name of the person from whom he received it, and who is known to be a real person, it is incumbent on the prosecutor to show that that account is false; but if the account given by the prisoner be unreasonable or improbable on the face of it, the onus of proving its truth lies on him. Suppose, for instance, a person were to charge me with stealing this watch, and I were to say I bought it from a particular tradesman, whom I name, that is prima facie a reasonable account, and I ought not to be convicted of felony unless it is shown that that account is a false one." This doctrine is confirmed by the cases of R. v. Smith (b) and R. v. Harmer (c). The subsequent case of R. v. Wilson (d) may at first sight seem at variance with it, but is not in reality; for although in that case R. v. Crowhurst and R. v. Smith were cited, the decision of the court turned simply on the question, whether the whole evidence taken together was sufficient to justify a conviction. (b) 2 Car. & K. 207. 310. (d) 1 Dearsl. & B. 157; 7 Cox, Cr. Cas. § 215. THE remaining instruments of evidence are DOCUMENTS, under which term are properly included all material substances on 1 Documentary Evidence. - A. DEFINITION OF DOCUMENT. B. PUBLIC DOCUMENTS (see § 485, n. 1, infra). C. PRIVATE DOCUMENTS. A. DEFINITION OF DOCUMENT. -The term "document" is one of difficult definition, many so-called documents being more properly classed under the head of real which the thoughts of men are represented by writing, or any other evidence. (Conf. § 196, n. 1, supra.) The definitions of the term have accordingly varied widely from each other. Thus Best defines " document" as including "all material substance on which the thoughts of men are represented by writing, or any other species of conventional mark or symbol," and expressly includes milkmen's scores, exchequer tallies, and the like. (§ 215, supra.) Wharton defines document as "an instrument on which is recorded, by means of letters, figures, or marks, matter which may be evidentially used." 1 Whar. Ev. § 614. Stephen's definition is similar, though more restricted: "Any substance having any matter expressed or described upon it by marks capable of being read." (Dig. Law Ev., Art. 1.) Within these definitions, a ring or banner with an inscription, a musical composition, and a savage tattooed with words intelligible to himself, would all be documents. Photographs, caricatures, wooden tallies, and the like, would probably be excluded under Stephen's definition; not apparently under the others. While the sweeping definitions given supra are probably sufficiently accurate for the purpose of distinguishing documentary from personal evidence, it may be doubted whether the definition of "document" could not with advantage be narrowed to the single case of writing as a means of conveying thought in certain instances. Thus, it is submitted, the so-called "best evidence rule" (see C. III. (a) of this note, infra) applies only to written documents. Thus, for example, in Com. v. Morrell, 99 Mass. 542, it was held that the tag of a valise on which words were inscribed was not a document. But see R. R. Co. v. Maples, 63 Ala. 601. C. PRIVATE DOCUMENTS. — I. PRODUCTION (see § 624, n. 1, infra). II. PROOF OF EXECUTION. III. PROOF OF CONTENTS. II. PROOF OF EXECUTION.—(a.) Attested Documents; (b.) Documents not attested. (a.) Attested Documents. - The execution of any instrument to which there are subscribing witnesses must, if such instrument is used in aid of a suit or defence, or is directly in issue, be proved by the evidence of such subscribing witnesses, or one of them. In case the attendance of such witness or witnesses cannot be procured, proof of his or their signature or signatures is to be given. This rule constitutes a striking and almost a single instance of "preappointed evidence," strictly so called. (Conf. § 31, supra.) By an imperative requirement of law, the parties are conclusively presumed to have agreed that such an instrument shall not be offered in evidence without proof, by the chosen witness, of the circumstances attending its execution. Kinney v. Flynn, 2 R. I. 319; Jones v. Phelps, 5 Mich. 218; Hollenback v. Fleming, 6 Hill, (N. Y.) 303; Melcher v. Flanders, 40 N. H. 139; Davis v. Alston, 61 Ga. 225; Barry . Ryan, 4 Gray, 523; Ayres v. Hewett, 1 Applet. 281, 286; Chaplain v. Briscoe, 19 Miss. 372. The testimony of such a witness may, however, be supplemented or contradicted. Whitaker v. Salisbury, 15 Pick. 534; Quimby v. Buzzell, 4 Shepl. 470; Duckwall v. Weaver, 2 Ohio, 13; Smith v. Asbell, 2 Strobh. 141. The rule is universal, and applies to a simple receipt as fully as to a more formal instrument. Pearl v. Allen, 1 Tyler, 4. For statutory modifications of the rule, see 1 Greenl. Ev. § 569, and notes. If the subscribing witness forgets or denies his attestation, other evidence of execution may be resorted to. Reinhart v. Miller, 22 Ga. 402. The testimony or verified signature of a single subscribing witness is sufficient; — Burnett v. Thompson, 13 Ired. 379;- unless the judge, in his discretion, requires further proof by production of the others. White v. Wood, 8 Cush. 413. Where one party claims title under a recorded deed, it has been held that an office copy of such deed is admissible in evidence, and that the execution of such office copy need not be proved. Knox v. Silloway, 1 Fairf. 201; Woodman v. Coolbroth, 7 Greenl. 181; Loomis v. Bedel, 11 N. H. 74; Kelsey v. Hamner, 18 Conn. 311; Gragg v. Learned, 109 Mass. 167. Admissions. It is immaterial that the party against whom such instrument is offered as evidence has admitted its execution. Story v. Lovett, 1 E. D. Smith, 153; Brigham v. Palmer, 3 Allen, 450; Fox v. Reil, 3 Johns. 477. The further fact that species of conventional mark or symbol. Thus the wooden scores on the admission is a judicial one, made for the express purpose of dispensing with other proof of execution, does not alter the rule. Ellis v. Smith, 10 Ga. 253. With regard to how far an admission will act as proof of the contents of a document not produced in evidence, conf. C. III. (c) of this note, infra. Exceptions. —(1.) Ancient Documents. — In case of genuine instruments thirty years old coming from proper custody, the subscribing witnesses are conclusively presumed to be dead. Such documents are said "to prove themselves," the rule that subscribing witnesses prove the execution of the attested instrument having no application. Henthorne v. Doe, 1 Blackf. 157; Thruston v. Masterson, 9 Dana, 228, 233; Walton v. Coulson, 1 McLean, 120; King v. Little, 1 Cush. 436; Fairly v. Fairly, 38 Miss. 280; Bank of Middlebury v. Rutland, 33 Vt. 414; Carter v. Chaudron, 21 Ala. 72; Glasscock v. Hughes, 55 Tex. 461; McReynolds v. Longenberger, 57 Pa. St. 13; Little v. Downing, 37 N. H. 355; Duncan v. Beard, 2 Nott & McC. 400; Clark v. Owens, 18 N. Y. 434; Burgin v. Chenault, 9 B. Monr. 285; Weitman v. Thiot, 64 Ga. 11. But see Fell v. Young, 63 Ill. 106. In Massachusetts it has been held that the subscribing witness, if alive, must be called to testify, though the deed is over thirty years old. Tolman v. Emerson, 4 Pick. 160. It has, moreover, been frequently held that possession under such a document constitutes, in case of a deed, a condition precedent to admissibility without proof of execution. Jackson v. Blanshan, 3 Johns. 292; Carroll v. Norwood, 1 Har. & J. 167, 174; Middleton v. Mass, 2 Nott & McC. 55; Shaller v. Brand, 6 Binn. 435. To the same effect see Homer v. Cilley, 14 N. H. 85; Ridgeley v. Johnson, 11 Barb. Sup. Ct. 527; Brown v. Wood, 6 Rich. (S. C.) Eq. 155, contra. (2.) Adverse Claim. So also in case the attested instrument be produced from the custody of the adverse party who claims an interest under such instrument; the claim is held to admit the execution. Jackson v. Kingsley, 17 Johns. 158; Rhoades v. Selin, 4 Wash. (C. C.) 715; Herring v. Rogers, 30 Ga. 615; McGregor v. Wait, 10 Gray, 72. (3.) Unavailable Witness. - A third exception obtains in cases where, after diligent search, the party is unable to find such witness within the jurisdiction, or where, for other reasons, the witness cannot be produced. Jackson v. Burton, 11 Johns. 64; Homer v. Wallis, 11 Mass. 309; Cooke v. Woodrow, 5 Cranch, 13; Baker v. Blount, 2 Hayw. 404; Watts v. Kilburn, 7 Ga. 356; Dunbar v. Marden, 13 N. H. 311; Emery v. Twombly, 5 Shepl. 65; Teall v. Van Wyck, 10 Barb. 376; Foote v. Cobb, 18 Ala. 585. In such case, the absence of all attesting witnesses must satisfactorily be ac counted for, to let in secondary evidence of the execution by proof of signature of an attesting witness. Kelsey v. Hanmer, 18 Conn. 311; Kelly v. Dunlap, 3 Pa. Rep. 136; Woodman v. Segar, 25 Me. 90. In case no subscribing witness is available and no proof of his handwriting can be offered, evidence of the handwriting of the testator or obligor is to be given. Jones v. Blount, 1 Hayw. 238; Clark v. Sanderson, 3 Binn. 192; Duncan v. Beard, 2 Nott & McC. 400. But where a subscribing witness volun tarily incapacitates himself to testify to its execution by becoming interested therein, such deed cannot be proved by other evidence. McKinley v. Irvine, 13 Ala. 681. Packard v. Dunsmore, 11 Cush. 282; Keefer v. Zimmerman, 22 Md. 274, contra. See also Gellott v. Goodspeed, 8 Cush. 411; Eslow v. Mitchell, 26 Mich. 500. (4.) Public Officer. So if the person against whom the document is sought to be proved is a public officer, bound by law to procure its due execution, who has dealt with it as duly executed: Scott v. Waithman, 3 Starkie, N. P. 168. Under the scope of this exception would probably come the rule that official bonds need not be proved by an attesting witness. Kello v. Maget, 1 Dev. & Bat. 414. - (b.) Documents not attested. - In case of an instrument without attesting witness, execution is sufficiently proved by competent proof that the undersigned signature is a genuine one. Pullen v. Hutchinson, 12 Shepl. 249, 254. For the rules regulating proof of handwriting, see § 232, n. 1, infra. which bakers, milkmen, &c. indicate by notches the number of loaves III. PROOF OF CONTENTS. (a.) Best Evidence Rule. -In proving the contents of a written instrument, the document itself must be produced, or its absence accounted for to the satisfaction of the judge. Johnson v. Arnwine, 42 N. J. L. 451; Delaney v. Errickson, 10 Brown, (Neb.) 492; Page v. Page, 15 Pick. 368; Snow v. Carr, 61 Ala. 363; Woodworth v. Barker, 1 Hill, (N. Y.) 172; Bachelder v. Nutting, 16 N. H. 261. So of a telegram, Matteson v. Noyes, 25 Ill. 591; Whilden & Sons v. Bank, 64 Ala. 1. Probably this rule applies also to documents offered in cross-examination to test the credibility of a witness. Gaffney v. People, 50 N. Y. 416; Stamper v. Griffin, 12 Ga. 450. The rule also applies to proof of the text of a foreign law. Conf. § 511, n. 1, (d), infra. The Pawashick, 2 Lowell, 142, 145; Livingstone v. Ins. Co., 6 Cranch, 274; Ennis v. Smith, 14 Howard, 401. But see 1 Greenl. Ev. §§ 88, 463. If the document is in the possession or control of the adverse party, a reasonable notice to produce the document must be served on such party or his attorney. U. S. v. Winchester, 2 McLean, 135; Farnsworth v. Sharp, 5 Sneed, (Tenn.) 615; Dean v. Border, 15 Tex. 298; Potier v. Barclay, 15 Ala. 439; Grimes v. Fall, 15 Cal. 63; Carlard v. Cunningham, 37 Pa. St. 228; Anderson Bridge Co. v. Applegate, 13 Ind. 339; Patterson v. Linder, 14 Iowa, 414; Dapey v. Ashby, 2 A. K. Marsh. (Ky.) 11; Williams v. Benton, 12 La. An. 91; Kennedy v. Fowke, 5 Har. & J. 63; Choteau v. Raitt, 20 Ohio, 132; Robertson v. Parks, 3 Md. Ch. 65; Com. v. Emery, 2 Gray, 80; Farmers' Bank v. Lonergan. 21 Mo. 46; Weeks v. Lyon, 18 Barb. 530; McAdam v. Spice Co., 64 Ga. 441. Upon refusal to produce after due notice, or other satisfactory reason being given for the absence of primary evidence, the party wishing to prove such document is entitled to introduce secondary evidence of its contents. (b.) Proof Required. The absence of the original document is satisfactorily accounted for by proof, -(1.) That the writing is in court and in the control of the other side. Dana v. Boyd, 2 J. J. Marsh. 587; Brandt v. Klein, 17 Johns. 335; Rhoades v. Selin, 4 Wash. C. C. 715, 718; Brown v. Isbell, 11 Ala. 1009. (2.) Or that the document is hopelessly lost or out of the jurisdiction of the court. McCreary v. Hood, 5 Blackf. 316; McAuley v. Earnhart, 1 Jones, (N. C.) L. 502; Shepherd v. Giddings, 22 Conn. 282; Pond v. Lockwood, 8 Ala. 669; Ralph v. Brown, 3 Watts & Serg. 395; Burton v. Driggs, 20 Wall. 125. In case the document is proved to have existed and been lost from the custody of the party offering secondary evidence of its contents, it is customary to require that the affidavit of such party should state reasonable search, and give a reasonable explanation of facts attending loss. Riggs v. Tayloe, 9 Wheat. 283, 486; Seekright v. Bogan, 1 Hayw. 178 n.; Fitch v. Bogue, 19 Conn. 285; Blade v. Nolan, 12 Wend. 173; Blake v. Fash, 44 Ill. 302; Bagley v. McMickle, 9 Cal. 430; Tobin v. Shaw, 45 Me. 331; Joannes v. Bennett, 5 All. 169. (3.) Or that a stranger to the suit has been seasonably notified to produce the document, and has failed to do so. Conf. § 624, n. 1, infra. (4.) Or that the document is not easily removed. 1 Greenl. Ev. §§ 91-94. (5.) Or that the document has come into the possession of the other party through fraud. Pickering v. Myers, 2 Bailey, 113; Nealley v. Greenough, 5 Foster, 325; Morgan v. Jones, 24 Ga. 155; State v. Mayberry, 48 Me. 218; Rose v. Lewis, 10 Mich. 483; Hart v. Robinett, 5 Mo. 11; Hamilton v. Rice, 15 Tex. 382; Com. v. Messinger, 1 Binn. 273. (6.) Or that the form of action of itself constitutes a notice to produce. Nealley v. Greenough, 5 Foster, 325; Luckett v. Clark, Litt. (Ky.) Sel. Cases, 178; Hays v. Riddle, 1 Sandf. (N. Y.) 248; Edwards v. Bonneau, 1 Sandf. Sup. Ct. Rep. 610. Or that the document in question is itself a notice. Morrow v. Com., 12 Wright, 305. - (c.) Execution. Though secondary evidence of the contents of a document be given, it is still necessary to prove the due execution of the instrument. Schrowders v. Harper, 1 Harr. 444; Kimball v. Morrell, 4 Greenl. 368; Kelsey v. Hanmer, 18 Conn. 311; Porter v. Wilson, 1 Harr. 641; Elmondorff v. Carmichael, 3 Litt. 472. |