But before such evidence can be allowed it must be clearly made to appear that the superior evidence is not to be had. The person who possesses it must be applied to, whether he be a stranger or the opposite party : in the case of a stranger, a subpoena and attachment, when proper, must be taken out and served ; and in the case of a party, notice to produce such primary evidence must be proved before the secondary evi dence will be admitted. 7 Serg. & R. Penn. 116; 4 Binn. Penn. 295, note ; 6 id. 228, 478; 7 East, 66; 8 id. 278; 3 Barnew. & Ald. 296. After proof of the due execution of the original, the contents should be proved by a counterpart, if there be one, for this is the next best evidence ; and it seems that no evi dence of a mere copy is admissible until proof has been given that the counterpart cannot be produced. 6 Term, 236. If there be no counterpart, a copy may be proved in evi dence by any witness who knows that it is a copy, from having compared it with the ori ginal. Buller, Nisi P. 254 ; 1 Kebl. 117; 6 Binn. Penn. 234 ; 2 Taunt. 52 ; 1 Campb. 469 ; 8 Mass. 273.. If regularly recorded, an office copy may be given in evidence. If there be no copy, the party may produce an abstract, or even give parol evidence of the contents of a deed. 10 Mod. 8; 6 Term, 556.
But it has been decided that there are no degrees in secondary evidence; and when a party has laid the foundation for such evi dence, he may prove the contents of a deed by parol, although it appear that an attested copy is in existence. 6 Carr. & P. 206; 8 id. 389.
Prima facie evidence is that which appears to be sufficient proof respecting the matter in question, until something appears to con trovert it, but which may be contradicted or controlled.
Conclusive evidence is that which esta blishes the fact: as in the instance of conclu sive presumptions.
Evidence may bee conclusive for some pur poses but not for others.
S. Admissibility of evidence. In consider ing the legal character of evidence, we are naturally led to the rules which regulate its competency and admissibility, although it is not precisely accurate to say that evidence is in its legal character competent or incom petent ; because what is incompetent for the consideration of the tribunal which is to pro nounce the decision is not, strictly speaking, evidence.
But the terms incompetent evidence and inadmissible evidence are often used to de signate what is not to be heard as evidence: as, witnesses are spoken of as competent or incompetent.
As the common law excludes certain clasees of persons from giving testimony in particu lar cases, because it deems their exclusion conducive, in general, to the discovery of the truth, so it excludes certain materials and statements from being introduced as testi mony in a cause, for a similar reason. Thus,
as a general rule, it requires witnesses to speak to facts within their own knowledge, and excludes hearsay evidence.
Hearsay is the evidence, not of what the witness knows himself, but of what he has heard from others.
Such mere recitals or asaertions cannot be received in evidence, for many reasons, but principally for the following :—first, that the party making such declarations is not on oath; and, secondly, because the party against whom it operates has no opportunity of cross-examin ation. 1 Phillipps, Ev. 185. See, for other reasons, 1 Starkie, Ev. pt. 1, p. 44. The gene ral rule excluding hearsay evidence does not apply to those declarations to which the party le privy, or to admissions which he himself has made.
Admissions are the declarations which a party by himself, or those who act under his authority, make of the existence of certain facts. See AnmissioN.
A statement of all the distinctions between what is to be regarded as hearsay and what ie to be deemed original evidence would ex tend this article too far.
The general principle is that the mere de claration, oral or written, of a third person, as to a fact, standing alone, ie inadmiasible.
9. Res gesice. But where evidence of an act done by a party is admissible, his declara tions made at the time, having a tendency to elucidate or give a character to the act, and which may derive a degree of credit from the act itself, are also admissible, as part of the res gestce. 9 N. II. 271.
So, declarations of third persons, in the presence and hearing of a party, and which tend to affect his interest, may be shown in order to introduce his answer or to show an admission by his silence.
Confessions of guilt in criminal cases come within the class of admissions, provided they have been voluntarily made and have not been obtained by the hope of favor or by the fear of punishment. And if made under such inducements as to exclude them, a subse quent declaration to the same effect, made after the inducement has ceased to operate, and having no connection with the hopes or fears which have existed, is admissible ae evidence. 17 N. H. 171. See AnxissioNs; COZTFESSION.
10. Dying declarations are an exception to the rule excluding hearsay evidence, and are admitted, under certain limitations in cases of homicide, so far as the circumstances attend ing the death and its cause are the sulject of them. See DECLARATION; DYING DECLARA