A DIGEST, &c.

THE general rules of evidence are the same in criminal and in civil proceedings. "There is no difference as to the rules of evidence," says Abbott, J., "between criminal and civil cases; what may be received in the one may be received in the other; and what is rejected in the one ought to be rejected in the other." Watson's case, 2 Stark. N. P. C. 155; Murphy's case, 8 C. & P. 306.

It is the first and most signal rule of evidence, that the best evidence of which the case is capable shall be given; for if the best evidence be not produced, it affords a presumption that it would make against the party neglecting to produce it. Gilb. Ev. 3; Bull. N. P. 293.(1)

Primary evidence-written instruments.] As a general rule, the contents of a written instrument can only be proved by the production of the instrument itself,

(1) Taylor v. Riggs, 1 Peters S. C. Rep. 596. Cutbush v. Gilbert, 4 Serg. & Rawle, 551. Duckwall v. Weaver, 2 Ohio, 13. Id. xxxiv. 402.

a

Eng. Com. Law Reps. iii. 291.

parol evidence of them being of a secondary or inferior nature. (1) But this rule is not without many exceptions. In general, whenever an instrument is entered into in writing, which is intended by the parties (testified by their signatures) to [ *2] contain *and to be the evidence of their consent or agreement, or whenever there exists a written document, which by the policy of the law is considered to contain the evidence of certain facts, that instrument or document is regarded 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.

Where upon 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; 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 under the statute 8 & 9 Wm. 3, c. 26, 81, for having coining instruments in possession, (repealed and re-enacted by 2 Wm. 4, c. 24,) 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. Phillip's case, Russ. & Ry. C. C. R. 369. Where the

(1) Hampton v. Windham, 2 Root, 199. Benton v. Craig, 2 Miss. 198. Cloud v. Patterson, 1 Stewart, 394. Campbell v. Wallace, 3 Yeates, 271. United States v. Reyburn, 6 Peters, 352.

If a witness in the course of his examination be asked to testify respecting a transaction, before the question is answered, it is competent for the other party to inquire and know whether the transaction be in writing; and if it be, the witness cannot be permitted to give parol evidence on the subject. Rice v. Bixler, 1 Watts & Serg. 445.

1 Eng. C. C. 369.

deposition of a witness in a case of misdemeanor, was taken under the 7 Geo. 4, c. 63, s. 3, and the plaintiff in an action against the witness, offered parol evidence of an admission made by him in such deposition, the court held that the evidence was rightly rejected. Leech v. Simpson, 5 M. & W. 309.

So where the transactions of courts which are not, technically speaking, of record, are to be proved, if such courts preserve written *memorials of their [ *3 ] proceedings, those memorials are the only authentic modes of proof which the law recognises. 3 Stark. Ev. 1043, 1st. ed. (1)

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 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.

If oral evidence of an agreement be given, the witness may be asked in crossexamination, whether it is not in writing, and as to its contents, in order to show that parol evidence is inadmissible. Curtis v. Greated, 1 A. & E. 167.

It has been held that 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. & Moo. 187. Call v. Dunning, 4 East, 53. Cunliffe v. Sefton, 2 East, 187, 188. Thus where to prove a discharge under the then 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 necessary 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 Camp., 236. But it has been recently decided, that what a party to the record says, is primary evidence against himself as an admission, although it relates to the contents of a written paper or deed, and although the contents be directly in issue in the cause. Slatterie v. Pooley, 6 M. & W. 664. See also Howard v. Smith, 3 M. & G. 254, post, p. 4.(2)

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, which he assented to, but did not sign, it was held that the terms mentioned in it might be proved by parol. Doe v. Cartwright, 3 B. & 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

(1) Brush v. Taggart, 7 Johns. 19.

(2) "It may be laid down I think as an undeniable proposition, that the admissions of a party are competent evidence against himself, only in cases where parol evidence would be admissible to establish the same facts, or in other words, where there is not in the judgment of the law, higher and better evidence in existence to be produced. It would be a dangerous innovation upon the rules of evidence, to give any greater effect to confessions or admissions of a party, unless in open court, and the tendency would be to dispense with the production of the most solemn documentary evidence." Nelson, J., in Welland Canal Company v. Hathaway, 8 Wend. 486. The Dutchess Cotton Manufactory v. Davis, 14 Johns. 328. All Saints Church v. Lovett, 1 Hall's Reps. 191. Jenner v. Joliffe, 6 Johns. 9. Hasbrouck v. Baker, 10 Johns. 249. See Day v. Seal, 14 Johns. 404.

a

Eng. Com. Law Reps. xxviii. 63. b Id. xi. 463.

Id. xlii. 139. d Id. v. 306.