Russell, 340, 5th ed. Nor is a notice to produce necessary if the document be known and can be proved to be not in existence. R. v. Haworth, 4 C. & P. 254, 19 E. C. L.; R. v. Spragge, cited in How v. Hall, 14 East, 276 (n.). But it is better, and it is the universal practice, to give the notice in writing. No particular form of notice is requisite if it sufficiently appear what the document is which is required to be produced, and when and where that is to be done. Lawrence v. Clark, 14 M. & W. 251. Where under a notice to produce "all letters, papers, or documents touching or concerning the bill of exchange mentioned in the declaration," the party served was called upon to produce a particular letter, Best, C. J., was of opinion that the notice was too vague, and that it ought to have pointed out the particular letter required. France v. Lucy, Ry. & Moo. N. P. C. 341; see also Jones v. Edwards, M'Cl. & Y. 149. But a notice to produce "all letters written by plaintiff to defendant relating to the matters in dispute in this action," Jacob v. Lee, 2 Moo. & R. 33, or "all letters written to and received by plaintiff between 1837 and 1841, both inclusive, by and from the defendants, or either of them, and all papers, etc., relatting to the subject-matter of this cause," Morris v. Hanson, 2 Moo. & R. 392, has been held sufficient to let in secondary evidence of a particular letter not otherwise specified. And see Rogers v. Custance, 2 Moo. & R. 179.

Secondary evidence-notice to produce-to whom and when. In criminal as well as in civil cases it is sufficient to serve the notice to produce, either upon the defendant or prisoner himself, or upon his attorney. Cates, q. t. v. Winter, 3 T. R. 306; M'Nally on Ev. 355; 2 T. R. 203 (n.); 3 Russell, Cri. 342, 5th ed. And it may be left with a servant of the party at his dwelling-house. Per Best, C. J., Evans v. Sweet, R. & M. 83. It must be served within a reasonable time, but what shall be deemed a reasonable time must depend upon the circumstances of each particular case. The prisoner was indicted for arson. The commission day was the 15th of March, and the trial came on upon the 20th. Notice to produce a policy of insurance was served on the prisoner in gaol upon the 18th of March. His residence was ten miles from the assize town. It being objected that this notice was too late, Littledale, J., after consulting Parke, J., said, "We are of opinion that the notice was too late. It cannot be presumed that the prisoner had the policy with him when in custody, and the trial might have come on at an earlier period of the assize. We therefore think that secondary evidence of the policy cannot be received." R. v. Ellicombe, 5 C. & P. 522, 24 E. C. L.; 1 Moo. & R. 260; S. C. R. v. Haworth, 4 C. & P. 254, 19 E. C. L., S. P. So where the notice to produce a policy of insurance was given to the prisoner in the middle of the *day preceding the trial, the prisoner's residence being thirty miles [*12 from the assize town, it was held to be too late. R. v. Kitson, Dears. C. C. R. 187; 22 L. J., M. C. 118. Notice served on the attorney at his office on the evening before the trial, at half-past seven, was held by Lord Denman, C. J., to be insufficient to let in secondary evidence

of a letter in his client's possession. Byrne v. Harvey, 2 Moo. & R. 89; and see also Lawrence v. Clark, 14 M. & W. 250.

In R. v. Barker, 1 F. & F. 326, a notice to produce policies of insurance served on the prisoner's attorney on Tuesday evening, the policies being then twenty miles off, and the trial taking place on the Thursday, was held sufficient, it being shown that there was an opportunity of procuring the policies, if the prisoner had chosen to do so.1

Service of a notice on a Sunday is bad. Per Patterson, J., in Hughes v. Budd, 8 Dowl. P. C. 315.

Secondary evidence-consequences of notice to produce. The only consequence of giving a notice to produce is that it entitles the party giving it, after proof that the document in question is in the hands of the party to whom it is given, or of his agent, to go into secondary evidence of its contents, but does not authorize any inference against the party failing to produce it. Cooper v. Gibbons, 3 Campb. 363. It would seem, however, that the refusing to produce is matter of observation to the jury. Semb. per Lyndhurst, C. B., 4 Tyrwh. 662; 1 Cr. M. & R. 41.2 But see Doe v. Whitehead, 8 A. & E. 571, 35 E. C. L.

If a party to the suit refuses to produce a document when called on, he cannot afterwards produce it as his own evidence: Laxton v. Reynolds, 18 Jur. 963, Ex.; and if the defendant refuses to produce a document, and the plaintiff is thereby compelled to give secondary evidence of its contents, the defendant cannot afterwards produce it as part of his own case, in order to contradict the secondary evidence. Doe v. Hodgson, 12 Ád. & E. 135, 40 E. C. L. If he calls for papers, and inspects them, they will be rendered evidence for the opposite party. Wharam v. Routledge, 5 Esp. 235; Wilson v. Bowie, 1 C. & P. 10, 12 E. C. L.3 Though it is otherwise, if he merely calls for

1 A notice given at the bar during the progress of a trial to produce a paper, is not sufficient unless it appears satisfactorily that the paper is in court at the time, and in possession of the party upon whom demand is made, or if elsewhere, that it could be easy of access. Atwell v. Miller, 6 Md. 10; Barker v. Barker, 14 Wis. 131. Notice a few minutes before is not enough unless the paper is in court. McPherson v. Rathbone, 7 Wend. 216. See Pickering v. Meyers, 2 Bail. 113.

What notice sufficient, see Bogart v. Brown, 5 Pick. 18; Bemis v. Charles, 1 Met. 440. When a paper is in possession of the attorney of the party, he should have notice to produce it, and not a subpoena duces tecum. McPherson v. Rathbone, 7 Wend. 216. A paper being traced into the possession of a prisoner in close custody, notice to produce it was served on him four days before the day of trial; his residence being four and a half miles distant, held that the notice was sufficient to authorize the admission of secondary proof. State v. Hester, 2 Jones, N. C. 83. S.

2 Every intendment is to be made against a party to whose possession a paper is traced, and who does not produce it on notice. Life & Fire Co. v. Mechanics' Co., 7 Wend. 31. But the party is permitted to purge himself on oath from the possession, Vasse v. Mifflin, 4 Wash. C. C. 519. S.

3 If a book or document be called for by a notice to produce it, and it be produced, the mere notice does not make it evidence; but if the party giving the notice takes and inspects it, he takes it as testimony to be used by either party if material to the issue. Penobscot Boom Corporation v. Lamson, 16 Me. 224. A paper produced on notice must be proved, unless he who produces it is a party to it or claims a beneficial

them without inspecting them. Sayer v. Kitchen, 1 Esp. 210. Secondary evidence of papers cannot be given until the party calling for them has opened his case, before which time there can be no cross-examination as to the contents. Graham v. Dyster, 2 Stark. N. P. 23, 3 E. C. L. As against a party who refuses, on notice, to produce a document, it will be presumed that it bore the requisite stamp, but the party refusing is at liberty to prove the contrary. Crisp v. Anderson, 1 Stark. N. P. 35, 2 É. C. L.; Closmadeue v. Carrell, 18 Com. B. 36,

86 E. C. L.

Secondary evidence-privileged communications. The grounds upon which a party can withhold a document which he acknowledges to possess, and which he is called upon to produce, will be stated hereafter in treating of privileged communications in general. It has been held, that it is the party who seeks to give secondary evidence who must satisfy the court that the witness refuses to produce the deed, and is justified in doing so. The party in possession of the document must, therefore, be served with a subpoena duces tecum in the ordinary way, and he must appear in court and claim his privilege. If the privilege be claimed by the witness on behalf of himself, the question, whether or not he is entitled to it, will be *decided on his evidence only; but, if the privilege be claimed by a witness on behalf of another person, as by an attorney on [*13 behalf of his client, it may be necessary to call that person; as, if he were present, he might waive his privilege. But, in the case of an attorney, his assertion, that in withholding the document he is acting by his client's direction, will generally be sufficient. Tayl. Ev. 407; Doe d. Gilbert v. Ross, 7 M. & W. 102; Newton v. Chaplin, 10 C. B. 356, 70 E. C. L.; Phelps v. Prew, 3 E. & B. 430, 77 Ê. C. L. See further post, tit. Privilege of Witness.

The nature of

Secondary evidence-physical inconvenience. the obstacles which render it impossible, or highly inconvenient, to produce a document on physical grounds must be proved in the usual way. This being done to the satisfaction of the court, secondary evidence of the contents will be admitted. Thus, where in an indictment for unlawfully assembling, the question was, what were the devices and inscriptions on certain banners carried at a public meeting, it was held that parol evidence of the inscriptions was admissible; R. v. Hunt, 3 B. & C. 566, 10 E. C. L. So the inscriptions on a monument may be proved by parol; Doe v. Cole, 6 C. & P. 359, 25 E. C. L. But where a notice was suspended by a nail to the wall of an office, it was held that it must be produced; Jones v. Tarleton, 9 M. & W. 675. interest under it. Lessee of Rhoads v. Selin, 4 Wash. C. C. 710. Proof of the handwriting of the signature to a lost instrument, when the knowledge of the witness as to that handwriting has been acquired since he saw the instrument, must be of the most positive and unequivocal kind; such as seeing the party write or acknowledge his signature. Porter v. Wilson, 13 Pa. 641; Stone v. Thomas, 12 Id. 209. Witnesses to prove the contents of a lost instrument may state the substance thereof without giving the exact words. Commonwealth v. Roark, 8 Cush. 210. S.

Secondary evidence may be given of tablets let into walls; or where the original is in a foreign country and cannot be removed. Alivon v. Furnival, 1 C. M. & R. 277; see Boyle v. Wiseman, 10 Ex. R. 647.1

Secondary evidence-public documents. It is not laid down what are public documents; but as in all other cases, it is the party who seeks to give secondary evidence of the document, who must satisfy the court that the document is of a public nature, within the meaning of the rule. Many documents of this kind will be found mentioned in the chapter on Documentary Evidence. It is to be observed, that there is in this case this peculiarity, that a particular kind of evidence is required by the law to be substituted for the original, and no other evidence of contents of public documents is admissible. What this evidence is will be found in the chapter already alluded to.2

Secondary evidence-duty of judge. The preliminary question of fact upon which the admissibility of the evidence depends, is for the decision of the judge, not of the jury. And in order to decide this question, he must receive all the evidence which is tendered by either party upon the point, if such evidence is otherwise proper. Therefore, where a party who had made a prima facie case for the reception of secondary evidence of a document, proceeded to prove its contents by the parol evidence of a witness who had seen the original, on which the opposite party interposed, and showing a document to the witness, asked him if that was the original, which the witness denied; it was held that the judge was bound to decide the collateral question, whether the document thus offered was the original or not, and reject or receive the secondary evidence accordingly. Boyle v. Wiseman, 1 Jur. N. S. 894.

As to degrees of secondary evidence. In Brown v. Woodman, 6 C. & P. 206, 25 E. C. L., 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 *14] 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. This principle 1 Wherever evidence of the condition of clothes or other articles of personal property is material, it may be given by witnesses without producing the things themselves. Commonwealth v. Pope, 103 Mass. 440. S.

'The contents of a judicial record which has been lost may be proved by parol, the same as any other writing. A copy is not required. Bridges v. Thomas, 50 Ga. 378.

It will not do to admit improper evidence, and then leave the question of its pertinency to the jury. That is to submit a question of law to the jury. People v. Ivey, 49 Cal. 56.

was distinctly affirmed in Doe v. Ross, 7 M. & W. 102, and in Hall v. Ball, 3 M. & Gr. 242, 42 E. C. L. The only exception is where, as in the case of public documents, some particular species of evidence has been specially substituted for the original. But, even in this case, if good reason can be shown, why neither the original evidence nor the substituted evidence can be produced, secondary evidence of the ordinary kind will be admissible. Taylor Ev. 459; Thornton v. Shetford, 1 Falk. 284; M'Dougall v. Gowry, Ry. & M. 392; Anon., 1 Vent. 257.1

It is hardly necessary to say that, even if secondary evidence be admissible, a copy of a document is, in itself, no evidence of the contents of the original; and it can only become so when verified by the oath of a witness. Fisher v. Samuda, 1 Camp. 190; Tayl. Ev. 460. Still less is a copy of a copy any evidence of the contents of the original. Evringham v. Roundhill, 2 Moo. & Ry. 138; Zielman v. Pooley, 1 Stark. N. P. 168, 2 E. C. L. But it might become so, if in addition to being itself verified, the copy from which it was taken was verified also.

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 tenor 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. United States v. Britton, 2 Mas. 464. Copies of deeds made by disinterested persons, of good character, and under circumtances that create no imputation of fraud, may be received in evidence when the original is proved to be lost. Allen v. Parish, 3 Hammond, 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 letter book, 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 this particular letter: held sufficient evidence of sending the letter, and that a copy was admissible evidence. Thelhimer v. Brinckerhoff, 6 Cow. 90; United States v. Gilbert, 2 Sumner, 81. A letter-press copy, made at the time of writing the original paper, cannot be read in evidence as an original. Chapin v. Siger, 4 McL. 378. Evidence of the contents of a letter written by the plaintiffs to the defendant is not admissible, where it appeared that the plaintiffs had in their possession a fac-simile of the original which they failed to produce. Stevenson v. Hoy, 43 Pa. 191. S.