however, refer to laws or treatises to aid his memory (h): and if the witness states that any text-book, decision, code, or other legal document truly represents the foreign law which he is called to prove, the court may look at the treatise and treat it and give effect to it as part of the testimony of the witness (i). A question of foreign law being one of fact must in every action be decided on evidence adduced in that action, and not by a previous decision, or on evidence adduced in another action ().

Colonial laws (7) and the laws of Scotland are regarded as foreign law for the purposes of proof.

In order to afford facilities for the more certain ascertainment of the law administered in one part of her Majesty's dominions, when pleaded in the courts of another part thereof, it has been enacted that "if in any action depending in any court within her Majesty's dominions, it shall be the opinion of such court that it is necessary or expedient for the proper disposal of such action to ascertain the law applicable to the facts of the case, as administered in any other part of her Majesty's dominions on any point on which the law of such other part of her Majesty's dominions is different from that in which the court is situate, it shall be competent to the court in which such action may depend to direct a case to be prepared setting forth the facts as these may be ascertained by verdict of a jury or other mode competent, or may be agreed upon by the parties, or settled by such person or persons as may have been appointed by the court for that purpose in the event of the parties not agreeing, and upon such case being approved of by such court or a judge thereof, they shall settle the question of law arising out of the same,

(h) See Nelson v. Lord Bridport, 8 Beav. 538, and Sussex Peerage case, 11 C. & F. 116.

(i) Concha v. Murietta, 40 Ch. Div.

554.

(k) M'Cormick v. Garnett, 5 De G., M. & G. 278.

(1) Wey v. Galley, 6 Mod. 194.

on which they desire to have the opinion of another court, and shall pronounce an order remitting the same, together with the case, to the court in such other part of her Majesty's dominions, being one of the superior courts thereof, whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pronounce their opinion on the questions submitted to them in the terms of this Act; and it shall be competent to any of the parties to the action to present a petition to the court, whose opinion is to be obtained, praying such lastmentioned court to hear parties or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their opinion without hearing parties or counsel; and the court to which such petition shall be presented shall, if they think fit, appoint an early day for hearing parties or their counsel in such case, and shall thereafter pronounce their opinion upon the questions of law as administered by them which are submitted to them by the court; and in order to their pronouncing such opinion, they shall be entitled to take such further procedure thereupon as to them shall seem proper" (m). When an opinion has been thus obtained, the court in which the action is pending "shall apply such opinion to such facts," or "shall order such opinion to be submitted to the jury, with the other facts of the case as evidence, or conclusive evidence as the court may think fit, of the foreign law therein stated" ("). Under this Act the law of Scotland has been ascertained by a case remitted to the Court of Session in Scotland (0), and the law of Bengal by a case remitted to the Supreme Court of Bengal (p).

(m) 22 & 23 Vict. c. 63, s. 1. (n) 22 & 23 Vict. c. 63, s. 3.

(0) Lord v. Colvin, 1 D. & S. 24. (p) Login v. Princess of Coorg, 30 Beav. 632.

Part II.

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, but chiefly in relation to oral evidence. In the second part, written or documentary evidence will be discussed. It will be first desirable to add a few more remarks upon a branch of the subject which has been already touched upon; 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 is required by the law to be in writing or has been voluntarily put into writing by the parties, all controversy as to its purport and effect ought clearly to be determined by the inspection of the written instrument, and therefore the written contract must as a general rule be produced, and though oral evidence may be given to explain such a written contract, it cannot be given to vary it, except when in equity relief is sought on the ground of mistake or surprise (a). Similarly, where a

(a) Price v. Ley, 32 L. J., Ch. 530.

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; and 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 to prove it. Thus, a witness cannot be asked whether his name is written in a book; but the book must be produced, or its non-production be excused according to the principles under which secondary evidence is admissible (b). He cannot be examined as to the contents of a letter, but the whole of it must be read (c). 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.

An anomalous exception to the rule that parol secondary evidence is inadmissible where there is parol primary evidence which ought strictly to be produced, is found in the principle that, "whatever a party says, or his acts amounting to admissions, are evidence against himself, though such admissions must involve what must necessarily be contained in some deed or writing; for instance, a statement by a party, or one under whom he claims, that an estate had been conveyed to or from such person, or that such person filled the character of assignee which could only be by deed." The learned judge who laid down this principle as above added that "the reason why such statements are admissible, without notice to produce or accounting for the absence of the written instrument, is, that they are not open to the same objection which belongs to parol evidence from other sources when the written evidence might have been produced; for such evidence is excluded from the presumption of its untruth from the very

(b) Darby v. Ouseley, 1 H. & N. 1.

(c) Queen's case, 2 B. & B. 286.

nature of the case, when better evidence is withheld; whereas what a party himself admits to be true, may reasonably.be presumed to be so. The weight and value of such testimony is quite another question" (d). Thus, in the case of Slatterie v. Pooley (e), in which this judgment was given, it was necessary to show that a certain debt was included in an insolvent's schedule. The schedule itself was tendered and rejected, because it was not duly stamped. Evidence was then tendered and rejected of a verbal admission by the defendant that the debt was included in the schedule. On a rule for a new trial, for improper rejection of this evidence, the court held that it ought to have been received, on the principle stated above. The decision in Slatterie v. Pooley has been severely attacked both in England and Ireland (ƒ).

On the same principle, where, on an action for contribution towards money paid on a written contract, there was evidence of the express authority of the defendant to enter into the contract, of the execution thereof, and that the defendant, when informed of the amount paid, did not dispute his liability, it was held that the contract need not be put in evidence (g). This exception has excited much controversy, and, if fully carried out, would act perhaps as a virtual abolition of the general rule with which it professes to be consistent; but it was sanctioned by the Court of Exchequer, although it is limited to cases in which the admission has been voluntary by the party making it, since he cannot be compelled to make such admissions, nor ought questions which tend to elicit them to be allowed (). Where a party gives a portion of a writing in evidence, the adverse party is entitled to have read all other passages which are connected with, or construe, control, modify, qualify, or explain the