called as a witness (d); though it would, as a general rule, be judicious, where the accomplice is indicted with the prisoner, to dispose of the indictment by acquitting or convicting the prisoner, before he is called as a witness, so that the temptation to strain the truth should be as slight as possible (e). Although the contrary was once held, it has now been decided by the full Court of Criminal Appeal that, if prisoners are indicted and tried together, neither is a competent witness for the other (ƒ). (d) Windsor v. Reg., 6 B. & S. 143; 7 B. & S. 360. (e) Per Blackburn, J., 6 B. & S. 186. (f) R. v. Payne, L. R., 1 C. C. R. 349; 41 L. J., M. C. 65; 20 W. R. 390. CHAPTER IV. THE RULE THAT THE BEST EVIDENCE MUST BE GIVEN: PRIMARY AND SECONDARY EVIDENCE. Ir is an inflexible rule that— The best evidence must be given. This rule may also be stated thus: The law requires that evidence which is the best attainable of its class. The true meaning of this rule is that no such evidence shall be brought, as ex naturâ rei supposes still greater evidence behind in the parties' own possession or power (a). The rule is founded 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 pro (a) Gilbert on Evidence, p. 5. duced the original, but who omits to produce it, has some interested motive for tendering a copy 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 (6). 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 (b) Robinson v. Davies, L. R., 5 Q. B. D. 26; 49 L. J., 218; 28 W. R. 255. Q. B. adverse party, in whose hands it is, refuses 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, 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 prima 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. (g) R. v. Castle Morton, 3 B. & Ald. 590. |