6

the subsequent trial should, it seems, be required under the rule requiring the production of the best evidence. But the verbal testimony of the stenographer, it has been held, in such a case, given after refreshing his memory by a perusal of his notes, is admissible,' provided the notes are shown to the opposite party and he is given an opportunity to cross-examine the witness as to their accuracy. A stenographer's notes taken out of the jurisdiction, or taken down from the lips of an interpreter where the witness testifies in a foreign language, or when the reporter is dead, or when for any reason the notes are not shown to be correct, have been held inadmissible to prove the testimony which a witness gave at a former trial. The judge's notes also are not competent to show what the witness said until it is shown that they contain an accurate and complete account of the substance of the witness' language. Their incompetency is due to the fact that they are no part of the record and are not made within the scope of official duty or under the sanction of an official oath, which would guaranty that they are complete or correct. So when it is sought to show, by the bill of exceptions, or a case on appeal, the testimony of a witness at a former trial, a foundation must be laid by proving that the bill does actually contain all the evidence given by the witness.

When, however, the record is not obtainable,

son v. Spear, 82 Mich. 453; Sage v. State, 27 Ind. 15; 26 N. E. Rep. 667.

1 Rounds v. State, 57 Wis. 45; People v. Chung, 57 Cal. 567; Hicks v. Lovell, 64 Cal. 14; Shackelford v. State, 33 Ark. 559; Moore v. Moore, 39 Iowa, 461.

2 People v. Lon You (Cal., 1893), 32 Pac. Rep. 11.

3 Herrick v. Swomley, 56 Md. 439. 4 People v. Ah Yute, 56 Cal. 119.

5 Trunkey v. Hedstrom, 33 Ill. App. 397.

6 People v. Sligh, 48 Mich. 54.

7 Simmons v. Spratt, 1 S. Rep. 860; Thompson v. Richardson (Ala., 1893), 11 S. Rep. 728; Wade v. State, 7 Baxt. (Tenn.) 80; Elberfeldt v. Waite, 79 Wis. 284.

8 Elberfeldt v. Waite, 79 Wis. 284; Ex parte Learmouth, 6 Madd. 113; Regina v. Child, 5 Cox C. C. 197; Schafer v. Schafer, 93 Ind. 586; Miles v. O'Hara, 4 Binn. (Pa.) 108; Huff v. Bennett, 4 Sandf. (N. Y.) 120; Sargeant v. Marshall, 38 Ill. App. 642.

9 Woolen v. Wire, 110 Ind. 251; Case v. Blood, 71 Iowa, 632; Slingerland v. Slingerland, 46 Minn. 100; Davis v. Kline, 9 S. W. Rep. 724; Odell v. Solomon, 4 N. Y. S. 440; Dwyer v. Rippetoe, 72 Tex. 520; Coughlin v. Haensler, 50 Mo. 126; St. Joseph v. Union Ry. Co. (Mo., 1893), 22 S. W. Rep. 794; Fisher v. Fisher, 131 Ind. 462. Cf. Elgin v. Welch, 23 Ill. App. 185.

any person who has heard the witness, as, for example, the counsel of one of the parties or a juror,' a justice,2 master in chancery, committing magistrate, interpreters or newspaper correspondent will be allowed to testify to the language of an absent witness from notes taken on the former trial. In case counsel in the subsequent trial enter into a stipulation by which they agree upon the admissibility of the witnesses' notes, a verification or identification under oath may be dispensed with. But such a stipulation does not make the testimony taken in the prior case evidence unless it is actually introduced as such.9

1 Hutchings v. Corgan, 59 Ill. 70. 2 Elberfeldt v. Waite, 79 Wis. 284; 48 N. W. Rep. 525; Chase v. Debolt, 7 Ill. 571.

Yale v. Comstock, 112 Mass. 267. 4 Wade v. State, 7 Baxt. (Tenn.) 80. 5 People v. Ah Yute, 56 Cal. 119. "Moore v. Moore, 39 Iowa, 461. 7 Carpenter v. Tucker, 98 N. C. 316; Loughry v. Wait, 34 Ill. App. 523;

Davis v. Kline (Mo., 1888), 9 S. W. Rep. 724; People v. Murphy, 45 Cal. 137; Ruch v. Rock Island, 97 U. S. 693.

8 Nutt v. Thompson, 69 N. C. 548; Clark v. Vance, 15 Wend. 193; Lathrop v. Adkinson, 87 Ga. 389.

9 Pitts v. Lewis, 81 Iowa, 51; 46 N. W. Rep. 739; United States Exp. Co. v. Jenkins, 73 Wis. 471.

CHAPTER XII.

PRIVATE WRITINGS.

§ 125. Definition and classification. | § 134. When proof of handwriting 126. Production of writing-Proof

may be dispensed with — Acknowledgments.

135. Who may take acknowledgments.

136. The certificate.

137. Impeaching the certificate. 138. Proof by subscribing wit

nesses.

139. Proof by witnesses acquainted with party's handwriting. 139a. Mode of examining witnesses as to handwriting.

140. Comparison of handwriting. 141. To what expert may give evidence.

142. Proof of exhibits in equity.

§ 125. Definition and classification.-"The word 'writing' in its broadest sense means words traced with a pen, or stamped, printed or engraved, or made legible by any other device." Writings are divided into two classes — public and private. A public writing may be defined as the written act or record of the business of the people of the community proceeding from the supreme executive, legislative or judicial authority either of the federal government, of the government of a state or foreign country, or of some public officer, court or official body created by law and deriving their powers from that government, including also all official records of private writings.

Public writings are subdivided into four classes, viz.: Public laws; judicial records; records kept by public officials in

1 Anderson's Dict.; Henshaw v. Foster, 9 Pick. 318. A printed ticket is a "writing" and may be forged at

common law. Benson v. McMahon, 127 U. S. 467.

pursuance of statute or as a part of their official duty, and public records of private writings.1

All writings not comprised in any of these classes, and which concern the affairs of one or more individuals only, are private. The words "document" and "writing" approximate closely in meaning and may be and are often used interchangeably with correctness. The word "instrument" has perhaps a more restricted meaning; for while it is often used to describe any writing, its more proper meaning is a document or writing of a formal or deliberate character which is intended to be used as a means of judicial evidence. Thus under the words "instrument" or "written instrument" would properly be included bonds, conveyances, wills and other formal or solemn instruments; while on the other hand, letters, accounts, memoranda and the like, the creation of which was not primarily intended to create a binding obligation or title, could not in strictness of language be called instruments.3

§ 126. Production of writings Proof of contents by secondary evidence. In the absence of statute the production of private writings may be secured either by a bill of discovery in chancery or by a subpoena duces tecum. By federal statutes and by statutes regulating practice in the states which have adopted the reformed procedure it is now permitted for the court, after notice to the other party and upon motion, to grant an order for the discovery and production of books and papers in his hands or to compel him to grant an inspection of them and permission to take copies thereof.

The party compelled to produce papers is allowed a reasonable time to do so, but if he fails to comply with the order, the court may in its discretion order that the action to which the document is relevant be dismissed or his pleading be stricken out and judgment be rendered accordingly. The court may also direct that the writing shall not be admitted in evidence in favor of the party refusing to produce and may punish him

1 Abbott's Dig., vol. 3, title “Evidence." See, also, McCall v. United States, 1 Dak. 321-328.

2 Anderson's Law Dict., "Documents."

3 Abbott's Law Dict.; Hankinson v. Page, 3 Fed. Rep. 186; State v. Kelsey, 44 N. J. Law, 34

4 See post, § 279.

for contempt, or both. These statutes have superseded the necessity of a notice to produce; but where they do not obtain, the common-law notice to produce is still employed, irrespective of the fact that in consequence of the statutory competency of the party as a witness the production of the papers may be secured by a subpoena duces tecum.3

At common law, in order to lay a foundation for the introduction of secondary evidence of a writing where the adverse party has refused to produce it, it is necessary to prove the existence of the writing to the satisfaction of the court, and that it is in the possession or control of the adverse party, though if the writing is in the possession of another in privity with him, notice to the latter is sufficient. The notice to produce may be verbal, but must describe the writing required with reasonable precision. A notice to produce a letter will require the production of its envelope, and should be seasonably served on the party or his attorney 10 before the commencement of the trial." Where the writing is collateral to the issue, or if an adverse party has by force or fraud obtained possession of the papers, or attempts to give secondary evidence of their contents, or offers to produce them,15

12

1 N. Y. Code Civ. P., 803-809. See, also, Traverse v. Satterlee, 67 Hun, 652; 22 N. Y. S. 118; Schwartz v. Atkin, 12 Pa. Co. Ct. Rep. 373; Simon v. Ash, 1 Tex. Civ. App. 202; 20 S. W. Rep. 719; Gould v. McCarty, 1 Kernan, 575; Sanchez v. Dickinson, 19 N. Y. S. 733.

2 See Marrone v. N. Y. Jockey Club, 14 N. Y. S. 199; Bridgman v. Scott, 13 id. 338; 59 Hun, 624; Frowein v. Lindheim, 11 N. Y. S. 495; Wahed El Tazi v. Stein, 59 Hun, 622; Rigdon v. Conley, 31 Ill. App. 630.

3 Rigdon v. Conley, supra; Roberts v. Dixon, 50 Kan. 436; Spiers v. Wilson, 4 Cranch, 398; Homeyer v. N. J. S. & W. Co., 66 Hun, 626; Doon v. Donaher, 113 Mass. 151; Vinal v. Burrill, 16 Pick. 401, 407; Northrup v. Jackson, 13 Wend. 86; Pangburn v. Insurance Co., 62 Mich. 638.

4 Sharpe v. Lamb, 3 P. & D. 454.

13

14

5 Dix v. Atkins, 128 Mass. 43; Roberts v. Spencer, 123 id. 397; Henry v. Leigh, 3 Camp. 499, 502.

6 Sinclair v. Stevenson, 1 C. & P. 582.

7 Brokman v. Myers, 59 Hun, 623. 8 Austine v. Treat (Mich., 1888), 39 N. W. Rep. 749.

9 United States v. Duff, 19 Blatchf. 10.

10 Pitts v. Emmons, 92 Mich. 542; Glenn v. Rogers, 3 Md. 312; Holt v. Miers, 9 C. & P. 191; Reg. v. Kitson, 20 Eng. L & Eq. 509.

11 Chattues v. Raitt, 20 Ohio, 132; Sturm v. Jeffers, 2 C. & K. 442; Emerson v. Fisk, 6 Greenl. 200; Hughes v. Budd, 8 Dowl. 315.

12 Coonrod v. Madden, 126 Ind. 197. 13 Doe v. Ries, 7 Bing. 724; Neally v. Greenough, 5 Foster (N. H.), 325. 14 Bartholomew v. Stephens, 8 C. & P. 728.

15 Dwinell v. Larrabee, 38 Me. 464.