66

books, papers, &c., relating to the subject-matter of this cause;" or all accounts relating to the matters "2 have been held sufficient notice to produce any document reasonably included in the description.

in question in this cause;

The notice ought to be within a reasonable time before the trial comes on; and it will be for the judge to determine, on the circumstances of the case, whether the notice has been served within a reasonable time previously to the trial.3

In town causes, and also in country causes, where the attorney lives in the assize town, if the documents be such as from the nature of the case may reasonably be presumed to be in his hands, notice may be served not later than early in the evening of the day preceding the trial; but if they are not such as are immediately connected with the cause, or are such as would presumably be in the hands of a client or other person, the notice must be proportionably earlier, according to an estimate of the time necessary to obtain them.5 In such a case, and especially in country causes, where the adverse attorney does not live in the assize town, the notice ought to be served on him before the commission day, and within a reasonable time before he is required to leave home for the assize town.6 But if he has the document with him at the assize town, service there will be sufficient.7

Where the adverse holder is abroad, or beyond the jurisdiction of the court, and leaves his attorney to conduct his cause, it will be presumed that he has also left with him all papers naturally connected with his case; and the courts, under such circumstances, are

1 Morris v. Hanser, 2 M. & Rob. 392.

· Rogers v. Custance, 2 M. & Rob. 179.

Parke, B.: Lloyd v. Mostyn, 10 M. & W. 483.

4 Atkyns v. Meredith, 4 Dowl. 658.

5 Byrne v. Harvey, 2 M. & Rob. 89. 6 George v. Thompson, 4 Dowl. 656. 1 R. v. Hawkins, C. & K. 823.

inclined to maintain the validity of a notice to the attorney. But the circumstances must be such as to support a supposition that the papers were producible, and the notice sufficient. Thus, a three days' notice to produce letters written by a defendant to his partners in New South Wales, was held sufficient, on its appearing that there had been litigation between the same parties some years previously, for the purposes of which it was reasonable to suppose that the letters must have been remitted to England.2

If a party, on being served with notice to produce, state that the document does not exist, secondary evidence will be admissible, and the adverse party cannot object to the lateness of the notice.3

The Common Law Procedure Act, 1852, s. 119, enacts that :

"An affidavit of the attorney in the cause, or his clerk, of the service of any notice to produce, in respect of which notice to admit shall have been given, and of the time when it was served, with a copy of such notice to produce annexed to such affidavit, shall be sufficient evidence of the service of the original of such notice, and of the time when it was served."

Notice to produce is unnecessary—

1st. Where a party holds a duplicate original, or counterpart of his adversary's document.4

But such duplicate or counterpart must not be a mere copy, but in all respects of equal and co-extensive character and validity with the adversary's document. In such a case it is receivable as being itself primary evidence.

2nd. When the nature of the case and proceed

1 Bryan v. Wagstaff, Ry. & M. 47.
2 Sturge v. Buchanan, 10 A. & E. 598.
3 Foster v. Pointer, 9 C. & P. 720.
Colling v. Treweek, 6 B. & C. 398.

ings inform the adverse party sufficiently, that he will be required to produce the document.

2

Thus in trover for a bond or other instrument,' or on an indictment for stealing a writing, the plaintiff or prosecutor may give secondary evidence without proving notice to produce. But this rule is subject to several special limitations. Thus, in forgery, the prosecutor must give notice to the prisoner to produce the original; 3 in arson, for setting fire to a dwelling-house, with intent to defraud an insurance company, notice must be given to produce the policy. So, in civil cases, in an action on a cheque or a bill, if the defendant does not traverse the making or acceptance, but only avoids, the plaintiff need not produce without notice.5

3rd. A notice to produce a notice is not required,"
e. g.
a notice to quit, a notice of action,
notice of dishonour of a bill, notice to
produce a signed attorney's bill in an action
on it.7

The principle of this rule is that the service of the original notice is in itself a sufficient notice to produce it at the trial if required. It does not apply where

the notice has been given to one who is not a party to the action, nor where it contains the terms of a contract; as where a carrier, relying upon a notice served on the plaintiff to limit his liability, was held bound to give notice to produce it.8

1 Scott v. Jones, 4 Taunt. 865.
2 R. v. Aickles, 1 Lea. C. C. 294.
3 R. v. Halworth, 4 C. & P. 254.
+ R. v. Ellicombe, 5 C. & P. 522.
5 Goodered v. Armorer, 3 Q. B. 956.
Philipson v. Chase, 2 Camp. 111.
Colling v. Treweek, 6 B. & C. 394.
Jones v. Tarleton, 9 M. & W. 675.

4th. If a party or his attorney be shown to have an original with him in court, and refuses to produce it, secondary evidence will be received, notwithstanding the want of a notice to produce.1

But it is doubtful whether he can be required in court to search among his papers to see if he has it with him.2 As to the similar case of a non-subpoenaed witness refusing to produce a document in court, see below.3

5th. Notice will not be required when the adverse party has admitted the loss of the original; or where it is in the nature of an irremovable fixture, such as a mural inscription.*

But this rule does not apply to a removable and portable notice or writing.5

6th. Merchant seamen are permitted to prove orally an agreement with the master of a ship, without producing the original, or giving notice to produce it.6

On notices to admit see supra, Chapter XVI., p. 168.

1 Dwyer v. Collins, 21 L. J. 225, Ex.

2 Tayl. 390.

3 Phelps v. Drew, 23 L. J. 140, Q. B.

4 Bartholomew v. Stephens, 8 C. & P. 728.

5 Jones v. Tarleton, 9 M. & W. 675.

6 17 & 18 Vict. cap. 104, s. 165; Bowman v. Manzelman,

2 Cainp. 315.

344

CHAPTER VI.

ON INTERROGATORIES.

As the inspection of documents in the hands of a hostile party has been considered in the preceding chapter, it is proposed in the present chapter to treat of the analogous and connected subject of evidence taken by means of interrogatories, under the jurisdiction of the superior courts of common law. This branch of evidence has been imported recently from the equity courts; and by means of it a party is enabled to acquire evidence, which may be necessary to enable him to prove his case in court, and which he can obtain only by extracting it from his adversary. As the statutory right of inspection enables a party to examine documents which are in the possession or under the control of his adversary, so the corresponding right of delivering written interrogatories to him enables the interrogating party to elicit much important evidence which would otherwise be concealed, at least until trial, in the breast of his adversary.

This privilege is given by the 51st section of the Common Law Procedure Act, 1854, which enacts that "in all causes in any of the superior courts, by order of the court or a judge, the plaintiff may (with the declaration), and the defendant may (with the plea), or either of them, by leave of the court or a judge, may at any other time deliver to the opposite party, or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter), interrogatories in