One may show, by his own testimony, the terms of a parol agreement between himself and another. It cannot be contended that such evidence is not the best evidence.95

A witness is competent to testify to his own age and birth, though his parents be living and within the court's jurisdiction."

§ 1075. Matters evidenced by writing

When facts or transactions are described in or evidenced by writing the instrument itself is the best evidence, and oral evidence. cannot be introduced, unless proof is first made that the instrument has been lost or destroyed, or cannot with due diligence be produced.97

eral grounds, it is not error to admit secondary evidence, though it might not otherwise be admissible. Williams v. Joins, 126 P. 1013, 34 Okl. 733. 95 Beyle v. Reid, 1 P. 264, 31 Kan. 113.

96 Harris v. Hart, 49 Okl. 143, 151 P. 1038.

The evidence of a father and mother, cognizant of their child's birth, is primary evidence of its date or the age of the child, although there is a written record thereof in the family Bible. State v. Woods, 30 P. 520, 49 Kan. 237.

97 Where an account against a county board of health is presented to a board of county commissioners for approval, parol evidence is inadmissible to show what the board of health has done with reference to the necessary auditing of the account, in the absence of evidence of the loss of the record required to be kept by such board. Cooke v. Board of Com'rs of Custer County, 73 P. 270, 13 Okl. 11.

Oral proof as to the number of ties bought, though an account of such ties is kept in books in due course of business, is admissible without laying any predicate as to such books. McCants v. Thompson, 115 P. 600, 27 Okl. 706. Admission of oral testimony that a carrier charged a rate in excess of that established by the Interstate Commerce Commission held error, as not the best evidence of the established rate. Chicago, R. I. & P. Ry. Co. v. Champlin Lumber Co., 47 Okl: 430, 149 P. 119.

Oral testimony of the removal of restrictions and sale by order and under the rules of the Department of the Interior held incompetent; the department's records being the best evidence under Act Cong. April 26, 1906, § 8, and Comp. Laws Okl. 1909, § 5892. McKemie v. Albright, 44 Okl. 405, 144 P. 1027.

Since Rev. Laws 1910, § 6109, prescribes the manner in which a surety may be released from liability on a bail bond by a surrender of the principal, parol evidence to prove a surrender in an action on a forfeited bond is inadmissible. Edwards v. State, 136 P. 577, 39 Okl. 605.

Kansas cases.-Marriage may be proven by acknowledgment and declaration of the parties, their conduct and general reputation, without first showing that record evidence of testimony of an eyewitness of the marriage is not available. Tyner v. Schoonover, 100 P. 478, 79 Kan. 573.

Any act of a corporation, which must necessarily be performed by its board

Parol evidence of the contents of a written instrument is inadmissible, where the instrument itself can be produced.98

To render such testimony admissible, it must appear by competent testimony that writing has been lost or destroyed or is otherwise unavailable through no fault of party offering such secondary evidence.99

Parol evidence as to acts or transactions described in or evidenced

of trustees, and a record thereof kept, cannot be proven by parol evidence, in the absence of any proof of the nonexistence of such record, or that such record, if any exists, is inaccessible to the party offering such proof. Beeler v. Highland University Co., 54 P. 295, 8 Kan. App. 89.

On a question whether defendant or another railway company was the em ployer of plaintiff, it was error to permit of parol evidence that certain time checks were inade out in the name of defendant, when there was no evidence that they had been lost or destroyed, or that search had been made, or notice to produce them served. Chicago, K. & N. Ry. Co. v. Brown, 24 P. 497, 44 Kan. 384.

A benefit certificate provided that in case of accident the member should receive such sum as was authorized by the conditions of the ratebook. Held, in an action against the society after an accident, that plaintiff must show the nonexistence of a ratebook before oral testimony is admissible as to the amount of indemnity agreed to be paid when the certificate was issued. National Benev. Soc. v. Oldham, 78 P. 163, 70 Kan. 79.

Where city purchased realty occupied by association as tenant of former owner, held, that secretary of association who was member of city council might testify to fact of attornment and tenancy under the city without production of record of city council's proceedings. City of Dunlap v. Waters, 161 P. 641, 99 Kan. 257.

In action for termination of contract appointing plaintiff purchasing agent and for breach of supplemental contract making him sole purchasing agent for five years, it was not error to reject oral testimony of written reorganization agreements between defendant company and its predecessor with whom contracts were originally made. Smith v. Hutchinson Box Board & Paper Co., 104 Kan. 732, 180 P. 983.

In an action on a contract whereby plaintiff was to furnish money and defendant conduct a business for plaintiff in his name, plaintiff may show by his own parol testimony how much was paid out for the first purchase of goods. Beyle v. Reid, 1 P. 264, 31 Kan. 113.

98 Pilcher v. Atchison, T. & S. F. R. Co., 7 P. 613, 34 Kan. 46; Roberts v. Dixon, 31 P. 1083, 50 Kan. 436.

99 Adams v. King (Okl.) 170 P. 912.

It is error to admit proof of the contents of a written instrument by secondary evidence until the loss of the original has been clearly shown, or its absence satisfactorily accounted for. Richardson v. Fellner, 60 P. 270, 9 Okl, 513.

The published schedule rates filed with and approved by Interstate Commerce Commission are the best evidence of the tariff in force fixing the legal rates on a shipment between certain points, and statements by carrier's agent

by corporate records is inadmissible, without any excuse for the absence of the corporate records, and without any attempt to produce a certified copy from the books of the corporation.1

§ 1076. Public records

Records of a public office can be proven only by the originals or by certified copies thereof.2

Parol evidence is not admissible to prove the facts recited in judicial records, or the nature of judicial proceedings.3

Parol evidence is inadmissible to prove the existence of a foreign judgment.*

A judgment rendered, but not entered on the journal, as required by law, cannot be shown by secondary evidence. But parol evi

are inadmissible to establish correct rate. St. Louis, I. M. & S. Ry. Co. v. McNabb, 63 Okl. 87, 162 P. 811.

The statements of a witness that the act of the railroad company in leaving their train standing across the street was a violation of a city ordinance was incompetent. The existence of the ordinance should have been shown by the records of the city. Missouri Pac. Ry. Co. v. Cooper, 45 P. 587, 57 Kan. 185.

If a contract of agency is in writing, the written instrument is the best evidence. Ford Motor Co. v. Livesay, 61 Okl. 231, 160 P. 901.

1 Where it is shown, and is uncontradicted, that the plaintiffs, who participated as officers in an illegal agreement, the basis of the action, to divide the assets of a corporation between themselves and with one of the defendants, had themselves removed the books of the corporation out of the jurisdiction of the court, in order to defeat the effect of an order of the court, which was expected, appointing a receiver to take possession of the assets of the corporation, and to prevent that officer, if appointed, from ascertaining from the records what the facts were relating to the company's affairs, and that no reasonable efforts have been made to retain or recover them by the plaintiffs, secondary evidence of what those records contained should be refused and rejected. Barnes v. Lynch, 59 P. 995, 9 Okl. 11, 156.

MacRae v. Kansas City Piano Co., 68 P. 54, 64 Kan. 580.

The state of public records respecting the ownership of a mortgage on land at a particular time cannot be established by the original mortgage. Farm Land Mortgage & Debenture Co. v. Elsbree, 40 P. 906, 55 Kan. 562.

Under Rev. Laws 1910, § 5112, and U. S. Comp. St., § 1497, parol evidence is competent to prove existence of a national bank, where its existence is called in question collaterally. Farmers' Nat. Bank v. Johnston (Okl.) 176 P. 236, 3 A. L. R. 99.

La Clef v. Campbell, 45 P. 461, 3 Kan. App. 756.

4 Gamel v. Hynds (Okl.) 171 P. 920.

Cockrell v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St. Rep. 737.

HON.PL.& PRAC.-64

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dence is inadmissible in a collateral action to prove the rendition of a judgment or order of a court of record.

6

Where an adoption is effected under the statute by order of court, the records of the court constitute the best evidence to establish such adoption."

An official return is the best evidence of the doings of the officer under the mandate of process, and is sufficient proof of facts which the officer is authorized to certify.

§ 1077a. Evidence at former trial or other proceeding

The testimony of a witness, since deceased, given at a preliminary hearing for a felonious assault, may be used against the defendant, in a civil action for damages.9

The testimony of a witness at a former trial between the same parties with opportunity for cross-examination, which was preserved by bill of exceptions, is admissible in a second trial in the same cause, where the witness is a nonresident.10

It is within the sound discretion of the trial court to determine the degree of preliminary proof necessary to admit the testimony of an absent witness given at a former trial in the same case.11

A physician's unverified certificate that a witness could not leave home does not warrant the introduction of testimony at a former trial.12

Testimony, as recorded in a case-made, is not admissible, in an action between strangers to the record, without proof by a compe

6 Pulsifer v. Arbuthnot, 53 P. 70, 59 Kan. 380.

7 Coombs v. Cook, 129 P. 698, 35 Okl. 326.

8 Cox v. State, 61 Okl. 182, 160 P. 895.

In a collateral proceeding, parol evidence, as to the contents of orders or judgments of courts of record lost or not reduced to writing, is inadmissible; the originals or duly authenticated copies thereof being the only competent evidence. In re Bates' Guardianship (Okl.) 174 P. 743.

Oral testimony of a clerk of court as to what his records showed concerning rulings on motions in a former case is inadmissible, as not the best evidence. Borin v. Johnson, 65 P. 640, 63 Kan. 885.

9 Ray v. Henderson, 44 Okl. 174, 144 P. 175.

10 Atchison, T. & S. F. Ry. Co. v. Baker, 130 P. 577, 37 Okl. 48.

11 Phillips v. Mitchell (Okl.) 172 P. 85, writ of error dismissed, 248 U. S. 531, 39 S. Ct. 7, 63 L. Ed. 405.

12 De Bose v. State (Okl. Cr. App.) 197 P. 176.

tent witness that said testimony was actually given at the trial as therein recorded.18

Testimony of witnesses at a former trial, between the same parties involving the same subject-matter, transcribed by the court reporter from his stenographic report, certified and incorporated in the case-made, signed and settled by the trial judge, and filed with the district court clerk, is admissible in evidence as depositions, although the reporter's notes were not filed as required by statute.14

Before the transcript of the testimony of a witness at a former trial can be admitted at subsequent trial, it must be duly certified by the reporter or agreed by the parties as being the evidence, and can only be used under conditions warranting the use of deposition.15

Where an official reporter, after her term of office has expired, transcribes the testimony of a witness from her stenographic notes, and verifies the same by affidavits, it is insufficient, in the form presented, to prove what the witness had sworn to on a former trial.16 An official court stenographer, who has correctly taken the tes

13 Ireton v. Ireton, 52 P. 74, 59 Kan. 92.

14 Kansas City, M. & O. Ry. Co. v. Roe (Okl.) 180 P. 371.

15 St. Louis & S. F. R. Co. v. Walker, 61 Okl. 37, 160 P. 79. Testimony given on a former trial by a witness, who afterwards removed from the state, may be received in evidence; and where it was taken by the official stenographer, who made a transcript of his notes in a case-made, it may be shown by such transcript, where the stenographer testifies that he has examined it and found it to be correct. Smith v. Scully, 71 P. 249, 66 Kan. 139.

Gen. St. Kan. 1909, § 2407, authorizing the stenographer's transcript of evidence to be introduced by any party under like circumstances as a deposition, permits such use only in actions between parties to the litigation in which the testimony was given. Madden v. Stegman, 127 P. 524, 88 Kan. 29. Gen. St. Kan. 1909, § 2407, permitting the use of the stenographer's transcript in testimony, does not restrict such use to the limitations attaching to a deposition under sections 5931 and 5953 (Code Civ. Proc. Kan. §§ 337, 358). New V. Smith, 145 P. 880, 94 Kan. 6, L. R. A. 1915F, 771, Ann. Cas. 1917B, 362. Snyder's Comp. Laws 1909, § 5881, requiring that every deposition must be filed at least one day before the trial, does not apply to a stenographer's notes referred to in section 1942, which provides for the filing of stenographer's notes with the clerk of court, and that the same shall be a part of the record, and that any longhand transcript of the notes so filed and certified shall be admissible as evidence with like effect as testimony taken by deposition. Oklahoma Ry. Co. v. Boles, 30 Okl. 764, 120 P. 1104.

16 Robbins v. Barton, 58 P. 279, 9 Kan. App. 558.