inadmissible until the absence of primary evidence has been explained to the satisfaction of the court. Thus, in a dispute on a contract under seal, the deed is primary evidence, and should be produced to show the terms of the contract. As long as it exists, and can be obtained by reasonable diligence, no other written or oral evidence of its contents will be received; but if it be destroyed, or if it cannot be found after proper search, or if an adverse party, holding it, refuse to produce it, after due notice, then either written or oral evidence may be given by anyone who is acquainted with the contents of the deed. The rule is the same in the case of written contracts, not under seal. As long as the writing exists, it must be produced, if possible; but if it be impossible to produce it, the court may, in its discretion, allow the contract to be proved by secondary evidence.

Indirect evidence. Where direct evidence is not obtainable, and in many cases where it is, the law permits facts to be proved by indirect evidence, which is usually called presumptive or circumstantial, but is better described as inferential. Even direct evidence, when analysed, is found to be to a certain extent presumptive, as it depends for its weight on a number of circumstantial peculiarities which affect the credibility of the witness or other proof: while it has been asserted that what is termed circumstantial evidence is of a nature identical with direct evidence (g). It is, however, desirable to treat it as differing. Presumptive or circumstantial evidence, as distinct from direct evidence, consists of inferences drawn from established facts, i.e., certain collateral facts being established or assumed, the court either presumes or is asked to presume from these the factum probandum. To give two simple illustrations: If a man be stabbed in a house, and

(g) Wills on Circumstantial Evidence, p. 23.

another man be seen running from the house immediately after, with a bloody sword in his hand, the flight, the weapon, and the blood raise, in legal language, a violent presumption that the second man murdered the first (h). Similarly, in larceny, where goods have been stolen by a person unknown, and they have been found shortly after in the possession of the prisoner, juries are always told by judges that on this evidence alone they are bound to convict, unless they are satisfied with the prisoner's explanation of the manner in which he obtained the goods. In dealing with this class of evidence it is necessary to consider the weight which is to be given to the united force of all the circumstances put together (i), or, as has been remarked by a learned writer (k) (and the remark is universally applicable to all presumptive evidence), it must be admitted that, like every other rule of human institution, it will sometimes fail to guide rightly. Lord Hale mentions a case, which he says was tried before a very learned and wary judge, where a man was condemned and executed for horse-stealing, upon proof of his having been apprehended with the horse shortly after it was stolen; and afterwards it came out that the real thief, being closely pursued, had overtaken the man upon the road, and asked him to hold the horse for him for a few minutes. The thief escaped, and the innocent man was apprehended with the horse (1). In such cases, and generally, it is well to bear in mind, that “where it is sought to establish a theory by circumstantial evidence, all the facts proved must be consistent with the theory; but there must also be some one substantial, credible fact inconsistent with the contrary" (m). Hence it has been decided, that since there can be no larceny of goods

(h) Co. Litt. 6, b.

(i) Per Lord Cairns, Bellhaven Peerage Case, 1 App. Cas. 279.

(k) Russell on Crimes, by Greaves; note by editor.

(7) 2 Hale, P. C. 289.

(m) Per Willes, J., Great Western Railway Co. v. Rimmell, 18 C. B. 575.

unless there be a felonious intention in the taker's mind at the time of the taking, a mere fraudulent conversion of goods by the taker after the taking is no evidence that he had a felonious intention at the time of taking, because such a misappropriation is consistent with the theory that he had no felonious intention at the time of the taking, but that he conceived the intention subsequently (n).

What, then, is meant by the term evidence ? In the first place it must be borne in mind that there is a wide distinction between evidence and proof, which is the effect of evidence. "When the result of evidence is undoubting assent to the certainty of the event or proposition which is the subject-matter of the inquiry, such event or proposition is said to be proved" (o). Evidence, then, "includes all legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation” (p). There are several divisions of evidence, of which the most important are the divisions into (1) primary and secondary, (2) sufficient and satisfactory, (3) direct and inferential, (4) original and second-hand, or hearsay, (5) oral, documentary and real. The first four divisions will be discussed elsewhere. The fifth, which is a threefold division, explains itself; but an illustration may convey a clearer notion of real evidence to the student: When a knife, covered with blood, is found close to the body of a murdered man, the production of the knife in court is offering real evidence.

The law of evidence applicable in every case is that of the lex fori. To quote the words of Lord Brougham: "The law of evidence is the lex fori which governs the courts whether a witness is competent or not, whether a certain

(n) R. v. Christopher, Bell, 27. (0) Whately's Logic, Book iv. ch. iii. s. i. (p) Taylor on Evidence, s. 1.

matter requires to be proved by writing or not, whether certain evidence proves a certain fact or not; these and the like questions must be determined, not lege loci contractús, but by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it " (q).

(q) Bain v. Whitehaven Railway Co., 10 H. L. Cas. 1.

(9)

CHAPTER II.

THE FUNCTIONS OF JUDGE AND JURY.

Ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices. Whether there is any reasonable evidence is a question for the judge; but whether the evidence is satisfactory is a question for the jury (a).

THE meaning of this rule, which may be regarded as fundamental, is, that it is for the judge to decide on the character of all evidence that may be tendered, and to admit or reject it according to its consistency or inconsistency with the established rules of courts. The ancient rule is, however, exploded, by which a judge was bound to leave a case to a jury if there was any evidence for their consideration. Where there is merely a scintilla of evidence a judge ought not to leave it to a jury (b); and the test whether any evidence only amounts to a scintilla is to assume that there is no evidence to contradict such evidence, and then to inquire whether there would be evidence which would justify a jury in finding a verdict (c). It is of course a very delicate function for a judge to withdraw a case from a jury on the ground either that there is no evidence, or merely a scintilla; and it seems that when there is any sort of primâ facie presumption in a case (d), or a condition of facts which does

(a) Avery v. Bowden, 6 E. & B. 953; Wheelton v. Hardisty, 8 E. & B. 232. (b) Per cur. Avery v. Bowden, sup.

(c) Per Mellish, L. J., Ex parte Morgan, 2 Ch. D. 90. (d) Dare v. Heathcote, 25 L. J., Ex. 245.