CHAPTER IV.

BEST EVIDENCE.

§ 363. THE FOURTH RULE, which governs the production of evidence, requires that the best evidence, of which the case in its nature is susceptible, should always be presented to the jury. This rule does not demand the greatest amount of evidence, which can. possibly be given of any fact; but its design is to prevent the introduction of any, which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when better evidence is withheld, it is only fair to presume, that the party has some sinister motive for not producing it, and that, if offered, his design would be frustrated. The rule thus becomes essential to the pure administration of justice. In requiring the production of the best evidence applicable to each particular fact, it is meant, that no evidence shall be received, which is merely substitutionary in its nature, so long as the original evidence is attainable.' Thus, depositions are in general admissible, only after proof that the parties who made them cannot themselves be produced. So, a preliminary agreement, which has been followed up by the execution of a deed of conveyance, cannot be admitted as evidence to show what parcels were subsequently conveyed. But every title by deed must be proved by the production of the deed itself, if it be within the power of the party; for this is the best evidence of which the case is susceptible; and its non-production raises a presumption, that it contains some matter of defeasance. If

1 Gr. Ev. § 82, in part.

2 See per Best, C. J., in Strother v. Barr, 5 Bing. 151; per Holroyd, J., in Brewster v. Sewell, 3 B. & A. 302; per Jervis, C.J., in Twyman v. Knowles, 13 Com. B. 224; Clifton v. U. S., 4 Howard, S. Ct. R. 247, 248, per Nelson, J.

3 1 Phil. Ev. 418; 1 St. Ev. 500; Glassf. Ev. 266-278; Tayloe v. Riggs, 1 Peters, 591, 596; U. S. v. Reyburn, 6 Peters, 352, 367; Minor v. Tillotson, 7 Peters, 100, 101.

B. N. P. 239.

Williams v. Morgan, 15 Q. B. 782.

there be duplicate originals of a deed, all must be accounted for, before secondary evidence can be given of any one.' Again, if an instrument, which requires attestation to give it validity,' be produced, its execution must in general be proved by calling the subscribing witness; and if there be two such witnesses, it will not be sufficient, so long as one of them is alive, sane, free from permanent sickness, within the jurisdiction of the Court, and capable of being found by diligent inquiry, to prove the signature of the other who is dead; for such evidence would merely raise a presumption that the deceased had witnessed all which the law requires for the due execution of the instrument; whereas the surviving witness would have been able to give direct proof. Such direct testimony, therefore, might fairly be considered as evidence of a better and higher nature than mere presumption arising from the proof of the witness's handwriting.

§ 364. The rule under discussion excludes only that evidence which itself indicates the existence of more original sources of information; and, therefore, when there is no substitution of inferior evidence, but only a selection of weaker, instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed. For instance, where an instrument is required to be attested by two witnesses, it is only necessary at law to call one of them, though the other may be at hand; and the same rule prevails in equity, excepting in the case of wills. Even the previous examination of a deceased subscribing witness, if admissible on other grounds, may supersede the necessity of calling the survivor. So, in proof or disproof of handwriting, or in proof of the contents of a letter, which cannot be produced, it is not necessary to call the supposed writer.'

1 Alivon v. Furnival, 1 C. M. & R. 292, per Parke, B.

2 See 17 & 18 Vict., c. 125, § 26; and 19 & 20 Vict., c. 102, § 29, Ir. Wright v. Doe d. Tatham, 1 A. & E. 21, 22, per Tindal, C. J.

3

4 1 Ph. Ev. 418. See Alfonso v. U. S., 2 Stor. R. 421, 426.

Ansty v. Dowsing, 2 Stra. 1253; B. N. P. 264; Gresl. Ev. 120, 122, 123.

• Wright v. Doe d. Tatham, 1 A. & E. 3.

7 R. v. Hurley, 2 M. & Rob. 473; Hughes' case, 2 East, P. C. 1002; M'Guire's case, id.; R. v. Benson, 2 Camp. 508; Liebman v. Pooley, 1 Stark. R. 167; Bank Prosecutions, R. & R. 378.

Even where it is necessary to prove negatively that an act was done without the consent, or against the will, of another, the person whose will or consent is denied, need not, as we have seen, be himself called.'

§ 365. This rule naturally leads to the division of evidence into PRIMARY and SECONDARY. Primary evidence is what has been just mentioned as the best or highest evidence, or, in other words, it is that kind of proof which, in the eye of the law, affords the greatest certainty of the fact in question. Until it is shown that the production of this evidence is out of the party's power, no other proof of the fact is in general admitted. All evidence falling short of this in its degree is termed secondary. The question whether evidence is primary or secondary has reference to the nature of the case in the abstract, and not to the peculiar circumstances under which the party, in the particular cause on trial, may be placed. It is a distinction of law, and not of fact; referring only to the quality, and not to the strength of the proof. Evidence, which carries on its face no indication that better remains behind, is not secondary, but primary.

§ 366.' But though all information must, if possible, be traced to its fountain head, yet if there be several distinct sources of information of the same fact, it is not in general necessary to show that they have all been exhausted, before recourse can be had to secondary evidence with respect to one of them. For instance, if it be requisite to prove that a collector, who is a stranger to the suit, has received certain sums of money, that fact may obviously be established by calling, either the collector himself, or the parties who paid him, and both these modes of proof are equally primary.

1 Ante, § 344; R. v. Hazy, 2 C. & P. 458; R. v. Allen, 1 Moo. C. C. 154; R. v. Hurley, 2 M. & Rob. 473, where held that, on an indictment for forging a cheque, the party, whose name is supposed to be forged, need not be called, either to disprove the handwriting, or to show that he did not authorise any other party to use his name.

2 Gr. Ev. § 84, in part.

3 Gr. Ev. § 84, as to first four lines. Cutbush v. Gilbert, 4 Serg. & Raw. 555; U. S. v. Gibert, 2 Sumn. 19,

80, 81; 1 Ph. Ev. 421.

But suppose the collector be dead; in this case the only primary evidence is the testimony of the persons from whom the money was received. Still the law does not require the production of these persons, but, on proof of the collector's death, it will admit any entries in his book acknowledging the receipt, though such entries are merely secondary evidence of the fact in issue; and if the book be in the hands of the opposite party, who, after notice, refuses to produce it, even secondary evidence of its contents will be admissible.' The distinction between this case, and that of the two subscribing witnesses to an instrument,-where, as we have seen,' proof must be given that both the witnesses are unable to be called, before evidence of the handwriting of one of them can be received, seems to rest on this, that the attesting witnesses are either rendered necessary by statute, or at least have been solemnly chosen by the parties, as the persons on whose united testimony they wish to rely, and consequently, so long as one of them can be called, secondary evidence respecting the other cannot be admitted.

§ 367. The cases which most frequently call for the application of the rule now under consideration, are those which relate to the substitution of oral for written evidence; and the general rule of law with respect to this subject is, that the contents of a written instrument, which is capable of being produced, must be proved by the instrument itself, and not by parol evidence. This rule, which is as old as any part of the common law of England, has ever been regarded with favour, and mentioned with approbation by the judges. "I have always," said Lord Tenterden, "acted most strictly on the rule, that what is in writing shall only be proved by the writing itself. My experience has taught me the extreme danger of relying on the recollection of witnesses, however honest, as to the contents of written instruments; they may be so easily mistaken, that I think the purposes of justice require the strict enforcement of the rule." Lord Wynford, also, in another case,

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1 Middleton v. Melton, 10 B. & C. 322, 327, 328, per Bayley and Parke, Js.; Barry v. Bebbington, 4 T. R. 514.

3 Gr. Ev. § 85, as to first three lines. Gr. Ev. § 88, in part.

2

Ante, § 363.

* The Queen's case, 2 B. & B. 289.

6 Vincent v. Cole, M. & M. 258.

observes: "I seldom pass a day in a Nisi Prius court without wishing that there had been some written statement evidentiary of the matters in dispute. More actions have arisen, perhaps, from want of attention and observation at the time of a transaction, from the imperfection of human memory, and from witnesses being too ignorant, and too much under the influence of prejudice, to give a true account of it, than from any other cause. There is often a great difficulty in getting at the truth by means of parol testimony. Our ancestors were wise in making it a rule, that in all cases the best evidence that could be had should be produced; and great writers on the law of evidence say, if the best evidence be kept back, it raises a suspicion that, if produced, it would falsify the secondary evidence on which the party has rested his The first case these writers refer to as being governed by this rule is, that where there is a contract in writing, no parol testimony can be received of its contents, unless the instrument be proved to have been lost." One of the main reasons for the adoption of this rule is, that the Court may acquire a knowledge of the whole contents of the instrument, which may have a very different effect from the statement of a part.2

case.

§ 368. It cannot be denied that these authorities and reasons are entitled to the greatest weight, and the rule in general is undoubtedly a wise one; but those who watch its practical working must be strangely prejudiced in its favour, if they are blinded to the cruel injustice which a strict observance of it too frequently entails upon parties, in consequence of the stamp laws. Recent legislation, it is true, has done much to alleviate the oppressive operation of those laws, so far as the administration of justice is concerned. In the criminal courts, no objection can now be taken to the admissibility of any document in evidence for want of a sufficient stamp;' and in the civil courts an attempt has been

1 Strother v. Barr, 5 Bing. 151.

The Queen's case, 2 B. & B. 287.

3 See per Lord Tenterden, in Reid v. Batte, M. & M. 414.

17 & 18 Vict., c. 83, § 27, enacts, that "every instrument liable to stamp duty shall be admitted in evidence in any criminal proceeding, although it may not have the stamp required by law impressed thereon or affixed thereto." The Irish Common Law Procedure Act, 1856, 19 & 20