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an oath, make his solemn affirmation or declaration, by assenting, when addressed in the following form : You do solemnly affirm that the evidence you shall give in this issue, (or matter) pending between
shall be the truth, the whole truth, and nothing but the truth.” Assent to this affirmation shall be madde by the answer; “I do.” A false affirmation or declaration shall be deemed perjury, equally with a false oath.
CHAPTER IX.— Inspection of documents, and miscellaneous pro
visions as to records and writings.
SEC. 446. The Court may, upon notice, order a party to grant
an inspection of a book, etc., relating to the merits
of a case. 447. When there may be evidence of the contents of a urit
ing other than itself. 448. Introduction in evidence of a writing altered in a
material part. 449. Proof of a judicial record of this state, or of the
United States. 450. Proof of the records, etc., of any other State of the
United States. 451. Proof of a judicial record of a foreign country. 452. Proof a copy of a judicial record of a foreign coun
try. 453. Printed copies of statutes, etc., of another State
or Government, published by authority, are pre
sumptive evidence of such laws.
§ 446. The Court may, upon notice, order a party to grant an inspection of a book, etc., relating to the merits of a case.
Any Court in which an action is pending, or a Judge thereof, or a County Judge, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any book, document, or paper, in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein. If compliance with the order be refused, the Court may exclude the book, document or paper, from being given in evidence; or if wanted as evidence by the party applying, may direct the jury to presume it to be such as he alleges it to be; and the Court may also punish the party refusing for a contempt. This section shall not be construed to prevent a party from compelling another to produce books, papers or documents, when he is examined as a witness.
N. Y. Code, TM 388. Notice, sufficiency of, see § 447.
1. The Practice Act authorizes the Court to make an order directing a party to produce books and papers in Court. Burnstead v. Empire Mining Co., 5 Cal. 299.
2. On an application for discovery, enough must be shown to satisfy the Court that there is reason to believe that the documents sought do in fact contain material evidence. Merely showing a belief that the papers in general of the plaintiff contain matter which would help the defense, is not snfficient. It must also appear that the party does not possess other means of proof. Pegram v. Carson, 10 Abb. Pr. R. 340.
3. A petition by one party for an order directing the other party to make a discovery of books and papers in his possession will not be granted, when it prays for a discovery generally of all the books, papers and correspondence of the adverse party, containing entries during a period of several years, relating to purchasers of a specific commodity. A petition must show that entries affecting or thowing some light on the matters in controversy exist, or enough to call upon the adverse party to answer whether they do or not; that they are material, and state enough, if not denied, so that the Court can see they are material, in addition to stating the other matters prescribed by the rules regulating such application. Cassard v. Ilinman, 6 Duer, 695.
4. A petition for a discovery should be denied, where it appears that the petitioner might have access to the books and papers without an order. 9. where it appears that he is one of the Directors of a corporation to which the books and papers belong, and that the custodian of them holds them subject to the control of the Board thereof. Charlick v. Flushing Railroad Co., 10 Abb. Pr. R. 130.
5. In an action to recover money received by the defendant, as agent or factor of the plaintiff, an inspection of the defendant's books was asked by the plaintiff, to enable liim to frame his complaint : Held, Ist. That the defendant must render a sworn account from the time of the last account rendered by him before the action was commenced, or deposit with the Clerk such of his books as contained the items of such account; 21. That no discovery could be allowed for the purpose of contradicting the accounts already rendered. Rubery v. Burns, 5 Bosw.
6. An affidavit to resist a motion that books and papers be disposited for inspection, on the ground that the affiant has not possesion of them, is not sufticient, if it is evasive in not showing how he parted with possession. Hicks v. Charlick, 10 Abb. Pr. R. 129.
7. An orler (Code, $ 388) granting an inspection or copy of books, papers and documents relating to the merits of the suit, rests in the discretion of the Judge; and the Court will not on appeal review the question whether, under all the circumstances, the case was a proper one for the exercise of the power. White v. Monroe, 12 Abb. Pr. R. 357.
$ 447. When there may be evidence of the contents of a writing other than itself.
There shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases :
1st. When the original has been lost or destroyed; in which case proof of the loss or destruction shall first be made;
2d. When the original is in possession of the party against whom the evidence is offered, and he fails to produce it, after reasonable notice;
3d. When the original is a record, or other document, in the custody of a public officer;
4th. When the original has been recorded, and a certified copy of the record is made evidence by statute ;
5th. When the original consists of numerous accounts or other documents, which cannot be examined in Court without great loss of time, and the evidence sought from them is only the general result of the whole.
1. First subdivision.-In suit by the assignee of a book account, the assignor is a competent witness to prove to the Court the loss of the book of original entries, as a preliminary to the introduction of secondary evidence of its contents. Caulfield v. Sanders, 17 Cal. 569.
2. The facts and circumstances of the destruction must be shown, in the first instance, to the Court, to enable it to judge of the propriety of admitting or refusing the secondary evidence. The same principle which allows the parties to prove by their own testimony the destruction, must necessarily allow them to prove all such facts and circumstances as are requisite to the introduction of the secondary evidence. Buyley v. Administrator of Mc Mickle, Eaton et al., 9 Cal. 430.
3. It is not a matter of course to allow secondary evidence of the contents of an instrument in suit upon proof of its destruction. If the destruction was the result of accident, or was without the agency or consent of the owner, such evidence is generally admissible. But, if the destruction was voluntarily and deliberately made by the owner, or with his assent, the admissibility of the eviilence will dlepend upon the cause or motive of the party, in effecting or assenting to the destruction. Ib.
4. Per BURNETT, J.-—Query: Whether affidavits are almissible to prove the destruction of notes, when the plaintiff, and his witnesses, and copayee, can be examined in open Court. Id.
5. As to parol evidence to prove contents of instruments destroyed by fire. Colier v. Corbett, 15 Cal. 183.
6. A copy of a notice posted on a mining claim to show its extent is not admissible in evidence, if the notice itself be attainable. Such evidence is secondars, and is admissible only upon the terms which control its introduction in other cases. Lombardo v. Ferguson, 15 Cal. 372.
7. Whero the record book containing a judgment has been destroyed by fire, secondary evidence is admissible to establish the fact of the existence of such judgment and its contents. Ames v. Hoy, 12 Cal. 11.
8. Proof that a notice upon a mining claim has been torn, and that the remaining portion is (as the witness thinks) illegible and defaced, is enough to introduce a copy of it. Dunning et al. v. Rankin et al., Jan. 1862.
9. E. Lawrence testified that he once had a deed in his possession, and at first thought that F. had it now, but that he had received a letter from F. saying that the witness had not returned said deed to him; now he was satisfied it was not in F.'s possession. The plaintiff
' also made oath he had never had the deed : Hid to be insufficient to introduce parol proof of its contents. Lawrence v. Fultori, Jan. 1862.
10. Party may testify to loss of instrument.-Whatever may have been the reason originally assigned, the true ground upon which the testi
mony of parties is admitted to prove the destruction of written instruments, is this that the testimony relates to matters preliminary and incidental, is addressed solely to the Court, and does not affect the issue to be tried by the jury. Upon such matters, the rule as to the incompetency of parties and interested persons does not apply. The testimony proves nothing in the cause, it only prepares the way for the introduction of proof. The existence and contents of the instruments must be established by distinct and competent evidence. Bagley v. Eaton, 10 Cal. 126.
ll. The rule is well settled that a party has a right to testify on his own behalf to prove the loss of original documents, as a predicate for the introduction of secondary evidence to prove their contents. Grass Valley Quartz Min. Co. v. Stackhouse et al., 6 Cal. 413.
12. Proof of the loss of the instrument may be by the party's own affidavit, to lay a foundation for proving the contents.
But the affidavit of a third person, that a trunk of the party containining his papers is lost, is insufficient, without showing that it contained the paper in question. But this the party may show by his own oath. Taking testimony by depositions is in derogation of the common law, and must not only be done before the proper officer, but every requirement of law must be complied with. Depositions may be taken by Notaries Public, but, only when the witness resides out of the county where the suit is pending, and a commission is regularly sued out and directed to the Notary. McCann v. Beach, 2 Cal. 25.
13. In this State, the testimony may be given orally or offered by affidavit. The convenience of the parties and of the Court will sometimes suggest one course and sometimes another. Either course may be adopted, and either course will avail. Bagley v. Eaton, 10 Cal. 126.
14. Diligence necessary.-Evidence that the library and papers of the party were destroyed by fire, except a few papers, unaccompanied by evidence of search for the particular paper, is insufficient, for the paper in question may be one of those saved from the fire. Folsoin's Executors v. Scott, 6 Cal. 460.
15. Mere evidence of search is not sufficient, for the search may not have been diligent. 16.
16. In an action of ejectment, where the plaintiff seeks to establish the loss of a deed under which he deraigns title, in order to lay the foundation for secondary evidence, the proof of search by the agent or attorney in fact of the plaintift, and inquiry by him of the grantor, is insufficient, as the plaintiff himself"might have the possession or control of the original, and, in the absence of other evidence, his affidavit should have been offered. Fallon v. Dougherty, 12 Cal. 104.
17. It is sufficient, prima facie, to show that the grantee, or his representative or assignee, did not have the grant, and that it was not in the place where it was last
Pierce v. Wallace, 18 Cal. 165. 18. Second subdivision.-Parol evidence of the contents of a written contract between the alleged husband and wife to live together without marriage is inarlmissible, except after due notice to produce the contract, and refusal to do so. Poole & Wife v. Gerrard, 9 Cal. 593.
19. Parol proof of a written contract and assignment thereof in writing, not admissible, so as to charge the assignee, without notice to produce the original or accounting for its loss. Grimes v. Fall, 15 Cal. 63.
20. Where it is impossible to produce the paper between the time of giving the notice and the trial, that fact should be made to appear. Burke et al. v. Table Mountain Co., 12 Cal. 403.
21. Form and sufficiency of notice.—On the day of trial, plaintiff's served upon the defendants notice to produce on trial “the written agreement, cancelling the lease alleged to have been made between A. B. Laforge and the Table Mountain Water Company—said agreement having been made by A. B. Laforge and the Table Mountain Water Company-or parol evidence will be given of its contents." The defendants not producing the agreement, parol evidence was admitted on trial of its contents. The notice was held sufficient. Burke v. Table Mountain Water Co. and Laforge, 12 Cal. 403.
22. In this case it was shown that the paper was on the day of trial in the possession of one of the attorneys of the defendant. Id.
23. The sufficiency of notice to produce a paper shown to be in the possea 291 of a party is a question of discretion; and if it were impossible to procure i between the time of giving notice and the trial, that fact should be made to appear. Id.
24. Literal accuracy cannot be expected in the description of a paper in the pris session of the adverse party; such description as will apprise a man of ordinary intelligence of the document denied is enough. Id.
25. Third subdivision.-Certified copies of grants made by the Surveyor General of the United States are inadmissible in evidence, unless the absence of the originals is accounted for. Hensley v. Tarpey, 7 Cal. 288.
26. An attavit, showing that the Surveyor General has adopted a rule refusing to allow the originals to be taken from the tiles, is a sufficient predicate. Id.
27. Where, to suit for goods sold and delivered, defendant pleads his elischarge in insolvency: Held, that in support of his plea he can offer in evidence certifia copies of the decree, and of each of the papers composing the record of the in-olvent proceedings separately; and that these papers need not all be attached together, and the whole certitied as one record. "Goldstone v. Davidson, 18 Cal. 41.
28. A certificate of the Surveyor General, that the paper “is a true and accuraz copy of a document” on file in his office, is sufficient against the objection that the copy is not duly authenticated, it being concerled that such document was the original grant. Vatoma Water and Mining Co. v. Clarkin, 14 Cal. 544.
29. A duly certitied copy of a Mexican grant, from the U. S. Surveyor General's othee, is admissible in evidence against the objection that the absence of the original is not accounted for. But it is admissible only when the original itself would be. The statute (Acts of 1857, p. 317) simply removes the objection to the copy as secondary evidence. Id.
30. The erpediente, consisting of the petition, plot, reference, report, act of concession, approval, grant, ctc., tiled in the archives of the Mexican Government, is as much an original document as the grant delivered to the grantee. Baldwin, J. - Gregory v. McPherson, 13 Cal. 562.
31. Fourth subdivision.-A Recorder, in certifying to copies of deeds from his office, need not transcribe the notarial seal to the acknowledgment—the certificate of acknowledgment in this case stating that the Notary did affix his seal. Jours v. Martin, 16 Cal. 165.
32. A power of attorney, not affecting real estate, is not required to be recorded, and the fact of such instrument being acknowledged and recorded does not authorize it to be read in evidence without proof of its execution. Stretns 5. Iruin, 12 Cal. 306.
33. Where an original instrument, proved to be lost, has been recorded, it is error to admit parol evidence of its contents, unless the failure to produce the record is accounted for. Brotherton v. Mart, 6 Cal. 488.
34. To make the copy of an unrecorded deed evidence, the loss of the original being shown, the testimony of the subscribing witnesses to the deed, if such there be, should be had, at least to the fact of the execution of the paper, unless they are shown to be without the jurisdiction of the Court. Smith v. Brannan, 13 Cal. 107.
35. The Act of 1851, section twenty-first, gives to papers properly recorded the like effects as originals, but it does not dispense with proof of execution. Pouells lleirs v. Ilendricks, 3 Cal. 427.
36. Section twenty-first of the Act of March, 1851, giving to copies of papers from the County Recorder's office the like effect as evidence as originals, does not dispense with the production of the originals if they can be obtained: it merely fixes the value of the copy as evidence, when it is necessary to be introduced, from the loss of the original. Jacy v. Goodwin, 6 Cal. 579.
§ 448. Introduction in evidence of a writing altered in a mater
party producing a writing as genuine, which has been altered, or appears to have been altered, after its execution, in a part mate