IT will be useful here to consider some general rules Confined to of evidence applicable to the trial of causes, first pre- cause of action mising that the plaintiff can give no evidence of any in summons. PART I. General rules. demand or cause of action except such as is stated in the summons (a). General Rules.-Best Evidence. ]- The first great rule of evidence is that the best (in degree, not in amount) must be adduced of which the case will admit; Best evidence. that is, no evidence must be brought which of itself shows the existence of better evidence in the party's own possession or power, which is kept back (b). So that a copy of any instrument is never evidence if the original can be produced; but if the absence of the primary evidence is sufficiently accounted for, secondary or parol evidence of its contents is admitted, and when once the rule is broken through, there are no degrees of secondary evidence; therefore parol evidence of the contents of a document is not excluded by a copy, nor is a second copy by a first. Admissions. Parol explana One branch of this rule is, that where a contract has been reduced into writing by the parties it must be produced, and to this there is no exception; and in no case can a witness be asked as to the contents of a written instrument, which is neither produced nor its absence accounted for (c); but it is otherwise where the writing is a mere memorandum of an event, as a receipt (d), or a promise to pay (e), which may be proved by parol, although reduced into writing. A further exception is, that parol admissions are evidence against the party making them, although they relate to the contents of a written instrument (f). It must be remembered that where the witness is a party to a cause, the above rule does not prevent his being asked as to his knowledge of any fact, although that knowledge is derived solely from written documents (g). Parol Explanations of written Instruments.]—A further tions of written branch of this rule is, that parol evidence is not admitted instruments. (a) 9 & 10 Vict. c. 95, s. 75. (c) M'Donnell v. Evans, 11 C. B. (d) Rambert v. Cohen, 4 Esp. 213. 369. (f) Slatterie v. Pooley, 6 M. & W. 604. (g) See also as to the cross-exexamination of a witness respecting previous statements made by him in writing, 17 & 18 Vict. c. 125, ss. 24, 103. to vary or contradict the terms of a written instrument (h); CHAP. VII. but such evidence is admitted to supplement the writing by showing that it was not intended to contain the whole contract, and adding terms consistent with it (i), or to show that a writing purporting to be a contract was not intended to be a contract at all (j), or that the parties. have by parol waived or annulled a previous written agreement (k), or that the instrument, whether a deed or simple contract, is void by reason of fraud, illegality or error (1), or to construe words of art, or to explain (m), but not to contradict (n), mercantile contracts (o). So, to add to or explain agricultural agreements (p), if not inconsistent with their expressed terms (q). Parol evidence may also be given to explain a latent ambiguity; which means that where a doubt is raised by extrinsic parol evidence, the same is admitted to solve it. Where, however, the ambiguity is patent or apparent on the face of the instrument, no evidence is admissible to explain it. evidence. Hearsay not Evidence.]-As all judicial evidence should Hearsay not be given on oath, hearsay is not evidence; that is, a witness may not relate a fact which he has heard from another, but of which he has no personal knowledge; since the oath of the first relator, and the opportunity of (h) Meres v. Ansell, 3 Wils. 275; Adams v. Wordley, 1 M. & W. 374; Harnot v. Groves, 15 C. B. 667; S. C., 24 L. J., C. P. 53. (i) Malpas v. London and South Western Railway Company, L. R., 1 C. P. 336; S. C., 35 L. J., C. P. 166; Lindley v. Lacey, 17 C. B., N. S. 578; S. C., 34 L. J., C. P. 7. (j) Pyne v. Campbell, 6 E. & B. 370; Rogers v. Hadley, 2 H. & C. 227. (k) Goss v. Lord Nugent, 5 B. & Ad. 58; Eden v. Blake, 13 M. & W. 614. As to the rescission of agreements required to be in writing by the Statute of Frauds, see Noble v. Ward, L. R., 1 Exch. 117; Ib. 2 Exch. 135. (1) Doe v. Allen, 8 T. R. 147, per Lord Abinger; Hutchins v. Scott, 2 M. & W. 816. (m) Powell v. Horton, 2 N. C. 668; Yates v. Pym, 6 Taunt. 446; Grant v. Maddox, 15 M. & W. 737; Syers v. Jonas, 2 Exch. 111. (n) Smith v. Jeffreys, ib. 561. (0) Yates v. Pym, 6 Taunt. 446; Schultz v. Leideman, 14 C. B. 38; S. C., 23 L. J., C. P. 17; Browne v. Byrne, 3 E. & B. 702; S. C., 23 L. J., Q. B. 313; Cuthbert v. Cumming, 10 Exch. 809; S. C., 24 L. J., Exch. 198. In error, 11 Exch. 405; 24 L. J., Exch. 310; Hall v. Janson, 4 E. & B. 500; Phillips v. Briard, 1 H. & N. 21; Humfrey v. Dale, 7 E. & B. 266; S. C., 26 L. J., Q. B. 137; Mackenzie v. Dunlop, 3 Macq. H. of L. Cases, 22; S. C., 2 Jur., N. S. 957; Gorrison v. Perrin, 2 C. B., N. S. 681; S. C., 27 L. J., C. P. 29; Allan v. Sundius, 1 H. & C. 123; Russian Steam Navigation Trading Company v. Silva, 13 C. B., N. S. 610; Falkner v. Earle, 3 B. & S. 360; S. C., 32 L. J., Q. B. 124. (p) Wigglesworth v. Dallison, 1 Dougl. 201; 1 Smith's L. C. 539 (6th edit.) (q) Webb v. Plummer, 2 B. & A. 746; but see Hutton v. Warren, 1 M. & W. 466. PART I. Exceptions. Res gesta. Of documen tary evidence. cross-examining the witness, are wanting (r). To this rule there are, however, exceptions, the most important of which are-first, in proving matters of public or general interest, as boundaries of parishes, rights of common or customs (s); secondly, in questions of pedigree and relationship, statements made by members of the family (t); thirdly, on a second trial between the same parties, the evidence of a witness examined at a former trial, in which the same question was in issue, and since deceased, may be proved by any one who heard it (u); fourthly, declarations made by persons since deceased against their pecuniary or proprietary interest (v), such as admissions by a person that he has no title to an estate or easement, or accounts by which a man charges himself with the receipt of money (w), but the interest must be proprietary or pecuniary (x), and the relation of an act which would make the relator liable to prosecution is no exception (y). Lastly, declarations in the ordinary course of office business or employment, by deceased persons who had no interest in stating an untruth, with respect to acts done by them within the scope of their duty, and which are made contemporaneously with the acts to which they relate (≈). Res Gesta.]-There are other statements made by parties which are admissible in evidence as part of the res gestæ, namely, where a statement is made by a person accompanying an act, and which tends to explain or show the intention of such act; as what a person says on entering on land, on forfeiture, &c., departing from his dwelling, secreting himself, or when he does any act the character of which it is material to understand (a). Of Documentary Evidence-Acts of Parliament.]Acts of Par- Public Acts of Parliament require no proof, as of these the court takes judicial cognizance. liament. (r) Taylor on Evid., Part II., Chap. VII. (4th edit.) (s) Ib., Chap. XVIII. (t) Ib., Chap. IX.; Doe v. Davis, 10 Q. B. 314. (u) Roscoe on Evid., 10th edit., p. 166; Doe v. Tatham, 1 A. & E. 3; Morgan v. Nichol, 15 W. R. 110. (v) Taylor on Evid., Part II., Chap. XI. (4th edit.) (w) Higham v. Ridgway, 1 East, 109; 2 Smith's L. C. 270 (5th edit.) (x) Smith v. Blakey, 2 L. R., Q. B. 326. (y) Sussex Peerage Case, 11 Cl. & Fin. 103. (*) Price v. Lord Torrington, Salk. 285; 1 Smith's L. C. 290 (6th edit.); Smith v. Blakey, L. R., 2 Q. B. 326. (a) Taylor on Evid., s. 521 (4th edit.) Copies of private or local and personal acts are evi- CHAP. VII. dence, if purporting to be printed by the Queen's printer; so also are copies of parliamentary journals or royal proclamations, purporting to be printed by the printers of the Crown, or of either House (b). courts. Records and Proceedings of Courts.] -Records of the Records and superior courts, if the issue be upon their existence, can proceedings of only be proved by production of the original, or exemplification under the great seal. The proper course is to get the record removed by certiorari into Chancery, and that court will send it by mittimus to the county court (c). In other cases, if complete, they may be proved by examined copies of the original (d). In order to make a verdict evidence, not only the postea, but the judgment should be proved (e). Proceedings in Chancery, rules of court, and judges' orders, may, except in the cases already mentioned, be proved in the same way; the latter may be proved by production, the court being bound to take judicial cognizance of the signature (ƒ). Judgments of inferior courts must be proved by their production from their proper custody, or by examined copies. All proceedings in county courts may be proved by a copy of the entry thereof in the book of the court, bearing the seal of the court, and purporting to be signed and certified as a true copy by the registrar (g). Proceedings in bankruptcy, appearing to be sealed, and copies of proceedings purporting to be sealed with the seal of the court, are evidence (h). Public Entries and Documents.] - Entries in books Public entries and documents of a public nature, which it would be and documents. inconvenient on public grounds to remove, as the parish registers (i), the bank books (k), &c., may be proved by copies; so may inscriptions on tombstones, writings affixed to walls, and the like, which it would be impossible or extremely difficult to produce in court; and whenever by an act of Parliament any certificate, official or public (b) 8 & 9 Vict. c. 113, s. 3. (e) Winsor v. Dunford, 12 Q. B. B. 603; S. C., 18 L. J., Q. B. 14; 12 Jur. 629. (d) 14 & 15 Vict. c. 99, s. 14. (e) Taylor on Evid. s. 1407 (4th edit.) (f) 8 & 9 Vict. c. 113, s. 2. |