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as the best evidence of the agreement or facts which it records; and unless it be in the possession of the opposite party, and notice has been given to him to produce it, or it be proved to be lost or destroyed, secondary evidence of its contents is not admissible. Thus where a man makes a will of lands, which must necessarily be in writing, both the devisor and the law intend that that writing shall be the evidence of the devisor's intentions, and therefore the will itself must be produced; neither an exemplification under the great seal, nor a probate, or other copy, being primary evidence of the devise. B. N. P. 246. In the same manner where two parties enter into an agreement in writing, that writing is intended by them to be the evidence of their mutual consent, and is the only primary evidence of that consent. Brewer v. Palmer, 3 Esp. 213.

Again, in an indictment for setting fire to a house, in order to prove that the house was insured, the books of the insurance office were produced, in which there was an entry to that effect; but Lord Kenyon ruled, that as the policy was the best evidence, the prosecutors could not give any evidence from their books, it being inferior evidence, unless notice had been given to produce the policy. Doran's case, 1 Esp. 127.

Upon the same principle, the records and proceedings of Courts of Justice, existing in writing, are primary evidence of the facts there recorded. Thus where it was necessary to prove the day on which a cause came on to be tried, Lord Ellenborough said that he could not receive parol evidence of the day on which the court sat at Nisi Prius, as that was capable of other proof by matter of record. Thomas v. Ansley, 6 Esp. 80. Vide post "Documentary Evidence." So on an indictment for disturbing a protestant congregation, Lord Kenyon ruled that the taking of the oaths under the Toleration Act being matter of record, could not be proved by parol evidence. Hube's case, Peake, 132. On an indictment on the statute 8 and 9 W. 3. c. 26, 81, for having coining instruments in possession (repealed and re-enacted by 2 W. 4, c. 34,) it was necessary to show that the prosecution was commenced within three months after the offence committed. It was proved, by parol, that the prisoners were apprehended within three months, but the warrant was not produced or proved, nor was the warrant of commitment or the depositions before the magistrate given in evidence to show on what transactions, or for what offence, or at what time the prisoners were committed. The prisoners being convicted, a question was reserved for the opinion of the judges, who held that there was not sufficient evidence that the prisoners were apprehended upon transactions for high treason respecting the coin, within three months after the offence committed. Phillips's case, Russ. and Ry. C. C. R. 369 (a). So where the transactions of courts which are not, technically speaking, of record, [*3] are to be proved, if such courts *preserve written memorials of their proceedings, those memorials are the only authentic modes of proof which the law recognizes. 3 Stark. Ev. 1043, 1st Ed. [New Ed. 2d vol. p. 571.]

Although matters of record and proceedings of courts of justice, when committed to writing, cannot be proved by parol, they may be proved by examined copies, a rule founded upon a principle of general convenience. In the same manner examined copies of public books are

(a) 1 Eng. Crown Cases, 369.

admissible without producing the originals. Vide post. But no such rule exists with regard to private documents, there being no inconvenience in requiring their production.

The admission of the party against whom the evidence is offered will not preclude the necessity of producing a written instrument where it is primary evidence. Bloxam v. Elsie, Ry. and Moo. '187 (1). Call v. Dunning, 4 East, 53. Cunliffe v. Sefton, 2 East, 187, 188. Thus where to prove a discharge under the Insolvent Debtors' Act, the defendant proposed to give in evidence a verbal acknowledgment by the plaintiff himself, Lord Ellenborough said that this was insufficient, as the discharge might be irregular and void, and the plaintiff mistaken; that to prove a judicial act of this sort, it was neccessary to call the clerk of the peace and give in evidence the order of the court of quarter sessions, by which the discharge was effected. Scott v. Clare, 3 Campb. 236.

But it is not necessary, in every case where the fact that is to be proved has been committed to writing, that the writing should be produced. Thus where a memorandum of agreement was drawn up, and read over to the defendant, and he assented to, but did not sign it, it was held that. the terms mentioned in it might be proved by parol. Doe v. Cartwright, 3 B. and A. 326 (a). So where a verbal 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 vendor, it may be proved by parol. Dalison v. Stark, 4 Esp. 163. So facts may be proved by parol, though a narrative of them may exist in writing. Thus a person who pays money may prove the fact of payment, without producing the receipt which he took. Rambert v. Cohen, 4 Esp. 213 (2). 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 unnecessary to produce the writing. Smith v. Young, 1 Campb. 439. So a person who takes notes of a conversation need not produce them in proving the conversation. Thus in Layer's case for high treason, Mr. Staney, an Under Secretary of State, gave evidence of the prisoner's confession before the council, though it had been taken down in writing. 12 Vin. Ab. 96. And although what is said by a prisoner whose examination is regularly taken under 7 Geo. 4, c. 64, s. 2. (vide post) cannot be proved by parol, yet it may be so proved where the written examination is inadmissible on account of an irregularity in the mode of taking it. Reed's case, Moo. and Mal. 403(b). So the fact of a marriage may be proved by a person who *was present, and it will not be necessary to produce [ *4] the parish regi-ter as the primary evidence. Morris v. Miller, 1 W. Bl. 632. So the fact that a certain person occupied land as tenant may be proved by parol although there is a written contract. R. v. Inhab. of Holy Trinity, 7 B. & C. 611 (c). But the parties to the contract, the amount of rent, and the terms of the tenancy can only

(1) Welland Canal Co. v. Hathaway, 8 Wend. 480. (2) Southwick v. Hayden, 7 Cowen, 334. Heckert v. Haine, 6 Binn. 16. Wishart v. Downey, 15 S. & R. 77.

(a) Eng. Com. L. Rep. v. 306. (b) Id. xxii. 341. (c) Id. xiv. 101.

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be shown by the writing. S. C. and Strother v. Barr, 5 Bingh. 136 (a . Doe v. Harvey, Id. 239.

Where the question was, what were the inscriptions and devices on certain banners carried at a public meeting, on an indictment for unlawfully assembling, it was held that parol evidence of the inscriptions was admissible without producing the banners themselves; and per Lord Tenterden, "Inscriptions used on such occasions are the public expression of the sentiments of those who bear and adopt them, and have rather the character of speeches than of writings." Hunt's case, 3 B. and A. 566 (b). So the inscription on a monument may be proved by parol. Doe v. Cole, 6 C. and P. 359 (c).

In the case of printed documents, all the impressions are originals, or in the nature of duplicate originals, and any copy will be primary evidence. Thus where, in a prosecution for high treason, a copy of a placard was produced, by the person who had printed it, and offered in evidence against the prisoner, who it appeared had called at the printer's, and taken away twenty-five copies, it was objected that the original ought to be produced, or proved to be destroyed, or in the possession of the prisoner; but it was held that the evidence was admissible; that the prisoner had adopted the printing by having fetched away the twenty-five copies, and that being taken out of a common impression, they must be supposed to agree in the contents. "If the placard," said Mr. Justice Bayley," were offered in evidence to show the contents of the original manuscript, there would be great weight in the objection, but when they are printed they all become originals ; the manuscript is discharged, and since it appears that they are from the same press, they must be all the same." Watson's case, 2 Stark, 130 (d). Semble, that parol evidence is admissible of a printed paper affixed to a wall (cautioning persons not to attend an illegal meeting) and that it is unnecessary to produce the original manuscript. The usual way in such cases is to give a copy to the witness, and ask him if it is a copy of what he saw. Per Gaselee, J. and Park, J., Fursey's case,

6 C. and P. 81 (e) (1).

The transactions and proceedings of public meetings may be proved by parol, as in the case of resolutions entered into, although it should appear that the resolutions have been read from a written or printed paper. Thus where, in a prosecution against Hunt for an unlawful assembly, in order to prove the reading of certain resolutions, a witness produced a copy of the resolutions which had been delivered to him by Hunt as the resolutions intended to be proposed, and proved that the resolutions he heard read, corresponded with that copy, this was held sufficient, though it was objected that the original paper from [5] which the resolutions were read ought to have been produced, or that a notice to produce it ought to have been given. Hunt's case, 3 B. and A. 568 (f) (2). In a prosecution on the Irish Convention Act, the indictment averred that divers persons assembled together, and intending to procure the appointment of a committee of persons, entered

(1) A printed advertisement cannot be read without search after the original manuscript. Sweigart v. Lowncaster, 14 S. & R. 200.

(2) See Moor v. Newfield, 4 Greenl. 44.

(a) Eng. Com. L. Rep. xv. 391. (b) Id. v. 377. (c) Id. xxv. 438. (d) Id. iii. 281. (e) Id. xxv. 293. (f) Id. v. 380.

into certain resolutions respecting such committee, and charged the defendant with certain acts, done for the purpose of assisting in forming that committee, and carrying the resolutions into effect. To prove the first averment, a witness was called, who stated, that at a general meeting (the defendant not being present) the secretary of the meeting proposed a resolution, and read it from a paper. The proposition was seconded, and the paper was handed to the chairman and read by him. It was objected that the absence of the paper should be accounted or, before parol evidence of the contents of it was received. But the majority of the court were of opinion that this was not a case to which the distinction between primary and secondary evidence was strictly applicable, that the proposed evidence was intended to show, not what the paper contained, but what one person proposed, and what the meeting adopted; in short, to prove the transactions and general conduct of the assembly; and that such evidence could not be rejected because some persons present took notes of what passed. Sheridan and Kirwan's case, 31 How. St. Tr. 672.

Primary evidence—handwriting.] In proving handwriting, the evidence of third persons is not inferior to that of the party himself. "Such evidence," says Mr. Phillipps, "is not in its nature inferior or secondary, and though it may generally be true that a writer is best acquainted with his own handwriting, and therefore his evidence will generally be thought the most satisfactory, 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 a secondary species, nor does it give reason to suspect, as in the case where primary evidence is withheld, that the fact to which they speak is not true." 1 Phil. Ev. 212, 6th ed. (1).

If the evidence of third persons be admissible to prove handwriting, it seems necessarily to follow that it is equally admissible for the purpose of disproving it, the question of genuine or not genuine being the same in both cases. But see 1 Phil. Ev. 213, 6th ed. Accordingly, although in an early case, where it was requisite to prove that certain alterations in a receipt were forged, it was held that the party who had written the receipt ought to be called as the best and most satisfactory evidence, Smith's case, O. B. 1768, 2 East, P. C. 1000, yet in subsequent cases of prosecutions for forgery, it has been held that the handwriting may be disproved by any person acquainted with the genuine handwriting. Hughes's case, 2 East, P. C. 1002. M'Guire's

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In certain indictments for the then capital offence of putting away bank of England notes, knowing them to be forged, &c. the *counsel [ 6 ] for the bank thought it proper, over and above the usual proof given by the bank inspector of the note being forged (viz. of its not being bank paper, nor a bank impression, and that he was acquainted with the handwriting of the clerk whose name appeared to the note, and that he believed it not to be his handwriting) to go further, and produce the clerk himself to prove that he never signed it. This appeared to be done

(1) Conrad v. Farrow, 5 Watts: 536.

upon some intimation that the jury would not be satisfied without the best proof the nature of the case would admit of, and that was the signing clerk himself, who was a competent witness. The following questions were submitted for the opinion of the judges. Is it necessary that the signing clerk, if living, should be produced? And if a jury should require his testimony, and it is not produced, what direction should the judge give? The judges were of opinion that it was unnecessary to produce the signing clerk to show that he never signed the notes, if established by the evidence of persons acquainted with his handwriting, that the signature was not in his handwriting. Case of Bank prosecutions, 1 Moody, C. C. 380 (1).

Primary evidence-negative evidence of consent.] In certain prosecutions, it is necessary to prove that the act with which the prisoner is charged was done without the consent, or against the will, of some third person, and a question has been raised, whether the evidence of that person himself is not the best evidence for that purpose. Although at one time, it appears to have been thought necessary to call the party himself, it is now settled that his testimony is not the best evidence, but that the want of consent may be proved in other ways. In a prosecution under the statute 42 G. 3, c. 107, s. 1, (repealed by 7 & 8 Geo. 4, c. 27,) where it was necessary to prove that the act in question was done without the consent of the owner of the property, Lawrence, J., held that it was necessary on the part of the prosecution, to call the owner for the purpose of proving that he had not given his consent to the prisoner. Rogers' case, 2 Campb. 654. But where on an indictment under 6 Geo. 3, c. 36, (repealed by 7 & 8 Geo. 4, c. 27, and reenacted by c. 30,) for lopping and topping an ash timber tree without the consent of the owner, the land steward was called to prove that he himself never gave any consent, and from all he had heard his master say, (who had died before the trial, having given orders for apprehending the prisoners on suspicion) he believed that he never did, Bayley, J. left it to the jury to say whether they thought there was reasonable evidence to show that in fact no consent had been given. He adverted to the time of night when the offence was committed, and to the circumstance of the prisoners running away when detected, as evidence to show that the consent required had not in fact been given. The prisoners were found guilty. Hazy's case, 2 C. & P. 458 (a). So on an indictment on 42 Geo. 3, 107, s. 1, (now repealed) for killing fallowdeer without consent of the owner, and on two other indictments, for taking fish out of a pond without consent, Gaselee, J. was of opinion that the offence was committed under such circumstances as to warrant [*7] the jury in *finding non-consent; but Rogers' case (ante) having been cited, further evidence was gone into by calling the persons engaged in the management of the different properties, but not the owners. The judges having considered these cases, held the convictions right. Allen's case, 1 Moo. C. C. 154 (b).

(1) It is not necessary to prove a bank note counterfeit by an officer of the bank. Martin v. Commonwealth, 2 Leigh, 745. So it is not necessary to prove property in stolen goods by the owner. Lawrence v. The State, 4 Yerger, 145.

(a) Eng. Com. L. Rep. xii. 215. (b) 11 Eng. Crown Cases, 154.

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