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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 (1). 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 (2). 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, which have been before mentioned, primâ 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, 1 East, 460. Smith v. Young, 1 Campb. 439.

(2) Dalison v. Stark, 4 Esp. N. P. C. 163. 1 East, 460.

(3) Doe d. Wood v. Morris, 12 East, 237. Doe v. Pearson, 12 East, 239. n.

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 the question is whether they are such, proof of being reputed to be so, or of having exercised the office,

(1) Hughes's case, 1802, 2 East, P. C. 1002; M'Guire's case, 1801, S. P, ib. Contra, Smith's case, 1768, 2 East, P. C. 1000. See post. as to proof of hand-writing.

(2) Newland's case, 2 East, P. C.

1001.

(3) See part 2. ch. 6. ad finem.

(4) By Buller J. in Berryman v. Wise, 4 T. R. 366. By the opinion of all the judges in the case of the Gordons tried for murder in 1789, Leach Cr. C. 585.

is good evidence of the fact, on any indictment, information, action, or prosecution whatsoever (1). So, on an in

dictment 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 prima 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

(1) St. 26 G. 3. c. 77. s. 13., and see St. 11 G. 1. c. 30. s. 32.

(2) R. v. Verelst, 3 Campb. 432. (3) By Chambre J., Smith v. Taylor, Bos. & Pul. N. R. 210.

(4) By Chambre J., ib. Bevan q. t. v. Williams, n. (a), 3 T. R. 635. (5) Peacock v. Harris, 10 East, 104. (6) Chambre J. 1 Bos. & Pul. N. R.

211.

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 acknowledgment of 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 primâ facie 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 the 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, the evidence offered was not sufficient

(1) 3 T.R.632. And see Cross v. Kaye, 6T. R. 663, and I New Rep.

211.

(2) 1 Bos. & Pul. N. R. 210. 3 T.R. 635. 4 T.R. 366. 4 Gwill. 1483.

(3) Berryman v. Wise, 4 T. R. 366. (4) By Heath J. 1 New Rep. 208. (5) I New Rep. 196, Mansfield C. J. and Heath J.; Rocke J., and Chambre J., contrà.

prima facie evidence that the plaintiff had lawfully practised as a qualified authorised doctor of physic? And considering the nature of the words and the situation of the defendant, that the charge had no relation to the want of qualification but merely to the practice, and that it was accompanied by the expression "Dr. S.," I think that these circumstances afforded sufficient primâ facie evidence that the plaintiff' was doctor." If, indeed, the words imply a charge that the plaintiff was not qualified to act in the particular character which he assumed, he ought to prove his qualification, and it will not be sufficient to shew that he acted in that capacity (1). And where the words imply merely ignorance or negligence, without admitting the plaintiff to be qualified, and the plaintiff avers that he is qualified, he will be bound to prove his qualification. (2)

SECT. VII.

That Hearsay is not Evidence.

Ir is a general principle in the law of evidence, that, if any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth; and the reason of the rule is, because evidence ought to be given under the sanction of an oath, and that the person, who is to be affected by the evidence, may have an opportunity of interrogating the witness as to his means of knowledge and concerning all the particulars of the fact.

Hearsay evidence of a fact, therefore, is not admissible. And the same principle is applicable to statements in writing, no less than to words spoken: whether spoken or written, they are equally inadmissible in evidence. The

(1) Pickford v. Gutch, 8 T. R. 305, n. (a); Mcises v. Thornton, 8 T. R. 303. In this last case, there was also an averment, that the plaintiff (bad

taken the degree of doctor of physic) was duly qualified.

(2) See I New Rep. 204. 210.

only

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