CONTENTS OF DOCUMENTS NOT PROVEABLE BY PAROL.

283

that fact, it is obvious that the affirmative may be proved, by calling either the collector himself, or the parties who paid him, and both these modes of proof are equally primary. But suppose the collector be dead; in this case the only primary evidence is the testimony of the persons from whom the money was received. Still the law does not require the production of these persons, but, on proof of the collector's death, will admit any entries in his book acknowledging the receipt, though such entries are merely secondary evidence of the fact in issue; and if the book be in the hands of the opposite party, who, after notice, refuses to produce it, even secondary evidence of its contents will be admissible (n). The distinction between this case, and that of the subscribing witnesses to an instrument, where, as we have seen (0), proof must be given that all the witnesses are unable to be called, before evidence of the handwriting of one of them can be received, seems to rest on this, that, in attested instruments, the witnesses are either rendered necessary by statute, or at least have been solemnly chosen by the parties, as the persons on whose united testimony they wish to rely, and, consequently, so long as one of them can be called, secondary evidence respecting the others cannot be admitted.

§ 292. The cases which most frequently call for the application of the rule now under consideration, are those which relate to the substitution of oral for written evidence, and the general rule of law with respect to this subject is, that the contents of a written instrument, which is capable of being produced, must be proved by the instrument itself, and not by parol evidence (p). This rule, which is as old as any part of the common law of England, has ever been regarded with favour, and mentioned with approbation by the judges. "I have always," said Lord Tenterden, "acted most strictly on the rule, that what is in writing shall only be proved by the writing itself. My experience has taught me the extreme danger of relying on the recollection of witnesses, however honest, as to the contents of written instruments; they may be so easily mistaken, that I think the purposes of justice require the strict enforcement

(n) Middleton v. Melton, 10 B. & C. 322, 327, 328, per Bayley and Parkę Js. ; Barry v. Bebbington, 4 T. R. 514. (0) Ante, § 288.

(p) The Queen's case, 2 B. & B. 289.

284 CONTENTS OF DOCUMENTS NOT PROVEABLE BY PAROL.

of the rule" (q). Lord Wynford, also, in another case, observes: "I seldom pass a day in a Nisi Prius court without wishing that there had been some written statement evidentiary of the matters in dispute. More actions have arisen, perhaps, from want of attention and observation at the time of a transaction, from the imperfection of human memory, and from witnesses being too ignorant, and too much under the influence of prejudice, to give a true account of it, than from any other cause. There is often a great difficulty in getting at the truth by means of parol testimony. Our ancestors were wise in making it a rule, that in all cases the best evidence that could be had should be produced; and great writers on the law of evidence say, if the best evidence be kept back, it raises a suspicion that, if produced, it would falsify the secondary evidence on which the party has rested his case. The first case these writers refer to as being governed by this rule is, that where there is a contract in writing, no parol testimony can be received of its contents, unless the instrument be proved to have been lost" (r). One of the main reasons for the adoption of this rule is, that the Court may acquire a knowledge of the whole contents of the instrument, which may have a very different effect from the statement of a part (s). It cannot be denied but that these authorities and reasons are entitled to the greatest weight, and the rule in general is undoubtedly a wise one; but those who watch its practical working, must be strangely prejudiced in its favour, if they are blinded to the cruel injustice which a strict observance of it too frequently entails upon parties, in consequence of the oppressive operation of the stamp laws (t).

§ 293. The cases on this subject may be arranged into three classes; including in the first class those instruments which the law requires should be in writing; in the second, those contracts which the parties have put in writing; and in the third, all other writings, the existence or contents of which are disputed, and which are material, either to the issue, or to the credit of the witnesses. And, first, oral evidence cannot be substituted for any instru

(9) Vincent v. Cole, M. & M. 258.
(s) The Queen's case, 2 B. & B. 287.

(r) Strother v. Barr, 5 Bing. 151.

(t) See per Lord Tenterden, in Reid r. Batte, M. & M. 414.

ORAL TESTIMONY WHEN INADMISSIBLE.

285

ment which the law requires to be in writing; such as records, public and judicial documents, official examinations, deeds of conveyance of lands, wills, other than nuncupative, acknowledgments under Lord Tenterden's act, promises to pay the debt of another, and other writings mentioned in the statute of frauds. In all these cases the law having required that the evidence of the transaction should be in writing, no other proof can be substituted for that, as long as the writing exists, and is in the power of the party. Thus, for example, parol evidence is inadmissible to prove on what day a trial at Nisi Prius came on (u), or even that it took place at all; but the record, or at least the postea, must be produced (v). So, the date of a party's apprehension for a particular offence cannot be shown by parol, the warrant for apprehension or committal being superior evidence (w). So, also, parol evidence cannot be received of the statement of a prisoner before the magistrate, where the examination has, in conformity with the act of 7 Geo. 4, c. 64, in England, or the act of 9 Geo. 4, c. 54, in Ireland, been reduced into writing, and subscribed, and returned by the justice (a). If, however, the written examination is excluded for informality (y), other than for having been taken on oath, in which case the confession is inadmissible as not having been voluntarily made (z),—or if the statement was not reduced into writing, parol evidence is admissible to prove what was said by the prisoner, for such evidence is offered, not in substitution of the official document, since no such document in that case exists, but as the best evidence which the circumstances admit of being produced. So, if the prisoner was examined on two occasions, or with reference to two offences, and the examination, subscribed by the magistrate, relates only to what occurred on one occasion (a),

(u) Thomas v. Ansley, 6 Esp. 80, per Lord Ellenborough; R. v. Page, id. 83, per Lord Kenyon.

(v) B. N. P. 243; R. v. Iles, Hard. 118; R. v. Browne, M. & M. 319; 3 C. & P. 572, S. C. (w) R. v. Phillips, R. & R. 369.

(x) R. v. Fearshire, 1 Lea. C. C. 202,; R. v. Jacobs, id. 309. See further as to this subject, post, Chapter On Confessions.

(y) R. v. Reed, M. & M. 403, per Tindal, C. J.

(2) R. v. Wheeley, 8 C. & P. 250, per Alderson, B.; R. v. Rivers, 7 C. & P. 177, per Park, J.

(a) R. v. Wilkinson, 8 C. & P. 662, per Parke, B., and Littledale, J.

286

ORAL TESTIMONY WHEN INADMISSIBLE.

or with respect to one offence (b), the prosecutor may call any party, who can speak to statements made by the prisoner in that part of the inquiry not included in the written examination. In like manner, if a witness, having given a written deposition in a cause, has afterwards testified orally in court, parol evidence may, in the event of his death, be given of his vivâ voce testimony, notwithstanding the existence of the deposition (c); for in this last case there are evidently two independent sources of information, and the party, relying on the evidence, may at his discretion have recourse to either.

$294. In the second place, oral proof cannot be substituted for the written evidence of any contract which the parties have put in writing. Here the written instrument may be regarded, in some measure, as the ultimate fact to be proved, especially in the case of negotiable securities; and in all cases of written contracts, the writing is tacitly considered, by the parties themselves, as the only repository and the appropriate evidence of their agreement. The written contract is not collateral, but is of the very essence of the transaction (d); and, consequently, in all proceedings, civil or criminal, in which the issue depends in any degree upon the terms

(b) R. v. Harris, 1 Moo. C. C. 338.

(c) Tod v. E. of Winchelsea, 3 C. & P. 387, per Lord Tenterden.

(d) See R. v. Castle Morton, 3 B. & A. 590, per Abbott, C. J. The principles, on which a writing is deemed part of the essence of any transaction, and consequently the best or primary proof of it, are thus explained by Domat :-" The force of written proof consists in this; men agree to preserve by writing the remembrance of past events, of which they wish to create a memorial, either with the view of laying down a rule for their own guidance, or in order to have, in the instrument, a lasting proof of the truth of what is written. Thus contracts are written, in order to preserve the memorial of what the contracting parties have prescribed for each other to do, and to make for themselves a fixed and immutable law, as to what has been agreed on. So, testaments are written, in order to preserve the remembrance of what the party, who has a right to dispose of his property, has ordained concerning it, and thereby lay down a rule for the guidance of his heir and legatees. On the same principle are reduced into writing all sentences, judgments, edicts, ordonnances, and other matters, which either confer title, or have the force of law. The writing preserves, unchanged, the matters intrusted to it, and expresses the intention of the parties by their own testimony. The truth of written acts is established by the acts themselves, that is, by the inspection of the originals."-See Domat's Civil Law, Liv. 3, tit. 6, § 2, as translated in 7 Monthly Law Mag. p. 73.

ORAL TESTIMONY WHEN INADMISSIBLE.

287

of a contract, the party whose witnesses show that it was reduced to writing, must either produce the instrument duly stamped, or give some good reason for not doing so. Thus, for example, if in an action of ejectment against an overholding tenant, or in an action for the use and occupation of real estate, it should appear either on the direct or cross examination of the plaintiff's witnesses, that there was a written contract of tenancy, the plaintiff must either produce it properly stamped, or account for its absence (e). So, where a landlord brought an action against a tenant for rent and non-repair, and it appeared that the parties had agreed by parol that the tenant should hold the premises on the terms contained in a former lease between the landlord and a stranger, a nonsuit was directed, the lease on production being stamped as an agreement, and being therefore inadmissible (ƒ).

§ 295. The same strictness in requiring the production of the written instrument has prevailed, where the question at issue was simply what amount of rent was reserved by the landlord (g), or who was the actual party to whom a demise had been made (h), or under whom the tenant came into possession (i); and in an action for the price of labour performed, where it appeared that the work was commenced under an agreement in writing, but the plaintiff's claim was for extra work, it has been several times held that, in the absence of positive proof that the work in question was separate from that included in the agreement, and was in fact done under a distinct order, the plaintiff was bound to produce the original agreement, since it might furnish evidence, not only that the items sought to be recovered were not included therein, but also of the rate of remuneration which the parties had agreed upon (j). So, where an auctioneer delivered to a bidder, to whom

(e) Brewer v. Palmer, 3 Esp. 213, per Lord Eldon; Fenn v. Griffith, 6 Bing. 533; 4 M. & P. 299, S. C.; Henry . Marq. of Westmeath, Ir. Cir. R. 809, per Richards, B.; Thunder . Warren, 8 Ir. Law R. 181; Rudge v. M'Carthy, 4 id. 161.

(ƒ) Turner . Power, 7 B. & C. 625; M. & M. 131, S. C.

(g) R. v. Merthyr Tidvil, 1 B. & Ad. 29.

(h) R. v. Rawden, 8 B. & C. 708; 3 M. & R. 426, S. C.

(i) Doe v. Harvey, 8 Bing. 239; 1 M. & Sc. 374, S. C.

() Vincent v. Cole, M. & M. 257, per Lord Tenterden ; 3 C. & P. 481, S. C.;