* 166 where the parish was described as St. Ethelburg, and proved to be St. Ethelburga, that the variance was fatal (4): so, in an action of ejectment, where the premises were described as situate in the united parishes of A. and B., but were proved to be in the parish of A., and the two parishes were united only for the single purpose of main, taining the poor (5). But where the premises were described as lying in the parish of A. and B., and it appeared in evidence that part lay in A. and part in B., but that there was no such parish as the parish of A. and B., the court held that the word parish was mere surplusage, and that the plaintiff was entitled to recover the lands in B. as well as in A (6). So, where the premises were laid to be in the parish of Farnham, and were proved to be in the parish of Farnham Royal, but it did not appear that there were two Farnhams, the court held that the variance was immaterial (7); so also, in an action for use and occupation, where the premises were proved to lie in the parish of St. Mary Lambeth, but *were described in the declaration as in the parish of Lambeth, which last was the name generally known (1). And this has overruled an older case (a), where a variance between the parish of Chelsea and the parish of St. Luke's Chelsea was held at nisi prius to be fatal (2). In an action for use and occupation, although it is not necessary to describe where the premises lie (3), yet if they are described in the declaration as situ (4) Wilson q. t. v. Gilbert, 2 Bos. & Pul. 281. (5) Goodtitle dem. Pinsent v. (6) Goodtitle dem. Bremridge v. (7) Doe dem. Tollet v. Salter, 13 East 9. (1) Kirtland v. Pounsett, 1 Taunt. 570. (2) And see 3 Taunt. 140. sant in such a close or house, and traverse all other places. Mos- Lit. § 485. Co. Lit. 282. a. b. 2 (a) Cited 13 East's Rep. 9. And see Regina v. Inhabitants of ate in a certain parish, and are proved to be in a different parish, the plaintiff cannot recover (4). Where the parish or place mentioned is mere matter of venue, and not of local description, (as, in an action for a nuisance defamatory to the plaintiff's character, where the declaration stated, that the defendant erected the nuisance complained of, in the parish of A., in a street adjoining to the plaintiff's house, &c.,) the actual situation of the house is immaterial, and the plaintiff may recover, though it should be proved that there is no such parish (5). The same rule which has been laid down with respect to civil actions, applies also to the case of an indictment; on the trial of which, it will be sufficient to show, that the offence was committed in some place within the county or other division; and it seems to be agreed, says Mr. Sergt. Hawkins (6), that a mistake of the place in which an offence is laid will not be material upon the evidence on "not guilty" pleaded, if the fact be proved at some other place in the same county. Where a felony is stated to have been committed at a certain place named in the indictment, and there is no such place in the county, the indictment is void (7) (b). (4) Guest v. Caumont, 3 Campb. 235. (5) Jefferies v. Duncombe, 11 East 226; 2 Campb. 3. S. C. (6) B. 2. ch. 25. s. 84. (7) St. 18 Hen. vi. c. 12. Hawk, Ib. See the case of Goodtitle dem. Bremridge v. Walter, supra, p. 165. (6) Formerly the utmost nicety was required in setting forth a writing, and a mistake in a single letter was sufficient to defeat an action; thus in an information for a libel, where the word nor was written for not, although the sense was not altered thereby, it was held a fatal variance. Regina v. Drake, 2 Salk. 660. So, indicari for indictari, Parker's case, Hutt. 56. So, in stating the name of a corporation, the variance of a letter was held fatal; as when the South Sea Company was named, the company trading "ad maria Austrialia," instead of Australia. Turvil v. Aynsworth, 2 Str. 787. S. C. 2 Ld. Raym. 1515. But the rule now established appears to be, that where the meaning is obvious, a mistake in, or even the omission of a word, will not vitiate. So, on the issue *SECT. VI. That the best Evidence is to be produced, which the Nature of the Case admits. THE next general rule is, that the best evidence must be given (a) of which the nature of the thing is capable (1). (1) Gilb. Ev. 13. Bull. N.P. 293. of nul tiel record, where one was Segrave and the other Seagrave, the court held it no variance, quia idem sonans. Williams v. Ogle, 2 Str. 889. So, in an indictment for perjury in an affidavit, the word understood, in setting out the affidavit, was written undertood, and it was held immaterial. Rex v. Beach, Cowp. 229. So, in an indictment for forging a bill of exchange, which was set forth in the indictment secundum tenorem, and in the bill produced in evidence, the word received was written recievd, the variance was held not to be fatal. Rex v. Hart, 1 Leach 172. In an indictment for perjury in reciting that part of an indictment for assault and battery, where it was alleged that his life was greatly despaired of, the word despaired was entirely omitted; and Buller, J. overruled the objection of a variance. Rex v. May, 1 Leach 227. In an action for a libel, the libellous matter set forth in the declaration, contained the words U. States, and in the paper produced in evidence it was written United States, the variance was held immaterial, this being a common and well understood abbreviation; or, if the U. might be rejected, still the sense and meaning of the libel would be the same; and the court may look at the context in order to judge of the materiality of the variance. Lewis v. Few, 5 Johns. Rep. 1. Where the declaration stated a libel to have been published in a newspaper called The Ontario Messenger, and the paper produced was headed Ontario Messenger, it was held that this was not a variance. Southwick v. Stevens, 10 Johns. Rep. 443. An insensible or nonsensical word inserted in the declaration, setting out a writing, may be rejected as surplusage. King v. Pippet, 1 Term. Rep. 235. 62. (a) Vide Smith and others v. Carrington and others, 4 Cranch Wood v. Roach, 2 Dall. 180. Thompson v. Bullock, 1 Bay 364. Torrey v. Fuller, 1 Mass. Rep. 524. The true meaning of this rule is, not that courts of law require the strongest possible assurance of the matter in question, but that no evidence shall be given, which, from the nature of the thing, supposes still greater evidence behind in the party's possession or power; for, such evidence is altogether insufficient, and proves nothing, but carries with it a presumption contrary to the intention for which it is produced. Thus, if a party offer a copy of a deed or will, where he is able to produce the original, this raises a presumption, that there is something in the deed or will, which, if produced, would make against the party; and, therefore, the copy in such a case is not evidence. But, if he prove the original deed or will to be in the hands of the adverse party, to whom he has given notice to produce it, or that the original has been destroyed without his default, no such presumption can reasonably be made, and a copy will be admitted, because then such copy is the best evidence that can be produced (2). For the same reason parol evidence is not admissible to prove the contents of a license from the crown, though the license is lost, because there must be some register of it at the secretary of state's office, and that register would be better than parol evidence (3) (b). (2) Gilb. Ev. 13. Bull. 293. Gar- (3) Rhind v. Wilkinson, 2 Taunt. nons v. Swift, 1 Taunt. 507. 237. (b) So, the declarations of a person who might have been produced as a witness are inadmissible. 2 Day 126. Alexander v. Mahon, 11 Johns. Rep. 185. A witness cannot testify as to the contents of a paper in his possession; it should be produced. Richards v. Stewart, 2 Day 328. Where on an indictment for forgery of a bank note, a witness was produced to prove the identity of the bill, on which he had not made any private artificial mark, although there were accidental marks on it, and which, after he had received it, had been out of his possession; it was held, that if he had made any private artificial mark to which he could positively swear, his testimony would be admissible, but not having done so, the person in whose possession the note had been ought to have been produced, as the highest evidence. Commonwealth v. Kin son, 4 Mass. Rep. 646. * 168 This principle is strongly illustrated by a late case (4), where the question was, whether the defendants had put on board the plaintiff's ship some articles of a combustible *and dangerous kind, without giving due notice of their nature. It appeared in evidence at the trial, that the goods were delivered by the officer of the defendants, with a written order to the plaintiff to receive them, in which order nothing was said as to their nature, that they were received by the chief mate of the plaintiff's ship, who had since died, and that no other person was present at the time of the delivery. It was further proved, by the captain of the ship and the second mate, that no communication had been made to either of them, nor, as far as they knew, to any other person on board. Upon this evidence the plaintiff, who had to prove the negative, was nonsuited, on the ground that he had not given the best evidence' of the want of notice, which it was in his power to produce, by calling the company's officer, who delivered the articles on board. And the nonsuit was afterwards affirmed by the Court of King's bench. "The best evidence, (said Lord Ellenborough in delivering the opinion of the court,) should have been given, of which the nature of the case was capable. The best evidence was to have been had, by calling, in the first instance, upon the persons immediately and officially employed in the delivering and in the receiving of the goods on board, who appear in this case to have been the first mate, on the one side, and the military conductor, the defendant's officer, on the other; and though the one of these persons, the matę, was dead, that did not warrant the plaintiff in resorting to an inferior and secondary species of testimony, (namely, the presumption and inference arising from a non-communication to the other persons on board), as long as the mili tary conductor, the other living witness, immediately and primarily concerned in the transaction of shipping the goods on board, could be resorted to; and no impossibi (4) Williams v. East India Company, 3 East 193. 201. |