Secondary evidence, when admitted.

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ple of the estate, if this deed does not convey it if then he produces the deed under which he claims, shall it not be taken to be a good deed, (so far as relates to the execution,) as against himself?" The other judges concurred in opinion, and a new trial was granted. The result therefore at present appears to be, that when a party to a suit, in pursuance of a notice, produces an instrument, to which he is a party, and under which he claims a beneficial estate, it will not be necessary that the other party, a stranger to the instrument, should call an attesting witness to prove the execution (a); but that, in other cases, the execution ought to be regularly proved by the party who offers the instrument as part of his evidence in the cause*. If a party intend to use a deed or any other written instrument in evidence, he ought to produce the original, if he has it in his possession; but, if the instrument is in the possession of the other party, who refuses to produce it after a reasonable notice, or if the original is lost or destroyed, secondary evidence, which is the best that the nature of the case allows, will in that case be admitted. The party, after proving any of these circumstances, to account *for the absence of the original, may read the counter-part; or, if there is no counter-part, an examined copy; or, if there should be no examined copy, he may give parol evi

*The plaintiff may have a rule nisi, calling on the defendant to produce a deed before the commissioners of the stamp-office, to be stamped; or to give the plaintiff a copy of a deed, in order that he may declare upon it.. Cooke v. Stocks, 36 G. 3. K. B. 1 Tid. Prac. 486. Bateman v. Philips, 52 G. 3. C. P. ib. And where the plaintiff commenced an action of covenant on an indenture of assignment of a lease, only one part of which had been executed, and that was in the hands of the defendant, the court of Common Pleas granted the plaintiff a rule nisi, for reading and taking a copy of this part. Blakey v. Porter, 1 Taunt. 386. See ante, p. 336.

(a) So, in Betts v. Badger, 12 Johns. Rep. 223. (in which the court do not appear to have been aware of the decision in 3* Taunt.) it was decided, that where a deed was produced, pursuant to notice, by a person who was a party to it, and derived a benefit from it, it was prima facie to be taken to be duly executed.

dence of the contents (1). Proof by a witness, that the paper in question was thrown aside as useless, and that he believes it to be lost or destroyed, will be sufficient to let in the secondary evidence (2). And, in a late case, where it appeared, that the defendant had acknowledged the receipt of a letter of a particular date, which he refused to produce at the trial, it was ruled, that an entry in a letterbook, (purporting to be a copy of a letter of the same date from the plaintiff to the defendant, and inserted by a deceased clerk, who kept the book according to the course of business, and with great punctuality,) was admissible. evidence of the contents of the letter in question (3). It is scarcely necessary to observe, that the rule in this respect is precisely the same both in criminal and in civil cases (a).

If the ground for admitting the secondary evidence is, that the original has been lost, it ought to be shown that every reasonable inquiry has been made, and the last person, into whose possession it is traced, should be called to give some account of the instrument (b). Thus, in a case (3), Pritt v. Fairclough, 3 Campb.

(1) Villiers v. Villiers, 2 Atk. 71. (2) R. v. Mr. Just. Johnson, 7 305. East 66. 8 East 284.

(a) In the following cases, secondary evidence was admitted of the contents of a writing proved to have been lost. Livingston v. Rogers, 1 Caines' Cus. in Error, xxxvii. S. C. 2 Johns. Cas. 488. Jackson d. Donaldson v. Lucett, 2 Caines' Rep. 363. Jackson d. Livingston and others v. Neely, 10 Johns. Rep. 374. Spencer v. Spencer, Rep. C. C. U. S. First Circt. 622. Jones et al. v. Fales, 5 Mass. Rep. 101. Drum v. Lessee of Simpson, 6 Binney 478. Jackson d. Gillespy and others v. Woolsey, 11 Johns. Rep. 446, Den d. Baker v. Webb, 1 Hayw. 71. Rochell ads. Holmes, 2 Bay 487. Anderson v. Robson, Id. 495. Vide post, 356 n.

(b) Vide Angel v. Felton, 8 Johns. Rep. 149. Little v. Lessee of Delancey, 5 Binney 266. Meyer and another v. Barker, 6 Binney 228. Cary v. Campbell & Cook, 10 Johns. Rep. 363. Where a written agreement was placed in the hands of a common friend, who upon his removal from the scene of the transaction.

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of settlement, where it appeared that an indenture of apprenticeship consisted of two parts, one of which had been destroyed, and the other had come to the hands of a person who was living and had not been subpoenaed, but had been heard to say, that he could not find the part, and did not know where it was, the court of King's Bench was of opinion, that this was not a sufficient ground for admitting parol evidence of the contents (4). But if the indenture were to be traced into the hands of a deceased person, who, in answer to inquiries respecting it, had stated, that it was destroyed while in his possession, any further search for *this part of the instrument would be unnecessary and nu(4) R. v. Castleton, 6 T. R. 236. R. v. St. Sepulchre, 2 Bott. 353.

placed it with his father, who died; and after proof of these facts a witness swore that after the father's death, he, together with the son-in-law of the father, to whom all his papers came, made diligent search among the father's papers, but could not find the writing; it was held that this was sufficient proof of the loss, to lay a ground for one of the parties to prove the contents, without the oath of the son-in-law himself as to the search and not finding. Caufman v. Congregation of Cedar Spring, 6 Binney 59. Evidence by a person that he had delivered a deed to the clerk of the county to be recorded, and that search had been made in the clerk's office, and that it could not be found, is not sufficient evidence of the loss of a deed, to entitle the party to read a copy in evidence, unless it be shown that the deed was never re-delivered by the clerk. Jackson d. Dunbar and others v. Todd, 3 Johns. Rep. 300. To entitle a party to give parol evidence of the contents of a will, alleged to be destroyed, where there is not sufficient evidence to warrant the conclusion of its absolute destruction, the party must show that he has made diligent search and inquiry after the will, in those places where it would most probably be found if in existence, as in the office of the surrogate of the county where the testator died, or in the office of the judge of probates, or that inquiry had been made of the executors. Jackson d. Bush & others v. Hasbrouck, 12 Johns. Rep. 192.

gatory. Thus, in a very late case (1) on a similar question of settlement, where it appeared, that only one part of the indenture was executed, that the pauper and master were both dead at the time of the trial, and that an inquiry had been made of the pauper, (who said, that the indenture had been given up to him after the expiration of the apprenticeship, and that it had been burnt,) and also of the daughter and executrix of the master, (who said, she knew nothing about it,) under these circumstances the court of King's Bench were of opinion, that a sufficient inquiry had been made to render parol evidence of the contents admissible; and the distinction, taken between this case and that of the King and Castleton, was, that, in the former, there was evidence of a fact which made a further search necessary, but that here a fact appeared in evidence, which made a search nugatory. If two parts of a deed, or more, have been executed, the loss or destruction of all the parts should be proved, before secondary evidence of the contents can be received (2); and the original deed ought to be proved to have been duly executed (3), unless proof of the execution would be dispensed with, if the original itself were produced, or unless the want of the original is occasioned by the default of the other party, in which case, the execution may reasonably be presumed against him. So where an original note of hand is lost, a copy cannot be read in evidence, unless the note is proved to be genuine (4) (a).

(1) R. v. West, Riding of Yorkshire, Easter Term, April 17, 1815. MS.

(2) Bull. N. P. 254. R. v. Castleton, 6 T. R. 236.

(3) R. v. Sir T. Culpepper, Skinner, 673. per Holt, C. J.

(4) Per Ld. Hardwicke, C. J. Goodier v. Lake, 1 Atk. 446.

(a) The defendant entered into an obligation with the plaintiff as his surety, at Caraccas, which not being performed, the plaintiff, the surety, was compelled by proceedings at law, to pay the amount for his principal: in an action by the surety against the principal, it was held, that a copy of the obligation, (which according to the laws of the Spanish colonies, was made before a

The loss of a deed, by time and accident, or by any other casualty, is a sufficient reason for dispensing with a profert in pleading, when otherwise a profert might be necessary (5) (b); or it may be pleaded, that the deed is in the

(5) Read v. Brookman, 3 T. R. 151. Bolton v. Bp. of Carlisle, 2 H. Black. 259.

notary, who kept the original and delivered copies to the parties,) authenticated according to the laws of Spain, connected with evidence that the original could not be procured, and with proof of admissions by the defendant of its authenticity, and of the breach of the contract, was sufficient, without producing the decree against the plaintiff, and the original obligation, or a sworn copy of it. "It is unnecessary" says Thompson, Ch. J. in delivering the opinion of the court, in this case, definitively to say, whether the lex loci ought so far to prevail, as to require these notarial copies to be admitted in evidence here, in the same manner as in the Spanish tribunals. I am inclined to think, however, they ought not to be received as sufficient, per se; but I cannot think they are to be entirely disregarded and treated as mere nullities. They ought to be received as forming a part of the inferior evidence of the execution of the instrument, when the original cannot be produced and proved. It appears to be a part of the official duty of the notary to give copies; he is specially intrusted with that power; and in giving such copies, he acts under his oath of office. The instrument is executed before him in his official capacity, and an official certified copy, necessarily implies that he saw the instrument executed. In what respect does this differ from an examination upon a commission? He can only swear he saw the instrument executed, and that the copy furnished by him is under oath. Besides, we ought to be cautious in declaring that we will receive nothing short of the examination of the notary, under a commission, as there is no mode of enforcing such examination; nor is a sworn copy proved by a person who has compared it with the original, any higher or better evidence than that furnished by the notary under his oath of office. But the evidence furnished in the case before us is more satisfactory than either, arising out of the repeated, uniform, and uncontradicted confessions of the defendant, contained in his letters, and to witnesses whose testimony was before the jury." Mauri v. Heffernan, 13 Johns Rep. 58. (b) Vide Cutts v. United States, Rep. C. C. U. S. First Cirot. 69.