allowed to waive the reading of the paper in evidence, and give secondary evidence of its contents. Nor can he, after the paper has been produced and its execution shown, place it in the hands of a witness for further identification, and to explain the circumstances attending its execution. If he does anything with it, he must put it in evidence. Where a paper produced pursuant to a notice is different from the one called for, the party is not precluded from showing this, and from proving the contents of the one withheld. But if the paper produced is the one called for and the party calling for it does not put it in evidence, the party, who produced it may read it in evidence, without proving its execution.4. VIII. EFFECT OF NOT PRODUCING PAPERS AFTER NOTICE HAS BEEN GIVEN. Where reasonable notice has been given a party to produce at the trial a paper or book in his possession, and he fails or refuses to produce it, the party giving the notice may, after proving its existence, and that reasonable notice has been given, give secondary evidence of its contents, and in doing so may read a counter book evidence, is a mooted point. 3. That the books when produced upon notice, if inspected by the party calling for them, and actually used as evidence by him, are thereby made evidence for the other party." Where books are produced pursuant to a notice, and entries in them are read by the party who called for them, the party who produced them may read other entries that are necessarily with those read by the opposite party, provided they were made prior to the commencement of the suit. Withers v. Gillespy, 7 S. & R. (Pa.) 10; Boggs v. Miles, 8 S. & R. (Pa.) 407. When a defendant produces books in response to a notice from the plaintiff, he cannot use them to prove a set-off of which he has not given notice. Lahemer v. Hogdon, 5 Š. & R. (Pa.) 514. It is unimportant when books have been produced on notice by the opposite party that the party who produced them has been allowed to examine a witness who stated that he had examined them and could find in them no entry of a certain note and check which were the subject of the controversy. Coote v. Bank of United States, 3 Cranch (C. C.) 95. When books and papers are brought în under a notice to produce them, they must be furnished unconditionally to be used as evidence or not as the party calling for them may see fit, or else parol evidence of their contents is com petent. Carr v. Gale, 3 Woodb. & M. (U. S.) 38. 1. Stitt v. Huidekoper, 17 Wall. (U. S.) 384. 2. Hotchkiss v. Germania F. Ins. Co., 5 Hun (N. Y.) 90. 3. Gilmore v. Whitcher, 6 Allen (Mass.) 113. Where a paper produced in response to a notice to produce does not answer the description of the one called for in all particulars, and the party producing it states to the court that he had not in his possession such an instrument as that described in the notice, and that the only instrument of writing he had received from the opposite party, or had in his possession similar to the one described in the notice, was one which he there produced to the court, such statement is not evidence for the jury to consider. Anderson v. Root, 16 Miss. 362. Where the plaintiffs gave the claimant notice to produce a certain invoice, it was held that the claimant could not require the plaintiffs to state whether they would take it with or without a letter attached to it, which the plaintiffs never had seen, but that the claimant must produce the invoice without including the letter. United States v. Twenty-five Cases of Cloth, 1 Crabbe (U. S.) 356. 4. Kinney v. Clarkson, 1 Johns. (N. Y.) 385; s. c., 3 Am. Dec. 336. 5. Riggs v. Tayloe, 9 Wheat. (U. S.) 483; Bright v. Young, 15 Ala. 112; part of the paper; or, if there is no counterpart, an examined copy; or if there should not be an examined copy, he may give Rawley v. Doe, 6 Blackf. (Ind.) 143; Smith v. Reed, 7 Ind. 242; Greenough v. Shelden, 9 Iowa 503; McDowell v. Hall, 2 Bibb (Ky.) 610; Bank of Kentucky v. McWilliams, 2 J. J. Marsh. (Ky.) 256; McQueen v. Sandel, 15 La. Ann. 140; Lowell v. Flint, 20 Me. 401; Thayer v. Middlesex Mut. F. Ins. Co., 10 Pick. (Mass.) 326; Narragansett Bank v. Atlantic Silk Co., 3 Met. (Mass.) 382; Loring v. Whittemore, 13 Gray (Mass.) 228; Cooper v. Granberry, 33 Miss. 117; Traux v. Traux, 2 N. J. L. 166; Jackson v. Livingston, 7 Wend. (N. Y.) 136; Sheldon Wood, 2 Bosw. (N. Y.) 267; Faribault v. Ely, 2 Dev. (N. Car.) 67; Sally v. Gunter, 13 Rich.( S. Car.) 72; Maxwell v. Light, 1 Call (Va.) 117; McPherson v. Rathbone, 7 Wend. (N. Y.) 216; Stone v. Ellis, 6 Ind. 152; McKellip v. McIlhenny, 4 Watts (Pa.) 317; Wingate v. Mechanics' Bank, 10 Pa. St. 104; West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289; s. c., 8o Am. Dec. 576; Cooper v. Gibbons, 3 Camp. 363. 2. The contents of a paper may be established by slight secondary evidence as against a party who refuses to produce the original after notice, because it is in his power to remove all doubts as to its contents by producing the paper. Eastman v. Amoskeag Co., 44 N. H. 143; s. c., 82 Am. Dec. 201. Parol evidence of a paper will be admitted when there is a strong presumption raised by the evidence that it is either destroyed or in the possession of the opposite party. 11 Johns. (N. Y.) 446. The records of a manufacturing corporation are the best evidence that its officers have authority to bind the corporation by contract. But when such a corporation is a defendant and refuses to produce the records, on notice, the plaintiff may give other evidence of the authority. Narragansett Bank v. Atlantic Silk Co., 3 Met. (Mass.) 282. Criminal Cases.-The rule of admitting secondary evidence of the contents of papers in the possession of the adverse party after notice to produce them has been given, is the same in criminal as well as in civil cases. State v. Kimbrough, 2 Dev. (N. Car.) 431. A party declining to produce a pa per ought simply to state that he does not produce it. He should not enter into a statement of the reasons why he does not produce it. Laxton v. Řeynolds, 18 Jur. 963. 1. Riggs v. Tayloe, 9 Wheat. (U. S.) 483; Loring v. Whittemore, 13 Gray (Mass.) 228; McDowell v. Hall, 2 Bibb (Ky.) 610. 2. Riggs v. Tayloe, 9 Wheat. (U. S.) 483; Rawley v. Doe, 6 Blackf. (Ind.) 143; Jackson v. Livingston, 7 Wend. (N. Y.) 136; Sedgwick v. Waterman, 2 Root (Conn.) 434; Norton v. Haywood, 20 Me. 359; Routh v. Agricultural Bank, 20 Miss. 161; Augur Steel Axle and Gearing Co. v. Whittier, 117 Mass. 451; Com. v. Goldstein, 114 Mass. 272. It was held to be sufficient evidence of the sending of a letter, to warrant the admission of a copy in evidence where it had not been produced after notice, that the party proved by his clerk that he copied the letter in a letter book; that it was his universal custom to deposit the letters thus copied in the postoffice, and that he seldom handed them back, but that he could not remember that he sent the letter. Thalhimer . Brinckerhoff, 6 Cow. (N. Y.) 90. A copy of a deed was not admitted in evidence after notice to produce had been served to produce the original, there being no proof of the full execution of the original. Lambert v. Lambert, 11 Ired. (N. Car.) 162. Notice to produce a deed was given to one on trial for its forgery. It was not produced, and the party who gave the notice proved by the clerk of the county that the defendant handed him a deed for record and made arrangements for the payment of his fees, and that he returned it to the defendant. The copy he produced was taken from the records. Held, that the copy was admissible in evidence. Henderson v. State. 14 Tex. 503. Where each party held a part of a charter party the court refused to require the plaintiff to produce the part he held without having previous notice. Sampson v. Johnson, 2 Cranch (C. C.) 107. A plaintiff, for the purpose of proving a co-partnership between the defendant and another person, gave no parol evidence of its contents. All inferences from such secondary evidence will be taken most strongly against the party refus ing to produce;2 and if the secondary evidence is vague, imperfect and uncertain as to dates, amounts, boundaries, etc., every intendment and presumption are against the party who might remove all doubt by producing the higher evidence. But the refusal raises no presumption in itself that if the documents were produced they would establish the fact which the party giving the notice alleges that they would prove; nor does it raise any presumption, suspicion, or imputation to the discredit of the tice to the defendant to produce an original contract of partnership, of which a copy was annexed to the notice. The defendant did not produce the original contract, but offered in evidence the copy annexed to the notice, and contended that, as the plaintiff had represented it to be a true copy, and in another suit between the two defendants, which the plaintiffs were permitted to defend, had made affidavit that it was in their belief a true copy, it ought to be received against them. Held, that the defendant could not give secondary evidence of the contract, as he had the original in his possession and refused to produce it. Bogart v. Brown, 5 Pick. (Mass.) 18. On the hearing of a motion on affidavits, if a copy of a deed under the control of the party relying upon it, to which there is a subscribing witness, is attached to an affidavit, and the party presenting the affidavit refuses to produce the original deed and offered no excuse for its nonproduction, the copy is entitled to no weight as evidence, and the refusal under these circumstances tends strongly to weaken the statements in the affidavit relating to it. Leese v. Clark, 29 Cal. 665. 1. Riggs v. Tayloe, 9 Wheat. (U. S.) 483; Thayer v. Middlesex Mut. F. Ins. Co., 10 Pick (Mass.) 326; McQueen v. Sandel, 15 La. Ann. 140; Smith v. Reed, 7 Ind. 243; King v. Lowry, 20 Barb. (N. Y.) 532; West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289; So Am. Dec. 573; Thomas v. Harding, 8 Me. 417; McKellip v. McIlhenny, 4 Watts (Pa.) 317; s. c., 28 Am. Dec. 711; Pangborn v. Continental Ins. Co., 62 Mich. 638. Where an action is brought on a note in the possession of the defendant and he refuses to produce it, the contents of the note and the handwriting of the maker may be proved by parol. Prescott v. Ward, io Allen (Mass.) 203. When notice is given to produce a paper shown to be in the possession of the adverse party and he refuses to produce it, the party giving the notice may enquire into the contents of the paper on cross examination. Pangborn v. Continental Ins. Co., 62 Mich. 638. 2. Thayer v. Middlesex Mut. F. Ins. Co., 10 Pick (Mass.) 326; Cahen v. Continental L. Ins. Co., 69 N. Y. 300; Rector v. Rector, 8 Ill. 105; Cross v. Bell, 34 N. H. 83; Shortz v. Unangst, 3 W. & S. (Pa.) 45; Barber v. Lyon, 22 Barb. (N. Y.) 622; Mariner v. Saunders, 10 Ill. 113. A life insurance company contracted to assume all the risks of another company, and issued to a policy holder one of its own policies, upon the surrendering of his policy. Upon the death of the person insured, suit was brought against the company to recover the insurance, and notice was given the defendant to produce the contract between itself and the company whose risks it assumed. The defendants refused to produce this contract. Parol evidence was given that a contract was made between the two companies concerning the assumption by the defendant of all the outstanding risks of the other company. Held, that the defendant, by refusing to produce the contract, incurred the penalty of having all inferences from the testimony taken most strongly against it, and that it might be inferred from the evidence and from the fact that it issued a policy to the plaintiff, with the recitals it contained, that under the contract it actually assumed all outstanding risks of the other company. Cahen ぴ。 Continental L. Ins. Co., 69 N. Y. 300. 3. Life and F. Ins. Co. v. Mechanic F. Ins. Co., 7 Wend. (N. Y.) 31; Hanson v. Eustace, 2 How. (U. S.) 653. party, except in the case of spoliation or equivalent suppression when the rule is that omnia præsumuntur contra spoliatorem.1 Where it is apparent that books or papers in one's possession would establish facts, whereof the burden of proof is on him, his refusal to produce and attempt to establish such facts by other evidence raises a strong presumption that the books or papers, if produced, would operate against him.2 But some general evidence of such parts of their contents as are applicable to the case must first be given before any foundation is laid for any inference or intendment on account of their nonproduction.3 Where a party parts with the possession of a document after notice given him to produce it, he should apprise his adversary, so that he may know where to look for it. If it does not appear by what means it left his possession, it will, for the purposes of the notice, be considered as under his control and in his possession. After a party has refused to produce a paper in his possession, and his adversary has proved its contents by secondary evidence, the party will not be permitted to contradict this secondary evidence by secondary evidence;5 or by putting the paper itself in evidence.® NOTICE TO QUIT.-See LANDLORD AND TENANT, 12 Am. & Eng. Encyc. of Law 757t. 1. Life & Fire Ins. Co. v. Mechanics' F. Ins. Co., 7 Wend. (N. Y.) 33; Hanson v. Eustace, 2 How. (U. S.) 653; Merwin v. Ward, 15 Conn. 377; Hunt v. Collins, 4 Iowa 56; Spring Garden Mut. Ins. Co. v. Evans, 9 Md. 1; s. c., 66 Am. Dec. 308; Jewell v. Center, 25 Ala. 498. Where a party reads to the jury a deposition taken by the adverse party, who refuses to read it, he makes it his evidence and cannot impeach it. Jewell. Center, 25 Ala. 498. The refusal of a party to produce books or papers at the trial does not establish a fraudulent disposition of the books to deceive the other party. Burr v. American Spiral Spring Butt Co., 81 N. Y. 175. In an action for damages for an injury received by a passenger while on a train it appeared that the ticket issued to him was a commutation ticket between two points, and that a part of the route was over another company's track. Both companies were made defendants. It was admitted that their relations to each other were defined by written contracts, but they refused to produce them on notice. Held, that as they knew the truth and omitted to speak, every ir ference warranted by the evidence should be indulged against them. Wylde v. Northern R. Co., 53 N. Y. 156. Where a person wilfully fails and refuses to produce a document after notice, all things touching its contents and execution will be presumed against him which the case fairly admits of under the maxim contra spoliatorem omnia præsumuntur. . Benjamin v. Ellinger, So Ky. 492. 2. The Luminary, 8 Wheat. (U. S.) 407; Clifton v. United States, 4 How. (U. S.) 242; Merwin v. Ward, 15 Conn. 377. The nonproduction of papers after notice is a circumstance that the jury may consider; and it may be commented upon by counsel in argument. Tobin v. Shaw, 45 Me. 331; s. c., 71 Am. Dec. 547 3. Life & Fire Ins. Co v. Mechanic F. Ins. Co., 7 Wend. (N. Y.) 31; Hanson v. Eustace, 2 How. (U. Š.) 653. 4. Jackson v. Shearman, 6 Johns. (N. Y.) 19. 5. Bogart v. Brown, 5 Pick. (Mass.) 18; Wharton Ev., § 157. 6. Wharton Ev., § 157; Bogart v. Brown, 5 Pick. (Mass.) 18; Doon v. Donaher, 113 Mass. 151; Doe v. Hodgson, 12 Ad. & El. 135. In Moulton v. Mason, 21 Mich. 363 is a dictum to the contrary, but this dictum appears to be opposed to the weight of authority. See also Thompson on Trials, §§ 789, 790. NOTIFY (See also NOTICE).-In legal proceedings and in respect to public matters, the word "notify," generally, if not universally, imports notice by some person whose duty it is to give it, in some manner prescribed, and to some person entitled to receive it.1 NOTORIOUS.-Generally known and talked of by the public; universally believed to be true; manifest to the world.2 NOTWITHSTANDING.-See note 3. 1. Potwine's App., 31 Conn. 384. See also Minard v. Douglass Co., 9 Oreg. 210; Castner v. Farmers' Mut. L. Ins. Co., 50 Mich. 277; Vinton v. Builders' etc. Assoc., 109 Ind. 353, in which latter case it was held that "notify” did not signify a notice in writing. 2. Webster's Dict., followed in Straus v. Imperial Ins. Co., 94 Mo. 182. See also Seay v. Walton, 5 T. B. Mon. (Ky.) 368. Notorious Possession.-See PRESCRIP TION, I Am. & Eng. Encyc. of Law 228, n. "Notorious Resistance to Lawful Authority."-These words occurring in a clause in a fire insurance policy providing that the company shall not be liable for any damage by fire occasioned by persons engaged in "notorious resistance to lawful authority," were held to mean the resistance of many persons and widely known at the time, and not to that of a few persons, the results of which become notorious. Straus v. Imperial Ins. Co., 94 Mo. 182. 3. "Anything in this act to the contrary notwithstanding,' is equivalent to saying that the act shall be no impedi ment to the measure, and precisely corresponds to the words in the second saving of the Stat. of Uses, 27 H. VIII, ch. 10, as if this act had not been made.'" Dwar.683, citing Cheinie's Case; Cecil's Case, 7 Rep. 20. 4. Noxious not only means "hurtful 861 and offensive to the smell," but it is also the translation of the very technical term "nocious." Rex v. White, 1 Burr. 337. Noxious Thing.-See ABORTION, I Am. & Eng. Encyc. of Law 29, n. The New Jersey statute requires proof that the thing administered was noxious or hurtful in some degree, though it does not require, by its terms, that the thing should be capable of producing a miscarriage. State v. Gedicke, 43 N. J. L. 86. A "noxious thing,' within 24 and 25 Vict., ch. 100, §§ 58, 59, means anything which is harmful as administered, although not necessarily harmful per se. Reg. v. Cramp, 49 L. J. R., M. C. 44. Noxious Substance.-As used in section 216 of the California Penal Code, relating to the administration of poisons, etc., with intent to kill: "The noxious or destructive substance or liquid mentioned in the statute is not merely such as might, when administered, be hurtful and injurious, but, like a poison, it must be capable of destroying life." People v. Van Deleer, 53 Cal. 149. 5. An injunction to restrain the use by the defendants upon their trade label of the term "nourishing stout," which plaintiff had previously used, refused, on the ground that "nourishing" was a mere English word denoting quality. Raggett v. Findlater, L. R., 17 Eq. 29. |