#### Joseph F. Faribault v. Horace Ely et al.

From Washington.

The contents of a letter directed to an endorser of a bill of exchange.,' at his residence, giving him notice of its dishonor, may be proved by parol, without notice to produce the original.

Per Toomür, Judge. — Notice to produce papers in the possession of the opposite party is unnecessary in three cases—

1st. Where a duplicate original is offered.

2d. Where the instrument to be proved is a notice.

3d. Where the action is of a hind to give the opposite party notice, that he is charged with the custody of the paper, as in trover for a note.

Assumpsit against the Defendants, as the drawer and endorsers of a bill of exchange, drawn by the Defendant Ely, upon his correspondent in New-York, which was regularly protested for non-acceptance and non-payment. To prove notice to the Defendants, the Plaintiff introduced the deposition of the notary, who swore that he addressed to each of the Defendants at the proper Post Office, a letter giving them notice of the dishonor of the bill. The Defendants objected to this evidence, and contended that notice should have been given them, to produce those letters upon the trials before the Plaintiff *68could give secondary evidence of their contents. The objection was overruled by his honor Judge Bonn Eli,,, J . and.a verdict returned against the Defendants, who ap-pea]e¿[ £0 tins Court;

June, 1829.

The case was submitted without argument, by Hogg,, for the Appellants, and by Iredell, for 'the Plaintiff, the latter citing Lindenberger v. Beall, (6 Wheat. 104) and Johnson v. Haight, (IS John. Rep. 470.)

Toomer, Judge.

It is a general rule, that secondary ■evidence shall not be admitted, to prove the contents of any written document in the possession of the adverse party, unless notice has been given to produce it on the trial. From the operation of this rule, are’excepted notices, which have'been served during the pendency of the suit j for the obvious reason, that if they were not excepted, the rule would extend to every successive notice üd infinitum, in principle, it would seem, that the exception was limired to notices given pending the suit, to produce-some do< ument, for the purpose of evidence on the trial of the cause, and that the general rule would embrace other notices. (2 Btarlde on Ev. 974.) But modern decisions-have -extended the exception ; and it now appears to embrace three descriptions of cases.

A notice, given during the progress of the cause, to produce a-paper for the purpose of evidence, is formal in its character, and comes within the reason of the exception. But a notice, which has been given before the commencement of the suit — which mates an essential part of the cause of action — -which is a link in the chain of •Plaintiff’s right to recover, is of a different characterf and would seem to require the best evidence the nature of the case would admit, and all the cautions which the rules of evidence prescribe.

The application of this principle to a notice given by letter to the endorser of a promissory note, informing *69him of its dishonor* by the maker, was sanctioned by Kenyon, at Nisi Prius, in the case of Shaw v, Markham, (Peake’s Rep. 165,) where he said, “no evidence, of the contents of the letter can be received, without a notice to produce it.”' The same rule w as also applied by Lord Ellenborough, in Langdon v. Hulls, (5 Esp. Rep. 156,) to the drawer of a bill of exchange, who had been notified by letter of the dishonor of the bill. B.ut later decisions have included within the exception to the general rule, no* tices given., by letter to drawers avid endorsers,, of the dishonor of bills and notes. These recent adjudications are referred to in 2 Starkie on Ev. 260, and in Chiity on Bills, 406 ; in each of which,, the subject is spoken of as doubtful, and the practitioner is advised, from abundant caution, to give notice to produce the letter. In Ackland v. Pearce, (2 Camp. 601,) Le.Blanc., Judge, admitted secondary evidence against the drawer of a bill ; and in Roberts v. Bradshaw, (1 Stark. Rep. 28,) Lord Ellenborough was of opinion, that a letter acquainting a party with the dishonor of a bill, was in the nature of a notice, and that it was unnecessary to prove a notice to produce such a letter; thereby overruling his decision in Langdon v. Hulls; but the case was decided upon another ground. And in Lindenberger el al. v. Beall, (6 Wheat 104,) the Judges of the Supreme Court of the United States unanimously decided, that against the endorser of a promissory note, “ it was unnecessary to give notice to the Defendant to produce the letter” notifying him. of the dishonor of the note, and sanctioned the admission of secondary evidence to prove the contents thereof, without giving notice to produce the letter on the trial. These adjudications expressly bring within the exception to the general rule, notices to drawers and endorsers of bills and notes ; they directly decide the point now before this Court. They emanate from too much wisdom and judicial experience, to be rashly disregarded. They are entitled to high respect, and 1 must allow them tlse weight of authority..

*70in Colling v. Treweck, (6 Barn. & Cress. 394—13 Com. Law Rep. 208,) it was decided by the Court ^ of King’s Bench, in 1827, that the copy of an Attorney’s not signed by the Attorney, the original of which,» duly signed, had been delivered to the Defendant, may be given in evidence, without notice to produce the original. Bayley, Judge, in delivering the opinion of the Court, distinctly points out those cases, in which it is unnecessary to give notice, to produce a document in the possession of the adverse party, to justify the admission of secondary evidence. He says there are three descriptions of cases, where notice to produce an instrument is unnecessary. First, where the instrument produced and that to be proved, are duplicate originals. Secondly, where the instrument to be proved is a notice, as a notice to quit, or a notice of the dishonor of a bill of exchange. Thirdly, where from the nature of the suit, the adversary must know that he is charged with the possession of the instrument, as in an action of trover for a bond or note. In Kine v. Beaumont, (3 Brod. & Bing. 288,) the Court of Common Pleas, after consulting the Judges of the other Courts, held, that the copy of an original letter, giving notice of the dishonor of a bill, was admissible, without notice to produce the original; and Balias, Chief-Justice, said lie could not perceive the difference between a duplicate original, and a copy made at the time.

The holder must show that he has used due diligence, to give notice of the default. If the party to be served w ith notice, reside in a different place or city, notice may be sent by letter through the Post-Office. Putting the letter in the Office, in due season, properly directed, and Containing legal notice, is sufficient. The holder is not responsible for the safe carriage of the letter ; he is not bound to pi;ove that it came to the hands of the Defendant. If the Defendant received the letter, and it did not contain proper notice, or was not put in the Office in due *71time, as may be ordinarily ascertained by reference to the postmarks, or there was ary circumstance appearing upon the face of the letter, or connected with it, to discharge him, he would certainly have it at the trial, to shield himself from the claim. If it never reached the Defendant, notice to produce it could not avail him, fop then the secondary evidence would be admitted, of the introduction of which he now complains. In neither event could the Defendant be injured, without gross negligence on his part. The bringing of the action is also of itself a species of notice to the Defendant to produce the letter, or to be bound by secondary evidence. The notice to produce the letter may then be considered, more as a matter of form than of substance. These are the reasons which occur to me, for excluding from the operations of the general rule, notices to drawers and endorsers, of the dishonor of bills and notes, and for bringing them within the sphere of the exception to that general rule.

This country is daily becoming more commercial 5 every impulse to agriculture gives new impetus to commerce. As you promote the interest of one, you augment the prosperity of the other. This practice may tend to facilitate the legal investigation of mercantile controversies, where the drawers or endorsers of biils or notes are to be charged, and may thereby give increased facility to the negotiation of this kind of commercial paper, and it is done without any possible prejudice to the interest of the drawers or endorsers.

Hall, Judge.

The deposition of the notary states, that letters addressed to the Defendants, giving them notice of the dishonor of the bill, were by him put into the Post-Office in due time. I cannot see the necessity of requiring the Plaintiff as a prerequisite to reading that deposition, to prove notice to the Defendants to produce those letters, it was unanimously held by the Su*72preme Court of the United States .in tiie case of Lindenberger v. Beall, that evidence of the letter containing-notice, put into the Post-Office, directed to the Defendant j^g p|ace 0f ¡‘esidencej was sufficient proof of the notice to be left to the Jury, and that it was unnecessary to give notice to the Defendant to produce the letter before parol evidence conld be admitted. Surh evidence is only indispensable, when the Plaintiff would be bound to produce a copy of the letter, which he had not in his possession, it would then be of course to give nolice to produce the letter before parol evidence of its contents could be received, as seems to have been held in Kine v. Beaumont, (3 Br. & Bing, 288—7 Serg. & Low. 440.) So it is necessary to give, notice to produce any instrument in the possession of the opposite party, before parol evidence of its contents can be admitted. But if it is of course to give such evidence, why give notice ? If in this case the Defendant received the letter, it informed him if the money was not paid, of an approaching suit; and he bad it in his power to produce it without notice, if it would serve his purpose, to show» a defect in the notice to him of the dishonor of the bill. If he has not received it, the Plaintiff is not placed in a worse situation on that account. He may still prove, that it was put into the Post Office, and go on to trial upon that proof.

The question in this case really is, ought the Plaintiff to be permitted to give parol evidence of the contents of the letter. If he has that right, notice to produce it is unnecessary. If he has not, but ought either to produce a copy, or give notice to produce the original, notice is indispensable. The affirmative of the proposition has been held by the Supreme Court of the United States as before observed. Of course in this case, the judgment of the Superior Court must be affirmed.

Per Curiam. — Let the judgment be affirmed,