ture you should take it as a general principle, that, where a man, in whose possession stolen property is found, gives a reasonable account of how he came by it, as by telling the name of the person from whom he received it, and who is known to be a real person, it is incumbent on the prosecutor to shew that that account is false; but if the account given by the prisoner be unreasonable or improbable on the face of it, the onus of proving its truth lies on him. Suppose, for instance, a person were to charge me with stealing this watch, and I were to say I bought it from a particular tradesman, whom I name, that is primâ facie a reasonable account, and I ought not to be convicted of felony unless it is shewn that that account is a false one." And this is confirmed by a subsequent case of R. v. Harmer (b). (b) 2 Cox, Cr. Cas. 487. CHAPTER III. DOCUMENTS. SECTION I. DOCUMENTARY EVIDENCE IN GENERAL. § 209. THE remaining instruments of evidence are Documents. DOCUMENTS, under which term are properly included all material substances on which the thoughts of men are represented by writing, or any other species of conventional mark or symbol. Thus the wooden score on which bakers, milkmen, &c., indicate by notches the number of loaves of bread or quarts of milk supplied to their customers; the old exchequer tallies (a), and such (a) These tallies were used for acquittances for debts due to the crown, and some other purposes. A piece of wood, about two feet long, was cut into a particular uneven form, and scored with notches of different sizes to denote different denominations of coin, the largest denoting thousands of pounds; after which came respectively hundreds, tens, and units, of pounds; while shillings and pence were designated by still smaller notches. The wood was then split down the middle, into two parts, so that the cut passed through the notches. One portion was then given out to the accountant, &c., which was called the "tally," the other was kept by the chamberlain, and called the "counterfoil." The irregular form of the tally, together with Necessarily come to tri human testi mony. When in possession of the opposite party. like, are documents as much as the most elaborate deeds. In some instances, no doubt, the line of demarcation between documentary and real evidence seems faint; as in the case of models or drawings, which clearly belong to the latter head, but differ from that which we are now considering in this that they are actual, not symbolical, representations. § 210. Documents, being inanimate things, necesbunals through sarily come to the cognizance of tribunals through the medium of human testimony; for which reason some old authors have denominated them "dead proofs (probatio mortua)," in contradistinction to witnesses, who are said to be "living proofs (probatio viva)(b).” When documents which are wanted for evidence are in the possession of the opposite party, a notice to produce them should be served on him in due time before the trial, when, if he fail to produce them, derivative, or, as it is technically termed, "secondary" evidence may When of a third be given of their contents (c). If in the possession of a party. third party, he should be served with what is called a subpoena duces tecum, i. e. a summons to attend the trial as a witness and bring the documents with him. The person on whom such a subpoena has been served is bound. to obey it, i. e. attend the trial and bring the documents. with him; but, by analogy to the principles stated in the preceding chapter, he will not be compelled to produce them if the disclosure might subject him to a penalty or forfeiture (d). Thus, a party will not be required to produce the title deeds of his estate (e), neither will his attorney to whose care they have been entrusted (f); and in either case secondary evidence of (b) Co. Litt. 6 b. (c) Part 3, bk. 2, ch. 2. (d) Supra, chap. 1, sect. 1. (f) Hibberdv. Knight, 2 Exch. 11; Doe d. Gilbert v. Ross, 7 M. & W. 102; Ditcher v. Kenrick, 1 Car. & P. 161; Volant v. Soyer, 22 L. J. C. P. 83. and construc the contents of them may be given (g). The admissi- Admissibility bility in evidence of documents, as well as all preliminary tion of, to be questions of fact on which that admissibility depends (h), decided by the and their legal construction when received, are to be determined by the judge; other questions respecting them are for the jury. § 211. Although documentary evidence most usually presents itself in a written form, the terms "writing", and "written evidence" have obtained in law a secondary and limited signification, in which they are commonly, but not always used; and much confusion has arisen. from the ambiguous meaning of these terms. This matter cannot be more clearly explained than in the following passage from one of the most eminent of the foreign civilians. "The force of written proofs consists in this, that men have agreed to preserve by writing the recollection of things passed, and of which they were desirous to establish the remembrance, either as rules for their guidance, or to have therein a lasting proof of the truth of what they write. Thus, agreements are written to preserve the remembrance of what the contracting parties have prescribed, and erect that which has been agreed on into a fixed and immutable law for their guidance. So, wills are written to establish the recollection of what a person who had the right to dispose of property has ordered, and make thereof a rule for his heir and legatees. In like manner, also, are written sentences, judgments, edicts, ordinances, and everything intended to confer title or have the effect of law. marriages, baptisms, and other matters which ought to be inserted therein are written in public registers, in order to have a public and lasting depository of the truth of the acts so registered. *** The writing preserves unchangeably what was entrusted to it, and expresses (g) Infra, Part 3, bk. 2, ch. 2. (h) See Part 1, ch. 1, § 82. T So judge. Secondary sig nifications of dence." nification of "instrument." the intention of the parties by their own testimony (k).” Now it is to such documents as are here spoken of that the terms "writing" and "written evidence" are comSecondary sig monly applied in our books (1). The civilians appear to have included all such under the general name of instruments (m); but among us this term is not usually applied to public writings. It is not however essential to an instrument that it be the act of two or more parties: it may be unilateral as well as synallagmatic. Thus, a deed poll, or a will, is an "instrument" as much as the most complicated indenture consisting of any conceivable number of parts (n). (k) Domat, Lois Civiles, Part. es (1) The word "writing," as well as the Norman French " cript," have been used in this sense from the earliest times; see Litt. sect. 365; Co. Litt. 352 a; 5 Co. 26 a, &c. So in 2 Edw. IV. 3, A. & B. Nota q Littleton voile aver pled escript per voy de fait, et voile aver appel' ceo un fait, come adire, fist un fait de feoffment. Et Choke dit, qe ne poet estre, car il n'est dit un fait, sinon un livere de cest ust estre fait, pq Litt. luy agree a ceo, et dit que il serf appel un writing, et le appel' un escript conteigne q tiel home enfeoffe tiel home." (m) "Facilioris probationis causâ etiam conficiuntur instru menta. Quo vocabulo quamvis omnia, quibus causa instruitur, adeoque et testes denotentur: hic tamen instrumentum est scriptura, ad rerum gestarum memoriam fidemque confecta. Quia autem vel publica fide nititur illa scriptura, vel privata: hinc et instrumentum est vel publicum, vel privatum. Itaque publica habentur instrumenta, confecta à magistratibus, veluti acta publica, tabulæ censuales, apochæ publicæ, in monimenta publica translata, diplomata, et notitiæ, ex archivo publico depromptæ, &c. :" Heinec. ad Pand. pars 4, §§ 126 and 127. (n) "Nec minus ex his definitionibus intelligitur, instrumentis privatis accensenda esse 1. Chirographa, quæ super negotio povorλévρ conficiuntur. 2. Syngraphas, super negotio diλévpy scriptas. 3. Apochas, quibus sibi |