specific object of investigation, probable. Of this evidence, of course, the degrees are infinite.

'My Lords, in civil cases, a party who destroys evidence of a transaction, is always charged to the full extent that it was possible that that transaction could have gone. I will state to your Lordships a very few cases, which have occurred upon questions of this kind. There is in Sir John Strange's Reports, a case which was decided at Nisi Prius, but which has been always recognised and acted upon as law,-Edwards v. Delamire. In that case a boy, in one of the most wretched conditions of life, happened to find in the street a ring; he carried it to the shop of some jeweller in the neighbourhood, and desired to know what the value of it was. The tradesman artfully took out the stone in it, told the boy it was of the value of a few half pence, which he tendered to him, and refused to give him any further account. The boy rejected the offer, and insisted upon having the gem restored to him. That was refused; an action was brought by some friend, who stood forward in behalf of the boy against the man who had so defrauded him, and the directions which were given by the judge to the jury were, to give the boy in damages the amount of the most valuable gem that could possibly have been placed in the setting, from which it had been removed.

"Another case of presumption is to be found in Peere Williams's Reports, Dalton v. Coltsworth. It was a bill filed against a man who had destroyed a deed under which the plaintiff claimed. The plaintiff claimed, under certain limitations, a real estate. The case was decided, I think, by Sir Joseph Jekyll, then Master of the Rolls. The defendant had destroyed the deed, and evidence was given on the part of the plaintiff, of the limitations in the deed; but the evidence, as the witness had given it, was of limitations which could not by law take effect: they were the limitations of a term of years after an indefinite failure of issue; and the Court in that case said, that as against the man who had destroyed the instrument, which would have shown what the rights of the plaintiff were, they would presume even what the plaintiff had not proved, and they would presume that the limitation was to take place after the failure of issue in the life of a person then in being. They did so presume, and the Court decreed the conveyance of the estate accordingly; presuming everything against the party who had in his power the means of shewing what the case was, and who had suppressed.

"There was a very recent case,-I am still speaking of civil cases only,— which came before Lord Eldon when he was Chancellor: it was a suit instituted between the executors of the late Duke of Newcastle, and the executors of Mr. Jackson, who was the Duke of Newcastle's steward. It was the duty of Jackson as the steward, and employed in various situations of trust for the Duke, to have kept accounts in which it would clearly

2. Direct evidence, is that which, if true, establishes or

overthrows the fact under litigation.

have appeared what his demands were against the Duke, and the Duke's against him. He had acted for him as law agent in a great variety of transactions. It so happened that Jackson had kept no account; he thought it a more advantageous thing to set up some great and general demand, without having his accounts to produce. When the case came before the Lord Chancellor, he was of opinion that the Court ought to presume, without any evidence whatever, from the mere non-existence of the accounts, which the steward ought to have kept, and to have produced, all the demands which the steward had upon his Grace had been satisfied, though there was not the least evidence of it.

"The case happens to be reported in the 8th volume of Vesey's Reports, p. 363; and your Lordships will find the terms of the Lord Chancellor's decree in these words: The order, as drawn up by the Lord Chancellor himself, declared, that under the circumstances of the case, it ought either to be presumed that the bills for business done by Jackson were paid, or, if not, that it is contrary to equity that any demand should be permitted to be made upon such bills against the estate of the late Duke of Newcastle; it having been the duty of Jackson, as the agent, steward, and solicitor of the Duke, to have kept, for the benefit of the Duke, such regular accounts of his receipts and payments, and dealings and transactions, as such agent, steward, and solicitor, as would have enabled the representatives of the Duke to know the true state and result of all such accounts between Jackson and the Duke; and, therefore, without prejudice to the effect of any bill that the representatives of Jackson may be advised to file, it was directed that the exceptions by the executors of Jackson should be overruled, and that they should stand as creditors upon the estate of the Duke for the balance, in respect of sums received and paid by Jackson since the death of the Duke, and by them since Jackson's death.'

"I have, however, hitherto only stated to your Lordships civil cases; but, my Lords, I am sure that no case occurs of any person convicted of an offence upon circumstantial evidence, in which the Court does not act upon presumptions exactly of the same kind. I will put a case to your Lordships,—I do not know exactly when it has occurred, but it may have occurred, and that the decision would be such as that I am about to state to your Lordships, I think there can be no doubt. I would suppose, that a man were indicted for the murder of another, and that there were no evidence against him but that which is called circumstantial evidence, that is, evidence of conduct or of circumstances, which cannot be accounted for upon any hypothesis but that of the party being guilty; I will suppose a case of that kind, and then I would ask your Lordships, if

3. Conclusive evidence, (the præsumptio juris et de jure of the later civilians, not of the Roman law), is that which the law declares to be such proof of what it asserts, that so long as it exists unquestioned, in the manner pointed out by law, as that in which it ought, if disputed at all, to be questioned,— testimony is not allowed to be given in contradiction of it. On the production of certain evidence, the law commands (not belief, which would be absurd), but a particular decision, as the result annexed to the exhibition of such evidence.

The first general rule, says Mr. Justice Buller, is that you shall give the best evidence that the nature of the thing is capable of.

This rule, as laid down by Lord Hardwicke is, that you shall give the best evidence that the nature of the thing is capable of; the meaning of which is, that you shall not give evidence which supposes that it is in your power to bring better evidence than you have done. "For if the other greater evidence did not make against the party, why did he not produce it? As if a man offer a copy of deed or will, evidence were to be produced, that the prisoner had destroyed the clothes which he wore upon the day upon which the man was murdered, whether a jury would not be directed to presume, or whether a jury would not presume, that the clothes so destroyed had been stained with the blood of the man that was murdered, and that they had been destroyed only for the purpose of suppressing that evidence? If a jury would not be expressly directed to presume guilt from this, I would ask, whether the party's having destroyed the clothes he wore upon the day on which the man was murdered, would not be considered as most material evidence in such a case? And whether it could be evidence, in any way but that in which I have stated, that it must be presumed that no innocent man would have destroyed that evidence, which would have contributed to his acquittal if innocent, and could contribute to his conviction only if he were guilty? I do not say, that from that circumstance alone you would infer that a man was guilty of a murder, neither do I desire your Lordships, from the single circumstance of all the vouchers being destroyed, to say that the noble Lord was guilty of this criminal connivance in the conduct of Mr. Trotter, or that he was applying all these sums of public money for his own benefit; not from that circumstance alone, but from that circumstance coupled with all the other facts."

where he ought to produce the original, this carries the presumption with it, that there is something more in the deed or will that makes against the party, else he would have produced it; and, therefore, the proof of a copy in this case is not evidence; but if he prove the original deed or will in the hands of the adverse party, or to be destroyed without his default, a copy will be admitted, because such a copy is the best evidence."

The rule, therefore, does not mean that you are bound to produce all the evidence in your power to establish the fact in dispute. For instance, in making out your title by deed, you are bound, if it is in your controul, to produce the deed itself. That is the best evidence; and to substitute inferior evidence for it would be illegal. But if there are two subscribing witnesses to it, you are not bound to produce both in order to prove its execution; the evidence of one for that purpose is sufficient. Again, if you want to shew that a letter is in the handwriting of Caius, you are not bound to call Caius

himself.

This brings us to the great distinction which our law makes between primary and secondary evidence.

All evidence that falls short of primary evidence, and is admissible, is secondary evidence. The substitution of oral for written, and of hearsay, oral, or written, for direct evidence, are the heads into which this branch of the subject may be divided. Let us then inquire when the law insists upon written evidence, and when its production may be dispensed with.

First, wherever the law has required that an instrument shall be in writing; and, secondly, wherever the contract or statement, not being an ex parte memorandum, is in writing. Oral evidence cannot be substituted for such writings, unless the absence of the written instrument be legally accounted for. But if a written communication be accompanied by a verbal one, the latter may be received, not as a substitute for the

written communication, but as independent evidence. The common example of this is, that though a receipt be taken, the payment of money may be proved by oral testimony. So an admission of a debt by a defendant may be proved, though he gave at the same time a written promise to pay, which, for want of a stamp, is inadmissible (o). So whatever a party says, or his acts amounting to admissions, are evidence against himself; even though such admissions involve what is contained in some deed or writing. Such evidence not being open to the presumption of untruth, arising from the very nature of the case where better evidence is withheld.

Again, the rule rejecting secondary evidence is qualified from regard to public convenience and necessity, in the case of judicial records, and of public books and registers, the removal of which would be attended with inconvenience to the community.

Where the existence of the record is denied, and this is the question at issue between the parties, the proof is by the production of the record itself, or by the tenor of it duly certified under a writ of certiorari.

Where it becomes necessary to prove a record, not as the

(0) Slatterie v. Pooley (6 M. & W. 664) settled (as far as anything can be settled on the Euripus of case law) this principle. R. v. Inhabitants of Basingstoke, Jurist, March 26, 1850, p. 246. It was held that acts of overseers amount to an admission of a certificate under 8 & 9 Wm. 3, c. 30. "The question comes to this, whether an admission by the parish officers of the existence of a certificate by their acts, is equally binding as such an admission by words. Their acts are evidence of an admission; and Slatterie v. Pooley decides, that if the admission relating to the contents of a deed is by words, it is not necessary to produce the deed, not however treating the words as secondary evidence of the contents of the deed; for it is well put by Mr. Smith in his Leading Cases, vol. 2, p. 237, that it is a species of estoppel which supersedes the necessity of evidence by shewing that the fact is already admitted." Patteson, J. "If a man says, I have this day sent you a bond signed by me, and properly stamped, of such and such import, that is original evidence of his having bound himself by such a bond." Maule, J., Boulter v. Replow, ib. p. 249.

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