pretences contained in a letter, upon proof of the loss of the letter, parol evidence of its contents is inadmissible. Chadwick's case, 6 C. & P. 181. Before secondary evidence can be given of any document, evidence of its loss must be offered, and it must be shown that due diligence has been exercised in searching for it. The degree of diligence will necessarily depend on the particular case. Where on a prosecution for libel, the publisher of a paper in which the libel had been inserted, stated that he believed the original was either destroyed or lost, having been thrown aside as useless; this was held sufficient to let in secondary evidence. Johnson's case, 7 East, 66. The degree of diligence to be exercised in searching for a document, will depend in a great measure on the importance of the document. Gully v. Bp. of Exeter, 4 Bingh. 298. In the case of a useless document, the presumption is that it has been destroyed. Per Bayley, J., the King v. East Farleigh, 6 D. & R. 153. And where the loss or destruction of a paper may almost be presumed, very slight evidence of such loss or destruction is sufficient. (1) Per Abbott, C. J., Brewster v. Sewell, 3 B. & A. 296. Thus where depositions have been delivered to the clerk of the peace or his deputy, and it appears that the practice is, on a bill being thrown out, to put away the depositions as useless, slight evidence of a search for them is sufficient, and the deputy need not be called, it being his duty to deliver the depositions to his principal. Freeman v. Arkell, 2 B. & C. 496.° Where it is the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is, that it is lost or destroyed. The King v. Stourbridge, 8 B. & C. 96; 2 M. & R. 43, S. C. In order to show a sufficient search it is not necessary to negative every possibility, it is enough to negative every reasonable probability of anything being kept back. Where an attorney or officer is applied to for documents, the court will assume till the party to a cause of the loss of an original paper, and upon other collateral questions. Such affidavit should exclude all presumption that the party may have the paper in his own possession. Woods v. Gassett, 11 N. Hamp. 442. See Colman v. Walcott, 4 Day, 388. Where one party to a suit is sworn to prove the loss of a written instrument with a view to secondary evidence, though the adverse party may be examined to disprove the loss and account for the instrument, yet he cannot, under colour of this right, give testimony denying directly or indirectly the former existence of the instrument or the matters designed to be evinced by it. The party affirming the loss cannot be sworn, until after the former existence of the instrument has been established by independent evidence; and when sworn, his testimony as well as that of his adversary is, in general, to be confined to the single question of loss. Woodworth v. Barker, 1 Hill, 171. It is not, however, an universal and inflexible rule, that a plaintiff must himself make oath to the loss of a paper of which he is presumed to have the custody, and of diligent search for it, before he can introduce secondary evidence of its contents. Foster v. Mackay, 7 Metcalf, 531. (1) Presumptive evidence of less is often enough. Taunton Bank v. Richardson, 5 Pick. 436. Jackson v. Woolsey, 11 Johns. 446. Patterson v. Winne et al. 5 Peters, 233. S. C. 9 Id. 633. Jackson v. Root, 18 Johns. 60. Central Turnpike v. Valentine, 10 Pick. 142. Bouldin v. Massie, 7 Wheat. 182. Jackson v. Mely, 10 Johns. 374. A deposition should not be rejected because the witness speaks of papers not produced, if it appear that the papers are such as would not probably be preserved for so great a length of time, and are not in the possession or in the power of the witness or the party who offers the deposition. Tilghman v. Fisher, 9 Watts, 441. Proof that a ship's papers were seized with her, and delivered to the court by which she was condemned, but that a certain paper belonging to her could not be found then, on search, is sufficient evidence of loss to warrant parol evidence of its contents. Francis v. Ocean Ins. Co. 6 Cow. 404. Braintree v. Battles, 6 Verm. 395. Ex parte affidavits of witnesses are not admissible to prove the loss or contents of a written instrument. Viles v. Moulton, 13 Verm. 510. d Id. v. 291. a Eng. C. L. R. xxv. 344. b Id. xiii. 443. • Id. ix. 160, c Id. xvi. 260. f Id. xv. 155. the contrary is proved, that all the documents relating to the subject of inquiry are produced. M'Gahey v. Alston, 2 M. & W. 213.(2) *When the document was in the possession of a party who is dead, his de- [ *13] clarations as to its loss or destruction are admissible after his death. Rex v. Morton, 4 M. & S. 48. See Rex v. Piddlehinton, 3 B. & Ad. 460. But where it did not appear that an indenture had been in the possession of the deceased, his declarations as to its loss, were held inadmissible. Rex v. Rawden, 2 A. & E. 156. Where the party in whose possession the instrument was, is alive, his declarations are inadmissible, and he ought to be called as a witness. Rex v. Denio, 7 B. & C. 620. Parkins v. Cobbett, 1 C. & P. 282.4 b As to degrees of secondary evidence.] In Brown v. Woodman, 6 C. & P. 206,° it was said by Parke, J., that there are no degrees of secondary evidence; and he held that a defendant might give parol evidence of the contents of a letter, of which he had kept a copy, and that he was not bound to produce the copy. So where two parts of an agreement were prepared but one only was stamped, which was in the custody of the defendant, who, on notice, refused to produce it, the court ruled that the plaintiff might give the draft in evidence, without putting in the part of the agreement which was unstamped. Gamons v. Swift, 1 Taunt. 507. And see Doxon v. Haigh, 1 Esp. 411. But in Liebman v. Pooley, 1 Stark. N. P. 168, Lord Ellenborough refused to admit a copy of the primary copy of a letter in evidence observing that it was "one step further removed from the original." And in Munn v. Godbolt, 3 Bing. 294,5 an unstamped counterpart of a deed, which had been admitted in evidence at the trial as a copy of the deed which was lost, was stated by Best, C. J., to be "more authentic and satisfactory evidence of the contents of the deed than any other draft or copy." And in Doe v. Wainwright, 5 A. & E. 520;h 1 Nev. & P. 8, some of the judges seem to have inclined to the opinion that an abstract of a deed would not be the best secondary evidence, if a copy of the deed was proved to be in existence. And it was held by Alderson, B., that the copy of a copy is not secondary evidence of the original. Everingham v. Roundill, 2 Moo. & R. 138. It has, however, been decided, that there are no degrees of secondary evidence, and that where secondary evidence of a document is admissible at all, parol proof of it is sufficient, although it may appear that an attested copy, or other superior secondary proof is in existence. Doe v. Ross, 7 M. & W. 102; recognized by the Common Pleas in Hall v. Ball, infra.(1) (2) It is enough to show reasonable diligence. Minor v. Tillitson, 7 Peters, 99. Where proof by a witness that he assisted the plaintiff in searching among his papers is not sufficient. Sims v. Sims, 2 Rep. Const. Ct. 225. Evidence which leaves the mind in doubt whether success would not have attended a further search, will not do. Stoddart v. Vestry, 2 Gill & Johns. 227. If an instrument be lost to the party in consequence of an irregular or defective transmission by mail, it will let in secondary evidence. U. S. Bank v. Sill, 5 Conn. 106. See Thalhimer v. Brinckerhoff, 6 Cowen, 90. Secondary evidence of the contents of a written instrument is admissible, when it has been destroyed voluntarily, through mistake or by accident. Riggs v. Taylor, 9 Wheat. 483. (1) Proof of the contents of a lost paper should be the best the party has in his power to produce, and at all events such as to leave no reasonable doubt as to the substantial parts of the paper. Renner v. Bank of Columbia, 9 Wheat. 581. If, in an indictment for forgery, the instrument be destroyed or suppressed by the prisoner, the tencr may be proved by parol evidence. The next best evidence is the rule; therefore, if there be a copy which can be sworn to, that is the next best evidence. U. States v. Britton, 2 Mason, 464. Copies of deeds made by disinterested persons, of good character, and under circumstances e Id. xxv. 358. b Id. xxix. 121. ' Id. ii. 340. d Id. xi. 394. h Id. xxxi. 385. Where there is a duplicate original or counterpart duly stamped of the lost deed, it must be produced, or its non-production accounted for, before any copy of the instrument will be admissible in evidence. Villiers v. Villiers, 2 Atk. 71. Rex v. Castleton, 6 T. R. 236; B. N. P. 254; Brown v. Woodman, 6 P. & C. 206;5 Alivon v. Furnival, 4 Tyrwh. 757. But now see Doe v. Ross, supra; and Hall v. Ball, 3 M. & G. 247;h where in trover for an expired lease by the lessor, the lease (or counterpart executed by the lessor) not being produced by the defendant upon notice, it was held, that the lessor might give parol evidence of the contents without producing the counterpart executed by the lessee. (1) General nature of presumptive evidence—and when admissible.] "A presumption of any fact is properly an inference of that fact from other facts that are known; it is an act of reasoning." Per Abbott, C. J., Rex v. Burdett, 4 B. &. A. 161.a When the fact itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances that necessarily and usually attend such fact, and these are called presumptions and not proofs; for they stand instead of the proofs of the fact till the contrary be proved. Gilb. Ev. 157.(2) The instances selected by Chief Baron Gilbert to illustrate the nature of presumption is, where a man is discovered suddenly dead in a room, and another is found running out in haste with a bloody sword; this is a violent presumption that he is the murderer; for the blood, the weapon, and the hasty flight, are all the necessary concomitants of such facts; and the next proof to the sight of the fact itself is, the proof of those circumstances that usually attend such fact. Id. "The principal difference," observes an eminent writer on the law of evidence, (1 Phill. Ev. 156, 7th ed.) "to be remarked between civil and criminal cases, with reference to the modes of proof by direct or circumstantial evidence, is, that in the former, where civil rights are ascertained, a less degree of probability may be safely that create no imputation of fraud, may be received in evidence when the original is proved to be lost. Allen v. Parish, 3 Ham. 107. Due notice having been given to produce a letter, written by one party to another, and the latter not producing it, the former proved by his clerk, that he copied the letter in a letterbook, and that it was his invariable custom to carry letters thus copied, to the post office, and seldom handed them back; but could not recollect that he sent the particular letter: Held sufficient evidence of sending the letter, and that a copy was admissible in evidence. Thalhimer v. Brinckerhoff, 6 Cow. 90. (1) U. States v. Gilbert, 2 Sumner, 81. (2) 1 Wheeler's C. C. 132, a. Id. 100. Eng. C. L. R. xxv. 358. h Id. xlii. 136. a Id. vol. vi. 358. adopted as a ground of judgment than in the latter case, which affects life and liberty." The same doctrine is asserted by Mr. McNally, in his rules of Evidence on Pleas of the Crown, p. 578. "Everything," he observes, "is a doubt in a civil case, where the jury weigh the evidence, and having struck a fair balance, decide according to the weight of the evidence. This, however, is not the rule in criminal cases, for it is an established maxim, that the jury are not to weigh the evidence, but in cases of doubt to acquit the prisoner." The soundness of this distinction may, perhaps, be doubted. The rules adopted with regard to the admission of presumptions in civil cases, are grounded on the principle that they tend to the discovery of the truth, and the consequences which are to ensue upon that discovery seem to have no bearing upon the application of the rule. Great caution is doubtless necessary in all cases of presumptive evidence; and accordingly, Lord Hale has laid down two rules with regard to *the acting upon such evidence [*15] in criminal cases. "I would never," he says, "convict any person of stealing the goods of a certain person unknown, merely because he would not give an account how he came by them, unless there was due proof made that a felony was committed of these goods." And again, "I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body found dead." 2 Hale, 290. So it is said by Sir William Blackstone, 4 Com. 359, that all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape, than that one innocent suffer. The following case on this subject was cited by Garrow, arguendo, in Hindmarsh's case, 2 Leach, 571. The mother and reputed father of a bastard child, was observed to take it to the margin of the dock in Liverpool, and after stripping it, to throw it into the dock. The body of the infant was not afterwards seen, but as the tide of the sea flowed and reflowed into and out of the dock, the learned judge who tried the father and mother for the murder of their child, observed that it was possible the tide might have carried out the living infant, and the prisoners were acquitted. “With respect to the comparative weight due to direct and presumptive evidence, it has been said that circumstances are in many cases of greater force and more to be depended on than the testimony of living witnesses; inasmuch as witnesses may either be mistaken themselves, or wickedly intend to deceive others; whereas circumstances and presumptions naturally and necessarily arising out of a given fact cannot lie. Per Mountenoy, B., Annesley v. Lord Anglesea, 9 St. Tr. 426, 17 Howell, 1430. It may be observed, that it is generally the property of circumstantial evidence to bring a more extensive assemblage of facts under the cognizance of a jury, and to require a greater number of witnesses than where the evidence is direct whereby such circumstantial evidence is more capable of being disproved if untrue. See Bentham's Rationale of Judicial Evidence, vol. 3, p. 251. On the other hand it may be observed, that circumstantial evidence ought to be acted on with great caution, especially where an anxiety is naturally felt for the detection of great crimes. This anxiety often leads witnesses to mistake or exaggerate facts, and juries to draw rash inferences; there is also a kind of pride or vanity felt in drawing conclusions from a number of isolated facts, which is apt to deceive the judgment. Not unfrequently a presumption is formed from circumstances which would not have existed as a ground of crimination, but for the accusation itself; such are, the conduct, demeanor, and expressions of a suspected person, when scrutinized by those who suspect him. And it may be observed, that circumstantial evidence, which must in general be submitted to a court of justice through the means of witnesses is capable of being perverted in like manner as direct evi dence, and that, moreover, it is subjected to this additional infirmity that it is composed of inferences each of which may be fallacious." Phill. Ev. 458, 8th ed. General instances of presumption.] As almost every fact is capable of being proved by presumptive as well as by positive evidence, it would be impossible to enumerate the various cases in which the former evidence has been admitted. It. [*16] may be useful, however, to *state some particular instances of presumptive proof which may occur in the course of criminal proceedings. Proof of the possession of land, or the receipt of rent is prima facie evidence of seisin in fee. Co. Litt. 15, a, B. N. P. 103.(1) So possession is presumptive evidence of property in chattels. A deed or other writing thirty years old is presumed to have been duly executed, provided some account be given of the place where found, &c. B. N. P. 255. The license of a lord to inclose waste may be presumed after twelve or fourteen years' possession, the steward of the lord having been cognizant of it. Doe v. Wilson, 11 East, 56. Bridges v. Blanchard, 1 A. & E. 536. The flowing of the tide is presumptive evidence of a public navigable river, the weight of such evidence depending upon the nature and situation of the channel. Miles v. Rose, 5 Taunt. 705; 1 Marsh, 313, S. C. R. v. Montague, 4 B. & C. 602. The existence of an immemorial custom may be presumed from an uncontradicted usage of twenty years. Joliffe's case, 2 B. & C. 54 ;* 3 D. & R. 240, S. C. So the continuance of things in statu quo will be generally presumed; as where the plaintiff being slandered in his official character proves his appointment to the office before the libel, his continuance in office at the time of the libel need not be proved, though averred. Budd's case, 5 Esp. 230. So the law presumes that a party intended that which is the immediate or probable consequence of his act. Dixon's case, 3 M. & S. 11, 15. So a letter is presumed, against the writer, to have been written upon the day on which it bears date; Hunt v. Massey, 5 B. & Ad. 902; 3 Nev. & M. 109; and a bill is presumed to be made on the day it is dated; Owen v. Waters, 2 M. & W. 91; except when used to prove a petitioning creditor's debt; Anderson v. Weston, 6 New Cases, 296, 301. So the presumption is that indorsements on a note admitting the receipt of interest were written at the time of their date; Smith v. Battens, 1 Moo. & R. 341. See also Sinclair v. Baggaley, 4 M. & W. 312. The law with regard to the presumption which length of time affords in the case of the possession of property of various kinds, is now regulated by the 2 & 3 Wm. 4, c. 71. Presumption of innocence and legality.] The law presumes a man to be innocent until the contrary is proved, or appears from some stronger presumption.(2) Where a woman, whose husband twelve months previously had left the country, married again, the presumption that she was innocent of bigamy was held to preponderate over the usual presumption of the duration of life. R. v. Inhab. of Twyning, 2 B. & A. 386. But the observations of Bayley, J., and Best, J., in Rex v. Twyning, with respect to conflicting presumptions, were questioned by the court in a late case, Rex v. Harborne, 2 Ad. & E. 544; where it was decided, that the Court of Quarter Sessions were right in presuming that the first wife was (1) The People v. Reed, 11 Wend. 158. с b E. C. L. R. vol. xxviii. 143. Id. i. 240. d Id. x. 415. Id. xi. 21. Id. xxvii. 230. Id. xxix. 161. |