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A DIGEST,

&c.

Is forming a digest of the general rules of evidence, the subject may be considered, first, with regard to the nature of evidence; secondly, with regard to the object of evidence; thirdly, with regard to the instruments of evidence; and, fourthly, with regard to the effect of evidence.

With regard to its nature, evidence may be considered under the following heads. Primary or secondary evidence; presumptive evidence; hearsay; admissions.

PRIMARY EVIDENCE.

If the

It is a general rule, that the best evidence must be given that the nature of the case admits. B. N. P. 293. Thus where a will of lands is to be proved, the primary evidence of it is the will itself, and neither an exemplification of it, nor the probate is admissible. Id. 246, post. So in general where a contract has been reduced into writing, and been signed by the parties, the writing is the best evidence of it, and must be produced. Vide post, p. 8. But it is not in every case necessary, where the matter to be proved has been committed to writing, that the writing should be produced. narrative of a fact to be proved, has been committed to writing, it may yet be proved by parol evidence. Upon this principle, a receipt for money will not exclude parol evidence of the payment. Rambert v. Cohen, 4 Esp. 213, post. So where, in trover, to prove the demand, the witness stated that he had verbally required the defendant to deliver up the property, and at the same time served upon him a notice in writing to the same effect, Lord Ellenborough ruled that it was not necessary that the writing should be produced. Smith v. Young, 1 Camp. 439. So where the fact to be proved is, that certain persons stood in the relation of landlord and tenant, it was held that although there was a written contract, the fact of the tenancy might be proved by parol. R. v. Inhab. of Holy Trinity, 7 B. and C. 611, post, p. 13. So, although there exists a deed of partnership, yet the fact of partnership may be proved by the acts of the parties; but, when, in order to prove a partnership between Didot and Foudrinier, whose assignees were parties to the suit, a witness was asked, whether he had not heard Foudrinier say, that by a deed between him and Didot, an interest belonged to Didot,

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Abbott, C. J. was clearly of opinion that no question could be asked as to what Foudrinier had said of the contents of a written instrument, without the production of the instrument, or an account of its non-production. Bloxam v. Elsie, R. and M. 187. Where it is necessary to prove the fact of a marriage, the entry in the parish register is not superior evidence, but the fact may be proved by the testimony of persons who were present, and witnessed the ceremony. Vide post. So the inscriptions and devices on banners displayed at a public meeting may be proved by parol, and it is not necessary to produce the banners themselves. R. v. Hunt, 3 B. and A. 566.

The primary evidence of all judicial proceedings, is the production of the proceedings themselves, or of examined copies of them. Vide post. Thus parol evidence is not admissible of the day on which a cause came on to be tried, as it is capable of proof by matter of record. Ansley v. Smith, 6 Esp. 80. R. v. Page, Id. 83. And where to prove that the plaintiff had been discharged under the insolvent act, it was proposed to give in evidence his admission to that effect, Lord Ellenborough held it insufficient, and said that to prove a judicial act of this sort, it was necessary to call the clerk of the peace, and to give in evidence the order of the Court of Quarter Session by which the discharge was effected. Scott v. Clare, 3 Campb. 236. So parol evidence is not admissible to prove the taking of oaths required by the Toleration Act, as it will appear by the records of the Court where the oaths were taken. R. v. Hube, Peake, N. P. C. 131.

The counterpart of a deed is not secondary evidence, but is admissible as original evidence against the party executing it and those claiming under him; Burleigh v. Stibbs, 4 T. R. 465. Roe v. Davis, 7 East. 363; and he will not be permitted to object that the original was not properly stamped. Paul v. Meek, 2 Y. and J. 116.

SECONDARY EVIDENCE.

It is a general rule, as already stated, that the best evidence must be given of which the nature of the case is capable. B. N. P. 293. Secondary evidence therefore is inadmissible, unless some ground be previously laid for its introduction by showing the impossibility of procuring better evidence.

What ground must be laid for the introduction of secondary evidence.] Before secondary evidence can be admitted, it must be proved that better evidence cannot be obtained. Thus in the case of a lost deed, after proof of its due execution, R. v. Culpepper, Skin. 673, the loss of the deed must be proved, and if two or more parts have been executed, the loss or destruction of all the parts should, it seems, be proved before other

evidence can be received. B.N.P. 254. See Doxon v. Haigh, 1 Esp. 409. Where the instrument is in the possession of the opposite party, parol evidence of its contents cannot be given without proof of the service of a notice to produce it. See post, p. 4. All the proper sources from which the primary evidence can be procured must be exhausted, before secondary evidence can be admitted. Thus the party who has the legal custody of an instrument must be applied to before parol evidence can be received. R. v. Stoke Golding, 1 B. and A. 173. So where a letter, which had been in the possession of the defend. ant, was filed in the Courtof Chancery, pursuant to anorder in that court, it was ruled, that secondary evidence of it was not admissible, it being in the power of either party to produce it on application to the court. Williams v. Munnings, R. and M. 18.

Where secondary evidence is offered, in consequence of the loss of the primary evidence, it must be shown, in order to establish the loss, that diligent search has been made in those quarters from which the primary evidence was likely to be procured. Where the publisher of a paper, in which a libel had appeared, stated, that he believed the original was either destroyed or lost, having been thrown aside as useless, this was held sufficient to let in secondary evidence. R. v. Johnson, 7 East, 66. So where a license to trade had been returned to the secretary of the governor who had granted it, and the secretary swore that it was his custom to destroy or put aside such licenses amongst the waste papers of his office as of no further use; and that he supposed he had disposed of the license in question in the same manner as other licenses; and that he had searched for it but did not recollect whether he had found it or not, though he did not think he had found it, the court held the loss sufficiently proved. Kensington v. Inglis, 8 East, 278. So where it became necessary to account for the non-production of a policy, and it was proved that it had been effected about seven years before, and having become useless on account of a second policy being effected, it had probably been returned to the plaintiff, and the clerk of the plaintiff's attorney a few days before the trial of the action, searched for it in the plaintiff's house, not only in every place pointed out by the plaintiff, but in every place which he thought likely to contain a paper of this description, the search was held to be sufficient. Brewster v. Sewell, 3 B. and A. 296. So in a settlement case, where it was proved, that one part only of an indenture had been executed, that the pauper and master were both dead at the time of trial, and that an inquiry for it had been made of the pauper shortly before his death, who said, that the indenture had been given up to him after the expiration of the apprenticeship, and that he had burnt it, and that an inquiry had also been made of the daughter and sole executrix of the master, who said she knew nothing about it, it was held that

a sufficient inquiry had been made to render parol evidence of the contents admissible. R. v. Morton, 4 M. and S. 48. But where the party in whose possession the instrument was is alive, he must be called and his declarations are not admissible. R. v. Denio, 7 B. and C. 620. Parkins v. Cobbett, 1 C. and P. 282. Thus where, in another settlement case, it appeared, that there were two parts of an indenture, one of which had been destroyed, and the other delivered to Miss T. to whom the pauper had been assigned, and that application had been made to Miss T. (who was not called) who said she could not find the indenture, and did not know where it was, the search was held to be insufficient. R. v. Castleton, 6 T. R. 236, and see Williams v. Younghusband, 1 Stark. 139. Where the loss or destruction of the paper may almost be presumed, very slight evidence of its loss or destruction is sufficient. Per Abbott, C.J. Brewster v. Sewell, 3 B. and A. 296. Per Bayley, J. Freeman v. Arkell, 2 B. and C. 496. The degree of diligence to be used in searching for a deed must depend on the importance of the deed, and the particular circumstances of the case. Per Cur. Gully v. Bp. of Exeter, 4 Bingh. 298. The presumption is that an useless instrument would be destroyed. Per Bayley, J. R. v. East Fairley, 6 D. and R. 153. Where it was the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is that it is lost or destroyed. R. v. Stourbridge, 8 B. and C. 96. 2 M. and R. 43. S. C.

Notice to produce, when necessary.] In general, when any written instrument is in the possession of the opposite party, secondary evidence of its contents is inadmissible, without previous proof of a notice to produce the original. But where, from the nature of the proceedings, the party in possession of the instrument has notice that he is to be charged with the possession of it, as in the case of trover for a bond, a notice to produce is unnecessary. How v. Hall, 14 East, 274. Scott v. Jones, 4 Taunt. 865. Colling v. Treweek, 6 B. and C. 398. So a notice is not required where the party has procured the possession of the instrument by fraud, as where he has received it, after the commencement of the action, from a witness called for the purpose of producing it under a subpoena duces tecum. Leeds v. Cook, 4 Esp. 256. A counterpart may be read without a notice to produce the original. Burleigh v. Stibbs, 5 T. R. 465. Roe v. Davis, 7 East, 363, ante, p. 2. In an action for seaman's wages, secondary evidence of the ship's articles is admissible under stat. 2 G. II. c. 36, s. 8, without a notice to produce them. Bowman v. Manzleman, 2 Camp. 315. Notice to produce a notice is not requisite. Kine v. Beaumont, 3 B. and B. 288. Colling v. Treweek, 6 B. and C. 398. It seems to be the better opinion, that neither

party will be allowed, either in an examination in chief, or in a cross-examination, to inquire into the contents of a deed, merely because the opposite party has the original deed in his possession, in court, at the time of the trial, and that the opposite party may object to parol evidence of the contents on account of his not having received a notice to produce the original. 1 Phill. Ev. 425. 1 Stark. Ev. 362. See also Doe v. Grey, 1 Stark. 283. Doe v. Harvey, 4 Burr. 2484.

Notice to produce; proof of possession of original.] In order to render a notice to produce available, it must be proved that the original instrument is in the hands of the opposite party or of his privy. The nature of this evidence must vary according to the nature of the instrument. Where it belongs exclusively to the party, slight evidence is sufficient to raise a presumption that it is in his possession. Thus, where a solicitor proved that he had been employed by the defendant to solicit his certificate, and that looking at his entry of charges, he had no doubt the certificate was allowed, this was held to be proof of the certificate having come to the defendant's hands. Henry v. Leigh, 3 Campb. 502. Where the instrument has been delivered to a third person, between whom and the party to the suit there exists. a privity, notice to the latter is sufficient, as in an action against the owner of a vessel for goods supplied to the use of the vessel, a notice to the defendant to produce the order for the goods, which had been delivered to the captain, is sufficient. Baldney v. Ritchie, 1 Stark. 338. So in an action against the sheriff, a notice to his attorney to produce a writ which has been returned to the under-sheriff, while the defendant was in office, is sufficient. Taplin v. Atty, 3 Bingh. 164. So also notice to a defendant to produce a check drawn by him, and paid by his banker, is sufficient to entitle the plaintiff to give secondary evidence of its contents, although the check remains in the banker's hands. Partridge v. Coates, R. and M. 156. Burton v. Payne, 2 C. and P. 520. But where a paper had been delivered to a third person, under whom the defendant justified, and by whose directions he acted, a notice to produce, served upon the defendant, is not sufficient to authorize the admission of secondary evidence. Evans v. Sweet, R. and M. 83. R. v. Pearce, Peake 76. But see Pritchard v. Symonds, B. N. P. 254, contra.

Notice to produce, form of.] A notice to produce may be by parol, and if both a written and parol notice have been given, proof of either is sufficient. Smith v. Young, 1 Campb. 440. A notice to produce a particular letter must specify the letter intended; to produce "all letters," is too general. France v. Lucy, R. and M. 341. Jones v. Edwards, M'Cl. and Y. 139. If the title of the cause is misdescribed in the notice, it will

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