Divers vs. Fulton.-1836.

by Martha, after the gift, might have properly been given in evidence, yet that new declarations made by her, ought not to have been admitted.

The will was admitted by the court to be read, without any qualification whatever, and to this the objection of the plaintiff particularly applies. The will must be regarded, not only as the act, but the declaration of the donor, made after the alleged gift.

It has been so often decided, and is now so well settled, that the declarations of a donor, made subsequent to the gift, are not evidence against the donee, as between the parties themselves, or their representatives, that it is not deemed necessary to refer to authorities. The questions, therefore, involved in this case, are respectfully submitted.

O. SCOTT for the appellee.

The will of Martha Amos, it will be perceived was offered in connection with two papers signed by the appellant. The first, a written proposition to purchase Phillis, the negro in question, and stating that she could not serve three at one time. The will shows what is meant by three at once. The negro, by the will is devised to three persons, one of whom is Divers' wife.

The other paper is a petition to the Orphans' court, requesting that the administrator may appraise the negroes therein named. This paper refers to the will, and states that the reason that the negroes were not appraised was, that they were not named in the will. Connected with these papers, the will was proper evidence. It was necessary to explain what Divers meant, by the phrases, "three at once" and his "share."

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

Divers vs. Fulton.-1836.

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 we 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

Marfield vs. Davidson.-1836.

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.

SAMUEL MARFIELD US. JAMES DAVIDSON.-December, 1836.

Where a party had offered evidence, without objection of the consideration, amount, dates, and times of payment of two promissory notes, (not before the court) and then proposed to prove, that they had been surrendered to the drawer, the one upon being paid, and the other upon being substituted by two other notes given in lieu of it; upon objection to the proposed proof of the surrender, because they were not produced, and no notice had been given to produce them; held that the proof was admissible. Held also, notwithstanding a similar objection, that evidence of the substitution of the two last notes, for the one surrendered was likewise admissible.

To render the evidence of the surrender admissible as a general rule, the notes surrendered must have been produced, but where their contents are proved by consent, the identity of the notes given, and those surrendered, is as certainly established, as if they were present in court. The admissibility of the proof of the substitution rests upon the same principle, that is, that evidence of the contents of the substituted notes, had been given without objection.

APPEAL from Baltimore county court.

This was an action replevin, brought on the 3rd January, 1834, by Samuel Marfield against James Davidson, for a negro boy, called Jacob Hill. The defendant pleaded non cepit, and property in himself, on which issues were joined.

At the trial of the cause, the plaintiff offered in evidence, that he sold the negro boy whom this action was brought to recover, to Elisha Lupton, on the following terms, to wit: that the said Lupton was to take the boy into his possession

Marfield vs. Davidson.-1836.

immediately, but that no title, or interest, was to pass to him, but was still to remain in the plaintiff, until the whole purchase money should be paid; that the amount of the purchase money was $225, which was secured by two promissory notes given by the said Lupton, bearing date about the 7th April, 1834, one of which was payable in sixty days, and the other in four months after date. That the first of said notes was taken up at maturity by said Lupton, who paid a small sum in cash, and gave two promissory notes in part renewal of, and in substitution for the said second note, which was then delivered up to him, and the said two substituted notes delivered to said Marfield, and by him retained for the balance due to him for the said negro boy by the said Lupton. That said two last mentioned promissory notes were due, at and before the impetration of the original writ in this cause, and are yet unpaid. It was also proved that Lupton has resided for some time past out of the city of Baltimore, in the town of Cumberland, in Allegany county, whereupon the counsel for the defendant objected to the competency of the evidence, above given in relation to the surrender of the said two first notes, to the said Lupton by the said Marfield, as no notice had been given to defendant to produce said notes, nor any effort made to obtain them from the said Lupton; and also objected to the competency of the evidence in relation to the giving of the said two last mentioned promissory notes, a part renewal of one of the first notes for the same reason, that the said two first notes were not produced, nor any notice given to the defendant to produce them. And the counsel for the defendant, also prayed the court to instruct the jury, that the plaintiff was not entitled to recover, which objection and prayer being sustained, and granted by the court, the plaintiff excepted and brought this appeal.

This appeal when called, was affirmed nisi, but afterwards was submitted to BUCHANAN, Ch. J. and STEPHEN, ARCHER, CHAMBERS and SPENCE, Judges, upon the notes of the appellant's counsel.

Marfield vs. Davidson.-IS36.

DULANY, who contended, that no objection was taken to the purpose for which this evidence was offered, but as the court will perceive by reference to the bill of exceptions, two objections were made, both of which related to the competency of the proof.

1st. It was said, that although it had been proved that the two first notes had been surrendered up to Lupton, by whom they had been given, yet that this proof could not be received. as competent to establish that fact without the adduction of the notes themselves, or a failure to produce them on the part of Davidson, the defendant, after due notice.

2d. That the two last promissory notes which were due and unpaid, and given for the balance of the purchase money of the boy, and which were held by Marfield, could not be adduced in evidence, and were incompetent for any purpose, because the two first promissory notes were not produced or their absence accounted for, in any other manner than by their having been surrendered to Lupton, the maker.

The great difficulty in this case is to find out the subject of dispute, the learned judge who tried the cause, observed that the two first notes constituted a link in the chain of evidence, without which no progress could be made in the cause, but of what one fact necessary to the recovery of the plaintiff they were the best evidence, and which could be established by no inferior proof was not intimated, nor can I perceive it.

All that it was necessary for Marfield to establish, after the explicit proof which had been given of his contract with Lupton by a witness who was present, was that the purchase money for the boy had not been paid, this he attempted to do by producing two notes of Lupton's, proved to be for the balance of the purchase money, which were past due and unpaid, at the time he issued his writ in this cause. This completely made out his case, for it showed that the title to the boy was still in him and had never been conveyed away, for the payment of the whole purchase money was a condition precedent to the passage of the title to Lupton.