Ev. 3 Bull. N. P. 293, per Jervis, C. J., in Twyman v. Knowles, 13 C. B. 224, 76 E. C. L.; Best on Ev., Pt. 1, ch. 1, ss. 87 & 89.1 Best evidence-chattels. Primary evidence of the contents of written documents is required, as will be presently seen, in almost every case; but with regard to the state or quality of a chattel not produced in court, it would seem that secondary evidence may be given. On the trial of an indictment for endeavoring to obtain an advance from a pawnbroker upon a ring by false pretences, evidence was tendered to show that the prisoner had offered another ring to another pawnbroker upon a previous day; this ring was not produced, but the pawnbroker stated that it was a sham. The evidence was held admissible. Lord Coleridge, C. J., made the following remarks:-" No doubt if there was not admissible evidence that this ring was false, it ought not to have been left to the jury; but though the non-production of the article may afford ground for observation more or less weighty, according to circumstances, it only goes to the weight, not to the admissibility of the evidence, and no question as to the weight of this evidence is now before us. Where the question is, as to the effect of a written instrument, the instrument itself is primary evidence of its contents, and until it is produced or the non-production is excused, no secondary evidence can be received. But there is no case whatever deciding that when the issue is as to the state of a chattel, e. g., the soundness of a horse or the equality of the bulk of the goods to the sample, the production of the chattel is primary evidence, and that no other evidence can be given till the chattel is produced in court for the inspection of the jury. The law of evidence is the same in criminal and civil suits."2 R. v. Francis, L. R. 2 C. C. 128; 43 L. J., M. C. 97. As to an inscription on a ring see R. v. Farr, post, p. 9. 'Taylor v. Riggs, 1 Pet. S. C. Rep. 596; Cutbush v. Gilbert, 4 S. & R. 551; Duckwel v. Weaver, 2 O. 13; Fitzgerald v. Adams, 9 Ga. 471. The rule which requires the production of the best evidence is applied to reject secondary evidence which leaves that of a higher nature behind in the power of the party; but not to reject one of several eye witnesses to the same facts, for the testimony of all is in the same degree. United States v. Gilbert, 2 Sumner, 19. "When there are several eye witnesses to the same facts, they may be proved by the testimony of one only. All need not be produced. If they are not produced, the evidence may be less satisfactory or less conclusive, but still it is not incompetent." "A witness who has seen a party write several times is a good witness to prove his handwriting. But a clerk in the counting room of the party, who has seen him write innumerable times, would be in many cases a more satisfactory witness to prove the handwriting. But nobody can doubt that each would be a competent witness." Per Story, Id. 81. So the admissions of the prisoner that he had stolen from the person of another are not to be excluded though the person from whom the property was stolen is not produced as a witness. Commonwealth v. Kenney, 12 Met. 235. See also, Shoenberger v. Hachman, 37 Pa. St. 87; Richardson v. Milburn, 17 Md. 67. The testimony of a bystander, who overheard a conversation, is not secondary evidence of such conversation. Peeples v. Smith, 8 Rich. 90. S. Thus ranchmen accustomed to ride in quest of stock over a range, may give their opinion of the number of stock of a particular brand upon that range, if it is the best attainable evidence, though they may have no particular interest or charge in that stock. Albright v. Corley, 40 Tex. 105. Best evidence-written instruments. The most important application of this principle is that which rejects secondary and requires primary evidence of the contents of written documents of every description, by the production of the written documents themselves.1 The rule was so stated by the judges in answer to certain questions put to them by the House of Lords on the occasion of the trial of Queen Caroline (2 B. & B. 286, 6 E. C. L.), and is perfectly general in its application; the only exceptions to it being founded on special grounds. These may be divided into the following classes :-(1.) Where the written document is lost or destroyed: (2.) Where it is in the possession of an adverse party who refuses or neglects to produce it: (3.) Where it is in the possession of a party who is privileged to withhold it, and who insists on his privilege: (4.) Where the production of the document would be, on physical grounds, impossible, or highly inconvenient (5.) Where the document is of a public nature, and some other mode of proof has been specially substituted for reasons of convenience. It is apparent, therefore, that, in order to let in the secondary evidence in these cases, certain preliminary conditions must be fulfilled; what these conditions are we shall explain more particularly when we come to treat of Secondary Evidence. It is not necessary, in every case where the fact that is to be proved has been committed to writing, that the writing should be produced, but (unless the contents of the written document is itself a fact [*3 in issue) only in those cases where the documents contain statements of facts, which, by law, are directed or required to be put in writing, or where they have been drawn up by the consent of the parties for the express purpose of being evidence of the facts contained in them. Indeed, in many cases the writing is not evidence, as in the case of R. v. Layer, infra, p. 4. The following cases are cited as instances of the general rule. Upon an indictment for setting fire to a house with intent to defraud an insurance company, in order to prove that the house was insured, the policy must be produced as being the best evidence, and the insurance office cannot give any evidence from their books unless the absence of the policy is accounted for. R. v. Doran, 1 Esp. 126; R. v. Kitson, 1 Hampton v. Windham, 2 Root, 199; Benton v. Craig, 2 Miss. 198; Cloud v. Patterson, 1 Stew. 394; Campbell v. Wallace, 3 Y. 271; United States v. Reyburn, 6 Fet. 352. If a witness in the course of his examination be asked to testify respecting a transaction, before the question is answered, it is competent for the other party to inquire and know whether the transaction be in writing, and if it be, the witness cannot be permitted to give parol evidence on the subject. Rice v. Bixler, 1 W. & S. 445. Parol evidence cannot be given of the contents of writings, unless their nonproduction is first accounted for. Farrell v. Brennan, 32 Mo. 328; Cincinnati Railroad Co. v. Cochran, 17 Md. 516; Guerin v. Hunt, 6 Minn. 375. S. On the admission of parol evidence to explain, modify or contradict written instruments, see Mott v. Richtmeyer, 57 N. Y. 49; Shirmer v. Williams, 38 N. Y. S. C. 180; Hamman v. Keigwin, 39 Tex. 34; Adams r. Hicks, 41 Tex. 239; Spears v. Ward, 48 Ind. 541; Wharton e. Douglass, 76 Pa. St. 273; Richards v. Millard, 56 N. Y. 574; Rohrbacher v. Ware, 37 la. 85. The writer of a letter who is not a party to the action cannot be permitted to testify as to the sense in which he used a word occurring therein. Harrison v. Kirke, 38 N. Y. S. C. 396. As to the right of a party in the matter. Com. v. Damon, S. C. Mass., 1884 (17 Rep. 559). Vide 1 Dears. C. C. 187; 22 L. J., M. C. 118. Upon the same principle, the records and proceedings of courts of justice, existing in writing, are the best evidence of the facts there recorded. As, for instance, where it was necessary to prove the day on which a cause came on to be tried, Lord Ellenborough said that he could not receive parol evidence of the day on which the court sat at nisi prius, as that was capable of other proof by matter of record. Thomas v. Ansley, 6 Esp. 80. post, Documentary Evidence. So, on an indictment for disturbing a Protestant congregation, Lord Kenyon ruled that the taking of the oaths under the Toleration Act, being matter of record, could not be proved by parol evidence. R. v. Hube, Peake, N. P. 180; 5 T. R. 542. In R. v. Rowland, 1 F. & F. 72, Bramwell, B., held that on an indictment for perjury, in order to prove the proceedings of the county court, it was necessary to produce either the clerk's minutes, or a copy thereof bearing the seal of the court; the county court act (9 & 10 Vict. c. 95, s. 111) directing that such minutes should be kept, and that such minutes should be admissible as evidence. And it has been said generally, that where the transactions of courts which are not, technically speaking, of record are to be proved, if such courts preserve written memorials of their proceedings, those memorials are the only authentic modes of proof which the law recognizes. 3 Stark. Ev. 1043, 1st ed. On indictments for perjury, where it appears that there was an information in writing, such writing is the best evidence of the information, and must be produced. R. v. Dillon, 14 Cox, C. C. 4. See post, tit. "Perjury." On an indictment under the repealed statute 8 & 9 Will. 3, c. 26, s. 81, for having coining instruments in possession, it was necessary to show that the prosecution was commenced within three months after the offence committed. It was proved, by parol, that the prisoners were apprehended within three months, but the warrant was not produced or proved, nor were the warrant of commitment or the depositions before the magistrate given in evidence to show on what transactions, or for what offence, or at what time, the prisoners were committed. The prisoners being convicted, a question was reserved for the opinion of the judges, who held that there was not sufficient evidence that the prisoners were apprehended upon transactions for high treason respecting the coin within three months after the offence committed. R. v. Phillip, Russ. & Ry. 369. But, on the other hand, where a memorandum of agreement was drawn up, and read over to the defendant, which he assented to, but did not sign, it was held that the terms of the agreement might be proved by parol. Doe v. Cartwright, 3 B. & Ald. 326, 5 E. C. L.; Trewhitt v. Lambert, 10 A. & E. 470, 37 E. C. L. So facts may be proved by parol, *4] though a narrative of them may exist in writing. Thus a person who pays money may prove the fact of payment, without producing the receipt which he took.1 Rambert v. Cohen, 4 Esp. 213. So where, in 1 As a general rule, when there is written evidence of a fact, parol or secondary evidence is inadmissible; but written acknowledgments and receipts of payment, when such payments are in issue, are exceptions to the rule. Conway r. State Bank, 13 Ark. 48; Weatherford v. Farrar, 18 Mo. 474; Southwick v. Hayden, 7 Cow. 344; trover to prove the demand the witness stated that he had verbally required the defendant to deliver up the property, and at the same time served upon him a notice in writing to the same effect, Lord Ellenborough ruled that it was unnecessary to produce the writing. Smith v. Young, 1 Campb. 439. So a person who takes notes of a conversation need not produce them in proving the conversation, as they would not be evidence if produced. Thus in R. v. Layer, a prosecution for high treason, Mr. Slaney, an under-secretary of state, gave evidence of the prisoner's confession before the council, though it had been taken down in writing. 12 Vin. Ab. 96. Similar illustrations of the same principle will be found under the title, Examination of Prisoner. So on an indictment for perjury committed upon a trial in the county court, any witness, present at the time, is competent to prove what evidence was given, inasmuch as a county court judge is not bound to take any notes. R. v. Morgan, 6 Cox, Cr. C. 107, per Martin B.; Harmer v. Bean, 3 C. & K. 307, per Parke, B. So the fact of a marriage may be proved by a person who was present, and it is not necessary to produce the parish register as the primary evidence. Morris v. Miller, 1 W. Bl. 632. So the fact that a certain person occupied land as tenant may be proved by parol, although there is a written contract. R. v. Inhab. of Holy Trinity, 7 B. & C. 611, 14 E. C. L.; 1 M. & R. 444. But the parties to the contract, the amount of rent and the terms of the tenancy can only be shown by the writing. S. C. and Strother v. Barr, 5 Bing. 136, 15 E. C. L.; Doev. Harvey, 8 Bing. 239, 21 E. C. L.; R. v. Merthyr Tydvil, 1 B. & Ad. 29, 20 E. C. L. In the case of printed documents, all the impressions are originals, and according to the usual rule of multiplicate originals, any copy will be primary evidence.' Thus, where on a prosecution for high treason, a copy of a placard was produced by the person who had printed it, and offered in evidence against the prisoner, who it appeared had called at the printer's, and taken away twenty-five copies, it was objected that the original ought to be produced, or proved to be destroyed, or in the possession of the prisoner; but it was held that the evidence was admissible; that the prisoner had adopted the printing by having fetched away the twenty-five copies; and that being taken out of a common impression, they must be supposed to agree in the contents. "If the placard," said Mr. Justice Bayley, "were offered in evidence to show the contents of the original manuscript, there would be great weight in the objection, but when they are printed they all become originals; the manuscript is discharged; and since it appears that they are from the same press, they must be all the same." R. v. Watson, 2 Stark. N. P. 130, 3 E. C. L. Heckert v. Haine, 6 Bin. 16; Wishart v. Downey, 15 S. & R. 77. But parol evidence that a receipt given for a note acknowledged that the note was in full payment of goods sold is inadmissible, when the receipt is in existence and no measures have been taken to procure it. Townsend v. Atwater, 5 Day, 298. S. 1 A printed advertisement cannot be read without search after the original manuscript. Sweigart v. Lowmarter, 14 S. & R. 200. S. It has been said that the transactions and proceedings of public meetings may be proved by parol, as in the case of resolutions entered into, although it should appear that the resolutions have been read from a written or printed paper. And in support of this proposition a case is referred to where, in a prosecution against Hunt for an unlawful assembly, in order to prove the reading of certain resolutions, a witness produced a copy of the resolutions which had been delivered to him by Hunt as the resolutions intended to be proposed, and proved that the resolutions he heard read corresponded with that copy; this *5] was held sufficient, though it was objected that the original paper from which the resolutions were read ought to have been produced, or that a notice to produce it ought to have been given. R. v. Hunt, 3 B. & A. 568,5 E. C. L. But this decision was expressly grounded, by Abbott, C. J., who delivered the judgment of the court, on the admission by the prisoner, by the delivery of the copy to the witness, that it contained a true statement of the resolutions passed at the meeting. In a prosecution on the Irish Convention Act, the indictment averred that divers persons assembled together, and intending to procure the appointment of a committee of persons, entered into certain resolutions respecting such committee, and charged the defendant with certain acts done for the purpose of assisting in forming that committee, and carrying the resolutions into effect. To show what was done at the meeting in question, a witness was called, who stated that, at a general meeting, the secretary proposed a resolution, which he read from a paper. The proposition was seconded, and the paper was handed to the chairman and read by him. It was objected that the absence of the paper should be accounted for, before parol evidence of the contents of it was received. But the majority of the court were of opinion that this was not a case to which the distinction between primary and secondary evidence was strictly applicable; that the proposed evidence was intended to show, not what the paper contained, but what one person proposed, and what the meeting adopted; in short, to prove the transactions and general conduct of the assembly; and that such evidence could not be rejected because some persons present took notes of what passed. R. v. Sheridan, 31 How. St. Tr. 672.1 1 See Moor v, Greenfield, 4 Me. 44. In order to prove that a certain ticket in a lottery had drawn a blank, a witness testified that he was a manager of the lottery, that he attended the drawing, and that a ticket with the combination numbers in question drew a blank. The testimony was objected to, because the appointment of a manager could be proved by the record, because the drawing of the lottery could be proved only by the manager's books, and because the result could not be ascertained without producing the scheme. It was held that the testimony was admissible. Barnum v. Barnum, 9 Conn. 242. The rule is, that secondary or inferior shall not be substituted for evidence of a higher nature which the case admits of. The reason of that rule is, that an attempt to substitute the inferior for the higher, implies that the higher could give a different aspect to the case of the party introducing the lesser. "The ground of the rule is a suspicion of fraud." But before the rule is applied, the nature of the case must be considered, to make a right application of it; and if it shall be seen that the fact to be proved is an act of the defendant, which from its nature can be concealed from all others except him whose co-operation was necessary before the act could be complete, then the admission and declarations of the defendant either in writing or to others in relation to the act become evidence. United States v. Wood, 14 Pet. 431. The rule requiring the production of the best evidence is applied to |