very complicated one, depending on the nature of the case and the document itself and its bearing on the cause." And it was accordingly held in that case, that where a party to a suit, or his attorney, has a document with him in court, he may be called on to produce it without previous notice, and in the event of his refusing, the opposite party may give secondary evidence.

dence must be

§ 466. The expression that secondary evidence of a Secondary evidocument is receivable must not be understood to mean legitimate that conjectural, or any other form of illegal evidence of evidence. it, will be received. Secondary evidence must be legitimate evidence, inferior to the primary solely in respect of its derivative character. Thus, the copy of a copy of a lost or destroyed document is not receivable in evidence, even though, as it seems, the absence of the first copy has been satisfactorily explained (o). So, previous to the 14 & 15 Vict. c. 99, where a document was lost, a copy of it made by the party to the suit was not admissible, unless proved by evidence aliundè to be accurate; for as he was not a competent witness for himself, so what he wrote could not be evidence for him (p). And here it is of the utmost importance to remember that there are no degrees of secondary evidence. A party entitled to resort No degrees of secondary evito this mode of proof may use any form of it; his not dence. adducing, or even wilfully withholding, some other likely to be more satisfactory is only matter of observation to the jury. Thus, the evidence of a witness who has read a lost or destroyed document is perfectly receivable, although a copy or abstract of it may be in existence, and perhaps even in court. This rule, so elementary in its nature, was not established until the case of Doe d. Gilbert v.

(0) Reeve v. Long, Holt, 286; Anon. Skinn. 174; Liebman v. Pooley, 1 Stark. 167; Everingham v. Roundell, 2 Moo. & R.

138; Gilb. Ev. 9, 4th Ed.
(p) Fisher v. Samuda, 1 Camp.
192-3.

Ross (q) in 1840; previous to which, however, various dicta were to be found on the subject, and the prevailing opinion was rather the other way (r). But that decision is in perfect accordance with the general principles of evidence, and a contrary doctrine would open the widest door to fraud and chicane. At the trial of that case on the circuit, in order to prove, by secondary evidence, the contents of a marriage settlement, a copy which was tendered having been rejected for want of a stamp, a short-hand writer's notes of a former trial at which the settlement was proved were offered and received by the judge. The jury having found for the plaintiff, it was objected before the court in banc that this evidence ought not to have been received, especially as a copy of the deed was proved to be in existence; and several of the previous cases were cited. The court, however, refused even a rule to shew cause on this point; Parke, B., in the course of the argument observing to the counsel, "You must contend then, that there is to be primary, secondary, and tertiary evidence. If an attested copy is to be one degree of secondary evidence, the next will be a copy not attested; and then an abstract: then would come an inquiry, whether one man has a better memory than another, and we should never know where to stop." And in delivering judgment his Lordship said, "As soon as you have accounted for the original document, you may then give secondary evidence of its conWhen parol evidence is then tendered, it does not appear from the nature of such evidence, that there is any attested copy, or better species of secondary evidence behind. We know of nothing but of the deed which is accounted for, and therefore the parol evidence is in itself unobjectionable. Does it then become inadmissible, if it be shewn from other sources, that a more

tents.

(9) Doe d. Gilbert v. Ross, 7 M. & W. 102.

(r) The cases were collected

by the author in the Monthly Law Mag., vol. 4, p. 265.

satisfactory species of secondary evidence exists? I think it does not; and I have always understood the rule to be, that when a party is entitled to give secondary evidence at all, he may give any species of secondary evidence within his power." And Alderson, B., said, "I agree with my brother Parke that the objection must arise from the nature of the evidence itself. If you produce a copy, which shews that there was an original, or if you give parol evidence of the contents of a deed, the evidence itself discloses the existence of the deed. But reverse the case,-the existence of an original does not shew the existence of any copy; nor does parol evidence of the contents of a deed shew the existence of anything except the deed itself. If one species of secondary evidence is to exclude another, a party tendering parol evidence of a deed must account for all the secondary evidence that has existed. He may know of nothing but the original, and the other side, at the trial, may defeat him by shewing a copy, the existence of which he had no means of ascertaining. Fifty copies may be in existence unknown to him, and he would be bound to account for them all (s)."

(s) In some parts of America they take a sort of middle course about this, which is thus described in 1 Greenl. Ev. § 84, note (2), 4th Ed. "The American doctrine, as deduced from various authorities, seems to be this; that if, from the nature of the case itself, it is manifest, that a more satisfactory kind of secondary evidence exists, the party will be required to produce it; but that where the nature of the case does not of itself disclose the existence of such better evidence, the objector must not only prove its existence, but also

must prove, that it was known to the other party in season to have been produced at the trial. Thus, where the record of a conviction was destroyed, oral proof of its existence was rejected, because the law required a transcript to be sent to the Court of Exchequer, which was better evidence. A grant of letters of administration was presumed, after proof from the records of various courts, of the administrator's recognition there, and his acts in that capacity; and where the record books were burnt and mutilated, or lost, the

Exceptions to

rule requiring

primary evidence.

1. Where pro

duction phy. sically impossible.

2. Where highly incon

venient on physical grounds.

3. Where on

-Proof of public docu

ments.

§ 467. There are several exceptions to the rule which requires primary evidence to be given. The following are the principal. First, where the production of it is physically impossible, as where characters are traced on a rock: or, secondly, where it would be highly inconvenient on physical grounds; as where they are engraven on a tombstone (t), or chalked on a wall or building (u), or contained in a paper permanently fixed to such (x), &c.

§ 468. 3. The most important and conspicuous excepmoral grounds tion, however, is with respect to the proof of records (y), and other public documents of general concernment (≈); the objection to producing which rests on the ground of moral, not physical inconvenience. They are, comparatively speaking, little liable to corruption, alteration, or misrepresentation - the whole community being interested in their preservation and, in most instances, en

clerk's docket and the journals of
the judges have been deemed the
next best evidence of the contents
of the record. In all these, and
the like cases, the nature of the
fact to be proved, plainly dis-
closes the existence of some evi-
dence in writing, of an official
character, more satisfactory than
mere oral proof; and therefore
the production of such evidence is
demanded. But where there

is no ground for legal presumption
that better secondary evidence ex-
ists, any proof is received, which
is not inadmissible by other rules
of law; unless the objecting party
can shew that better evidence
was previously known to the other,
and might have been produced;
thus subjecting him, by positive

proof, to the same imputation of fraud, which the law itself presumes when primary evidence is withheld."

(t) Tracy Peerage case, 10 Cl. & F. 154.

(u) Per Rolfe, B., in Sayer v. Glossop, 2 Exch. 411; Mortimer v. M'Callan, 6 M. & W. 63 and 68.

(x) R. v. Fursey, 6 C. & P. 84; Jones v. Tarleton, 9 M. & W. 675.

(y) Dr. Leyfield's case, 10 Co. 92 b; Doct. Placit. 201, 206; Leighton v. Leighton, 1 Str. 210.

(z) Mortimer v. M'Callan, 6 M. & W. 58; Lynch v. Clarke, Holt, 293; 3 Salk. 154. See infra, § 470.

titled to inspect them; while private writings, on the contrary, are the object of interest but to few, of whom they are the exclusive property, and the inspection of which can only be obtained, if at all, by application to a court of justice. The number of persons interested in public documents also renders them much more frequently required for evidentiary purposes; and if the production of the originals were insisted on, not only would great inconvenience result from a document being wanted in different places at the same time, but the continual change of place would expose it to be lost, and the handling from frequent use soon ensure its destruction. For these and other reasons (a), the law deems it better to allow their contents to be proved by derivative evidence, and run the chance, whatever that may be, of errors arising from inaccurate transcription, either intentional or casual. But true to its great principle of Nature of the exacting the best evidence that the nature of the matter dence receivaffords, it requires this derivative evidence to be of a able in such very trustworthy kind; and has defined with much precision the forms of it which may be resorted to in proof of the different sorts of public writings (b). Thus it

pered with, so strong a presump-
tion could hardly be made in
favour of public books and do-
cuments not of a judicial cha-

racter.

(a) It is said in some books that the reason why records may be proved by a copy is that no erasures, interlineations, &c. can be intended in them. Dr. Leyfield's case, 10 Co. 92 b; B. N. P. 227. But though this may be one reason, it is neither the only nor the principal one. The actual record must be produced on an issue of nul tiel record in the same court; and although it is a præsumptio juris et de jure that officers of courts of justice make up their records accurately, and keep them from being tam

(b) At first sight this may appear at variance with the maxim that there are no degrees in secondary evidence; but it does not fall within its principle. E. g., a party wants to prove the contents of a private document in the possession of his adversary, who refuses to produce it, and for this purpose calls a witness, who offers to state its contents from memory.

derivative evi

cases.