DIGEST OF THE LAW OF EVIDENCE

AT NISI PRIUS.

PART I.

EVIDENCE IN GENERAL.

IN forming a digest of the law of evidence, the subject may be considered with regard to, first, the nature of evidence; secondly, the object of evidence; thirdly, proof of documentary evidence; fourthly, proof by witnesses; fifthly, proof by affidavits or depositions, and sixthly, the effect of evidence.

It will be well here to premise that the Supreme Court of Judicature Acts, 1873, 1875,* do not, nor may any rules made thereunder, alter the rules of evidence, except in empowering the court or a judge to order that in certain cases affidavits or depositions may be used in lieu of oral evidence, J. Act, 1875, s. 20, post, p. 143, and see Rules of the Supreme Court, 1883,† O. xxxvii. and O. xxxviii.

NATURE OF EVIDENCE.

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

PRIMARY EVIDENCE.

It is a general rule, that the best evidence, or rather the highest kind of evidence, must be given of which the nature of the case admits; and evidence of a nature which supposes better proof to be withheld is only secondary evidence. Thus, where a will of lands was to be proved, the primary evidence of it is the will itself, and not the probate; for the ecclesiastical court had no cognizance of realty. B. N. P. 246. So, in general, where a contract has been reduced into writing by the parties, the writing is the best evidence of its contents, and must be produced. Fenn v. Griffiths, 6 Bing. 533. So where a person was engaged as secretary on the terms contained in a resolution entered in a certain book of the employer, in action for his salary the book must be produced. Whitford v. Tutin, 10 Bing. 395, cited post, p. 3. In an action for infringement of a musical composition, the defendant cannot ask a witness whether he has not seen

These Acts are hereinafter cited, for brevity, as J. Acts, 1873, 1875.

These rules (see preamble and Appendix O) came into force on October 24th, 1883, and replace all former rules, except R. G. H. T. 1853, rr. 44 to 49, relating to juries, but they provide by O. Ixxii. r. 2, that, "where no other provision is made by the Acts or these rules, the present procedure and practice remain in force." They are hereinafter cited as Rules, 1883.

VOL. I.

B

printed copies of it at a certain place and time, or heard it performed, in order to disprove the originality; such copies, if any, must be produced and proved, or inability to produce them shown. Boosey v. Davidson, 13 Q. B. 257.

But it is not universally necessary, where the matter to be proved has been committed to writing, that the writing should be produced. If, for instance, the narrative of an extrinsic fact has been committed to writing, the fact may yet be proved by oral evidence. Thus, a receipt for money will not exclude oral evidence of the payment. Rambert v. Cohen, 4 Esp. 213. So, where, in trover, the witness stated that he had orally required the defendant to deliver up the property, and at the same time served upon him a notice in writing to the same effect, Ld. Ellenborough ruled that it was not necessary that the writing should be produced. Smith v. Young, 1 Camp. 439. In the same manner, what a party says, admitting a debt, is evidence, although the promise to pay is reduced into writing. Singleton v. Barrett, 2 C. & J. 369. So where the fact to be proved was, that a certain person occupied land so as to gain a settlement by 13 & 14 Car. 2, it was held that, although there was a written demise, the fact might be proved by oral evidence. R. v. Holy Trinity, 7 B. & C. 611; 1 M. & Ry. 444. But the parties to the lease, the amount of rent, and the terms of the tenancy can only be shown by the writing. S. C.; Strother v. Barr, 5 Bing. 136; R. v. Merthyr Tidvil, 1 B. & Ad. 29. In an action inter alios, the landlord cannot be called to prove the rent due without producing the written lease, if there is one. Augustien v. Challis, 1 Exch. 279. And the fact of a tenancy under a particular person, cannot be so proved, where there is a writing. Doe v. Harvey, 8 Bing. 239; semb. contra, per Alderson, B., in Augustien v. Challis, supra. Although there exists a deed of partnership, yet the fact of partnership may be proved by the acts of the parties. Alderson v. Clay, 1 Stark. 405. The fact of the employment of an agent to sell may be proved by oral evidence, though the terms of his commission are contained in a letter. Semb. Whitfield v. Brand, 16 M. & W. 282. Where it is necessary to prove a marriage, the entry in the parish register is not the only evidence; but the fact may be proved by the testimony of persons who were present and witnessed the ceremony, or by general reputation. Evans v. Morgan, 2 C. & J. 453; R. v. Wilson, 3 F. & F. 119 ; Campbell v. Campbell, L. R., 1 H. L. Sc. 201, per Ld. Cranworth. And where evidence of reputation was given, proof of a fiat for a special licence and of the affidavit on which it was founded, and of an entry in a parish register stating a private marriage in a house, purporting to be signed by the parties, was admitted to confirm the other evidence. Doe d. El. of Egremont v. Grazebrook, 4 Q. B. 406. On an indictment for an unlawful assembly, the inscriptions and devices on banners displayed at a public meeting may be proved by oral evidence, and it is not necessary to produce the banners themselves. R. v. Hunt, 3 B. & A. 566. And the transactions and proceedings of such a meeting may be proved by oral evidence, as resolutions entered into; although it should appear that those resolutions were read from a paper. Id. 568. So an inscription on a fixed monument, or writing on a wall, may be proved by oral evidence. Doe d. Coyle v. Cole, 6 C. & P. 359; Mortimer v. M'Callan, 6 M. & W. 68, 72, per cur.; Sayer v. Glossop, 2 Exch. 409; Bartholomew v. Stephens, 8 C. & P. 728.

The admission of one of the parties to a suit is primary evidence as against him, and the reported cases which favour a contrary opinion must be considered as overruled by Slatterie v. Pooley, 6 M. & W. 664, where it was decided that oral admissions are evidence against the party making them. although they relate to the contents of a written instrument. See also Newhall v. Holt, Id., 662; and Henman v. Lester, 12 C. B., N. S. 776; 31

L. J., C. P. 366. So a copy of a document delivered by a party is primary evidence against him of that document. See Stowe v. Querner, L. R., 5 Ex. 155, 159; and further under tit. Admissions, post, p. 61, et seq.

The proper evidence of all judicial proceedings is the production of the proceedings themselves or of examined (or office, Rules, 1883, O. xxxvii. r. 4, vide post, p. 92) copies of them. Thellusson v. Shedden, 2 N. R. 228. It has even been held that oral evidence was not admissible of the day on which a cause came on to be tried; as the proper proof is the postea. Thomas v. Ansley, 6 Esp. 80; R. v. Page, Id. 83. But as adjournments during sitting are not noticed on the record, it may well happen that oral evidence is the best and only evidence of the actual day of trial; Roe d. Wrangham v. Hersey, 3 Wils. 274; Whittaker v. Wisbey, 12 C. B. 52; 21 L. J., C. P. 116; though the record may be the only legal evidence of the proceeding at Nisi Prius recorded in it. 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, Ld. Ellenborough held it insufficient. Scott v. Clare, 3 Camp. 236; but see the cases cited under tit. Admissions, post, p. 61. So oral evidence is not admissible to prove the taking of oaths required by the Toleration Act, which must appear by the records of the Court where the oaths were taken. R. v. Hube, Peake, 132. Where the deposition of a witness in a case of misdemeanor was taken under 7 Geo. 4, c. 64, s. 3, and the plaintiff in an action against the witness offered oral evidence of an admission made by him in such deposition, the Court held such evidence to have been rightly rejected. Leach v. Simpson, 5 M. & W. 309.

The counterpart of a deed is admissible as original or primary evidence against the party executing it, and those claiming under him, though no notice to produce the other part has been given. Burleigh v. Stibbs, 5 T. R. 465; Roe d. West v. Davis, 7 East, 363; Houghton v. Kanig, 18 C. B. 235; 25 L. J., C. P. 218; so a duplicate original may be adduced in evidence without notice to produce the other original. Colling v. Treweek, 6 B. & C. 394, 398; and in the case of printed matter each copy of the same impression is an original. R. v. Watson, 2 Stark. 129.

Though a written contract must be produced in an action founded on it, yet a mere memorandum, not signed by the parties nor intended to be final, will not prevent the introduction of oral evidence of a contract. Doe d. Bingham v. Cartwright, 3 B. & A. 326; and see Hawkins v. Warre, 3 B. & C. 698. So where an oral contract is made for the sale of goods, and is put into writing afterwards by the vendor's agent for the purpose of assisting his recollection, but is not signed by the vendee, the contract may be proved by oral evidence. Dalison v. Stark, 4 Esp. 162. A vendee may give evidence of warranty, although a note of the sale and receipt of the money, given by the vendor to the vendee after the conclusion of an oral contract, contained no notice of any warranty. Allen v. Pink, 4 M. & W. 140. So of the memorandum of the terms of a lease, not signed by the lessor, but only by the wife of the lessee. R. v. S. Martin's, Leicester, 2 Ad. & E. 210. See also R. v. Wrangle, Id. 514. The case of Whitford v. Tutin, 10 Bing. 395, may seem hardly distinguishable in principle from some of the above. There it was held that a secretary, who accepted an engagement under a society on the terms contained in a resolution entered in the society's book, was held bound to produce the book in an action for his salary, though not a party to the resolution. The distinction seems to be, that the hiring was expressly upon the written terms, though the writing was not in itself a contract. The general proposition established by the cases seems to be that a mere unaccepted proposal, executory memorandum, private minute or unauthorised entry of one of the parties, will not exclude oral proof. But where an oral contract expressly incorporates, or refers to, a written paper as

part of its terms, that paper ought to be produced in order to prove those terms. See Hill v. Nuttall, 17 C. B., N. S. 262; 33 L. J., C. P. 303.

In order to render the production of a writing necessary, it must appear to relate to the matter in question. Thus where oral evidence is offered to prove a tenancy, it is not a valid objection that there is some written agreement relative to the holding, unless it also appears that the agreement was between the parties as landlord and tenant, and that it continues in force at the very time to which the oral evidence applies. Doe d. Wood v. Morris, 12 East, 237; Stevens v. Pinney, 2 B. Moore, 349. Oral evidence of the terms of a demise is admissible, although the witness called to prove them states that the lessor read them from some paper held in his hand at the time, but which was not shown to, or signed by the lessee. Trewhitt v. Lambert, 10 Ad. & E. 470.

If, in an action for work and labour, it appears that the claim is for extras on a written contract, the written contract must be produced. Vincent v. Cole, M. & M. 257 ; Buxton v. Cornish, 12 M. & W. 426. But if an entirely separate order be given for the extras, then production of the written contract is not necessary. Reid v. Batte, M. & M. 413.

If oral evidence of an agreement is given at a trial, the party desirous of excluding it may at once interpose and ask the witness whether it was not in writing; if the witness deny this, he may then give evidence on a collateral issue to show that the agreement was in writing; Cox v. Coureless, 2 F. & F. 139; or he may reserve the question for cross-examination, and may inquire as to the contents of the writing, so far as may be necessary, to show that oral evidence is inadmissible. Curtis v. Greated, 1 Ad. & E. 167. It is not enough to prove, by a witness, that the solicitor of the opposite party has admitted in conversation that there was a written agreement on the subject; for a solicitor is not an agent of his client to make such admissions. Watson v. King, 3 C. B. 608.

Whether the existence of a writing is sufficiently proved to exclude oral evidence is a question for the judge.

SECONDARY EVIDENCE.

Secondary evidence is admitted in cases where the principle which excludes it, namely, the supposed existence of better evidence behind, which it is in the power of the party to produce, does not apply. Thus, it is admissible if a ground be laid for it by proving that better evidence cannot be obtained. Rainy v. Bravo, L. R., 4 P. C. 287. In the case of a lost deed, the loss or destruction must be proved; and if it appears that two or more parts have been executed, the loss of all the parts should, it is said, be proved, otherwise "perhaps" a copy will not be admitted. B. N. P. 254; and see R. v. Castleton, 6 T. R. 236; and Munn v. Godbold, 3 Bing. 292, 294, per Best, C. J. So where an instrument is in the possession of the opposite party, oral evidence of its contents may be given, on proof of the service of a notice to produce it. 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. R. v. Stoke Golding, 1 B. & A. 173. So where a letter, which had been in the possession of the defendant, was filed in the Court of Chancery pursuant to an order of 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, Ry. & M. 18. The construction of a lost document, though proved by oral evidence, is for the judge, where the veracity of the witness