Those principles have been now selected and illustrated according to the best of the present writer's judgment. It is impossible to exhaust such a subject in a treatise which is confined to practical and general principles: but something, it is hoped, has been done in this chapter to act up to the spirit of its object. PART II. ON WRITTEN EVIDENCE. CHAPTER I. In the first part of this work the general principles of evidence, and their application to the issue, have been considered, chiefly in the form of oral depositions. In this second part, the principles of written, or documentary evidence will be stated and illustrated. But it may be first desirable to elucidate more fully a branch of the subject which has been already touched upon ;1 and to show generally in what cases written instruments are treated as primary and best evidence, and in what cases as secondary and inferior evidence. When a writing purports to be in the nature of a public or judicial record, the deliberate solemnities with which its settlement and recognition are presumed to have been accompanied render it clearly the best and primary evidence of the matters to which it refers. So, where a contract has been voluntarily confirmed by deed or writing between the parties, all controversy as to its purport and intention ought clearly to be determined by the inspection of the written instrument, in which both parties have professed to express all that bears substantially on the contract. It is therefore a fundamental principle that 1 Supra, Chap. 3, pp. 36 to 40. although oral evidence may be given to explain such a written contract, it cannot be given to vary it. Similarly where a writing is the very matter in issue, as in libel, oral evidence of the words of the libel is inadmissible as long as the writing, or print, is producible. So, where it appears that a representation or statement by a witness was made in writing, his own act operates against him in the nature of an estoppel in pais; and he will not be allowed to say what the statement was, but the writing must be produced, and declare it. Neither can he be examined as to its contents, but the whole letter must be read. In all such cases oral evidence will be inadmissible, until it be proved that every endeavour has been used, without success, to produce the writing. But where the writing is merely in the nature of a personal memorandum, which has been drawn up by a witness for his own convenience, it is inadmissible as a writing, but may be used by the witness to refresh his memory. Thus, letters to a party are only received on the presumption that, by answering them, or acting on them, or even by the bare act of receiving them, he has connected them with the controversy between himself and the writer. But a mere written statement, not made on oath by one party, and not shown to have come to the knowledge and to have been recognised or adopted in some way by another party, is manifestly no evidence against such party. It is on this principle that even depositions which have been taken on oath in the presence of a party whom they affect and who has had an opportunity of cross-examining, are inadmissible as long as the deponent can be produced at trial. Such depositions are merely personal statements which have not been in any way recognised, or acquiesced in, by the party against whom they are tendered. They contain none of the elements of a contract, or an admission, and therefore, in this case, the deponent must state his 1 Queen's Case, 2 B. & B. 286. evidence again, where it is possible, by word of mouth; and his written deposition can only be used by him to refresh his memory, or be made the means of establishing a contradiction between his original and subsequent statements. In short, the simple rule, for determining whether a writing is primary or secondary evidence, is to consider whether it contains the substance of the issue, and is in the nature of a contract or an admission by the parties, or whether it is only a personal and ex parte memorandum. In the former case it must be produced as the best evidence; in the latter it is admissible only to refresh and guide the memory of the witness in his oral depositions. Thus, records are in the nature of a contract between parties, which has been settled and ratified by public consent as expressed in a judicial act. They are therefore primary evidence. But a public act of Parliament is in the nature of a memorandum, for judges and the public, of laws which every one is presumed to have engraven in his memory. Such is the legal fiction, and such appears to be the principle on which even an act printed by the Queen's printers is best evidence, although it may also be regarded in the nature of a social and national contract. Writings are either public, or private: and public writings are either judicial, or non-judicial. These will now be treated in consecutive order. 1 Lord Ellenborough: R. v. Sutton, 4 M. & S. 542. CHAPTER II. ON PUBLIC AND JUDICIAL WRITINGS. THE courts take judicial notice of numerous facts, chiefly in writing or print: it is therefore unnecessary to prove them. They notice all the public statutes of the realm;' their own course of procedure and practice ;2 the maritime law of nations ;3 and a war in which the country is engaged, but not a war between foreign countries ;4 the great and privy seals;5 royal proclamations; the preamble of an act;6 and now, by 8 & 9 Vict. c. 113, s. 3, all copies of royal proclamations, purporting to be printed by the Queen's printer, are made evidence thereof in all courts, without proof being given that such copies were so printed. They will also notice the almanacs and the divisions of the year, and the London Gazette.8 7 But they will not notice the laws or customs of foreign States; and such laws must be proved by skilled witnesses. So also must colonial laws, 10 and the laws of Scotland; but it does not appear to be absolutely necessary that the witness should be a lawyer; but it will be enough if he appear to be conversant 1 Bull. N. P. 222. Pugh v. Robinson. 1 T. R. 118. 3 Chandler v. Grieves, 2 H. Bl. 606, n. 6 R. v. Sutton, 4 M. & S. 532. 1 Brough v. Parkins, Lord Raym. 993. 8 R. v. Forsyth, R. & R. 274. 9 Mostyn v. Fabrigas, 1 Sm. L. C. notes. 10 Wey v. Galley, 6 Mod. 194. |