Page images
PDF
EPUB

1822.

KINE

BEAUMONT.

Mr. Serjeant Lens, on a subsequent day, shewed cause, and submitted, that a letter, containing notice of the dishonour of a bill, sent to the defendant by the post, or left at his house, may be proved by a duplicate original, without previous proof of a notice to the defendant to produce the original at the trial. Although in Shaw v. Markham, Lord Kenyon held, that no evidence of the contents of the letter containing an acconut of the dishonour could be received, without a notice to produce it; and Lord Ellenborough acted on the same principle in Langdon v. Hulls; yet letters of this description fall within the class of notices to quit, or those given to magistrates, which may be proved by duplicate originals; for in Ackland v. Pearce (a), Mr. Justice Le Blanc ruled, that secondary evidence of the contents of a written notice of the dishonour of a bill might be given, without a botice to produce it, and compared it to a notice to quit : and that principle was expressly adopted by Lord Ellenborough in Roberts v. Bradshaw, where his Lordship was of opinion that a letter, acquainting a party with the dishonour of a bill, was in the nature of a notice ; and that it was unnecessary to prove notice to produce such a letter. That was in direct opposition to the former opinion expressed by him in Langdon v. Hulls.

[Mr. Justice Park -The cases of Ackland v. Pearce, and Roberts v. Bradshaw, are not to be considered as mere nisi prius decisions : for in the one a motion was made to set aside the verdict; but the ruling of the Judge at nisi prius was not questioned by the Court ; and in the other, they refused a rule for a new trial.]

[ocr errors]

Upon the same principle, where a notice is given to a magistrate previous to the commencement of an action

(c) 2 Camp. 601.

1822.

KINE

BRAUMONT.

against him, or where a demand is made of a copy of a warrant, preparatory to an action against a constable, if another paper is made out at the same time, precisely to the same effect as that delivered, both may be considered originals; and the paper so preserved may be received in evidence, without a notice to produce that delivered. Indeed it would be highly inconvenient if it were not so: and that principle was established in Jory v. Orchard. So in Anderson v. May (a), a copy of an attorney's bill, made out at the same time as the original, which had been delivered to the defendant, was admitted in evidence, without proof of notice to produce the original. The case of Grove v. Ware does not press on the present, as Lord Ellenborough there observed that the notice to pay did not operate merely as a notice, but as a statement of accounts between the plaintiffs and the principal.

Mr. Serjeant Bosanquet, in support of the rule, premised that it must be admitted, that the cases of Shaw v. Markham and Langdon v. Hulls were expressly in favour of the application, and that they had not been adverted to in the later decisions. At all events, the notice of the dishonour of a bill given by letter, can be proved by nothing less than a duplicate original, without proof of notice to produce the original itself. In the case of a notice to quit, or a notice of action to a magistrate, it is necessary to produce a daplicate original, and not give parol evidence of its contents; and such duplicate must be made at the same time as the original, and by the same person; and even then, it is not the best evidence of the contents of the notice delivered, for such contents may be proved to a certainty, by the production of the notice itself; and the supposed duplicate original may be inaccurate. In Jorý v. Orchard, Lord Eldon expressly

(a) 2 Bos. & Pul. 237.

1822.

KINE

BEAUMONT,

founded his opinion on the paper's being a daplicate ori? ginal, and not a copy of the original notice. So in Gotlieb v. Dancers, Lord Chief Justice Eyre said (a), “ where two copies are made of any instrument or notice at the same time, both are to be deemed origipals ; and in such case, the one remaining in the defendant's bands, is itself an original, and may be given in evidence with, out notice to produce the other." And in Surtees v. Hubbard (6), the paper produced was an exact transcript of that served, was written at the same time, and both were then signed by the plaintiffs ; both, therefore, were original papers. In Anderson v. May and Philipson v, Chase (c), the copy of the bills were made out at the same time with those delivered ; and in the latter case, lord Ellenborough again adverted to this distinction, and said, “If there are two contemporary writings, the counterparts of each other, one of which is delivered to the opposite party, and the other preserved, as they may both be considered as originals, and have equal claims to au: thenticity, the one which is preserved may be received in evidence, without notice to produce the one which was delivered.” And his Lordship there approved of the practice as to notices to quit, on the ground, that if a duplicate of such notice was not of itself sufficient, no more ought a duplicate of a notice to produce. Here, however, the copy of the letter offered in evidence was not shewn to have been written by the same person wbo sent the original, or at the same time; and it was there, fore necessary to have proved a demand to produce the latter before the copy was admissible in evidence. In Ackland v. Pearce it does not appear whether the notice left at the defendant's house was contained in a letter or not, or whether it was not one of two duplicate originals; and it must be inferred that it was, as Mr. Justice Le

(a) 1 Esp. Rep. 456.

(6) 4 Esp. 203.

-(c) 2 Camp. 110.

1822.

KINE

BEAUMONT .

Blanc compared it to a notice to quit, which cannot be given in evidence, unless a duplicate original has been made at the time, or a notice given to produce such original. In Roberts v. Bradshaw, the plaintiff gave his clerk two papers to compare with each other; and after he had done so, the clerk on the following day carried a letter from the plaintiff to the defendant, and produced one of the papers so given him, and which purported to be a notice of the dishonour of the bill in question. The whole of that evidence, as taken together, was deemed sufficient proof of the notice of the dishonour ; and the opinion of Lord Ellenborough was founded on the facts of the case, and is not inconsistent with what he said in Philipson v. Chase, viz. that if a duplicate of a bill delivered was offered, he was ready to receive it; and it must be observed, that in Roberts v. Bradshaw, the plaintiff eventually proved the service of a notice on the defendant to produce the letter, giving him notice of the dishonour of the bill. The general principle appears to be, that tiotwithstanding a notice or paper be delivered to a party, a notice to produce it must be given and proved, before parol evidence can be received of its contents; and the distinction to be drawn from all the cases appears to be between copies of an original notice, and duplicate originals. If such copies may be produced, parol evidence is equally admissible; and if that be so, the consequence will be, that in all actions of ejectment, notices to shew at what time a tenancy commenced, or is to expire, may be proved by oral testimony, although a notice to quit can only be proved, either where there has been a duplicate original, or a notice to produce the original itself. Here the copy of the letter was not proved to be a duplicate original, or written by the same hand; and it would be not only contrary to principle, but decided cases, to allow it to be admissible in evidence, without proof of the plaintiff's having first given notice to produce the original.

1822.

KINE

BEAUMONT:

· Lord Chief Justice Dallas.--It appeared to me, when this objection was first taken at the trial, that it was well founded, and that it was incumbent on the plaintiff to prove a notice to the defendant to produce the letter containing the notice of the dishonour of the bill, before the copy of such letter was admissible in evidence. And it appears that Lord Kenyon and Lord Ellenborough were originally of the same opinion. But having been referred by counsel at the trial to some recent cases, in which it had been determined that secondary evidence might be given of a written notice of such dishonour, without notice to produce such writing, a verdict was taken for the plaintiff, and I reserved the question for the opinion of the Court. In the late case of Roberts v. Bradshaw, Lord Ellenborough seems to have taken a distinction between a duplicate and a copy, as his Lordship said (a), that “a letter, acquainting a party with the dishonour of a bill, was in the nature of a notice; and that it was unnecessary to prove notice to produce such a letter.” Speaking for myself, I do not see that any inconvenience would arise by giving such notice. The rule is, that a notice to produce a notice is, in general, unnecessary; still, however, the only question in this case is, whether the recent cases have established, that a copy of a letter, containing notice of the dishonour of a bill, is admissible in evidence, and sufficient proof of such dishonour, without notice to produce the original. It does not appear to be necessary to draw a distinction between a duplicate original, and a copy of an original notice made at the same time; as the latter might be entered in a book kept for that purpose. Still, however, it is necessary that there should be an uniformity of practice in this respect; and although I now entertain but very little doubt on the subject, I should still wish to confer with

(a) 1 Stark, Ni, Pri. Cas. 29.

« PreviousContinue »