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ON SECONDARY EVIDENCE-PROOF OF HANDWRITINGATTESTING WITNESSES WRITINGS THAT REFRESH THE MEMORY.
WHEN a party has done everything in his power to bring before the court primary evidence of his case, as by searching for documents in places where it was most reasonable to expect them to be deposited, or by giving an opposite party notice to produce them, he will then, and not till then, if he be unsuccessful in his exertions, be permitted by the court to give secondary evidence of such documents.
There are no degrees in secondary evidence; and, therefore, when the absence of primary evidence is explained satisfactorily, any species of admissible secondary evidence may be substituted for the original. Thus, a lost deed may be proved, either by an attested copy or an examined copy, or by oral evidence of any one who can swear positively to the contents of the original. Accordingly, 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.1 " 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
1 Brown v. Woodman, 6 C. & P. 206.
evidence behind in the party's own power and possession ; 991 and, therefore, it was held in Doe dem. Gilbert v. Ross, 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 copy, 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.2
Although either a copy or oral proof of an original will be equally admissible as secondary evidence, the copy of a copy, although compared with it, will be inadmissible, notwithstanding that the first copy is also proved to have been compared carefully with the original.3
It will be presumed, in the absence of contrary evidence, that the original was properly stamped, if it required to be stamped, and an unstamped copy will be good secondary evidence; but if the original would have been inadmissible for want of a stamp, secondary evidence of it cannot be received.5
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.
All originals must be accounted for before secondary evidence can be given of any one.7
If a witness attend on a subpœna duces tecum, with a document which he refuses to produce on the ground of privilege, secondary evidence will be admissible. But if he do not attend on such a subpoena, or attend and refuse to produce the writing on any other ground
1 Parke, B.: Doe dem. Gilbert v. Ross, 7 M. & W. 102.
2 Tayl. 438.
3 Liebman v. Pooley, 1 Stark. 167.
4 Crisp v. Anderson, 1 Stark. 35.
5 Crowther v. Solomons, 6 C. B. 658.
6 Fisher v. Samuda, 1 Camp. 193.
7 Parke, B.: Alevon v. Furnival, 1 C. M. & R. 292.
but that of privilege, secondary evidence will not be admissible, but the witness will be punishable for contempt.1
ON THE 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 a witness who actually saw the party write or sign. This is the most satisfactory evidence.
2. By a witness who has seen the party write on other occasions, even if it be but once only.
3. 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 reason to believe the authentic writings of such party.
4. Under the Common Law Procedure Act, 1854, s. 27, in civil cases, 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.
The practical principles of this department of evidence are well illustrated in the subjoined judgment of Patteson, J., in Doe dem. Mudd v. Suckermore.2
"All evidence of handwriting, except where the witness sees the document written, is in its nature comparison. It is the belief which a witness entertains upon comparing the writing in question with an exemplar in his mind derived from some previous
1 R v. Llanfaethly, 23 L. J. 33, M. C.
2 5 A. & E. 730.
knowledge. That knowledge may have been acquired, either by seeing the party write, in which case it will be stronger or weaker according to the number of times and the periods and other circumstances under which the witness has seen the party write; but it will be sufficient knowledge to admit the evidence of the witness (however little weight may be attached to it in such cases), even if he has seen him write but once, and then merely signing his surname; or the knowledge may have been acquired by the witness having seen letters or other documents professing to be the handwriting of the party, and having afterwards personally communicated with the party upon the contents of those letters or documents, or having otherwise acted upon them by written answers producing further correspondence or acquiescence by the party in some matter to which they relate; or by any other mode of communication between the party and the witnesses, which, in the ordinary course of transactions of life, induces a reasonable presumption that the letters or documents were the handwriting of the party; evidence of the identity of the party being of course added aliunde, if the witness be not personally acquainted with him. These are the only modes of acquiring a knowledge of handwriting which have hitherto, as far as I have been able to discover in our law, been considered sufficient to entitle a witness to speak as to his belief in a question of handwriting. In both the witness acquires his knowledge by his own observation upon facts coming under his own eye, and as to which he does not rely on the information of others; and the knowledge is usually, and especially in the latter mode, acquired incidentally, and, if I may say so, unintentionally, without reference to any particular object, person, or document."
On these common law principles, the Common Law Procedure Act, 1854, has engrafted the principle numbered 4, suprà. The 27th section enacts that—
Comparison of a disputed writing with any
writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute."
Before any writing is admissible under this section as a standard of comparison, its genuineness must be proved.1
The 103rd section provides that the act "shall apply and extend to every court of civil judicature in England and Ireland." The act, therefore, does not extend to criminal proceedings; and in them, therefore, it appears that the practice continues as it existed in civil as well as criminal proceedings before the act; and that comparison of disputed handwriting with an admitted genuine document will be allowable only when the latter comes before the jury in the course of the case.2
ON PROOF BY ATTESTING WITNESSES.
It was a common law principle, that where a private writing was subscribed by one or more attesting witnesses, such attesting witnesses, or some one of such attesting witnesses, must be called to prove the execution of the instrument; and it was not competent to a party to prove it, even by the admission of the party by whom it was executed.
But by the 17 & 18 Vict. c. 125, s. 26 (Common Law Procedure Act, 1854), it is enacted that "it shall not be necessary to prove, by the attesting witness, any instrument, to the validity of which attestation is not requisite; and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto."
1 Hughes v. Lady Dinorben, 32 L. T. 271. 2 Tayl. 1433.