A DIGEST, &c. In forming a digest of the general rules of evidence, the subject may be considered with regard, first, to the nature of evidence; secondly, to the object of evidence; thirdly, to the proof of documents; fourthly, to proof by witnesses; and fifthly, to the effect of evidence. NATURE OF EVIDENCE. With regard to its nature, evidence may be considered under the following heads.-Primary or secondary evidence; presumptive evidence; hearsay; admissions. PRIMARY EVIDENCE. It is a general rule, that the best, or rather the highest, evidence must be given that the nature of the case admits. B. N. P. 293. Thus, where a will of lands is to be proved, the primary evidence of it is the will itself, and the probate is not admissible; for the ecclesiastical court has no cognizance of realty. Id. 246. So in general where a contract has been reduced into writing by the parties, the writing is the best evidence of it, and must be produced. But it is not in every case necessary, where the matter to be proved has been committed to writing, that the writing should be produced. If the narrative of an extrinsic fact has been committed to writing, it may yet be proved by parol evidence. Upon this principle, a receipt for money will not exclude parol evidence of the payment. Rambert v. Cohen, 4 Esp. 213. So where, in trover, the witness stated that he had verbally required the defendant to deliver up the property, and at the same time served upon him a notice in writing to the same effect, Lord 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; notwithstanding 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 parol. R. v. Inhab. of Holy Trinity, 7B.& C. 611. S. C. 1 M. & R. 444. But the parties to the contract, the amount of rent, and the terms of the tenancy, can only be shown by the writing. S. C. and Strother v. Barr, 5 Bing. 136. Thus tenancy at a certain rent, and for a certain period, so as to gain a settlement under 6 Geo. 4. c. 57., cannot be proved by parol, if there was a written agreement. R. v. Merthyr Tidvil, 1 B. & Ad. 29. So the fact of a tenancy under a particular person cannot be so proved, where there is a writing. Doe v. Harvey, 8 Bing. 239. 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. Where it is necessary to prove the fact of 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. See post, Trespass for Crim. Con. On an indictment for an unlawful assembly, the inscriptions and devices on banners displayed at a public meeting may be proved by parol, and it is not necessary to produce the banners themselves. R. v. Hunt, 3 B. & A. 566. And the transactions and proceedings of such meeting may be proved by parol, as in the case of resolutions entered into; although it should appear that those resolutions were read from a written or printed paper. Id. 568. So an inscription on a monument, or writing on a wall, may be proved by parol. Mortimer v. M'Callan, 6 M. & W. 68. 72. When, in order to prove a partnership between Didot and Foudrinier, whose assignees were plaintiffs in the suit, a witness was asked by defendant whether he had not heard Foudrinier say, that by a deed between him and Didot an interest belonged to Didot, Abbott, C. J., was of opinion that no such question could be asked without the production of the instrument, or accounting for its non-production. Bloxam v. Elsie, R. & M. 187. But this case appears to be overruled by Slatterie v. Pooley, 6 M. & W. 664., where it was decided that parol admissions are evidence against the party making them, although they may relate to the contents of a written instrument. See also Newhall v. Holt, 6 M. & W. 662. S. P.; and post, tit. Admissions. The proper evidence of all judicial proceedings is the production of the proceedings themselves, or of examined copies of them. Thellusson v. Shedden, 2 New R. 228. Thus parol evidence is not admissible of the day on which a cause came on to be tried; as it is capable of proof by matter of record, viz. the postea. Thomas v. Ansley, 6 Esp. 80. Id. 83. And 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, Lord Ellenborough held it insufficient. Scott v. Clare, 3 Camp. 236.; but see post, p. 38. So parol 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 C. 132. So 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 parol 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 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. Paul v. Meck, 2 Y. & J. 116. In general, parol evidence is esteemed secondary in its nature to written evidence. Thus, when an agreement has been reduced into writing, the writing must be produced; Brewer v. Palmer, 3 Esp. 213. Fenn v. Griffith, 6 Bing. 533.; and, if not properly stamped, the plaintiff must be non-suited; unless the contents of the unstamped instrument are proved by the admissions of the party. Slatterie v. Pooley, 6 M. &W.664. Again, where a charitable society entered in their book a resolution with regard to the employment of a secretary, and the plaintiff afterwards engaged with them as such upon the terms specified in the book, which was kept by him, it was held, in an action by him for work and labour, that he was bound to produce the book containing the resolution. Whitford v. Tutin, 10 Bing. 395., 4 Moo. & S. 166., S. C. But a mere memorandum, not signed by the parties nor intended to be final, will not prevent the introduction of parol evidence. Doe v. Cartwright, 3 B. & A. 326.; and see Hawkins v. Warre, 3 B. & C. 698. So where a verbal 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 not signed by the vendee, it may be proved by parol. Dalison v. Stark, 4 Esp. 163. So 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 a parol 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. St. Martin's Leicester, 2 A. & E. 210. See also R. v. Wrangle, 2 A. & E. 514. These cases show that a mere unaccepted proposal, executory memorandum, private minute, or unauthorized entry, will not exclude oral proof. In order to render the production of a 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 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 parol evidence applies. Doe v. Morris, 12 East, 237. See Stevens v. Penney, 2 B. Moore, 349. But where, in ejectment, the plaintiff's witness proved an acknowledgment by the defendant that he held under T., and stated that he (the witness) had drawn an agreement touching the premises, between the plaintiff and T., it was held that the plaintiff was bound to produce the writing. Fenn v. Griffith, 6 Bing. 533. Parol 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 A. & E. 470. If oral evidence of an agreement is given at a trial, the party desirous of excluding it may ask the witness in cross-examination whether it was not in writing; and may inquire as to the contents of the writing, in order to show that parol evidence is inadmissible. Curtis v. Greated, 1 A. & E. 167. SECONDARY EVIDENCE. Evidence of a kind inferior to primary, and which necessarily supposes better evidence behind, is called secondary evidence. Such secondary evidence is inadmissible unless a ground be laid for it by satisfactorily accounting for the absence of superior proof. What ground must be laid for the introduction of secondary evidence.] Secondary evidence may be admitted, if it be proved that better evidence cannot be obtained. Thus in the case of a lost deed, the loss of the deed must be proved; and if two or more parts have been executed, the loss or destruction of all the parts should, it seems, be proved before other evidence can be received. B. N. P. 254. So where an instrument is in the possession of the opposite party, parol 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, I 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, R. & M. 18. The refusal of a third party to produce a document in his possession on subpoena will not let in parol evidence of it. Jesus College v. Gibbs, 1 Y. & Coll. 156. But where a document is in the hands of an attorney 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 A. & E. 31. Doe v. Ross, 7 M. & W. 102. In the last case, it was suggested by the court that, where the attorney refuses on the ground of privilege, it may perhaps be necessary to shew that his client also objects to the production. Proof of loss.] Where secondary evidence is offered in consequence of the loss of the primary evidence, it must be shown, in order to establish the loss, that diligent search has been made in those quarters from 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 license 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 licenses amongst the waste papers of his office as of no further use, and that he supposed he had disposed of the license in question in the same manner as other licenses; that he had searched for it, but did not recollect whether he had found it or not, though he did not think he had found it, the court held the loss sufficiently proved. Kensington v. Inglis, 8 East, 278. So where it became necessary to account for the nonproduction 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, a few days before the trial of the action, 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, the search was held to be sufficient. Brewster v. Sewell, 3 B. § À. 296. So in a 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 |