necessary to charge that the prisoner was a servant, for that is the gist of the offence; and proof that he was not, would be a fatal variance; though he might still be convicted on such an indictment of simple larceny; for omne majus, &c. So, of a charge of stealing a letter by a person employed in a post office.() And it is prudent, if not necessary, to describe the person in the terms used by an Act. (4)

CHAPTER XXXV.

III. QUALITY OF PROOF.

§ 621. The fundamental rule, as already noticed, (see ante § 39,) to which all others are subservient, and of which the apparent exceptions are but so many actual illustrations, is that the best evidence which the case admits of shall always be produced.

§ 622. This rule does not require the production of the greatest possible quantity of evidence; as for instance, a repetition of proof of the same fact by various witnesses; for in law, the testimony of one witness, if thoroughly credible, is equivalent to that of a hundred; and in almost all matters, the proof of a fact may be established by a single witness,() except in charges of treason or perjury. Therefore, although there may be two or more attesting witnesses to a document, this rule does not require that all must be called. It will be satisfied by the production of one, or where none are procurable, by the proof of the document aliunde. But it is framed to prevent the introduction of any evidence which raises the supposition that there is better evidence behind, in the possession, or under the control of the party, by which he might prove the same fact. Thus, depositions only become evidence when the deponent himself cannot be produced; because if he were produced, his viva voce examination in open court, on oath, and subject to cross-examination, coupled with the opportunity afforded the Judge of observing his demeanor, &c., offers better means of testing and searching the veracity and credibility of

(i) See Act XVII of 1857, Sections XXXIII-VI. Act XVII of 1854, Sections LI, LIV, LVII.

(k) On these two subjects that evidence should be confined to the issue, and that it is sufficient to prove the substance of the issue, the student should read Roscoe's Criminal Evidence, pages 81-114.

(1) See Act II of 1855, Section XXVIII.

his story, than the perusal, however astute and critical, of that story from a mere written record of it. Thus a written document affords the best evidence of its own contents, and the contents must be taken from the paper, which will speak for itself, not from a copy, or the treacherous memory of man speaking for it. So in Strother v. Barr,(m) Best, C. J., said:

"I seldom pass a day in a Nisi Prius Court without wishing that there had been some written statement, evidentiary of the matter 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, 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 case. 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. It is assumed the case before us is not within this rule, and that the plaintiff's did not give parol evidence of the contents of the lease of the premises, for the injury for which this action was brought. This will be found to be a mistake; for the declaration states that the plaintiffs had let these premises to certain tenants, and that the conduct of the defendants is injurious to the reversion which the plaintiffs have in them. The statement must be proved; and is not the lease, which states all the circumstances of the tenancy, the best evidence of them ?"

So in Morley's Digest, Tit. Ev., case 153.

"Where a party claimed certain property under a Hibeh námek, and did not produce the deed, alleging that it was lost, and giving various frivolous reasons for such loss, he was non-suited with all costs against him. Zamindár of Carvatenager v. Case 12 of 1815. 1 Mad. Dec. 133.-Scott, Greenway and Ogilvie."

Thus, where a contract has been reduced to writing, the instrument is regarded as the record of the final intention and agreement of the contracting parties, and the terms of their contract shall be taken from the record which they have themselves appointed, not from parol testimony of what the parties said or intended.

(m) 5 Bing., p. 151.

See Starkie, p. 651.

"To admit oral evidence as a substitute for instruments, to which, by reason of their superior authority and permanent qualities, an exclusive authority is given by the parties, would be to substitute the inferior for the superior degree of evidence: conjecture for fact, and presumption for the highest degree of legal authority; loose recollection, and uncertainty of memory, for the most sure and faithful memorials which human ingenuity can devise or the law adopt-to introduce a dangerous laxity and uncertainty as to all titles to property, which, instead of depending on certain fixed and unalterable memorials, would thus be made to depend upon the frail me. mories of witnesses, and be perpetually liable to be impeached by fraudulent and corrupt practices."

Thus, where a bond is in its terms absolute, parol evidence cannot be admitted to show that it was intended to be conditional, or to operate merely as an indemnity. Analogous to this, is the case of Syed Hamed v. Kerakoose and Atkinson before the Supreme Court. There the plaintiff filed his bill to compel the defendant to carry out the trust of a creditor's deed, of which the defendants were trustees. The defendant Kerakoose, who had refused, after accepting the trust to proceed further in it, replied that there were certain conditions understood between himself and the plaintiff of a preliminary nature, which had not been carried out, and that he therefore declined to act upon the trust. But the trust deed itself contained no such terms, and it was held that the defendant could not give parol evidence of their existence.

§ 623. But this rule touching the best evidence has been much misunderstood, and must always be so, until a clear, philosophical judgment and practical experience shall have settled what is the best evidence. It was from a mistaken notion on this point, an overanxiety to exclude evidence open to the faintest suspicion, that the English law so long refused to listen to the parties themselves; to witnesses pecuniarily interested; to witnesses convicted of crime, and the like; and threw many technical difficulties in the way of proving documents, where the attesting witnesses, or deponent s were not procurable. It is to this that we must attribute the exclusion of various classes of witnesses by the laws of other nations. (a) Thus by the constitutions of the Greek Emperor, Pagans were excluded from giving evidence altogether: Jews from bearing testimony against

(n) See Best, § 63-4.

Christians; thus in the West Indies the evidence of a slave was not receivable against a free man; thus the evidence of a Hindu was not receivable against a Mahomedan; thus both the Mahomedan and Hindu laws exclude the testimony of woman; thus the Roman and Mediæval Civil law regarded the testimony of woman with considerable jealousy; and drew fanciful distinctions, such as the rule that greater credit was due to a virgin than a widow.

$624. Neither does the rule exclude secondary proof of an original instrument by verbal testimony rather than by a copy.(o) For there are no degrees of secondary evidence.

§ 625. But it requires that the evidence should come from the proper sources; hence it requires documents to be produced from their natural place of custody; hence it excludes evidence which clearly shows that there is better behind; as hearsay, while that which the witness has heard may be told in Court by the person from whom he heard it.

§ 626. The observations of Best are so clear and cogent that they must be quoted here :

"Confining our attention therefore to evidence in causa-it was said by a most eminent Judge in a most important case, that 'the judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit.' And Lord Chief Baron Gilbert, to whom principally we are indebted for reducing our law of evidence into a system, says, "The first and most signal rule in relation to evidence is this that a man must have the utmost evidence the nature of the fact is capable of.' 'The true meaning of the rule of law, that requires the greatest evidence that the nature of the thing is capable of, is this:-- That no such evidence shall be brought which ex natura rei supposes still a greater evidence behind in the party's own possession and power.' And in another old work of authority; 'It seems in regard to evidence to be an incontestable rule, that the party who is to prove any fact must do it by the highest evidence the nature of the thing is capable and similar language is to be found in most of our modern books. The important rule in question has, however, been very generally misunderstood: partly from the ambiguous nature of the language in which it is enunciated and partly from its being commonly accompanied by an illustration which has been confounded with the rule itself. If,' say the books, ' a man offers a copy of a deed or will when he ought to produce the original, this carries a presumption with it

(o) See Doe d. Gilbert v. Ross, ante § 573.

that there is something in the deed or will that makes against the party, or else he would have produced it, and therefore the proof of a copy in this case is not evidence.' This is undoubtedly true, but it is a great mistake to suppose it the full extent of the rule. Sometimes, again, it has been misunderstood as implying that the law requires in every case the most convincing or credible evidence which could be produced under the circumstances. But all the authorities agree that this is not its meaning; as further appears from the maxims, that there are no degrees of parol evidence,' and 'there are no degrees of secondary evidence.' Suppose an indictment for an assault: or, to make the case stronger, for wounding with intent to murder, (an offence still capital): the injured party, though present in court, is not called as a witness, and it is proposed to prove the charge by the evidence of a person who witnessed the transaction at the distance of a mile, or even through a telescope; this evidence would be admissible, because it is connected with the act-the senses of the witness having been brought to bear upon it;-and the not producing, what would probably be more satisfactory, the evidence of the party injured, is mere matter of observation to be addressed to the jury. Again, by 'secondary evidence' is meant derivative evidence of the contents of a written document; and it is a principle that such is not receivable unless the absence of the primary evidence,' the document itself is satisfactorily accounted for. But when this has been done, any form of secondary evidence is receivable: thus, the parol evidence of a witness is admissible, though there is a copy of the document, and the probability that it would be more trustworthy than his memory is only matter of observation.”

§ 627. Starkie thus lays down the broad rule with respect to written instruments.(p)

"Wherever written instruments are appointed, either by the requirement of law or by the compact of parties, to be the repositories and memorials of truth, any other evidence is excluded from being used, either as a substitute for such instruments or to contradict or alter them."

He shows that parol evidence may be offered with relation to written instruments in one or other of these three aspects:

1st.-In opposition to written evidence.

2nd. In aid of written evidence.

3rd. As independent evidence of a fact of which there may exist written evidence.

We must now consider each of these three heads.

(p) Page 648,