when they were made. But in this instance it will be observed that the principle that the best evidence must be given is maintained, at least in theory. The writing is inadmissible in its actual form; but it is received in a new character as the oral deposition of a sworn witness. In Maugham v. Hubbard and Another,1 to prove payment, a cash-book, containing an unstamped acknowledgment, was put into the hand of the writer, who said: "The entry has my initial; I have no recollection that I received the money; I know nothing but by the book; but, seeing my initials, I have no doubt that I received the money." Lord Tenterden, C. J., said :—"Here the witness, on seeing the entry signed by himself, said that he had no doubt that he had received the money. The paper

itself was not used as evidence of the receipt of the money, but only to enable the witness to refresh his memory; and when he said that he had no doubt he had received the money, there was sufficient parol evidence to prove the payment."

Fraud is the foundation of the rule by which the best evidence is required; and secondary evidence is received whenever its substitution for primary evidence does not create a reasonable presumption of fraud. Thus it seems that the substance of old records may be proved by a witness who has examined them.2 Inscriptions on tomb-stones, escutcheons, and walls, may be proved by witnesses and examined copies.3 But Dugdale's Monasticon Anglicanum was rejected as evidence to show that the Abbey de Sentibus was an inferior abbey, because the original records were producible.4

It is held that the rule relates not to the measure and quantity of evidence, but to the quality. It is

5

18 B. & C. 14.

2 Rowe v. Brenton, 3 M. & R. 312.

3 Mortimer v. M'Callum, 6 M. & W. 68.

4 Salk. 281.

5 Stark. 643.

not necessary to give the fullest proof of which a fact may admit. Thus, in the cases where there are several attesting witnesses, it is sufficient to call one only where one only is required by law to the validity of the instrument; or, in the event of the death of all the witnesses, it is sufficient to prove the handwriting of any one.1

1 Stark. 504 and 519; 17 & 18 Vict. c. 125, s. 26.

47

CHAPTER V.

ON PRESUMPTIVE EVIDENCE.

EVIDENCE is said to be Presumptive or Circumstantial as distinguished from Direct Evidence, when an inference as to a disputed fact is drawn from the proof or assumption of a collateral fact. It is true that the judgment acts even in the case of Direct Evidence; and the testimony, which purports to be derived immediately from the senses, comes to the witness originally distorted by their imperfections, and under the manifold and insuperable influences of infirmity and misapprehension. Under these circumstances the judgment supervenes to rectify and systematize the confused impressions of the senses; but it is impossible, even to their subject, to state where perception ends and judgment begins. Distance and space appear to be intuitions of the perception; but the most superficial investigation proves them to be logical deductions of the reason.1 If the senses could act without the intervention and assistance of the judgment, external objects might still be painted on the retina of the eye; and possibly be communicated to, and retained in, the memory of the recipient; but, unless the reasoning faculty interposed to distinguish, to arrange, and to methodise, the evidence of the senses would amount to no more than Cassio's drunken vision--"a mass of things, but nothing distinct." It would serve only to perplex and misguide those who sought it as a means of information.

1 Locke on the Understanding.

But there is still a broad and palpable distinction between Direct and Presumptive Evidence. In the former we credit the language of the senses as translated through the judgment of the witness, and certified by his solemn asseveration. The question

then for decision is not one of inference but of credibility. It is true that the credibility of the witness is itself a matter of inference, which must be gathered from his demeanour and surrounding circumstances. But when we are satisfied as to his veracity and judgment the adoption of his statements follows as an included consequence.

It is different in Presumptive Evidence. The same question of credibility occurs at the outset ; and the judge or jury has to decide a similar and preliminary inquiry into the veracity and accuracy of the witness. But this is only a first and easy stage of reasoning. When the reality of the collateral fact has been established, it is then that the judgment has to trace its relation to the matter in issue. It must not disdain to weigh remote analogies, distant affinities, nor even improbable possibilities. On the other hand it must avoid scrupulously the tendency to over-refinement, which vitiates many subtle and imaginative minds. Only knowledge of the world, and an extensive experience of human nature, can enable men to determine, and that only in their own minds, what is the distinction between that proximate or recondite circumstance, which suggests irresistibly the truth or falsehood of a proposition: and that irrelevant, obscure, and suspicious form of hypothesis, which checks us as irresistibly in making it the basis of affirmation or negation.1

In The King v. Burdett,2 Abbott, C. J., said:

"A presumption of any fact is properly an inference of that fact from other facts that are known; it is an

See this subject fully discussed in Bentham's Rationale of Judicial Evidence, vol. 3, page 7, et seq., and Sup. p. 2.

2 4 B. & Ald. 161.

act of reasoning: and much of human knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference; but if no fact could thus be ascertained by inference in a court of law, very few offenders could be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given: the man who is charged with theft is rarely seen to break the house or take the goods; and in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction; if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead

more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know that where reasonable doubt is entertained it is their duty to acquit; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtlety and refinement."