read to them;'-in all these instances the court held that parol evidence was admissible, since the writings only amounted, either to mere unaccepted proposals, or to minutes capable of conveying no definite information to the court or jury, and they could not, by any sensible rule of interpretation, be construed as memoranda, which the parties themselves intended to operate as fit evidence of their several agreements.

$407. On the same principle it has frequently been held, that 378 where the action is not directly upon the agreement for nonperformance of its terms, but is in tort, for its conversion, or detention, or negligent loss, the plaintiff may give parol evidence, descriptive of its identity, without giving notice to the defendant to produce the document itself; 2 and even though the defendant be willing to produce it without notice, the plaintiff is not bound to put it in, but may leave his adversary to do so, if he think fit, as part of his case.3 It has been well observed that, for the purpose of identification, no distinction can be drawn between written instruments and other articles; between trover for a promissory note, and trover for a waggon and horses.*

$408. The same rule prevails in criminal cases; and, therefore, 379 if a person be indicted for stealing a bill or other written instrument, its identity may be proved by parol evidence, though no notice to produce it has been served on the prisoner or his agent.5 If, however, the indictment be for forgery, and the forged instrument be in the hands of the prisoner, the prosecutor must serve him or his solicitor with a notice to produce it, before he can offer secondary evidence of its contents. One ground of difference

1 R. v. Wrangle, 2 A. & E. 514. See, for other instances, Ingram v. Lea, 2 Camp. 521; Dalison v. Stark, 4 Esp. 163; Wilson v. Bowie, 1 C. & P. 8.

2 Scott v. Jones, 4 Taunt. 865; How v. Hall, 14 East, 274; Bucher v. Jarratt, 3 B. & P. 143; Read v. Gamble, 10 A. & E. 597; Ross v. Bruce, 1 Day, 100; The People v. Holbrook, 13 Johns. 90; M'Lean v. Hertzog, 6 Serg. & R. 154. These cases overrule Cowan v. Abrahams, 1 Esp. 50.

3 Whitehead v. Scott, 1 M. & Rob. 2, per Ld. Tenterden.

4 Jolley v. Taylor, 1 Camp. 143, per Sir J. Mansfield.

5 R. v.

Aickles, 1 Lea. 294, 297, n. a., 300, n. a.

R. v. Haworth, 4 C. & P. 254, per Parke, J.; R. v. Fitzsimons, I. R., 4 C. L. 1.

between these two cases appears to be, that in the first it was always sufficient, both in the indictment and the proof, to describe in very general terms the instrument stolen, whereas in the case of forgery, the prosecutor, under the old law,' was often required to enter into a minute description of the document alleged to have been forged. But the main reason why parol evidence is admissible in a case of larceny, though inadmissible in a case of forgery, is, that a person charged with stealing an instrument must know, from the very nature of the accusation, that he will be called upon to produce it, while an indictment for forgery furnishes no such intimation; and it will be presently seen, when the rules which regulate the serving of notices to produce are discussed,3 that this is a material distinction. Indeed, it may well admit of a doubt, whether all the cases cited in this and the preceding section, wherein parol evidence has been received, do not rest on those rules, rather than on the fact that the contents of the writings were collateral to the questions in issue.

§ 409. In the third place, oral evidence cannot be substituted 380 for any writing, the existence or contents of which are disputed, and which is material to the issue between the parties, and is not merely the memorandum of some other fact. Thus, a witness cannot be asked whether certain resolutions were published in the newspapers, neither can he be questioned as to the contents of his account books: but in both these cases the papers and the books, as being the best evidence, must be produced. So, the primary proof of the publication of an opera is the production of the printed music, and the fact of publication cannot be proved in the first instance by a witness who has merely seen the opera in print, or heard parts of it played in society." So, doubts have been entertained as to whether the contents of handbills, written by dictation at a meeting of conspirators, could be proved by oral

See, now, 24 & 25 V., c. 98, 42, cited ante, ? 291.

2 See Bucher v. Jarratt, 3 B. & P. 146, per Chambre, J. Post, 2452.

5 R. v. O'Connell, Arm. & T. 163.

C. J.

Boosey v. Davidson, 13 Q. B. 257.

4 Gr. Ev. 88, in part.

6 Id. 198. See post, 462.

But see 10 Com. B. 696, per Jervis,

3

testimony. So, the fact of a person being rated to the relief of the poor cannot be legally proved by the collector stating that such person's name was on the rate,' but either the rate-book itself, or at least a certified or examined extract from it,' must be produced. So, a plaintiff cannot be asked on cross examination whether his name is written in a certain book described by the questioner, unless a satisfactory reason be first given for the nonproduction of the book itself."

§ 410. In stating that oral testimony cannot be substituted for 381 any writing included in either of the three classes above memtioned, a tacit exception must be made in favour of the parol admissions of a party, and of his acts amounting to admissions, both of which species of evidence are always received as primary proof against himself and those claiming under him, although they relate to the contents of a deed or other instrument, which are directly in issue in the cause." "The reason," says Mr. Baron Parke, "why such statements or acts are admissible, without notice to produce, or accounting for the absence of the written instrument, is, that they are not open to the same objection which belongs to parol evidence from other sources, where the written evidence might have been produced; for such evidence is excluded from the presumption of its untruth, arising from the very nature of the case, where better evidence is withheld; whereas, what a

R. v. Thistlewood, 33 How. St. Tr. 756-759. See post, 417.

2 Justice v. Elstob, 1 Fost. & Fin. 256.

3 R. v. Coppull, 2 Eist, 25, recognised by Patteson, J., in R. v. Staple Fitzpaine, 2 Q. B. 494. See "The Poor Rate Assessment and Collection Act, 1869," 32 & 33 V., c. 41, 2 18, cited ante,

4 Justice v. Elstob, Fost. & Fin. 256.

Darby v. Ouseley, 1 H. & N. 1.

147A.

Earle v. Picken, 5 C. & P. 542, per Parke, B.; Newhall v. Holt, 6 M. & W. 662, per id.; Slatterie v. Pooley, id. 664, and cases cited in n. a, 669; Bethell v. Blencowe, 3 M. & Gr. 119; Howard v. Smith, id. 254; 3 Scott, N. R. 574, S. C.; R. v. Welch, 2 C. & Kir. 296; 1 Den. 199, S. C.; King v. Cole, 2 Ex. R. 632; R. v. Basingstoke, 14 Q. B. 611; Boulter v. Peplow, 9 Com. B 501-504. These cases overrule Lord Tenterden's decision in Bloxam v. Elsie, 1 C. & P. 558; Ry. & M. 187, S. C. See Fox v. Waters, 12 A. & E. 43.

party himself admits to be true, may reasonably be presumed to be so." 1

§ 411. It may seem presumption to question the correctness 382 of this reasoning and of the decisions founded upon it; but the author cannot refrain from observing that, although the admission of a party may fairly be presumed to be true, the parol evidence by which that admission is proved need by no means be so; and, indeed, such testimony is open to even greater objection than applies to the ordinary case, where secondary evidence is produced, and the best evidence is withheld.2 When the admission is made in court, it may very reasonably be allowed to render needless the production of the written instrument to which it refers, because the simple question in such case will be, is the admission true? and the rational presumption is, that a man will not tell a falsehood, which is against his own interest; but when a witness is called to say that he has heard the opposite party make a certain statement with respect to the contents of a written instrument, the further question arises, was this statement really made? and to permit such parol evidence to be equally admissible, in proof of the contents of the instrument, with the production of the instrument itself, is to open a vast field for misapprehension, perjury, and fraud, which would be wholly closed, if the salutary rule of law, requiring that what is in writing should be proved by the writing itself, were here, as in other cases, to prevail. It must be remembered, that Lord Tenterden, and Mr. Justice Maule,-no mean authorities,-have emphatically expressed opinions in support of the view here suggested; while Mr. Baron Parke himself has declared that the parol evidence of admissions may, in some cases, be quite unsatisfactory to a jury, and that too great weight ought never to be attached to such evidence,

1 Slatterie v. Pooley, 6 M. & W. 669.

2 46

According to Slatterie v. Pooley, what A. states as to what B., a party, has said respecting the contents of a document which B. has seen, is admissible, whilst what A. states, respecting a document which he himself has seen, is not admissible,—although in the latter case, the chance of error is single, in the former double." Per Reporter in 9 Com. B. 501. n. c.

3 Bloxam v. Elsie, Ry. & M. 188; Boulter v. Peplow, 9 Com. B. 501.

Slatterie v. Pooley, 6 M. & W. 669.

since it frequently happens that the witness not only has misunderstood what the party has said, but, by unintentionally altering a few of the expressions really used, has given to the statement an effect completely at variance with what was intended.'

3

§ 412. Since the above observations were written, the subject ? 383 has undergone much discussion in Ireland,' where the judges have not hesitated to declare their disapproval of the principles advanced in Slatterie v. Pooley. "The doctrine laid down in that case," said Chief Justice Pennefather, "is a most dangerous proposition; by it a man might be deprived of an estate of 10,000l. per annum derived from his ancestors through regular family deeds and conveyances, by producing a witness, or by one or two conspirators, who might be got to swear that they heard the defendant say he had conveyed away his interest therein by deed, or had mortgaged, or had otherwise encumbered it; and thus, by the facility so given, the widest door would be opened to fraud, and a man might be stripped of his estate through this invitation to fraud and dishonesty." The case which called forth these remarks was an action for use and occupation. At the trial, one of the plaintiff's witnesses, after proving the occupation of the premises by the defendant, acknowledged in cross-examination the existence of a written agreement; and the court held, that this agreement must be produced, though the defendant had admitted that he was tenant at a particular rent.

§ 413. Whether the doctrine propounded in Slatterie v. Pooley ? 384 would be held to extend to records, as well as to deeds and ordinary writings, and whether it would embrace the case of a confessio juris, as well as that of a confessio facti, may admit of some doubt. In one case before Lord Ellenborough, the admission of a party that he had been discharged under the Insolvent Debtors Act, was held insufficient evidence of a valid discharge,

1 Note to Earle v. Picken, C. & P. 542.

2 Lawless v. Queale, 8 Ir. Law R. 382. See, also, Ld. Gosford v. Robb, id. 217; and Parsons v. Purcell, 12 id. 90. 36 M. & W. 664. Lawless v. Queale, 8 Ir. Law R. 385. See, also, Henman v. Lester, 31 L. J., C. P. 370, 371, per Byles, J.; 12 Com. B., N. S. 781, 782, S. C.