Page:EB1911 - Volume 10.djvu/31

Rh evidence is meant a copy of the document, or verbal accounts of its contents.

The rule as to the inadmissibility of a copy of a document is applied much more strictly to private than to public or official documents. Secondary evidence may be given of the contents of a private document in the following cases:  (a) Where the original is shown or appears to be in the possession of the adverse party, and he, after having been served with reasonable notice to produce it, does not do so.

(b) Where the original is shown or appears to be in the possession or power of a stranger not legally bound to produce it, and he, after having been served with a writ of subpoena duces tecum, or after having been sworn as a witness and asked for the document, and having admitted that it is in court, refuses to produce it.

(c) Where it is shown that proper search has been made for the original, and there is reason for believing that it is destroyed or lost.

(d) Where the original is of such a nature as not to be easily movable, as in the case of a placard posted on a wall, or of a tombstone, or is in a country from which it is not permitted to be removed.

(e) Where the original is a document for the proof of which special provision is made by any act of parliament, or any law in force for the time being. Documents of that kind are practically treated on the same footing as private documents.

(f) Where the document is an entry in a banker’s book, provable according to the special provisions of the Bankers’ Books Evidence Act 1879.

Secondary evidence of a private document is usually given either by producing a copy and calling a witness who can prove the copy to be correct, or, when there is no copy obtainable, by calling a witness who has seen the document, and can give an account of its contents. No general definition of public document is possible, but the rules of evidence applicable to public documents are expressly applied by statute to many classes of documents. Primary evidence of any public document may be given by producing the document from proper custody, and by a witness identifying it as being what it professes to be. Public documents may always be proved by secondary evidence, but the particular kind of secondary evidence required is in many cases defined by statute. Where a document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom is admissible as proof of its contents, if it is proved to be an examined copy or extract, or purports to be signed or certified as a true copy or extract by the officer to whose custody the original is entrusted. Many statutes provide that various certificates, official and public documents, documents and proceedings of corporations and of joint stock and other companies, and certified copies of documents, by-laws, entries in registers and other books, shall be receivable as evidence of certain particulars in courts of justice, if they are authenticated in the manner prescribed by the statutes. Whenever, by virtue of any such provision, any such certificate or certified copy is receivable as proof of any particular in any court of justice, it is admissible as evidence, if it purports to be authenticated in the manner prescribed by law, without calling any witness to prove any stamp, seal, or signature required for its authentication, or the official character of the person who appears to have signed it. The Documentary Evidence Acts 1868, 1882 and 1895, provide modes of proving the contents of several classes of proclamations, orders and regulations.

If a document is of a kind which is required by law to be attested, but not otherwise, an attesting witness must be called to prove its due execution. But this rule is subject to the following exceptions:

 (a) If it is proved that there is no attesting witness alive, and capable of giving evidence, then it is sufficient to prove that the attestation of at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

(b) If the document is proved, or purports to be, more than thirty years old, and is produced from what the court considers to be its proper custody, an attesting witness need not be called, and it will be presumed without evidence that the instrument was duly executed and attested.

Where a document embodies a judgment, a contract, a grant, or disposition of property, or any other legal transaction or “act in the law,” on which rights depend, the validity of the transaction may be impugned on the ground of fraud, incapacity, want of consideration, or other legal ground. But this seems outside the law of evidence. In this class of cases a question often arises whether extrinsic evidence can be produced to vary the nature of the transaction embodied in the document. The answer to this question seems to depend on whether the document was or was not intended to be a complete and final statement of the transaction which it embodies. If it was, you cannot go outside the document for the purpose of ascertaining the nature of the transaction. If it was not, you may. But the mere statement of this test shows the difficulty of formulating precise rules, and of applying them when formulated. FitzJames Stephen mentions, among the facts which may be proved in these cases, the existence of separate and consistent oral agreements as to matters on which the document is silent, if there is reason to believe that the document is not a complete and final statement of the transaction, and the existence of any usage or custom with reference to which a contract may be presumed to have been made. But he admits that the rules on the subject are “by no means easy to apply, inasmuch as from the nature of the case an enormous number of transactions fall close on one side or the other of most of them.” The underlying principle appears to be a rule of substantive law rather than of evidence. When parties to an arrangement have reduced the terms of the arrangement to a definite, complete, and final written form, they should be bound exclusively by the terms embodied in that form. The question in each case is under what circumstances they ought to be treated as having done so.

The expression “parol evidence,” which includes written as well as verbal evidence, has often been applied to the extrinsic evidence produced for the purpose of varying the nature of the transaction embodied in a document. It is also applied to extrinsic evidence used for another purpose, namely, that of explaining the meaning of the terms used in a document. The two questions, What is the real nature of the transaction referred to in a document? and, What is the meaning of a document? are often confused, but are really distinct from each other. The rules bearing on the latter question are rules of construction or interpretation rather than of evidence, but are ordinarily treated as part of the law of evidence, and are for that reason included by FitzJames Stephen in his Digest. In stating these rules he adopts, with verbal modifications, the six propositions laid down by Vice-Chancellor Wigram in his Examinations of the Rules of Law respecting the admission of Extrinsic Evidence in Aid of the Interpretation of Wills. The substance of these propositions appears to be this, that wherever the meaning of a document cannot be satisfactorily ascertained from the document itself, use may be made of any other evidence for the purpose of elucidating the meaning, subject to one restriction, that, except in cases of equivocation, i.e. where a person or thing is described in terms applicable equally to more than one, resort cannot be had to extrinsic expressions of the author’s intention.

1. Attendance.—If a witness does not attend voluntarily he can be required to attend by a writ of subpoena.

2. Competency.—As a general rule every person is a competent witness. Formerly persons were disqualified by crime or interest, or by being parties to the proceedings, but these disqualifications have now been removed by statute, and the circumstances which formerly created them do not affect the competency, though they may often affect the credibility, of a witness.

Under the general law as it stood before the Criminal Evidence Act 1898 came into force, a person charged with an offence was not competent to give evidence on his own behalf. But many exceptions had been made to this rule by legislation, and the rule itself was finally abolished by the act of 1898. Under that law a person charged is a competent witness, but he can only give evidence for the defence, and can only give evidence if he himself applies to do so. Under the law as it stood before 1898, persons jointly charged and being tried together were not competent to give evidence either for or against each other. Under the act of 1898 a person charged jointly with another is a competent witness, but only for the defence, and not for the prosecution. If, therefore, one of the persons charged applies to give evidence his cross-examination must not be conducted with a view to establish the guilt of the other. Consequently, if it is thought