Letters. Allotments. Contracts. Terms of tenancy. It was decided in the Queen's case, (1) that it is not allowable, on cross-examination, in the statement of a question to a witness, to represent the contents of a letter, and to ask the witness, whether he wrote a letter to any person with such contents, or to the like effect; because the counsel might thus put the Court in possession of a part only of the contents of a written paper. And even if the witness acknowledges the letter to be in his handwriting, he cannot be questioned as to it's contents, but the whole letter must be read in evidence. So, where the inquiry was as to the existence of allotments, made by inclosure commissioners in another mode, than in and by the execution of their award, it was considered that, if such allotments were made, they must be in writing, and therefore the minutes of the commissioners were the primary evidence of them, and no other evidence of such allotments could be given, until a search had been made after the minutes. (2) Oral evidence cannot be substituted for any written conveyance or contract. (3) The written instrument in such cases may in some measure be regarded as the ultimate fact to be proved. especially where the question relates to the proof of deeds and negociable securities; and the principal object of committing contracts of every kind to writing is the intention of the parties to preserve a memorial of them, more lasting and more authentic than oral testimony. Accordingly, a plaintiff is not permitted to recover in an action for use and occupation, or ejectment, where there is a written contract of tenancy, without producing it. (4) If it comes out upon cross-examination of the plaintiff's (1) 2 Br. & B. 286. Crowley v. (2) Bendyshe v. Pearse, 1 Br. & (3) B. N. P. 246, as to Wills. Vide infra, part 2, as to the admissibility of parol evidence, of what is termed suppletory matter, not varying the written terms. Jeffery v. Walton, 1 St. 269. (4) Brewer v. Palmer, 3 Esp 213. Fenn d. Thomas t. Gri fith, 6 Bing. 533. Rex v. Inhabi tants of Castle Morton, 3 B. & A 588, where the contract was lost but was not stamped. Rex Inhabitants of Rawden, 8 B. C. 708. Dover v. Mestaer, 5 Esp. 92It is not sufficient to nonsuit the plaintiff, by the evidence of his witness, that there is an agreement, in writing, relative to the land. Da witnesses, that there is a written agreement, he must produce it; but if he makes out a prima facie case, without shewing that there was any written contract, the other party, if he relies on that written contract, must produce it; (1) otherwise the plaintiff might, on a mere assertion of the defendant, be nonsuited for the non-production of a written instrument, which, if it had been produced, might turn out not to apply to the conract in question. nancy. Where the single fact of the occupation of land is in issue, Fact of teuch fact may be proved by payment of rent, declarations of he tenant, or other parol evidence sufficient to establish it, otwithstanding it appears that the holding is under an agreeent in writing; (2) but where the question is not merely as the occupation of land, but as to the person under whom is held, if there be a written agreement shewing that fact, it just be produced. (3) labor. The same doctrine applies to every species of written con- Work and acts, as well as to contracts between landlord and tenant. (4) nan action for work and labor, when it is shewn that the work as commenced under a written agreement, the agreement aght to be produced, and the plaintiff cannot recover without for extras; for the written contract might be of importance Extras. fen with respect to the extra work, as furnishing some evi Wood . Morris, 12 East, 237. hearwood v. Pearson, 12 East, 39. Per Park, J., 5 Bing. 150. (1) Rex v. Padstow, 4 B. & Ad. 10. Fenn d. Thomas v. Grifth, 6 Bing. 533. Fielder v. Ray, Bing. 332, where plaintiff proved contract by parol, and it was held hat he could not be nonsuited by he defendant producing an tamped written agreement. Per Littledale, Reed v. Deene, 7 B. & un 266. Stephens v. Pinney, 8 Faunt. 327, where the defendant had neglected to give the plaintiff notice to produce. Per Bayley, J., Rex v. Rawden, 8 B. & C. 708. (2) Rex v. Holy Trinity, Hull, 7 B. & C. 611. Strother v. Barr, 5 Bing. 136, commented on in Doe v. Harvey, 8 Bing. 241. (3) Doe v. Harvey, 8 Bing. 241. In Strother v. Barr, 5 Bing. 136, the Court of Common Pleas were divided upon the question, whether, in an action for injury to the reversion, it is competent to prove the occupier's holding by parol, when he holds under a written agreement. See Cotterill v. Hotby, 4 B. & C. 465. (4) Polices of insurance, Rex v. Gilson, R. & R. 138. Rex v. Dovan, 1 Esp. 127. The policies were held to be better evidence than the books of the insurance office. Resolution of Committee, in an action by Secretary Whitford . Tuting, 10 Bing. 395. Collateral writing. Written substituted evidence. dence between the parties as to the rate, at which the work should be paid for. With respect to the Judge, in such a case, looking at an unstamped agreement, in order to see, whether it referred to the items, claimed to be received independently of it: Lord Tenterden observed, that such a practice would be attended with too much inconvenience. (1) Where, however, a written communication or agreement between parties is collateral to the question in issue, it need not be produced; as, where the writing is a mere proposal, which has not been acted upon, (2) or where, during an employment under a written contract, a separate order is given by parol, (3) or where the action is not in the form of assumpsit upon the agreement, but in tort for the conversion of it. (4) The questions, usually occurring in practice, relate to the reception of oral testimony; but the principle of the rule equally applies to the substitution of testimony which is written. Thus, on the trial of a person charged with having wilfully, with intent to injure an insurance company, set fire to a house, which he had insured at the company's office, it was, held not allowable to prove the insurance by the books of the company, without giving the prisoner a regular notice to produce the policy. (5) (1) Vincent v. Cole, M. & M. 258. Rex. v. Pendleton, 15 East, 449. (2) Doe d. Bingham v. Cartwright, 3 B. & A. 326. Dalisen v. Stark, 4 Esp. 163. Stevens v. Pinney, 8 Taunt. 328. Hawkins v. Warr, 3 B. & C. 698. Wilson v. Bowie, 1 C. & P. 8. Ramsbottom v. Tunbridge, 2 M. & S. 434, signed paper delivered by auctioneer. Edgar v. Blake, 1 St. 464, a prospectus. Ingram v. Lea, 2 Camp. 521, order for goods. (3) Reed v. Battie, M. & M. 413. (4) See Bucher v. Jarret, 3 B. & P. 143. Jolly v. Taylor, 1 Camp. 143. Davis v. Reynolds, 1 St. 115. How v. Hall, 14 East, 274. Doe d. Wood v. Morris, 12 East, 237. Shearwood v. Pearson, ib. Per Park, J., 5 Bing. 150. Dover v. Mastaer, 5 Esp. 92. So where the foundation of the action is a written security, but the immediate demand is for monies received. Bayne v. Stone, 4 Esp. 13. See Ingram v. Lea, 2 Camp. 521. In trover for a written document, the plaintiff may prove the description of the document by secondary evidence, though the defendant offers to produce it. Whitehead v. Scott, 1 M. & Ro. 2. (5) Rex. v. Doran, 1 Esp. 127. Rex v. Gibson, R. & R. 138. So, if it should be material for a plaintiff, in reply to the case of the defendant, to prove the contents of a registered deed, which is in the defendant's possession, the memorial of the deed would not be admissible for that purpose, unless there had been previously a notice given to the defendant to produce the original; (1) and numerous other examples occur to the like effect. The rule has reference to the substitution of evidence, whether it be of the same or of inferior degree. (2) record. Where the law requires an entry to be made in a Court of Matter of Justice of particular transactions, the official entry excludes all independent evidence of the transaction. Thus, parol evidence was held not admissible to prove the taking of oaths required by the Toleration Act, as the fact would be recorded in the Court where the oaths were taken. (3) In like manner, parol evidence is not admissible of the day on which a cause came on to be tried, as it is capable of proof by matter of record. (4) Upon a question whether the Abbey de Sentibus was an inferor abbey, or not, Dugdale's Monasticon was refused, because the original record was to be found in the Augmentation Office. (5) And it has been seen that even an admission of a party does not supersede direct proof of matter of record, by which it is sought to affect him. (6) Where an official memorandum, not strictly of record, is re- Official memoquired by law to be made, of the particulars of any statement, randum. all evidence, in substitution of such memorandum, is, in general to be excluded. (7) Thus, no parol evidence can be Prisoner's exa (1) Molten. q. t. v. Harris, 2 Esp. 548, and see Underhill v. Watts, 3 Esp. 56. (2) It would seem that there were no degrees of secondary evidence, Brown v. Woodman, 6 C. & P. 206; but see Rex v. Castleton, 6 T. R. 236. B. N. P. 254. Liebman v. Pooley, 1 St. 167, that a copy of a copy is not the best secondary evidence. (3) Rex v. Hube, Peake, 131. The same doctrine applies to the proceedings of Courts which are not of Record, and apparently to the proceedings of inferior Courts, (4) Thomas v. Ansley, 6 Esp. 80. (5) Salk. 281. (6) Vide supra, Scott v. Clare, 3 Camp. 236. (7) The rule in the cases about to be noticed seems more rigid than in regard to the proceedings of Courts before mentioned, which are allowed to be proved by examined copies. mination. Informal examination. given of a prisoner's confession before a magistrate, whilst he is under a charge of felony or misdemeanor, unless it be first proved, that the confession was not taken down in writing, pursuant to the provisions of the statute 7 Geo. 4, c. 64. (1) It will be presumed, until the contrary is shewn, that the prisoner's examination has been taken down in writing, in conformity with the statute. (2) It has been thought, in some cases, that after the production of the prisoner's examination in writing, it is competent to prove by parol any thing which the prisoner may have said before the magistrate, in addition to what appears in the written examination, on the ground, apparently, that such evidence is not in substitution of any thing which is in writing. (3) But as such parol statements may materially affect the written examination, and as they are liable to considerable suspicion, from the circumstance of their not having been taken down by the magistrate, they ought to be received with the greatest caution. (4) A written examination will not exclude a parol confession, made previously to the prosecutor or other person than the magistrate. (5) Where the confession of a prisoner before a magistrate has been taken down in writing, but the written examination is informal, in consequence of not being signed, or being signed before the evidence was concluded, or not being properly headed, or from some other cause of informality, there is no longer any (2) Rex v. Jacobs, Leach, 349. Rex v. Hickman, ib. Rex v. Fisher, ib. Rex v. Hall, ib. Rex v. Fearshere, ib. B. N. P. 298. Hawk. c. 46, s. 43. Phillips v. Wimburn, 4 C. & P. 273. (3) Rex v. Harris, Mo. Cr. Ca. 338. See Rowland v. Ashby, R. & M. 231. In Rex v. Spilsbury, 7 C. & P. 188, parol evidence was given of what the prisoner said while the witnesses were under examination, and which was not taken down, not being part of his defence. (4) In Rex v. Lewis, 6 C. & P. 162, in which Rex v. Harris was cited, Gurney, B., refused to receive similar evidence. In Rex v. Rivers, 7 C. & P. 177, parol evidence was refused, but the examination purported to have been sworn, and the magistrate's signature was held to be conclusive of this fact. In Rex v. Walter, 7 C. & P. 267, the magistrate returned that the prisoner said, "I decline to say any thing." After which, Lord Abinger refused to hear parol evidence of a confession made before the magistrate. (5) Rex v. M'Carty, Macn. 45. |