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wise if he merely calls for them without inspecting them. Sayer v. Kitchen, 1 Esp. 210(1).
Secondary evidence of papers cannot be given until the party calling [ *12 ] *for them has opened his case, before which time there can be no cross-examination as to the contents. Graham v. Dyster, 2 Stark. 23 (a).
As against a party who refuses, upon 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. 35 (6).
Secondary evidence-loss of document.] Where the original of a document is proved to be lost or destroyed, secondary evidence of its contents may be given in criminal as well as in civil proceedings (2). Thus upon an indictment for false pretences contained in a letter, upon proof of the loss of the letter, parol evidence of its contents is admissible. Chadwick's case, 6 C. and P. 181 (c). 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 the prosecution for a 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 (d). In the case of an useless document, the presumption is that it has been destroyed. Per Bayley, J. The King v. East Farleigh, 6 D. & R. 153 (e). And where the loss or destruction of a paper may alınost be presumed, very slight evidence of such loss or destruction is sufficient. Per Abbott, C. J. Brewster v. Sewell, 3 B. and A. 296 (2) (f). Thus where depositions have been delivered to the clerk of the peace or bis 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. and C. 496 (8) (3).
(1) A paper produced on notice must be proved, unless he who produces it is a party to it, or claims a beneficial interest under it. Lessee of Rhoads v. Selin, 4 Wash. C. C. Rep. 715.
(2) U. States v. Reyburn, 6 Peters, 352; Pendleton o. The Commonwealth, 4 Leigh, 694. Van Deusen o. Frink, 15 Pick. 449. Braintree r. Battles, 6 Verm. 395. Bennet c. Robinson, 3 Stewart, 227. Except where it has been wantonly destroyed by the party himself. Price o. Tallman, 1 Coxe, 447. Broadwell o. Riles, 3 Halst. 275. Or he has had it in bis power to supply the loss. M'Cally v. Franklin, 2 Yeates, 340.
The party himself is competent to prove the loss, to let in secondary evidence ; Chamberlain d. Gorham, 20 Johns. 144. Blanton r. Miller, 1 Hayw. 4. Donelson o. Taylor, 8 Pick. 39. Jackson o. Johns, 5 Cowen, 74. Jackson o. Betts, 9 Id. 208. Grimes d. Talbot, 1 Marsh, 205. Shrawders o. Harper, 1 Harrington, 444. (Contra, Sims o. Sims, 2 Rep. Const. Ct. 225), its previous existence having been first proved aliunde. Meeker and al. o. Jackson, 3 Yeates, 442. He is sworn specially in such cases to make answer, &c. Jackson o. Packhurst, 4 Wend. 309. The evidence of loss is addressed to the court alone. Jackson o. Frier, 16 Johns. 193. Page o. Page, 15 Pick. 368. Witter v. Latham, 12 Conn. 392.
The instrument must be proved to liave been duly executed. Kimball 0. Morell, 4 Greenl. 368. M'Pherson r. Rathbone, 7 Wend. 216. Jackson 0. Vail, Id. 125.
(2) Jackson r. Root, 18 Johns. 60. (3) It is enough to show reasonable diligence. Minor o. Tillotson, 7 Peters, 99. Mere (a) Eng. Com. L. Rep. iii. 225. (b) Id. ii. 283. (c) Id. xxv. 344. (d) Id. xiii. 443. () Id.
xvi. 260. (f) Id. v. 291. (g) Id. ix. 160.
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. and C. 36 (a), 2 M. and 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 any thing being kept back. Where an attorney or officer is applied to for documents the court will assume till the contrary is proved, that all the documents relating to the subject of inquiry are produced. M'Gayey v. Alston, 2 M. and W. 213.
When the document was in the possession of a party who is dead, bis declarations as to its loss or destruction are admissible after his death. Rex v. Morton, 4 M. & S. 48. See Rex v. Piddlehinton, 33 B. and Ad. 460 (6), 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 inadmis- [ *13 ] sible. Rex v. Rawden, 2 A. and E. 156 (c). Where the party in whose possession the instrument was is alive, his declarations are inadınissible, and he ought to be called as a witness. Rex v. Denio, 7 B. and C. 620 (d). Parkins v. Cobbett, 1 C. and P. 282 (e).
As to degrees of secondary evidence.] In Brown v. Woodman, 6 C. and P. 206 (S), 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 only one 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 sce Doxon v. Haigh, 1 Esp. 411. But in Liebman v. Pooley, 1 Ştark. 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(8), 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 " authentic and satisfactory evidence of the contents of the deed than any other drast or copy.” And in Doe v. Wainwright, 5 A. and E. 520 (h), 1 Nev. and 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 it was proved to be in existence. 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 C. and P. 206 (a). Alivon v. Furnival, 4 Tyrwh. 757 (1).
proof by a witness that he assisted the plaintiff in searching among his papers is not sufficient. Sims r. Sims, 2 Rep. Const. Ct. 225. Evidence which leaves the inind in doubt whether success would not have attended a further search will not do. Stoddart o. Vestry, 2 Gill. & Johns. 227. Presumptive evidence of loss is often enough. Taunton Bank o. Richardson, 5 Pick. 436. Jackson i. Woolsey, 11 Johns. 446. Patterson o. Winne and al., 5 Peters, 233. S. C. 9 Id. 663. 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 o. Sill, 5 Conn. 146. See Thallhimer v. Brinckerhoff, 6 Cowen, 90. (a) Eng. Com. L. Rep. xv. 155. (b) Id. xxiii. 121. (c) Id. xxix. 54. (d) Id. xiv. 102.
(e) Id. vi. 314. (1) Id. xxv. 35 (g) Id. xi. 108. (h) Id. xxxi.
General nature of Presumptive Evidence and when Admissible
Arising from the possession of stolen Property
13 15 16 17 18 20 21 21
General nature of presumptive evidence—and when admissible.) [*14] 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. and A. 161 (6). 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 instance selected by Chief Baron Gilbert to illustrate the nature of presumption is, where a man is discovered suddenly dead in a rooni, 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. 166, 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 adopted as a ground of judg. ment than in the latter case, which affects life and liberty.". The same doctrine is asserted by Mr. M'Nally, in his Rules of Evidence on Pleas of the Crowń, p. 578. “Every thing," he observes, "is à 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
(1) U. S. r. Gilbert, 2 Sumner, 81.
(a) Eng. Com. L. Rep. xxv. 358. (b) Id. vi. 385,
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 to
core sequences which are to ensue upon that discovery seem to have no .
ing upon the application of the rule. Great caution is doubtless necessary in all cases of presumptive evidence, and, accordingly Lord Hale bas laid down two rules with regard to the acting upon such evidence 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 Comm. 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, were 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 *15) 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 uaturally 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 evidence; 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 foriner evidence has been admitted. It 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. u. 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 licence of a lord to enclose 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, I A. and E. 536 (a). The flowing of the tide is presumptive evidence of a public navigable [ *16 ] river, the weight *of such evidence depending upon the nature and situation of the channel. Miles v. Rose, 5 Taunt, 705 (6), 1 Marsh. 313, S.C. R. v. Montague, 4 B. and C. 602 (c). The existence of an immemorial custom may be presumed from an uncontradicted usage of twenty years. Joliffe's case, 2 B. & C. 54 (d), 3 D. and R. 240, S. C.
So a letter is presumed, as against the writer, to have been written upon the day on which it bears date, Hunt v. Massey, 5 B. and Ad. 902 (e); 3 Nev. and M. 109; and a bill is presumed to be made on the day it is dated. Owen v. Waters, 2 M. and W. 91. So the presumption is that indorseinents on a note admitting the receipt of interest were written at the time of their date. Smith v. Battens, 1 Moo, and R. 341. See also Sinclair v. Baggalley, 4 M. and 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 statute 2 and 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, 1 B. and A. 386. But the observations of Bailey, 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. and E. 544 (f ), where it was decided that the court of Quarter Sessions, were right in presuming that the first wife was living, although such presumption led to the conclusion that the husband had been guilty of bigamy. It is to be observed, that the circumstances of the two cases differed so much as to justify the court of Quarter Sessions even on the doctrine of contrary presumptions, in coming to opposite conclusions upon them. It is a rule, that illegality is never to be presumed, but the presumption is that a party complies with the law. Sissons v. Dixon, 5 B. & C. 758 (8). Thus legitimacy is always presum
(1) The People v. Reed, 11 Wend. 158.
(2) Gray d. Gardiner, 3 Mass. 399. (a) Eng. Com. L. Rep. xxviii. 143. (6) Id. i. 240. (C) Id. x. 415. (d) Id. ix. 21. (e) Id.
xxvii 230. (f) Id. xxix. 161. () Id. xii. 371.