in its place. Here the deed or will itself is 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, unless its production is dispensed with. Where secondary evidence of a document is admitted at any stage of an action without objection by the party against whom it is tendered, it is too late for such party to object to it at any later stage (b).

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

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, refuses to pro

(b) Robinson v. Davies, L. R., 5 Q. B. D. 26; 49 L. J., Q. B. 218; 28 W. R. 255.

duce 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, or that a copy of it should be produced.

So, too, 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; and therefore 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 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. So, too, what a debtor says in admission of a debt

P.

F

may be proved, although there be a written promise to pay (c).

In R. v. Kingston-upon-Hull (d), 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.: -"Payment of rent as rent is evidence of tenancy, and may be proved without producing the written instrument" (e). But the terms of the tenancy, and the amount of rent payable under, and the parties to a written agreement for, a tenancy, can only be proved by the written document (ƒ).

The 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 (g). If it be in any degree of

(c) Singleton v. Barrett, 2 C. & J. 369.

(d) 7 B. & C. 611.

(e) See also Twyman v. Knowles, 13 C. B. 222.
(f) R. v. Kingston-upon-Hull, 7 B. & C. 611.

(g) R. v. Castle Morton, 3 B. & Ald. 590.

the essence and substance of the contract, then the writing must be produced; e. g., on a question of title (h). The fact of the existence of a writing or of its execution may be proved without producing the writing; but not any part of its contents (¿). In the case of Yorke v. Smith (k), 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 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. Rawdon (1), 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 (m). 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 (n).

(h) Cotterill v. Hobby, 4 B. & C. 465. (i) Darby v. Ouseley, 1 H. & N. 1.

(k) 21 L. J., Q. B. 53.

(1) 8 B. & C. 710.

(m) Jolly v. Taylor, 1 Camp. 143.

(n) R. v. Kitson, Dears. 187; cf. R. v. Elworthy, L. R., 1 C. C. R. 103; 37 L. J., M. C. 3; 16 W. R. 287.

The subject of Secondary Evidence in the case of documents will be further investigated in a later portion of this work (0).

When it is necessary to prove the handwriting of a document in any case, civil or criminal, the best evidence is that of the person who wrote or signed.

As fraud is the foundation of the rule by which the best evidence is required; secondary evidence is received whenever 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 (p). Inscriptions on tombstones, escutcheons, and walls, may be proved by witnesses and examined copies. 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 (9).

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 there are several attesting witnesses, it is sufficient to call one only where one only is required by law to the validity of the instrument; or, in the event of the death of all the witnesses, it is sufficient to prove the handwriting of any one; and if attestation is not made necessary to the validity of the instrument by statute

(0) Vide Part II. Ch. I. and IV.

(p) Rowe v. Brenton, 8 B. & C. 737.
(9) Salk. 281.