Where place must be proved in order to give the Court jurisdiction, a variance is fatal. Thus in a trial before the Supreme Court for an assault, if it turned out that the assault was committed on the high seas, the indictment could not be supported, unless it were alleged to be within the admiralty jurisdiction. So in the Mofussil Courts, place is frequently material in order to raise the jurisdiction. See Regulation II. of 1802, Sections V, XII. And so where an offence is local, as a contempt in open Court, it is not supported by proof of a contempt of a judicial officer not in Court.(*)

§ 618. An allegation of value falls under the same rule. On a trial for theft, it is not material to prove the value of the article as laid; though the article must be proved to be of some value, as there cannot be larceny of things of no value. But in some cases value becomes material, as for instance on a charge of stealing in a dwelling house above the value of 50 Rupees.(?)

§ 619. It is a general rule that all matter of description must be proved as laid. If a man be charged with stealing brass pots, he cannot be convicted in proof of having stolen silver pots. If the matter be described with greater peculiarity than necessary, it must be proved as laid. It cannot be struck out as surplusage. (m) In the case above put, it would have sufficed to charge the prisoner with stealing pots, simply; and then proof of silver or brass pots would have sufficed for his conviction. But to charge him with stealing pots of a description which he knows he did not take, as for instance silver or gold pots, might mislead him as to his defence; and if the description, though not essential to support the charge, be stated with needless particularity, the prosecutor is bound to prove it as he himself has elected to lay it.

(k) See Regulation XIII. of 1832, Section VII. I was concerned in an appeal in the Sudder Court, on miscellaneous petition, in a case wherein a judge had fined an officer of Court 10 Rupees for contempt of Court. It appeared that the alleged offence was committed more than a mile from the Court, and the fine was remitted. Being on M. P. the case is not reported.

() As to these points of time and value, see Act XVI. of 1852, Section XXI. (applicable to Supreme Courts only.) This Act should be studied. It gives large salutary powers of amendment to the judge at the time of the trial, and provides against the prevalence of sundry technical objections. In exercising the powers of amendment, the Court of course will take care that the effect of the indictment is not thereby altered in substance, so as to affect the defence which the prisoner would have made, or the case which must have been made against him in order to raise it. The English statutes in pari materia are of Geo. 4, c. 15, 11 & 12 Vic. c. 46, s. 4, 12 & 13 Vic. c. 45, s. 10, 14 & 15, Vic. c. 100.

(m) What is surplusage is rather a matter of pleading; but it should be observed here that no proof need be offered of what is clearly surplusage. For instance where a prisoner was charged with committing arson in the night time, no proof was necessary of the fact having been committed at night, for arson is equally a crime whenever committed. See R. v. Minton, 2 East, P. C. 1021.

§ 620. So the description of the person is sometimes material; as on a charge of larceny or embezzlement by a servant. Here, it is 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.(0)

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, (P) 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 vivâ voce examination in open

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

(0) 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.

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

BEST EVIDENCE MUST BE PROduced.

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op

Court, on oath, and subject to cross-examination, coupled with the portunity afforded the judge of observing his demeanor, &c. offers better means of testing and searching the veracity and credibility of 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,(2) 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 matters 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 Plaintiffs 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. This 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 námeh, and did not produce the deed, alleging that it was lost, and giving various frivolous reasons for such loss, he was nonsuited, with all costs against him. ZaminCase 12 of 1815. 1 Mad. Dec. 133.-Scott,

dár of Carvatenagar v.

Greenway & Ogilvie."

(2) 5 Bing. p. 151.

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.

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 memories 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 trusts 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 it 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 over anxiety 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 deponents, were not procurable. It is to this that we must attribute the exclusion of various classes of witnesses by the laws of other nations. (") Thus by the constitutions of the Greek Emperor, Pagans were excluded from giving evidence altogether; Jews from bearing testimony against 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 Mahomedan; thus both the Mahomedan and Hindu laws exclude the testimony of woman; thus the Roman and Medieval 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.(s) 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:

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Confining our attention therefore to evidence in causd-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 of:' and similar language is to be found in most of our modern books. The important rule in question has,

(r) See Best, § 63-4.

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