Primary evidence-exceptions-persons acting in a public capacity.] Where persons, acting in a public capacity have been appointed by instruments in writing, those instruments are not considered the primary evidence of the appointment, but it is sufficient to show that they have publicly acted in the capacity attributed to them. Thus in the case of all peace officers, justices of the peace, constables, &c. it is sufficient to prove that they acted in those characters without producing their appointments, and this even in the case of murder. Per Buller, J., Berryman v. Wise, 4 T. R. 366. Gordon's case, 1789, cited, Ib. (1) So, where on an indictment for perjury, in an answer to an allegation in the Ecclesiastical Court, in order to prove that the person by whom the oath was administered, was a surrogate, evidence was given of his having been in the habit of acting in that capacity, Lord Ellenborough said, "I think the fact of his having acted as surrogate is sufficient primâ facie evidence that he was duly appointed, and had competent authority to administer the oath. I cannot, for this purpose, make any distinction between the Ecclesiastical Courts and other jurisdictions. It is a general presumption of law, that a person acting in a public capacity is duly authorized so to do." Verelst's case, 3 Campb. 432. So where an affidavit purported to be sworn before a commissioner, proof of his acting as such was held by Patteson, J. to be sufficient. Howard's case, I Moo. and Rob. 187. In an action on an attorney's bill, it was proved by the defendant that the plaintiff was admitted an attorney of the King's Bench in 1792, and had ceased for more than one year to take out his certificate; it was contended that it lay upon him to prove his re-admission, but as he had proved that he had acted as an attorney of the Common Pleas in 1824, it was held that it was to be presumed he had lawfully acted in that character, in that court, till the contrary was proved. Pearce v. Whale, 5 B. and C. 38 (a). So where the directors and overseers of a parish were by a local act to sue and be sued in the name of their vestry clerk, it was held, that proof of his having acted as vestry clerk was sufficient prima facie evidence of his being regularly appointed such clerk. M'Gahey v. Alston, Tyrwh. and G. 981.

Al

Primary evidence—exceptions-admissions by the party.] though, as already stated (ante, p. 3), the contents of a written instrument cannot be proved against a party by his admission, yet where he is charged as bearing some particular character, the fact of his having acted in that character will be sufficient evidence, as an admission, without reference to his appointment being in writing. Thus in an action for penalties against a collector of taxes, under 43 Geo. 3, c. 99, s. 12, the warrant of appointment was not produced, *but it was held that [*8] the act of collecting the taxes was sufficient to prove him to be collector. Lister v. Priestly, Wightw. 67. So on an information against an officer for receiving pay from government for a greater number of men than had mustered in his corps, Lord Ellenborough held that the fact of his being commandant might be proved from the returns, in which he de

(1) Basset v. Reed, 2 Ohio, 410. Thus also that defendant was an innkeeper, though his license were on record. Owings v. Wyant, I Har. & M'Hen. 393. And proof of a clergyman's or magistrate's authority to marry is prima facie sufficient in a prosecution for bigany. Damon's case, 6 Green!. 148. See Dean v. Gridley, 10 Wend. 254.

(a) Eng. Com. L. Rep. xi. 138.

scribed himself as major commandant of the corps, without adducing direct evidence of his appointment by the king. Gardner's case, 2 Campb. 513. So in an action against a clergyman for non-residence, the acts of the defendant as parson, and his receipt of the emoluments of the church, will be evidence that he is parson, without formal proof of his title. Bevan v. Williams, 3 T. R. 635, (a). Smith v. Taylor, 1 Bos. and Pul. N. R. 210. Again, upon an indictment for embezzlement under 2 Wm. 4, c. 4, against a letter carrier, proof that he acted as such was held to be sufficient, without showing his appointment. Barrett's case, 6 C. and P. 124 (a).

In the same manner, where the appointment or particular character of the other party is to be proved, the admission of the party against whom the evidence is offered, will not be secondary evidence, although the appointment be in writing. Thus in an action for penalties on the Post Horse Act, brought by the farmer of the tax, it was held not to be necessary for the plaintiff to give in evidence his appointment by the Lords of the Treasury or the Commissioners of the stamp duties; proof that the defendant had accounted with him as farmer of the duties, being sufficient. Radford v. M'Intosh, 3 T. R. 632. See Smith v. Taylor, 1 Bos. & Pul. N. R. 211. So in an action for slandering the plaintiff in his profession of an attorney, the words being "that the defendant would have him struck off the roll," &c. it was held that this was an admission by the defendant, that the plaintiff' was an attorney, and sufficient evidence of that fact. Berryman v. Wise, 4 T. R. 366. The rule is thus stated by Heath, J. in Smith v. Taylor, 1 Bos. & Pul. N. R. 208. 66 Where a defendant, in the course of the transaction on which the action is founded, has admitted the title by virtue of which the plaintiff sues, it amounts to prima facie evidence that the plaintiff is entitled to sue."

Secondary evidence—when admissible in general.] It is an established rule that all originals must be accounted for, before secondary evidence can be given of any one. Alivon v. Furnival, 4 Tyrwh. 767. 1 Crom. M. & R. 292, S. C. Secondary evidence is admissible, where the primary evidence, being documentary, is either lost or destroyed, or where it is in the hands of the opposite party, or of his privy or agent; or in the hands of a person privileged from producing it, and who being required to do so, insists upon his privilege, (see Marston v. Downes, 6 C. & P. 381, (b), and 1 A. & E. 31 (c), S. C.); or where, in certain cases, as in the case of tablets let into walls, it is impossible to produce the original in court without great inconvenience; or where the original is in a foreign country and is not legally removable from its place of deposit. Alivon v. Furnival, 4 Tyrwh. 751. 1 Cr. M. & R. 277. In [ *9] these *instances, under certain regulations, and subject to certain preliminary steps, secondary evidence is admissible (1).

(1) Lynde v. Judd, 3 Day, 499. So where witness refuses to produce it, after being served with a subp. duces tecum. Richards v. Stewart, 2 Id. 328. It seems that there is no case where parol evidence has been admitted merely because a paper is in the hands of a third person, and the court in their discretion, have refused a subp. duces tecum. Gray v. Pentland, 2 S. & R. 31.

So upon the preliminary question of the competency of a witness. Hays v. Richardson, J Gill & Johns. 366. Stebbins and an. v. Sacket, 5 Con. 258. Carmalt r. Platt, 7 Watts, 318. Or to impeach his credit. State v. Ridgely, 2 Har. & M'Hen. 120. Clarke v. Hall, 2 Id. 378. Post, p. 153.

(a) Eng. Com. L. Rep. xxv. 312. (b) Id. xxv. 448. (c) Id. xxviii. 24.

The refusal of a third person to produce a document in his possession on subpoena, which he is not justified in withholding, will not let in pa rol evidence of its contents; the only remedy of the party is by an action against him. Jesus College v. Gibbs, 1 Y. and Coll. 156.

Secondary evidence-nolice to produce-in general.] Where a document is in the hands of the other party, a notice to produce it in court must be given to him, before secondary evidence of its contents can be received. There is no distinction between civil and criminal cases, with regard to the production of documents after notice given to produce them, and with regard to the admissibility of secondary evidence in case of their non-production. Le Merchand's case, coram Eyre, B. 1 Leach, 300 (n). In Layer's case for high treason, it was proved by a witness, that the prisoner 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. 6 State Trials, 229. (fo. ed.) 16 Howell's St. Tr. 170, S. C. Francia's case, 15 Howell's St. Tr. 941.

A notice to produce will let in secondary evidence in criminal as well as civil cases, where the document to be produced appears to have been in the hands of the agent or servant of the prisoner, under such circumstances as that it might be presumed to have come to his own hands. Col. Gordon was indicted for the murder of Lieut. Col. Thomas in a duel. The letter from Gordon containing the challenge was carried by Gordon's servant, and delivered to Thomas's servant, who brought a letter in answer, and delivered it to Gordon's servant; but it did not appear in fact, that the letter was ever delivered to Gordon himself. Mr. Baron Eyre permitted an attested copy of the latter letter to be read against the prisoner, and left it to the jury as legal evidence, if they were of opinion that the original had ever reached the prisoner's hands. Hotham, B. concurred, but Gould, J. thought that positive evidence ought to be given that the original had come to the prisoner's hands. Gordon's case, O. B. 1784. 1 Leach, 300 (n). Where a prisoner's attorney produced a deed as part of the evidence of his client's title upon the trial of an ejectment, in which the prisoner was lessor of the plaintiff, and the deed was delivered back to the attorney when the trial was over, it was held to be in the prisoner's possession, and the prisoner not producing it in pursuance of notice, secondary evidence of its contents was received. Per Vaughan, B. Hunter's case, 4 C. and P. 128 (a).

In order to render a notice to produce available, the original instrument must be shown to be in the possession 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 the defendant and a *third party, a notice to [*10] produce will not let in secondary evidence of its contents. Parry v. May, 1 Moo. and R. 279.

Secondary evidence-notice to produce-when dispensed with.] Where from the nature of the prosecution the prisoner must be aware that he is charged with the possession of the document in question, a

(a) Eng. Com. L. Rep. xix. 306.

notice to produce it is unnecessary (1). Thus upon an indictment for stealing a bill of exchange, parol evidence of its contents may be given, without any proof of a notice to produce. Aickles' case, 1 Leach, 294. 2 East, P. C. 675. So upon an indictment for forging a note, which the prisoner afterwards obtained possession of and swallowed, Buller, J. permitted parol evidence of the contents of the note to be given without any notice to produce. Spragg's case, cited 14 East, 726. In the case of De la Motte, indicted for high treason, his correspondence was secretly opened, copies of the contents taken, and the originals sealed again, and forwarded to the place of destination. The original letters having been proved to be written by the prisoner, the copies proved to be examined were admitted in evidence. De la Motte's case, 1 East, P. C. 124. So upon the trial of an indictment for administering an unlawful oath, it may be proved by parol that the prisoner read the oath from a paper, although no notice to produce that paper has been given. Moor's case, 6 East, 419 (n). Hunt's case, 3 B. and A. 568, (a) ante, p. 4.

But an indictment for setting fire to a dwelling-house with intent to defraud an insurance office, is not such a notice to the prisoner as wil! dispense with a notice to produce the policy of insurance, so as to let the prosecutor in to give secondary evidence of its contents. Ellicombe's case, 5 C. and P. 522 (b). 1 Moo. and R. 260, S. C. post, p. 11.

In a case of forgery, where the prisoner was proved to have said that he had destroyed the forged deed upon which the charge was founded, it was held to be unnecessary, (per. Park, J.) to prove any notice to produce the deed so as to let in secondary evidence of its contents. worth's case, 4 C. and P. 254 (c).

Ha

A notice to produce is not requisite where the document tendered in evidence is a duplicate original; per Lord Ellenborough, Phillipson v. Chace, 2 Campb. 110; per Bayley, J., Colling v. Treweek, 6 B. and C. 398 (d); or a counterpart; Burleigh v. Stibbs, 5 T. R. 465. Roe d. West v. Davis, 7 East, 363. Mayor of Carlisle v. Blamire, 8 East, 487. So where the instrument to be given in proof is a notice, as a notice of action; Jory v. Orchard, 2 B. and P. 39; a notice of the dishonor of a bill of exchange; Kene v. Beaumont, 3 B. and B. 288 (e); or a notice to quit. 2 B. and P. 41.

It is not sufficient to dispense with notice to produce, that the party in possession of the document has it with him in court. Bate v. Kinsey, 4 Tyrwh. 662, 1 Cr. M. and R. 38.

Secondary evidence-notice to produce-form of.] It is not necessary that a notice to produce should be in writing, and if a notice by parol and [*11] in writing be given at the same time, it is sufficient to prove the parol notice alone. Smith v. Young, 1 Campb. 440. 2 Russell, 677. The notice, if a written one, must be properly entitled. Harvey v. Morgan, 2 Stark. 17 (ƒ).

In order to render it effective the notice should sufficiently point out

(1) Commonwealth v. Messenger & al. 1 Binn. 273. People v. Holbrook, 13 Johns. 90. Or where the party has fraudulently obtained possession, or has it in Court. Pickering v. Meyers, 2 Bailey, 113.

(a) Eng. Com. L. Rep. v. 377. (b) Id. xxvi. 436. (c) Id. xix. 370. (d) Id. xiii. 209. (e) Id. vii. 440. (f) Id. iii. 222.

the document required to be produced. Where, upon 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 yague, and that it ought to have pointed out the particular letter required. France v. Lucy, Ry. & Moo. N. P. C. 341; (a) see also Jones v. Edwards, M'El. and Y. 139.

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). 2 Russell, 678 (1). 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 (b). 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 (2). The prisoner was indicted for arson. The commission day was the 15th March, and the trial came on on the 20th. Notice to produce a policy of insurance was served on the prisoner in gaol on the 18th 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." Ellicombe's case, 5 C. and P. 522 (c). 1 Moo. and Rob. 260, S. C. Haworth's case, 4 C. and P. 254 (d), S. P. The notice should be served before the commission day, when the party does not live at the assize town. 1 Moo. and Rob. 259. See also Doe v. Spitty, 3 B. and Ad. 182 (e).

Secondary evidence-consequences of notice to produce.] The only consequence of giving 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, and does not authorize any inference against the party failing to produce it. Cooper v. Gibbons, 3 Campb. 363. It would seem, however, that the refusal to produce is matter of observation to the jury. Semb. per Lyndhurst, C. B. 4 Tyrwh. 662. 1 Cr. M. and R. 41 (3). If the party who calls for the papers inspects them, this will render them evidence for the opposite party. Wharam v. Routledge, 5 Esp. 235. Wilson v. Bowie, 1 C. and P. 10 (f). Though it is other

(1) Where a paper is in possession of the attorney of the party, he should have notice to produce it, and not a subp. duces tecum. M'Pherson r. Rathbone, 7 Wend. 216.

(2) Notice a few minutes before is not enough, unless the paper is in court. M'Pherson v. Rathbone, 7 Wend. 216. See Pickering v. Meyers, 2 Bailey, 113.

(3) 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 and Fire Co. v. Mechanics' Ins. Co., 7 Wend. 31. But the party is permitted to purge himself on oath from the possession. Vasse v. Mitflin, 4 Wash. C. C. Rep. 519.

(a) Eng. Com. L. Rep. xxi. 412.

(b) Id. 386. (c) Id. xxiv. 436. (d) 1d. xix. 370. (e) 1d. xxiii. 51. (f) Id. xi. 299.