§ 578. When an original document is beyond the reach of the Court, Act II. of 1855, Section XXXVI. provides that the Court may make an order for the reception of secondary evidence ; but proof must be given that the document is beyond the jurisdiction.

§ 579. When a document is destroyed or lost, secondary evidence of it is admissible upon proof of its destruction or loss.

See Morley's Digest, N. S. Tit. Ev. c. 66.

See also S. A. 49 of 1851. S. A. R. 137.

"Deeds lost, or otherwise not forthcoming, are allowed to be proved by evidence. Gooroopershad Gohu and others v. Greeschunder Bukshee and others. 25th Jan. 1847. S. D. A. Decis. Beng. 24.-Tucker."

Ibid, O. S. c. 162.

"Debt on bond. The defendant, by his answer, denied his execution of the bond. The plaintiff, in his reply, stated the accidental destruction of the bond, and prayed leave to put in evidence a registered copy thereof, which the Court allowed, and, at the same time, ordered the fragments of the original to be produced. At the trial the plaintiff produced the fragments, and, under Sec. 2. of the Madras Reg. XVII. of 1802, put in as evidence a registered copy of the bond. The Court admitted the registered copy as evidence, and found for the plaintiff. The Judicial Committee of the Privy Council, on appeal, reversed this finding, on the ground that the registered copy, in the absence of satisfactory evidence of the destruction of the original bond, was improperly admitted as secondary evidence. Syud Abbas Ali Khan v. Yadeem Ramy Reddy. 16 June 1843, 3 Moore Ind. App. 156."

§ 580. But there must have been a bona fide and diligent search for the missing document. What is such search, must depend upon the particular circumstances of each case, See Gathercole v. Miall,(n) where Alderson, B. said:

"I shall say very shortly what I think as to the admission of the evidence. It is clear, as it seems to me, that the evidence was properly received. I think the search should be such as should induce the judge to come to the conclusion, and the court afterwards, on revising his opinion, to come to the same conclusion, that there is no reason to suppose that the omission to produce the document itself arose from any desire of keeping it back, and that there has been no reasonable opportunity of producing it which has been neglected. Now, the question whether there has been a loss, and whether there has been sufficient search, must depend very much

(n) 15 Mees, and W. 335.

on the nature of the instrument searched for; and I put the case, in the course of the argument, of the back of a letter. It is quite clear a very slender search would be sufficient to show that a document of that description had been lost. If we were speaking of an envelope, in which a letter had been received, and a person said, 'I have searched for it among my papers, I cannot find it,' surely that would be sufficient. So, with respect to an old newspaper which has been at a public coffee-room; if the party who kept the public coffee-room had searched for it there, where it ought to be if in existence, and where naturally he would find it, and says he supposes it has been taken away by some one, that seems to me to be amply sufficient. If he had said, I know it was taken away by A. B.' then I should have said, you ought to go to A. B., and see if A. B. has not got that which it is proved he took away; but if you have no proof that it was taken away by any individual at all, it seems to me to be a very unreasonable thing to require that you should go to all the members of the club, for the purpose of asking one more than another, whether he has taken it away, or kept it. I do not know where it would stop; when you once go to each of the members, then you must ask each of the servants, or wives, or children of the members; and where will you stop? As it seems to me, the proper limit is, where a reasonable person would be satisfied that they had bona fide endeavoured to produce the document itself; and therefore I think it was reasonable to receive parol evidence of the contents of this newspaper."

§ 581. A copy of a copy is never to be received. See Morley's Digest, Tit Ev. c. 154.

"A Zamindari was transferred by A. to B., and the transfer was registered by the Collector. A. asserted that the transfer was in the nature of a mortgage, and referred, in support of his allegation, to a letter addressed by him to the Collector, which was the letter on the receipt of which the Collector made the registry of the transfer. He also alleged that he transmitted a copy of an agreement by B, to restore the land on payment of the mortgage money, for the information of the Collector. B. denied having executed the agreement. Held, that a copy of such letter to the Collector could not be admitted as evidence to prove any controverted fact, and much less could the Court admit the copy of a copy of an instrument which the other party denied that he ever executed. Anon. Case 7 of 1816. 1 Mad. Dec. 136.-Scott, Greenway and Stratton."(0)

(0) In illustration of this see the case No. 61 of 1851, in vol. 3, Sudder Reports, p. 161 This case has given rise to much discussion, its correctness having been insisted on at length by the judge who pronounced the judgment.

§ 582. As to insisting on reading the whole of a document when a part only is offered by the other side, see remarks ante § 203, and it may be here well to remark that when the party called on to produce a document refuses to comply, and his adversary has then gone into secondary evidence of its contents, he cannot afterwards produce the original for the purpose of rebutting such testimony. He shall not be permitted to stand by and take his chance of what his adversary may be able to prove against him. So in Edmonds v. Challis,(P) Coltman J. in delivering the judgment of the Court said as follows:

The ground on which the application for a new trial was rested, was a supposed misdirection in receiving in evidence the replevin bond without due proof of the execution by the subscribing witness. It appeared by the report, that notice had been given to the defendants to produce the bond, and the plaintiff's counsel called for the bond which the defendant's counsel declined to produce. On the part of the plaintiff, a copy was produced, and proved to have been obtained from the Sheriff's office, and was about to be read, whereupon the counsel for the defendants produced the original, and insisted that it could not be read until the subscribing witness had been called. The document, however was read without the production of the witness; and it is contended that this ought not to have been done. We are, however, of opinion that the evidence was properly received. The document having been in the first instance kept back, and the plaintiff having entitled himself to read a copy without any proof being given that there was a subscribing witness to the original instrument, and having put it in to be read, the defendant's counsel let slip his opportunity, and had no right then to interpose and produce the original; and although in point of fact the original was read, that was but by a sort of legerdemain, and the proper evidence must be considered as having been read, which was the copy produced and proved by the counsel for the defendants. The case of Jackson, v. Allen, bears out our view of the rights of the plaintiff's counsel under the circumstances."(2)

§ 583. A party who has given notice to produce, is not bound to pursue the matter further; and the opposite party cannot insist upon the document being produced, simply because he has had such notice; nor will it thereby become evidence for himself: but if the party who has given the notice, call for the document, which is produced in consequence, and inspect it, and thereupon declines to put it in evidence, he thereby makes it evidence.

(p) 6 Dow. and L. p. 581.

(g) See S. A. 91 of 1858. M. S. R. for 1958, p. 148. 12 of 1815, M. S. D. p. 133. 3 M. I. A. 156. 53 of 1856, M. S. R. for 1857, p. 96. 7 of 1816, M. S. D. p. 136.

See Wharam v. Routledge.(r) Where Lord Ellenborough said: "You cannot ask for a book of the opposite party, and be determined upon the inspection of it, whether you will use it or not. If you call for it, you make it evidence for the other side, if they think fit to use it."

CHAPTER XXXIII.

§ 584. We come now to the last remaining great branch of our subject that is to say, how Instruments are used in proof: And this we shall divide into two heads.

1st. How proofs are to be supplied by the parties.

2nd. How they are to be applied by the judge.

For the present we shall confine ourselves to the first head; and this will require consideration as to three distinct topics.

1st. On whom rests the burthen of proof; i. e. who is to supply the evidence,

2nd. What quantity of evidence need be produced; i. e. what amount of evidence must be offered in support of an issue. 3rd. The quality of the proof which it is necessary to produce. I. On whom the burthen of proof rests.

§ 585. By Regulation XV. of 1816, Sec. X. cl. 2, 3, the Judge settles the issues to be proved, but the parties must produce the evidence to prove these issues. See Morley's Digest, N. S. Tit. Ev. c. 57.

"It was held to be highly irregular for the Court below to send for records of cases, judicial or revenue, in proof of allegations before the Court, instead of leaving it to the parties to adduce their own proofs. Anoopnauth Missur and another v. Dulmeer Khan and another. 31st Aug. 1846. 1 Decis. N. W. P. 135-Thomson, Cartwright, and Begbie. Hafiz Mahmood Khan and others v. Moonshee Shib Lall and others. 7th Dec. 1846. 1 Decis. N. W. P. 239.-Tayler, Thompson, and Cartwright. Sheodial Rae and others v. Bukht Rae and others. 15th Dec. 1846. 1 Decis. N. W. P. 249.-Tayler, Thompson, and Cartwright. Chota Singh v. Pershaud Singh.

(7) 5 Esp. 235.

8th Jan. 1847. 2 Decis. N. W. P. 1.-Thompson. Rajah Nowul Kishore v. Syud Enayut Alee. 22nd March 1847. 2 Decis. N. W. P. 63— Tayler, Thompson, and Cartwright. Deendyal v. Syed Hoosein Ali and others. 31st July 1848. 3 Decis. N. W. P. 258.-Thompson and Cartwright. (Tayler dissent.) Futteh Narain Singh and others v. Bhoabul Singh and others. 6th March 1849. 4 Decis. N. W. P. 44.-Thompson." (s)

§ 586. The Law is quiescent until certain facts are established, to which it can attach certain consequences. () Hence it is for him who

(s) I have placed (writes Mr. Morley) these cases together, as they all bear upon the point of the power of the Court to call for documentary evidence not adduced by the parties to a suit, though slight differences exist as to their circumstances. In the first four cases the Lower Court had called for evidence recorded in suits previously dismissed; in the fifth and sixth cases the Principal Sudder Ameen had sent, at the request of the plaintiff, for records from the Collector's Office; and in the sixth, likewise for the whole of certain proceedings that were held in the execution of decree department. In the last case the Principal Sudder Ameen re quired from the Judge's and Collector's Office a mass of proceedings and papers which, to use the words of the deciding Judge, might "fairly be termed a chaotic heap." The decision was given with reference to that passed in the sixth case. The majority of the Court, in giving judgment in the sixth case, observed that they were further of opinion that the practice of sending for revenue or judicial proceedings, excepting such as are specially allowed by the Regu lations, such as Sec. 31. of Reg. VII. of 1822, was tantamount to allowing an evasion of the Stamp Law, and quoted Sec 17. of Reg. X. of 1829, and Sec. 18, and Schedule B. of the same Regulation. They concluded by stating, that, in their opinion, the practice was not only unsanctioned by law, but that it was opposed to every rule of practice which that law lays down, and productive of nothing but inconvenience and uncertainty from first to last. Mr. Taylor recorded his dissent in this case at considerable length, and stated, amongst other things, that the practice of the Court when he joined it was invariably to send for records or proceedings on good cause being shown; that the same practice existed in the Calcutta Court; and that the principle was recognised in Constructions No. 693, and 1259. He further observed, that the practice had been denounced by recent decisions, and referred to the cases Hafiz Mohumed Khan, Chota Singh, and Rajah Nowul Kishore, abovementioned, as having attracted the notice of Mr. Ledlie, the Principal Sudder Ameen, at Bareilly, who addressed the Court on the subject, and requested to know whether with reference to those decisions, he was competent, on the motion of the party disputing an exhibit, to send for the particular paper, or the entire record, if necessary, in order to ascertain whether the document had been clandestinely foisted into the file, or the record falsified, as represented. He was informed, in reply, that he had full power, and he was referred to Constructions Nos. 693 and 1259, which it was observed by the Court, expressly recognise the competency of the Court" to call for the records of a public office with a view to a just decision between the parties in suits pending before them." In regard to the case of Rajah Nowul Kishore, it was observed, "that it cannot be supposed that the Conrt, in passing the decision, overlooked the Construction 1259, or that they intended by implication to repudiate an authoritative rescript: the only allowable presumption is, that the Principal Sudder Ameen irregularly insisted on sending for paper, of which the parties might have obtained copies without much expense, when the circumstances of the case were not so peculiar as to justify the act. Mr. Taylor proceeded to remark that he did not intend, by the decision in Rajah Nowul Kishore's case, to discountenance the practice of calling for records, but to condemn an indiscriminate and injudicious call for them; and added extracts from a letter of the Calcutta Court in answer to a reference made to them on this point. These extracts I subjoin, as they clearly lay down the practice of the Calcutta Court:-" Par. 3d. Viewing the question generally, the Court observe, that although ordinarily the Courts are not to seek for evidence, but to decide on what the parties choose to place before them, they are not precluded from calling for whatever evidence they may consider necessary for the elucidation of a case. The expression in Cl. 3, Sec. 10. Reg. XXVI. 1814" evidence may be adduced by either party," is not considered to restrict the exercise of the Court's discretion in that respect. Par. 4th The practice of this Court is in conformity with these views. As an instance, may be mentioned the case of Sumeshur Pundee and others v. Rajah Gopal Surn Singh, decided on the 24th Sept 1845 (p. 306 of printed decisions), when the Court, through their Register, called upon Government for certain records which the Judges considered would throw light on the question before them." And see the Placita 44c. 45. 58 et seq.

6

(t) It is a peculiarity of the barbarous codes of the dark ages that the accused began by proving his innocence.