So, if the deed or other instrument be in the hands of the opposite party, and he refuse, on notice, to produce it at the trial, you may give secondary evidence of its contents. infra.

See

So, if a witness, served with a subpœna duces tecum to produce a deed or other writing, appear at the trial, but refuse to produce the document required of him, for a reason which the judge may deem sufficient,-as if it be a deed, and he claim title under it, Doe v. Owen, 8 Car. & P. 110, or if he be an attorney, and claim a lien upon it, Doe v. Ross, 7 Mees. & W. 102, R. v. Hankins, 2 Car. & K. 823, or object that it is the title deed of his client, Mills v. Oddy, 6 Car. & P.730, Ditcher v. Kendrick, 1 Car. & P. 161,-the judge upon application will allow the party to give secondary evidence of its contents. And where a witness, who had been subpoenaed to produce a letter, stated in his examination at the trial, that after action brought he gave it to the opposite party, who said that he wished to give it to his attorney; upon this the attorney was called upon to produce the letter, and not doing so, Ld. Kenyon allowed the other party to give parol evidence of its contents. Leeds v. Cook, 4 Esp. 256.

Notice to produce.] If you wish to prove a document, which is in the hands of the opposite party, or of his agent or deputy, Baldney v. Ritchie, 1 Stark, 338. Sinclair v. Stephenson, 2 Bing. 514, 1 Car. & P. 582. Taplin v. Atty, 3 Bing. 164, or of his banker, Partridge v. Coates, Ry. & M. 156. Burton v. Payne, 2 Car. & P. 520, you may give him or his attorney notice to produce it; and if, when called upon at the trial, he refuse to produce it, then, upon proof of the notice, and that the document is in the possession of the party or his agent, &c., (see Robb v. Starkey, Car. & K. 143), you may give secondary evidence of its contents. Where, upon a bill of indictment for the forgery of a deed being preferred, the grand jury stated to the judge that they were informed that the deed alleged to be forged was in the possession of the defendant, and asked whether they could return a true bill, if the deed were not produced before them; the judge (Parke, J.) told them, that if the deed, from being in the possession of the prisoner, or from any other sufficient cause, could not be produced before them, they might receive secondary evidence of its contents. R. v. Hunter, 3 Car. & P. 591. The case was tried at the following assizes, and upon that occasion due notice was given to the prisoner to produce the deed; it was proved that his attorney had given it in evidence in an ejectment, as part of the prisoner's title, and had afterwards received it back; and Vaughan, B., held, that on the prisoner's counsel refusing to produce the deed, this was sufficient to let in secondary evidence of its contents. R. v. Hunter, 4 Car.

P. 128. Where, upon an indictment for forging a deed, it was proposed to give secondary evidence of it, upon the ground that it was in possession of the prisoner, and that he had notice to produce it; but it appearing that the notice was given since the commencement of the assizes, Parke, J., held, that the notice was not sufficient, as it ought to have been given a reasonable time before the assizes; it was then proved that the prisoner, on an examination on oath upon another occasion as a witness before a magistrate, stated, that he had had the deed in question, but that thinking it of no value he burnt it; the admission of this examination in evidence was objected to, as being on oath, but as the prisoner at the time was not charged with this offence, Parke, J., admitted it, and held that the prosecutor was entitled to give secondary evidence of the deed the secondary evidence offered was a copy of the deed; but as the person who made this copy said that he had never examined it with the original, Parke, J., said, that under these circumstances there could hardly be a satisfactory conviction; and the prisoner was accordingly acquitted. R. v. Haworth, 4 Car. & P. 254.

There are some cases, however, in which a notice to produce is not necessary: first, a notice to produce a notice is not necessary in any case; see Arch. Pl. & Ev. Civ. Act. 383; secondly, in larceny of a written instrument, secondary evidence of it may be given at the trial, without giving the prisoner a notice to produce the original; R. v. Aickles, 1 Leach, 330; in the same manner as in civil cases, in trover for a written instrument, the nature of the instrument may be proved, without giving notice to produce the original. Bucher et al. v. Jarratt, 3 B. & P. 143. How et al. v. Hall, 14 East, 274. Per Gibbs, J., in Scott et al. v. Jones, 4

Taunt. 868.

The following may be the form of a

Notice to Produce.

Yorkshire Summer assizes, [or, Midsummer sessions for the East Riding of the county of York,] 1852.

The Queen against A. B.

Take notice, that you are hereby required to produce to the court and jury, upon the trial of this indictment [a certain, &c., describing the instrument; or if it be an alleged forgery, say, a certain paper writing, purporting to be, &c.,] and all other letters, books, papers, and writings whatsoever, relating to the matters in question in this prosecution.

Yours, &c.,

G. H., the [prosecutor's attorney.] To [A. B., the above-named defendant.]

This notice should be served such a reasonable time before the trial, as will allow of the party's searching for the instrument, for the purpose of producing it; Simms v. Kitchen, 5 Esp. 46. Houseman v. Roberts, 5 Car. & P. 394. Hargest v. Fothergill, Id. 303; and in country cases, for the assizes, it ought to be served before the commission day, R. v. Haworth, 4 Car. & P. 254. Trist v. Johnson, 1 Mo. & R. 259. George v. Thompson, 4 Dowl. 656, unless it appear that the party actually has it in the assizes town at the time. Afterwards at the trial, the party giving the notice may call for the instrument or not, at his option.

By Dying Declarations.

In trials for murder or manslaughter, the dying declaration of the deceased, as to the prisoner's guilt, the infliction of the injury, &c., made at a time when he was perfectly aware of his danger, and entertained no hope of his recovery, is receivable in evidence in proof of the indictment, the consciousness of the near approach of death being deemed equivalent to the sanction of an oath. Therefore, as a foundation for such evidence, expressions or actions of the deceased, indicating the sense he entertained of his danger, Tinkler's case, 1 East, P. C. 354, or circumstances from which the same may be collected, 1 East, P. C. 354. John's case, Id. 357, 358, must first be proved, in order that the court may judge whether the deceased, at the time he made the declaration, was in that awful state of certainty as to his approaching dissolution, which the law treats as equivalent to the solemn sanction of an oath. And it is for the court to judge of this, not the jury; for it is the court that has to decide whether the evidence is receivable. John's case, supra. Where an apothecary, upon being called in to a woman, and seeing she was in a dying state, pressed her to say what she had done, for she could not live twenty-four hours unless proper relief were afforded to her, and she then told him what she had taken and who gave it to her; but at that moment she was a good deal relieved from pain, which the apothecary attributed to mortification, and in fact she died in an hour afterwards: the judges thought that it did not sufficiently appear that she was conscious that she was in a dying state when she made this declaration; on the contrary, she seemed to think that if she told what she had taken, she might have relief and recover; they therefore held that the declaration ought not to be received. Welbourn's case, 1 East, P. C. 358. In a similar case, where a surgeon told the deceased that she would not recover, and she was aware of her danger, but said she hoped he would do what he could for her for the sake of her family: from this expression of hope, Bo

sanquet, J., held, that a declaration made by her at the time, could not be received in evidence; that to make such a declaration evidence, it must appear that the deceased had the impression on her mind of almost immediate dissolution. R. v. Crockett, 4 Car. § P. 544. But if the declaration be made under such an impression, the fact of the party afterwards living for some days, will not affect the admissibility of the evidence; R. v. Bonner, 6 Car. § P. 386; and on the other hand, if the deceased had not at the time that impression, his declaration is not evidence, although he may have died in an hour after making it. Welbourn's case, supra. Where the deceased was a child of only four years old, Parke, J., held her dying declarations not to be evidence, because from her tender age it was impossible she could entertain that idea of a future state, which is necessary to make such a declaration admissible. R. v. Pike, 3 Car. & P. 598.

These dying declarations must not be confounded with the depositions taken by a justice of the peace, in writing, upon oath, in the presence of the accused, from a person really in a dying state, and who dies shortly after; for in that case, the deposition is receivable in evidence under stat. 11 & 12 Vict. c. 42, s. 17, as the deposition of a deceased witness, and it is wholly immaterial whether the witness, at the time he made it, was aware of his danger, or entertained any apprehension of death. See Radbourne's case, 1 East, P. C. 356.

SECTION II.

Written Evidence.

Acts of parliament.] Public acts of parliament are never proved, as all judges are bound judicially to take notice of them; and therefore, when we see a copy of a public act of parliament, printed by the Queen's printer, used upon a trial, we must consider it, not as evidence, but used merely to aid the judge's recollection. And the same of all local acts, containing a clause, either making them public acts, or directing the judges to notice them judicially. Private acts, or local and personal acts, not containing any such clause, may be proved, either by an examined copy of the inrolment, or by a printed copy, purporting to be printed by the Queen's printer, or the printers of either house of parliament, without further proof. 89 Vict. c. 113, s. 3. So the statutes of Ireland, previous to the union, may be proved in the courts in this country, by the copies printed and published by the Queen's printer. 41 G. 3, U. K. c. 90, s. 9.

Other records.] Records of any of the Queen's courts at

Westminster, may be proved by an examined copy, that is to say, by a copy that is sworn to be a true copy by a person who examined it with the original. And where an office copy was thus sworn to be examined with the original, but it appeared to have a number of contractions and abbreviations in it, " pnl este," for personal estate, and the like,—it was holden that it could not be given in evidence as a copy. R. v. Christian, Car. & M.388. So, the record of an indictment at the assizes or sessions, may be proved by an examined copy; or the record itself, if in the court, may be produced. And for this purpose the record must be made up; for the indictment itself cannot be given in evidence; R. v. Smith et al., 8 B. & C. 341. R. v. Thring, Ry. & M. 171, 5 C. & P. 507; nor can you prove the sentence that has been passed upon a party indicted, in any other manner than by the record or an examined copy of it. R. v. Bourdon, 2 Car. & K. 366. So, to prove an order of a court of quarter sessions, the record must be made up; and it is then proved by an examined copy, or by the production of the record itself. Where the sessions book was produced in such a case, but the clerk of the peace said he would have made up the record on parchment if it had been bespoken, Parke, J., refused to receive the book as evidence. R. v. Ward, 6 Car. & P. 366. But, on the other hand, where the entry of the order in the sessions book had a regular caption, and was in the present tense, and in every other respect as a record, and it was proved that no other record ever was made up, the court held that the book was legal evidence of the order. R. v. Yeovley, 8 Law J. 9 m. So, a conviction before a magistrate is proved by an examined copy; see 5 Car. & P. 38. 1 Arch. P. A. 546, 2 Id. 70; or the conviction may be produced. And if it recite the information, such examined copy or original will be evidence of that also. 5 Car. & P. 38.

To the above rule, that indictments and convictions must be proved by the record or an examined copy, however, there are the following exceptions:

1. As proof of indictments against a person sentenced to transportation, for being at large before the expiration of his sentence, or against a person for rescuing or attempting to rescue him, it is enacted by stat. 5 G. 4, c. 84, s. 24, that the clerk of the court or other officer having the custody of the records of the court where such sentence or order of transportation shall have been passed or made, shall, at the request of any person on His Majesty's behalf, make and give a certificate in writing, signed by him, containing the effect and substance only (omitting the formal part) of every indictment and conviction of such offender, and of the sentence or order for his or her transportation, (not taking for the same more than 68. 8d.), which certificate shall be sufficient evidence of the conviction