principal. Freeman v. Ashell, 2 B. & C. 494, 9 E. C. L. See Boyle v. Wiseman, 10 Ex. 647.1

United States v. Reyburn, 6 Pet. 352; Minor v. Tillotson, 7 Id. 99; Cary v. Campbell, 10 Johns. 363; Pendleton v. Commonwealth, 4 Leigh, 694; Van Dusen v. Frink, 15 Pick. 449; Braintree v. Battles, 6 Vt. 395; Bennet v. Robinson, 3 Stew. 227. Except when the paper has been wantonly destroyed by the party himself. Price v. Tallman, 1 Coxe, 447; Broadwell v. Riles, 3 Hals. 275: or he has had it in his power to supply the loss. McCalley v. Franklin, 2 Y. 340. Loss must be shown. Sterling v. Potts, 2 Southard, 773; Boynton v. Rees, 8 Pick. 329; Bozerth v. Davidson, 2 Penn. 617; Dawson v. Graves, 4 Call, 127; United States v. Porter, 3 Day, 283: Cauffman 2. The Congregation, 6 Bin. 59; Andrews r. Hooper, 13 Mass. 472; Taunton Bank v. Richardson, 5 Pick. 436; Mitchell v. Mitchell, 3 Stew. & P. 81; Boother. Dorsey, 11 G. & J. 247; Parks v. Dunkle, 3 W. & S. 291 ; [Brashears v. State, 58 Md. 563; Frazee 1. State, 58 Ind. 8; Sager v. State, 11 Tex. App. 110; Caldwell v. State, 63 Ind. 283.] The party himself is competent to prove the loss to let in secondary evidence. Chamberlain . Gorham, 20 Johns. 144; Blanton v. Miller, 1 Hayw. 4; Donelson v. Taylor, 8 Pick. 390; Jackson v. Johns, 5 Cow. 74; Jackson v. Letts, 6 Id. 377; 9 Id. 208; Grimes v. Talbot, 1 Marsh. 205; Shrawsders r. Harper, 1 Harring. 444; Hamit v. Lawrence, 2 A. K. Marsh. 366; Bass v. Brooks, 1 Stew. 44; McNeil r. McClintock, 5 N. H. 355; Adams v. Leland, 7 Pick. 62; Ward v. Ross, 1 Stew. 136; Davis v. Spooner, 3 Pick. 284; Patterson v. Winne, 5 Pet. 233; Porter v. Ferguson, 4 Fla. 102; Wade v. Wade, 12 Ill. 89; Pharis v. Lambert, 1 Sneed, 228; Glassell v. Mason, 32 Ala. 719. Contra Sims v. Sims, 2 Rep. Const. Ct. 225: its previous existence having been first proved aliunde. Mecker et al. v. Jackson, 3 Y. 442. He is sworn specially in such cases to make answer. Jackson v. Packhurst, 4 Wend. 309. The evidence of loss is addressed to the court alone. Jackson v. Brier, 16 Johns. 193; Page v. Page, 15 Pick. 368; Witter v. Latham, 12 Conn. 392. The instrument must be proved to have been duly executed. Kimball v. Morrell, 4 Greenl. 368; McPherson v. Rathbone, 2 Wend. 216; Jackson v. Vail, Id. 175; [People v. Hunt, 49 Cal. 653; Hampshire v. Floyd, 39 Tex. 103.] A party to a cause is a competent witness to prove the loss or destruction of an original paper, in order to the introduction of collateral evidence of its contents. The affidavit of the party is a mode proper to be adopted for the introduction of the evidence of the party to the cause of the loss of an original paper, and upon other collateral questions such affidavit should exclude all presumption that the party may have the paper in his own possession. Woods v. Gasatt, 11 N. H. 442. See Colman v. Walcott, 4 Day, 388. When one party to a suit is sworn to prove the loss of a written instrument with a view to secondary evidence, though the adverse party may be examined to disprove the loss and account for the instrument, yet he cannot, under the color of this right, give testimony denying directly or indirectly the former existence of the instrument, or the matters designed to be evinced by it. The party affirming the loss cannot be sworn, until after the former existence of the instrument has been established by independent evidence; and when sworn, his testimony, as well as that of his adversary, is, in general, to be confined to the single question of loss. Woodworth v. Barker, 1 Hill, 171. It is not, however, a universal and inflexible rule that a plaintiff must himself make oath to the loss of a paper, of which he is presumed to have the custody, and of diligent search for it, before he can introduce secondary evidence of its contents. Foster r. Mackay, 7 Metc. 531. Presumptive evidence of the loss is not enough. Taunton Bank v. Richardson, 5 Pick. 436; Jackson v. Woolsey, 11 Johns. 446; Patterson . Winne et al., 5 Pet. 233; S. C., 9 Id. 633; Jackson v. Root, 18 Johns. 60; Central Turnpike v. Valentine, 10 Pick. 142; Bouldin v. Massie, 7 Wheat. 122; Jackson v. Mely, 10 Johns. 374. A deposition should not be rejected because the witness speaks of papers not produced, if it appear that the papers are such as would not probably be preserved for so great a length of time, and are not in the possession or in the power of the witness or the party who offers the deposition. Tilghman v. Fisher, 9 W. 441. Proof that a ship's papers were seized with her, and delivered to the court by which she was condemned, but that a certain paper belonging to her could not be found there, on search, is sufficient evidence of loss to warrant parol evidence of its contents. Francis v. Ocean Ins. Co., 6 Cow. 404; Braintree v. Battles, 6 Vt. 395. Ex parte afiidavits of witnesses are not admissible to prove the loss or contents of a written instrument. Viles v. Moulton, 13 Vt. 510. It is enough to show reasonable diligence. Minor v. Tillotson, 7 Pet. 99. When proof by a witness that he assisted the plaintiff in searching among his papers is not sufficient, see Sims v. Sims, 2 Rep. Const. Ct.

L

Where it is the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is that it is lost or destroyed. R. v. Stourbridge, 8 B. & C. 96, 15 E. C. L. And where an attorney or officer is applied to generally for documents, the court will assume, until the contrary is proved, that all the documents relating to the subject of inquiry are produced. M'Gahey v. Alston, 2 M. & W. 213. But where an attorney was applied to for a document which related to his own private affairs, and by his direction a search was made in his office, and the document was not found, the Court of Queen's Bench refused to say that the court of quarter sessions was wrong in deciding that there had not been a sufficient search for the purpose of rendering secondary evidence admissible. R. v. Saffron Hill, 1 E. & B. 93, 72 E. C. L.; 22 L. J., M. C. 22.

It is not necessary in every case to call the person to whose custody the document is traced. R. v. Saffron Hill, ubi supra. But some *doubt seems to have existed whether, if he be not called, evidence can be given of answers made by him to inquiries respect[*9 ing the document. Such evidence appears to have been received in R. v. Morton, 4 M. & S. 48, 30 E. C. L., but was rejected in R. v. Denio, 7 B. & C. 620, 14 E. C. L. In R. v. Kenilworth, 7 Q. B. 642, 53 E. C. L., the court seems to incline to the opinion that for this preliminary purpose such evidence ought to be received; in R. v. Saffron Hill, 1 Ê. & B. 93, 72 E. C. L., evidence of this kind

225. Evidence which leaves the mind in doubt whether success would not have attended a further search will not do. Studdart v. Vestry, 2 G. & J. 227. A search for a lost paper made more than a year before the trial, is not sufficient to justify the introduction of secondary evidence of the paper. Porter v. Wilson, 13 Pa. 641. See further as to what is reasonable diligence. Fletcher v. Jackson, 23 Vt. 581; Hall v. Van Wyck, 10 Barb. 376; Meakim v. Anderson, 11 Id. 215. If an instrument be lost to the party in consequence of an irregular or defective transmission by mail, it will let in secondary evidence. U. S. Bank v. Sill, 5 Conn. 106; [Augur v. Whittier, 117 Mass. 451.] See Thalhimer v. Brinckerhoff, 6 Cow. 90. Secondary evidence of the contents of a written instrument is admissible when it has been destroyed voluntarily, through mistake or by accident. Riggs v. Taylor, 9 Wheat. 483; Bank of Kentucky v. McWilliams, 2 J. J. Marsh. 256; Kennedy v. Fowke, 5 H. & J. 63; McDowell v. Hall, 2 Bibb, 610; Maxwell v. Light, 1 Call, 117; Fouax v. Fouax, 1 Pennington, 166; Brown v. Littlefield, 7 Wend. 454.

In order to admit secondary evidence as to the contents of a lost paper, it must appear that all the search reasonably practicable has been made to find the paper alleged to be lost. Holbrook v. School Trustees, 28 Ill. 187. If a person is deprived by fraud of the possession of written instruments which belong to him, secondary evidence of their contents is admissible. Grimes v. Kimball, 3 Allen, 518. One who has voluntarily and deliberately destroyed a written document cannot be permitted to testify to its contents, without evidence to rebut the presumption of fraud. Joannes v. Bennett, 5 Allen, 169.

Copies of letters written by the seconds engaged in a duel, may be introduced when it is shown that the originals were last seen in the possession of an officer of the United States Army, absent on duty. Moody v. Commonwealth, 4 Metc. 1. S.

On proof of the destruction of the original an uncertified copy of a telegram was held to be admissible. State v. Hopkins, 50 Vt. 316. On a trial for perjury, the contents of the declaration in the suit in which the perjury is alleged to have been committed may be proved, when the declaration is proved to have been filed and it cannot be found. Gordon v. State, 48 N. J. Law, 611. Where the question is whether a girl is a minor testimony as to her size and general development will not be received, to prove her age where that is susceptible of direct proof. State v. Griffith, 67 Mo. 287.

had been received, but as the court thought that, even if receivable, it was insufficient for the purpose, the point remained undecided. However, in R. v. Braintree, 28 L. J., M. C. 1, the Court of Queen's Bench thought that answers to such inquiries were admissible to satisfy the conscience of the court that the search had been a reasonable one.

Secondary evidence-documents in the hands of adverse party. In the case where a document is in the hands of an adverse party, a notice to produce it in court must be given to him, before secondary evidence of its contents can be received. Its object is not, as was formerly thought, to give the opposite party an opportunity of providing the proper testimony to support or impeach the document, but it is merely to enable him to produce it if he likes at the trial, and thus to secure the best evidence of its contents. Dwyer v. Collins, 7 Ex. R. 639. There is no distinction between civil and criminal cases with regard to the production of documents after notice given to produce them, and with regard to the admissibility of secondary evidence in case of their non-production. R. v Le Marchand, coram Eyre, B., 1 Leach, 300 (n). În R. v. Layer, for high treason, it was proved by a witness, that the prisoner had shown him a paper partly doubled up, which contained the treasonable matter, and then immediately put it into his pocket; and no objection was made to the witness giving parol evidence of the paper. 6 State Trials, 229 (fo. ed.); 16 Howell's St. Tr. 170, S. C.; R. v. Francia, 15 Howell's St. Tr. 941.

But where it was proved that a ring which had been lost had an inscription upon it, and that the prisoner had been seen with a ring like the one which had been lost and with an inscription upon it, the counsel for the crown was not permitted to ask what was the inscription upon the ring seen in the prisoner's possession, no notice to produce the ring having been given to the prisoner. R. v. Farr, 4 F. & F. 336. See R. v. Francis, ante, p. 2.

A notice to produce will let in secondary evidence in criminal as well as civil cases, where the document to be produced appears to have been in the hands of the agent or servant of the prisoner under such circumstances, as that it might be presumed to have come to his own hands. Colonel Gordon was indicted for the murder of Lieut.Colonel Thomas in a duel. The letter from Gordon containing the challenge was carried by Gordon's servant, and delivered to Thomas's servant, who brought a letter in answer and delivered it to Gordon's servant; but it did not appear in fact, that the letter was ever delivered to Gordon himself. Baron Eyre permitted an attested copy of the latter letter to be read against the prisoner, and left it to the jury as evidence, if they were of opinion that the original had ever reached the prisoner's hands. Hotham, B., concurred; but Gould, J., thought that positive evidence ought to be given that the original had come to the prisoner's hands. R. v. Gordon, O. B. 1784; 1 Leach, 300 (n). Though the evidence was rightly received *there seems to be an error in leaving the preliminary question of fact

*10]

to the jury; all such questions are for the court alone. See Boyle v. Wiseman, infra, p. 13. Where a prisoner's attorney produced a deed as part of the evidence of his client's title upon the trial of an ejectment, in which the prisoner was lessor of the plaintiff, and the deed was delivered back to the attorney when the trial was over, it was held to be in the prisoner's possession, and the prisoner not producing it in pursuance of notice, secondary evidence of its contents was received. Per Vaughn, B., R. v. Hunter, 4 C. & P. 128, 19E. C. L. But in order to render a notice to produce available, the original instrument must be shown to be in the possession of the opposite party, or of some person in privity with him, who is bound to give up possession of it to him. Therefore, where a document is in the hands of a person as a stakeholder between the defendant and a third party, a notice to produce will not let in secondary evidence of its contents, Parry v. May, 1 Moo. & R. 279. See also Laxton v. Reynolds, 18 Jur. 963, Exch.

Secondary evidence-notice to produce-when dispensed with. Where from the nature of the prosecution the prisoner must be aware that he is charged with the possession of the document in question, a notice to produce it is unnecessary. Thus, upon an indictment for stealing a bill of exchange, parol evidence of its contents may be given, without any proof of a notice to produce. R. v. Aickles, 1 Leach, 294; 2 East, P. C. 675. So upon the trial of an indictment for administering an unlawful oath, it may be proved by parol that the prisoner read the oath from a paper, although no notice to produce that paper has been given. R. v. Moor, 6 East, 419 (n). See, also, R. v. Farr, supra, p. 2, where the prisoner must have known that he was charged with the possession of the ring, although this point does not appear to have been taken.

But an indictment for setting fire to a dwelling-house, with intent to defraud an insurance office, is not such a notice to the prisoner as will dispense with a notice to produce the policy of insurance, so as to allow the prosecutor to give secondary evidence of its contents. R. v. Ellicombe, 5 C. & P. 522, 24 E. C. L.; 1 Moo. & R. 260; R. v. Kitson, 1

'The rule that a party cannot give secondary evidence of the contents of papers in the possession of the other party, unless he has given reasonable notice for the production of the papers at the trial, does not apply to cases in which the opposite party must know from the nature of the suit or prosecution, that he is charged with the fraudulent possession of the papers. State v. Mayberry, 48 Me. 218; Commonwealth v. Messenger et al., 1 Bin. 273; People v. Halbroke, 13 Johns. 90. Or when the party has fraudulently obtained possession, or has it in court. Pickering v. Meyers, 2 Bail. 113. [A notary may testify to the contents of the notice of protest sent by him to the endorser, though the latter has not been notified to produce such notice at the trial. Brooks v. Blaney, 62 Me. 456.] If the plaintiff is deprived of the instrument on which the action is brought by a fraudulent and forcible act of the defendant, the plaintiff may give secondary evidence of its contents, and he is not obliged to notify the defendant to produce it. Gray v. Kernahan, 2 Rep. Const. Ct. 65. Ön a trial for forgery it is competent to prove by the party attempted to be defrauded, without notice to produce papers, that the defendant had previously brought to him the draft of an instrument which he saw and read, but never executed, and which was different from the deed afterwards brought to him as the same, and as such executed by him. State v. Shurtliff, 18 Me. 368. S.

Dears, C. C. R. 187; 22 L. J. M. C. 118. Upon an indictment for perjury it was held that secondary evidence of a draft last seen in the possession of the prisoner was inadmissible, no notice to produce having been given and the indictment not operating as a notice. It must be observed, however, that the course which the evidence took at the trial was such, that a great deal turned on the contents of the draft, and on alterations alleged to have been made in it, and it would appear that this circumstance was regarded by several of the judges as of great importance. Reg. v. Elworthy, L. R., 1 C. C. R. 103; 37 L. J., M. C. 3.

A notice to produce is not requisite where the document tendered in evidence is a duplicate original; per Lord Ellenborough, Philipson v. Chace, 2 Campb. 110; per Bayley, J., Colling v. Treweck, 6 B. & C. 394, 13 E. C. L.; or a counter part; Burleigh v. Stibbs, 5 T. R. 465; Roed. West v. Davis, 7 East, 353; Mayor of Carlisle v. Blamire, 8 East, 487. Or where the instrument to be given in proof is a notice, as a notice of action; Jory v. Orchard, 2 B. & P. 39; a notice of the dishonor of a bill of exchange; Keene v. Beaumont, 2 B. & P. 288; or a notice to quit; 2 B. & P. 41. Nor is a notice to produce necessary where *the party has fraudulently or forcibly obtained possession of the *11] document, as from a witness in fraud of his subpoena duces tecum.

Goodered v. Armour, 3 Q. B. 956, 43 E. C. L.2

It is sufficient to dispense with a notice to produce, that the party in possession of the document has it with him in court. Dwyer v. Collins, 7 Ex. R. 639, overruling Bate v. Kinsey, 1 Cr. M. & R. 38.

Secondary evidence-notice to produce-form of. It is not necessary that a notice to produce shall be in writing; and if a notice by parol and in writing be given at the same time, it is sufficient to prove the parol notice alone. Smith v. Young, 1 Campb. 440; 3

1 Where a copy of a paper is delivered to a party, and the original of the same is kept by the person delivering the copy, the original cannot be read in evidence to affect the party to whom the copy is delivered, with a knowledge of its contents, without notice being first given to the latter to produce such copy, and a sufficient ground being laid for the admission of a copy in evidence. Commonwealth v. Parker, 2 Cush. 212. Parol evidence may be given of the contents of a paper not produced or accounted for, if the object is not to prove the facts which the writing would prove, but only something collateral, as its identity with or difference from another writing. West v. State, 2 Zab. 212.

2 When there was evidence sufficient to warrant the belief that the person or agent of whom the defendant claimed had got possession of a bill of sale, from himself to the plaintiff, and fled the country with it, it was held that further proof of search, or of notice to the defendant to produce it, was unnecessary. Every presumption is to be made in odium spoliatoris. Cheatham v. Riddle, 8 Tex. 162. Secondary evidence of the contents of a writing, which is in the possession of a third person residing out of the jurisdiction of the court, and which cannot be presumed to be in the possession of the opposite party, is admissible without giving previous notice to said party to produce the original. Shephard v. Giddings, 22 Conn. 282. Parol evidence is admissible to show the contents of a paper beyond the jurisdiction of the court. Brown v. Wood, 19 Mo. 475. The naked fact of voluntary destruction, without explanation, of a paper, is held such presumptive evidence of fraudulent design as to preclude all secondary evidence. Bayley v. McMickle, 9 Cal. 430. S.