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PART II.

ON 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, chiefly in the form of oral depositions. In this second part, the principles of written, or documentary evidence, will be stated and illustrated. But it may be first desirable to elucidate more fully 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 has been voluntarily confirmed by deed or writing between the parties, all controversy as to its purport and intention ought clearly to be determined by the inspection of the

1 Supra, Chap. 4.

written instrument, in which both parties have professed to express all that bears substantially on the contract. It is therefore a fundamental principle that, although oral evidence may be given to explain such a written contract, it cannot be given to vary it. Similarly, where a 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. So, 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, and declare 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.1 Neither can he be examined as to its contents, but the whole letter must be read.2 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;" and the same learned judge adds that "the reason why such statements are admissible, without notice to produce or accounting for the absence of the

1 Darby v. Ouseley. 25 L. J. 227, Ex. 2 Queen's case, 2 B. & B. 286.

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 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."1 Thus, in the case 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.

This exception has excited much controversy,2 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 in a late case, although it is limited to cases in which the admission has been voluntary by the party making it; for he cannot be compelled to make such admissions, nor ought questions which tend to elicit them to be allowed.3

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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 passages which have been read;" but not distinct passages, or passages which are irrelevant to, or not explanatory of, such first-mentioned passages.1

Parke, B.: Slatterie v. Pooley, 6 M. & W. 668. 2 Taylor, § 381-3, 2nd. edit.

2 Darby v. Ouseley, sup.

Pollock, C. B.: 25 L. J. 227, Ex.

[EV.]

2 B

Where the writing is merely in the nature of a personal memorandum, which has been drawn up by a witness for his own convenience, it is inadmissible as a writing, but may be used by the witness to refresh his memory. Thus, letters to a party are only received on the presumption that, by answering them, or acting on them, or even by the bare act of receiving them, he has connected them with the controversy between himself and the writer. But a mere written statement, not made on oath by one party, and not shown to have come to the knowledge and to have been recognised or adopted in some way by another party, is manifestly no evidence against such party.

It is on this principle that even depositions, which have been taken on oath in the presence of a party whom they affect, and who has had an opportunity of cross-examining, are inadmissible as long as the deponent can be produced at trial. Such depositions are merely personal statements which have not been in any way recognised, or acquiesced in, by the party against whom they are tendered. They contain none of the elements of a contract, or an admission; and therefore, in this case, the deponent must state his evidence again, where it is possible, by word of mouth; and his written deposition can only be used by him to refresh his memory, or be made the means of establishing a contradiction between his original and subsequent statements. In short, the general rule for determining whether a writing is primary or secondary evidence, is to consider whether it contains the substance of the issue, and is in the nature of a contract or an admission by the parties, or whether it is only a personal and cx parte memorandum. In the former case it must be produced as the best evidence; in the latter it is admissible only to refresh and guide the memory of the witness in his oral depositions. Thus, records are in the nature of a contract between parties, which has been settled and ratified by public consent, as expressed in a judicial act. They are therefore primary evidence. But a public act of Parliament is

in the nature of a memorandum, for judges and the public, of laws which every one is presumed to have engraven in his memory. Such is the legal fiction, and such appears to be the principle on which even an act printed by the Queen's printers is best evidence, although it may also be regarded in the nature of a social and national contract.

Writings are either public or private; and public writings are either judicial or non-judicial.

will now be treated in consecutive order.

1 Lord Ellenborough: R. v. Sutton, 4 M. & S. 542.

These