ancient facts of a public nature (y), although not to prove a particular or local custom. Maps are admissible under the circumstances mentioned in Part I., Chap. IX., and maps and charts generally offered for public sale are admitted as evidence of general geographical facts, such as the relative positions of countries, counties and towns; and distances (other than minute distances) may be proved by the use of the Ordnance maps (z). Peerages, army and navy lists, directories, calendars, or other non-official publications, are inadmissible. But dictionaries are constantly referred to in court for the meanings of words, especially in trade-mark cases. (y) Read v. Bishop of Lincoln, [1892] A. C. 653. () Mouflet v. Cole, L. R. 8 Ex. 35. CHAPTER IV. SECONDARY EVIDENCE.-PROOF OF HANDWRITING. -ATTESTING WITNESSES. REFRESH THE MEMORY. WRITINGS WHICH WHEN a party has done everything in his power to bring before the court primary evidence of the documents on which he relies by searching for them in places where it was most reasonable to expect them to be deposited, and not finding them, or by giving the opposite party notice to produce them (a), or when the document is in the hands of a third person, who can refuse to produce it on the ground of privilege, or who is out of the jurisdiction, he will then, and not till then, be permitted by the court to give secondary evidence of such documents. When a document is alleged to have been destroyed by the opposite party, notice to produce is necessary (b). The search must be bona fide and diligent (c).—It is not necessary to call a person of whom inquiries have been made as to a deed, but his declarations may be given in evidence (d). If there are several places of probable deposit, all must be searched (e). Every possible search need not be made, but every reasonable search will be sufficient (f), and the search need not be recent or made for the purposes of the trial (g). There are no degrees in secondary evidence. Therefore, when the absence of primary evidence is explained (a) As to notice to produce, see Part III., Chap. VIII. (b) Doe v. Morris, 3 A. & E. 46. (e) Doe v. Lewis, 11 C. B. 1035. (f) Hart v. Hart, 1 Hare, 1. satisfactorily, any species of admissible secondary evidence may be substituted for the original. Thus, a lost deed may be proved, either by an examined copy (h), or by oral evidence of any one who can swear positively to the contents of the original; and, therefore, where it appeared that a party held a copy of an original, which was not produced, it was held that he was not obliged. to produce the copy, but might give oral evidence of the original (i). As soon as a party has accounted for the absence of the original document, he is at liberty to give any kind of secondary evidence. The rule is, that no evidence is to be adduced which ex naturâ rei supposes still greater evidence behind in the party's own power and possession (k). In Doe v. Ross (k), it was held that oral evidence of an original might be substituted for an attested copy, which was tendered but rejected for want of a stamp. It is not, however, to be supposed that oral evidence of a document, although equally admissible with an attested or examined сору, is therefore entitled to the same credibility; and it will be for a jury to place their own estimate on the value of the witness's memory. Copies of documents.-Although either a copy or oral proof of an original will be equally admissible as secondary evidence, the copy of a copy will be inadmissible (1) as being one step farther removed from the original. It has been suggested that if the copy tendered is proved to have been compared with the first copy and the first copy with the original, the copy tendered would be admissible, but probably this is not so. (h) But not by what purports to be an attested copy, though the death and handwriting of the attesting witnesses be proved (Brindley v. Woodhouse, 1 Car. & Kir. 647). (i) Brown v. Woodman, 6 C. & P. 206. (k) Per PARKE, B.: Doe v. Ross, 7 M. & W. 102. (1) Liebman v. Pooley, 1 Stark. 167. Stamping. It will be presumed, in the absence of contrary evidence, that the original was properly stamped, if it required to be stamped (m), and an unstamped copy will be good secondary evidence; but neither at law (n) nor in equity (o) can secondary evidence of the contents of an unstamped agreement be given, even though it was destroyed by the wrongful act of the party objecting to such evidence. When a copy is tendered as secondary evidence, it must be proved to be accurate by a witness who made it, or who actually read it and compared it with the original (p); but drafts from which, by indorsements upon them, it appeared that certain deeds were engrossed, have been held good secondary evidence of the contents of such deeds (q). All originals must be accounted for before secondary evidence can be given of any one (r). It may be remarked that secondary evidence of the contents of a lost will may be adduced as well as of the contents of any other lost instrument (s). To obtain probate of a lost will not only must its contents be proved, but also its due execution and attestation (t). If a witness attends on a subpoena duces tecum, with a document which he refuses to produce on the ground of privilege, secondary evidence will be admissible. If he does not attend on such a subpoena or attends and refuses to produce the writing on any other ground but that of privilege, secondary evidence will not be admissible, but the witness will be punishable for contempt (u). (m) Marine Investment Co. v. Haviside, L. R. 5 E. & I. 624. (n) Rippiner v. Wright, 2 B. & Al. 478. (0) Smith v. Henley, 1 Phil. 391. (P) Fisher v. Samuda, 1 Camp. 193. (q) Waldy v. Gray, L. R. 20 Eq. 250. (r) Per PARKE, B.: Alivon v. Furnival, 1 C. M. & R. 292. (*) See Sugden v. Lord St. Leonards, L. R. 1 P. & D. 154; and In the Goods of Leigh, [1892] P. 82, where the will had been torn into pieces after the testator's death and some of the pieces had been lost. (t) Harris v. Knight, 15 P. D. 170. (u) R. v. Llanfaethly, 2 El. & Bl. 940, When production is refused of a document on the ground of private privilege, secondary evidence of its contents is admissible (r). Where a document is privileged on the ground of public policy, secondary evidence of its contents is inadmissible (y). PROOF OF HANDWRITING. The proof of signatures, or handwriting, is the essential part of the proof of private writings. There are various admissible kinds of such proof. 1. Handwriting may be proved by calling the party who wrote or signed. This is the most satisfactory evidence. 2. By a witness who actually saw the party write or sign. 3. By a witness who has seen the party write on other occasions, even if it be but once only. Such witness must swear to his belief that the writing produced is the writing of the person, and it is not sufficient for him to swear that he thinks that it is (≈). 4. By a witness who has seen documents, purporting to be written by the same party, and which, by subsequent communications with such party, he has reasons to believe the authentic writings of such party. 5. A witness may give his opinion as to the authenticity of a disputed document by comparing the handwriting with any document which has been proved to the satisfaction of the judge to be the genuine writing of the party (a). The witness must be skilled in comparing handwritings, but he need not be a professional expert. Thus in R. v. Silverlock (b), a solicitor who had given considerable study and attention to handwriting was held a competent witness. The practical principles of this department of evidence are well illustrated in the subjoined judgment of PATTESON, J., in Doe v. Suckermore (c). He said: "All evidence of handwriting, except where the witness sees the document written, is in its nature comparison. It is the belief (x) Calcraft v. Guest, [1898] 1 Q. B. 759. (y) Horne v. Bentinck, 2 B. & B. 130; Stace v. Griffith, L. R. 2 P. C. 420. (2) Eagleton v. Kingston, 8 Ves. 473. (a) 28 Vict. c. 18, s. 8. (b) [1894] 2 Q. B. 766. (c) 5 A. & E. 703. |