other with "Petersburg," hemp. It seems, however, that a mere clerical error, or even a mistake in a name, if productive of no loss, will not invalidate the sale.2

§ 424. With respect to notarial instruments, the general rule is § 394 that a duplicate made out any time from the original or protocol in the notarial book, is equivalent to an original drawn up at the time of the entry in the book. If, therefore, a foreign bill of exchange be protested for non-payment, or if it be paid under protest for the honour of an indorser, the fact of the protest may be primarily established, not only by producing a formal instrument of protest, extended by the notary from his register at the date of the actual protest, but by putting in evidence a duplicate protest, even though it may have been drawn up after the commencement of the action, provided that the entries in the notary's book can be shown to have been made at the time when the transactions occurred.4

§ 425. The title of a person as executor or administrator might § 395 have been primarily proved under the old law in any one of the following ways:-namely, by producing either the probate or letters of administration, or an exemplification or certificate thereof granted by the Ecclesiastical Court, or the Book of Acts in the Prerogative Office which directed the grant of the probate or letters, or an examined or certified copy of such book, or, if no act book or other record were kept, even minutes of the proving of the will and sealing of probate, indorsed on the original will by

1 Thornton v. Kempster, 1 Marsh. 355; 5 Taunt. 786, S. C.

2 Mitchell v. Lapage, Holt, N. P. R. 253. See Bold v. Rayner, 1 M. & W.

343.

3 Geralopulo v. Wieler, 10 Com. B. 712, per Maule, J.

4 Id. 690.

* See post, § 1589.

Kempton v. Cross, Cas. temp. Hard. 108; B. N. P. 246; Doe v. Gunning,

7 A. & E. 244.

7 Cox v. Allingham, Jac. 514, per Sir T. Plumer, M. R,

8 Elden v. Keddell, 8 East, 187; De Roos Peer., 2 Coop. 542, 543.

"Davis v. Williams, 13 East, 232; Dorrett v. Meux, 23 L. J., C. P. 221; 15 Com. B. 142, S. C.; 14 & 15 V., c. 99, § 14.

the surrogate and registrar or deputy registrar of the Diocesan Court. Since the 11th of January, 1858, either the Court of Probate, or the Probate Division of the High Court, has had jurisdiction over all matters testamentary; but as the statutes which established those courts respectively, and the rules and orders which regulate their proceedings, are alike almost wholly silent on the subject of evidence, it is not easy to determine with precision how much of the law just referred to remains in force. An executor or administrator, however, may doubtless still prove his title, either by producing the probate or letters, or by an exemplification thereof granted by a registrar or district registrar of the Probate Division of the High Court.3

§ 426. The rule, which determines under what head of evidence § 3 deeds executed in duplicate are to be classed, appears to be this: When two or more parts are sealed and delivered by each party,a practice which of late years has frequently prevailed,—they are denominated duplicate or triplicate originals, and as such are considered to be primary evidence.5 When, however, each part is executed by one party only, as often occurs in the case of leases, the two instruments are called counterparts, and each is alternately the best evidence as against the party sealing it, and those in privity with such party; and secondary evidence of the contents of the other part. Thus, if a landlord brings an action for rent, he produces

1 Doe v. Mew, and Doe v. Gunning, 7 A. & E. 240; 2 N. & P. 260, 266, n., S. C.

When the Act of 20 & 21 V., c. 77, came into operation. See Gazette of Friday, 4 Dec., 1857.

3 See forms of exemplifications appended to the Rules, &c., of 1862, for the Registrars of the Court of Probate in respect of non-contentious business, Nos. 10 & 11; and similar forms appended to Rules, &c., for the District Registrars, Nos. 11 & 12.

42 M. & Gr. 518, b.

5 See Colling v. Treweek, 6 B. & C. 398, per Bayley, J.; Brown v. Woodman, 6 C. & P. 206, per Parke, J.

6 Roe v. Davis, 7 East, 363; May. of Carlisle v. Blamire, 8 East, 487; Paul v. Meek, 2 Y. & J. 116; Pearce v. Morrice, 3 B. & Ad. 396; Burleigh v. Stibbs, 5 T. R. 465; Houghton v. Koenig, 18 Com. B. 235.

7 Munn v. Godbold, 3 Bing. 292; 11 Moore, 49, S. C. As secondary evidence

the counterpart executed by the tenant as original evidence,1 or, in the event of its loss, he may have recourse, either to the part sealed by himself, or to any other species of secondary proof;2 but if the tenant is the person aggrieved, he must rely on the part delivered by the landlord, and that executed by himself will only be considered as secondary evidence. With respect to the stamp, the counterpart sealed by the lessor is usually deemed the original; but that which is sealed by the lessee may be described in pleading as the "indenture," though stamped as a counterpart, provided the action be brought against the lessee. Where any discrepancy is found to exist between a lease and its counterpart, the law will presume that the lease is correct, unless it be clear that the mistake is in that instrument.

3

§ 427. On one or two occasions, where it was necessary to show § 397 that the plaintiff's ancestor had exercised acts of ownership over the property in question, counterparts of leases older than the period of living memory, and found in the ancestor's muniment room, have been admitted in evidence even against strangers, though they were executed by no one but the persons named as lessees, who were not shown to have actually held under them, and though no excuse was given for not producing the original leases sealed by the ancestor. It is difficult to reconcile these

it will be admissible, though unstamped, id. See 33 & 34 V., c. 97, § 93; and ante, § 148.

1 The law in Ireland is now regulated by § 23 of the Act 23 & 24 V., c. 154, which enacts, that "in all actions, suits, and proceedings, proof by or on behalf of any landlord of the perfection of the counterpart of any lease shall be equivalent to proof of the perfection of the original lease; and in case it shall appear that no counterpart existed, or that the counterpart has been lost, destroyed, or mislaid, proof of a copy of the original lease or counterpart, as the case may be, shall be sufficient evidence of the contents of the lease, as against the lessee, or any person claiming from or under him."

2 Doe v. Ross, 7 M. & W. 102; Hall v. Ball, 3 M. & Gr. 242; 3 Scott, N. R. 577, S. C.

3 Pearce v. Morrice, 3 B. & Ad. 396.

↑ Burchell v. Clark, L. R., 2 C. P. D. 88; 46 L. J., C. P. 115, overruling S. C., L. R., 1 C. P. D. 602.

5 Doe v. Pulman, 3 Q. B. 622; D. of Bedford v. Lopes, cited id. 623, as decided by Ld. Denman ; Clarkson v. Woodhouse, 5 T. R. 412, n. a ; 3 Doug.

C C

decisions with strict principle, since the counterparts amounted, in fact, to no more than admissions by third parties that the ancestor was seised; but the judges appear to have relaxed the rule, in consequence of the acknowledged difficulty of tracing acts of ownership after the lapse of many years; and looking at the question in this light, few persons will probably feel inclined to quarrel with the doctrine as now established.

189, S. C. In this last case, the distinction between counterparts and leases does not appear to have been much discussed, if taken at all.

CHAPTER V.

SECONDARY EVIDENCE.

§ 428. In the last chapter the rule was discussed which requires § 398 the production of the best attainable evidence, and an attempt was made to illustrate by examples the distinction between primary and secondary modes of proof. It remains to be seen upon what occasions secondary evidence will be received; and the first general rule on this subject is, that such evidence is inadmissible, until it be shown that the production of primary evidence is out of the party's power. It will be convenient to discuss this rule, and the exceptions to it, as they apply, first, to documentary evidence, and, next, to oral testimony; and with respect to documents, it will be found that proof of their contents may be established by secondary evidence, first, when the original writing is destroyed or lost; secondly, when its production is physically impossible, or at least highly inconvenient; thirdly, when the document is in the possession of the adverse party, who refuses, after notice, and in some cases without notice, to produce it; fourthly, when it is in the hands of a third party, who is not compellable by law to produce it, and who, being called as a witness with a subpoena duces tecum, relies upon his right to withhold it; fifthly, when the law raises a strong presumption in favour of the existence of the document; sixthly, when the papers are voluminous, and it is only necessary to prove their general results; and lastly, when the question arises upon the examination of a witness on the voire dire.

§ 429.1 First, if the instrument be destroyed or lost, the party § 399 seeking to give secondary evidence of its contents must give some evidence that the original once existed,2 and must then either

1 Gr. Ev. § 558, in part.

2 Doe v. Wittcomb, 6 Ex. R. 601, 605, 606, per Ld. Campbell ; S. C. in Dom. Proc., 4 H. of L. Cas. 431, per Alderson, B.