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not always se

condary to

plaintiff must be nonsuited. But, in many instances, the mere Parol evidence existence of written evidence will not exclude independent parol evidence to prove the same fact. Thus, where upon letting pre- written. mises to a tenant, a memorandum of agreement was drawn up, the terms of which were read over and assented to by him, and it was then agreed that he should on a future day bring a surety and sign the agreement, it was held, that the existence of this memorandum did not preclude parol evidence of the terms of the letting.(n) So where a verbal contract is made for the sale of goods, and it is put into writing afterwards by the vendor's agent, for the purpose of assisting his recollection, but not signed by the vendor, the terms of the contract may be given in evidence on the part of the vendor, without producing the writing.(o) Where a party paying money has taken a receipt, the circumstance of the payment having been acknowledged in writing does not make such writing exclusively primary evidence of the fact; but he may shew the payment by a person who saw the money paid, or by the admission of the other party to that effect. (p) If several persons be witnesses of the same fact, and one of them to assist his memory makes a memorandum of it, this circumstance would not exclude the testimony of the other witnesses. (g) So though an entry of a marriage may have been made in the parish register according to the marriage act, such entry does not become the only primary evidence of the marriage, but it may also be proved by any one who witnessed it; and, indeed, in all cases, except actions for criminal conversation, and indictments for bigamy, by reputation. (r) Where in order to prove a demand, for the purpose of bringing an action of trover for a lease, a witness stated that he had verbally required the defendant to deliver up the lease, and at the same time served a notice in writing on him to the same effect; Lord Ellenborough held, that the written notice need not be produced for the notices being concurrent and independent, either might be proved as evidence of the conversion.(s)

The above are instances of modes of proof, which, notwithstand- Instances of ing the existence of other evidence which might be more satis- what is not the factory, are yet in their nature primary, and consequently avail- best possible able. It may be useful to mention also, some examples of what

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(n) Doe v. Cartwright, 3 B. & A. 326. See also Wilson v. Bowie, 1 Carr. & P. 8.

(0) Dalison v. Stark, 4 Esp. 163. (p) Rambert v. Cohen, 4 Esp. 213. 1 East. 460. Jacob v. Lindsay. And if the receipt were on unstamped paper, it may be used by a witness, who saw it given, to refresh his memory, 4 Esp. 213.

(q) 1 Stark. Ev. 394. So in Layer's case for high treason, Mr. Stanly, an under secretary of state, gave evidence of L.'s confessions, upon his examination before the council, which though taken in writing was not produced. 12 Vin. Abr. 96. tit. Evidence, A. b. 623. pl. 7.

(r) Morris v. Miller, 1 W. Bl. 632. It may also be observed that in order to make the production of the writing necessary, it must appear to relate to the matter in question. Thus where parol evidence is offered to prove a tenancy, it is not a valid objection, that there is some written agreement relative to the holding, unless it should also appear that it was made between the parties as landlord and tenant, and that it continues in force to the very time to which the parol evidence applies. Doe v. Morris, 12 East. 237. Doe v. Pearson, 12 East. 239 n. Rosc. Ev. 6.

(s) Smith v. Young, 1 Campb. 439.

evidence.

Insurance.

record.

Acts of a
Court.

Commence

is not the best possible evidence, and therefore inadmissible. Upon an indictment for having set fire to a house, with intent to defraud an insurance company, the policy is the best evidence to prove that the house was insured, and an entry to that effect in the books of the insurance office is but secondary evidence. (t) To prove the oaths required by the toleration act, parol evidence was held secondary, and inadmissible: because they were matters of Matters of re-record in the court where they were sworn. (u) Courts of record speak by means of their records only; and, therefore, the acts of a Court can be proved in no other manner. Thus, parol evidence is inadmissible to shew the day on which a trial at nisi prius took place; for it should be proved by the production of the nisi prius record (v) So, if it be necessary to prove that a trial took place, as in the case of a prosecution for perjury committed on the trial of a cause at nisi prius, that cannot be done by parol evidence, but the record should be produced; or at least, the postea. (0) And even where the transactions of courts, which are not technically speaking, of record, are to be proved, if such courts preserve written memorials of their proceedings, those memorials are the only authentic means of proof which the law recognizes. (r) On an indictment on the 8 & 9 W. 3. c. 26. (for high treason by ment of prose having a mint die in possession) it is incumbent on the prosecutor to shew, that the prosecution was commenced within three months; and parol evidence that the prisoner was apprehended for treason respecting the coin within three months, (the offence appearing to have been committed above three months before the indictment preferred) was held by the twelve Judges to be insufficient, the warrant to apprehend, or to commit, not being produced. (y) Parol evidence is not admissible of the declaration of a prisoner before a magistrate, where the examination has, conformably to the statute, been taken in writing. (2) In the case of Williams v. the East India Company, (a) the question was, whether the agent of the defendants, who were the freighters of the plaintiff's ship, had apprized the plaintiff or his officers of the inflammable and dangerous nature of a quantity of Roghan, which had been stored in the ship, and which ultimately occasioned its destruc- tion. It was the duty of the conductor of military stores to convey goods on board the ship, and of the chief mate to receive them: the chief mate was dead, and no evidence was given of what passed between him and the conductor of the stores; but the captain and second mate proved that no communication had been made to them. Upon this evidence, the plaintiff who, it was held, was bound to prove the negative, was nonsuited by Lord Ellenborough, on the ground that the best evidence possible

'cution.

Examination

before a magistrate. Negative proof

of notice.

(t) Rex v. Doran, 1 Esp. 127. Ante, 496. And therefore if the policy cannot be received in evidence for want of a proper stamp, the indictment cannot be supported, Rex v. Gilson, Russ. & Ry. C. C. R. 138. Ante, p. 496.

(u) Rex v. Hube, Peake N. P. C. 132. Ante, Vol. I. p. 281.

(v) Thomas v. Ansley, 6 Esp. 80.,

by Lord Ellenborough. Rex v. Page, 6 Esp. 83., by Lord Kenyon. Tidd.

Prac. 869.

(w) Ante, p. 549.

(x) Stark. Ev. 1043.

(y) Rex v. Phillips and another, Russ. & Ry. C. C. R. 369.

(z) See ante, p. 656.
(a) 3 East. 192.

proof of con

sent.

of the want of notice had not been produced, viz. the evidence of the conductor of stores. The Court afterwards affirmed the nonsuit, and Lord Ellenborough, in delivering their opinion, said, "The best evidence should have been given of which the nature "of the case was capable. The best evidence was to have been "had, by calling, in the first instance, upon the persons immedi"ately and officially employed in the delivering, and in the re"ceiving of the goods on board, who appear in this case to have "been the first mate, on the one side, and the military conductor, "the defendant's officer, on the other; and though the one of "these persons, the mate, was dead, that did not warrant the "plaintiff in resorting to an inferior and secondary species of <6 testimony, (namely, the presumption and inference arising from 66 a non-communication to the other persons on board,) as long "as the military conductor, the other living witness, immediately "and primarily concerned in the transaction of shipping the "goods on board, could be resorted to; and no impossibility of "resorting to this evidence, the proper and primary evidence on "the subject, is suggested to exist in this case." In a case before Negative Mr. Justice Lawrence, on an indictment on the statute 42 Geo. 3. c. 107. s. 1. (repealed by stat. 7 & 8 Geo. 4. c. 27.) which made it felony to course deer on an enclosed ground, without the consent of the owner of the deer, that learned Judge thought it necessary to call the owner of the deer, for the purpose of disproving his consent; and the owner not being called, the jury were directed to find a verdict of acquittal. (y) But this decision has been overruled by subsequent authorities of the greatest weight: and the rule may now be considered settled, that in cases where it is necessary to prove the non-consent of the owner of the property which is the subject of the charge in the indictment, the testimony of the owner himself is not exclusively primary evidence of the non-consent; but it may be inferred from the conduct of the prisoner, and the circumstances under which the act was done. In the case of Rex v. Hazy and Collins, (2) the prisoners were indicted on the stat. 6 Geo. 3. c. 36. (repealed and re-enacted with alterations by stat. 7 & 8 Geo. 4. c. 27 & 30.) for lopping and topping an ash timber tree, "without the consent of "the owner. The owner, Sir J. Aubrey, had died before the trial. The offence was committed at eleven o'clock at night, on the 18th of February. Sir J. Aubrey died on the first of March following, having given orders for apprehending the prisoners on suspicion. The land steward was called to prove, that he himself never gave any consent; and, from all he had heard his master say, he believed that he never did. Bayley, J., told the jury, that they must be perfectly satisfied that the prisoners had not obtained the consent of the owner of the tree, (namely, Sir. J. Aubrey,) that they might lop and top it; and left it to them to say, whether they thought there was reasonable evidence to shew that in fact he had not given any such permission. His Lordship adverted to the time of night when the offence was committed, and to the circumstance of the prisoner's running away when detected, as evi

(y) Rex v. Rogers, 2 Campb. 654.

VOL. II

2 x

(z) 2 Carr. & P. 458.

2. What is suf

for the admission of secondary evidence.

dence to shew, that the consent required had not in fact been given. And in three cases, reserved at once for the opinion of the twelve Judges, it was held, that though there must be some evidence to negative the owner's consent, his non-consent may be inferred from the circumstances, or proved by his agents. The first of the three cases was, Rex v. Allen, an indictment for killing a fallow deer in the park of the forest of Waltham, without the consent of the owner, the King; the second, Rex v. Argent, for entering a yard adjoining and belonging to the dwelling house of John Greenwood, a quaker, and taking fish out of a pond there without the consent of the owner; and the third, Rex v. Chamberlain, for taking fish in Claremont Park belonging to Prince Leopold, without his consent. The offence in each case was committed under circumstances which the learned Judge who tried it thought quite sufficient to warrant the jury in finding the nonconsent of the owner, admitting the onus of proving such nonconsent to lie on the prosecutor: but in consequence of the decision in Rex v. Rogers, above-mentioned, further evidence was gone into, by calling the persons engaged in the management of the property, but not the owners. The Judges held the conviction in each of the cases right. (a)

2dly, What is a sufficient ground for the admission of secondary ficient ground evidence. If the primary evidence be lost or destroyed, or if it be in the hands of the adverse party, then upon proof of the loss or destruction in the former case, and of the fact of its being in such possession, and of reasonable notice to produce it at the trial having been given to the other party, in the latter case, secondary evidence is admissible. (b) Where secondary evidence is offered, in consequence of the loss of the primary evidence, in order to establish such loss, it must be proved that diligent search has been made in those quarters from which the primary evidence was likely to be procured. The case of Kennington v. Inglis, (c) afficient proof of fords an example of what is considered a sufficient search for such

Where the primary evidence is lost.

What is suf

loss.

(a) Ry. & Mood. C. C. R. 156.

(b) Besides these two instances, of the loss or destruction of the primary evidence, and it's being in the hands of the adverse party, it should seem that secondary evidence is admissible in all cases where it is apparent that such secondary evidence is the best, which the party, without any default, has it in his power to produce: for then the presumption of a fraudulent suppression of the better evidence, which is the foundation of the rule, must cease. Thus, if an attesting witness to a written instrument, after his attestation, becomes incompetent from interest, proof of his handwriting is admissible, Godfrey v. Norris, 1 Stra. 34. So if he becomes incompetent from infamy, Jones v. Mason, 2 Stra. 833. Ante, p. 597. The defendant, in an action of trespass for breaking hatches, offered in evi

dence articles of agreement, dated in 1745, between persons standing in the respective situations of the plaintiff and defendant. To produce this deed, the defendant's attorney was called, who said, he had received it from the son of the owner of the defendant's land. This evidence was objected to as insufficient; then the son of the owner was called, who said he had received it from his father that morning; this being also objected to, the father was called; upon which the plaintiff examined him upon the voire dire, and objected that he could not be a witness, being interested; whereupon Holroyd, J., held, that as the father was objected to, the next best evidence had been given, and admitted the deed, Card v. Jeans, Dorchester, 11th March, 1819, Manning's Dig.

375.

(c) 8 East. 273.

a purpose.

There it was incumbent on the plaintiff to prove the loss of a licence to trade; and a witness, who had been secretary to the governor of a colony, said it was his practice to destroy, or put aside such licences among the waste papers of his office, as not being of further use, and he supposed he had disposed of the licence in question, (which after having been granted by the governor, was returned to the witness,) in the same manner as other licences for ships whose voyages had been performed: but he was not sure it was destroyed. He further stated, that he had been applied to for the licence, and had searched for it: but he did not recollect whether he found it or not; though he did not think that he had found it. Lord Ellenborough, in delivering the judgment of the Court, (d) said, "We are of opinion, that this evidence "satisfies what the law requires in respect of search; and establishes "with reasonable certainty, the fact of the licence being lost. It "was not to be expected that the witness should be able to speak "with more confident certainty to a fact to which his attention "would not be particularly drawn at the time, on account of any "importance being supposed to belong to it." Another instance

of what has been considered a sufficient search to establish a loss, occurs in the case of Brewster v. Sewell. (e) There it became necessary to account for the non-production of a policy, and it was proved that it had been effected about seven years before, and having become useless on account of a second policy being effected, it had probably been returned to the plaintiff; and the clerk of the plaintiff's attorney proved, that a few days before the trial of the action, he had searched for it in the plaintiff's house, not only in every place pointed out by the plaintiff, but in every place which he thought likely to contain a paper of this description; it was held that this was sufficient evidence to entitle the plaintiff to give secondary evidence of the contents of the policy. In this case Abbott, C. J., observed, that where the loss or destruction of an instrument may almost be presumed, very slight evidence of its loss or destruction will be sufficient. (f)

But if it be proposed to give secondary evidence of a written instrument, and such instrument is traced into the possession of a particular person, the loss cannot be established without calling him as a witness; for it will not be enough to prove that he was applied to for the instrument, and upon such application, said that he could not find the same, nor did he know where it was. Thus, where it was proved that an indenture of apprenticeship was of two parts, that one had been destroyed, and that the other had come to the hands of a Miss Taylor, who when asked for it, said she could not find it; but she was not subpoenaed: this was held insufficient evidence of the loss. (g) The same principle applies

(d) 8 East. 289.

(e) 3 B. & A. 296.

(f) See also Freeman v. Arkell, 2 B. & C. 494., where Bayley, J., expressed himself to the same effect. And for further examples of sufficient searches, see Rex v. North Bedburn, Cald. 452. Rex v. Johnson, 7 East.

65. Rex v. Morton, 4 M. & S. 48.
Bligh v. Wellesley, 2 Carr & P. 400.
Rex v. East Farleigh, 6 D. & R. 147.

(g) Rex v. Castleton, 6 T. R. 236.
See also Williams v. Younghusband,
1 Stark. 139.; and Parkins v. Cob-
bett, 1 Carr & P. 282. But where, in
order to establish a settlement by ap-

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