died; the court ordered his deposition to stand;1 though the want of the cross-examination ought to abate the force of his testimony. So, where the direct examination of an infirm witness was taken by the consent of parties, but no cross-interrogatories were ever filed, though the witness lived several months afterwards, and there was no proof that they might not have been answered, if they had been filed; it was held, that the omission to file them was at the peril of the party, and that the deposition was admissible.3 A new commission may be granted, to crossexamine the plaintiff's witnesses abroad, upon subsequent discovery of matter for such examination. But where the deposition of a witness, since deceased, was taken, and the direct examination was duly signed by the magistrate, but the cross-examination, which was taken on a subsequent day, was not signed, the whole was held inadmissible.5 § 555. Depositions relating to custom. Depositions, as well as verdicts, which relate to a custom, or prescription, or pedigree, where reputation would be evidence, are admissible against strangers; for as the declarations of persons deceased would be admissible in such cases, a fortiori their declarations on oath are so.6 But in all cases at law, where a deposition is offered as secondary evidence, that is, as a substitute for the testimony of the witness viva voce, it must appear that the witness cannot be personally produced; unless the case is provided for by statute, or by a rule of the court.7 § 556. Inquisitions. The last subject of inquiry under this head is that of inquisitions. These are the results of inquiries, made under competent public authority, to ascertain matters of public interest and concern. It is said that they are analogous to proceedings in rem, being made on behalf of the public; and that therefore no one can strictly be said to be a stranger to them. But the principle of their admissibility in evidence, between private persons, seems to be, that they are matters of public and general interest, and therefore within some of the exceptions to the rule in regard to hearsay evidence, which we have heretofore 1 Arundel v. Arundel, 1 Chan. R. 90. 2 O'Callaghan v. Murphy, 2 Sch. & Lef. 158; Gass v. Stinson, 3 Sumn. 98, 106, 107. But see Kissam v. Forrest, 25 Wend. 651. 8 Gass . Stinson, 3 Sumn. 98, where this subject is fully examined by Story, J. 4 King of Hanover v. Wheatley, 4 Beav. 78. 5 Reg. v. France, 2 M. & Rob. 207. 6 Bull. N. P. 239, 240; supra, §§ 127130, 139, 140. Supra, §§ 322, 323. considered.1 Whether, therefore, the adjudication be founded on oath or not, the principle of its admissibility is the same. And, moreover, it is distinguished from other hearsay evidence, in having peculiar guaranties for its accuracy and fidelity. The general rule in regard to these documents is, that they are admissible in evidence, but that they are not conclusive except against the parties immediately concerned, and their privies. Thus, an inquest of office, by the attorney-general, for lands escheating to the government by reason of alienage, was held to be evidence of title, in all cases, but not conclusive against any person, who was not tenant at the time of the inquest, or party or privy thereto, and that such persons, therefore, might show that there were lawful heirs in esse, who were not aliens.3 So, it has been repeatedly held that inquisitions of lunacy may be read; but that they are not generally conclusive against persons not actually parties. But inquisitions, extrajudicially taken, are not admis sible in evidence.5 1 Supra, §§ 127-140. 2 Phil. & Am. on Evid. 578, 579; 1 Stark. Evid. 260, 261, 263. 8 Stokes v. Dawes, 4 Mason, 268, per Story, J. 4 Sergeson v. Sealey, 2 Atk. 412; Den v. Clark, 5 Halst. 217, per Ewing, C. J.; Hart v. Deamer, 6 Wend. 497; Faulder v. Silk, 3 Campb. 126; 2 Madd. Chan. 578. 5 Glossop v. Pole, 3 M. & S. 175; Latkow v. Eamer, 2 H. Bl. 487. See supra, § 550, that the inquisition is conclusive against persons, who undertake subsequently to deal with the lunatic, instead of dealing with the guardian, and seek to avoid his authority, collaterally, by showing that the party was restored to his reason. CHAPTER VI. OF PRIVATE WRITINGS. § 557. Private writings. The last class of written evidence which we propose to consider is that of PRIVATE WRITINGS. And, in the discussion of this subject, it is not intended separately to mention every description of writings comprised in this class, but to state the principles which govern the proof, admissibility, and effect of them all. In general, all private writings produced in evidence must be proved to be genuine; but in what is now to be said, particular reference is had to solemn obligations and instruments, under the hand of the party, purporting to be evidence of title; such as deeds, bills, and notes. These must be produced, and the execution of them generally be proved, or their absence must be duly accounted for, and their loss supplied by secondary evidence. § 558. Proof of, when lost. And first, in regard to the PRODUCTION of such documents. If the instrument is lost, the party is required to give some evidence that such a paper once existed, though slight evidence is sufficient for this purpose, and that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits such proof; after which, his own affidavit is admissible to the fact of its loss.1 The same rule prevails where 1 Supra, § 349, and cases there cited. The rule is not restricted to facts peculiarly within the party's knowledge; but permits him to state other pertinent facts, such as his search for the document elsewhere than among his own papers. Vedder v. Wilking, 5 Denio, 64. In regard to the order of the proof, namely, whether the existence and genuineness of the paper, and of course its general character or contents, must be proved before any evidence can be received of its loss, the decisions are not uniform. The earlier and some later cases require that this order should be strictly observed. Goodier v. Lake, 1 Atk. 446; Sims v. Sims, 2 Rep. Const. Ct. 225; Kimball v. Morrell, 4 Greenl. 368; Stockdale v. Young, 3 Strobh. 501, n. In other cases, it has been held, that, in the order of proof, the loss or destruction of the paper must first be shown. Willis v. McDole, 2 South. 501; Sterling v. Potts, Id. 773; Shrouders v. Harper, 1 Harringt. 444; Finn v. M'Gonigle, 9 Watts & Serg. 75; Murray v. Buchanan, 7 Blackf. 549; Parke v. Bird, 3 Barr, 360. But, on the one hand, it is plain, that the proof of the loss of a document necessarily involves some descriptive proof of the document itself, though not to the degree of precision subsequently necessary in order to establish a title under it; and, on the other hand, a strong probability of its loss has been held suffi the instrument is destroyed. What degree of diligence in the search is necessary it is not easy to define, as each case depends much on its peculiar circumstances; and the question, whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents, is to be determined by the court and not by the jury. But it seems that, in general, the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him." It should be recollected, that the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and that this is a preliminary inquiry addressed to the discretion of the judge. If the paper was supposed to be of little value, or is ancient, a less degree of diligence will be demanded, as it will be aided by the presumption of loss which these circumstances afford. If it belonged to the custody of certain persons, or is proved or may be presumed to have been in their possession, they must, in general, be called and sworn to account for it, if they are within reach of the process of the court.3 cient to let in the secondary evidence of its contents. Bouldin v. Massie, 7 Wheat. 122, 154, 155. These considerations will go far to reconcile most of the cases apparently conflicting. In Fitch v. Bogue, 19 Conn. 285, the order of the proof was held to be immaterial, and to rest in the discretion of the court. It is sufficient, if the party has done all that could reasonably be expected of him, under the circumstances of the case, in searching for the instrument. Kelsey v. Hanmer, 18 Conn. 311. After the loss of a deed has been established, the secondary evidence of the contents or substance of the contents of its operative parts must be clear and direct, and its execution must be distinctly proved. And the declarations of the grantor are admissible, in corroboration of the other evidence. Metcalf v. Van Benthuysen, 3 Comst. 424; Mariner v. Saunders, 5 Gilm. 113. Page v. Page, 16 Pick. 368 [Glassell v. Mason, 32 Ala. 719; Woodworth v. Barker, 1 Hill (N. Y.), 176; Batchelder v. Nutting, 16 N. H. 261; ante, § 49, n. While it is a general rule that the affidavit of the plaintiff must be produced where a paper is alleged to be lost, of which he must be presumed to have the custody, before secondary evidence of its contents can be admitted, yet the rule is not inflexible. Where the nominal party to the record is not the party actually seeking to recover, and the party interested has used due diligence to find the plaintiff and produces proof that he has absconded to parts unknown, he has done all that can be reasonably required of him, and the production of the affidavit of the absent party to the record may be dispensed with. Foster v. Mackay, 7 Met. 531, 537]. 2 Rex v. Morton, 4 M. & S. 48; Rex v. Castleton, 6 T. R. 236; 1 Stark. Evid. 336-340; Willis v. McDole, 2 South. 501; Thompson v. Travis, 8 Scott, 85; Parks v. Dunklee, 3 Watts & Serg. 291; Gathercole v. Miall, 15 Law Journ. 179; Doe v. Lewis, 15 Jur. 512; 5 Eng. L. & Eq. 400. The admission of the nominal plaintiff, that he had burnt the bond, he being interested adversely to the real plaintiff, has been held sufficient to let in secondary evidence of its contents. Shortz v. Unangst, 3 Watts & Serg. 45. [Where a party has been deprived of an instrument by fraud, secondary evidence of its contents is admissible. Grimes v. Kimball, 3 Allen, 518. And even where a party who offers to prove the contents of a paper has himself destroyed it, he may explain the circumstances of the destruction, in order to prove the contents. Tobin v. Shaw, 45 Maine, 331.] 395. 3 Ralph v. Brown, 3 Watts & Serg. And so, if it might or ought to have been deposited in a public office, or other particular place, that place must be searched. If the search was made by a third person, he must be called to testify respecting it. And if the paper belongs to his custody, he must be served with a subpœna duces tecum to produce it.1 If it be an instrument which is the foundation of the action, and which, if found, the defendant may be compelled again to pay to a bona fide holder, the plaintiff must give sufficient proof of its destruction to satisfy the court and jury that the defendant cannot be liable to pay it a second time. And if the instrument was executed in duplicate, or triplicate, or more parts, the loss of all the parts must be proved in order to let in secondary evidence of the contents. Satisfactory proof being thus made of the loss of the instrument, the party will be admitted to give secondary evidence of its contents.4 a 1 The duty of the witness to produce such a document is thus laid down by Shaw, C. J.: "There seems to be no difference in principle between compelling witness to produce a document in his possession, under a subpœna duces tecum, in a case where the party calling the witness has a right to the use of such document, and compelling him to give testimony, when the facts lie in his own knowledge. It has been decided, though it was formerly doubted, that a subpoena duces tecum is a writ of compulsory obligation, which the court has power to issue, and which the witness is bound to obey, and which will be enforced by proper process to compel the production of the paper, when the witness has no lawful or reasonable excuse for withholding it. Amey v. Long, 9 East, 473; Corsen v. Dubois, 1 Holt, N. P. 239. But of such lawful or reasonable excuse the court at Nisi Prius, and not the witness, is to judge. And when the witness has the paper ready to produce, in obedience to the summons, but claims to retain it on the ground of legal or equitable interests of his own, it is a question to the discretion of the court, under the circumstances of the case, whether the witness ought to produce, or is entitled to withhold, the paper." Bull v. Loveland, 10 Pick. 14. 2 Hansard v. Robinson, 7 B. & C. 90 ; Lubbock v. Tribe, 3 M. & W. 607. See also Peabody v. Denton, 2 Gall. 351; Anderson v. Robson, 2 Day, 495; Davis v. Todd, 4 Taunt. 602; Pierson v. Hutchinson, 2 Campb. 211; Rowley v. Ball, 3 Cowen, 303; Kirby v. Sisson, 2 Wend. 550; Murray v. Carrett, 3 Call, 373; v. 8 Bull. N. P. 254; Rex v. Castleton, 6 T. R. 236; Doe v. Pulman, 3 Ad. & El. N. s. 622. 4 See, as to secondary evidence, supra, $ 84, and note. Where secondary evidence is resorted to, for proof of an instrument which is lost or destroyed, it must, in general, be proved to have been executed. Jackson v. Frier, 16 Johns. 196; Kimball v. Morrell, 4 Greenl. 368; Kelsey v. Hanmer, 11 Conn. 311; Porter v. Ferguson, 4 Fla. 102. But if the secondary evidence is a copy of the instru ment which appears to have been attested by a witness, it is not necessary to call this witness. Poole v. Warren, 3 Nev. & P. 693. [See also ante, § 509.] In case of the loss or destruction of the instrument, the admissions of the party may be proved to establish both its existence and contents. Mauri v. Heffernan, 13 Johns. 58, 74; Thomas v. Harding, 8 Greenl. 417; Corbin v. Jackson, 14 Wend. 619. [See also ante, § 96.] A copy of a document, taken by a machine, worked by the witness who produces it, is admissible as secondary evidence. Simpson v. Thoreton, 2 M. & Rob. 433. [A machine copy of a letter of the plaintiff to a third party was received as evidence of an admission on his part, although not admissible as a letter. Nathan v. Jacob, 1 F. & F. 452. A copy of a copy of a lost instrument may be the best evidence of its contents, and therefore admissible. Wynn v. Pat terson, 9 Pet. (U. S.) 63; Gracie v. Mor. |