prosecution, or to any witness subpoenaed on the part of any defendant in an indictment; but such witness shall be bound to attend as if the fees allowed by law to witnesses in civil cases had been duly paid to him.(w)

But when a witness attends the oyer and terminer or general sessions, in behalf of the people, on subpoena, recognizance, or on request of the public prosecutor, from another state or territory of the United States, or from any foreign country; or if such witness be poor, on either fact appearing, the court may by order in its minutes direct the county treasurer to pay him such sum of money as shall seem reasonable, for his expenses; to be paid to the witness or his order, on producing a certified copy of the order of the court, to the county treasurer.(x)

7th. PRIVILEGE OF WITNESSES FROM ARREST.] By the revised statutes it is provided that persons duly and in good faith subpoenaed or summoned as witnesses, shall be exonerated from arrest in any civil suit while going to the place where they shall be required by such subpœna to attend, while remaining at such place, and while returning therefrom. And the court or officer before whom any person shall have been subpœnaed to attend as a witness, shall discharge such witness from any such arrest. Every officer authorized to perform the duties of supreme court commissioner, and the first judges of the county courts have the like authority. Every arrest made contrary to these provisions is absolutely void, and shall be deemed a contempt of the court issuing the subpœna; and the person making the arrest shall be liable to the witness in damages. But no sheriff or other officer or person shall be so liable unless the person claiming an exemption from arrest, shall, if required by such officer make an affidavit stating: 1. That he has been legally subpœnaed as a witness to attend before some court or officer, specifying such court or officer, the place of attendance, and the cause in which he shall have been subpoenaed; and 2. That he has not been subpoenaed by his own procurement, with the intent of avoiding the service of any process.(y)

The privilege extends only to an exemption from arrest, and does not extend to the service of a summons, unless such service be made in the immediate presence of the court.(z) It is personal; and if the witness waives it and willingly submits to custody, he cannot afterwards object to the imprisonment as unlawful. (a) Thus, if he give a bond for the prison bounds, it is neither void nor voidable; the privilege is waived,

(w) 2 R. S. 729, § 65.
(x) Id. 753, §§ 13, 14, 15.
(y) 2 R. S. 402, 3.

(z) 1 Peters' C. C. Rep. 41. 1 Wend.

292.

(a) 11 Mass. R. 11.

and cannot be set up as a defence to an action on the bond after forfeiture.(b) But giving a bail bond is not a waiver.(c)

The privilege does not extend throughout the term at which the cause is marked for trial; nor will it protect the witness while engaged in transacting his private business after he is discharged from the obligation of his subpoena. (d) But he is protected while at his lodgings, as well as while going to and returning from court.(e)

A witness from another state is entitled to the same privilege as a citizen of the state where the court sits.(ƒ)

(b) 1 Peck's Rep. 414.
(c) 9 Serg. & Rawl. 147.
(d) 4 Dall. 329.

(e) Id. 387.
(ƒ) 2 John. 294.

CHAPTER IV.

Secondary Evidence.

WE have before observed that it is a general rule that the best evidence must be given of which the nature of the case will admit.(g) Thus, if a party intend to use a deed or any other written instrument in evidence, he ought to produce the original, if in his possession. But if the instrument is in the possession of the other party, who refuses to produce it after a reasonable notice, or if it is lost or destroyed, (and in some other cases,) secondary evidence, which is the best the nature of the case allows, will then be admitted. (h)

In case the other party refuses to produce an original instrument which is in his possession, and which he has had notice to produce, secondary evidence of the contents will be received without proof of the original.(i) After once refusing to produce, and obliging his opponent to resort to secondary proof, he shall not be at liberty to retract, or, by producing the original when it is not wanted, to insist upon formal proof of its execution.(k) And a party refusing, on notice, to produce a paper in his possession or under his control, and thus obliging his adversary to resort to parol or secondary evidence of its contents, cannot be allowed to contradict the secondary evidence thus given, without producing the paper itself. (1) Indeed, it has been held that a party refusing to produce a paper in his possession, called for under a notice to produce, cannot be allowed afterwards to retract and put in the paper. (m)

If the original has been lost or destroyed, and two or more parts have been executed, the loss or destruction of all the parts should be proved, before secondary evidence of the contents can be received ;(n) and the original deed ought to be proved to have been duly executed, unless proof of the execution would be dispensed with, if the original itself were produced, or unless the want of the original is occasioned by the default

(g) Ante, p. 352.
(h) 1 Phil. Ev. 452.
(i) Id. ib.

(k) Id. ib.

(1) 5 Pick. 18.

(m) 6 Car. & Payne, 525.

(n) 1 Phil. Ev. 452. 8 Pick. 272. 2 Watts, 75.

of the other party; in which case the execution may reasonably be presumed against him.(o) Thus, the act of a party destroying a written instrument, furnishes presumptive proof of its due execution; but before this presumption can arise, the purport of the paper destroyed must be shown what it is alleged to have been. In other words, it must be identified in some way.(p)

If resort is had to the handwriting, in order to establish the genuineness of a lost instrument, the witness must be qualified to speak of the handwriting, the same as if the instrument was produced.(q)

Secondary evidence must, in all cases, be in itself competent; for the rule requiring the best evidence the circumstances will admit, is never so far relaxed as to allow evidence to be given which is intrinsically illegal, as hearsay, for instance, merely because a party happens to be so unfortunately situated that it is the best of which his case is susceptible. (r) And, on the other hand, the rule is not to be extended to such a rigorous extreme as to debar a party from justice, because he originally neglected to furnish himself with the highest possible assurance of the disputed facts. For then two witnesses would be better than one; a hundred better than two, and so on progressively; a writing would be better than a parol contract, a deed better than either, and a record better than all.(s)

Nor does the rule operate in any case to exclude evidence, merely because it is not all, nor the most satisfactory which might be adduced, when the evidence offered and that which is withheld is all of the same general quality or grade ;(t) but in such case it, in general, goes no farther than to forbid that evidence which is in its nature merely circumstantial, shall be received when direct and conclusive evidence may be had.(u)

Notice to produce having been given and not complied with, or the loss or destruction of an instrument, are by no means the only circumstances which will authorize the admission of secondary evidence. Thus if a paper be on file in a public office under such circumstances that the party can neither obtain it, or compel its production, and it is not made the duty of any person to give out certified copies to be used as evidence,

parol testimony will be received. (v) So, it seems, if the paper is in another state. (w) So, if the paper is in the hands of a third person under such circumstances that the law will not compel him to produce it, secondary evidence will be allowed. (x)

There are four other cases in which secondary evidence is admissible without notice to produce: 1. Where the instrument produced, and that to be proved, are duplicate originals. (y) 2. Where the instrument to be proved is itself a notice, as a notice to quit, notice of dishonor of a bill, &c.(%) 3. Where, from the nature of the proceeding, the adverse party must be aware that he is charged with the possession of the instrument, as in an indictment for stealing, or an action of trover, for a bill or bond, &c.(a) 4. Where the adverse party has obtained the possession of the instrument by fraud, as where, after the commencement of the action, he received it from a witness served with a subpoena duces tecum to produce it.(b)

The notice to produce (where necessary) must be proved to have been served upon the party himself, or his attorney in the cause, (c) a reasonable time before the trial. Such time depends on the circumstances of each case. (d) A parol notice is sufficient, but a written one is safer.(e) The notice must so specify the instrument required as to inform the party what he is to produce.(ƒ) And to let in secondary evidence, some proof must be given that it is in the opposite party's possession; but where the instrument belongs exclusively to the party possessing it, slight evidence will suffice.(g) If a party has not had notice to produce an instrument, he may object to secondary evidence of its contents, though he has the original in court at the trial. And neither party, it is said, may inquire into its contents merely because it is there.(h)

Loss of instrument, and search.] To let in secondary evidence of the contents of an instrument that has been lost, it must be shown that diligent search and inquiries have been made for it in those places and of those persons whence it could most probably be procured. The degree of diligence to be used depends on the importance of the instrument, and

(v) 3 Monro, 532. 7 Pick. 10. But

see 5 Day, 298. 8 Mart. 287.

(w) Cowen & Hill's Notes, 1215. (x) Id. ib. 6 Peters, 352. (y) 5 T. R. 465. 7 East, 363. 6 Barn. & Cress. 698.

(z) 3 Brod. & Bing. 288. 6 Barn. & Cress. 398.

(a) 1 Leach, 380. 6 East, 421. Russ. & Ry. C. C. 188.