Page:The American Cyclopædia (1879) Volume VII.djvu/17

 EVIDENCE 9 the practice of the courts. One is that the best evidence must always be produced ; or in other words, that inferior evidence will not be received when a party has it in his power to produce better. But it does not follow, as be- fore remarked, that when a party has not the power to produce the best, any other without restriction is admissible. The secondary proof must still be such as is held competent under other rules, or it will be rejected. The mean- ing of the rule is that inferior evidence, al- though otherwise competent, shall not be ad- mitted when better can be had. We have before adverted to the distinction between writings or documentary proof, and oral or, as it is usually called, parol evidence. The dis- tinction is founded upon the uncertainty of memory. Whatever has been put in writing can never be proved by mere recollection with perfect exactness ; the writing itself is of course the most trustworthy, and according to the rule above mentioned it must be produced or its loss proved before its contents can be shown by other evidence; and this is true whether the writing relates to the principal fact or subject of the action, or is merely incidental. Again, when the question is as to a fact re- specting which there is evidence in writing, but an offer is made to prove the fact by evi- dence aliunde without producing the writing or proving its contents, the rule is that if the writing was the concurrent act of both parties, as if it was signed by them or was prepared with the privity of both as an expression of their mutual understanding, it is thereby con- stituted the primary evidence of the fact to which it relates, and must be produced. This includes not merely a written contract which is the subject of the action or defence, but any other writing which the parties have agreed upon as the expression of any fact incidentally involved in the action. There is this difference, however, between the two cases : that in the former no other proof can be received but the instrument itself, or if lost, proof of its con- tents ; whereas in the latter there may be other evidence bearing upon the same point which is admissible, together with the writing, and in some instances without it, where it is not intentionally withheld. Thus a written correspondence between the parties may be material to show their understanding in re- spect to some transaction, but this would not preclude proof of conversations or other acts. If, however, the correspondence contains a contract, then, according to another rule, no other evidence can be received except what is necessary for the proper explanation of the meaning of the parties in the language used by them. It is not material which party has pos- session of the writing ; the rule is the same in either case. If wanted by one party, and the other has possession of it, upon notice by him to the other to produce it, and its non-produc- tion, he may give parol evidence of its con- tents. It is to be understood that the rule above mentioned applies only to a writing in which both parties have concurred. When it is a memorandum by one without the privity of the other, it cannot be evidence at all, ex- cept under the recent modification of the law of evidence allowing parties to be witnesses, and is subject to the same rule that applies to any other witness. The rule as to a memoran- dum made by a witness at the time of the trans- action referred to in it is, that he may refer to it for the purpose of refreshing his memory; but having done so, he is to testify what with this aid he is able to recollect. But if he has no recollection independent of the memoran- dum, the later doctrine is that on proving that it was made at the time of the transaction re- ferred to, and that he then had knowledge of the subject, the memorandum itself may be put in evidence. The mode of proving a writing which is attested by a subscribing witness is peculiar. In such a case the subscribing wit- ness must be called if living and within the ju- risdiction of the court ; but if dead or absent from the country, proof of his handwriting or that of the party will be sufficient to make the instrument evidence. The exclusion of proof of execution by any other person than the sub- scribing witness has often been the occasion of inconvenience ; and the reason usually assigned for it, viz., that the subscribing witness is sup- posed to have some knowledge of the subject which another would not have, is certainly very singular, as if he had such knowledge he would not be allowed to testify to it, if it would at all vary the effect of the instrument. In England, by acts 17 and 18 Victoria, c. 125 (1854), a subscribing witness to an instrument which is not required by law to be attested need not be called, but the instrument may be proved in the same manner as if there was no such witness. The rule that parol evidence is not admissible to contradict, vary, or explain a written instrument has been before referred to, and certain exceptions or qualifications were mentioned ; but it should be added that in a proper proceeding instituted to reform the in- strument, it may always be shown that, through accident, mistake, or fraud, it was not made to express the real intent and contract of the party. Such a proceeding must be in chancery, except where the common-law courts are vest' ed with equity jurisdiction. In the examina- tion of witnesses, a very different mode is pre- scribed to the party calling a witness from what is 'allowed to the opposite party. The counsel of the former must not put leading questions, and if the witness should make adverse or un- satisfactory answers, still he was deemed the witness of the party and could be examined only in accordance with that theory ; that is to say, he could not be cross-examined by such party. This at least was formerly the rule, but it has recently been relaxed so far as to allow him to be treated to some extent as an adverse witness, when it is apparent that he is so. On the other hand, cross-examination by the other