308

SEARCH FOR LOST WRITINGS.

of proof that the parish officers have the actual custody of such an instrument, it will not suffice to give them notice to produce it, but before secondary evidence can be received, it will be necessary to call the overseer himself (s). In a late case before Vice-Chancellor Wigram, it appeared that a solicitor, who had prepared an agreement between the plaintiff and defendant, had sent it, after execution, to the defendant by his clerk. This clerk was not called, having quitted the service of the solicitor a long time back; but the defendant's clerk stated that he had searched for the deed in his counting-house, where the transactions to which it referred were all carried on, and where books containing entries relating to these transactions were kept. His Honour, on this state of facts, expressed no opinion as to the effect of the absence of the solicitor's clerk, but referred the case back to the Master, in order that a further search might be made at the defendant's private residence, since it did not appear that his clerk, who had been actively concerned in the transactions in question, had ever seen the deed at the counting-house (t).

§ 318. If the party entitled to the custody of a document is dead, inquiries should, in general, be made of his personal representatives, and if the document relate to the real estate, of the heir-at-law also; but this is not necessary, if it appear that another party is in possession of his papers. Where, therefore, the master of an apprentice, being possessed of the indenture, failed, and an attorney took the management of his affairs, and the custody of his papers, it was held that, after the master's death, an inspection of these papers by the attorney would let in secondary evidence of the deed of apprenticeship, though no inquiries had been made of the master's widow (u).

§ 319. It is not necessary that the search should have been recent, or made for the purposes of the cause; and therefore,

(8) R. v. Stoke Golding, 1 B. & A. 173, 176.

(t) Hart v. Hart, 1 Hare, 1. In Bligh v.. Wellesley, 2 C. & P. 400, a witness stated that he had in vain searched for some papers in a box, in which he thought he had put them, but that he still fancied they were somewhere in his possession, though he had not looked elsewhere for them. Held insufficient, per Best, C. J. (u) R. v. Piddlehinton, 3 B. & Ad. 460.

WHEN NECESSARY TO PRODUCE ORIGINAL INSTRUMENT. 309

where it was made amongst the proper papers three years before the trial, it was held sufficient, though it certainly would have been more satisfactory, had the papers been again examined (v). If the instrument was executed in duplicate, or triplicate &c., the loss of all the parts must be proved, in order to let in secondary evidence of the contents (w); and, in all cases, before such evidence will be admissible, it must be shown that the original instrument was duly executed, and was otherwise genuine (a). If there were an attesting witness, he must, if known, be called, or in the event of his death, his handwriting must be proved, precisely in the same manner as if the deed itself had been produced; though, if it cannot be discovered who the attesting witness was, this strictness of proof will, from the necessity of the case, be waived. In the absence of evidence to the contrary, the Court will presume that the instrument was duly stamped (y).

§ 320. Notwithstanding the rule, which, in general, enables parties to prove, by secondary evidence, the contents of documents lost or destroyed, there are some occasions, on which it is necessary to produce the written instruments themselves. Thus, no action at law will lie on a lost bill of exchange, promissory-note, or cheque, or on the respective considerations, provided the instrument was originally drawn payable to bearer, or has become so payable, in consequence of having been indorsed in blanc (z); but, in the case of loss, the payee must tender sufficient indemnity to the acceptor or maker, and if this be refused, he may enforce payment thereupon in a court of equity (a). As between the indorsce

(v) Fitz v. Rabbits, 2 M. & Rob. 60.

(w) R. v. Castleton, 6 T. R. 236; B. N. P. 254; Alivon v. Furnival, 1 C. M. & R. 292. See ante, § 288.

(x) Goodier v. Lake, 1 Atk. 446; R. v. Culpepper, Skin. 673; Doe v. Whitefoot, 8 C. & P. 270; Jackson v. Frier, 16 Johns. 196; Kimball v. Morrell, 4 Greenl. 368. (y) Hart v. Hart, 1 Hare, 1; Pooley v. Goodwin, 4 A. & E. 94; R. v. Long Buckby, 7 East, 45; Crisp . Anderson, 1 Stark. R. 35.

(≈) Hansard v. Robinson, 7 B. & C. 90; 9 D. & R. 860, S.C.; Pierson v. Hutchinson, 2 Camp. 211, per Lord Ellenborough; 6 Esp. 126, S.C.; Mayor v. Johnson, 3 Camp. 324; Davis v. Dodd, 4 Taunt. 602; Champion v. Terry, 3 B. & B. 295; 7 Moore, 130, S.C.; Bevan v. Hill, 2 Camp. 381, per Lord Ellenborough; Woodford v. Whiteley, M. & M. 517, per Parke, B. See Alexander v. Strong, 9 M. & W. 733; Lubbock v. Tribe, 3 M. & W. 607.

(a) 9 &10 Will. 3, c. 17, § 3; 3 & 4 Anne, c. 9; Rolt v. Watson, 4 Bing. 274;

310

WHEN NECESSARY TO PRODUCE ORIGINAL INSTRUMENT.

and acceptor of a bill, this rule rests upon the twofold ground, that the acceptor, on payment of the instrument, has a right to its possession, first for his own security, and, secondly, as his voucher and discharge pro tanto in his account with the drawer; and although, if the action be brought by the drawer of a bill against the acceptor, or by any of the parties to a note against the maker, the second reason cannot apply, still the necessity of securing the acceptor or maker against the demands of a subsequent bonâ fide holder remains the same.

§ 321. If this rule furnishes a fair and reasonable protection to parties primarily liable on negociable securities, it is still more necessary to enforce it, where the loser seeks to recover against the drawer or indorsers, who are only called upon to pay the bill in default of payment by the acceptor; and who, if the loser could recover from them, might be put to infinite embarrassment in making out their own title against the acceptor, or against other parties liable to them, without the production of the bill (b). It appears to be immaterial, in the application of this rule, whether the bill, note, or cheque, was lost before or after it became due, or after actual demand of payment, and an express promise to pay, or even after action brought; but, in all cases, where the defendant might be compelled, if the instrument were found, to pay it again to a bonâ fide holder, the plaintiff will be nonsuited if the loss occurs before the actual trial (c). If, indeed, he can show that, at the time when the instrument was lost, it was not in a negociable state, as if it were originally made payable to himself alone,—or if, being transferable by indorsement, it were lost by the drawer before it had been indorsed, or by the payee, to whom it had been specially indorsed, before it was indorsed by him,―the action at law will be sustainable either on the instrument itself or on the consideration;

Hansard v. Robinson, 7 B. & C. 95. As to the mode of proceeding to enforce payment of a lost bill in equity, see Warmsley v. Child, 1 Ves. sen. 341; Toulmin v. Price, 5 Ves. 238; Ex parte Greenway, 6 Ves. 812; Macartney v. Graham, 2 Sim. 285; Davies v. Dodd, 1 Wils. Ex. 110; Mossop v. Eadon, 16 Ves. 430. (b) Story on Bills, § 449.

(c) Hansard v. Robinson, 7 B. & C. 90; 9 D. & R. 860, S.C.; Poole v. Smith, Holt's N. P. R. 144, per Gibbs, C. J.; Davis v. Dodd, 4 Taunt. 602. These cases overrule Glover v. Thomson, Ry. & M. 403.

DESTROYED BILLS OF EXCHANGE-MURAL MONUMENTS. 311

because, in such cases, the defendant cannot be rendered liable to pay the amount a second time (d).

§322. Whether an action at law will lie on a destroyed bill, is a question that admits of some doubt. On one or two occasions the affirmative of the proposition seems to have been assumed (e); but, in another case, where the necessity of producing the bill was much discussed, the Court appear to have thought, that, at least as between indorsee and acceptor, the destruction of the instrument would be as fatal to the action at law as its loss, since, in either event, the acceptor would have no voucher or discharge towards the drawer; and even with respect to the general question, it was asked, how could the party liable on the bill be assured of the fact that it was destroyed? Was he to rely on the assertion of the payee, or to defend an action at the peril of costs? (ƒ)

§ 323. Secondly, the contents of writings may be proved by secondary evidence, where their production is either physically impossible, or highly inconvenient. Thus, inscriptions on walls and fixed tables, mural monuments, gravestones, surveyors' marks on boundary trees, notices warning trespassers affixed on boards, and the like, may be proved by secondary evidence, since they cannot conveniently, if at all, be produced in Court (g). A remarkable illustration of this rule was furnished in the case of a man, who was convicted of writing a libel on the wall of the Liverpool gaol, on mere proof of his handwriting (h). But in order to let in secondary evidence, it must clearly appear that the document or writing was affixed to the freehold, and could not easily be removed; therefore, where a notice was merely suspended to the wall of an office by a nail, it was considered necessary to produce it at the trial (i). If a

(d) Rolt v. Watson, 4 Bing. 273; 12 Moore, 510, S.C.; Wain v. Bailey, 10 A. & E. 616; Long v. Bailie, 2 Camp. 214, n., per Lord Ellenborough. Panu u Crowe 18v. 12 167, (e) Pierson v. Hutchinson, 2 Camp. 212, per Lord Ellenborough; Woodford Whiteley, M. & M. 517, per Parke, B.

v.

where heid, that

Drawer could not¬ recover ago liccepter on note payable to

(ƒ) Hansard v. Robinson, 7 B. & C. 95. See Story on Bills, § 448, n. 1. (g) Mortimer v. M'Callan, 6 M. & W. 68, per Lord Abinger, and 72, per his order, which Alderson, B.; R. v. Fursey, 6 C. & P. 84, 85 ; Doe v. Cole, id. 360, per Patteson,

J.; Bartholomew v. Stephens, 8 C. & P. 728, per id.

(h) Mentioned by Lord Abinger, 6 M. & W. 68.

(i) Jones v. Tarleton, 9 M. & W. 675; 1 Dowl. N. S. 625, S.C.

he had lost evors

before indoisent

this ca se overrules. Rolt vitiation, and modifies the lens as stated in the beat

312 PUBLIC REGISTERS-PAPERS IN POSSESSION OF OPPONENT.

document be deposited in a foreign country, and the laws or established usage of that country will not permit its removal, secondary evidence of the contents will be admitted, because here, as in the case of mural inscriptions, it is not in the power of the party to produce the original (j).

§ 324. On a similar ground, the existence and contents of any record of a judicial court, and of entries in any other public books or registers, may be proved by an examined copy, and in some cases, by an office copy, or even by a mere certificate (k). This rule extends to all records and entries of a public nature, in books required by law to be kept; and is adopted, because of the inconvenience to the public which the removal of such documents might occasion, especially if they were wanted in two or more places about the same time; and also, because of the public character of the facts they contain, and the consequent facility of detection of any fraud or error in the copy (1).

§ 325. Thirdly, where the document is in the possession of the adversary, who withholds it at the trial, secondary evidence of its contents will be admitted, provided that a notice to produce the original has been duly served, where such notice is requisite (m). In the application of this rule, no distinction is recognised between civil and criminal cases; but in either mode of proceeding, in order to render the notice available, it must be first shown that the instrument is in the hands, or under the control, of the party required to produce it (n). Of this fact very slight evidence will raise a sufficient presumption, where the document exclusively belongs to him, or regularly ought to be in his custody, according to the course of business; and, therefore, where a bankruptcy certificate was proved to have been obtained for the defendant, the Court presumed that it had come into his possession (o). So, if

(j) Alivon v. Furnival, 1 C. M. & R. 277, 291, 292.

(4) This subject will be discussed at length in the Chapter On Public Documents. (1) B. N. P. 226.

(m) R. v. Watson, 2 T. R. 201, per Buller, J.; Att.-Gen. v. Le Marchant, id. n.; Cates v. Winter, 3 T. R. 306.

(n) Sharpe v. Lamb, 11 A. & E. 805; 3 P. & D. 454, S.C.

(0) Henry v. Leigh, 3 Camp. 502, per Lord Ellenborough. See also Robb v. Starkey, 2 C. & Kir. 143.