14 & 15 Vict. c. 99, s. 7. Foreign and colonial acts of state, judg

ments, &c.

provable by

without proof

of seal or sig.

nature or

judicial character of person signing the


records and public documents. By the 7th section of the statute 14 & 15 Vict. c. 99, quoted above (o), it is enacted, "All proclamations, treaties, and other acts of state of any foreign state or of any British colony, and all judgments, decrees, orders, and other judicial certified copies, proceedings of any court of justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved in any court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, either by examined copies or by copies authenticated as hereinafter mentioned; that is to say, if the document sought to be proved be a proclamation, treaty, or other act of state, the authenticated copy to be admissible in evidence must purport to be sealed with the seal of the foreign state or British colony to which the original document belongs; and if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign or colonial court, or an affidavit, pleading, or other legal document filed or deposited in any such court, the authenticated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or colonial court to which the original document belongs, or, in the event of such court having no seal, to be signed by the judge, or, if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said copy that the court whereof he is a judge has no seal; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and (0) Supra, § 470.

British vessels

missible as

dence of their

statement are necessary, or of the judicial character of the person appearing to have made such signature and statement." By sect. 12, "Every register of a vessel kept Sect. 12. under any of the acts relating to the registry of British Registers of vessels may be proved in any court of justice, or before and certificates any person having by law or by consent of parties au- of registry adthority to hear, receive, and examine evidence, either by prima facie evithe production of the original or by an examined copy contents, withthereof, or by a copy thereof purporting to be certified out proof of under the hand of the person having the charge of the signature, &c. original, and which person is hereby required to furnish such certified copy to any person applying at a reasonable time for the same, upon payment of the sum of one shilling; and every such register or such copy of a register, and also every certificate of registry, granted under any of the acts relating to the registry of British vessels, and purporting to be signed as required by law, shall be received in evidence in any court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, as primâ facie proof of all the matters contained or recited in such register when the register or such copy thereof as aforesaid is produced, and of all the matters contained or recited in or endorsed on such certificate of registry when the said certificate is produced." And by sect. 13, "Whenever in any proceeding whatever it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it be certified or purport to be certified under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal

Sect. 13. Where necesconviction or acquittal of person charged, not necessary to produce record, but may be certified under

sary to prove

hand of clerk

of court.

8 & 9 Vict. c. 113.

admissible as


parts thereof" (o). The 8 & 9 Vict. c. 113, s. 3, enacts, "All copies of private and local and personal acts of Copies of private acts, parliament not public acts, if purporting to be printed printed by by the queen's printers, and all copies of the journals of queen's printer, journals of either house of parliament, and of royal proclamations, parliament, and proclamations, purporting to be printed by the printers to the crown or by the printers to either house of parliament, or by any or either of them, shall be admitted as evidence thereof by all courts, judges, justices, and others, without any proof being given that such copies were so printed” (p), &c. &c. Of these and similar enactments it may be observed, that in general they are cumulative, not substitutionary, i. e. they do not supersede the common law mode of proof, and only provide a more easy or summary one, of which parties may, if they please, avail themselves (g).

4. Proof of appointments of public officers.

5. Examination

§ 472. 4. Another exception is in the case of public officers. It is a general principle that a person's acting in a public capacity is primâ facie evidence of his having been duly authorized so to do; and even though the office be one the appointment to which must be in writing, it is not, at least in the first instance, necessary to produce the document or account for its nonproduction. The grounds of this have been examined in another place (r).

§ 473. 5. Where a witness is being questioned on the on the voir dire. voir dire with the view of ascertaining his competency, if that competency depends on written instruments he may state their nature and contents (s).

(0) On this subject see also 7 & 8 Geo. IV. c. 28, s. 11.

(p) See these statutes at length in the Appendix, N. 1.

(9) See Tayl. Ev. § 1139.

(r) Supra, ch. 1, sect. 1; subsect. 2, §§ 337, et seq.

(s) Tayl. Ev. § 342. See also per Maule, J., in Macdonnell v. Evans, 11 C. B. 930.

evidence not

primary evi

§ 474. The principle of the rule in question being that Circumstantial the secondary evidence borrows its force from the pri- affected by the mary, of which, owing to the general infirmity of all rule requiring derivative proof, it may not be a perfect representation, dence. it follows that circumstantial evidence, when original and proximate in its nature, is not affected by the rule (†). It is evidence in the descending, not in the collateral line, which falls within the exclusion. For the same reason Nor self-disit seems, although much has been said and written on serving evithe subject, that self-disserving statements, &c. by a party against his own interest are receivable as primary proof of documents; but this will be considered under the head of self-regarding evidence (u).

(t) Part 1, ch. 1, § 89, and (u) Infra, ch. 6.

supra, ch. 1, sect. 1, § 287.


A poon cannot be called on to produce a document for the purpose of evidence unless it can be shown to be in his posson re.

арку who refuses to produce a document when called on cannot afterwards produce it po his own evidence. aphy declining & produce a document ought simply Wanswer that he does not produce it, &sho? not state Capton oReynolds 18 Jur: 963.





Infirmity of derivative evidence.

Forms of it.

General rule-
Not receivable


§ 475. THE infirmity of derivative evidence, as compared with its original source, has been shewn in the Introduction; and the danger of this kind of proof increases according to its distance from that source, and the number of media or instruments through which it comes to the cognizance of the tribunal (a). The five following forms of it were there enumerated: 1. Supposed oral evidence, delivered through oral. 2. Supposed written evidence, delivered through oral. 3. Supposed written evidence, delivered through written. 4. Supposed oral evidence, delivered through written. 5. Reported real evidence. The last of these (b), and the secondary evidence of documents which would be evidence if produced (c), have been already considered; and the present chapter will be devoted to the legal admissibility of derivative evidence in general.

§ 476. The general rule is that derivative, or secondas evidence in hand, proofs are not receivable as evidence in causâ— a rule which forms one of the distinguishing features of our law of evidence (d), and the gradual establishment of which has been already traced (e). The reasons commonly assigned for it are: 1. That the party against whom the proof is offered has no opportunity of cross-examining the original source whence it

Reasons commonly assigned for this.

(a) Introd. sect. 1, §§ 29 and 30.

(b) See Part 2, chap. 2.

(c) See the preceding chapter.

(d) Introd. sect. 1, § 29, and Part 1, chap. 1, § 89.

(e) Part 1, chap. 2.

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