SECONDARY EVIDENCE WHEN ADMISSIBLE.

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§338. Secondary evidence is, in the fourth place, admissible, where a document is in the hands of a third party, who is not compellable by law to produce it, and who refuses to do so, either when summoned as a witness with a subpoena duces tecum (a), or when sworn as a witness, without a subpoena, if he admits that he has the document in court (6). The reason of this rule is the same as that which admits parol proof, when the adversary, after notice, refuses to produce a deed in his possession,-namely, that the party offering secondary evidence has done all in his power to obtain the original document (c). It may, therefore, be questionable, whether, in the event of an attorney declining to produce an instrument on the ground of privilege, it be not necessary to show that his client has also been subpoenaed, and has relied on his right to withhold the deed (d); and this course would certainly be prudent, inasmuch as the privilege is not, in strictness, that of the attorney, but of the client. It seems that, upon principles of reason and equity, judges will refuse to compel a witness to produce, either his title-deeds (e), or any document on which he may have a lien (ƒ), or the production of which may tend to criminate him (g); and if the witness be an attorney, he will not be permitted to produce any instrument which he holds confidentially for his client, and which his client has the right to keep back (h); though, in this last case, as we have just seen, it does not necessarily follow, that, in the event of the client himself not being summoned, secondary evidence will be admissible.

§ 339. The rule exempting witnesses from producing title-deeds

(a) Marston v. Downes, 1 A. & E. 31; 4 N. & M. 861; 6 C. & P. 381, S. C. ; Doe v. Ross, 7 M. & W. 102; Mills v. Oddy, 6 C. & P. 728, per Parke, B. The case of Doe v. Owen, 8 C. & P. 110, can no longer be supported.

(b) Doe v. Clifford, 2 C. & Kir. 448, per Alderson, B.

(c) Doe v. Ross, 7 M. & W. 122.

(d) Id.

(e) Pickering v. Noyes, 1 B. & C. 263; 2 D. & R. 386, S. C.; Harris v. Hill, 3 Stark. R. 140, per Abbott, C. J.; D. & R. N. P. R. 17, S. C. ; R. v. Upper Boddington, 8 D. & R. 726; Doe v. Clifford, 2 C. & Kir. 448.

(f) Doe v. Ross, 7 M. & W. 102, 2 M. & Rob. 437, per Lord Denman. Mosely, 5 C. & P. 501.

122; 8 Dowl. 389, S. C.; Kemp v. King, These cases virtually overrule Thompson v. (g) See Whitaker v. Izod, 2 Taunt. 115. Doe v. James, 2 M. & Rob. 47, per Lord

(h) Harris v. Hill, 3 Stark. R. 140; Denman; Ditcher v. Kenrick, 1 C. & P. 161.

324

WHEN WITNESS NOT BOUND TO PRODUCE DOCUMENT.

has been applied to a will, under which the witness claimed as devisee, though it was suggested that this will extended to personalty as well as realty, and, therefore, ought to have been deposited in the Ecclesiastical Court, where the public might have had access to it (i). Still, the mere circumstance, that the production of the document may render the witness liable to a civil action, does not come within the protection of the rule. Thus, in an action of ejectment, in which the lessor of the plaintiff claimed as devisee in remainder, and the defendant held under an invalid lease made by the late tenant for life, a witness, who was an executor and legatee of the late tenant for life, was compelled to produce his testator's rent-book, for the purpose of enabling the lessor of the plaintiff to identify the lands in question with the lands originally devised, though the witness, as executor, was bound to indemnify the defendant from all loss he might sustain from an adverse verdict, under a covenant contained in the lease granted by the late tenant for life (k). Where a witness, who was steward of a borough, and attorney for the lord, declined to produce certain old precepts, books of presentment, and a case, relative to his office, on which the opinion of counsel had been taken by a former steward, saying that he held them as attorney for the lord, and that their production would prejudice his client's interest, Lord Denman held that he was bound to produce the precepts and presentments, they being public documents, but that the case and opinion might be withheld (7).

§ 340. Fifthly, in consequence of the strong presumption, which arises from the undisturbed exercise of a public office, that the appointment to it is valid, the law does not, in general, require that the written appointments of public officers should be produced, but it will be sufficient to show that such officers have acted in an official capacity (m).

§ 341. A sixth relaxation of the rule demanding primary proof

(i) Doe v. James, 2 M. & Rob. 47, per Lord Denman.

(k) Doe v. Date, 3 Q. B. 609.

(1) R. v. Woodley, 1 M. & Rob. 390. (m) See § 111, ante, and cases cited in notes thereto. See also Brewster v. Sewell, 3 B. & A. 302, per Holroyd, J.

SECONDARY EVIDENCE WHEN ADMISSIBLE.

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has been admitted, where the evidence required is the result of voluminous facts, or of the inspection of many books and papers, the examination of which could not conveniently take place in court (n). Thus, if there be one invariable mode, in which bills of exchange have been drawn between particular parties, this may be proved by the testimony of a witness conversant with their habit of business, and speaking generally of the fact, without producing the bills; though, if the mode of dealing has not been uniform, the case does not fall within this exception, but is governed by the rule requiring the production of the writings (o). So, a witness who has inspected the accounts of the parties, though he may not give evidence of their particular contents, will be allowed to speak to the general balance without producing the accounts (p). And, where the question is upon the solvency of a party at a particular time, the general result of an examination of his books and securities may be stated in like manner (g). This exception, however, will not enable a witness to state the general contents of a number of letters received by him from one of the parties in the cause, though such letters have since been destroyed, if the object of the examination be to elicit from the witness the impression which they produced on his mind, with reference to the degree of friendship subsisting between the writer and a third party (r). The distinction between this and the preceding cases is obvious; since, in those, the fact in question was one, the truth of which simply depended on the honesty of the witness, whereas here, not only his honesty, but his taste and feelings were involved; and he might, from perusing the letters, conscientiously draw a very different inference as to their legitimate construction, from that which would be drawn. by an unbiassed jury.

(n) 1 Ph. Ev. 433. The rules of pleading have, for a similar reason, been made to yield to public convenience in the administration of justice; and a general allegation is frequently allowed, "when the matters to be pleaded tend to infiniteness and multiplicity, whereby the rolls shall be incumbered with the length thereof." Mints v. Bethil, Cro. Eliz. 749; Steph. Pl. 392-396. Courts of Equity admit the same exception in regard to parties to bills, where they are numerous, on the like grounds of convenience. Story on Eq. Pl. §§ 94, 95, et seq. (0) Spencer v. Billing, 3 Camp. 310, per Lord Ellenborough. (p) Roberts v. Doxon, Pea. R. 83, per Lord Kenyon. (2) Meyer v. Sefton, 2 Stark. R. 274, per Holroyd, J.

(r) Topham v. M'Gregor, 1 C. & Kir. 320, per Rolfe, B.

326

SECONDARY EVIDENCE ADMISSIBLE ON VOIR DIRE.

342. It remains only to notice as a seventh rule, that secondary evidence is admissible in the examination of a witness on the voir dire, and in preliminary inquiries of the same nature. This rule has become of little practical value since the passing of 6 & 7 Vict. c. 85, and the consequent competency of almost all witnesses formerly excluded from interest or crime; but, as it may still operate, in the event of any person being called as a witness, "in whose immediate and individual behalf any action may be brought or defended, either wholly or in part," it will be advisable briefly to allude to it. If upon such examination, the witness discloses the existence of a written instrument affecting his competency, he may also be interrogated as to its contents. To a case of this kind the general rule, requiring either the production of the instrument or notice to produce it, does not apply; for the objecting party may have been ignorant of its existence, until it was disclosed by the witness; nor could he be supposed to know that such a witness would be produced. So, if the witness, on the voir dire, admits a fact that would render him incompetent, unless its effect were subsequently removed by a written document, he may speak to the contents of such writing, even though it be a record, without producing it; the rule being, that, where the objection arises from the answer of the witness on the voir dire, it may likewise, on the voir dire, be removed by parol (s). If, however, the witness produces the writing, or admits that it is in court, it must be read, as being the best evidence; and if it be invalid for want of a stamp, it will neither prevent nor restore the competency of the witness (t). The fact that the witness appears by the record to be incompetent makes no difference in the principle of this exception; for the objecting party is the less likely to be prepared to prove, by the best evidence, the incompetency of such a witness, as he cannot expect that he will be called; and, as the witness himself knows nothing of the record, he cannot be presumed to have had notice

(s) Butchers' Co. v. Jones, 1 Esp. 160, per Lord Kenyon; Botham v. Swingler, id. 164, per id.; R. v. Gisburn, 15 East, 57; Sewell v. Stubbs, 1 C. & P. 74 ; Carlisle v. Eady, id. 234, per Park, J.; 1 Ph. Ev. 154, 155; Miller . Mariners' Church, 7 Greenl. 51.

(t) Quarterman v. Cox, 8 C. & P. 97, per Coleridge, J.; Butler v. Carver, 2 Stark. R. 433, per Abbott, C. J.; Godmanchester . Phillips, 6 N. & M. 211.

SECONDARY EVIDENCE OF ORAL TESTIMONY.

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of the objection that would be made to his testimony (u). This exception is strictly confined to examinations of the witness himself on the voir dire; and, therefore, if a party, objecting to a witness, endeavours to establish his incompetency by independent proof, or if a party, seeking to call a witness who has been objected to, adopts a similar course in order to prove his competency; in either case, the ordinary rule will prevail, and the best evidence must be produced (v).

343. Passing now to the consideration of the circumstances, under which secondary evidence of oral testimony will be received, and bearing in mind the broad proposition before stated (w), that such proof is only admissible where the production of primary evidence is out of the party's power, it may be advanced as a general rule of law, that where a witness has given his testimony under oath in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given, will, if the witness himself cannot be called, be admitted in any subsequent suit between the same parties, or those claiming under them, provided it relate to the same subject, or substantially involve the same material questions (r). In discussing the effect and extent of this rule, it seems almost needless to observe, that in order to render admissible secondary evidence of the testimony of a witness, it must be proved that the witness was duly sworn in some judicial proceeding, to the authority of which, the party, against whom his testimony is offered, was legally bound to submit, and in which he might have exercised the right of cross-examination; for if this were not the case, the preposterous consequence would follow, that secondary evidence of testimony might be received under circumstances that would exclude the testimony itself. If, therefore, it should appear

(u) Lunniss v. Row, 10 A. & E. 606, 609, per Littledale, J.; overruling Goodhay v. Hendry, M. & M. 319.

(v) Botham v. Swingler, 1 Esp. 165, per Lord Kenyon; Corking . Jarrard, 1 Camp. 37, per Lord Ellenborough. (w) Ante, § 312.

(x) B. N. P. 239-243; Mayor of Doncaster v. Day, 3 Taunt. 262; Strutt v. Bovingdon, 5 Esp. 56, per Lord Ellenborough; R. v. Jolliffe, 4 T. R. 290, per Lord Kenyon; Pyke v. Crouch, 1 Lord Raym. 730, 5th Res.; Wright v. Doe dem. Tatham, 1 A. & E. 3; Glass v. Beach, 5 Vern. 172; Lightner . Wike, 4 Serg. & R. 203.