2

voce or by written interrogatories.1 But a party cannot repudiate an answer which has been given to an illegal question put on his own side; and in all cases where objections are taken to interrogatories on the ground of their being couched in a leading form, the judge is vested with a wide discretion as to how much, if any, of the depositions returned he will in consequence strike out.3 Where a witness, on being examined upon interrogatories in a foreign country, stated in one of his answers the contents of a letter which was not produced, that part of the deposition was suppressed at the trial, though it was urged, that as the witness was beyond the jurisdiction of the court, no means existed for compelling the production of the letter. "We have no power," said Chief Justice Tindal, "to compel the witness to give any evidence at all; but if he does give an answer, that answer must be taken in relation to the rules of our law on the subject of evidence."6

5

4

§ 549. In another case, a witness, with the view of showing that § 494 the defendants had used due diligence to obtain the answer of a party to a bill in Chancery, stated on interrogatories, that, as their agent, he had written to the party; and he then went on to describe the contents of the letter and of the reply, though he produced neither. At a subsequent trial this deposition was tendered in evidence, and the court, while rejecting the answers which stated what the letters contained, admitted that part of the deposition which proved that the witness had written a letter to the party in question; for had the witness been himself present in court he might have been examined thus far, in order to prove that the defendants through him had used some exertion to procure the party's answer. Again, depositions have been admitted, though the witness on his examination had refreshed his with some papers,

1 Hutchinson v. Bernard, 2 M. & Rob. 1. Small v. Nairne, 13 Q. B. 840.

memory

2 Id.

In Wheeler v. Atkins, 5 Esp. 246, Ld. Ellenborough is reported to have held, under similar circumstances, that either the letter must be produced, or the whole interrogatory abandoned. But this case is clearly not law. See per Ld. Denman, in Small v. Nairne, 13 Q. B. 844.

5 Steinkeller v. Newton, 9 C. & P. 319, per Tindal, C. J.

7 Tufton v. Whitmore, 12 A. & E. 370.

6 Id.

which he alleged were partly in his handwriting and partly not, but which he refused to allow the commissioners to see upon the ground that they were private memoranda; for, as it was a matter for the discretion of the commissioners, whether they would permit the witness to refer to papers during his examination, the learned judge, at the trial, presumed that they had exercised their discretion with propriety.1

§ 550. Another general rule, which governs the production of § 495 secondary evidence, whether of documents or of oral testimony, is, that the law recognises no degrees in the various kinds of such evidence. If, therefore, a deed be lost, or be in the hands of the adversary, who after due notice refuses to produce it, the party seeking to give evidence of its contents may at once have recourse to parol testimony, though it be proved that he has in his possession a counterpart, a copy, or an abstract of the document. So, if it be necessary to prove the former testimony of a deceased witness, any person who heard him examined may be called, though a clerk or a shorthand-writer may have taken down his evidence word for word.4

§ 551. This rule, of course, does not mean that the mere memory § 495 of a witness, who has read a deed, is entitled to equal weight with an authenticated copy of the same instrument; for in many cases a jury would properly regard such evidence with distrust, and if it should appear that more satisfactory proof was intentionally withheld, their distrust might amount to absolute incredulity; but the

1 Steinkeller v. Newton, 2 M. & Rob. 372, per Tindal, C. J.

2 Doe v. Ross, 7 M. & W. 102; 8 Dowl. 389, S. C.; Hall v. Ball, 3 M. & Gr. 242; 3 Scott, N. R. 577, S. C.; Brown v. Woodman, 6 C. & P. 206, per Parke, B.; Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J.

3 Cases in last note; also, Sugden v. Ld. St. Leonards, L. R., 1 P. D. 154 ; 45 L. J., P. D. & A. 1 & 49, S. C.; Brown v. Brown, 27 L. J., Q. B. 173; 8 E. & B. 876, S. C.; In re Brown, 27 L. J., Pr. & Mat. 20; 1 Swab. & Trist. 32, S. C.; and In re Gardner, 27 L. J., Pr. & Mat. 55; 1 Swab. & Trist. 109, S. C.; in which cases oral evidence of the contents of a lost will was admitted. See Johnson v. Lyford, 37 L. J., Pr. & Mat. 65; 1 Law Rep., P. & D. 546, S. C.; also, ante, § 436.

* Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J. See R. v. Christopher, 4 Cox, 96; 1 Den. 536; 2 C. & Kir. 994, S. C.

1

rule simply applies to the legal admissibility of the evidence, and is founded on the inconvenience that could not fail to arise in the administration of justice, if the degrees of secondary evidence were strictly marshalled according to their intrinsic weight, and if parties were consequently driven, before they could have recourse to parol testimony, to account for all secondary evidence of superior value, the very existence of which they might have no means of ascertaining.

§ 552. In considering the practical effect of this rule, care must § 496 be taken to exclude from its operation those cases in which the law has expressly substituted, in the place of primary proof, some particular species of secondary evidence. Thus, for instance, where the contents of public records and documents are to be proved; examined copies are, on grounds of general convenience, considered admissible;1 and such copies, though in strictness secondary evidence, partake so much of the character of primary proof, that so long as it is possible to produce them, other inferior degrees of secondary evidence cannot be received. Parol testimony, therefore, can only be admitted, on proof, first, that the public record or document has itself been lost or destroyed, for otherwise an examined copy might be obtained; and, secondly, that such copy, if any has been taken, is no longer under the control of the party relying upon less satisfactory evidence. In like manner, if a witness has been examined before a magistrate or coroner under such circumstances, that these officers respectively have, in pursuance of their duty, taken down his statement in writing, parol evidence of his examination cannot be given in the event of his death, so long as the deposition itself can be produced; for the law having constituted the deposition as the authentic medium of proof, will not permit the admission of any inferior species of evidence. If, indeed, it can be shown that the deposition is lost or destroyed, or is in the possession of the opposite party, who after notice refuses to produce

1 Ante, § 439, and post, §§ 1545, 1598, et seq.

2 Doe v. Ross, 7 M. & W. 106, per Ld. Abinger.

3 Thurston v. Slatford, 1 Salk. 214, 285; Macdougal v. Young, Ry. & M. 392; 1 Ventr. 257.

it, the statement of a witness who was present at the examination will then be admissible, as well as a copy of the deposition.1

$553. The rule which includes in one legal category every 47 species of secondary proof, by no means opens a door to all sorts of evidence, however loose, which a party chooses to tender. The contents, therefore, of a written instrument which is lost cannot be proved by means of a copy, until it be shown that such copy is accurate; and if, as frequently happens, a party to the suit has himself made a copy of a letter which he has sent to his adversary, this copy, should the adversary refuse to produce the letter after notice, cannot be read in evidence, unless the party who made it can swear to its accuracy, or some other witness can be called who has compared it with the original. Neither can a document be proved by the production of the copy of a copy, for such evidence would be rejected on the broad ground which renders hearsay evidence inadmissible. The opponent would have a right to object that, assuming the second copy to correspond exactly with the first, the first must be produced and proved to have been compared with the original, or otherwise there would be nothing to show that the second copy and the original were identical. Such evidence would in fact be but the shadow of a shade.

1 See 2 Russ. C. & M. 895; R. v. Wylde, 6 C. & P. 380.

2 Everingham v. Roundell, 2 M. & Rob. 138, per Alderson, B.

3 Fisher v. Samuda, 1 Camp. 193, per Ld. Ellenborough. But see Waldy e. Gray, 20 Law Rep., Eq. 238, 250, per Bacon, V.-C.

4 Liebman v. Pooley, 1 Stark. R. 167, per Ld. Ellenborough. Everingham v. Roundell, 2 M. & Rob. 138.

CHAPTER VI.

EVIDENCE ADDRESSED TO THE SENSES.

§ 554. THE first degree of evidence, and that which, though § 498 open to error and misconception, is obviously most satisfactory to the mind, is afforded by our own senses. 1. "Believe half what you see, and a twentieth part of what you hear," is a maxim, which reflects severely upon human intelligence and veracity, but which, nevertheless, is founded in the main upon the experience of life, and marks the vast distinction that obtains between a knowledge of facts derived from actual perception, and the belief of the existence of facts resting on the information of others. In judicial proceedings, the judge or jury can seldom act entirely upon evidence of this description, though, when pregnancy is pleaded, a jury of matrons is empowered to decide the issue upon examination of the person of the prisoner; but in a vast number of instances, especially where the fact in dispute is sought to be proved by circumstantial evidence, the verdict will be found to rest materially upon matter submitted to the ocular inspection of the jury. Thus, if a prisoner be indicted for stealing corn, and one of the circumstances tending to establish his guilt be his possession of wheat apparently resembling a quantity from which a portion has been recently taken, it is evident that a comparison by the jury of the wheat found upon the prisoner with a sample of that belonging to the prosecutor, will be more satisfactory than if its identity be sworn to by a witness, who, out of court, has examined the two lots. It is true that the jury may come to an

1 "Segnius irritant animos demissa per aurem,

2

Quam quæ sunt oculis subjecta fidelibus, et quæ

Ipse sibi tradit spectator."-HOR. Ars Poet. 1. 180.

2 Baynton's case, 14 How. St. Tr. 630, 631, 634; 1 Hale, 368; 2 id. 413 ; R. v. Wycherley, 8 C. & P. 262. By this last case it appears, that the matrons may, in addition to their personal inspection, hear the evidence of a surgeon, but in that event he must be examined as a witness in open court. See Lady Essex's case, 2 How. St. Tr. 802.