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. Cohan, 4 Esp. 213.(1) 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 Camp. 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 [*4] *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. & Mal. 403. So the fact of a marriage may be proved by a person who was present, and it will not be necessary to produce the parish register 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 а written contract. R. v. Inhab. of Holy Trinity, 7 B. & C. 611; 1 M. & R. 444. But the parties to the contract, the amount of rent, and the terms of the tenancy can only be shown by the writing. S. C. and Strother v. Burr, 5 Bing. 136. Doe v. Harvey, 8 Bing. 239.4 R. v. Merthyr Tidvil, 1 B. & Ad. 29. However, the verbal statements of a party to the suit as to the terms of the tenancy are admissible in evidence against him, although the tenancy was created by adopting the terms of a former demise in writing. Howard v. Smith, 3 M. & G. 254; and see Slatterie v. Pooley, 6 M. & W. 664, ante p. 3.

Where on an indictment for unlawfully assembling, the question was, what were the inscriptions and devices on certain banners carried at a public meeting, it was held that parol evidence of the inscriptions was admissable 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. & A. 566. So the inscription on a monument may be proved by parol. Doe v. Cole, 6 C. & P. 359.(2)

(1) Southwick v. Hayden, 7 Cowen, 334. Heckert v. Haine, 6 Binn. 16. Wishart v. Downey, 15 Serg. & Rawle, 77.

But parol evidence that a receipt given for a note, acknowledged that the note was in full payment of goods sold is inadmissible, when the receipt is in existence and no measures have been taken to procure it. Townsend v. Atwater, 5 Day, 298.

(2) In order to prove that a certain ticket in a lottery had drawn a blank, a witness testified, that he was a manager of the lottery, that he attended the drawing, and that a ticket with the combination numbers in question, drew a blank. The testimony was objected to, because the appointment of a manager could be proved by the record, because the drawing of the lottery could be proved only by the managers' books, and because the result could not be ascertained without producing the scheme. It was held that the testimony was admissible. Barnum v. Barnum, 9 Conn. 242.

The rule is that secondary or inferior, shall not be substituted for evidence of a higher nature which the case admits of. The reason of that rule is, that an attempt to substitute the inferior for the higher, implies that the higher would give a different aspect to the case of the party introducing the lesser. "The ground of the rule is a suspicion of fraud." But before the rule is applied, the nature of the case must be considered, to make a right application of it; and if it shall be seen that the fact to be proved is an act of the defendant, Eng. Com. Law Reps. xxii. 341. b Id. xiv. 101. • Id. xv. 391.

a

• Id. xx. 337.

Id. xlii. 139.

Id. v. 337.

Id. xxi. 286. Id. xxv. 438.

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, on 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. N. P. 130. 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. & P. 81. (1)

The transaction and proceedings of public meetings may be proved by parol, as in the case of resolutions entered into, although it should appear that the [5] 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 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. & A. 568. (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 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 for, before parol evidence of the contents of it was received. But the majority of the Court were of opinion

which from its nature can be concealed from all others except him whose co-operation was necessary before the act could be complete; then the admissions and declarations of the defendant either in writing or to others in relation to the act become evidence. The U. S. v. Wood, 14 Peters, 431.

The rule requiring the production of the best evidence, is applied to reject secondary evidence which leaves that of a higher nature behind in the power of the party; it is not applied to reject one of several eye-witnesses to the same transaction. U. S. v. Gilbert, 2 Sumner, 19. The contents of letters which are lost, may be shown by any one, without accounting for the non-production of the person to whom they were written. Drisk v. Davenport, 2 Stew.

266.

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

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

a

Eng. Com. Law Reps. iii. 281.

Id. xxv. 293.

© Id. v. 377.

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. Phillips, "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 Phill. 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 Phill. 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 [*6] *may be disproved by any person acquainted with the genuine handwriting. Hughes's case, 2 East, P. C. 1002. M'Guire's case, Id.

On certain indictments for the then capital offence of putting away Bank of England notes, knowing them to be forged, &c., the counsel for the bank thought 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 upon some information 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 it were 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. (2)

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

(2) It is not necessary to prove a bank note counterfeit by an officer of the bank. Martin v. The 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. See also The State v. Petty, Harper, 59. State v. Hooper, 2 Bailey, 27. The State v. Tutt, Id. 44. State v. Anderson, Id. 565. Hess v. The State, 5 Ham. 5. Foulkes v. The Commonwealth, 5 Rob. (Va.) Rep. 836. On an indictment for uttering a counterfeit bank bill, where the bank was out of the state, 11 Eng. C. C. 380.

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 Geo. 3, c. 107, s. 1, (repealed by 7 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's case, 2 Camp. 654. But where on an indictment under 6 Geo. 3, c. 36, (repealed by 7 & 8 Geo. 4, c. 27, and re-enacted 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 prisoner's 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. So on an indictment on 42 Geo. 3, e. 107, s. 1, (now repealed,) for killing fallow deer without consent of the owner, and on two other indictments, for taking fish *out of a pond without consent, [*7] Gasalee, J., was of opinion that the offence was committed under such circumstances as warrant the jury in finding non-consent; but Roger's case (ante, p. 6) 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.

Primary evidence-exceptions-persons acting in a public capacity.] Where persons, acting in a public capacity have been appointed by instruments in writing, those instruments are not considered the primary evidence of his appointment, but it is sufficient to show that they have publicly acted in the capacity attributed to them. Thus in the case of all peace officers, justices of the peace, constables, &c., it is sufficient to prove that they acted in those characters without producing their appointments; and this even in the case of murder. Per Buller, J., Berryman v. Wise, 4 T. R. 366. Gordon's case, 1789, cited ib.(1) So, where on an indictment for perjury in answer to an allegation in the ecclesiastical court, in order to prove that the person by whom the oath was administered, was a surrogate, evidence was given of his having been in the habit of acting in that capacity, Lord Ellenborough

although within forty miles of the place of trial, the forgery was allowed to be proved by two witnesses, who had very frequently received and paid out bills purporting to be made by such bank, and one of whom had once carried a large number of such bills to the bank, which were all paid by the bank as genuine, but neither of whom had ever seen the president or cashier write. Commonwealth v. Carey, 2 Pick. 47.

(1) Basset v. Reed, 2 Ohio, 410. Thus also that defendant was an innkeeper, though his license was on record. Owings v. Wyant, 1 Har. & M'Hen. 393. And proof of a clergyman's or magistrate's authority to marry is primâ facie sufficient in a prosecution for bigamy, Damon's case, 6 Greenl. 148. See Dean v. Gridley, 10 Went. 254.

said, "I think the fact of his having acted as surrogate is sufficient primâ facie evidence that he was duly appointed, and had competent authority to administer the oath. I cannot, for this purpose, make any distinction between the ecclesiastical courts and the other jurisdictions. It is a general presumption of law, that a person acting in a public capacity is duly authorized so to do." Verelst's case, 3 Camp. 432. So where an affidavit purported to be sworn before a commissioner, proof of his having acted as such was held by Patteson, J., to be sufficient. Howard's case, 1 Moo. & Rob. 187. In an action on an attorney's bill, it was proved by the defendant that the plaintiff was admitted an attorney of the King's Bench in 1792, and had ceased for more than one year to take out his certificate; it was contended that it lay upon him to prove his re-admission, but it was held, as he had proved that he had acted as an attorney of the Common Pleas in 1824, that it was to be presumed he had lawfully acted in that character, in that court, till the contrary was shown. Pearce v. Whale, 5 B. & C. 38. So where the directors and overseers of a parish were by a local act to sue and be sued in the name of their vestry clerk, it was held, that proof of the latter having acted as vestry clerk was sufficient prima facie evidence of his being regularly appointed such clerk. M'Gahey v. Alston, Tyrwh. & G. 981.

Primary evidence exceptions-admissions by party.] Where a party is charged as bearing some particular character, the fact of his having acted in that character will be sufficient evidence, as an admission, without reference to his appointment being in writing. Thus in an action for penalties against a collector of taxes, under 43 Geo. 3, c. 99, s. 12, the warrant of appointment was not produced, it being held that the act of collecting the taxes was sufficient to prove him to be collector. Lister v. Priestly, Wightw. 67. So on an information against an officer, for receiving pay [*8] from government for a greater *number of men than had mustered in his corps, Lord Ellenborough held, that the fact of his being commandant might be proved from the returns, in which he described himself as major commandant of the corps, without adducing direct evidence of his appointment by the king. Gardner's case, 2 Camp. 513. So in an action against a clergyman for non-residence, the acts of the defendant as parson, and his receipt of the emoluments of the church, will be evidence that he is parson without formal proof of his title. Bevan v. Williams, 3 T. R. 635, (a) Smith v. Taylor, 1 Bos. & Pul. N. R. 210. Again, upon an indictment against a letter-carrier for embezzlement under 2 Wm. 4, c. 4, proof that he acted as such was held to be sufficient, without showing his appointment. Borett's case, 6 C. & P. 124. (1)

In the same manner, where the appointment or particular character of the other party is to be proved, the admission of the party against whom the evidence is offered, will not be secondary evidence, although the appointment be in writing. Thus in an action for penalties on the post horse act, brought by the farmer of the tax, it was held, not to be necessary for the plaintiff to give in evidence his appointment by the Lords of the Treasury or the Commissioners of the stamp duties; proof that the defendant had accounted with him as farmer of the duties, being sufficient. Radford v. M'Intosh, 3 T. R. 632. See Smith v. Taylor, 1 Bos. & Pul. N. R. 211. So in an action for slandering the plaintiff in his profession of an attorney, the words

(1) The authority of an agent to act for a corporation need not be proved by record or writing, but may be presumed from acts and the general course of business. Warner v. Ocean Ins. Co. 16 Maine, 439.