Majority
p. 486Story vs. Patten. The plaintiff was entitied to Prove the contents of the execution without shewing that he had given notice to the defendant to produce it. The reason for giving notice, and the necessity for giving it, cease where, from the very nature of the suit or prosecution, the party must know that he is charged with the possession of the instrument, the contents of which are offered to be proved, (1 Starkie’s Ev. 361, citing 4 Taunt. 865. 1 Campb. 143. 6 East, 421. See also, 1 Phil. Ev. 392 ; 14 East, 274 ; 17 John. R. 293 ; 13 id, 90.) Besides, the facts offered to be Proved rested in parol, and it was not necessary to produce the execution,
Headnote
Where the na. ceedhigs'ortlie form of action gives^the^op! posite party notice to be prepared to producea writing or instrument, if neoes. Ids^dversar/s evidence, no produce^ k requisite.was°IeMSthat notice to produce an execution was not necessary m gainst a con. stable for not returning1 the process and thi™8 money where, in the (Icclaxation the execution and th» judg. ment on which it issued were fully described. trhdto a party to produce a menq11 where there was no it was in his and wh°n’ h's residence was shewn to he 15 place of trial, have'been’ad! judged insuffi. cient had the notice been necessary.
Error from the Onondaga common pleas. Story sued. Patten before a justice of the peace, who rendered judgment for the plaintiff. The defendant appealed to the Onondaga common pleas. In the declaration, the plaintiff set forth a judgment rendered in his favor against J. Smith and G. How- , , , „ „ „ . . . . land by Kelly Vase Esq. the issuing oi an execution thereon, an(j the delivery of the same to the defendant, as a constable, J to collect. He then averred the collection of the money, an(t the neglect of the defendant to pay over the same to the plaintiff or the justice. On the trial of the cause, the justice wh° rendered the judgment proved the same. The plaintiff then offered to prove by the same witness the issuing of the execution, its delivery to the defendant as a constable, the collection of the money by him, and his . , neglect to return the execution and to pay over the money. Tlie defendant objected to the evidence unless the execution was produced, or it was shewn that notice had been given to . the defendant to produce it. The court sustained the objeetion. The plaintiff then gave notice in court to the defendant to produce the execution, which notice the coiirt held insufficient, the residence of the defendant from the court house . being 15 miles, and it not appearing that the execution was jn court; whereupon the plaintiff was nonsuited, 1 1
F. G. Jewett, for plaintiff m error.
p. 487The best attainable evidence must be produced to prove every disputed fact. (1 Starkie’s Ev. 389. Norris’ Peake’s Ev. 15.) The contents of a writing cannot be proved by copy, still less by oral evidence. (1 Starkie’s Ev. 390.) Process cannot be proved by parol. (12 Johns. R. 456. 7 id. 19.) Where a written instrument is to be used as a medium of proof, by which a claim to a demand arising out of the instrument is to he supported, the instrument itself must be produced, or notice given to produce it. (3 Bos. & Pul. 146.) In the recent case of Gorham v. Gale, (7 Cowen, 739,) which was an action against a sheriff for money received on an execution, this court held that parol evidence of the contents of the execution could not be adduced, reasonable notice not having been given to the defendant to produce it. So, in the various actions against sheriffs, &c. for escapes, false returns, &c. in which the process is necessarily set forth in the declaration, due notice to the defendant to produce the process on the trial, if the writ is not returned, is strictly demanded before parol evidence of its contents is admitted. (3 Starkie’s Ev. 1335, 1341. Norris’ Peake’s Ev. 601.) The notice to produce the execution was insufficient. Proof that the defendant had the execution in court would not have superseded the necessity of notice, the object of which, is not merely to enable the party to bring the instrument into court, but also to provide such evidence as the nature of the case may require to support or impeach the instrument. (1 Starkie’s Ev. 359, 362. 2 Starkie’s Cases, 283. 7 Cowen, 739.) Here there was no evidence that the execution was in the defendant’s hands, and his residence was at the distance of 15 miles from court.
Kellogg Sandford, for defendant in error.
By the Court,
The plaintiff was improperly nonsuited. The case appears to me to fall within the well established principle, that where the nature of the proceedings or the form of action or pleadings gives the opposite party notice to be prepared to produce a writing or instrument, if necessary to falsify the plaintiff’s evidence, no other notice to produce it is requisite. The defendant must have known, from the declaration in this case, that the contents of
p. 488
the execution in his possession would come in question; that qle plaintiff could not recover without proving it. He was therefore bound to have it in court, ready to be produc'ed,. or suffer parol evidence of its contents to be given. (The People v. Holbrook, 13 Johns. R. 90. 1 Campb. 143. 3 Bos. & Pul. 143. 14 East, 274. 17 Johns. R. 293. 4 Taunt. 865. 1 Phil. Ev. 392. 2 Merriv. 464.)
In Gorham v. Gale, (7 Cowen, 739, and 6 Cowen, 467, note a,) the declaration was in the general form for money had and received, and of course gate bo notice* to the* sheriff of producing tb.efi.fa. If it was necessary for the plaintiff in this case to give notice to the defendant to* produce the execution, the case of Gorham v. Gale shews that the notice given was not sufficient; but I think notice Was tiot necessary.
Judgment reversed, and Venire de novo awarded.