## Facts

- Lessors of the plaintiff brought ejectment against Ross to recover possession of land.
- At trial, a deed material to title was in an attorney’s possession; the attorney claimed a lien for unpaid costs and refused to produce the deed when subpoenaed duces tecum.
- The trial judge permitted the plaintiff to offer secondary evidence of the deed’s contents.
- The lessors also attempted to prove the deed’s limitations using a copy of shorthand notes of counsel’s in-court statement from an earlier ejectment involving the same lessors but a different defendant.
- The lessors proved a 1790 fine with proclamations by an examined copy of the fine record and introduced an 1802 deed by the cognizor reciting that the fine had been levied to the use of the cognizor in fee; the 1802 deed was admitted at trial without objection.
- By consent, objections and exceptions to evidence were reserved for the Court of Exchequer’s determination after a verdict for the lessors.

## Issues

1. Whether refusal by a lien-holding attorney to produce a deed under subpoena permits secondary evidence of the deed’s contents.
2. Whether the law recognizes “degrees” of secondary evidence that restrict what form secondary proof may take once secondary evidence is permitted.
3. Whether a copy of shorthand notes of counsel’s prior in-court statement (from a different ejectment with a different defendant) is admissible to prove the contents of a deed.
4. Whether, when objections are reserved by consent and some evidence is later deemed inadmissible, the defendant is entitled to a new trial without paying costs if the remaining admissible evidence supports the plaintiff’s title.
5. Whether an examined copy of the record of a fine with proclamations is sufficient proof of the fine.
6. Whether a subsequent deed reciting the uses of a proven fine is admissible as evidence of the declaration of uses, even absent proof that the defendant claims under the cognizor, where the deed was admitted without objection.

## Decision

- Secondary evidence of the deed’s contents was permissible because the attorney, asserting a lien, refused production after subpoena duces tecum.
- The court rejected any hierarchy among forms of secondary evidence; once secondary evidence is allowed, any species of secondary evidence within the party’s power may be used.
- The shorthand notes copy of counsel’s statement from the earlier ejectment (with a different defendant) was not admissible to prove the deed’s contents; the court left open whether the result would differ if the parties were identical.
- The defendant was not entitled to a new trial without paying costs merely because inadmissible evidence was received subject to reserved objections, where admissible evidence still established the plaintiff’s title.
- An examined copy of the record of a fine levied with proclamations was admissible and as effective as the certified chirograph for proving the fine.
- The 1802 deed, admitted without objection, was good evidence of the declaration of the uses of the 1790 fine despite no showing that the defendant derived title under the cognizor.
- The verdict for the lessors of the plaintiff was sustained on the admissible evidence.

## Legal Principles

- When a document is withheld by a third party asserting a possessory lien and refusing production after subpoena duces tecum, the proponent may prove its contents by secondary evidence.
- There are no “degrees” of secondary evidence; once secondary evidence is available, the proponent may use any form of secondary proof within the proponent’s power.
- A record of a prior proceeding, in the form of shorthand notes of counsel’s statements, is not admissible to prove the contents of a deed against a party who was not involved in that prior proceeding; party identity may affect admissibility.
- Where parties consent to admit evidence subject to reserved objections, and the admissible evidence independently supports the verdict, a losing party cannot obtain a cost-free new trial solely due to the presence of inadmissible evidence.
- An examined copy of the record of a fine with proclamations is competent proof of the fine.
- A later deed reciting the uses of a proven fine may be treated as evidence of the declaration of uses when admitted without objection, even if the opposing party does not claim under the reciting grantor.

## Conclusion

The court sustained the plaintiff’s recovery in ejectment, holding that an attorney’s lien-based refusal to produce a deed permits secondary proof of its contents, that secondary evidence has no formal ranking, that shorthand notes of counsel’s prior statements were inadmissible against a new defendant, and that examined copies and unobjected-to recitals could sufficiently prove a fine and its declared uses.


Doe ex dem. Gilbert v. Ross, 151 Eng. Rep. 696 (Ex. 1840)