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In case the other party refuses to produce an original instrument which is in his possession, and which he has had notice to produce, secondary evidence of the contents will be received without proof of the original. (c) After once refusing to produce, and obliging his opponent to resort to secondary proof, he will not be at liberty to retract, or, by producing the original when it is not wanted, to insist upon formal proof of its execution. (d) And a party refusing, on notice, to produce a paper in his possession or under.his control, and thus obliging his adversary to resort to parol or secondary evidence of its contents, can not be allowed to contradict the secondary evidence thus given, without producing the paper itself. (e) Indeed, it has been held that a party refusing to produce a paper in his possession, called for under a notice to produce, can not be allowed afterwards to retract and put in the paper. (f)

If the original has been lost or destroyed, and two or more parts have been executed, the loss or destruction of all the parts should be proved, before secondary evidence of the contents can be received ; (g) and the original deed ought to be proved to have been duly executed, unless proof of the execution would be dispensed with, if the original itself were produced, or unless the want of the original is occasioned by the default of the other party; in which case the execution may reasonably be presumed against him. () Thus, the act of a party destroying a written instrument, furnishes presumptive proof of its due execution; but before this presumption can arise, the

purport of the paper * destroyed must be shown to have [ *450] been what it is alleged to have been. In other words, it

must be identified in some way. (¿)

(c) Id., ib.

(d) Id., ib.

(e) 5 Pick., 18.

(f) 6 Car. & Payne, 525.

(g) 1 Phil. Ev., 452. 8 Pick., 272. 2 Watts, 75. (h) Id., ib. See 3 Hawks' Rep., 364. Cowen & Hill's Notes, 1220.

(i) 6 Watts, 288. See 2 P Wms., 720, 752.

other secondary evidence, and may recover or set off the amount due thereupon, as if it was produced. But for that purpose, he must give to the adverse party a written undertaking in a sum fixed by the judge or the referee, not less than twice the amount of the note or bill, with at least two sureties approved by the judge or referee, to the effect that he will indemnify the adverse party, his heirs and personal representatives, against any claim by any other person on account of the note or bill, and against all costs and expenses by reason of such claim. (Code Civ. Pro., § 1917.)

But where an action is prosecuted or defended by the people of the state, or by a public officer in their behalf, the people or the public officer may prove the contents of a lost note or bill of exchange, by parol or other secondary evidence, and may recover or set off the amount due thereupon, without giving any security to the adverse party. (Id., § 1918.)

If resort is had to the handwriting, in order to establish the genuineness of a lost instrument, the witness must be qualified to speak of the handwriting, the same as if the instrument was produced. (k)

Secondary evidence must, in all cases, be in itself competent; for the rule requiring the best evidence the circumstances will admit, is never so far relaxed as to allow evidence to be given which is intrinsically illegal, as hearsay, for instance, merely because a party happens to be so unfortunately situated that it is the best of which his case is susceptible. (1) And, on the other hand, the rule is not to be extended to such a rigorous extreme as to debar a party from justice, because he originally neglected to furnish himself with the highest possible assurance of the disputed facts. For then two witnesses would be better than one; a hundred better than two, and so on progressively; a writing would be better than a parol contract, a deed better than either, and a record better shan all. (m)

Nor does the rule operate in any case to exclude evidence, merely because it is not all, nor the most satisfactory which might be adduced, when the evidence offered and that which is withheld is all of the same general quality or grade; (n) but in such case it, in general, goes no farther than to forbid that evidence which is in its nature merely circumstantial, shall be received when direct and conclusive evidence may be had. (0)

Notice to produce having been given and not complied with, or the loss or destruction of an instrument, are by no means the only circumstances which will authorize the admission of secondary evidence. Thus, if a paper be on file in a public office under such circumstances that the party can neither obtain it, or compel its production, and it is not made the duty of any person to give out certified copies to be used as evidence, parol testimony will be received. (p) So, it seems, if the paper is in another state. (2) So, if the paper is in the hands of a third person, under such circumstances that the law will not compel him to produce it, secondary evidence will be allowed. (?)

There are four other cases in which secondary evidence is admissible without notice to produce: 1. Where the instrument produced,

(k) 3 Har. & John., 426. 5 Mart. Lou. Rep 176.

(2) Cowen & Hill's Notes to Phil. Ev., 540. (m) Id., ib. 1 Hayw., 193.

(n) 3 Stark. Ev., 391. McNally's Ev.,

342.

(0) 4 Hayw., 73. 5 Gill. & John., 511. Cowen & Hill's Notes, 1214.

(p) 3 Monro, 532. 7 Pick., 10. But see 5 Day, 298. 8 Mart., 287.

(q) Cowen & Hill's Notes, 1215.

(r) Id., ib. 6 Peters, 352.

and that to be proved, are duplicate originals. (s) 2. Where the instrument to be * proved is itself a notice, as [* 451] a notice to quit, notice of dishonor of a bill, &c. (t) 3. Where, from the nature of the proceeding, the adverse party must be aware that he is charged with the possession of the instrument, as in an indictment for stealing, or an action of trover, for a bill or bond, &c. (u) 4. Where the adverse party has obtained the possession of the instrument by fraud, as where, after the commencement of the action, he received it from a witness served with a subpoena duces tecum to produce it. (v)

The notice to produce (where necessary) must be proved to have been served upon the party himself, or his attorney in the cause, (w) a reasonable time before the trial. Such time depends on the circumstances of each case. (2) A parol notice is sufficient, but a written one is safer. (y) The notice must so specify the instrument required as to inform the party what he is to produce. (2) And to let in secondary evidence, some proof must be given that it is in the opposite party's possession; but where the instrument belongs exclusively to the party possessing it, slight evidence will suffice. (a) If a party has not had notice to produce an instrument, he may object to secondary evidence of its contents, though he has the original in court at the trial. And neither party, it is said, may inquire into its contents merely because it is there. (b)

Loss of instrument, and search.] To let in secondary evidence of the contents of an instrument that has been lost, it must be shown that diligent search and inquiries have been made for it in those places and of those persons whence it could most probably be procured. The degree of diligence to be used depends on the importance of the instrument, and the particular circumstances of the case; (c) and is, it seems, a question for the jury. (d) Where the loss or destruction may be almost presumed, slight evidence of either will suffice. (e) Where the publisher of a paper in which a libel appeared, stated that he had thrown the original aside as useless, and believed it was lost or destroyed, it was held sufficient to let in secondary evidence. (ƒ)

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Parties and persons interested are competent witnesses in respect to the facts and circumstances necessary to lay a foundation for secondary evidence. (g)

[ * 452 ]

*The proof of loss or destruction must generally be by witnesses testifying under oath. Therefore, it was held erroneous for a justice to admit secondary evidence on his own knowledge of the fact of the loss of a note. (¿)

The loss may be proved by the declaration of the adverse party, (k) or of those under whom he claims title; and this as to the latter even though they might be called as witnesses. (7) But in general, the declaration of a person who might be brought to testify on the subject is mere hearsay, and inadmissible. (m) Nor can a party rely upon the naked declaration of a deceased person as to his having had the paper and destroyed it, be relied on without search. (n) Rumors of the destruction of an instrument stand upon the same ground. (0)

It is not by any means a matter of course to let a party in to give secondary evidence, even where he produces direct proof of the fact of destruction. If the destruction was accidental, and occurred without his agency or assent; or even if it was voluntary and his own act, but yet done under a mistake, so as to rebut all idea of contemplated fraud, inferior evidence will usually be allowed. (p) Thus, should a party destroy a paper under the erroneous impression that it could be of no further use, he may afterwards, notwithstanding, prove its contents by secondary evidence. (2) Or should he destroy a note on its being paid in bank-bills, he supposing at the time that they were genuine, when in truth they were counterfeit, the same result would follow. (r) So, should he destroy one paper supposing it to be another. (s) But a party who, under no pretense of mistake or accident, voluntarily destroys primary evidence, to prevent its being used against him, or to create an excuse for its non-production, to injure the opposite party, or for other fraudulent purposes, thereby excludes himself from the benefit of inferior evidence. (1)

Copies.] A copy, to be sufficient, must be proved to have been examined with the original, and to be a true copy. A rough draft will do. (u) If taken with a copying machine, it is not evidence

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without notice to produce the original. (v) When possession has gone with a deed many years, and it is lost or destroyed, an old copy or abstract may be given in evidence, though not proved to be true; for it may be impossible to give better evidence. (w)

When secondary evidence is offered, it must be objected

to in season,* or its competency can not be questioned. (x) [* 453 ] It has been held too late to object after the testimony on

the side of the party offering it is closed. The objection should be made when the evidence is offered, so as to afford the party an opportunity of obviating it. (y)

The production of a written instrument may be superseded by an admission in the pleadings. (2) But the admission must be very explicit; if qualified by a reference to the instrument when produced, its production is necessary. (d)

*CHAPTER V.

[* 454 ]

PRESUMPTIVE EVIDENCE.

PRESUMPTIVE evidence is either violent-probable- or light. Violent presumption often amounts to full proof; as if one be killed in a house with a sword, and a man was seen to come out of that house with a bloody sword, and no other man was at that time in the house. Probable presumption moveth little; that which is light, not at all. (a) Proof that stolen goods, or a part of them, were found in the house, or possession, or on the person of the prisoner, is presumptive evidence of his having stolen them, sufficient to warrant a conviction if it be not repelled. This kind of evidence is frequently strengthened by other circumstances, as giving a false account respecting the goods-an endeavor to conceal-an attempt to prevent a search for them, and the like. (b) Where the guilty knowledge of the defendant is the point in issue, as where be is charged with uttering a forged note or base coin, a series of similar acts is presumptive proof of guilty knowledge. (c) The death of a party

(v) 3 Camp., 228. See 2 Stark., 129.

(20) Bill. Ñ. P., 541.

(x) Cowen & Hill's Notes, 1213.

(y) 6 N. Hamp. R., 527, 8, 9. 1 Pick., 418. (*) 3 Dana, 86, 7. 2 Anstr., 505.

(d) 1 Jacob's Rep., 337.

(a) 1 Inst., 6. 3 Black. Com., 371.

(b) 1 Phil. Ev., 168, 9

(c) 1 Camp., 324. 2 Leach, 983. 4 Russ. & Ry.

C. C., 120, 132, 245. 1 Moo. Č. C., 148.

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