although it is in the party's power to produce the clerk who wrote the letter. (v) Of an affidavit Where it was proposed to prove that defendant was owner of a ship, by means of his affidavit, sworn for the purpose of obtaining Of a letter. of ownership of ship. (7) Fisher v. Samuda, 1 Campb. 193. (n) Reg. v. St. Giles, 1 E. & B. 642, (0) By Lord Hardwicke, C. J., in (p) 2 Phil. Ev. 236. Bull. N. P. 254, Eyre v. Pals (q) Per Parke, B., Doe d. Gilbert v. Ross, 7 M. & W. 102. In that case on the trial of an ejectment by the same lessors of the plaintiff against a different defendant, a deed was given in evidence on the part of the defendant, and it was held that the shorthand writer's notes of the contents of the deed were admissible in evidence, although there was an attested copy, which being unstamped was rejected. In Brown v. Woodman, 6 C. & P. 206, Parke, J., held that parol evi dence of the contents of a letter was admissible, although a copy of the letter existed. See Doe d. Morse v. Williams, C. & M. 615. In Hall v. Ball, 3 M. & Gr. 242, in trover for an expired lease by the lessor, the lease or counterpart executed by the lessor not being produced by the defendant upon notice, it was held that the lessor might give parol evidence of the contents without producing the counterpart executed by the lessee. And see Newton v. Chaplin, 10 C. B. 356. (r) Simpson v. Thornton, 2 M. & Rob. 433, Maule, J. (s) Ansell v. Baker, 3 C. & K. 145. This decision, perhaps, rather rests on the ground that the plaintiff had admitted the existence of such a deed, and that such admission was evidence against him independently of the notice to produce; still it was an admission of the correctness of the copy. (t) Volant v. Soyer, 13 C. B. 231. (v) Liebman v. Pooley, 1 Stark. N. P. C. 167, by Lord Ellenborough. But a copy of the original copy of a letter is not good secondary evidence, ibid. (v) Rex v. Chadwick, 6 C. & P. 181, Tindal, C. J. |