CHAPTER III.

ON THE RULE THAT THE BEST EVIDENCE MUST BE GIVEN; ON PRIMARY AND SECONDARY EVIDENCE.

Ir is an inflexible rule, that—

XXI. The best evidence must be given.'

This rule is also stated thus :

The law requires the best evidence of which the nature of the thing is capable.

The principle of this rule rests on the presumption that if inferior evidence is offered, when evidence of a better and more original nature is attainable, the substitution of the former for the latter arises either from fraud, or from gross negligence which is tantamount to fraud. Thus, if a copy of a deed or will be tendered, while the originals exist and are producible, it is reasonable to assume that the person who might have produced the original, but who omits to produce it, has some private and interested motive for tendering a copy in its place. Here the deed or will are the best and primary evidence. The copy is secondary, and however indisputably it may be authenticated, it is inadmissible in evidence as long as the original can be produced.

It is sometimes difficult to determine what is primary and what is secondary evidence; and where both oral

1 B. N. P. 293; 1 Phill. 430, 431, and note to Kostor v. Reed, 6 B. & C. 21.

and written proofs of a fact are producible, the character of the fact must be investigated in order to ascertain which species of evidence is the best. The questions to be asked for the purpose are, which species is most original in its nature, and which is most likely to convey accurate information as to the matter in dispute. According to its proximity to, or remoteness from, the highest sources of moral certainty, evidence will be either primary or secondary.

Thus it is a rule that when a contract has been reduced to writing, the writing, as long as it exists, is the best and only evidence of the terms of the contract. Oral evidence is admissible to explain, but not to contradict it. But if the writing be destroyed; or if it cannot be found after diligent search; or if an adverse party, in whose hands it is, refuse to produce it, after having received due notice; then it is considered fair and reasonable, that any competent witness who is acquainted with the terms of the contract, should be allowed to give oral evidence of it.

On the other hand, if a prisoner has been committed for trial on the oral depositions of witnesses, it would be manifestly unfair to admit their depositions, even when reduced to writing and certified by the committing magistrate, to be given in evidence against the prisoner, as long as the original witnesses can be produced before a jury, confronted with the prisoner, and subjected to the cross-examination of the latter, or his counsel. It is therefore a Common Law principle that such depositions are secondary evidence which is admissible only in certain cases where the original deponents cannot be produced. This subject will be more fully discussed in a later chapter.

But there may be distinct sources of evidence, one of which may be oral, and another contained in writing. In such a case both will be primary, and therefore either will be admissible. Thus, a written receipt is primâ facie evidence of payment; but it is not the only evidence, because a written acknowledgment by a creditor that he has been paid, is not necessarily better

E

evidence than the oral evidence of a debtor who swears that he has paid the money. Accordingly the payment may be proved either by producing the creditor's receipt and proving his signature, or by the oral deposition of the debtor.

In The King v. Kingston-upon-Hull, to prove a subsequent settlement, the pauper was asked whether he had not occupied and paid rent for a tenement. The opposite counsel interposed, and asked if he had held under a written contract. It appeared that he had, and it was then submitted that the writing must be produced, and that the original question could not be answered. But the court held that it might.

Bayley, J. said :-"The general rule is, that the contents of a written instrument cannot be proved without producing it. But although there may be a written instrument between a landlord and tenant, defining the terms of the tenancy, the fact of tenancy may be proved by parol without proving the terms of it." And Littledale, J. :

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Payment of rent as rent is evidence of tenancy, and may be proved without producing the written instrument."2

But this class of exceptions to the general rule can be maintained only where the fact, of which oral evidence is admitted, is something extrinsic and collateral to the written contract.3 If it be in any degree of the essence and substance of the contract, then the writing must be produced; e. g., in a question of title, or where the terms of the tenancy are material.5 In the recent case of Yorke v. Smith, where a bill of sale was inadmissible for want of a stamp, it was held that oral evidence of the fact that there had been a sale

1 7 B. & C. 642.

2 See also Twyman v. Knowles, 22 L. J. 143, C. P.

3 R. v. Castle Morton, 3 B. & Ald. 590.

4 Cotterill v. Hobby, 4 B. & C. 465.

5 R. v. Merthyr Tidvil, 1 B. & Ad. 31. 621 L. J. 53, Q B.

was wrongly admitted. But if a contract be established by oral evidence, it is for the adverse party to prove that it was in writing. In R. v. Inhabitants of Rawdon,' Bayley, J. said :

"There can be no doubt that a party may, by keeping out of view a written instrument, make out by parol testimony a primâ facie case of tenancy, and that it then lies on the opposite party to rebut the primâ facie case so made out."

In an action to recover a written document oral evidence of its contents may be given, without previous notice to produce it. But where a prisoner was indicted for arson with intent to defraud a fire office, it was held that secondary evidence of the policy was inadmissible, as due notice had not been given to produce it.3

The subject of Secondary Evidence will be fully investigated when we treat of the mode of proving written instruments.

Where a writing is inadmissible as primary evidence, either because it purports to be a statement of a witness who may be called, or for want of a stamp, it may be handed to the writer for the purpose of refreshing his memory, and so practically be made evidence. The fiction of law in this case is that the witness, although he may not have the least recollection of the written facts, renews his remembrance of them by means of his own memoranda ; or that, at all events, the sight of his written statements recalls the conviction which he had of their accuracy at the time when they were made. But in this instance it will be observed that the principle that the best evidence must be given is maintained, at least in theory. The writing is inadmissible in its actual form; but it is received in a new character as the oral deposition of a sworn witness. In Maughan v. Hubbard and

1 8 B. & C. 710.

2 Jolly v. Taylor, 1 Camp. 143.

3 R. v. Kitson, 23 L. J. 118, M. C.

Another, to prove payment, a cash-book, containing an unstamped acknowledgment, was put into the hand of the writer, who said :-"The entry has my initial; I have no recollection that I received the money; I know nothing but by the book; but, seeing my initials, I have no doubt that I received the money." Lord Tenterden, C. J., said:"Here the witness, on seeing the entry signed by himself, said that he had no doubt that he had received the money. The paper itself was not used as evidence of the receipt of the money, but only to enable the witness to refresh his memory; and when he said that he had no doubt he had received the money, there was sufficient parol evidence to prove the payment."

Fraud is the foundation of the rule by which the best evidence is required; and secondary evidence is received wherever its substitution for primary evidence does not create a reasonable presumption of fraud. Thus it seems that the substance of old records may be proved by a witness who has examined them.2 Inscriptions on tomb-stones, escutcheons, and walls, may be proved by witnesses and examined copies.3 But Dugdale's Monasticon Anglicanum was rejected as evidence to show that the Abbey de Sentibus was an inferior abbey, because the original records were producible.4

It is held that the rule relates not to the measure and quantity of evidence, but to the quality. It is not necessary to give the fullest proof of which a fact may admit. Thus, in the cases where attesting witnesses must still be called, it is sufficient to call one only; or, in the event of the death of all the witnesses, it is sufficient to prove the handwriting of any one.6

1 8 B. & C. 14.

2 Rowe v. Brenton, 3 M. & R. 312.

3 Mortimer v. M'Callam, 6 M. & W. 68.

4 Salk. 281.

5 Stark. 643.

6 Stark. 504 and 519; 17 & 18 Vict. c. 125, s. 26.