to account for this deviation from the ordinary course (which he thought might be inoperative if the officer of the Ecclesiastical Court refused to obey the order), and declined to extend it to any other case than that of a will.

There are several cases in which a Court of Equity has in former times established a will without the production of the original, where the fact of the will having been proved and retained abroad, or other circumstances,1 have rendered it impossible to bring the original before the Court.2 But it seems that in such a case, strict proof of the execution and attestation have been given, unless they are admitted, or unless the will is old enough to prove itself. The contents of the will must be proved to the satisfaction of the Court, and in the absence of the original there are various means of secondary evidence applicable for this purpose. In Pullen v. Rawlens, sufficient secondary evidence was given, by means of a copy admitted to probate in this country, certified by the Registrar of the place where the original was deposited.

Another distinction which exists between the practice of Courts of Common Law and of Equity in matters of evidence, relates to proving the contents of documents in the hands of the adverse party, by secondary evidence. The grounds upon which secondary evidence of the contents of written documents is admitted, are in both jurisdictions the same; namely, that the party has not the means of producing them, because they are either lost or destroyed, or in the possession or power of the adverse party.

At Law, where it is not known till the time of trial what evidence will be offered on either side, a party, in order to entitle himself to give secondary evidence of the contents of a written document, on the ground of its being in the possession of his adversary, ought to give him notice to produce it; for otherwise, non constat, that the best evidence might not be had. But even at

1 Ellis v. Medlicott, cited 4 Beav. 144.

2 A codicil destroyed without the testator's consent was established in Clark v. Wright, 3 Pick. 67 (2d ed.), 69, note (1), and cases cited.

Rand v. M'Mahon, 12 Sim. 553.

The evidence of the whole contents of the will must in such case, be most clear and satisfactory. Davis v. Sigourney, 8 Metcalf, 487; Durfee v. Durfee, 8 Metcalf, 490, note; Huble v. Clark, 1 Hagg. Eccl. R. 115.

4 Beav. 142, where the cases are collected.

• See now on this subject 17 & 18 Vict. c. 125, § 87.

1 Phil. Ev. (Cowen & Hill's ed. 1839,) 439 et seq.; 3 ib. 1182, note, 834, and cases cited; 1 Greenl. Ev. § 560.

Law, when, from the nature of the proceeding, the party must know that the contents of a written instrument in his possession will come into question, it is not necessary to give any notice for its production; and, therefore, in an action of trover for a deed,1 or upon an indictment for stealing a bill of exchange,2 it has been held, that, without previous notice, parol evidence may be given of the contents of the instrument which is the foundation of the proceeding.3

The same exception to the general rule appears to be equally applicable in Courts of Equity; for there it is held, that when, either from the pleadings or depositions, a party is apprized that it is the intention of the opposite party to make use of secondary evidence of the contents of a document in his possession, such secondary evidence may be used at the hearing without serving the party in whose possession it is with notice to produce it.4

It may be mentioned, with reference to this subject, that, in Parkhurst v. Lowten,5 Lord Eldon appears to have thought, that, when a defendant admitted a deed to be in his possession, but declined to produce it, on the ground that it might convict him of simony, or any other criminal offence, secondary evidence of its contents may be received. The question, however, still remains to be decided.

Where written documents, which are not admitted, do not prove themselves, they must be proved by witnesses, in the same manner as documents of a similar description are proved in trials at Law." The witnesses, however, for this purpose are examined in the same way that witnesses are usually examined in causes in Equity, except in certain cases, in which the Court will permit them to be examined vivá voce at the hearing.

By the recent Act 17 & 18 Vict. c. 125, it is provided, that "It shall not be necessary to prove, by the attesting witness, any instrument, to the validity of which attestation is not requisite; and such instrument may be proved by admission, or otherwise, as if there had been no attesting witness thereto." ↑

1 How v. Hall, 14 East, 274. Aickle's Case, 1 Leach, 330.

31 Greenl. Ev. § 561.

* Strickland v. Strickland, 2 Mer. 461; and see Hawkesworth v. Dewsnap, 5 Sim. 460; Wheat v. Graham, 7 Sim. 61; Gresley Eq. Ev. (Am. ed.) 118.

2 Swanst. 213.

1 Greenl. Ev. § 589 et seq. and notes; Gresley Eq. Ev. (Am. ed.) 118, 119

et seq.

'Re Reay's Estate, 19 Jur. 222.

With respect to cases where the statutes have imposed the necessity of a document being stamped before it is tendered in evidence, there does not seem to be any difference between the practice at Law and in Equity.1

And now by the same Act 17 & 18 Vict. c. 125, the following provisions have been made concerning the admission of documents requiring a stamp:-"Upon the production of any document as evidence at the trial of any cause, it shall be the duty of the officer of the Court, whose duty it is to read such document, to call the attention of the Judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, shall not be received in evidence until the whole, or (as the case may be) the deficiency of the stamp duty, and the penalty required by statute, together with the additional penalty of one pound, shall have been paid."

The 29th section directs what the officer is to do with the sum. he receives, and directs that after the payment "such document shall be admissible in evidence, saving all just exceptions on other grounds." It also provides that the aforesaid enactment shall not extend to any document which cannot now be stamped, after the execution thereof, on payment of the duty and a penalty.

Section 30 enacts, that "No document made or required under the provisions of this Act shall be liable to any stamp duty."

No new trial is to be "granted by reason of the ruling of any Judge that the stamp upon one document is sufficient, or that the document does not require a stamp."

SECTION III.

Of proving Exhibits by Affidavit or vivâ voce at the Hearing.

AN examination viva voce at the hearing has always been admitted for the proof of certain written documents, and even, in some cases, where the plaintiff proceeds to a hearing of the cause upon bill and answer only."2 By the 43d Order of August, 1841,

1 Smith v. Henley, 1 Ph. 391.

2 Fielder v. Cage, Prac. Reg. 219; Rowland v. Sturgis, 2 H. 520. Courts of Chancery have always had the power to examine witnesses viva voce, for the purpose of proving certain written instruments. Levert v. Redwood, 9 Porter, 80; Hughes

it was directed that, "In any cases in which any exhibit may, by the present practice of the Court, be proved viva voce at the hearing of a cause, the same may be proved by the affidavit of the witness who would be competent to prove the same viva voce at the hearing." And by the 28th section of 13 & 14 Vict. c. 35, it was enacted, "That it should be lawful for the Court, at the hearing of any cause, or of any further directions therein, to receive proof by affidavit of all proper parties being before the Court, and of all such matters as are necessary to be proved for enabling the said Court to order payment of any moneys belonging to any married woman, and of all such other matters not directly in issue in the cause, as in the opinion of the said Court may safely and properly be so proved." And by the 36th section of the Chancery Amendment Act,2 affidavits by particular witnesses, or affidavits as to particular facts or circumstances, might by consent or by leave of the Court, obtained on notice, be used on the hearing of any cause; and such consent, with the approbation of the Court, might be given by or on the part of married women or infants or other persons under disability. These enactments are, however, now of slight consequence, as it will be seen that all evidence may be given by affidavit.3

Amongst the documents which may be proved vivâ voce or by affidavit, may be classed "all ancient records of endowments and institutions, whether they are offered to be proved as original instruments, or as they are found collected and recorded in ancient register-books deposited in the registries of the archbishops and bishops, or of the deans and chapters of collegiate churches, or of the Ecclesiastical Courts, bulls of the popes, records from the Bodleian, Harleian, and Museum libraries, or from any of the public libraries belonging to the two universities, or from the library at Lambeth; all or any of which ancient documents must be prov. Phelps, 3 Bibb, 199; Gresley Eq. Ev. (Am. ed.) 126; Latting v. Hall, 9 Paige, 483; Dana v. Nelson, 1 Aiken, 254. See De Peyster v. Golden, 1 Edw. 63; Nesmitt v. Culvert, 1 Wood. & Minot, 34; Gafney v. Reeves, 6 Ind. (Porter,) 71; Morton v. White, 5 Ind. (Porter,) 338.

1 See Blundell v. Gladstone, 11 Sim. 489, as to the practice when a cause is set down upon the equity reserved or on further directions.

* 15 & 16 Vict. c. 86. See Crofts v. Middleton, 9 Hare, Appx. 18, 75.

It is provided, that the late change in the mode of taking evidence in Equity in Massachusetts, shall not prevent the use of affidavits where they have heretofore been allowed. Genl. Sts. c. 131, § 60.

duced by those persons in whose immediate custody they are, who must be sworn to identify the particular document or record produced in his custody before the same can be read.” 1

So in like manner may be proved as exhibits, office-copies of records from any of the Courts at Westminster, or from the Ecclesiastical Courts of Canterbury, York, &c., or of grants or enrolments from the rolls or other records deposited there or in the Tower, or of records or proceedings from Courts of inferior jurisdiction in England, as those of the counties palatine of Chester, Lancaster or Durham, or of the Courts of Great Session in Wales, or of the Courts of the two universities, or of the city of London, or of the Cinque Ports.

Deeds, bonds, or other instruments, which require proof of their due execution by a subscribing witness or witnesses, or promissory notes, bills of exchange, letters or receipts, of which proof must be made of the handwriting of the persons writing or subscribing the same, are all considered as exhibits, and may be proved vivá voce or by affidavit.

By the Common Law Procedure Act, 1854, sect. 26, an important change has taken place in the mode of proving deeds. It enacts that "It shall not be necessary to prove, by the attesting witness, any instrument, to the validity of which attestation is not requisite; and such instrument may be proved by admission, or otherwise, as if there had been no attesting witness thereto."

Upon proving a deed by the attesting witness, the usual questions are three. Is that your handwriting? Did you see A. B. sign this deed? Did you see him deliver it? 4

It is to be observed, that, with the exception of documents coming out of the hand of a public officer having the care of such documents, (which are proved by the mere examination of the officer to that fact,) no exhibit can thus be proved, that requires more than the proof of the execution or of handwriting to substantiate it; if it be anything that admits of cross-examination or that requires any evidence besides that of handwriting, it cannot be received. This rule is strictly adhered to; and in many cases,

1 2 Fowl. Ex. Pr. 157.
Re Reay's Estate, 19 Jur. 222.

See ante, p. 860.
Bowser v. Colby, 1 Hare, 132, n.

'See Ellis v. Deane, 3 Moll. 62; Emerson v. Berkley, 4 Hen. & Munf. 441. Lake v. Skinner, 1 Jac. & W. 9, 15. It seems, however, that the Court will, upon the suggestion of counsel, put questions to a witness who is examined vivâ voce. See Turner v. Burleigh, 17 Ves. 354.