Divers v. Fulton , 8 G. & J. 202 ( 1836 )

StepheN, Judge,

delivered the opinion of the court.

In the course of the trial two opinions were delivered by the court below, to which the appellant excepted, and which the appeal in this case brings before this court for examination. They both relate to the admissibility of evidence, and the question raised upon the first bill of exception is, as to the sufficiency of the notice given to the plaintiff’s attorney, to produce at the trial a paper in the possession of his client, to warrant a resort to secondary evidence of its contents, upon the failure or omission to produce it, at the trial in pursuance of such notice. We think the court below were clearly right in the opinion expressed in the first bill of exception. The notice was given to the attorney of the plaintiff at four o’clock on Monday; he communicated the fact to his client on Tuesday, and the trial of the cause took place on the following Wednesday.

This, we think, was a sufficient notice to entitle the plaintiff to use the secondary evidence, upon the defendant’s failing to produce the primary proof called for. It is true before secondary evidence of the contents of a written instrument can be let in, the notice to produce the original must appear to the court to have been reasonable in point of time, so as to give the adverse party an opportunity to produce the paper called for; but wo think, that this rule has been complied with in the present case. In Roscoe on Ev. 6, we find that a 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. We think that the court below were also correct in the opinion expressed-in the second bill of exceptions, as the copy of the will offered in evidence was clearly admissible, as explanatory of the note written by the plaintiff to the defendant, in which he offers to sell his share of Phillis to the defendant, as she could' not serve three at the same time. By the will it appears, that the negro woman called Phillis, was given by their testatrix to her three daughters, of whom the wife of Divers the plaintiff was one. This bequest it was, to which he evidently alluded when he said she could not serve three at the same time. We therefore think, that taken in connection with the letter of the plaintiff to the defendant, Fulton, who was the administrator of the testatrix, the will was legally admissible to go to the jury, for the purpose of showing his recognition of the legal validity of the bequest therein contained to his wife, and her three sisters. Finding no error in the opinion expressed by the court below in either bill of exception we affirm their judgment.

JUDGMENT AFFIRMED.