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printed copies of it at a certain place and time, or heard it performed, in order to disprove the originality ; such copies, if any, must be produced and proved, or inability to produce them shown. "Boosey v. Davidson, 13 Q. B. 257.

But it is not universally necessary, where the matter to be proved has been committed to writing, that the writing should be produced. If, for instance, the narrative of an extrinsic fact has been committed to writing, the fact may yet be proved by oral evidence. Thus, a receipt for money will not exclude oral evidence of the payment. Rambert v. Cohen, 4 Esp. 213. So, where, in trover, the witness stated that he had orally required the defendant to deliver up the property, and at the same time served upon him a notice in writing to the same effect, Ld. Ellenborough ruled that it was not necessary that the writing should be produced. Smith v. Young, 1 Camp. 439. In the same manner, what a party says, admitting a debt, is evidence, although the promise to pay is reduced into writing. Singleton v. Barrett, 2 C. & J. 369. So where the fact to be proved was, that a certain person occupied land so as to gain a settlement by 13 & 14 Car. 2, it was held that, although there was a written demise, the fact might be proved by oral evidence. R. v. Holy Trinity, 7 B. & C. 611; 1 M. & Ry. 444. But the parties to the lease, the amount of rent, and the terms of the tenancy can only be shown by the writing. S. C. ; Strother v. Barr, 5 Bing. 136 ; Ř. v. Merthyr Tidvil, 1 B. & Ad. 29. In an action inter alios, the landlord cannot be called to prove the rent due without producing the written lease, if there is one. Augustien v. Challis, 1 Exch. 279. And the fact of a tenancy under a particular person, cannot be so proved, where there is a writing. Doe v. Harvey, 8 Bing. 239; semb. contra, per Alderson, B., in Augustien v. Challis, supra. Although there exists a deed of partnership, yet the fact of partnership may be proved by the acts of the parties. Alderson v. Clay, 1 Stark. 405. The fact of the employment of an agent to sell may be proved by oral evidence, though the terms of his commission are contained in a letter. Semb. Whitfield v. Brand, 16 M. & W. 282. Where it is necessary to prove a marriage, the entry in the parish register is not the only evidence; but the fact may be proved by the testimony of persons who were present and witnessed the ceremony, or by general reputation. Evans v. Morgan, 2 C. & J. 453 ; R. v. Wilson, 3 F. & F. 119; Campbell v. Campbell, L. R., 1 H. L. Sc. 201, per Ld. Cranworth. And where evidence of reputation was given, proof of a fiat for a special licence and of the affidavit on which it was founded, and of an entry in a parish register stating a private marriage in a house, purporting to be signed by the parties, was admitted to confirm the other evidence. Doe d. El. of Egremont v. Grazebrook, 4 Q. B. 406. On an indictment for an unlawful assembly, the inscriptions and devices on banners displayed at a public meeting may be proved by oral evidence, and it is not necessary to produce the banners themselves. R. v. Hunt, 3 B. & A. 566. And the transactions and proceedings of such a meeting may be proved by oral evidence, as resolutions entered into ; although it should appear

that those resolutions were read from a paper. Id. 568. So an inscription on a fixed monument, or, writing on a wall, may be proved by oral evidence. Doe d. Coyle v. Cole, 6 C. & P. 359 ; Mortimer v. M'Callan, 6 M. & W. 68, 72, per cur.; Sayer v. Glossop, 2 Exch. 409 ; Bartholomew v. Stephens, 8 C. & P. 728.

The admission of one of the parties to a suit is primary evidence as against him, and the reported cases which favour a contrary opinion must be considered as overruled by Slatterie v. Pooley, 6 M. & W. 664, where it was decided that oral admissions are evidence against the party making them, although they relate to the contents of a written instrument. See also Newhall v. Holt, Id., 662; and Henman v. Lester, 12 C. B., N. S. 776 ; 31

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L. J., C. P. 366. So a copy of a document delivered by a party is primary evidence against him of that document. See Stowe v. Qiterner, L. R., 5 Ex. 155, 159 ; and further under tit. Admissions, post, p. 61, et seq.

The proper evidence of all judicial proceedings is the production of the proceedings themselves or of examined (or office, Rules, 1883, 0. xxxvii.r. 4, vide post, p. 92)copies of them. Thellusson v. Shedden, 2 N. R. 228. It has even been held that oral evidence was not admissible of the day on which a cause came on to be tried; as the proper proof is the postea. Thomas v. Ansley, 6 Esp: 80; R. v. Page, Id. 83. But as adjournments during sitting are not noticed on the record, it may well happen that oral evidence is the best and only evidence of the actual day of trial; Roe d. Wrangham v. Hersey, 3 Wils. 274; Whittaker v. Wisbey, 12 C. B. 52 ; 21 L. J., C. P. 116 ; though the record may be the only legal evidence of the proceeding at Nisi Prius recorded in it. Where, to prove that the plaintiff had been discharged under the Insolvent Act, it was proposed to give in evidence his admission to that effect, Ld. Ellenborough held it insufficient. Scott v. Clare, 3 Camp. 236 ; but see the cases cited under tit. Admissions, post, p. 61. So oral evidence is not admissible to prove the taking of oaths required by the Toleration Act, which must appear by the records of the Court where the oaths were taken. R. v. Hube, Peake, 132. Where the deposition of a witness in a case of misdemeanor was taken under 7 Geo. 4, c. 64, s. 3, and the plaintiff in an action against the witness offered oral evidence of an admission made by him in such deposition, the Court held such evidence to have been rightly rejected. Leach v. Simpson, 5 M. & W. 309.

The counterpart of a deed is admissible as original or primary evidence against the party executing it, and those claiming under him, though no notice to produce the other part has been given. Burleigh v. Stibbs, 5 T. R. 465 ; Roe d. West v. Davis, 7 East, 363; Houghton v. Kænig, 18 C. B. 235 ; 25 L. J., C. P. 218; so a duplicate original may be adduced in evidence without notice to produce the other original. Colling v. Treweek, 6 B. & C. 394, 398 ; and in the case of printed matter each copy of the same impression is an original. R. v. Watson, 2 Stark. 129.

Though a written contract must be produced in an action founded on it, yet a mere memorandum, not signed by the parties nor intended to be final, will not prevent the introduction of oral evidence of a contract. Doe d. Bingham v. Cartwright, 3 B. & A. 326 ; and see Hawkins v. Warre, 3 B. & C. 698. So where an oral contract is made for the sale of goods, and is put into writing afterwards by the vendor's agent for the purpose of assisting his recollection, but is not signed by the vendee, the contract may be proved by oral evidence. Dalison v. Stark, 4 Esp. 162. A vendee may give evidence of warranty, although a note of the sale and receipt of the money, given by the vendor to the vendee after the conclusion of an oral contract, contained no notice of any warranty. Allen v. Pink, 4 M. & W. 140. So of the memorandum of the terms of a lease, not signed by the lessor, but only by the wife of the lessee. R. v. S. Martin's, Leicester, 2 Ad. & E. 210. See also R. v. Wrangle, Id. 514. The case of Whitford v. Tutin, 10 Bing. 395, may seem hardly distinguishable in principle from some of the above. There it was held that a secretary, who accepted an engagement under a society on the terms contained in a resolution entered in the society's book, was held bound to produce the book in an action for his salary, though not a party to the resolution. The distinction seems to be, that the hiring was expressly upon the written terms, though the writing was not in itself a contract. The general proposition established by the cases seems to be that a mere unaccepted proposal, executory memorandum, private minute or unauthorised entry of one of the parties, will not exclude oral proof. But where an oral contract expressly incorporates, or refers to, a written paper as part of its terms, that paper ought to be produced in order to prove those terms. See Hill v. Nuttall, 17 C. B., N. S. 262 ; 33 L. J., C. P. 303.

In order to render the production of a writing necessary, it must appear to relate to the matter in question. Thus where oral 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 also appears that the agreement was between the parties as landlord and tenant, and that it continues in force at the very time to which the oral evidence applies. Doe d. Wood v. Morris, 12 East, 237 ; Stevens v. Pinney, 2 B. Moore, 349. Oral evidence of the terms of a demise is admissible, although the witness called to prove them states that the lessor read them from some paper held in his hand at the time, but which was not shown to, or signed by the lessee. Trewhitt v. Lambert, 10 Ad. & E. 470.

If, in an action for work and labour, it appears that the claim is for extras on a written contract, the written contract must be produced. Vincent v. Cole, M. & M. 257 ; Buston v. Cornish, 12 M. & W. 426. But if an entirely separate order be given for the extras, then production of the written contract is not necessary. Reid v. Batte, M. & M. 413.

If oral evidence of an agreement is given at a trial, the party desirous of excluding it may at once interpose and ask the witness whether it was not in writing; if the witness deny this, he may then give evidence on a collateral issue to show that the agreement was in writing ; Cox v. Couveless, 2 F. & F. 139; or he may reserve the question for cross-examination, and may inquire as to the contents of the writing, so far as may be necessary, to show that oral evidence is inadmissible. Curtis v. Greated, 1 Ad. & E. 167. It is not enough to prove, by a witness, that the solicitor of the opposite party has admitted in conversation that there was a written agreement on the subject; for a solicitor is not an agent of his client to make such admissions. Watson v. King, 3 C. B. 608.

Whether the existence of a writing is sufficiently proved to exclude oral evidence is a question for the judge.

SECONDARY EVIDENCE.

Secondary evidence is admitted in cases where the principle which excludes it, namely, the supposed existence of better evidence behind, which it is in the power of the party to produce, does not apply. Thus, it is admissible if a ground be laid for it by proving that better evidence cannot be obtained. Rainy v. Bravo, L. R., 4 P. C. 287. In the case of a lost deed, the loss or destruction must be proved ; and if it appears that two or more parts have been executed, the loss of all the parts should, it is said, be proved, otherwise "perhaps” a copy will not be admitted. B. N. P. 254 ; and see R. v. Castleton, 6 T. R. 236; and Munn v. Godbold, 3 Bing. 292, 294, per Best, C. J. So where an instrument is in the possession of the opposite party, oral evidence of its contents may be given, on proof of the service of a notice to produce it. All the proper sources from which the primary evidence can be procured must be exhausted before secondary evidence can be admitted. Thus, the party who has the legal custody of an instrument must be applied to. R. v. Stoke Golding, 1 B. & A. 173. So where a letter, which had been in the possession of the defendant, was filed in the Court of Chancery pursuant to an order of that court, it was ruled that secondary evidence of it was not admissible, it being in the power of either party to produce it on application to the court. Williams v. Munnings, Ry. & U. 18. The construction of a lost document, though proved by oral evidence, is for the judge, where the veracity of the witness Proof of Loss of Document,

5 as to its contents is not questioned. Berwick v. Horsfall, 4 C. B., N. S. 450 ; 27 L. J., C. P. 193.

The wrongful refusal of a third party to produce a document in his possession on subpoenâ duces, will not let in oral evidence of it. Jesus College v. Gibbs, 1 Y. & C. 156; R. v. Llanfaethly, 2 E. & B. 940 ; 23 L. J., M. C. 33. But where a document is in the hands of a party, as a solicitor, who is called to produce it, but declines to do so, relying upon his privilege or upon his lien, secondary evidence of its contents may be given. Marston v. Downes, 1 Ad. & E. 31 ; R. v. Leatham, 8 Cox C. Č. 498; 30 L. J., Q. B. 205, per Hill, J.; Doe d. Gilbert v. Ross, 7 M. & W. 102. In the last case, it was suggested by the court that, where the solicitor refuses on the ground of privilege, it may perhaps be necessary to show that his client also objects to the production. *It has, however, been ruled that where the solicitor has it in court, but states that he is instructed by his client (a third person) to refuse it, it is unnecessary to go further and prove, by the client in person, that he objects. Phelps v. Prew, 3 E. & B. 430 ; 23 L. J., Q. B. 140. See also Newton v. Chaplin, 10 C. B. 356 ; 19 L. J., C. P. 374. The secondary evidence cannot be received unless the solicitor has been duly served with a subpoenâ duces ; Hibberd v. Knight, 2 Exch. 11; or has the document in court, and refuses on demand to produce it. Semb. Dwyer v. Collins, 7 Exch. 639 ; 21 L. J., Ex. 225, cited post, p. 9. In Boyle v. Wiseman, 10 Exch. 647 ; 24 L. J., Ex. 160, it was considered by the judges that where a private letter was in the hands of a person resident abroad, and out of the jurisdiction of the English courts, who refused to part with it or produce it on the trial of a cause, the contents might be proved by secondary evidence, if all reasonable exertions have been made to produce the original. In such a case, the person requiring the production should disclose to the

proprietor of the instrument the object of the application.

See Brown v. Thornton, 6 Ad. & E. 185 ; Quilter v. Torss, 14 C. B., N. S. 747.

The contents of documents of a public nature, required by law to be kept, may be proved by examined (and in some cases by office or certified) copies without accounting for the non-production of the original document; vide Proof of documents by copies, post, pp. 91 et seq.; and the same rule applies to public registers and documents kept abroad ; vide post, p. 92. But in the case of a private document filed in a foreign court, it is necessary to prove that an unsuccessful application has been made to the legal custodian thereof, viz., to the court, before secondary evidence is admissible ; an application to an inferior officer of the court, though he have the actual custody of it, is not enough. Crispin v. Doglioni, 32 L. J., P. M. & A. 109.

In some cases secondary evidence of oral testimony is admitted ; as where the testimony of a witness on a former trial is admitted on another trial without producing him in person. The circumstances under which this may be done will be found post, p. 109. So, where the evidence of a witness is taken out of court by affidavit or deposition, by proper authority ; vide Proof by affidavits or depositions, post, p. 174.

Proof of loss of document.] Where secondary evidence is offered in consequence of the loss of the primary evidence, it must be shown to the satisfaction of the judge that diligent search has been made in those quarters in which the primary evidence was likely to be procured. Where the publisher of a paper, in which a libel had appeared, stated that he believed the original was either destroyed or lost, having been thrown aside as useless, this was held sufficient to let in secondary evidence. R. v. Johnson, 7 East, 66. So where a licence to trade had been returned to the secretary of the governor who had granted it, and the secretary swore that it was his custom to destroy or put aside such licences as waste paper, and that he had disposed of the licence in question in the same manner as other licences ; that he had searched for it, but had not found it, the court held the loss sufficiently proved. Kensington v. Inglis, 8 East, 278. So where 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, had probably been returned to the plaintiff; and the clerk of the plaintiff's attorney searched for it in the plaintiff's house, not only in every place pointed out by the plaintiff, but in every place likely to contain a paper of this description, the search was held to be sufficient. Brewster v. Sewell, 3 B. & A. 296. As a general rule, to admit secondary evidence of a deed of apprenticeship, proof should be given that a search has been made for the original instrument among the papers both of the master and apprentice. R. v. Hinchley, 3 B. & S. 885 ; 32 L.J., M. C. 158. But in that case it was held that long after the expiration of the term of apprenticeship, the deed was probably in the custody of the apprentice, as he was then most interested in it, and that a search among his papers was sufficient. So in another settlement case, where it was proved that one part only of an indenture had been executed, that the pauper and master were both dead at the time of trial, and that an inquiry for it had been made of the pauper shortly before his death, who said that the indenture had been given up, to him after the expiration of the apprenticeship, and that he had burnt it; and that an inquiry had also been made of the daughter and sole executrix of the master, who said she knew nothing about it, it was held that a sufficient inquiry had been made to render parol evidence of the contents admissible. R. v. Morton, 4 M. & S. 48. See R. v. Piddlehinton, 3 B. & Ad. 460. But where the only evidence of loss consisted of the declarations of the deceased pauper, who stated that the indenture had been given back to him, and worn out, parol evidence was held inadmissible. Ř. v. Rawden, 2 Ad. & E. 156.

When the party, in whose possession the instrument was, is alive, it has in some cases been held that he ought to be called, and his declarations are not admissible. R. v. Denio, 7 B. & C. 620; R. v. Castleton, 6 T. R. 236. But, generally, the declarations of the persons applied to are received in evidence, to show that due inquiry and search has been made, and the judge determines whether the search is sufficient. R. v. Kenilworth, 7 Q. B. 642; R. v. Braintree, 1 E. & E. 51 ; 28 L. J., M. C. 1. And the inclination of the court in R. v. Saffron Hill, 1 E. & B. 93 ; 22 L. J., M. C. 22, seems to have been that it is not in every case necessary to call the person applied to as a witness ; it is a question for the judge, subject to review by the court.

Where the loss or destruction of the paper is probable, very slight evidence of its loss or destruction will be required, and a useless paper will be presumed to be destroyed. R. v. E. Farleigh, 6 D. & Ry. 153; and per Abbott, C. J., Brewster v. Sewell, 3 B. & A. 296, and cases cited, supra. Thus, where depositions had been delivered to the clerk of the peace or his deputy, it appearing to be the practice to throw them away as useless, slight evidence of a search for them was held sufficient, and the deputy need not be called, it being his duty to deliver them to his principal. Freeman v. Arkell, 2 B. & C. 496. A constable, who levied under a warrant issued by the defendant, and was entitled to the custody of it, said that he had deposited it in his office, but was unable, upon search, to find it : held that secondary evidence of it was admissible against the defendant, though no notice to produce was served on him. Fernley v. Worthington, 1 M. & Gr. 491. The degree of diligence to be used in searching for a deed must depend on the importance of the deed, and the particular circumstances of the case. Per Cur. in Gully v. Bp. of Exeter, 4 Bing. 298. If not found in

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