SECONDARY EVIDENCE, WHEN ADMISSIBLE.

CHAPTER V.

303

OF SECONDARY EVIDENCE.

§ 312. In the last chapter we discussed the rule which requires the production of the best attainable evidence, and endeavoured, by examples, to illustrate 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, where the original writing is destroyed or lost; secondly, where its production is physically impossible, or at least highly inconvenient; thirdly, where the document is in the possession of the adverse party, who refuses after notice, and in some cases without notice, to produce it; fourthly, where it is in the hands of a third party, who is not compellable by law to produce it, and he being called as a witness, with a subpoena duces tecum, relies upon his right to withhold it; fifthly, where there is a strong presumption of law in favour of the existence of the document; sixthly, where the papers are voluminous, and it is only necessary to prove their general results; and lastly, where the question arises on the examination of a witness on the voir dire.

§ 313. First, if the instrument is destroyed or lost, the party seeking to give secondary evidence of its contents must either prove its destruction positively, or at least presumptively, by showing that it has been thrown aside as useless (a), or must establish its loss, by proof that a search has been unsuccessfully made for

(a) R. v. Johnson, 7 East, 66; 29 How. St. Tr. 437-440, S. C.

304

WHEN INSTRUMENT IS DESTROYED OR LOST.

it, in the place or places where it was most likely to be found. What degree of diligence is necessary in the search cannot easily be defined, as each case depends much on its peculiar circumstances (b); but the party is generally expected to show, that he has, in good faith, exhausted in a reasonable degree all the sources of information and means of discovery, which the nature of the case would naturally suggest, and which were accessible to him. It should be recollected, that the object of the proof is merely to establish a reasonable presumption of the loss of the instrument; and that this is a preliminary inquiry addressed to the discretion of the judge (c). The party therefore, offering secondary evidence, need not, on ordinary occasions, have made a search for the original document, as for stolen goods, nor be in a position to negative every possibility of its having been kept back (d). If, indeed, the document be important, and such as the owner may have an interest in keeping, or if there be any reason to suspect that it has been fraudulently withheld, a very strict examination will properly be required; whereas, if the paper be supposed to be of little or no value, a very slight degree of diligence will be demanded, as it will be aided by the presumption of destruction or loss, which that circumstance affords (e).

314. If the document belongs to the personal custody of a particular individual, or is proved, or may be presumed, to be in his possession, he must in general be served with a subpœna duces tecum, and be sworn to account for it; since, so long as he is capable of being called as a witness, his declarations respecting it will, in strictness, be inadmissible (f), and, even after his death, this species of evidence, though admissible as tending to prove the

Gully v. Bp. of Exeter,

(c) Ante, § 21.

(b) Brewster v. Sewell, 3 B. & A. 303, per Best, J.; 4 Bing. 298. See Pardoe v. Price, 13 M. & W. 267. (d) M'Gahey v. Alston, 2 M. & W. 214, per Alderson, B.; recognised per Wigram, V. C., in Hart v. Hart, 1 Hare, 9.

(e) Gathercole v. Miall, 15 M. & W. 319, 322, 329, 330, per Pollock, C. B.; 335, 336, per Alderson, B.; Brewster v. Sewell, 3 B. & A. 299, 300, 303; Kensington v. Inglis, 8 East, 278; R. v. East Fairley, 6 D. & R. 153, per Bayley, J.; Freeman v. Arkell, 2 B. & C. 494; 3 D. & R. 669, S.C.

(ƒ) R. v. Denio, 7 B. & C. 620; R. v. Castleton, 6 T. R. 236; Williams v. Younghusband, 1 Stark. R. 139; Walker v. Countess of Beauchamp, 6 C. & P. 552, per Alderson, B.

SEARCH FOR LOST INSTRUMENT.

305

diligence and extent of the search, must be received with great caution (g). Still, on one occasion, where inquiries had been made of an apprentice shortly before his death, respecting his indenture, when he stated that it had been given up to him after the expiration of the apprenticeship, and that he had burnt it, secondary evidence of its contents was received, though no search had been made, it appearing that there was no duplicate, that the master was dead, and that his executrix had declared that she knew nothing about it (h). The decision in that case appears to have proceeded on the somewhat dubious ground, that, if the statement of the apprentice was inadmissible, the indenture was not traced into his hands, and being functus officio, there was no particular reason why it should be in his custody, while, if the statement could be received so as to show a possession of the deed by him, it showed also that further search or inquiry was unnecessary (i). The second branch of this dilemma is unanswerable, but the first is subject to much doubt; for even if the fact of the deed not being traced into the hands of the apprentice, could preclude the necessity of searching in that quarter (j), it could not discharge the parties of laches, in having neither called the personal representative of the master, nor even examined his papers. Perhaps, however, this decision may best be supported, by considering that the evidence was there admitted for the mere purpose of satisfying the conscience of the judge on a preliminary inquiry; and that, consequently, a somewhat looser rule was allowed to prevail than would have been applicable to the proof of the material facts of the case (k). Indeed, this distinction between evidence addressed to the judge and that submitted to the jury, has been recently adopted by the Court of Queen's Bench, who have almost gone the length of holding, that, in order to show that an honest

(g) R. v. Rawden, 2 A. & E. 158, per Lord Denman.

(h) R. v. Morton, 4 M. & Sel. 48.

(i) Per Lord Ellenborough, in 4 M. & Sel. 50; explained by Bayley, J., in R. v. Denio, 7 B. & C. 622. In City of Bristol v. Wait, 6 C. & P. 591, Alderson, B., held, that in order to let in secondary evidence of the appointment of one of the defendants as overseer, it was sufficient to show that a witness had asked him for his appointment, when he stated that he had lost it, whereupon no search was made. (j) See post, § 316, n. (p).

(k) R. v. Kenilworth, 2 Sess. Cas. 72, per Coleridge, J.; 7 Q. B. 652, S.C.

306

SEARCH FOR LOST INSTRUMENT.

and diligent search has been made for a document, so as to let in secondary proof of its contents, hearsay evidence of the answers given by persons who were likely to have it might be received (4).

§ 315. If the instrument ought to have been deposited in a public office, or other particular place, it will, in general, be deemed sufficient to have searched that place, without calling the party, whose duty it was to have put it there, or any other person who may have had access to it. Thus, where it appeared that a parish indenture of apprenticeship had been given to a person since dead to take to the overseers, and a fruitless search was made for it in the parish chest, which was the proper repository for such instruments, secondary evidence was admitted, though none of the overseers were called, and no inquiry was made of the personal representative of the party, who ought to have delivered it to the parish officers (1). So, where it was the duty of a paying clerk of a parish to deposit a certain cancelled cheque in a room of the workhouse, an application to the successor of this clerk for an inspection of the cheques in the room, and an ineffectual examination of several bundles, which were handed to the party searching by the successor, was deemed a sufficient search to let in secondary evidence, though no notice to produce had been served on the first clerk, he being the defendant in the cause, and though the person who succeeded him in the office was not called (m). Again, secondary evidence of the contents of a warrant, issued by the defendant, has been received, on proof by the high constable, who levied under it, that he had deposited it in his office, and had sought for it there in vain, though he added that the town-clerk had access to the office, and it was objected that the defendant should have been served with a notice to produce the warrant, and the town-clerk with a subpoena duces tecum (n).

§ 316. It may often be difficult to ascertain what is the proper custody of an instrument, and on these occasions it will always be

(k) R. v. Kenilworth, 2 Sess. Cas. 66; 7 Q. B. 642, S.C.

(7) R. v. Stourbridge, 8 B. & C. 96; 2 M. & R. 43, S.C. See Minshall r. Lloyd, 2 M. & W. 450. (m) M'Gahey v. Alston, 2 M. & W. 206, 212.

(n) Fernley v. Worthington, 1 M. & Gr. 491.

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307

expedient, and sometimes necessary, to search several places. Thus, where a marriage settlement, after providing a portion for younger children, and vesting a legal term in trustees to secure it, reserved an ultimate remainder to the settlor's heir, it was held that a search among the papers of the surviving younger child was insufficient to let in secondary evidence of its contents, and that the papers of the surviving trustee, and of the heir, should also have been examined (o). Again, an expired indenture of apprenticeship sometimes remains with the master, sometimes with the apprentice; but as the latter appears to have the greater interest in its preservation (p), stricter inquiry should be made of him than of the master, though, in the absence of positive proof respecting the possession, search should be instituted among the papers of both. So, the lessor and lessee appear to be equally entitled to the custody of an expired lease; for, whether the term came to an end by efflux of time or by forfeiture, the lessee, for a time at least, would have a right to keep the deed, since he might have occasion to use it in an action of covenant against the lessor; but, after a considerable interval, it would frequently be found in the landlord's possession, as constituting one of the muniments of his title (q). Under these circumstances, prudence dictates an application to both parties, whenever it may be necessary to prove the loss of such an instrument, though it has never been expressly decided, that a search among the muniments of the lessor alone would not let in secondary evidence; and Mr. Justice Bayley, on one occasion, appears to have thought that an examination of the lessee's papers would not be absolutely necessary (r).

§ 317. The legal custody of a document appointing an overseer is in that officer, he being the person most interested in it, and requiring its production as a sanction for those acts, which he may be called upon to do under its authority. In the absence, therefore,

(0) Cruise v. Clancy, 6 Ir. Eq. R. 552, 556, per Sir Ed. Sugden, Ch.

(p) See Hall v. Ball, 3 M. & Gr. 247.

(9) Hall v. Ball, 3 M. & Gr. 242, 253; 3 Scott, N. R. 577, S.C.; Plaxton v. Dare, 10 B. & C. 17; 5 M. & R. 1, S.C.; R. v. North Bedburn, Cald. Cas. 452, per Buller, J.

(r) Brewster v. Sewell, 3 B. & A. 301, 302; Hall v. Ball, 3 M. & Gr. 247, per Erskine, J.