evidence of documents missible. Secondary or lost; secondly, when its production is physically impossible, or at least highly inconvenient; thirdly, when the document is where ad in the possession of the adverse party, who refuses after notice, and in some cases without notice, to produce it; fourthly, when it is in the hands of a third party, who is not compellable by law to produce it, and who being called as a witness with a subpœna duces tecum, relies upon his right to withhold it; fifthly, when the law raises a strong presumption in favour of the existence of the document; sixthly, when the papers are voluminous, and it is only necessary to prove their general results. 1. When the original writing is destroyed or lost. In this case it must be shown to the satisfaction of the judge that a sufficiently diligent search has been made in the place or places where the document, if in existence, would likely have been found. What is a sufficient degree of diligence varies with the nature of the document. Thus in a case where it was desired to give secondary evidence of a policy of insurance, it was proved that it had been effected some years before; that it had become useless, as a second policy had been effected, and that the probability was that it had been returned to the plaintiff. Under these circumstances, evidence that the plaintiff's solicitor had searched the plaintiff's house in every place pointed out by the plaintiff, and in every place wherever a paper was likely to be put, was held sufficient to allow secondary evidence (1). When it is the duty of the party in possession of a document to deposit it in some public office or particular place, proof of search in that place will be generally sufficient (2). Where there are several places where a document might be placed, all should be searched, but it is not necessary that the search should be recent, or made expressly for the purposes of the action. 2. When its production is physically impossible, or at least highly inconvenient. On this principle secondary evidence has been admitted of inscriptions on walls and fixed tables, mural monuments, gravestones, surveyors' marks on boundary trees, notices warning trespassers affixed on boards. Thus in an oftquoted case on the subject, secondary evidence of a libel written. on the wall of Liverpool gaol was admitted, the Court, proceeding on the principle that, however true the poet's words might be "that stone walls do not a prison make," it would be (1) Brewster v. Sewell, 2 B. & A. 206. (2) R. v. Stourbridge, 8 B. & C. 96. impossible, or at least highly inconvenient, to order the produc- Secondary tion of the original evidence. evidence of documents 3. When the document is in the possession of the adverse where adparty, who refuses after notice, and in some cases without notice, missible. to produce it. 4. When the document is in the hands of a third party, who is not compellable by law to produce it, and who being called as a witness with a subpoena duces tecum, relies upon his right to withhold it (1). It is somewhat doubtful what the notice to produce must contain, or with what degree of minuteness or accuracy it must specify the precise documents intended. In one case a notice to produce letters and copies of letters, and all books relating to the cause, was decided to be too vague. A safe plan is that the notice should definitely specify in writing the documents required. A form to be employed, with such variations as circumstances may require, is given in the Judicature Rules, which also provide that an affidavit of the solicitor or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served. 5. When the law raises a strong presumption in favour of the existence of the document. On this principle it is not generally necessary that the written appointments of public officers should be produced, but it will suffice to show that the officers in question have acted in their official capacity. 6. When the papers are voluminous, and it is only necessary to prove their general results. On this principle a witness who has examined accounts may be allowed to give evidence as to the general result of such examination, but it has been decided that this principle will not admit the evidence of a witness as to the impression produced upon his mind by a number of letters, as this is a mere matter of opinion. It must be borne in mind that there are no degrees in secondary evidence. Thus, where a deed itself is lost, oral evidence of the contents may be given even though it be proved that the party giving it has a copy in his possession (2). A yet stronger illustration is that where it is desired to prove (1) It must be borne in mind that this case only arises when a witness has privilege and relies on it. If a witness is bound to produce documents and does not produce them, then secondary evidence is admissible. (3) A very remarkable illustration of the admission of secondary evidence is that afforded by the case which arose on Lord St. Leonards' will, 1 P. D. 154, post, p. 978; and see Mills v. Millward, 15 P. D. 20. Circumstantial evidence. the testimony of a deceased person, any person who heard him may give evidence, even though it is proved there is a complete shorthand note in existence. A division of evidence which it is important to bear in mind is that into direct and indirect, or circumstantial evidence. In the case of direct evidence, the proof applies immediately to the matter to be proved as factum probandum, as it is called, without any intervening process. In the case of the latter, the proof applies immediately to collateral facts supposed to be connected nearly or remotely with the point in controversy. Circumstantial evidence may be either conclusive when the connection between the thing to be proved and the evidence of it is a necessary consequence of the laws of nature, or presumptive, when there is only a greater or less degree of probability. In a case which came before the House of Lords in 1875, where the question of a claim depended entirely under circumstantial evidence as to the pedigree of the various competitors for the title, some of which was obscure and complicated, and ranged over a century and a half of family history, the Lord Chancellor (Lord Cairns) expressed himself on the subject of circumstantial evidence, as follows: "In dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You have a ray of light so feeble, that by itself will do little to elucidate a dark corner. But, on the other hand, you have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel." (1) In the same case the Lord Chancellor expressed his opinion of the great value of the opposing criticisms of counsel in dealing with a question which turned on circumstantial evidence. "You have," he said, "the very great advantage of a skilful contradictor and antagonist, who is able, with the best advice, to bring to bear an amount of wholesome criticism which must always be applied to a question of circumstantial evidence before any satisfactory conclusion can be arrived at." A very useful warning with regard to the value of circumstantial evidence is given us by Mr. Taylor in his work on Evidence (2). A saying which has frequently received the (1) Belhaven and Stenton Peerage, 1 App. Cas. 279. (2) Taylor on Evidence, Pt. 1, ch. iv. sanction of judicial authority, and has almost passed into a proverb, "witnesses may lie, but circumstances cannot," is one which is often in the last degree dangerous and misleading. If, as Mr. Taylor says, circumstances mean (and they can have no other meaning) those facts which lead to the inference of the fact in issue, they not only can but often do lie. A further circumstance which must also be borne in mind in estimating the value of this kind of evidence is pointed out by the same authority, to wit, that witnesses in giving evidence of this description are more liable to make unintentional misstatements than those who give direct testimony. Different kinds of presump tion. Functions of judge and jury. CHAPTER III. PRESUMPTIONS--ESTOPPEL. Allusion has already been made to the subject of presumptive evidence, which generally is divided into the two heads of presumptions of law and presumptions of fact. Presumptions of law are either conclusive or disputable. Disputable presumptions of law differ from presumptions of fact in three important particulars (1). (1) The judge is bound to explain to the jury whatever legal presumptions arise from the facts proved; (2) The jury are bound to give full weight to the presumptions so explained; (3) The Court alone, without the intervention of the jury, may draw the proper legal inferences, whenever the requisite facts are developed in the pleadings" (2). The following are some of the most important presumptions:-Every sane person is conclusively presumed to be acquainted with the law both civil and criminal. The maxim of the law here is ignorantia juris quod quisque tenetur scire neminem excusat. Every man is conclusively presumed to intend the consequences of his own acts. Conclusive presumptions are made in favour of judicial proceedings; in favour of legitimacy; in favour of the due execution of ancient deeds, and wills, and documents which prove themselves by their bare production, if they be thirty years old and come from custody of such a nature that their genuineness may be presumed. Instances of disputable presumptions are the presumption in favour of innocence, the presumption in favour of guilt against (1) Taylor on Evidence, 8th ed. p. 132, citing Best on Evidence. (2) With regard to presumptions of fact it is well said by Chief Justice Abbott: "A presumption of any fact is properly an inference of that fact from other facts that are known; it is an act of reasoning; and much of human knowledge on all subjects is derived from this source. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given; the man who is charged with theft is rarely seen to break the house or take the goods; and in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, er the poisonous ingredients poured into the cup" 4 B. & Ald. 161, |