SECTION IX.

OF THE NECESSITY OF PRODUCING THE BEST EVIDENCE WHICH APPEARS TO BE IN EXISTENCE.

Ir is a general and invariable rule of evidence, both in civil and criminal cases, that whether the proof be offered on the part of the prosecution or of the defence, the best evidence must be produced of which the nature of the case will allow (e). The meaning of this rule is, not that the greatest quantity of proof which might be obtained shall be imperatively required, but that nothing shall be admitted as proof, which, being in its own nature secondary, implies the existence of primary proof, unless it be shown that such primary proof is destroyed, or is out of the reach of the party desiring to use it. Thus in general, where matter in writing is to be proved, no secondary evidence can be admitted, i. e. no copy can be read, or oral evidence of its contents given, till it has been either proved that the original is lost, or is in the possession of the adversary; and further, that the party who offers the copy has done all in his power towards the production of the original, in the first case by making diligent search for it, and in the last by giving a timely notice to produce it. However, where the writing is not itself the fact to be proved, but is only one means of evidencing a fact, other means of proof may be at once adopted. Thus, the payment of money may be proved by a witness who saw it paid, or to whom the party receiving it has admitted the payment, although a receipt was given at the time (ƒ). And if several persons are present at the same transaction, and one of them only makes a memorandum to refresh his memory, the evidence of the witnesses who made no memorandum will not be excluded (g). But there are no degrees in secondary evidence; and where it is admissible at all, any species of it in the party's power may be given (h). Thus short-hand writer's notes of the contents of a deed as read at a former trial are evidence, though a copy exists. Again, the execution of a deed or will can only be proved by one of the subscribing witnesses, if he be living; but it is never necessary in point of

(e) Bul. N. P. 293.

(f) Rambert v. Cohen, 4 Esp. 213; Jacob v. Lindsay, 1 East; and see 8 C. & P. 14.

(g) 2 Stark. Ev. 2nd ed. 922.

(h) Doe d. Gilbert and others v. Ross, 7 M. & W. 102. A party having a lien on a deed refused to produce it on sub

pœna. A copy was produced and rejected, because, though attested, it had no stamp. The contents of the deed were then proved by a short-hand writer's note of them, read at a former trial; nor need the copy have been produced at all, S. C.; see Brown v. Woodman, 6 C. & P. 206.

law to call more than one, although there may be three names on the face of the instrument (i).

Proof of Loss of Document.]-Where the original of any document is lost, it must be shown that all reasonable search was made for it in the places where it is likely to be found. If the instrument be traced to the possession of a particular person, that person must be called, and it will not suffice to show an application to him for it, and his answer that he cannot find it (k). And where an individual is by law entitled to the custody of an instrument, it is absolutely necessary to call him to disprove the presumption that he possesses it (l); or if he is dead, to prove a search of his papers (m). If two parts of a deed be executed, the non-production of both must be accounted for, before secondary evidence can be given of either (n). And all the witnesses to an instrument must be proved to be dead or abroad, or not producible on diligent inquiry, before evidence of the handwriting of any can be given; but when this is done, proof of attestation by one will suffice; and, except in the case of a marksman to show the identity of the party, it is never necessary to prove the handwriting of the principal executing (0).

Proving Notice to Produce.]-Where an instrument is in the possession of a prisoner, notice to produce it must be given him as in a civil cause, or secondary evidence cannot be given (p). But this notice is not necessary where the nature of the charge implies that the instrument is in the possession of the prisoner, the instrument being the very object of the proceeding. Thus, on an indictment for stealing a security, parol evidence of its contents may be given without any notice to produce it (q). Again, on an indictment for forging a note, which the prisoner, on his apprehension, has swallowed or destroyed, no notice to produce is requisite (r). Where notice to produce is necessary, it may be by parol or in writing (s); if in writing, it should be intituled in the prosecution (); and should express, if not with literal, at least with sub

(i) Bul. N. P. 264.

(k) R. v. Castleton, 6 T. R. 236; see R. v. Denio, 7 B. & Cr. 620; R. v. Morton, 4 M. & S. 48; Williams v. Younghusband, 1 Stark. C. 139.

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

173.
(m) R. v. Piddlehinton, 3 B. & Ad.
460; Minshall v. Lloyd, 2 M. & W. 450.
(n) Bul. N. P. 254.

(0) Whitelock v. Musyrove, 3 Tyr.
See as to this case, Logan v.

541.

Allder, 3 Tyr. 557, Roden v. Ryde, and Sewell v. Evans, 4 Q. B. 626; Greenshields v. Crawford, 9 M. & W. 314.

(p) R. v. Watson, 2 T. R. 201, n. (a). (q) R. v. Aickles, 1 Leach, 294. (r) R. v. Spragge, cited by Lord Ellenborough in Hare v. Hall, 13 East, 124.

(8) Smith v. Young, 1 Campb. 440. (t) Harvey v. Morgan, 2 Stark. N. P. C. 17.

stantial accuracy, the document required, so as to leave no reasonable doubt which is meant. For a notice to produce "all letters, papers, and documents relating to the cause," has been held too vague (u); but a different opinion seems now to prevail (x). Notice to produce" all letters written by plaintiff to defendant relating to matters in dispute in the action," was held good, though no dates were given, because the names of the parties were mentioned (y). The mere fact of an instrument being in court, in possession of the adversary, will not justify the reception of secondary evidence, except after proper notice to him to produce it (z). Nor will a party who is protected from producing a deed by holding it as trustee for one of the parties, be compelled to state its contents (a). If it is not shown that the instrument was ever in the prisoner's possession, no notice is necessary (b). The notice must be served either on the prisoner or his attorney, as in civil cases (c), in time sufficient to enable the prisoner to produce the paper (d), that is, before the first day of the sessions, if the prisoner reside at a distance from the sessions town (e), and if, in consequence of refusal to produce an original document on notice, secondary evidence of it is given, it is too late to put in the original (ƒ).

Hearsay not admissible.]—It follows as a plain example of this rule, that hearsay, that is, the statement of some third person, whether oral or in writing (g) is not to be received; because the party himself who is represented as making the assertion might be called to prove it on his

(u) France v. Lucy, Ry. & M. N. P. C. 341. See Jones v. Edwards, M'Clell. & Y. 139.

(x) Rogers v. Custance, 2 M. & Rob. 179, Q. B. in banc : exactly contrary to France v. Lucy, which however was not cited.

(y) Jacob v. Lee, 2 M. & Rob. 33, Patteson, J.

(z) Bate v. Kinsey, 4 Tyr. 662; 1 Cr., M. & R. 38, S. C.; see 7 M. & W. 122; 12 East, 237; 8 Taunt. 327; 6 Bing. 337.

(a) Davies v. Waters, 9 M. & W. 608.

(b) An officer called to produce a warrant under which he had acted, swore he lost it in the affray which ensued on his reading it at the offender's house, and had searched his pockets for it shortly after, while taking him to gaol, without finding it. A boy proved a search in the road between the house

and the place where it was missed. No notice to produce, or search of the offender's house was proved; Vaughan, B., admitted secondary evidence, R. v. Hood and others, 1 Mood. C. C. 281.

(c) Attorney-General v. Le Merchant, 2 T. R. 203, n.; Houseman v. Roberts, 5 C. & P. 394, Gurney, B.

(d) Bryan v. Wagstaff, Ry. & M. N. P. C. 327.

(e) Trist v. Johnson, 1 M. & Rob.. 259. In R. v. Ellicombe, id. 260, notice to produce was served on prisoner in gaol during an assizes, viz. on 18th. Trial on 20th. Prisoner's house was ten miles from assize town. Service held too late. See Byrne v. Harvey, 2 M. & Rob. 89.; Firkin v. Edwards, 9 C. & P. 478.

(f) Doe d. Thompson v. Hodgson, 12 Ad. & E. 135; Houseman v. Roberts, 5 C. & P. 94.

(g) Reg. v. Worth, 12 L. J. (M. C.) 47; 4 Q. B. 132.

oath. But the fact of a recent complaint made in case of rape may be given in evidence as a part of the transaction, to sustain the prosecutrix in her story, though not to establish the particulars of her narrative (h). Expressions used in the course of a transaction may be proved as part of it, though not as showing any independent fact which might be deposed to by competent witnesses (i). As dying declarations, viz. the statements of a party mortally injured, in the immediate prospect of death, are only admitted in trials for homicide (k), on account of the solemnity attached to the words of a man who believes himself dying, they do not fall within the scope of this work.

Previous Declarations.]- The previous statements of a witness relative to the transaction, whether made on oath or not, may be adduced to contradict him, after he has, on cross-examination, denied making them ().

SECTION X.

OF DOCUMENTARY EVIDENCE.

DOCUMENTARY evidence is not often requisite to any extent on the trial of prisoners at sessions. The following enumeration of the principal description of documents proveable, with the modes of establishing them, may therefore suffice.

Statutes of the Realm, or acts of parliament. Of these it is enough to observe, that " public acts," or acts relating to the general interests of the kingdom, or of any large portion of it (as, ex. gr. Bedford Level), or of a whole profession (as, ex. gr. the body of the clergy), are judicially noticed, and need not be proved further than by the production of the printed statute book, or of the queen's printer's copy, if it is a recent act (m). But in the case of a "private act,” viz. an act relating only to a "particular species of men or some individuals" (n),

(h) R. v. Clarke, 2 Stark. N. P. C. 242; R. v. Brazier, 1 East, P. C. 444; see Reg. v. Osborne, 1 C. & M. 622. Semb., the terms in which the complaint was made cannot be proved in detail as independent evidence with a view not to shew the witness's credit and accuracy of recollection, but to establish who the prisoners committing the offence were, Reg. v. Megson, 9 C. & P. 420; Reg. v.

Gutteridge, id. 472.

(i) See R. v. Gordon (Lord George), 21 St. Tr. 536; and Aveson v. Lord Kinnaird, 6 East, 193.

(k) Post, p. 523; R. v. Lloyd, 4 C. & P. 233.

(1) 2 Phill. Ev. 9 ed. 432-434.
(m) R. v. Barnett, 3 Campb. 344.
(n) Gilb. Ev. 39, per Gilbert, C. B.

a copy must be put in and proved to have been examined with the parliament roll; unless, as is now usually the case, it contains a proviso that it shall be deemed a "public act, and taken notice of as such;" in which case it may be proved as any other public act may (9). Even if it provides that it "shall be printed by the king's printer, and that a copy so printed shall be evidence of it," a copy purporting to be so printed will be evidence, without proving it to have been purchased from the king's printer (p).

Rules, Orders and Regulations made by Poor Law Commissioners, have the same validity as if embodied in 4 & 5 W. 4, c. 76. And by 8 Vict. c. 101, s. 71, any copy thereof printed by the printer duly authorized by the queen, her predecessors or successors shall, after lapse of 14 days from the date thereof, be received in evidence, and judicially taken notice of, and shall, till the contrary is shown, be deemed sufficient proof that such order was duly made and is in force. Proclamations, Addresses, and the Articles of War, as printed by the queen's printer, are considered as sufficiently proving themselves by their mere production by a witness who purchased them (q).

The London Gazette, published by the authority of government, is generally sufficient evidence of any act of state or public matter so announced. But the Gazette is no proof of any private matters respecting individuals contained therein (r).

The public Books of recognized public Bodies are, in many cases, Evidence. Thus the entries in books of the navy office are sufficient evidence that a person of a particular name is dead, but not of the identity of that person, which, if doubtful, must therefore be proved by other evidence (s).

General History may be referred to as proving a public matter relating to the government of the kingdom in general, but not any particular custom, or other matter affecting the private rights of individuals. And even books of general history, as topographical works, are not admissible on subjects of public history, if any documents from which they were compiled be capable of proof (t).

Surveys and Inquisitions taken on public occasions are evidence to

(o) 10 Bing. 404, Beaumont v. Mountain; Woodward v. Cotton, 4 Tyr. 689, 695; 1 C. M. & R. 47, S. C.

(p) Ante, p. 222; 2 Phill. Ev. 9 ed. 129; Greswold v. Kemp, C. & Mar. 635; see T. & Gr. 859, n.

(q) Ante, p. 222.

(r) R. v. Holt, 2 T. R. 436.
(s) Bul. N. P. 243.

(t) Stainer v. Droitwich (Burgesses), as to Dugdale's Monasticon, the records from which it was taken being in the augmentation-office, Salk. 281.