Secondary Evidence.

Secondary Evidence.

handwriting, but not signed by him, and from the nature of the instrument it was to be fairly presumed the original was in his custody, notice to produce the original paper, in order to give the copy in evidence, is not necessary. Such a copy, when offered to charge the party by whom the same was made, and who, by the tenor of the agreement, was to perform certain acts therein stated, may be considered not as a copy, but as an original, in relation to the obligations of the party giving the copy, and be so given in evidence. Carroll v. Peake, 1 Peters, 22.

853. The rule of law is, that the best evidence must be given, of which the nature of the thing is capable; that is, that no evidence shall be received, which presupposes greater evidence behind in the party's possession or power. The withholding of that better evidence raises a presumption that, if produced, it might not operate in favour of the party who is called upon for it. For this reason, a party who is in possession of an original paper, is not permitted to give a copy in evidence, or to prove its contents. Tayloe v. Riggs, 1 Peters, 596.

854. The affidavit of a party to the cause, of the loss or destruction of an original paper, offered in order to introduce secondary evidence of the contents of the paper, is proper. If such affidavit could not be received of the loss of a written contract, the contracts of which are well known to others, or a copy of which can be proved, a party might be completely deprived of his rights, at least in a court of law. lbid.

855. The testimony which establishes the loss of a paper, is addressed to the court, and does not relate to the contents of the paper. It is a fact which may be important as letting the party in to prove the justice of the cause, but does not itself prove anything in the cause. Ibid. 597.

858. When parties reduce their contracts to writing, the obligations and rights of each are described by the instrument itself. The safety which is expected from them would be much impaired, if they could be established upon uncertain and vague impressions, made by a conversation antecedent to the reduction of the agreement. Ibid.

859. The plaintiff, in the ejectment, derived title under the deed of marriage settlement of the 15th of January, 1758, executed by Mary Philipse, who afterwards intermarried with Roger Morris, and by Roger Morris and certain trustees named in the same. The premises, before the execution of the deed of marriage settlement, were the property of Mary Philipse, in fee simple. The defendant claimed title to the same premises under a sale made thereof, as the property of Roger Morris and wife, by certain commissioners acting under the authority of an act of the legislature of New York, passed the 228 of October, 1779, by which the premises were directed to be sold, as the property of Roger Morris and wife, as forfeited; Roger Morris and wife having been declared to be convicted and attainted of adhering to the enemies of the United States. Not only is the recital of the lease in the deed of marriage settlement evidence between the original parties to the same, of the existence of the lease, but between the parties to this case, the recital is conclusive evidence of the same, and supersedes the necessity of introducing any other evidence to establish it. Carver v. Astor, 4 Peters, 1.

860. Secondary evidence to prove the contents of a commission issued to a Buenos Ayrean privateer, the vessel having been fitted out in Baltimore, may be given after proof has been made of the fitting out of the vessel, of her having cruised under the commission and made 856. In an action upon a written contract, said prize of vessels belonging to the emperor of Brato have been lost or destroyed, and not for de-zil, then at war with Buenos Ayres; and also ceit and imposition, the plaintiff's right to reco-after it had been proved that the persons who ver is measured principally by the contract, and had used the commission had been indicted for the secondary evidence must prove it as laid in so doing, and could not be found. United States the declaration. The conversation which pre- v. Reyburn, 6 Peters, 352. ceded the agreement forms no part of it, nor are 861. The evidence falls within the rule, that the propositions or representations which were where the nonproduction of the written instrument made at the time, but not introduced into the is satisfactorily accounted for, satisfactory eviwritten contract, to be taken into view in con-dence of its existence and contents may be shown. struing the instrument itself. Had the written paper stated to be lost or mislaid, been produced, neither party could have been permitted to show the party's inducements to make it, or to substitute his understanding for the agreement it self. If he was drawn into it by misrepresentation, that circumstance might furnish him with a different action, but cannot affect this. Ibid. 598.

857. When a written contract is to be proved, not by itself but by parol testimony, no vague uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily; and if that cannot be done, the party is in the condition of every other suitor in court, who makes a claim which he cannot support. Ibid. 600.

This is a general rule of evidence, applicable to criminal as well as to civil suits; and a contrary rule not only might, but probably would, render the law entirely nugatory; for the offender would only have to destroy the commission, and his escape from punishment would be certain. Ibid.

862. The rule as to the admission of secondary evidence does not require the strongest possible evidence of the matter in dispute; but only that no evidence shall be given, which, from the nature of the transaction, supposes there is better evidence of the fact attainable by the party. It is said in the books, that the ground of the rule is a suspicion of fraud; and if there is better evidence of the fact which is withheld, a presumption arises that the party has some secret or sinister motive in not pro

Secondary Evidence.

ducing it. Rules of evidence are adopted for
practical purposes in the administration of jus-
tice, and must be so applied as to promote the
ends for which they are designed. Ibid.

863. The declarations of a surveyor which
contradict his official return, are clearly not evi-
dence; nor ought they to be received, where he
has no power to exercise a discretion, as expla-
natory of his return, while he is still living, and
may be examined as a witness. Barclay and
others v. Howell's Lessee, 6 Peters, 499.

864. The rule that secondary evidence is inadmissible when primary evidence is attainable, though a sound general rule, is subject to exceptions where general convenience requires it. Proof, for example, that an individual has acted notoriously as a public officer, is prima facie evidence of his character, without producing his commission or appointment. Jacob v. The United States, 1 Brockenb. C. C. R. 520.

865. The recital of a lease in a deed of release is conclusive evidence upon all persons claiming under the parties in privity of estate. Independently of authority, the court would have arrived at the same conclusion upon principle. Carver v. Jackson, Lessee, 4 Peters, 1.

866. Leases, like other deeds and grants, may be presumed from long possession, which cannot otherwise be explained; and under such circumstances, a recital in an old deed, of the fact of such a lease having been executed, is certainly presumptive proof, or stronger, in favour of such possession, under title, than the naked presumption arising from a mere unexplained possession. Ibid.

867. An exemplification of a grant of land under the great seal of the state of Georgia is, per se, evidence; without producing or account ing for the nonproduction of the original. It is record proof of as high a nature as the original. It is a recognition, in the most solemn form, by the government itself, of the validity of its own grant, under its own common seal; and imports absolute verity, as a matter of record. Patterson's Lessee v. Winn et al., 5 Peters, 233.

868. The common law is the law of Georgia, and the rules of evidence belonging to it are in force there, unless so far as they have been modified by statute, or controlled by a settled course of judicial decisions and usage. Upon the present question it does not appear that Georgia has ever established any rules at variance with the common law; though it is not improbable that there may have been, from the peculiar organization of her judicial department, some diversity in the application of them in the different circuits of that state; acting as they do, independent of each other, and without any common appellate court to supervise their decisions. Ibid.

869. There was, in former times, a technical distinction existing on this subject. As evidence, such exemplifications of letters patent seem to have been generally deemed admissible; but where in pleading, a profert was made of the letters patent, there, upon the principles of pleading, the original, under the great seal, was required to be produced: for a profert could not

be of any copy or exemplification. It was to cure this difficulty that the statutes of 3 Edw. VI., ch. 4, and 13 Eliz., ch. 6, were passed. So of enrolled deeds of bargain and sale, offered by too the statute of 10 Ann, ch. 18, makes copies profert in pleading, evidence. Ibid.

by a circuit court, relative to the introduction of
870. However convenient a rule established
secondary proof, might be to regulate the gene-
ral practice of the court, it could not control the
ble by the general principles of law. Ibid.
rights of parties in matters of evidence admissi

to its being in the possession of the grantee, is
871. Proof of the handwriting of a deed, added
prima facie evidence that it was sealed and de-
livered. The evidence to establish the contents
of a lost deed, is the same as that required in
the case of a lost bond.
Davis, 6 Peters, 124.
Lessee of Sicard v.

notoriety, may be proved by reputation; and
872. Historical facts, of general and public
that reputation may be established by historical
works, of known character and accuracy. But
evidence of this sort is confined, in a great mea-
sure, to ancient facts, which do not presuppose
the nature of the transaction, or the remoteness
better evidence in existence; and where, from
of the period, or the public and general recep
tion of the facts, a just foundation is laid for
general confidence. Morris v. Harmer's Lessee,
7 Peters, 554.

within the reach of the process of the court, can 873. The work of a living author, who is hardly be deemed of this nature. He may be the sources and accuracy of his information; called as a witness; he may be examined as to and especially if the facts which he relates are of a recent date, and may be fairly presumed to be within the knowledge of many living persons, from whom he has derived his materials, there would seem to be cogent reasons to say that his book was not, under such circumstances, the best evidence within the reach of the parties. Ibid.

land, require that all conveyances of land shall 874. The acts of 1715 and of 1766 of Marybe enrolled in the records of the same county where the lands, tenements or hereditaments, conveyed by such deed or conveyance, do lie; or in the provincial court, as the case may be. The courts of Maryland are understood to have decided that copies of deeds thus enrolled may be given in evidence. Dick et al. v. Balch et al., 8 Peters, 30.

be enrolled, cannot be admitted in evidence;
875. Copies of deeds that are not required to
but deeds of bargain and sale are, by the laws
of the state, required to be enrolled; and, by the
uniform tenor of the decisions of the courts of
of bargain and sale are as good and competent
the state, exemplifications of records of deeds
evidence as the originals themselves. Ibid.

court, who, as such, had recorded the original
876. The deputy clerk of the Richmond county
power of attorney, swore that he was well ac-
quainted with Abram Jones, esquire, and his
handwriting, during the year 1793, &c.
the record of the power of attorney from B.

That

Secondary Evidence.

Jones to T. Smith, made by himself, while clerk
of the court, is a copy of an original power of
attorney, which he believes to have been ge-
nuine, for that the official signature of Abram
Jones must have induced him to commit the
same to record; and that the copy of that said
power
of attorney, the one offered in evidence,
had been compared with the record of the ori-
ginal made by himself, and is a true copy. Upon
this evidence, the plaintiff offered the copy in
evidence, and it was admitted by the circuit
court: Held, that there was no error in ad-
mitting this evidence. Winn v. Patterson, 9 Pe-
ters, 663.

877. At the time of the admission of this evidence, it was forty years old. Abram Jones, the subscribing witness to the original, was long since dead, and it did not appear that the other witness was alive. The original power did not exist, so that no evidence of the handwriting of the other witness could be given. After the lapse of thirty years from the execution of a deed, the witnesses are presumed to be dead; and this is the common ground for dispensing with the production of them, without any search for them, or proof of their death, when the original deed is before the court for proof. This rule applies not only to grants of lands, but to all other deeds where the instrument comes from the custody of the proper party claiming under it, or entitled to its custody. Ibid.

other deeds, where the instrument comes from the custody of the proper party claiming under it. 9 Peters, 674.

881. Evidence that a subscribing witness to a deed had been diligently inquired after, having gone to sea, and been absent for four years, without having been heard from, is sufficient to let in secondary proof of his handwriting. Spring v. S. C. Insurance Company, 8 Wheat. 268, 282; 5 Cond. Rep. 434.

882. A certified copy of a registered deed cannot be given in evidence, if within the power of the party claiming under it to produce the original, unless there be some express provision by statute, making an authenticated copy evidence. Brooks v. Marbury, 11 Wheat. 78; 6 Cond. Rep. 223.

883. Secondary evidence of the contents of written instruments is not admissible, where the originals are within the control or custody of the party. Sebree v. Dorr, 9 Wheat. 558; 5 Cond. Rep. 677.

884. Secondary evidence of the contents of written instruments is admissible, wherever it appears that the original is destroyed, or lost, by accident, without any fault of the party. Renner v. Bank of Columbia, 9 Wheat. 581; 5 Cond. Rep. 691.

885. In the case of a lost note, it is not necessary that its contents should be proved by a notarial copy. All that is required is, that it should be the best evidence the party has it in his power to produce. Ibid. 597.

886. The English practice of requiring a special count in the declaration, as upon a lost note, in order to let in secondary evidence of its contents, has not been adopted in the United States. Ibid.'

878. The rule is admitted that a copy of a copy is not evidence. This rule properly applies to cases where the copy is taken from a copy, the original being still in existence, and capable of being compared with it; for then it is a second remove from the original; or when it is a copy of a copy of a record, the record being in existence, and deemed by law as high evidence 887. If a party intend to use a written instruas the original; for then it is also a second remove ment in evidence, he must produce the original, from the original. But, it is a quite different if in his possession. But if it is in the possession question whether it applies to cases of second-of the other party, who refuses to produce it, ary evidence, where the original is lost, and the record of it is not deemed in law as high as the original, or when the copy of a copy is the highest proof in existence. (In this case, the power of attorney was recorded in Richmond county, and the land in controversy was in Franklin county): Held, that this is not the case of a mere copy of a copy verified as such; but it is the case of a second copy verified as a true copy of the original. Ibid.

after notice, or if the original is lost or destroyed, secondary evidence (being the best which the nature of the case allows) will be admitted. Riggs v. Tayloe, 9 Wheat. 483; 5 Cond. Rep. 645.

888. The party, in such a case, may read a counterpart, or, if there is no counterpart, an examined copy; or, if no such copy, may give parol evidence of the contents. Ibid.

889. Where a writing has been voluntarily 879. If a certified copy of a duly recorded destroyed for fraudulent purposes, or to create deed is evidence, it is not necessary to produce an excuse for its nonproduction, secondary evithe original book in which the same was re-dence of its contents is not admissible. But corded. Ibid.

880. After the lapse of thirty years from the time of the execution of a deed, the witnesses are presumed to be dead; and this is the common ground, in such cases, for dispensing with the production of them, without any such further proof of their death, when the original deed is before the court for proof. It is a rule adopted by common convenience, and founded upon the great difficulty of proving the due execution of a deed, after an interval of many years; and the rule applies not only to grants of land, but to all VOL. I.-58

where the destruction or loss (although voluntary) happened through mistake or accident, such evidence will be admitted. Ibid.

890. Although the recitals in a warrant, to another than a party to the suit, may not be evidence of the facts stated in them, yet, when they are corroborated by circumstances, such as the antiquity of marks on the ground, and by the correspondence between the marked lines and those stated in the warrant, the jury may consider the recital, that a previous warrant for the land had issued, as true; the papers of the sur

Secondary Evidence.

veyor-general, to whom the original warrant may have been returned, having been destroyed by fire. James v. Stookey, 2 Wash. C. C. R. 139.

lost, was permitted to go to the jury, as a fair ground for presuming, when taken in connexion with other testimony, that the paper exhibited 891. The rule which forbids a deed to be con- to the notary was the same which the witness tradicted or explained by parol testimony, is a had had in his possession, and acknowledged by salutary one; the courts will not be disposed to defendant. Peabody v. Denton et al., 2 Găllis. Ć. impair it. Faw v. Marsteller, 2 Cranch, 29; 1 | C. R. 351. Cond. Rep. 337.

892. In high treason, a letter issued by the leaders of a treasonable insurrection, or a copy of the same, actually circulated at the time, is admissible testimony. United States v. Mitchell,

2 Dall. 357.

893. A copy of a deed, certified by the clerk of a court, without the certificate of the presiding judge, that the attestation of the clerk is in due form, and where the instrument was not required to be recorded, is not evidence. Drummond's Adm'rs v. Magruder's Trustees, 9 Cranch, 122; 3 Cond. Rep. 303.

894. The loss of a paper ought to be established, before its contents can be proved. Bouldin et ux. v. Massie's Heirs, 7 Wheat. 122; 5 Cond. Rep. 252.

895. The rule is, that if by mistake a deed is drawn plainly different from the agreement upon which it is founded, a court of equity will consider the deed as if it had been conformed to the agreement: or if the deed be ambiguously expressed, it may be explained by the agree. ment. 1 Wash. C. C. R. 419.

901. The rule is a universal one, and applica ble as well to criminal as to civil proceedings, that the best evidence the nature of the case admits of, and that is within the reach of the party, is always to be produced. United States v. Britton, 2 Mason's C. C. R. 464.

902. If, therefore, an instrument is to be proved, the original, if in the possession or under the control of the party, is to be produced; if the original be lost or destroyed, or in the possession of the opposite party, who refuses to produce it, an examined copy, if any such exists or can be found, is the next best evidence, and must be produced. Ibid.

903. If no such copy exists, then the contents may be proved by parol evidence, by witnesses who have seen and read it, and can speak pointedly and clearly to its tenor and contents. Ibid.

904. In an indictment for forgery, if the instrument has been suppressed or destroyed by the prisoner, and there be no examined copy which can be produced, the tenor may be proved by parol evidence. Ibid.

905. The law requires the original register of 896. The affidavit of the party himself, that a ship, in case of her loss, to be transmitted to his impression is, that he tore up the paper the register of the treasury, to be cancelled; and containing the contract, after it had been carried as it is the practice not to destroy the register into execution, believing it of no further conse-after it is cancelled, it is a document required quence, and that if he did not tear it up, it has by law to be deposited in the register's office, become lost or mislaid, and that he has searched and a certified copy is legal evidence. Catlett for it among his papers repeatedly, and cannot et al. v. Pacific Insurance Company, 1 Paine's C. find it, furnishes a sufficient ground for the in- C. R. 594. troduction of secondary evidence. Riggs v. Tayloe, 9 Wheat. 483; 5 Cond. Rep. 645.

897. The rule of evidence in relation to the admission of secondary evidence, to prove the contents of written instruments, must be so applied as to promote the ends of justice, and guard against fraud and imposition. If the circumstances will justify a well-grounded belief, that the original paper is kept back by design, no secondary evidence ought to be admitted; but when no such suspicion attaches, and the paper is of that description that no doubt can arise as to the proof of its contents, there can be no danger in admitting the secondary evidence. Renner v. The Bank of Columbia, 9 Wheat. 581; 5 Cond. Rep. 691.

898. Proof of the contents of a lost paper, ought to be the best the party has it in his power to produce; and, at all events, such as to leave no reasonable doubt as to the substantial parts of the paper; but the law does not require that the contents of a lost promissory note should be proved by a notarial copy. Ibid.

899. A will, after contestation and probate, was mislaid, and after nine years, a copy was allowed to be read to the jury in a real action for part of the land devised in the will. Spencer et ux. v. Spencer, 1 Gallis. C. C. R. 622.

906. The copy of a will, of lands lying in Pennsylvania, made in New York, proved before the surrogate of New York, by one of the subscribing witnesses, who also proved that the other two witnesses attested the same in the presence of the testator, authenticated under the seal of the surrogate's office, and entered in the office of the register-general in Pennsylvania, is not admissible in evidence in Pennsylvania. In all cases, no matter where the will is made and proved, if it concern land in Pennsylvania, it must be proved by two witnesses. Hylton's Lessee v. Brown, 1 Wash. C. C. R. 298.

907. The rule requiring the production of the best evidence, is applied to reject secondary evidence, which leaves that of a higher nature behind, in the power of the party; but not to repeat one of several eye witnesses to the same facts, for the testimony of all is in the same degree. United States v. Gibert, 2 Sumner's C. C. R. 19.

908. The contents of a receipt said to have been signed by one of the defendants, or the manner of signing it, cannot be given in evidence; the receipt should be produced. Romayne v. Duane, 3 Wash. C. C. R. 246.

909. The certificate of the register of the treasury department, under his hand, that certain receipts, of which copies are annexed, are on 900. A notarial copy of a note, alleged to be | file in his office, with a certificate of the secre