a clergyman for non-residence, the acts of defendant as parson, and his receipt of the emoluments of the church, will be evidence that he is parson without further formal proof. Bevan v. Williams, 3 T. R. 635 a, 1776; cf. Smith v. Taylor, 1 New Reports, B. & P. 196, 1805. On the trial of a letter-carrier, proof that he acted as such was held to be sufficient proof of his appointment. Borrett, 6 C. & P. 124, 1833. See under Post Office. Cf. H. J. Lawson, 1905.

A bond from defendant to a parish incidentally admitting that his trade in a former residence was a nuisance is admissible on a later trial: Neville, 1792. So of action or acquiescence on a correspondence: O'Brien, 1911. There does not, on principle, seem any reason why the admissions of a defendant should not be receivable in evidence as well when they relate to the contents of a written document in issue not produced, as when they amount to direct confessions of guilt. This kind of admission' differs from that considered on p. 2. Any admission against himself which a defendant makes in his (unsworn) statement to the court or on oath-more properly called a confession '—is not only good evidence, but the best: optimum habemus testem confitentem reum. For false admissions, see under Plea of Guilty.

Secondary evidence-lost documents] Secondary evidence means inferior or substitutionary evidence, that which itself indicates the existence of more original sources of information': Phips. 2, 511. The most frequent case is that in which a document has been lost or destroyed. Indenture of apprenticeship (possibly burned 20 years before) proved by parol: Inhabs. of St. Marylebone, 4 Dow. & Ry. 479, 1824, followed in Inhabs. of Fordingbridge, 27 L. J. M. C. 290, 1858; same point: after due search parol evidence of facts 67 years before accepted: Giles v. Smith, 1 C. M. & R. 462, 1834. In order to lay the necessary foundation for the admission of secondary evidence, it must be shown that the document has once existed, and has either actually ceased to exist, or that all reasonable efforts have been made to find it and have failed. Reason (Str.), at 500, 1722; Dillon, 1877. See Depositions.

The degree of diligence to be exercised in searching for a document will depend in a great measure on its importance and the circumstances of each case. Gully v. Bishop of Exeter, 4 Bing. 298, 1827; Gathercole v. Miall, 15 M. & W. 319, 335; 15 L. J. Exch. 79, 1846. The question is for the judge: Boyle v. Wiseman, 11 Ex. 360; 10 Ex. 647; 1 Jur. N. S. 894, 1855, where the rule was applied to a document in a foreign country, which the owners there refused to produce: cf. p. 15, and Alivon v. Furnival. In the case of a useless document the presumption is that it is destroyed: per Bayley J., in Inhabs. of E. Farleigh, 6 D. & R. 147, 1825. And, where the loss or destruction of a paper is highly probable, very slight evidence is sufficient: per Abbott C.J., in Brewster v. Sewell, 3 B. & Ald. 296, 1820. Where depositions have been delivered to the clerk of the peace or his deputy, and the practice is, on a bill being thrown out, to put them away as useless, slight evidence of search is sufficient, and the deputy need not be called, as they were not in his custody, it being his duty to deliver them to his principal: Freeman v. Arkell, 2 B. & C. 494, 1824; 1 C. & P. 137, 1823.

Where it is the duty of anyone 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. Inhabs. of Stourbridge, 8 B. & C. 96, 1828. And where an attorney or officer' is asked generally for

Lost Documents: Notice to Produce.

11

documents, the court will assume, until the contrary is proved, that all the documents relating to the subject are produced. M'Gahey v. Alston, at 214, per Alderson B. But where an attorney was asked for a document which related to his own private affairs, and by his direction a search was made in his office, and the document was not found, the Q. B. refused to say that the quarter sessions were wrong in deciding that there had not been a sufficient search for the purpose of letting in secondary evidence, because the office was not proved to be the proper place of deposit, the attorney not being called. Inhabs. of Saffron Hill, 1 E. & B. 93; 22 L. J. M. C. 22, 1852.

It is not necessary in every case to call the person to whose custody the document is traced. Ib. But some doubt seems to have existed whether, if he be not called, evidence can be given of answers made by him to inquiries respecting the document. Such evidence appears to have been received in Inhabs. of Morton, 4 M. & S. 48, 1815, but was rejected in Denio, 7 B. & C. 620, 1827, where, however, a material witness was not called. In Inhabs. of Kenilworth, 7 Q. B. 642, 1845, a very strong court thought that for this preliminary purpose such evidence ought to be received, and L. Denman comments on the distinction between Morton and Denio; in the Saffron Hill Case, evidence of this kind had been received, but as the court thought that, even if receivable, it was insufficient for the purpose, the point remained undecided. However, in Inhabs. of Braintree, 28 L. J. M. C. 1, 1858, the Q. B. thought that answers to such inquiries were admissible to satisfy the conscience of the court that the search had been a reasonable one, agreeing with the Kenilworth case that hearsay might be admitted. But in forgery, it is of the highest importance' to account for the loss of the original document alleged to be forged, for defendant may wish the jury to inspect it: it is, therefore, not enough for the prosecuting attorney to prove that he had it and gave it to his clerk, who, he believed, had accidentally burned it: as the clerk was not called, there was an acquittal: per Cleasby B., and Byles J., Hall, 2 Cox C. C. 160, 1872.

The construction of a lost document, by means of the secondary evidence, is for the judge, though the jury disagree: Berwick v. Horsfall, 4 C. B. N. S. 450, 1848.

Documents in the hands of adverse party-Notice to produce] When a document is in the hands of the adverse party, a notice to produce it in court must be given to him, before secondary evidence of its contents can be received. Its object is not, as was formerly thought, to give the holder an opportunity of providing the proper testimony to explain or confirm the document, but it is merely to enable him to produce it if he likes at the trial, and thus to secure the best evidence of its contents. Therefore, when a document is shown to be in court, a request to produce it immediately is enough. Dwyer v. Collins, 7 Ex. R. 639; 21 L. J. Ex. 225, 1852. A. and B. were indicted for conspiring to extort money from C., by charging him with forging a cheque for 1787.; the indictment set forth a letter from A. to C., referring to the cheque, and conversations were proved, relating to it. It was, in fact, in existence (in defendants' possession), but it was not produced at the trial, and such production was held to be unnecessary; for the defendants had taken on themselves to treat the cheque as existing, and it might have been that the existence of such a cheque was altogether a fabrication. Ford, 1 Nev. & M. 776, 1833. Defendant's letter-copy-book was read: Francia, 15 St. Tr. 941, 1717. In

Layer, 1722, it was proved by a witness, that defendant had shown him a paper partly doubled up, which contained the treasonable matter, and then immediately put it in his pocket; and no objection was made to the witness giving parol evidence of the paper. Defendant not producing, after notice, letters from himself to C., on the ground that they might incriminate him, the Crown was allowed to read copies they had got: Le Merchand, coram Eyre B., 1 Lea. 300 n.; 2 T. R. 201 n., 1772. Cf. Nisbett, 6 Cox C. C. 321-2, 1853. When the contents of a lost letter may be put to a witness in chief,' see Courteen v. Touse.

But where it was proved that a ring which had been stolen had an inscription on it, and that defendant had been seen with a ring like it, and with an inscription on it, the crown was not permitted to ask what was the inscription on the ring seen in his possession, no notice to produce it having been given him. (Sed quære,' headnote.) Farr, 4 F. & F. 336, 1864. But cf. Francis, 1874, and Aickles, 1784. Where a witness accidentally dropped a medal, the subject of an indictment, on the floor of the court while giving evidence and after more than half an hour's strict search by him and the ushers, it could not be found, he was not allowed to describe the reverse from memory. Robinson, 1865.

So, when the document appears to have been in the hands of the agent or servant of defendant in such circumstances, as that it might be presumed to have reached him. Col. Gordon was indicted for the murder of Lieut.-Col. Thomas in a duel. Gordon's challenge was carried by his servant, and delivered to Thomas's, who brought an answer and delivered it to Gordon's; but it did not appear in fact, that this letter was ever delivered to Gordon himself. Eyre B. permitted an attested copy of the latter letter to be read against defendant, and left it to the jury as evidence, if they were of opinion that the original had ever reached defendant's hands. Hotham B. concurred; but Gould J. thought that positive evidence ought to be given that the original had come to defendant's hands. Gordon, 1 Lea. 300 n., 1784. Where defendant's attorney produced a deed as part of the evidence of his client's title on an ejectment, in which defendant was lessor of the plaintiff, and the deed was delivered back to the attorney after the trial, it was held to be in defendant's possession, and he not producing it after notice, secondary evidence of it was received-as had been previously done by the grand jury: per Vaughan B. Hunter, 4 C. & P. 128, 1829.

The proper course for an attorney, on subpœna duces tecum, seems to be to deliver incriminating documents to his client: per L. Mansfield Dixon, 3 Burr. 1688, 1765. But in order to render a notice to produce available, the document must be shown to be in the power of the opposite party, or of some person in privity with him, who is bound to give up possession of it to him. Therefore, where a document is in the hands of a person as a stakeholder between defendant and a third party, a notice to defendant to produce will not let in secondary evidence. The right must be not merely to inspect but to retain.' Parry v. May. 1 Moo. & R. 279, 1833. See also Laxton v. Reynolds, 18 Jur. 963, 1854.

Notice to produce-when unnecessary] Where defendant is charged with the theft of the document in question (or, generally, must be aware from the nature of the case that it will be assumed that it is in his power, as in Ford, 1833), such a notice is unnecessary. Thus it was held by the twelve judges on a charge of stealing a bill of exchange,

where a subpoena duces tecum had been served on the person last seen. with it, parol evidence of its contents might be given, without any proof of a notice. Aickles, 1 Lea. 297 n., 1784; 2 East, P. C. 675. So, on a trial for administering an unlawful oath, it may be proved by parol that defendant read the oath from a paper, although no notice to produce that paper has been given, per Ľ. ‘Alvanley, Moors 6 East, 421 n., with which Farr, above, seems inconsistent.

But an indictment for arson with intent to defraud an insurance office is not such a notice to defendant as will dispense with a notice to him to produce this policy, so as to let in secondary evidence. Ellicombe, Doran, Kitson. Perjury being assigned on defendant's statement that there was no draft of a statutory declaration, it was held that secondary evidence of the (alleged) draft last seen in his possession was inadmissible, no notice having been given and that the indictment charged did not operate as a notice, on the ground that in the course of the trial, the exact contents of that draft became essential,' and so did the alterations alleged: Elworthy, L. R. 1 C. C. R. 103; 37 L. J. M. C. 3, 1867: c. q.

The notice is not necessary if the document can be proved to be no longer in existence. Haworth, 4 C. & P. 254, 1830; Spragge (before 1800), cited in How v. Hall, 14 East, 276 n., nor where the document tendered in evidence is a duplicate original: per L. Ellenborough, Philipson v. Chace, 2 Campb. 110, 1809; Colling v. Treweek, 6 B. & C. 394, 1827; cf. Watson, 1817; or a counterpart; Burleigh v. Stibbs, 5 T. R. 465, 1793; Roe d. West v. Davis, 7 East, 363, 1806; cf. Mayor of Carlisle v. Blamire, 8 East, 487, 1807: both of these executed by the other side being primary. Or notices served on the adversary, e.g., of action; Jory v. Orchard, 2 B. & P. 39, 1799; or to quit, ib. 41; or of the dishonour of a bill of exchange, Kine v. Beaumont, 3 B. & B. 288, 1822, where a copy of the letter giving notice was admitted. Nor is the notice necessary to one who has fraudulently or forcibly obtained possession of the document, as from a witness in fraud of his subpœna duces tecum. Leeds v. Cook, 4 Esp. 256, 1803. On what are originals,' duplicate originals, and counterparts, see Phips. 509.

In Bate v. Kinsey, 1 Cr. M. & R. 38; 4 Tyrwh. 662, 1834, where an attorney pleading his privilege refused to produce a deed in court, parol evidence of the contents was not allowed, but cf. Dwyer v. Collins above.

Notice to produce-Form] It is not necessary that a notice to produce shall be in writing: Smith v. Young. But it is better, and it is the universal practice, to give it in writing. No particular form is requisite in criminal proceedings, provided it sufficiently appear what the document is which is required, and when and where it is to be produced: Lawrence v. Clark, 14 M. & W. 251, 253, 1845. So the contents of a notice to an alleged habitual criminal may be proved without notice to him to produce it: Turner, at 157, 1909. Where under a notice for all letters, papers, or documents touching or concerning the bill of exchange mentioned in the declaration,' the person served was called on 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, 1825; Jones v. Edwards, M'Cl. & Y. 139, 1825-letter written nine years before. But a notice to produce all and every letter written by' plaintiff to defendant relating to the matters in dispute in this

action,' Jacob v. Lee, 2 Moo. & R. 33, 1837, or all letters written to and received by you [plaintiff] between 1837 and 1841, both inclusive, by and from defendants, or either of them, or any person in their behalf, and also all books, papers, &c., relating to the subject-matter of this cause,' Morris v. Hauser, 2 Moo. & R. 392, 1841, 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, 1839.

Notice to produce-to whom and when-third persons] It is sufficient to serve the notice to produce, either on the defendant himself, or on his attorney: Cates, q. t., v. Winter, 3 T. R. 306, 1789. So Le Merchand, 1772. Cf. Hunter, 1829, and Hughes v. Budd, below. 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, 1824. It must be served within a reasonable time, but what is a reasonable time depends on the circumstances of each case. Commission day was the 15th of March, and a trial for arson came on on the 20th. Notice to produce a policy of insurance was served on defendant in gaol on the 18th. His residence was ten miles from the assize town. On objection that this notice was too late, Littledale J. (and 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.' Ellicombe, 1833; Haworth, 1830. So, where the notice about a policy was given to defendant in the middle of the day preceding the trial, his residence being thirty miles from the assize town, it was held to be too late: Kitson. Notice served on the attorney at his office on the evening before the trial, at half-past seven, too late for him to communicate with the client, was held by L. 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, 1838; and Lawrence v. Clark. Cf. title, Subpæna.

In Barker, 1 F. & F. 326, 1858, a notice about policies served on defendant'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 them, if defendant had chosen to do so.

For documents in the hands of third persons, not compellable by law to produce, and refusing, the general rule is that secondary evidence is admissible: per Parke B., Doe v. Ross, 7 M. & W. 122, 1840; cf. Boyle v. Wiseman. See, generally, Privilege of Solicitors. Service of a notice on Sunday is bad: per Patteson J., in Hughes v. Budd, 8 Dowl. P. C. 315, 1840.

Effect of disregarding notice] For the general consequences of giving this notice, see above; it does not authorise any inference about contents. Cf. Doe v. Whitehead, 8 A. & E. 571, 1838; Cooper v. Gibbons, 3 Campb. 363, 1813. Semble, however, that the refusing to produce is matter of observation to the jury: per L. Lyndhurst C.B., Bate v. Kinsey.

If defendant refuses to produce a document, and secondary evidence of its contents is thereby let in, he cannot afterwards produce it as part of his own case, in order to contradict that evidence. Doe v. Hodgson, 12 Ad. & E. 135, 1840; Laxton v. Reynolds. Secondary evidence of papers cannot be given earlier than the primary could, i.e.,