Gilmore v. Wale. The clerk, thereupon, delivered them to him, and took his receipt, on the back of the bill of lading, in full, for the same. These bags were placed with the others in the sleigh. The son of the defendant testified, that upon counting the money contained in the bags, a deficiency of 300 dollars was discovered in two of the bags, which were those he had received from the plaintiff, and were both unsealed; the plaintiff's clerk, however, swore that he carried one of the bags to the defendant's sleigh, and that bag was sealed. The defendant called the next day at the plaintiff's counting-room, and requested the clerk to show him the receipt he had given him the day before; which, when shown to him, he immediately put into his pocket, and gave the clerk a duplicate of the bill of lading, with a receipt indorsed for the 2,000 dollars, deducting the alleged deficiency; and then commenced an action against the plaintiff's captain, and recovered from him the said deficiency. Previous to examining witnesses, as to the fact of taking away the bill of lading and receipt, the plaintiff called upon the defendant to produce the original. It appeared that notice, to produce it, had been given on the morning of the trial. The court said that such notice was insufficient, unless the plaintiff could show that the defendant had the papers in court. The plaintiff then proved that he had given, a short time after issue joined, a general notice to produce the bill of lading, &c., "on the trial of the cause," which the court deemed sufficient notice, without repeating it at each circuit; and also said, that, in this case, it was not necessary that the original should be produced, inasmuch as that did not form the measure of damages.(1) (1) Whether sufficient notice has been given to produce papers, must necessarily depend on the circumstances of the case. Where the parties reside in the place where the court is held, and the papers, called for, are necessarily Gilmore v. Wale. THOMPSON, J., in summing up the evidence to the jury, said that the defendant must be considered as a trespasser, having entered the plaintiff's house for an illegal purpose, to obtain papers to which he had no right. The merits of the judgment in the action between the defendant and the captain of the vessel by which the money came consigned, cannot be overhauled in this action. The testimony, therefore, which has been offered, relative to the deficiency, to be found at the residence of the party, in whose possession they are, a notice to produce them, if given on the day of trial, and a reasonable time before the sitting of the court, would certainly be sufficient. A notice at each circuit, is unnecessary; one general notice to produce the paper, at the trial, whenever such trial may take place, is sufficient. This was so decided in the case of Jackson, ex dem. Burr and O'Reilly v. Shearman, 6 Jolus. 19. There, notice had been given to produce a lease "at the trial." A circuit had intervened between the giving of that notice and the trial of the cause, and the court held that the effect of the notice was not spent; that it applied to the trial, without reference to the time; that, even if the cause had been noticed for trial, at the intervening circuit, it would not have destroyed the effect of the notice in reference to a subsequent circuit, unless it had appeared that the notice was special, and confined to that particular circuit. When the papers, required, are in the possession of the opposite party, and in court, a notice, given at the time of the trial, is sufficient. If, after notice given, the party puts the paper out of his possession, he ought to apprise the opposite party of it, so that he may know where to look for it; and if it does not appear by what means it went out of his possession, it will be considered as still continuing under his control. Jackson, ex dem., Burr v. Shearman, 6 Johns. 19. In this case, however, notice to produce the bill of lading, seems, from the authorities, to have been unnecessary. The taking away the bill of lading, is alleged among the grievances in the declaration, and the defendant, therefore, had notice from the declaration, that the plaintiff intended to charge him with the possession of that instrument; and, in such case, it is unnecessary to give any other notice, than the action itself implies. In an action of trover, therefore, for a bond, the plaintiff was allowed to give parol evidence of the contents, to support the general description of the instrument in the declaration, without having given the defendant provious notice to produce it. How v. Hall, 14 East. 274; Scott v. Jones, Taunton, 4, 865; vide, also, Phillip's Law of Evidence, 339, and the authorities there referred to. Gilmore v. Wale. must be considered here, merely to discover the intention of the defendant. If there was no deficiency, then this is a case of aggravated trespass, and the jury, in giving damages, are not confined to the extent of the alleged deficiency. But, if there really was a deficiency, that fact, although it cannot excuse the trespass, must go in extenuation of it, and in mitigation of damages. Verdict for the plaintiff. Damages, 150 dollars. Talbot, D. B. Ogden, and E. W. King, for the plaintiff. R. Riker, for the defendant. Miller v. Hackley. MILLER against HACKLEY, et al. All the sets of a bill of exchange are considered as making one bill. To make a promise to pay a bill available against a drawer, whose liability has been discharged by the laches of the holder, it must appear that such promise was made with a full knowledge of the fact. Whether he ought also to know his legal rights. Quæ et, vide, note. THIS was an action, by the first indorsee, against the drawers of an inland bill of exchange. The count, under which the plaintiff offered his testimony, alleged the making of the second of exchange by the defendants, and the indorsement of that bill to the plaintiff, and then set forth notice of the indorsement, and the presentment of the first of exchange, without averring that the first of exchange had been indorsed to the plaintiff. On this ground the defendants moved for a non-suit. THOMPSON, J., considered the application as made in season; but said, that all the sets of a bill must be considered as one bill, and that the averment, in this view, was correct. No notice of the dishonor having been given to the defendants, the plaintiff proved that, about three months af ter the protest of the bills, one of the drawers said, to a third person, that he would take care of the bills, or that he would see them paid. The defendant's counsel contended, that before the promise of the defendant could amount to a waiver of the want of notice, it must appear that he knew the fact of the Miller v. Hackley. want of notice of the dishonor; and, also, that he was, on ccount, discharged in law. 5 Burr. 2670; 1 T. R. The plaintiff's counsel cited Chitty on Bills, (new edition, 171, and 7 East, 231,) to show that the promise made, in this case, was a sufficient waiver. THOMPSON, J. That a promise may amount to a waiver, in a case like the present, enough must appear to render it justly presumable that the defendant, at the time, knew the fact of the want of notice, and also knew his legal rights.(1) Emmet, for the plaintiff. Colden, for the defendants. Verdict for the plaintiff. (1) This case came before the supreme court, and was finally decided, in February term, 1810, (5 Johns. 375,) in favor of the defendant, on the ground that there was no sufficient evidence of waiver of notice. On this subject, Van Ness, J., in delivering the opinion of the court, says: "A subsequent promise to pay, under a knowledge of the fact of a want of notice, would be a waiver of notice; but I think there was not, in this case, the requisite evidence of such a promise. It ought to have been made out clearly and unequivocally. The defendant only said to a third person, 'that he would take care of the bills,' or 'see them paid.' Whether he used the one phrase, or the other, is left in doubt; and if the first phrase was used, it was altogether uncertain whether he meant to be understood that he would resist, or would pay the bill. It would be dangerous to fix an indorser, without notice, and perhaps without knowledge of the laches of the holder, upon such loose conversation with a third person; no case has ever gone so far." Upon this subject of waiver, it has been doubted, whether a promise by an indorser to pay, with full knowledge of the laches of the holder, was sufficient to make |