the particular circumstances of the case ;(i) and is, it seems, a question for the jury. (k) Where the loss or destruction may be almost presumed, slight evidence of either will suffice.(1) Where the publisher of a paper in which a libel appeared, stated that he had thrown the original aside as useless, and believed it was lost or destroyed, it was held sufficient to let in secondary evidence. (m)

Parties and persons interested are competent witnesses in respect to the facts and circumstances necessary to lay a foundation for secondary evidence.(n) And where one party is sworn to prove the loss, the opposite party may be examined to disprove it and account for the instrument.(0)

The proof of loss or destruction must generally be by witnesses testifying under oath. Therefore, it was held erroneous for a justice to admit secondary evidence on his own knowledge of the fact of the loss of a note.(p)

The loss may be proved by the declarations of the adverse party,(q) or of those under whom he claims title; and this as to the latter even though they might be called as witnesses. (r) But in general, the declaration of a person who might be brought to testify on the subject is mere hearsay, and inadmissible. (s) Nor can a party rely upon the naked declarations of a deceased person as to his having had the paper and destroyed it, be relied on without search. (t) Rumors of the destruction of an instrument stand upon the same ground.(u)

It is not by any means a matter of course to let a party in to give secondary evidence, even where he produces direct proof of the fact of destruction. If the destruction was accidental, and occurred without his agency or assent; or even if it was voluntary and his own act, but yet done under a mistake, so as to rebut all idea of contemplated fraud, inferior evidence will usually be allowed. (v) Thus, should a party destroy a paper under the erroneous impression that it could be of no further use, he may afterwards, notwithstanding, prove its contents by secondary evidence. (w) Or should he destroy a note on its being paid in bank bills, he supposing at the time that they were genuine, when in truth they

were counterfeit, the same result would follow. (x) So, should he destroy one paper supposing it be another.(y) But a party who, under no pretence of mistake or accident, voluntarily destroys primary evidence, to prevent its being used against him, or to create an excuse for its nonproduction, to injure the opposite party, or for other fraudulent purposes, thereby excludes himself from the benefit of inferior evidence.(z)

Copies.] A copy, to be sufficient, must be proved to have been examined with the original, and to be a true copy. A rough draft will do.(a) If taken with a copying machine, it is not evidence without notice to produce the original.(b) When possession has gone with a deed many years, and it is lost or destroyed, an old copy or abstract may be given in evidence, though not proved to be true; for it may be impossible to give better evidence. (c)

Where secondary evidence is offered, it must be objected to in season, or its competency cannot be questioned. (d) It has been held too late to object after the testimony on the side of the party offering it is closed. The objection should be made when the evidence is offered, so as to afford the party an opportunity of obviating it.(e)

The production of a written instrument may be superseded by an admission in the pleadings. (f) But the admission must be very explicit ; if qualified by a reference to the instrument when produced, its production is necessary.(g)

CHAPTER V.

Presumptive Evidence.

PRESUMPTIVE evidence is either violent-probable-or light. Violent presumption often amounts to full proof; as if one be killed in a house, with a sword, and a man was seen to come out of that house with a bloody sword, and no other man was at that time in the house. Probable presumption moveth little; that which is light, not at all. (a) Proof that stolen goods, or a part of them, were found in the house, or possession, or on the person of the prisoner, is presumptive evidence of his having stolen them, sufficient to warrant a conviction if it be not repelled. This kind of evidence is frequently strengthened by other circumstances, as giving a false account respecting the goods-an endeavor to conceal-an attempt to prevent a search for them, and the like. (b) Where the guilty knowledge of the defendant is the point in issue, as where he is charged with uttering a forged note or base coin, a series of similar acts is presumptive proof of guilty knowledge.(c) The death of a party will be presumed if he has not been heard of for seven years. (d) And the death of a party without issue has been presumed after one hundred years. (e) Proof that a person sailed for the West Indies two or three years ago, and that the ship has not since been heard of, is presumptive evidence of his death; but the time of death, if material, must depend upon the circumstances of the case. (f) After twenty years a legacy will be presumed to be paid; or a bond, unless kept alive by admissions or payments. So, after twenty years' possession by the mortgagee, a mortgagor will be presumed to have abandoned his equity of redemption.(g)

The distinction between presumption and proof is that the one may be false, but until shown to be so must be regarded as true; that the other

(a) 1 Inst. 6. 3 Black. Com. 371. (b) 1 Phil. Ev. 168, 9.

(c) 1 Camp. 324. 2 Leach, 983, 4. Russ. & Ry. C. C. 120, 132, 245. 1 Moo. C. C. 148.

(d) 6 East, 84. 4 Barn. & Ald. 430. (e) 8 Barn. & Cress. 22.

(f) 1 Stark. N. P. Ca. 121.

(g) Matt. Dig. 124. 3 Dow. & Ry. 240.

(the facts upon which it is founded being admitted) cannot be otherwise than true.(h)

All those numerous presumptions which stand for proof till overturned, are of the first class in the above order, or violent presumptions. The second class (probable presumptions) seems to embrace all those circumstantial proofs, the effect of which is not reducible to rules, and must therefore go to a jury in order to be weighed upon the force of the circumstances. And this seems to be more properly denominated circumstantial evidence.(i)

Presumptive or circumstantial evidence, of which the jury are the exclusive judges, should be carefully distinguished from what the law calls prima facie evidence. The latter is, in judgment of law, sufficient to establish the fact; and if not rebutted, remains sufficient. (k)

As regards the effect of presumptive evidence, the rule, even in a capital case, is, that should the circumstances be sufficient to convince the mind, and remove every rational doubt, the jury is bound to place as much reliance on these circumstances as on direct and positive proof; for facts and circumstances cannot lie. (1)

(h) 2 Ev. Poth. 329, No. 16, § 14. (i) Cowen & Hill's Notes to Phil. Ev. 307.

3 Stark. 478.

(k) 6 Peters, 622, 631.

(1) Per Livingston, J. 2 City Hall Rec. 143. 1 Wash. C. C. Rep. 372.

CHAPTER VI.

Hearsay Evidence.

HEARSAY EVIDENCE is the deposing on oath to certain facts, which are only known to the witness by the relation of some other person. (a)

Pedigree, births, and marriages.] On account of the great difficulty of proving remote facts by living witnesses, hearsay and reputation, (which latter is the hearsay of those who may be supposed to have known the fact handed down from one to another,) have been admitted as evidence in cases of pedigree. (b) Thus, declarations of deceased members of a family are admissible to prove relationship, as whom he married, how many children he had, the time of a marriage, or birth of a child, and the like, of which it cannot be reasonably presumed that better evidence can be procured. (c) The declarations of a relative are admissible, notwithstanding that, if he were alive, he would stand in pari jure with the party in whose behalf such evidence is tendered, and would have the same rights to recover. (d) But declarations of servants and intimate acquaintances are not admissible to prove a pedigree. (e) Nor is a pauper's hearsay evidence of the declarations of his deceased putative father, as to the birth place of the pauper admissible. (f) The declarations of deceased persons as to whether they were married, or whether the person in question was born before or after marriage, are evidence.(g) Declarations made upon a point after a suit or controversy has arisen, are inadmissible. (h)

Public or general rights.] A general right may be proved by traditionary evidence; a particular fact cannot. (i) Thus, what old deceased persons had said concerning the boundaries between two parishes and manors, was admitted; though they were parishioners, and claimed rights of common which would be enlarged by their declarations, there

(a) 2 Hawk. ch. 4, s. 46. Roscoe's Cr. Ev. 15. Bull. N. P. 294.

(b) 10 East, 120.

(c) Phil. Ev. 238.

(d) Ry. & Moo. N. P. Cas. 141.

(e) 2 Bing. 86.

(f) 8 East, 539.

(g) 2 Cowp. 591. Ry. & Moo. 297. (h) 4 Camp. 401.

(i) 5 T. R. 123.