because the judicial document, on being produced, might be found irregular and void, and the party might be mistaken;' but on an indictment for bigay it has been held that the prisoner's deliberate declaration, that he had been married in a foreign country, rendered it unnecessary to prove that the marriage had been celebrated according to the laws of that country. So, in an action for wages, an admission by the plaintiff that his claim had been referred to an arbitrator, who had made an award against him, has been held admissible evidence on behalf of the defendant.3

2

§ 414. It may be further observed, with respect to this exception, 384 that a material difference exists between proving by means of an admission the execution of an instrument requiring attestation, which is produced, and proving the party's admission, that by such instrument, which is not produced, a certain act was done; and, indeed, it still appears to be the law,—as will hereafter be shown,* -that, when an instrument, which requires attestation to give it validity, is in court, and its execution is to be proved against a hostile party, an admission on his part of due execution, unless made with a view to the trial of that cause, is, generally, not sufficient. This rule is founded on reasons peculiar to the class of cases to which it is applied.

§ 415. Where the writing does not fall within either of the 385 three classes already described, no reason exists why it should exclude oral evidence. If, therefore, a written communication be accompanied by a verbal one to the same effect, the latter may be received as independent evidence, though not to prove the contents of the writing, nor as a substitute for it. So, the payment

1 Scott v. Clare, 3 Camp. 236. See, also, Summersett v. Adamson, 1 Bing. 73; Jenner v. Joliffe, 6 Johns. 9; Welland Canal Co. v. Hathaway, 8 Wend. 480.

2 R. v. Newton, 2 M. & Rob. 503, per Wightman and Cresswell, Js.; 1 C. & Kir. 164, S. C., nom. R. v. Simmonsto. But see R. v. Flaherty, 2 C. & Kir. 782; and R. v. Savage, 13 Cox, 178, per Lush, J.

3 Murray v. Gregory, 5 Ex. R. 468.

See post, ?? 1843, 1849.

5 See 17 & 18 V., c. 125, 26; 19 & 20 V., c. 102, ¿ 29, Ir.

6 See, however, Nagle v. Shea, I. R., 9 C. L. 389.

7 Gr. Ev. 90, in part.

8 See ante, 400.

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2

of money may be proved by oral testimony, though a receipt be taken; a verbal demand of goods is admissible in trover, though a demand in writing was made at the same time; and the admission of a debt is provable by oral testimony, though a written promise to pay was simultaneously given. So, the determination of an interest in land, whether freehold or copyhold, may be proved without producing, or accounting for the non-production of, the title deeds or court rolls, by merely showing that a deceased occupier, had, while in possession, declared that his interest in the premises would expire at his death. For, as will presently be seen, all statements by a person, while in possession of property, are, after his death, in themselves primary evidence, provided they tend to cut down his interest therein."

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§ 416. Where, on a preliminary hearing of a charge, the magis-386 trate's clerk takes down what the witness says, but neither the witness nor the magistrate signs the writing, nor does it constitute part of the depositions returned, oral evidence of what passed on that occasion is equally admissible with the clerk's note; and the same rule will prevail, if, on the hearing of an information for a .trespass in pursuit of game, the clerk takes a note of the charge; because this is not one of those cases where the magistrate is bound to take down what the witnesses say. So, in support of an indictment for perjury committed in a County Court, it is unnecessary to subpoena the judge to produce his notes, for he is not required by law to keep any, and the perjury may be proved by any witness who was present at the trial.10 So, where the proceedings of directors, commissioners, public trustees, and the like, are entered in

1 Rambert v. Cohen, 4 Esp. 213; Jacob v. Lindsay, 1 East, 460.

2 Smith v. Young, 4 Camp. 439, per Ld. Ellenborough.

3 Singleton v. Barrett, 2 C. & J. 368.

* Doe v. Langfield, 16 M. & W. 497.

6 Doe v. Langfield, 16 M. & W. 514, per Parke, B.

5 Post, 684, et seq.

7 Jeans v. Wheedon, 2 M. & Rob. 486, per Cresswell, J.; R. v. Christopher,

2 C. & Kir. 994; 1 Den. 536; 4 Cox, 76, S. C.; ante, & 400.

8 Under 1 & 2 W. 4, c. 32, 30.

9 Robinson v. Vaughton, 8 C. & P. 252, per Alderson, B.

10 R. v. Morgan, 6 Cox, 107, per Martin, B.; Harmer v. Bean, 3 C. & Kir.

307, per Parke, B.

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books, the fact that such books are rendered by statute admissible in evidence, does not exclude parol proof of what has taken place at the respective meetings.' Neither is it necessary to produce a certificate of registration, in order to prove that a joint stock company has been completely registered. So, the fact of birth, baptism, marriage, death or burial, may be proved by parol testimony, though a narrative or memorandum of these events may have been entered in registers, which the law requires to be kept; for the existence of contents of these registers form no part of the fact to be proved, and the entry is no more than a collateral or subsequent memorial of that fact, which may furnish a satisfactory and convenient mode of proof, but cannot exclude other evidence, though its non-production may afford grounds for scrutinising such evidence. with more than ordinary care.'

994

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§ 417.5 On a somewhat similar ground it has been held, that in 387 prosecutions for political offences, such as treason, conspiracy, and sedition, the inscriptions on flags and banners paraded in public, and the contents of resolutions read at a public meeting, may be proved, as being of the nature of speeches, by oral testimony; and where a party was indicted for administering an unlawful oath, a witness was permitted to give parol evidence of the words used, though he stated his belief that the accused read the words from a paper, which he held in his hand when he administered the oath,

1 Miles v. Bough, 3 Q. B. 845, 872; Inglis v. Gt. North. Ry. Co., 1 Macq. Sc. Cas., H. of L. 112, 118, 119..

2 Agricultural Cattle Ins. Co. v. Fitzgerald, 16 Q. B. 432; decided under the repealed Act, 7 & 8 V., c. 110, 2 7 & 25. See, now, 25 & 26 V., c. 89, 13 Cox, 345, S. C.

3 Lady Limerick v. Ld. Limerick, 32 L. J., Pr. & Mat. 22; 4 Swab. & Trist. 252, S. C.

Evans v. Morgan, 2 C. & J. 453; R. v. Allison, R. & R. 109; Harrison v. Corp. of Southampton, 22 L. J., Ch. 722; R. v. Mainwaring, 26 L. J., M. C. 10; Dear. & Bell, 132; 7 Cox, 192, S. C.; Reed v. Passer, Pea. R. 232; St. Devereux . Much Dew Church, 1 W. Bl. 367; Morris v. Miller, id. 632; 4 Burr. 2067, S. C.; Birt v. Barlow, 1 Doug. 172; Com. v. Norcross, 9 Mass. 492; Ellis v. Ellis, 11 Mass. 92; Owings v. Wyant, 1 Har. & M’H. 393.

5 Gr. Ev. 90, in part.

6 R. v. Hunt, 3 B. & A. 566; Sheridan's and Kirwan's case, 31 How. St. Tr. 673; R. v. O'Connell, Arm. & T. 235-237. See ante, 409, n. 1.

and no notice to produce this paper had been served on the prisoner.1

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§ 418. The preceding observations have been confined to cases, 388 where the attempt has been made to substitute oral for written. evidence; but precisely the same rules operate to the exclusion of writings which the law considers as entitled to less weight than those which might, and, consequently, ought to be forthcoming. Thus, an original document must, subject to some exceptions that will be presently mentioned,2-be produced at the trial, and a mere copy, however accurate, will not in the first instance be admissible. If, then, it be necessary to show the contents of a manuscript which is in the possession of the opposite party, a paper, purporting to be a printed copy, cannot be received in evidence, without a notice to produce the manuscript; neither will a duplicate writing, taken from an autograph at one impression by means of a copying machine, be regarded as an original, but the autograph itself must be produced, or its non-production to be accounted for as in ordinary cases. Still, all printed copies struck off in one common impression, though they constitute merely secondary evidence of the contents of the paper from which they are taken, are considered as primary evidence of each other's contents; and, therefore, when the question was, whether a prisoner was acquainted with the contents of certain placards, some copies of which were traced to his possession, a copy remaining with the printer was allowed to be read in evidence for the prosecution, though no notice had been served upon the prisoner to produce the copies which had been delivered to him. Again, on an indictment for feloniously setting fire to a house, with intent to defraud the insurers, the policy itself, being the best evidence of the fact of insurance, must be produced by the prosecutor; and recourse

1 R. v. Moors, 6 East, 421, n.

2 Post,

428.

3 B. N. P. 293, 294.

R. v. Watson, 32 How. St. Tr. 82-86; 2 Stark. R. 129, S. C.

Nodin v. Murray, 3 Camp. 228, per Ld. Ellenborough. In India, "an impression of a document made by a copying machine shall be taken without further proof to be a correct copy." Act 11 of 1855,

35.

R. v. Watson, 32 How. St. Tr. 82-86; 2 Stark. R. 129, S. C.

cannot be had to the books of the insurance office, even though the policy be in the defendant's possession, unless notice to produce it has been duly served upon him.'

§ 419. The memorial of a registered conveyance is also inad- § 389 missible as primary evidence against third persons, to prove the contents of the deed; although against the party by whom the deed is registered, and those who claim under him, it can certainly be received as secondary,3 if not as primary,* evidence, being considered in the light of an admission. On one or two occasions, the memorial, or even an examined copy of the registry, has been received as secondary evidence of the contents of an indenture, not only as against parties to the deed, who have had no part in registering it, but also as against third persons; but, in all these cases, the evidence has been admitted under special circumstances, as for instance, where parties have been acting for a long period in obedience to the provisions of the supposed instrument, or where the deed has been recited or referred to in other documents admissible in the cause. The enrolment of a lease granted by the Crown is primary evidence, because the possessions of the Crown cannot be alienated but by matter of record; and the same rule applies to leases granted by the Duke of Cornwall, on account of the identity of interest which subsists between His Royal Highness and the Crown.'

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§ 420. It may occasionally be a question of some nicety to deter8 390 mine what instrument constitutes the primary evidence of a transac

1 R. v. Doran, 1 Esp. 127, per Ld. Kenyon, R. v. Kitson, 22 L. J., M. C. 118; Pearce & D. 187, S. C.; R. v. Gilson, R. & R. 138; R. v. Ellicombe, 5 C. & P. 522, per Littledale, J.; 1 M. & Rob. 260, S. C.

2 Molton v. Harris 2 Esp. 549, per Ld. Kenyon.

3 Doe v. Clifford, 2 C. &. Kir. 448, 452, per Alderson B.; D. of Devonshire v. Neill, 2 L. R., Ir. 132, 150.

* Boulter v. Peplow, 9 Com. B., 502, per Maule, J. See Brown v. Armstrong, I. R., 7 C. L. 130.

5 Wollaston v. Hakewill, 3 M. & Gr. 297; 3 Scott, N. R. 593, S. C.

6 See Sadlier v. Biggs, 4 H. of L. Cas. 435; Biggs v. Sadlier, 10 Ir. Eq. R. 522; Peyton v. M'Dermott, 1 Dru. & War. 198. See, also, Collins v. Maule, 8 C. & P. 502; Doe v. Kilner, 2 C. & P. 289.

7 Rowe v. Brenton, 8 B. & C. 755–758.

For other instances, see post,

& 1650, et seq.