where brokers have been employed, since it is only stockbrokers and London brokers who are bound to keep books, the former being directed to do so by statute,' the latter by the City regulations.' Still, it is probable that the doctrine supported by Lord Wensleydale will ultimately prevail; and the more so, as the argument rejecting the broker's book, on the ground that the parties are ignorant of its contents, appears to be entitled to little weight; for, first, there is no necessity that they should be ignorant, but either of the principals may, if he thinks fit, demand to see the entry of the contract; secondly, if the broker performs his duties in so negligent a manner as to subject either of the parties to loss, he is responsible to the amount of the injury sustained; and, lastly, if this argument were to prevail, it might equally be applied to almost every case where a contract is negotiated through the medium of an agent.

§ 392. Where a party wishes to enforce a contract made through a broker, it will be sufficient for him to produce the note in his possession, and to show that the broker has been employed in the transaction by his adversary; and this latter, if he seeks to rely on any variance between the bought and sold notes, must produce, as his evidence, the one that has been handed to himself."

$393. The amount of variance that will render the contract nugatory cannot be expressly defined. In one case, where the bought note spoke of a brokerage of one per cent., and a deposit of fifteen per cent., and the sold note stated that the brokerage was ten shillings per cent., and omitted all mention of the deposit, Lord Denman ruled that the discrepancy was fatal, though, with respect to the brokerage, one of the jury interpreted the notes as meaning that the broker should be paid by the buyer one per cent., and by the seller half per cent." In another case, where Scotch iron was named in the bought note, and Dunlop's iron, which is Scotch

7 Geo. 2, c. 8, § 9, made perpetual by 10 Geo. 2, c. 8.

Rules made by the Court of Lord Mayor and Aldermen of the city of London on 15th Sept., 1818; cited by Russ. on Factors, pp. 344–348. See Browning v. Aylwin, 7 B. & C. 204.

3 Hawes v. Forster, 1 M. & Rob. 368, per Lord Denman. Townend v. Drakeford, 1 C. & Kir. 20.

iron, but not the only kind of Scotch iron, was specified in the sold note, the contract was held to be invalidated by the variance;' and the Court arrived at a similar conclusion in a third case, where the sole difference between the bought and the sold notes was, that the one purported to deal with "Riga," and the other with "Petersburg" hemp. It seems, however, that a mere clerical error, or even a mistake in a name, if productive of no loss, will not invalidate the sale."

§ 394. With respect to notarial instruments, the general rule is that a duplicate made out at any time from the original or protocol in the notarial book, is equivalent to an original drawn up at the time of the entry in the book. If, therefore, a foreign bill of exchange be protested for non-payment, or if it be paid under protest for the honour of an indorser, the fact of the protest may be primarily established, not only by producing a formal instrument of protest, extended by the notary from his register at the date of the actual protest, but by putting in evidence a duplicate protest, even though it may have been drawn up after the commencement of the action, provided that the entries in the notary's book can be shown to have been made at the time when the transactions occurred.'

§ 395. The title of a person as executor or administrator might have been primarily proved under the old law in any one of the following ways;-namely, by producing either the probate or letters of administration, or an exemplification or certificate thereof granted by the Ecclesiastical Court, or the book of Acts in the Prerogative Office which directed the grant of the probate or letters, or an examined or certified copy of such book,' or if no

1

Sievewright v. Archibald, 17 Q. B. 103.

2 Thornton v. Kempster, 1 Marsh. 355; 5 Taunt. 786, S. C.

3 Mitchell v. Lapage, Holt, N. P. R. 253. See Bold v. Rayner, 1

M. & W. 343.

Geralopulo v. Wieler, 10 Com. B. 712, per Maule, J.

5 Id. 690.

Kempton v. Cross, Cas. Temp. Hardw. 108; B. N. P. 246; Doe v. Gunning, 7 A. & E. 244.

7 Cox v. Allingham, Jac. 514, per Sir Thomas Plumer, M. R.

* Elden v. Keddell, 8 East, 187; De Roos Peer. 2 Coop. C. P. R. 542, 543.

' Davis v. Williams, 13 East, 232; Dorrett v. Meux, 23 L. J., C. P., 221; 15 Com. B. 142, S. C.; 14 & 15 Vict., c. 99, § 14.

act book or other record were kept, even minutes of the proving of the will and sealing of probate, indorsed on the original will by the surrogate and registrar or deputy registrar of the Diocesan Court. Since the 11th of January, 1858,' the Court of Probate has had jurisdiction over all matters testamentary; but as the statute which established that court, and the rules and orders which regulate its proceedings, are alike almost wholly silent on the subject of evidence, it is not easy to determine with precision how much of the law just referred to remains in force. An executor or administrator, however, may doubtless still prove his title, either by producing the probate or letters, or by an exemplification thereof granted by a registrar or district registrar of the Court of Probate.'

§ 396. The rule, which determines under what head of evidence deeds executed in duplicate are to be classed, appears to be this: When two or more parts are sealed and delivered by each party, a practice which of late years has frequently prevailed, they are denominted duplicate or triplicate originals, and as such are considered to be primary evidence. When, however, each part is executed by one party only, as often occurs in the case of leases, the two instruments are called counterparts, and each is alternately the best evidence as against the party sealing it, and those in privity with such party; and secondary evidence of the contents of the other part. Thus, if a landlord brings an action for rent, he produces the counterpart executed by the tenant as original

6

1 Doe v. Mew, and Doe v. Gunning, 7 A. & E. 240; 2 N. & P. 260, 266, n., S. C.

2 When the Act of 20 & 21 Vict., c. 77, came into operation. See Gazette of Friday, the 4th of December, 1857.

3 See forms of exemplifications appended to Rules, &c., for the Registrars of the Court of Probate in respect of non-contentious business, Nos. 11 & 12; and similar forms appended to Rules, &c., for the District Registrars, Nos. 11 & 12. 4 2 M. & Gr. 518, b.

5 See Colling v. Treweek, 6 B. & C. 398, per Bayley, J.; Brown r. Woodman, 6 C. & P. 206, per Parke, J.

Roe v. Davis, 7 East, 363; Mayor of Carlisle v. Blamire, 8 East, 487; Paul v. Meek, 2 Y. & Jer. 116; Pearce v. Morrice, 3 B. & Ad. 396; Burleigh v. Stibbs, 5 T. R. 465; Houghton v. Koenig, 18 Com. B. 235.

7 Munn v. Godbold, 3 Bing. 292; 11 B. Moore, 49, S. C. As secondary evidence it will be admissible, though unstamped, id. See ante, § 127.

evidence, or, in the event of its loss, he may have recourse, either to the part sealed by himself, or to any other species of secondary proof; but if the tenant is the person aggrieved, he must rely on the part delivered by the landlord, and that executed by him. self will only be considered as secondary evidence. With respect to the stamp, the counterpart sealed by the lessor is usually deemed the original; but that which is sealed by the lessee may be described in pleading as the "indenture," though stamped as a counterpart, provided the action be brought against the lessee."

§ 397. On one or two occasions where it was necessary to show that the plaintiff's ancestor had exercised acts of ownership over the property in question, counterparts of leases older than the period of living memory, and found in the ancestor's muniment room, have been admitted in evidence even against strangers, though they were executed by no one but the persons named as lessees, who were not shown to have actually held under them, and though no excuse was given for not producing the original leases sealed by the ancestor. It is difficult to reconcile these decisions with strict principle, since these counterparts amounted, in fact, to no more than admissions by third parties that the ancestor was seised; but the judges appear to have relaxed the rule, in consequence of the acknowledged difficulty of tracing acts of ownership after the lapse of many years; and looking at the question in this light, few persons will probably feel inclined to quarrel with the doctrine as now established.

1 Doe v. Ross, 7 M. & W. 102; Hall v. Ball, 3 M. & Gr. 242; 3 Scott, N. R. 577, S. C.

* Pearce v. Morrice, 3 B. & Ad. 396.

5 Doe v. Pulman, 3 Q. B. 622; Duke of Bedford v. Lopes, cited id. 623, as decided by Lord Denman ; Clarkson v. Woodhouse, 5 T. R. 412, n. a ; 3 Doug. 189, S. C. In this last case, the distinction between counterparts and leases does not appear to have been much discussed, if taken at all.

CHAPTER V.

SECONDARY EVIDENCE.

§ 398. In the last chapter the rule was discussed which requires the production of the best attainable evidence, and an attempt was made to illustrate by examples the distinction between primary and secondary modes of proof. It remains to be seen upon what occasions secondary evidence will be received; and the first general rule on this subject is, that such evidence is inadmissible, until it be shown that the production of primary evidence is out of the party's power. It will be convenient to discuss this rule, and the exceptions to it, as they apply, first, to documentary evidence, and next, to oral testimony; and with respect to documents, it will be found that proof of their contents may be established by secondary evidence, first, when the original writing is destroyed or lost; secondly, when its production is physically impossible, or at least highly inconvenient; thirdly, when the document is in the possession of the adverse party, who refuses, after notice, and in some cases without notice, to produce it; fourthly, when it is in the hands of a third party, who is not compellable by law to produce it, and who, being called as a witness with a subpoena duces tecum, relies upon his right to withhold it; fifthly, when the law raises a strong presumption in favour of the existence of the document; sixthly, when the papers are voluminous, and it is only necessary to prove their general results; and lastly, when the question arises upon the examination of a witness on the voir dire.

§ 399. First, if the instrument be destroyed or lost, the party seeking to give secondary evidence of its contents must give some evidence that the original once existed,' and must then either

1 Gr. Ev., § 558, in part.

2 Doe v. Wittcomb, 6 Ex. R. 601, 605, 606, per Lord Campbell; S. C.

in Dom. Proc. 4 H. of L. Cas. 431, per Alderson, B.