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and dangerous kind, without giving due notice of their nature. It appeared in evidence at the trial, that the goods were delivered by the officer of the defendants, with a written order to the plaintiff to receive them, in which order nothing was said as to their nature, that they were received by the chief mate of the plaintiff's ship, who had since died, and that no other person was present at the time of the delivery. It was further proved, by the captain of the ship and the second mate, that no communication had been made to either of them, nor, as far as they knew, to any other person on board. Upon this evidence, the plaintiff who had to prove the negative, was nonsuited, on the ground, that he had not given the best evidence of the want of notice, which it was in his power to produce, by calling the company's officer, who delivered the articles on board. And the nonsuit was afterwards affirmed by the Court of King's Bench. "The best evidence, (said Lord Ellenborough in delivering the opinion of the Court,) should have been given, of which the nature of the case was capable. The best evidence was to have been had, by calling, in the first instance, upon the persons immediately and officially employed in the delivering and in the receivng of the goods on board, who appear in this case to have been the first mate, on the one side, and the military conductor the defendant's officer, on the other; and though the one of these persons, the mate, was dead, that did not warrant the plaintiff in resorting to an inferior and secondary species of testimony, (namely the presumption and inference arising from a non-communication to the other persons on board,) as long as the military conductor, the other living witness, immediately and primarily concerned in the transaction of shipping the goods on board, could be resorted to; and no impossibility of resorting to this evidence, the proper and primary evidence on the subject, is suggested to exist in this case."
It has been already observed, that, although the best evidence is to be given which the nature of the case admits,
yet yet the strongest possible assurance of a fact is not required. If a deed, for example, is attested by several subscribing witnesses, the execution may be proved by one of them ; or, if none of those witnesses can be produced, proof of the signature of one witness will be sufficient; for the proof is, as far as it goes, complete, and not inferior, in its kind, to any that can be produced; nor, can it be inferred, merely from the absence of further proof of the same kind, that such additional proof would be inconsistent with that already produced. So, to prove the plaintiff's demand satisfied, the defendant may give evidence of an admission by the plaintiff to that effect, though it should appear that the plaintiff also signed a receipt, and it may be said the receipt would be more satisfactory proof (i). And, where an agent for the plaintiff made a verbal agreement with the defendant, and afterwards put it down in writing, which was not signed by the parties, as a memorandum to assist his recollection, such writing is not the best evidence, nor indeed any evidence of the agreement, though it may be used by the agent for the purpose of refreshing his memory (a). So, if parol evidence should be offered to prove a tenancy, it is no objection that there is some written agreement relative to the holding, unless it should appear that the agreement was between the landlord and tenant, and that it continued in force to the very time, to which the parol evidence applies (3). And in a great variety of cases, w hich have been before mentioned, prima facie or presumptive proof is admissible, although perhaps stronger evidence might have been produced.
Upon the same principle, it will not be necessary to call the supposed writer of an instrument, for the purpose of proving or disproving his hand-writing; but the evidence of persons well acquainted with the character of his writing
(1) Jacob v Lindsay, I East, 460. (3) Dot d. Wood v. Morrit, 11 Ea«, Smith v.Young, 1 Campb.439. 137. Doe v. Pearson, 12 East, 139. n.
iz) D-lison v. Stark, 4 Esp. N. P. C. 163. 1 East, 460.
will be sufficient. Such evidence is not, in its nature, inferior or secondary; and though it may generally be true, that a writer is best acquainted with his own hand-writing, yet his knowledge is acquired precisely by the same means as the knowledge of other persons, who have been in the habit of seeing him write, and differs not so much in kind as in degree. The testimony of such persons, therefore, is not of an inferior or secondary species; nor does it give any reason to suspect, as in the case where primary evidence is withheld, that the fact to which they speak is not true. It is the common practice to receive such testimony in ordinary cases; and, in prosecutions for capital offences, it must be equally admissible. On a prosecution for the forgery of a bank note (1), therefore, Mr. Justice Le Blanc held that the signature in the name of the cashier of the bank might be disproved by any other person, who was acquainted with his hand-writing, though the cashier himself was not an incompetent witness. (2)
The rule, which requires the best evidence to be produced, is dispensed with in some particular cases.
First, where it is necessary to prove an entry in a public book, the original need not be shewn ; but, for the convenience of the public, a sworn copy will be admitted. (3)
Secondly, in the case of all peace-officers, justices of the peace, constables, &c., it is sufficient to prove that they acted in these characters, without producing their appointments (4). And in the case of officers of any branch of the revenue, where \he question is whether they are such, proof of being reputed to be so, or of having exercised the office,
(1) Hughes's case, 1801, 1 East, (3) See part 1. di.6. aJJtnem.
P. C. 1002; M'Guire's case, 1801, (4) By Uuller J. in Berryman v. Wise,
S.P, ib. Contra, Smith's case, 1768, 4 T. R. 366. By the opinion of all
a East, P. C. 1000. See feit. as to the judges in the case of the Gordons
proof of hand-writing, tried for murder in 1789, Leach Cr. C.
(2) NewUud's case, a East, P.C. jS5. I oo1.
is good evidence of the fact, on any indictment, information, action, or prosecution whatsoever (i). So, on an indictment for perjury committed by the defendant before a surrogate in an ecclesiastical court, proof that the person, who administered the oath, acted as surrogate, has been held to be sufficient primi facie evidence of his appointment and authority. (2)
Thirdly, there are other instances in which strict proof is made unnecessary, because the party, against whom it would otherwise be requisite to produce proof of the particular fact, has by his conduct precluded himself from disputing the fact (3). Such is the rule in an action against clergymen for non-residence, in which it is reasonable, that the acts of the defendant as parson, and his receipt of the emoluments of the church, should be evidence against him of his being parson, without formal proof of the defendant's title (4). So, in an action by a person, as farmer and renter of tolls, appointed under an act of parliament, for tolls due at a turnpike-gate, although the plaintiff will not be entitled to recover on the special count, unless he has been legally appointed collector of the tolls, yet, if the defendant has accounted with him in that character, the want of a formal appointment will not preclude him from recovering on an account stated (5). So, a tenant is considered as admitting the title of the landlord, under whom he holds, and will not be permitted afterwards to dispute it.
This principle was carried farther in the case of Radford q. t. v. M'Intosh; too far indeed, in the opinion of one learned Judge (6). That was an action for penalties under the post-horse act, brought by the plaintiff as farmer-general, and proof of his appointment was dispensed with, be
(l) St. 26 G. 3. e. 77. $. 13., and see (4) By Chambre J., ib. Bevanq. t. St. 11 G. 1. c. 30. s. J1, v. Williams, n. (a), 3 T.R. 635.
(i) R.v.VercUt, 3 Campb. 4?2. (5) Peacock v. Harris, 10 East, 104.
(3) By Chamhrc J.,Smith v.Taylor, (6) Chambre J. 1 Bos. fc Pul. N. R. I Bos. Sel'ul. N. R. 110. 111.
cause cause the defendant had previously accounted with him as farmer-general (1). So, in an action for subtraction of tithes, proof of the defendant's former acknowlcdgmentof the plaintiff's title to the tithes is sufficient evidence, as against the defendant a wrong-doer (2). So, in an action against the defendant for slander, in charging the plaintiff with being a swindler, and threatening that he would have him struck off the roll of attornies, the Court was of opinion, that the defendant's threat amounted to a distinct acknowledgment that the plaintiff was an attorney, and dispensed with further proof (3). The principle to be extracted from these cases seems to be, that where a defendant, in the course of the transaction, on which the action is founded, has admitted the title, by virtue of which the plaintiff sues, it amounts to primdfacie evidence, that the plaintiff is entitled to sue (4). And upon this principle two of the Judges of the Court of Common Pleas were of opinion that the plaintiff was entitled to recover in the case of Smith v. Taylor (5). That was an action for defamation, in which ithe plaintiff averred, that he was a physician and exercised the profession, and that the words were spoken concerning him as a physician. The material facts of the case were shortly these; the plaintiff, having practised the profession of a physician, was called upon to attend a sick person, for whom he prescribed} the defendant was employed as apothecary, and made up the prescription; in this situation of things, the defendant spoke the words charged in the declaration, which did not impute to the plaintiff any want of qualification by degree, but called him by his professional title of doctor, and ascribed to him mal-practice in his treatment of the patient. "The question," said the Chief Justice, "is, whether, in this particular action upon these particular words, tlie evidence offered was not sufficient