If books or papers necessary as evidence in the courts of one state be in the posses sion of a person living in another state, secondary evidence without further show ing may be given to prove the contents of such papers, and notice to produce them is unnecessary; Burton v. Driggs, 20 Wall. (U. S.) 125, 22 L. Ed. 299. See Thomson-Hous ton Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137, 38 Am. St. Rep. 536. Where the attesting witness to a deed lives out of the state, secondary evidence of its execution is admissible ; Trustees of Smith Charities v. Connolly, 157 Mass. 272, 31 N. E. 1058. • It has been decided in England that there are no degrees in secondary evidence; and when a party has laid the foundation for such evidence, he may prove the contents of a. deed by parol, although it appear that an attested copy is in existence; 6 C. & P. 206; 8 id. 389; 7 M. & W. 102. It is urged on the one hand that the rule requiring the best evidence has reference to its nature, not to its strength, and the argument ab %noon. venienti is invoked against the extension of the rule recognizing degrees. On the other hand it is contended that such an extension is an equitable one and rests on the same principle which forbids the introduction of any secondary evidence while the primary is available. English cases cited in favor of the recognition of degrees are said to be not so much decisions of the point as dicta, as they refer to it as a rule existing but not involved in the case; 2 Atk. 71; 1 Nev. & Per. 8. But in the latter case the rule is doubted, and in 6 C. & P. 359 impliedly de nied by Patteson, J., as it is also by Parke, J.; 6 C. & P. 81; id. 206. See 8 Dowl. 389; 3 Scott, N. R. 577. The question is not set tled in the United Green]. Ey. § 84, note ; and the United States Supreme Court, declining to adopt the English rule without qualification, observe that the secondary evi dence "must be the best the party has in his power to produce" and also that the rule of exclusion or admission must be so applied as to promote the ends of justice, and guard against fraud, surprise, and imposition; Cor nett v. Williams, 20 Wall. (U. S.) 226, 22 L. Ed. 254. This doctrine was followed in Johnson v. Arnwine, 42 N. J. L. 458, 36 'Am. Rep. 532; Jaques v. Horton, 76 Ala. 246. See Kentzler v. Kentzler, 3 Wash. 166, 28 Pac. 370, 28 Am. St. Rep. 21; Florida Cent. & P. R. Co. v. Bucki, 68 Fed. 864, 16 C. C. A. 42. The American doctrine seems to be "that if from the nature of the case itself it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it ; but that when the; nature of the case does not of itself disclose the existence of such better evidence, the objector must not only prove its existence, but also must prove that it was known to the other party in time to have been pro duced at the trial;" 1 Gr. Ey. § 84, note; Lewis v. 'San Antonio, 7 Tex. 315; Lane v. Jones, 2 Cold. (Tenn.) 321; Harvey v. Thorpe, 28 Ala. 250, 65 Am. Dec. 344; Gra ham v. Campbell, 56 Ga. 258; Illinois Land & Loan Co. v. Bonner, 75 Ill. 315 ; Nason v. Jordan, 62 Me. 480; Winn v. Patterson, 9 Pet (U. S.) 663, 9 L. Ed. 266.
Cases holding that there are no degrees in secondary evidence are Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469; Smith v. Brown, 151 Mass. 338, 24 N. E. 31; Dra. K. B. U. C. 357; at least unless it appears that there is better evidence than is offered ; Es low v. Mitchell, 26 Mich. 500. Cases holding that there are such degrees are Coman v. State, 4 Blackf. (Ind.) 241; Cornett v. Wil liams, 20 Wall. (U. S.) 226, 22 L. Ed. 254; Williams v. Waters, 36 Ga. 454, where it was said that the same rule applies as in the case of primary evidence; Dillon v. Howe, 98 Mich. 168, 57 N. W. 102.
Prins facie evidence is that which ap pears to be sufficient proof respecting the matter in question, until something appears to controvert it, but which may be contra dicted or controlled.
Conclusive evidence is that which, while uncontradicted, establishes the fact: as in the instance of conclusive presumptions ; it is also that which cannot be contradicted.
The record of a court of common law ju risdiction is conclusive as to the facts there in stated ; Shelton v. Barbour, 2 Wash:
(Va.) 64; Dennison v. Hyde, 6 Conn. 508. But the judgment and record of a prize-court is not conclusive evidence in the state courts, unless it had jurisdiction of the subject-mat ter; and whether it had or not, the state courts may decide; Slocum v. Wheeler, 1 Conn. 429. See, as to the conclusiveness of ! the judgments of foreign courts of admiralty ; ,Maley v, Shattuck, 3 Cra. (U. S.) 458, 2 L. Pd. 498; Pollard v. Dwight, 4 Cra. (U. S.) 421, 2 L. Ed. 666; Croudson v. Leonard, 4 Cra. (U. S.) 434, 2 L. Ed. 670; Bourke v. Granberry, Gilm. (Va.) 16, 9 Am. Dec. 589; Groning v. Ins. Co., 1 Nott & McC. (S, C.) 537.
Evidence may be conclusive for some pur poses but not for others.
Admissibility of evidence. In consider ing the legal character of evidence, we are naturally to the rules which regulate its competency and admissibility, although it is not precisely accurate to say that evi dence ins in its legal character competent or incompetent ; because what is incompetent for the consideration of the tribunal which .is to pronounce the decision is not, strictly speaking,.. evidence.
But the terms incompetent evidence and inadmissible ,evidence are often used to des ignate what ,is not to be heard as evidence : as, witnesses are spoken of as competent or incompetent.
The admissibility of evidence is not affect ed by the fact that it was obtained by un fair means ; Williams v. State, 100 Ga. 511, 28 S. E. 624, 39L. R. A. 269; 14 East 302; Com. v. Dana, 2 Mete. (Mass.) 32'9; 1 Gr. :Ev. § 254a ; as when illegally seized by a public official ; Starchinan v. State, 62 Ark. Wo 36 S. W. 940; State, v. Flynn, 36 N. IL 64; Com. v. Henderson, 140 Mass. 303, 5 N. E. 882 ; or a private detective ; Gindrat v. People, 138 Ill. 103, 27 N. E. 1085 ; or sur reptitiously taken by a person unknown ; Firth Sterling Steel Co. v. Steel Co., 199. Fed. 353. But evidence was held to be inadmis sible because obtained in violation of rights secured by the IVth and Vth Amendments of the Constitution either by production under order of the court ; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; or by means of an illegal search by a custom offi cer ; U. S. v. Wong Quong Wong, 94 Fed. 832.. criminal cases persona] property is sometimes introduced in evidence as bur glar's tools,; appliances used in counterfeit ing, gaming and the like. See SEARCH.
Evidence of experiments to throw light upon any question at issue is admissible or not, largely in .the discretion of the trial court. Evidence of experiments made eight years after as to what sound could be heard through a wall, to show that a certain con versation could Dot have been heard through it, was rejected; pow v. Bulfinch, 192 Mass. 281, 78 N. E. 416.
It is competent on a second trial of a civil case in a federal court, under the general rule, to prove the testimony given on the former trial by a witness who has since died, there being no federal statute on the subject ; Nome Lighterage & Transp.. Co. v, is not necessary to prove the precise lan guage of the deceased Witness, but only to express clearly the substance ; Ruch v. Rock Island, 97 U. S. 693, 24 L. Ed. 1101; and in a criminal case where the witness was dead and had been cross-examined, his evidence was held admissible; U. S. v. Macomb, 5 McLean 286, Fed. Cas. No. 15,702; Brown v. Com., 73 Pa. 326, 13 Am. Rep. 740; State v. Able, 65 Mo. 371; but where the proof was insufficient to connect the present respondent with the defense in the prior suit, the dep osition of a deceased witness was held inad missible; Rumford Chemical Works v. Chemical Co., 154 Fed. 65, 83 C. C. A. 177. The notes of testimony on a former trial by deceased and absent witnesses are admis sible when tie accuracy of the copy is agreed to ; Emerson v. Burnett, 11 Colo. App. 86, 52 Pac. 752 ; or admitted ; Chicago, St. P. M. & 0. R. Co. v. Myers, 80 Fed. 365, 25 C. C. A. 486; but not when there is no proof of accuracy other than the certificate of the stenographer ; Williams v. Min. Co., 37 Colo. 62, 86 Pac. 337, 7 L. R. A. (N. S.) 1170, 11 Ann. Cas. 111.