be bad, as “A. assignee of B. and C. v. D." instead of “A. assignee of B. v. D." Harvey v. Morgun, 2 Stark. 19.

Notice to produce service of, on whom.] In general it is sufficient, even in a qui tam action, to serve the notice to produce on the attorney or agent of the party. Cates v. Winter, 3 T.R. 306, 2 T. R. 203 (n). Bryan v. Wagstaff, R. and M. 327. But a notice to produce papers not necessarily connected with the cause, served on the attorney so late as to prevent the party from receiving it in time before the trial, is not good. Vide v. Lady Anson, 1 M. and M. 96.

Notice to produce, time of service of.] The notice must appear to be a reasonable notice. Service of the notice upon the wife of the defendant's attorney, in a town cause late in the evening before the trial, was ruled insufficient. Doe v. Grey, 1 Stark. 283. But 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. Bryan v. Wagstaff, R. and M. 327. See also Affalo v. Foudrinier, 1 M. and M. 335 (n). And a notice served on the tenth of April, the trial being on the fourteenth, was ruled to be sufficient to let in secondary evidence of letters written eighteen years back, and addressed to the defendant, a foreigner, at his residence abroad. Drabble v. Donner, R. and M. 47.

Notice to produce, effect of.] If the party refuses to produce the papers required, such a circumstance does not afford any inference against him, it merely entitles the other party to give secondary evidence. Cooper v. Gibbons, 3 Campb. 363. Lawson v. Sherwood, 1 Stark. 315. Where a party has notice to produce a particular instrument, but does not say that he has not got it, though he has in fact delivered it to the Stamp Office, the other party will be allowed to give parol evidence of the contents. Sinclair v. Stephenson, 1 C. and P. 585. If the party, giving the notice, declines to use the papers when produced, this, though matter of observation, will not make them evidence for the adverse party; Sayer v. Kitchen, 1 Esp. 210; though it is otherwise if the papers are inspected. Wharam v. Routlege, 5 Esp. 235. Secondary evidence of papers, to produce which notice has been given, cannot be entered into until the party calling for them has opened his case, before which time there can be no cross-examination as to their contents. Graham v. Dyster, 2 Stark. 23.

What is sufficient secondary evidence.] Where a notice to

produce a deed has been given, and the deed is not produced, a counterpart, if in existence, is the next best evidence; R. v. Castleton, 6 T. R. 236; if there be no counterpart, an examined copy; if no examined copy, parol evidence. B. N. P. 254. And parol evidence of a writing may be given as secondary evidence, though the person who wrote the instrument is alive and not called. Lietman v. Pooley, 1 Stark. 167. The copy of a copy is not the best secondary evidence when the original copy can be produced. Ibid. Where possession has gone along with a deed for many years, the original of which is lost or destroyed, an old copy or abstract may be given in evidence, although not proved to be true, because it may be impossible to give better evidence. B. N. P. 254. After notice to the defendant to produce a letter, which he admitted he had received from the plaintiff, it was ruled that an entry by a deceased clerk in a letter-book, purporting to be a copy of a letter from the plaintiff to the defendant, was evidence of the contents, proof being given that according to the course of business, letters of business written by the plaintiff were copied by this clerk, and sent off by the post. Pritt v. Fairclough, 3 Campb. 305. So the copy of a letter accompanied with a memorandum in the handwriting of a deceased clerk, purporting that the original had been forwarded by him, is evidence, with proof that this was the usual mode of transacting business. Hagedorn v. Reid, 3 Campb. 377. But where the practice of the defendant's counting-house was, that the clerk after copying a letter into the letter-book returned it to the defendant to seal, and that he, or another clerk, carried all the letters to the post-office, but there was no particular place of deposit in the office for such letters, and neither of the clerks had any recollection of the particular letter, though they swore that they had uniformly carried all letters given them to carry, Lord Tenterden ruled that the copy in the letter-book was not evidence that the original had been sent. His Lordship added, “If the duty of the clerk had been to see the letters he copied carried to the post-office, it might have done." Toosey v. Williams, 1 M. and M. 129. A copy taken by a copying-machine is not evidence without a notice to produce the original. Nodin v. Murray, 3 Campb. 228. See R. v. Watson, 2 Stark. 129. An entry in the register-book at the custom-house, stating, that a certificate of register was granted on an affidavit of Ă. that he was an owner, is not admissible as secondary evidence of the contents of the affidavit; some person who has seen the affidavit, and knows that it was made by A., must be called. Teed v. Martin, 4 Campb. 90. To entitle a party to go into secondary evidence of a writ, after its return, it must be shown, that search has been made in the treasury, and that subsequently to the return day the writ was in the possession of the opposite party, on whom notice to produce it has been

served. Edmonstone v. Plaisted, 4 Esp. 160. Where there are two parts of a written agreement, both executed at the same time, the one stamped and the other unstamped, the unstamped part is admissible as secondary evidence of the contents of the stamped part. Waller v. Horsfall, 1 Campb. 501, Munn v. Godbold, 3 Bingh. 292. 11 B. Moore 49, S. C.

In order to prove the endowment of a vicarage, an old ledger or chartulary of an abbey, containing amongst other things an account of the several matters of endowment, and found in the possession of the person who had succeeded to part of the abbey estates, was admitted as secondary evidence of the endowment, search having been made for the original endowment. Bullen v. Mitchell, 2 Price, 399, S. C. in D. P. 4 Dow, 297.

In an action against an executor for money had and received, after notice to produce the probate, the original will, produced by the officer of the ecclesiastical court, and bearing the seal of that court, and endorsed as the instrument on which probate was granted, with the value of the effects sworn to, is admissible as secondary evidence. Gorton v. Dyson, 1 B. and B. 219. So where in an avowry for a rent-charge, the avowant could not produce the will under which he claimed (it belonging to the devisee of the land) but produced the ordinary's register of the will, and proved former payments, it was held sufficient evidence against the plaintiff, the devisee of the land charged. B. N. P. 246. But it seems in this case there should be a notice to produce.

Parol evidence inferior to written evidence.] In general, parol evidence is esteemed secondary in its nature to written evidence. Thus when an agreement has been reduced into writing, the writing must be produced; Brewer v. Palmer, 3 Esp. 213. Doe v. Griffith, 6 Bingh. 533; and if not properlystamped the plaintiff must be non-suited. But a mere memorandum not signed by the parties will not prevent the introduction of parol evidence. Doe v. Cartwright, 3 B. and A. 326; and see Hawkins v. Warr, 3 B. and C. 698. So where a verbal contract is made for the sale of goods, and is put into writing afterwards by the vendor's agent, for the purpose of assisting his recollection, but not signed by the vendor, it may be proved by parol. Dalison v. Stark, 5 Esp. 163. In order to render the production of the writing necessary, it must appear to relate to the matter in question; thus where the parol evidence is offered to prove a tenancy, it is not a valid objection that there is some written agreement relative to the holding, unless it should also appear that the agreement was between the parties as landlord and tenant, and that it continues in force to the very time to which the parol evidence applies. Doe v. Morris, 12 East, 237. See Stevens v. Penney, 2 B. Moore, 349. Where,

in ejectment, the plaintiff's witness proved an acknowledgment by the defendant that he held under T., and stated that he (the witness) had drawn an agreement touching the premises, between the plaintiff and T., it was held that the plaintiff was bound to produce the writing. Fenn v. Griffith, 6 Bingh. 533.

Parol evidence inadmissible to vary or contradict a writing.] As parol evidence is inferior to written evidence, it is not admitted to vary or contradict the terms of an instrument in writing. Thus where it was agreed in writing, that A. for certain considerations should have the produce of Boreham meadow, it was held, that he could not prove by parol that he was to have both the soil and produce of Millcroft and of Boreham meadow. Meres v. Ansell, 3 Wils. 275; and see Hope v. Atkins, 1 Price, 143. So parol evidence is inadmissible to show that a note made payable on a day certain, was to be payable on a contingency only. Dawson v. Walker, 1 Stark. 361, Woodbridge v. Spooner, 3 B. and A. 233. So where the conditions of sale described the number and kind of timber trees to be sold by lot, but not the weight of the timber, it was held, that parol evidence could not be given that the auctioneer had at the sale warranted the timber of a certain weight. Powell v. Edmunds, 12 East, 6. So parol evidence is inadmissible to alter the legal construction of a written agreement. Thus where an agreement for the sale of goods was silent as to the time of delivery, in which case the law implies a contract to deliver in a reasonable time, it was held, that parol evidence of an agreement to take them away immediately was inadmissible. Greaves v. Ashlin, 3 Campb. 426. Halliley v. Nicholson, 1 Price, 404. But where, by agreement in writing, certain goods were to be delivered at fixed times, and part being delivered, a verbal agreement was made to extend the time for the delivery of the remainder, it was held, that evidence of such verbal agreement was admissible. Cuff v. Penn, 1 M. and S. 21. So parol evidence is admissible to show that a written contract between A. and B. was in fact made by B., not on his own account, but as agent. Wilson v. Hart, 7 Taunt. 295, 1 B. Moore, 45 S. C. Parol evidence is admissible of a contract collateral to that contained in a deed or writing, though relating to the same subject matter. White v. Parker, 12 East, 578. Seago v. Deane, 4 Bingh. 459.

Parol evidence admissible to prove an additional consideration in a written instrument, or to vary the date, &c.] Where no consideration is mentioned in a deed, a consideration may be averred and proved by parol, for such averment stands with the deed, and does not contradict or vary it. Mildmay's case, 1 Rep. 176, a. Peacock v. Monk, 1 Ves. 128. So where there is a con

sideration stated, an averment of another consideration, which is not contrary to the deed, may be made. Ibid. Villers v. Beamont, Dyer, 146, a. Tull v. Parlett, 1 M. and M. 472. So in a settlement case, where the deed of conveyance stated the consideration of the purchase to be twenty-eight pounds, parol evidence was admitted to show that the consideration was in fact thirty pounds. R. v. Scammonden, 3 T. R. 474. Parol evidence is admissible to prove a deed delivered on a day different from that on which it professes to have been indented and concluded. Stone v. Bale, 3 Lev. 348, and see Steele 2. Mart, 4 B. and C. 272.

Parol evidence admissible to prove fraud in written instruments.] Where fraud is imputed, any consideration, however contrary to the averment of a deed, may be proved to show the fraudulent nature of the transaction. B. N. P. 173. See Paxton v. Popham, 9 East, 421. So in order to set aside a will for fraud, parol evidence may be given of what passed at the signing, and what the testator said. Doe v. Allen, 8, T. R. 147. The party charged with fraud will not be admitted to prove any other consideration than that stated. Clarkson v. Hanway, 2 P. Wms. 203.

Parol evidence admissible to prove custom not expressed in written instrument.] Where the parties have contracted in writing, in many instances parol evidence is admitted to prove a custom affecting the contract, on the ground, that where such a custom exists, the parties must be taken to have made their contract subject to its operation. Thus, in the construction of mercantile contracts, parol evidence is always admitted to show the sense in which, according to the usage and custom of merchants, such contracts are to be understood. As where a ship was warranted to depart with convoy, evidence of the usage amongst merchants was admitted to show that this meant convoy from the usual place of rendezvous. Lethullier's Case, 2 Salk. 443. So to explain the meaning of "days" in a bill of lading. Cochran v. Retberg, 3 Esp. 121. See Donaldson v. Forster, Abbott on Shipp. 209, 5th ed., Birch v. Depeyster, 4 Campb. 385. 1 Stark. 210, S. C. Taylor v. Briggs, 2 C. and P. 525. Simpson v. Henderson, 1 M. and M. 300. So where there was an ambiguity on the face of an account, a clerk in the office in which the account was kept was permitted to explain the meaning of a particular item. Hood v. Reeves, 3 C. and P. 532. But proof of the usage of trade is not admissible to contradict the plain words of an instrument; as where a policy of insurance was "on the ship till moored at anchor twenty-four hours, and on the goods till discharged and safely landed," evidence of an usage that the risk on the goods as well as the ship expired in twenty-four hours was held inadmissible to qualify the