A DIGEST,
&c.

IN 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.

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. If the narrative of a fact to be proved, has been committed to writing, it may yet be proved by parol evidence. Upon this principle, a rcceipt 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 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 a 14 Eng. Com. Law Reps. 101.

Didot, an interest belonged to Didot, 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 acccunt 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 is therefore 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 defendant, was filed in the court of chancery, pursuant to an order 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. Munning, 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 paper 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 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 ef fected, 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 no

5 Eng. Com. Law Reps. 291.