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KF 8935.S82 1876 A digest of the law of evidence.

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A DIGEST

LAW OF

EVIDENCE.

JAMES FITZJAMES STEPHEN,

Q.C.

HonHon

MACMIJ.LAN AND
1876.

CO.

STAMFORD STREET . ( PRINTED BY WILLIAM CLOWES AND SONS.: ^ LONDON AND CHARING CROSS.

It was ready be duced early various in the Session of 1873. I which has informed judicial been in operation in India since Sept. He said a few words on the subject on the Sth August. This Act began by repealing (with a few exceptions) the whole of the Law of Evidence then in force in India. Parliament was prorogued.INTRODUCTION. It just before The Bill was thus never made to be printed. latter part of In the 1873 Lord Coleridge was raised to . and has required little commentary or In the autumn of 1872 Lord Coleridge (then Attorneys General) employed I it me to draw a of the similar code for England. 1872. and progeeded to it re-enact in the form of a code of 167 sections. and we to settled intro- in frequent consultations. that it is am generally understood. exposition. did so in the course winter. public. though I believe it was ordered was drawn on the model of the Indian Evidence Act. but succeed the very last day of the Session. In the years 1870-187 1 the I drew what afterwards became 1 Indian Evidence Act (Act of 1872). 1873. and contained a complete system of law upon the subject of Evidence. it Lord Coleridge made he could not attempts to bring till forward.

in many cases. which the existing law exactly as it intended to represent stands. generalities. omitted in the present work. their favour. though I am aware that others take a different view but. and I have. of course. I though precise to have spared no pains to make in substance as if my statements as and complete they were intended be submitted to the Legislature. taken cases actually decided by the in- Courts for the purpose. INTRODUCTION. that I . in nearly every instance. trations I think that illus- might be used with advantage in Acts of Parliament. was in the ordinary form of an Act of Parliament. and Lord Coleridge's personal opinion was in acceptable to Parliament. In the book I have allowed myself more freedom of expression. In a few instances I have vented illustrations to suit my own purposes. from The present work is founded upon this Bill. These are is a variety of amendments of the existing law. though he had doubts as to the possibility of making them In the book I have much in- creased the number of the illustrations. but I have is done so only in cases in which the practice of the Courts too well ascertained to be questioned. themselves the authorities from which rules and principles These explanations show.. but are. The Bill contained a certain number of illustrations. amongst other things. though it differs Lord Coleridge's Bill proposed it in various respects. his present position. be this as it may. their use in a treatise cannot be light disputed. The Bill. as they not only bring into clear the meaning of abstract must be deduced. and the Bill has not been proceeded with by his successors.

the repositories of an extra- ordinary amount of research. The justify novelty o^ the form and objects of the work may some explanations respecting it. and I chose the Law of Evidence for the subject of my first course of lectures. and without a its degree of labour disproportionate to tion to other branches of the law. but they seem to me to have the effect of making the attainment by direct study of a real knowledge of the law. for all the existing books on the Law of Evidence are written on the usual model of English lawbooks. treatise An Act which of Parliament it. hands of successive editors. and the habit into which their . cannot honestly claim Lord Coleridge's authority than a general approval of this for more work. and a widely.INTRODUCTION. appeared to me that the draft Bill which I had prepared the materials for Lord Coleridge supplied such a statement of the law as would for enable students to obtain a precise and systematic acquaint- ance with it in a moderate space of time. as a general rule. The enormous mass of detail and illustration which they contain. states differ my work may of course be open to numerous easily which would have been answered if they had been urged against Lord Coleridge's Bill. at the Inns of Court. importance in rela- No such work. which makes the law. almost impossible. and objections. In December last. at the request of the Council of Legal Education. exists . sometimes under the court. so far as I know. to which a judge would Usten in an argument in Such works often become. aim at being collections more or less complete of all the authorities upon a given subject. or of any branch of it as a whole. I undertook the duties of Professor of Common It Law. which.

contains 908 When we remember that the Law of Evidence forms only one branch of the Law of Procedure. Experience gives by degrees. Taylor's work on Evi- dence contains 1797 royal 8vo pages. To judge from the table of cases. Best's Law of Evidence. There fills besides. rights and duties ought to be treated independently of it. with the main subject. it He and gets to see that it is shorter and simpler than looks. may increase their utility as works of The last edition of Mr. of introducing into them everything which has any sort of connection. The table of cases cited consists of 77 pages. and of ' 750 Acts of Parliament. it must refer to about 9000 judicial decisions. and that the Substantive Law which regulates and refers to about 1400 cases.INTRODUCTION. a ' list of references to statutes which Principles of the 21 {)ages more. in favourable cases. number of practical works on the and is said to be intended to examine the principles on which the pages. he must gain his knowledge in some other way than from existing books on the subject. writers naturally fall. No doubt such knowledge is to be gained.' which disclaims the intention of adding to the subject. however remote. a comprehensive acquaintance with the principles of the law with which a practitioner is conversant.' contains 1556 closely-printed pages. which would give a is. rules of evidence are founded. one of which total contains the names of 152 cases. 'make these books useless for purposes of study. of 11. is it becomes obvious that if a lawyer to have anything better than a familiarity with indexes. The last edition Roscoe's Digest of the Law of Evidence on the trial of it cites nearly Actions at Nisi Prius.704 cases referred to. to understand that the innumerable cases . though they reference.

which at first sight appear to constitute the law. has. . I may say. seems impose upon me the duty of doing what I can to assist in their studies those who attend my lectures. have attempted. not only to . by examples. no more than of principles . and to compress into precise when I necessary. Circumstances already mentioned have led into a systematic form such I me to put as knowledge of the subject had acquired. it it . been in an inverse My object in it has been to separate the subject of it evidence from other branches of the law with which has commonly been mixed up sion of the subject-matter definite rules. and all which.INTRODUCTION. a digest of the law. and the possession of those not unfrequently renders who have it sceptical as to the possibility. were thought might be used in the preparation of a code. they acquire it very slowly. in if it short. illustrated. are really comparatively small number of this others. such cases and statutes as properly relate to the subject-matter so limited and arranged. to desir- make able. and my connection with the scheme of to education.is often frag- mentary. I hope. illustrations of a but those who have gained knowledge it kind have usually no opportunity to impart to Moreover. distributed according to the natural divi. to reduce it into a compact systematic form. at events^ will. which. it This work is the result. established by the Inns of Court. be useful. The labour bestowed upon ratio to its size. and with needless is labour themselves. and even as to the expediency. of producing anything more systematic and complete. and though knowledge so acquired often specially vivid and well remembered.

last thirty or forty and have it effected a highly beneficial revolution in the it law as was when attracted the denunciations of Bentham. Writers on the Law of Evidence usually refer to statutes by the hundred. professional students. really plain enough appear almost incompre- In my Introduction to the Indian Evidence Act. which is concealed by the ambiguity of the word evidence (a word which some- times means testimony and at other times relevancy) has thrown the whole subject into confusion. and has made what was hensible. that between the question What facts may be proved ? and the question it How must ? a fact be proved assuming that proof of may be given The neglect of this distinction. almost of which have been decided in the course of the last loo or 150 years. composed of two elements. and which have already been collected classified in various and ways by a succession of text writers. will A detailed account of this matter XLIX.INTRODUCTION. but the Acts of Parliament which really relate to the subject are but few. book is be found at the end of the volume. first. the I most recent of whom have already named . between relevancy and proof.' published ' . the same as that of the and based upon the distinction is. secondly. in Note the is The arrangement of Indian Evidence Act. but to every ligent interest in a part of the one who takes an intel- law of his country. bearing directly on every kind of investigation of Evidence into questions of fact. a comparatively small number of Acts of Pariiament which have been passed in the course of the years. is The Law namely. as well as on every branch of litigation. all an enormous number of cases.

and the Law of is Procedure. duties. INTRODUCTION. By whom and in what manner the evidence must be produced by which any fact I. I entered fully return to it upon this matter. or The facts which may be proved are facts relevant to the issue. by which liabilities rights. decides : What facts may. and what may not be proved in such cases II. liability to be ascertained in the proceed- Facts relevant to the issue are facts from the existence of which inferences as to the existence of the facts in issue may be drawn. Facts in issue are those facts upon the existence of which the right or ing depends. . of the existence of the . I.. and in speeches made in the Indian Legislative Council. in 1872. or the effect or one of the effects. Law applied to The Law of -Evidence is that part of the Law of Proce- dure which. are defined. is to be proved. show the nature of the at stated above which I have All law may be and divided into Substantive Law. give a short outline of the contents of this work. with a view to ascertain individual rights and liabilities in particular cases. by which the Substantive particular cases. I may. What sort of evidence must be given of a fact which may be proved III. and I need not here. in order to solution of the problem arrived. is A fact relevant to another fact when the existence of the one can be shown to be the cause or one of the causes. however. facts in issue.

however. inter alios actcz. at if all. it by the Law of Evidence except in but not specifically connected with. renders the existence of the other highly probable. (Character. fact. Every a document.INTRO D UCTION. which are defined by the Evidence. or improbable. or when the existence of the one. 4. (Hearsay.) fact that any person is of opinion that a fact exists. 3. important exceptions. {Opinion. that to say. : this definition of relevancy. because the Court will take judicial notice of they are relevant to the Every oral or fact which requires proof must be proved either by except (speaking generally) the contents of . must be proved by oral evidence. Facts similar (^Jies to.) The The The fact that a person not called as a witness has asserted the existence of any fact. . by documentary evidence. is Oral it evidence must in every case be direct. need not be proved them. either alone or together with other facts. other.) fact that a person's character is such as to render conduct imputed to him probable or improbable.) To each of these four exclusive rules there are. which in common life would usually be regarded as falling within are excluded from certain cases 1. 2. Four classes of facts. Law of IL As fact to the manner in which a fact in issue or relevant must be proved. each other. facts Some issue. according to the common course of events.

every one all now a competent witness cases. As to the person by whom. in the absence of the documents thembeen Whenever any public or private transaction has in reduced to a documentary form. is secondary In the case of some public documents. must or may be produced selves. must consist of an assertion by the person who gives he it that he directly perceived the fact to the existence of which testifies. and the manner in which the proof of a particular fact must be made. the document it which is recorded becomes exclusive evidence of that trans- action. Documentary evidence Primary evidence for inspection. When a fact is to be proved. or exemplifications. itself the document produced in court Secondary evidence varies according to the nature of the document.INTRODUCTION. In the case of private documents a copy of the its document. With very few exceptions. unless whom the burden of proving it is imposed. is is either primary or secondary. though secondary evidence III. except in certain cases ex- pressly defined. be varied by oral evidence. and its contents cannot. contents. or an oral account of evidence. evidence must be given of it by the person upon presumption. Competent witnesses . either by the nature of the issue or by any legal the fact is one which the party is estopped from proving by his own is representations. or by his relation to the opposite party. may be given of the contents of the document. or by his conduct. examined or certified copies. The witnesses by whom ifi a fact to be proved must be is competent.

A any all is indicted for murder. as supplying answers to the question. but a great part of book is based upon a similar principle of classification. plea puts in issue. Again. then cross-examined. I have dealt very shortly with the whole subject . and then re- Their credit may be tested in certain ways. all cases compelled or even permitted excepted cases without oath. and matters of justification or extenuation. Taylor does not go so his far as this .— INTRODUCTION. examined examined. The things which are often regarded as principal subjects thus omitted are I regard the question. and the answers which they give to questions affecting their credit may be contradicted in certain cases and not in others. or in certain The witnesses must be first in chief. The evidence must be given upon oath. however. Thus chapters i. What can be proved for under an issue of Not Guilty on an indictment murder ? Mr. and partly to each of the different branches into Substantive Law may be divided. are not in to testify. My view of it excludes forming part of as follows : many it. of Part IL are rather a treatise on pleading than a treatise on evidence. ticular issues ? (which What may be proved under parmany writers treat as part of the Law which the This of Evidence) as belonging partly to the subject of pleading. amongst other things. and pleads Not Guilty. will This brief statement tuting the show what I regard as consti- Law of Evidence properly so called. the presence of state of mind describable as malice aforethought. and ii. Starkie and Roscoe treat these subjects at full length.

speaking generally. for instance the presumption that everyone knows the The real meaning of is this is that. The only presumptions my opinion. an action of eject- ment by a pur auter vie. It belongs to the Criminal Law. that a man not heard of for seven years presumed to be dead. Take law. have to do . depositions are to the proper officers. again. evidence to be taken on commission. rest as and have passed over the belonging to different branches of the Substantive Law. might be equally applicable to a reversioner against a tenant dispute as to the vaHdity of a marriage. ought to find a place in the Law facts. is that they also appear to me and to belong to different branches of the Substantive Law. I have put a this few presumptions of kind into a chapter on the subject. After careful consideration.. are those which relate to facts merely as and apart from the particular rights which they constitute. in Law of Real Property. Thus is the rule. Practice. and many other subjects. to be unintelligible. of Evidence. the admissibility of a declaration against interest. &c. of presumptions.INTRODUCTION. ignorance of the law it. My reason. not taken as an excuse for breaking if it is This rule cannot be properly appreciated treated as a part of the Law of Evidence. appears to me to differ in kind from the Law in of Evidence. little to be authenticated and forwarded interrogatories are to be administered. In the same way numerous presumptions as to rights of property (in particular easements and incor- poreal hereditaments) belong not to the Law of Evidence but to the which. except in connection with them. The rules which point out the manner is which the attendance of witnesses is to be procured.

and in regard to the law of written instruments by stating those rules only which seemed to me to bear directly on the . the law of estoppel. which regulate the relevancy Their proper place would be found in codes of civil and criminal procedure.INTRODUCTION. which must be pleaded as such. To thus : take an illustration at random. but to the law relating is medical men. matter rather for an index or schedule than for a legal treatise. On several other points the distinction between the is Law of Evidence and other branches of the law to trace. or the industry displayed it . understood. Taylor gives " Public Documents. I do not wish for a to undervalue the practical in utility of such information.' for the time being." Mr. with the general principles and proof of matters of fact. intended to be studied. section 1458 begins " The registration of medical practitioners under the Medical Act of 1858. more difficult For instance. amongst other or most. and the law both relating to the interpretation of written instruments. of the statutory provisions which render certificates or certified copies admissible in particular cases. things a Ust of all. to the exclusion of estoppels by deed and by matter of record. ' may be proved by moment a copy of the Medical Register. A as to similar remark applies to a great mass of provisions Under the head of the proof of certain particulars. and borne in mind in practice." &c. purporting. collecting but such a provision as this appears to nie to belong not to the to Law It of Evidence. I have tried to draw the by dealing in the case of estoppels with estoppels in pais only. run into the line Law of Evidence.

however. question whether a document can be supplemented or ex- plained by oral evidence. am equally well satisfied. would be as impossible to get in Parhament a really satisfactory discussion of a Bill codifying the Law of Evidence as to get a picture. the statement both full and correct. to get others to take the For many years I did same view of the subject. it and I used to think that the law were once for all would be an improvement if enacted in a distinct form by the Legislature. 332. and were definitely altered from time to time as occasion required. which he draws from a number of and this is one source of that quality of our law which those who dislike it describe as vagueness and uncertainty. as far as is it of the law that com- goes. but of general principles which are illustrated and explained by those will express cases. I may say. petent judges will find that. I dislike the quality in question. : words of Lord Mansfield —" The As to brevity. The result is no doubt to make the statement much shorter than is usual. It committee of the whole House to paint a I would. in the law does not consist ^ of particular cases.INTRODUCTION. Bemtridge." Every one somewhat differently the principles illustrations. and those it who like as elasticity. 3 Doug. . be quite as difficult at present to get Parhament to delegate its powers to persons capable R. V. I hope. but I my utmost am now convinced by experience that the unwillingness of the Legislature to undertake such an operation proceeds from a want of confidence in which is its power to deal with such subjects It neither unnatural nor unfounded.

upon this because I am well aware of the prejudice which to state the law exists exists against all attempts simply. indeed. and statutes assuming unstated prin- cases and" statutes alike being accessible only I insist by elaborate indexes. the influence on the law of judges and who and deduce. many Melius chose est petere fantes quam secfari rivulosj' ' Mr. and Lord books are useless except as indexes. such prinrules as appear to them to be suggested by the great bulk of the authorities. condition than that of an enormous mass of decisions. be done by under favourable conditions the best if Legislation proper is way of making writers ciples the law. In the meanwhile the Courts can decide only upon cases as they actually occur.INTRODUCTION. from a mass of precedents. Hence. but that is not to be had. I which this is not the place in a less do not think the law can be creditable isolated ciples . . It has. done towards the reduction of the must. at present at least. private writers. and generations may pass before a doubt is set at rest by a judicial decision expressly in point. to insist upon. special advantages. of exercising them properly. indirect legal legislation. says " An ancient maxim Coke Omnis is definitio in jure fericulosa. is very much better than none at all. and at large. Smith this expression as the motto of his Leading Cases." wrote. if anything considerable is to be it law to a system. and to be in themselves rational and convenient. and of the rooted belief all which in the minds of many lawyers that general propositions of law must that law be misleading. for "It ever good to rely upon the books times compendia sunt dispendia. and delusive.

'* and arrangement In our to such a it book as Fisher's own days appears to me that the true fontes are not to be found in reported cases. but in the rules and principles which such cases imply. and that the cases themwhich is a dispendmm. the more firmly am I convinced of the excellence its fell of its substance and the defects of form. or at three. the "books at large.'' namely the most of ' Year Books ' and a very few more modem re- ports. There are also ten volumes of Statutes since 1865. to reduce an important branch of the law to the form of a connected system of and principles. Fitzherbert's ments of the cases Year Books ' classified in the roughest possible manner. contained probably about as much matter as two. from Coke to Blackstone. would fill not more than twenty-five such volumes. b . The Year Books from 1307-1535. into Our earlier writers. practise it. 328 years. whilst they showed a total insensibility * Since the beginning of 1865 the Council has published eighty-six volumes of Reports.INTRODUCTION. its the error of asserting the excellence of substance in a fulsome and exaggerated strain. years of the reports published by the Council Law as Reporting J and that the compendia (such books. the following of My attempt in this work has been emphatically intelligible rules fontes. it embodies has exercised immense has not perhaps been sufficiently It observed that when Coke wrote. and much inferior ' both in extent Digest. Should the undertaking be favourably received by the profession and the public. and the sentiment which influence over our law. I hope to apply the same process to some other branches of the law for the more I study and . 'Abridgment') were merely abridgin the ' say. petere selves are the rivuli.

mere theoretical study. It would to exaggerate the value of these studies. and so to improve existing institutions. which in their grievous and glaring. but their nature and use is liable to be misunderstood. last During the twenty-five years Bentham's influence has to some extent declined. but the history of bygone institutions is valuable mainly because it enables us to understand. philosophy of the Institutes. even the student as Bentham certainly was. light The history of the Roman Law no own law . It would be a complete mistake to suppose either that the Roman Law is in substance wiser than our own or that in point of arrangement and method the Institutes and the Digest are anything but warnings. cannot fail way most instructive. of the ablest and most distinguished of living great attention has been directed to legal history. and be in particular to the study of difficult Roman Law. the history of our on and the comparison of the two doubt throws great great bodies of law. partly because some of his books are like exploded shells. and me is that he had not that mastery of the law which unattainable by is.INTRODUCTION. buried under the ruins which they have made. to defects. both of substance and form. and partly because under the influence of some authors. approaching closely to genius. a man of talent. time were in Bentham seems into to me many points to have fallen bitter the converse error He it was too keen and obvious to itself if a critic to recognise the substantial merits of the system is which he attacked . The pseudoof the and the confusion . under one or the other of which the laws of the civilised world to be in every may be classified.

in conclusion. Common Law competency of certain was removed by result parts of six different Acts of Parliament —the net for of which is given in five short articles (106-110). and even requires. nor can till its relation to other parts of the law be appreciated the unwritten law has been written down so that the provisions of particular statutes this is may take their places as parts of it. very great abridgment. good or bad. However show refers is this may be. It cannot. and is capable of being thrown into a form at once plain. In • many cases the result stated in a line as to the in- of a number of separate enactments may be For instance. therefore. have done order to make it easier to study the subject as a relates to the whole. too. When done. be their effect. not the very but what I understand I words of the enactments referred to to. to direct attention to the manner in which I have dealt with such parts of the Statute in this Law as are embodied work. Every Act of Parliament which be Law of Evidence assumes the existence of the unwritten law. infinitely more objectionable than the absence of arrangement and of all general theories. short. I trust the present work will it that the law of full England on the subject to which of sagacity and practical experience. I have given. though in doing so have deviated as I little as possible from the actual this in words employed. I wish. to my mind. and systematic. the old classes of witnesses or two. the Statute Law itself admits of. peculiar or So. fully understood. the doctrine of incompetency defective religious belief has been removed by many different b 2 . Digest.INTRODUCTION. are. which distinguish the Law of England.

INTRODUCTION. I Such are the means by which have endeavoured to make a statement of the Law of Evidence which will intelli- enable not only students of law. effect of which is shown in one article The and various enactments relating to documentary x. . but I hope any gent person who cares enough about the subject to study * Twenty articles of this work represent all that is material in the ten Acts of Parliament. and arranged according to their subject-matter. and by setting it (so to speak) in a definite statement of the unwritten law of which it assumes the existence.) evi- dence (see chap. appear to me to become easy to follow to appreciate when they are put in their proper places in a general scheme of the law. It is very possible I of their actual words. it is possible to combine brevity with substantial accuracy to and fulness of statement an extent which would surprise those who are acquainted with Acts of Parliament only as they stand in the Statute Book. which have been passed on the subject to which it refers. of see Note XLIX. enactments the (123). in stating their effect instead it. For the detailed proof this. that he would do well to refer to the very words of the statutes embodied in that. containing sixty-six sections. may have their given in some particulars a mistaken view of meaning.* At the same time I should warn anyone who may use this book for the purposes of actual practice in or out of court. By rejecting every part of an Act operative words which of Parliament except the constitute its actual addition to the law.

F. 4. occur in actual practice. and do which would enable him to books of the study cases and use textI common kind with readiness and ease. If I am entitled to generalise at all from my own expe- rience. to obtain from it a know- ledge of that subject at once comprehensive and exact in- a knowledge which would enable him to follow in an telligent manner the proceedings of Courts of Justice. will know fully and accurately all the leading prin- ciples and rules of evidence which. Temple. .— INTRODUCTION. attentively what I have written. are little more than however. S. its have not attempted to follow I minute ramifications. and all have avoided reference to what after matters of curiosity. I not say more than the matter out into this. 1876. I think. Paper Buildings. May. that any one who makes himself thoroughly acquainted with the contents of this book. and to consider them in their relation to each other. and therefore the parts them- more completely than they otherwise would. by being enabled to take them in at one view. I think that even those who are already well ac- quainted with the subject will find that they understand the relations of selves its different parts. J.

.

Appleton V.. FACE Ii6 Bayliss w. . .. Case 48 Baron de Bode's Case Barrett v.. Hitchcock 113 124 Aldons Alivon z: Comwell Fnmival . ... . . Bacon Bail^ v.. 87 69 48 91 162 z: Fiink ... Dnke Annesley zr. . Long Bans 7).. Chesney Bidwell V. Barton v.. V. G ». 86.. Jackson Davies .. Geoige Anderson v... .. Bryant . ....TABLE OF CASES CITED. 143 84 90 115 158 99 19 B. z-. Bailey Baneiman v. . . . Allen V.. . Delamire . Weston Angel V. . 56 18 Bateman v. 49 90 10 143 . . Anglesea .. 26 73 Bank of Hindustan. Braybrooke Aimoory v. V. Allison's . Radenius . Abler z'. .. . ... Blake .. Allgood V. . Lord Kinnaird ... . .. . Lloyd . G. . A. .. . Dundas . ... Adams A. Areson :'.

. Imrie 52.. Jones . 54. Waters 117 Di Sora v. TABLE OF CASES CITED. 113 144 94 25 85 2/. . Salomons Clay V. . Barton 107 V... 99 116 V. Cope Cory V. V. 64 73 27 73 Collins V. ... V. .. Chasemore v. 56. Cope v. . 132 27 Dartmouth.. V. Lord Nugent . Bretton Barrett . v. V. Langslow Clayton v. .. Cooper Davies v. Date Derby . 105 Clifford V.. Coombes .. 150 v. . . . Tanswell . Baytup 107 Daniel v. Crossley w.. Coole . . loj 28 72 108 Creeve 38.. .. Dixon .. Carrel.. Closmadeuc . . Chambers Charlton Charter v. .. v. .. V. Bernasconi . . Lowndes 40. Burton . . 87 Davidson v. .. Lady.. . Castrique v. Frith v. 41. V.. Beaviss Brydg«s 37 SO 87 Catomore Coulthred V. 152 .. . Braham . Walter in D.. 39 Cronk Curry v. Pitt . Da Costa v. V. . Richards Chubb z'. 42 . Sherard Cole Bayntun . 34 114 161 z. . Roberts 157 86. Cooper v.. Hammond Doe V.. . . . PhiUipps 56 108 Dixon V. Charter ..

G. .TABLE OF CASES CITED.

O'Dea. Chaplin Ward Murray . 160 68 O. De la Cour V. P. 69 . Raillo. Bremner . 61 Malcolmson v. McElroy . Nepean Doe Knight . V. 143 way Morris . Downes McMahon v. McCallan Muggleton v. . Omichund v. Moor . Forester . Oddy .. Mann v. C.. Barker . 48 10 103 Jakle v. Ley Barlow Lindley v. Noden v. Duke of. 23. . TABLE OF CASES QITED. Langton Marston v. Morgan v. Morgan v. towe . V. & D. v. v. 40 71 Newton Noble V.. M. 133 132 69 103 Miles Miller V. v. 103 Brox- Newcastle. Needham Neil V. Davies 103 Mortimer v. Griffiths 90 Moriarty L. Barber 94 98 116 Minet v. v. Travers Mills V. 117 Paddock 26 v. Bamett 69 9 N.. Lacey Lucas V.

V. Bathwick Bembridge Blake . 16 12 . Stephenson Stone . V. 164 31 Clapham Clarke . . V. V. Drummond Dunn Edmunds Eriswell . V. 20 29 87 Gilham Gordon Gould Gray . V. . v. 169 V. 17 Francklin 45 . 19. v. . 30 12 170 103 103 V. Griffin V. . V. Llanfaethly V. . Russell Scaife . . V. V. V. . XV 7 V. . • Scott 31 171 V. -Sr V. R. V. . 124 Palmer 10. V. • 30 32 16 Oddy . V. — — — — — — — — — — — — Barnard . Donellan Doolin 122 57 127 16 Dove . . Mansfield . V. 39 29 Boyes Butler H7 . V. Cole Davis . V. z/.43 100 . V. V. v. V. V. . V. Hardy 7> "3 72. V. R. Garbett 31 V. 58 91 V. Orton 46. V. . V. v. 20 112 . Lumley Martin . 10 Exeter Forster . V. V. — — — — — — — — — — — — — — — — — — — — — — — — — — — Clewes Cliviger . V. V. V. . . V. V. . w. Lloyd Lord George Goirdon Lord Thanet Luffe . V. V. 30 117 IS — Harringworth — Hartington. 56 Parbhudas and Others 136 Patch 10 Payne III Pike 127 Richardson !0. V. PAGE 12 ii8 V. Foulkes Francis 5 . Canning Cheadle Chidley & Cummins . V. .. V. V. w. . V. Sparkes . V. v. V. ». 113 Rovcton il. V. V. V. V. Boswell . V. Moore Mosley . 30 19 173 V. 34 127 10. Harbome 103 — — — — — — — — — — — — — — — — — — — — — — — — — 33 100 33 71 Jenkins . 99 20 i. 103 127 V. V. V. 4Z< 43 . . V. . Garner Gazard Geering . V. . 42 38 17 Foster 6 . . V. Bliss v. V. 152 . . TABLE OF CASES CITED. Quarter — Havforth — Heyford — Hind — Hogg — Holmes — Holt — Home Tooke — Hull — Hutchinson — Jarvis V. V. V. V. 156 Middle 49 69 37 33.. V. V. 42 127 17 . .

TABLE OF CASES CITED. .

Wing V.. 115 103 Young V. Dallison 89. . 160 Williams v. . .. . Doe d. Clare Hall Young V. 98 V. Rastal . .. .167 . Graves 37 Wilson V. Houldsworth Wright V. Angrave . . . Anderton 108 PAGE Whyman z'.. East India Co.. Grote . Bridges 27 V.TABLE OF CASES CITED. .156 Wigglesworth v. Tatham 21 SS Y. .. !>. . PAGE Garth 73. • 147 107. Woodcock V..

.

s. 97. s. ss. c. . <j. 39 & 40 Geo. . 157 13 & 14 Vict. ss. 179 24 & & 20 Vict. 19 s. 25 c. . 66 96. 25 Vict. IV. PAGE 47 119 14 & 15 Vict. 112 181 3 5 & 4 Will. c. 13 . c. . Ill . 125 . . 20 21. 78 121 7&8Geo. 121 126. ». 18. 41 Geo. 18 Vict. & 2 Vict. 181 . 179 & 8 Will. . go. c. . c. I . 3. 14 16 I. 99 -. c. 12. 178 79 -. III. 169. 50. ». s. c. 60 25 16 -. . 99. III. 169 . 64. . . c. 3 6 8 &4 &7 &9 Vict. & & & 17 Vict. . . . c.181 . 2. IV. . s. . 4 I . s. ss. III. s. 62 . 113 c. IV. ss. 100 .. 126 120 6&7 I Will.. c. 6 . s. Vict. 60 76 17 18 Vict. 9 Geo. 37 s. 45 II . . s. IV. 26 85 lo. c. 181 . . c. 2 3 . 28. . 22-27 184 u. & 6 Will. 37 • • 179 28 & 29 Vict. . 83. c. 179 . 19 -. 8 . s.. 2 7 9. • c- c. 7 III. ss. 12 . c. c. 14. s. . !i- 116 61 61 .. IV. . ss. c.119 . I. »• 2 169 s. 7. 113 (preamble) 77. 3 . 94. s. 2 . s. a. 119.179 63. . 7 74. .. 24 105 . 24 . - »• • 83 lO. c. . IV. 126 Vict. 157 27 59. t.( xxxi ) TABLE OF STATUTES CITED. 13 . I. 42 . u. 118. s. t. u. ss. 26 74. 93 7 4 . 36 36 169 17 3 . 80 II. 125. 179 . 179 79. 7 James I. 21. 118 . =. Geo. 169 ss. . . 46 Geo. c. . . 9 .

5. 182 C. 126. 18. . 82. 19 . a. 8 59. c. 16 . s. 5 . 169 120. "- . 182 . I. 183 -^ ss. — • & 34 & & & 34 Vict. 4 5 . 182 . . 68 -. 168 120. a. 183 s. 35 Vict. 3-8 182. . u. c. 182 7 . v. s. 63 "169 . 4 . s. 49 70. . .. I. s. 44 c. 184 2 3 118 III. 76 . s.. 66. 182 33 . 126 32 & 33 Vict. 35. I. 6 . 81 . Ill 38 Vict. ». FAGB 28 & 29 Vict. . a. S. 6 124. t. . 96 32 Vict. 36 37 37 Vict. 35 30 31 & & 31 Vict. 112. s.. S . s.TABLE OF STATUTES CITED. 182 .. . 34 . 37 81.

. .( xxxiii LIST OF ABBREVIATIONS. A. & E.

East's Reports. . C.J. Keen's Reports. M. Douglas's Reports. H. Law Journal. Drury & Warren's Reports. Jacob & Walker's Reports. Eq. Exchequer Reports. &F. Hare's Reports. Chancery Appeals. Jebb. Bl. & Smale's Reports. J. . H. Leach L. . C. . L. House of Lords Ir. & J. C. De Gex & Jones's Reports. Leigh & Cave's Crown Cases. R. Stephen's General View of the Criminal Law. S.Eq. Crown Cases. L. Crown Cases Reserved. Chancery. .' Gen. . Blaqkstone's Reports. . Hare H. . C. Norman's Reports. & Blackburn's Reports. De G. . N. . H. C. Hurlston Hurlston & & Coltman's Reports. L. Magistrates' Cases. . L. C. Keen L. E. Crown Ch. Law Reports. Cir. Law Foster & Finlason's Reports. C. Irish Circuit Reports. M. Law Reports. . L. Ea East. Jac. & B. G. C. De Gex. C. & Gordon. . P. Law Journal. & DeG. Equity. OF ABBRE VIA TIONS. & J. Hale's Pleas of the Crown. Law Journal. . Ex F. Esp Espinasse's Reports. View Cr. DeG.. H. . Cases. J. & Wal. Chancery. Irish Equity Reports. . R. . Ch. Cases. Macnaughten. Ir. &C. & N. New Series. . East's Pleas of the Ellis Crown. Rep. Leach's . L. Doug Dru. Law Journal. C. &S. C. Jebb's Criminal Cases (Ireland). Ap. De Ge. and War. Hale. P. Rep.xxxiv I LIS T . Den. Denison's .

P. . L. C.LIST OF ABBREVIATIONS. R.

Ve Wigram. Vesey's Reports. E. . Term Reports. . Taylor on Evidence. . 6th ed. . .1 f . Wills's Circ. Ev. -p f _ ^ Wigram on Extnnsic Evidence. . Taunton's Reports. or -p- . Tau.. LIST OF ABBREVIATIONS. . R. . . T. . T. .„. . . . Wills on Circumstantial Evidence.

Hearsay Irrelevant except in certain Cases. Occurrences similar to but unconnected with THE Facts in issue. Of Facts in issue and Relevant to the issue. Similar but unconnected Facts faith. Art. 14.— — — — 3 ( xxxvii ) CONTENTS. Page i Art. IV. II. — 12. subsequent conduct. 10. Who Hearsay irrelevant 15. Admissions defined may make admissions.. Existence 15 — 21 Chapter Art. RELEVANCY. — 11.. 3. 2. Preliminary. I. may be proved Relevancy of Facts forming part of the same transaction as Facts in issue 6. Motive. Facts necessary to explain or introduce relevant Facts 4 14 9. Customs 4. ' Chapter Terms I. good &c.. Acts of Conspirators J. . Admission by strangers persons jointly interested with parties — — — — c . explanatory state7. — Chapter III. Irrelevant except in certain cases. PART I. and when 17. Admissions by agents and 18. Acts showing inten13.... ments 8. Facts showing system of course of business when relevant — . Definition of — — Chapter Art. Title preparation. General definition of Relevancy Facts in issue and Facts relevant to the issue — — — — — . 16. tion.

charts. to — 20. Relevancy of entry in public record made or in performance of duty — Relevancy of statements in maps. 54. 55. 46. and plans — Entries in tradesmen's books — Definiof word "judgment" — All judgments conclusive proof of — Judgments conclusive as between parties and legal privies of Facts forming ground of judgment — 42. Character generally irrelevant — 56. when irrelevant in Criminal Proceeding 23. 35. acts notifications 37. s. Foreign judgments Page 22 — 54 tions by testators as to contents of will — — to 30. as 45. tion 40. Declarations business or professional duty 29. 35. Opinioii generally irrelevant 50. threat. made the course of Declarations against interest — Declarations as vant — Depositions before magistrates — Depositions under 30 & 31 6— Relevancy of statement in certain — 36. collusion.— Character. Declarations — 28. c. an action 19. or promise.— CONTENTS. — 49. 38. . 32. 24. or want of diction may be proved — 47. State- Dying declaration in 27. Declara- as to pedigree — public and g^eral rights 31. — — — made under ments by deceased persons when &c. — 25. Confessions made upon oath. Vict. Confessions defined Admissions made without prejudice 22. as strangers. Art. Character as affecting damages Evidence of character 60 61 . juris- . Art. 43. when relevant 55 — 59 points of science or art 51. . Statements in judgments irrelevant between except in Admiralty Cases — Effect of judgment not pleaded as an estoppel —44. on — Facts bearing upon opinions of experts — Opinion as handwriting. Admission by person referred to by party 21. Chapter V. rele- 33. Confession caused by inducement. Confession — — a promise of secrecy relevant as to cause of death — — 26. 39. when Relevant and when not. 48. in Criminal Cases — 57. when Relevant and when not. Chapter VI. when relevant — Comparison of handwritings — Opinion as to existence of marriage. their effect 41. Opinions. Judgments generally irrelevant between strangers — Judgments conclusive in favour of Judge — Fraud. Evidence given in former proceeding when 34. 53. Opinions of experts to 52. when relevant — Grounds of opinion.

judg- — 82. PART II. Proof of public documents 75. Primary evidence Secondary evidence 66... Cases in which attesting witness need not be called "JI.. Cases in which secondary evidence relating to documents may be given 68. &c.. Proof when attesting witness denies the execution 12. Certified admissible throughout the Queen's dominions copies 81. —Facts such which need not be proved —Judicial Notice. As Facts admitted need not be Page 62 65 — Chapter Art. Of what Facts proof of proved . Secondary. itself — Examined copies 78. Foreign and Colonial Acts of State.. must 66 Chapter IX..... 62.. Proof of documents by primary evidence 67. Documents ments.. Chapter VII. Oral evidence 61. Exemplifications — — 76. &c. Queen's printers' Proof of Irish statutes 83.. Facts 60. 75 — 83 . and Attested Documents. — — — — — — • .Production of document General records of the realm 79. Proof of contents of documents 64.. Of Documentary Evidence—Primary and Art. Art. ON PROOF. — — 59. 84.. Rules as to notice to produce 69. Proof of Facts by oral evidence be direct — . 77. the Court takes judicial notice Art.. to 58.. Proof of document not required by law to be attested 67 74 63. 73.. 74. Of Oral Evidence. Proclamations.— — — CONTENTS. Proof of execution of document required by law to be attested 70. 65. VIII. Proof of Public Documents.. — — — — — 80.. Orders in Council.. — copies — — — — Chapter X.

— Chapter XII.. XI. Presumption as to sealing and delivery of deeds 88. documents — 92.— Of the Modification and Interpretation OF Documentary Evidence by Oral Evidence. Presumption Presumption as to date of a document stamp of a document 87. Art. grants.— xl CONTENTS. .. 85. 86. Evidence of terms of contracts. Chapter Art. Presumption as to alterations as to — — — — . 90.. may be given which articles for the interpretation of 90 and gi do not apply . Presumptions as to Documents. and other dispositions of property reduced to a documentary form — 91. Presumption as to documents thirty years Page 84 87 old 89. What evidence Cases to 88 96 — .

nesses — .. Art. — — — Chapter XV. Estoppel by conduct 103. Confidential communications with — — — — questions — legal advisers — 117. Estoppel of bailee. Presumption of innocence On whom the general burden of proof lies 96. Presumption of legitimacy 99...... . Chapter XIII. could refuse 120. Competency of jurors 115. — when required 122. Who may testify — What 108. Estoppel of tenant and licensee of acceptor of bill of exchange 105. — 93. 98... Burden of proving Fact to be Page 97 loi proved to make evidence admissible . Burden of proof as to particular Fact 97. Art. 106. Presumption of lost grant 102. Witness not to be compelled to criminate himto produce self — 121. Preseven years' absence 100.. Art. Information as to commission of offences 114. Production documents which another person.— Burden of Proof.—— CONTENTS. — Competency in proceedno. xli PART III. Communications during marriage 109. 102—109 and licensee — — — — . . having possession. — — — Chapter XIV. Presumption of death from loi. Evidence as to affairs of State 113. Estoppel sumption of regularity and of deeds to complete title 104. 95... — — Clergymen and medical men tion of title-deeds of witness not a party — — 118. Corroboration.. — witnesses are incompetent Judges and advocates privileged as to certain 112. 107. He who affirms must prove — 94. Producof 119.. agent. Of the Competency of Witnesses. PRODUCTION AND EFFECT OF EVIDENCE. Number of wit- no — 119 .. Competency in Criminal Cases ings relating to adultery 111.. Professional communications 116. On Presumptions and Estoppels.

Exclusion of 129. Appendix of Notes Index 131 . Examination in chief. — 139. except in certain cases of oaths 125. — evidence to contradict answers to questions testing veracity — Statements inconsistent with present testimony may be proved — previous statements in writing — Cross-examination as Impeaching credit of witness — Offences against women — declaraWhat matters may be proved in reference Refreshing memory — relevant under 25-34 — Right of adverse party as to writing used to refresh memory — • Evidence to be upon oath. a document. . Art.—— xlii CONTENTS. production of which was refused on notice Page 120 129 . to tions 137. . evidence.. Who is to have power to administer oaths 126. 130 . document called for and produced on — Chapter XVII. 132... Art. 134.. Chapter XVI. Leading questions 130. Questions lawful in cross-examination 124. cross-examination. and reexamination 127. to 133. 135. Giving. 123. as notice Using. .... . as evidence. To what matters cross-examination and reexamination must be directed 128. 185 .. — Form — — — — — 131.. articles 'S^- 138. . 140 Of Improper Admission and Rejection of Evidence. Of the Examination of Witnesses.

P. /or Atkinson's read Atkyns's. Railway. refused to reverse the judgment. R." P. Charts. add of Lords "The part of Lord Penzance's judgment above referred to was unanimously overruled in the House .'P.Allfrey." and in the next line P. 316-17.loC. Child. L. Title of Article 37. 167. L. I Ex. 46. Illustration (a).2g." defore "Maps. Add at the end of the first paragraph. though the Court." for "the faft that B just "the fact that a witness in the was shot. 172. " The rules on this subject are stated in general terms in Carr v. 49." read for room with B just before B "he" read" B. upon the " p-asumitur pro negante. Div. Note('). R. Note XXXIX. 10 C. insert " Works of History.L. Article i. 5. line 2 from the top. Add. P.R. &> N.ERRATA. L."a. W. P." . before he was shot. P." ADDENDA. 162." At the enflofthe first paragraph. xxxiii. y. line 2. being principle equally divided as to the construction of the will. and Plans. and contrast Dover P.ndseeFlttters\.

.

— A DIGEST THE LAW OF EVIDENCE. RELEVANCY. PART I. " Fact " (i) means : Everything capable of being perceived by the senses * See Note I. persons authorised to take evi- dence. CHAPTER PRELIMINARY. . I. either by law or by the consent of the parties. Article i. In this book the following words and expressions are used in the following senses unless a different intention appears from the context. or of law and fact.* definition of terms. " Court " includes all persons authorised by any law to oif compel the attendance of witnesses deciding any question of law or of " Judge " includes all for the purpose fact.

. — A DIGEST OF [Part any person I. whether or criminal. figures. " Conclusive Proof" means evidence upon the production of which..^ civil " Action " means any judicial proceeding. ' Illustration {c). Every part of any " fact is itself a fact. or by more than one of those means. or which may be used. the judge is bound by law to regard some fact as proved. intended to be used. - Illustration {b).^ and to exclude evidence intended to disprove "A fact. it. for the purpose of recording that matter. . unless is and until the truth of such inference disproved.^ Document " means any matter expressed or described upon any substance by means of letters.^ " Evidence " (i) All means witnesses in court. (a) That there are certain objects arranged in a certain order in a is certain place a fact. Presumption" means a rule of law that Courts and judges shall draw a particular inference from a particular or from particular evidence. Illustrations. (2) Every mental condition of which is conscious. in relation to matters of statements which the judge permits or requires to be fact made by under inquiry : such statements are called oral evidence (2) All documents produced for the inspection of the Court or judge such documents are called documentary evidence. ' Illustration (a). or marks. or a fact upon the proof of which.

That a man holds a certain opinion.Chap. has a certain intention. or photographed. or uses a particular word in a particular sense. are documents. The married woman committed a theft in her husband's presence raises a presumption that she acted under his coercion. acts in good faith or fraudulently. A (c) caricature is a document. a metal plate or stone is a document. or is or was at a specified time conscious of a particular sensation. The production fact that a of the record of a judgment of a Court of Record is conclusive proof that that Court delivered that judgment. 3 That a man heard or saw something is a fact. That a man said certain words is a fact. lithographed. printed. I. Words A map or plan is a An inscription on document. (b) A writing is a document. is a fact.] THE LAW OF EVIDENCE. E 2 .

* ISSUE.— A DIGEST OF [Part I. relevant to any fact in issue. or extent of any right. in liability. CHAPTER 11. are affirmed : on one side and denied on the other (2) In actions in which there are no pleadings. all facts from the esta- blishment of which the existence. facts which. and of any fact and of no others. . any such case would by law The relevancy of facts to facts in issue. appear to him material under all though be too remote to the circumstances of the case. or in is which the form of the pleadings such that distinct issues are not joined between the parties. or disability asserted or denied follow. non-existence. Evidence may be given in any action of the existence or non-existence of any fact in issue. The judge may exclude evidence of relevant to the issue. and facts relevant to the issue may be proved. The (i) expression "facts in issue" means All facts which. depends on the * See Note II. by the form of the pleadings in any action. OF FACTS IN ISSUE AND RELEVANT TO THE Article facts in issue 2. nature.

J. Ex relatione O'Brien.Chap. A statement ' made by B as to the cause of the accident. iv.. Article 3. (a) A is indicted for the murder of B. whether A murdered B by shooting him. . stated in s principles chapters ii. v.. just before he was shot. relevancy of facts forming part of the same transaction as facts in issue. in issue : —The fact that A killed B the A killed B he was prevented by disease from knowing right from wrong the fact that A had received from B such fact that at the time when provocation as would reduce his offence to manslaughter. The may be . C. A The had following facts would be relevant to the issue: a motive for murdering —The fact that B . though not in issue. are relevant to the fact with which they are so connected.] THE and rules LAW OF EVIDENCE. saw a man with a gun in his hand pass a window opening into the room in which he was shot. Serjt. in possession of property taken from B's person. II.. as soon as R. the fact that A admitted that he had murdered B . 1856. . The question whether A committed manslaughter on B by carelessly driving over him. Illustrations. Illustration.. following facts and pleads not guilty. iii. The question is. Leicester Spring Assizes. per Campbell. Facts which.' is. after B's death. are so connected with a fact in issue as to form part of the same transaction or subject-matter. and thereupon exclaimed. Foulkes. The fact that B.. and vi. "That's the butcher " (a name by which A [a) ! was known) (b) is relevant. V. the fact that A was.

' The question to the lord of the that side Article 4. 325. Lord & P. little lower down the river is relevant. the owner of one side of a river. he was picked up. & W.. N. ' Doe V. Williams. B. decided this case referred to Aveson v. . 193. though it may not be admissible as a dying declaration. 7 Bing. The fact the lord of the manor owned other parts of the slip of land by the of the same road is relevant. 6 Ea. V.C.* acts of conspirators. deemed is to be so said.^ (d) is. and a relevant fact as against each of them but relations of measures taken in the execu- tion or furtherance of any such common purpose are not relevant as such as against any conspirators. except those who make them. purpose. Kemp. is a relevant fact. at a particular spot. who (Park. or by any one of them in the execution or furtherance is of their common . or are present when they this article are made. 2 Bing. Foster. apart from them. The Judges Kinnaird. ' owns the entire bed of it. Illustration [m]. not be Evidence of acts relevant under given until the judge may is satisfied that.A DIGEST OF [Part I. or written by every one. J. whether a slip of land by the roadside belongs manor or to the owner of the adjacent land. done. 6 C.. 2 M. J. 102. everything done. whether A. R.' {c) The question is. there are primi facie grounds for believing in the existence of the conspiracy.) and Fatteson. See article 11. 332 . The fact that he owns the entire bed a or only half the bed. ° Jones V. * 1 See Note III. When two written or more persons conspire together to commit said. any offence or actionable wrong. 326. Gurney.

Illustrations. and took no part in them persoftally. necessary to be made in that book in order to carry out the fraud. every fact stitutes the title which con- of the person claiming the right. is not a {a) The question is. The fact that A made an entry on the counterfoil of his cheque-book showing that he had shared the proceeds of the fraud with B. speeches delivered. and directed by a central committee through local committees.'' and not brought to A's notice. . Blake. t. not intended to further the common object. V. relevant fact as against B. is a relevant fact as against B. The fact that A made in a book a false entry. whether A committed high treason is the king's death the overt act charged that his own proceedings in the matter. Article TITLE. is not relevant as against. The question . or any person through in possession of the property. or of any right over property is in question. The facts that meetings were held. 5. or which shows that * See Note IV. was and every fact which constiits tutes an exercise of the right. and papers circulated in different parts of the country.Chap. 24 S. of (b) is. B. V. R. R. whether A and B conspired together to cause certain imported goods to be passed through the custom-house on payment of too small an amount of duty.* When the existence of any right of property. 6 Q. 137-40. whom he claims. Hardy.' by imagining he presided over an organised political agitation calculated to produce a rebellion. 1 1. or which shows that he. though he was not present at those transactions.] THE LAW OF E VIDENCE. A. An account given by one of the conspirators in a letter to a friend. but see particularly 451-3. are relevant facts as against A. in a manner likely to produce rebellion by and by the direction of persons shown to have acted in concert with A. passim.

' (b) The question is. ancestors granted leases of is. the custom was understood and acted upon by the parties then interested. Allen. 309. are all relevant. B. Sttpost. The document produced to show the lease was a counterpart Lopes). whether A owns land.^ whether there is a public right of way over A's The facts that persons were in the habit of using the way. ancient inquisitio post An The fact that A's (c) The question land. signed by the lessee. CUSTOMS. whether A has a right of fishery in a river. 3 Q. Pulman. When the existence of any custom is in question. I Camp. are relevant. mortem finding the existence of a right of fishery in A's ancestors. (a) The question is. art. inherited Rogers v. 626 (citing Duke of Bedford v. relevant. by the custom of borough-English as (a) The is heir to B. 64. in particular instances. Lord Scarsdale Derby Summer . ' Doe V. prevailing in the manor of C. licences to fish granted by his ancestors. and A's title-deeds showing that for a length of time. Illustrations. disputed. its pr which is its existence or renders existence improbable. being tenants of the manor. it is relevant. title deeds. whether.' Article 6. 623. Illustrations. Brough v. and the fact that the licensees fished under them. 622. A The ' fact that other persons. every fact is relevant which shows how. question is. that the road was repaired at the public expense. ' Common practice. reaching beyond the time when the road was said to have been used. As to the Assizes.A DIGEST OF exercise was [Part inconsistent with is I. that they were turned back. no one had power to dedicate it to the public. that the road was stopped up. 1865.

See ch.* The conduct of a person against whom an offence has he made been committed. (g). a person's conduct is in issue or is relevant to the statements made • in his presence and hearing by See Note V. iv.^ When issue. & N. Other statements made by such persons are. that to say any fact which supplies a motive constitutes preparation for it. II. subsequent conduct. g in from ancestors standing in the same or similar relations to them as that which A stood to B. I H. relevant or not according to the rules as to statements hereinafter contained.^ all statements made by or to that person accompanying and explaining any such act. 282. ' Muggleton v.^ for such an act. ' Illustration (^). but the terms of the complaint itself seem not to be relevant. and in particular the fact that a complaint soon after the offence to persons to whom he would naturally complain. explanatory statements. preparation.— Chap. or is relevant to the issue. ' Illustrations (c) (d) and {e). .] THE LAW OF E VIDENCE. is relevant. When any is act done by any person is a fact in issue. Barnett. * * Illustrations (a) Illustrations and (/) and (b).* motive. or which any subsequent conduct of such person which appears to have been influenced by any such act. the following facts are relevant. and any act done in consequence of any such act by or by the authority of that person.' Article 7. are relevant . /w^.

R. committed an act of bankruptcy. 2 Bing. conduct is likely to have been affected. commission of the alleged crime. at the instigation of murdered B. 6 C. are relevant as showing a motive on A's part to murder B. & K. V. The facts that. Bailey. or suborned persons to give false evidence. Neil v. whether A committed a crime. Palmer. or at the The crime. 230 practice.. ° R. v. whether A suffered damage in a railway accident.'' (e) The question is. 221. Common Moriarty Rtmson V. 314. and the manner in which he (d) The question is. Patch. (passim). . . or was in possession of property or the proceeds of property acquired by the crime. (a) The question is. 5 Q. time of. are relevant facts. are relevant facts.* (b) The question is. either before. & P. B murdered C twenty-five years before B's murder. by (f) The question is. R.A DIGEST OF which his [Part I.-^ T. and that A at or before that time used expressions showing malice against C. Wills Circ. or that he destroyed or facts that. V. A concealed things or papers. or prevented the presence or procured the absence of persons who might have been witnesses. 512. & P. Letters written during his absence from the realm. The fact that A procured the instruments with which the crime was committed (c) is relevant.. R. or after the alleged caused circumstances to exist tending to give to the facts of the case an appearance favourable to himself. . V. L. or attempted to conceal things which were or might have been used in committing it. B. after the conducted himself.when statements on the subject were made in his presence and hearing. Bateman v. 709. whether A The facts that.' A ' * ' ' * ' R. he absconded. ^ Illustrations. A. v. Ev. whether departing the realm with intent to defraud his creditors. v.' A is accused of a crime. Jakle. R. sup. R. 2 C.* whether A committed a crime. (passim). The fact that A conspired with B C and D to suborn false witnesses is in support of his case issue tending to relevant it ° as conduct subsequent to a fact in show that had not happened. 99 London Chatham and Dover Co. 164. Palmer 4 C. Edmunds. Clewes. indicating such an intention. are relevant. are relevant. Haigh. ub.

' Wright v. II. Article 8. & E. J. or which establish the identity of any thing or person whose fix the identity is in issue or relevant to the issue. whether A was ravished. 2 M. or which occurrence or transaction. to explain or introduce or which support or rebut an inference suggested by a fact in issue or relevant fact.). & R. shortly after the alleged rape. Doe R. in order to afforded an opportunity for or which are necessary to be known show the they are relevancy of other facts. facts necessary to explain or introduce relevant FACTS.. or which show that any document produced genuine or otherwise. Facts necessary to be a fact in issue or relevant known fact. d. as statements accompanying and explaining such conduct. and the circumstances under which (it was made. . («.^. Tatham. 324-5 (per Denman. 212. 7 A. ii (g) The question whether The fact that he acted upon a letter received by him is relevant. she made a complaint it relating to the crime. is not relevant as conduct under this article. or which time or place at which any fact in issue or relevant fact is happened. The contents of the letter so acted upon are relevant.^ (h) The question is. or which show the relation of the parties by whom any such fact its was transacted. though may be relevant.Chap. are relevant in so far as necessary for those purposes respectively. but not seems) the terms of the complaint itself The fact that. » Walker. are relevant.. as conduct forming part of the issue. SeeNote V. LAW OF EVIDENCE A was sane. ) as a dying declaration under article 26. she said that she had it been ravished.] THE is. C. The fact that. V. without making a complaint.

is relevant. V.* to The question is. R. though the fact that there was a dispute may be relevant if it affected the relations (b) between A and is. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are not relevant under 'this article. &c. Donellan. Barnard. ' R." ' Common R. for being at that time at that place. Tri. ^ * Lord George Gordon. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. 6 H. B. made titles. as conduct subsequent to and affected by a fact in issue. L. It purports to be and Mary. v. threatening B. Wills Circ. 19 St. » Boyse y. 192 .* (/) whether A made a will His way of and relations with the persons said to under undue influence. (c) . 21 St. and see the Criminal Law. The question The fact that A met B at that time and place is relevant. The question life is.' The question is. V. whether a writing published by A of B is libellous or not. which would afford A an opportunity to administer the poison. C. as rebutting the inference suggested by his presence. is relevant. 338. (d) The cries of the mob are relevant. Tri. 520. and requiring B to meet the writer at a certain time and place to satisfy his demands. Ev. The fact that A. (a) [Part I. records were drawn with a different set of titles. Rossborough. and enumerates King Philip's Acts of State and other The {e) fact that at the alleged date of the deed. &c. Tri. A is tried for a riot. as explanatory of the nature of the transaction. practice.^ . The question is. are relevant facts. have influenced him unduly. whether A poisoned B. in the reign of Philip whether a deed was forged.' whether A wrote an anonymous letter. 615. 815. Habits of B knovm A.A DIGEST OF Illustrations. are relevant facts. Lady Ivy's Case. 42-58. = ' my ' General View of . unconnected with the letter. and is proved to have marched at the head of a mob. had a reason. p. 10 St.

iv. or probably may be. [a) A's death is is caused by his taking poison. cause. a cause of the same or when the one shows that the other must or cannot have occurred.— Chap. or that they do within the exceptions to those rules contained in those chapters.. v. each eat from the same dish and each exhibit symptoms A's symptoms and B's symptoms are relevant to each other as [c) effects of the is. A's death relevant to the poisoning as [b) A and B The of the same poison. same cause. its The administration of is the poison relevant to A's death as its effect.. or probably does or did exist. or not. are relevant to each other when one been is. fall within the exclusive . THE LAW OF EVIDENCE. whether in issue or not.. Facts. Illustrations. which in the common course of events would either have caused or have been caused by the other provided that such facts do not rules contained in chapters fall iii. : . or probably may have the cause of the other the effect of the other an effect of the same cause effect . question whether A died of the effects of a railway accident. vi. * See Note VI.] . II. . 13 Article 9.. or not or that any fact does or did exist.* general definition of relevancy.

the accident (e) The question is. or C. B. which probably might be caused by the .14 A DIGEST OF [Part I. Whether A committed a crime.. is relevant. The question is. and facts tending to show that his death was caused by typhoid fever. is murdered and robbed. as proving that he could not have committed the crime. because it shows the absence of an eifect which would have been caused by its being committed by a stranger. in the ordinary course of . or that either of them did or might have committed it. a person in possession of a large sum of money. Every fact which shows this. (if) A is charged with committing a crime in London on a given day. (f) B. The fact that on that day he was at Calcutta is relevant. A's knowledge that B was in possession of the money would be relevant as a fact which. Facts tending to show that his death was caused by inflammation of membranes of the brain. whether A murdered him. events. as showing the existence or the absence of a fact which in the common course of events would be caused by A's committing the murder. might cause or be one of the causes of the murder. which would have nothing to do with the accident. are relevant to each other as possible causes of the same effect^A's death. is The absence of marks murder was committed by a servant. and every fact which shows that neither B nor C committed it. (g) A is murdered in his own house at night. of violence to the house relevant to the question whether the . The fact that after the murder A was or was not possessed of a sum of money unaccounted for is relevant. The circumstances are such that it must have been committed either by A.

Phi. Article io. III.' The is question publican. a brewer. Term. &C. V. The question is. R. 1810). The fact that whether A. is irrelevant. sold good beer to B. and had a tendency (b) to is.m^. or any other state of * ' mind of any person. See Note VII. I. but not specifically connected in any of the ways hereinbefore mentioned with the facts in issue is not to be regarded as relevant to the existence of such facts except in the cases specially excepted in this chapter. The occurrence of a fact similar to. IRRELE VANT EXCEPT IN CERTAIN CASES.* similar but unconnected facts. other pubit is irrelevant (unless shown that the beer sold to all is of the same brewing). GOOD FAITH. 508 (said to have been decided by all the Judges in Mich. \i CHAPTER III.Chap.2C2. When the intention. .Hewson. or when any bodily t See Note VII. OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH THE FA CTS IN ISSUE.' Article ii. licans. whether A committed a crime. a A sold good beer to C. D and E. '' ^ See Illustrations to article 3. The fact that he formerly committed another crime of (a) the same sort. Ev.] THE LAW OF EVIDENCE.f ACTS SHOWING INTENTION. malice. Illustrations. Holcoml>e\. ^^i. knowledge. good faith. Cole. commit such crimes.

s. This enactoverrules R. or for having in his possession stolen property. and stage ' may be proved at any than of the proceedings : provided that not less 34 V. 19 (language slightly modified). relevant to the question whether he knew the property to be stolen which forms the subject of the proceeding taken against him. See illustrations. knowing them to be stolen. the fact that there was found in the possession of such person other property is stolen within the preceding period of twelve months. C. v. 2 Den. ment R. the particular in question. in the case of such proceedings as aforesaid. . 6 C. is relevant for the purpose of proving that the person accused knew the property which was proved to be in his possession to have been stolen. and practically supersedes Dunn. 264. C. 'Where proceedings are taken against any person for having received goods. all things done or said by any matter such person which express or show the existence of any such state of mind or body. feeling. Oddy. Davis. in reference to. 177. & P. Statements in issue made to any such person which would cause or prevent the existence of any such state of mind. the fact that such person has within five years immediately preceding. If.6 1 A DIGEST OF of the body of any person is [Part I. C. v. though they may not have been facts done or said on the occasion when the happened. are relevant. t. I Moo. 150. and R. or the state a fact in issue or relevant to the issue. & 35 Vict. evidence has been given that the stolen property has been found in the possession of the person proceeded against. C. 112. been convicted of any offence involving fraud or dishonesty. are relevant facts.

V.^ as A's ferocious. on two separate occasions. and that A pledged all them. The facts that the dog had previously bitten X. as showing his knowledge of the quality of the ring. knowing The from facts that A received from B many other articles stolen by him of C in the course of several months. R. and a counterfeit shilling on the 4th January. V.' [d) C A knew that the two pieces of silk A is charged with obtaining money from authorised B by falsely pretending that money from C by a knowledge that he had no authority from Z on the second occasion had no connection with his knowledge that he had no authority from Z on the first occasion. Holt. 280 See cases collected in Roscoe's Nisi Prius. R. = ' " Francis. v.7 Chap. is intended to be given of such previous Illustrations. Bell C. The facts that A uttered another counterfeit crown piece on the nth December. a counterfeit crown piece. on the 12th December. Y.'' (f) A is charged with attempting to obtain money by false pretences. and that they had made complaints to B. A tried. Forster.. to obtain money from C and D respectively. 1 seven days' notice in writing has been given to the person accused that proof conviction. R. by a similar assertion as to the same or a similar ring. Francis. (e) A sues B for damage done by a dog of B's. 185 s. charged with receiving two pieces of them to liave been stolen by him from C. ub. and see R." • Dunn's R. 1854. I Moo. are relevant to show A's knowledge that the crown piece uttered on the 1 2th was counterfeit. sup. which B knew to be that on a different occasion is Z had The fact him to do so. are relevant. 128. Dear. 2 C. case. are relevant to the fact that were stolen by B from (b) A is charged with uttering. and that on another occasion on the same day he obtained a sum of money from E by pledging as a gold chain a chain which was only gilt. knowing it to be counterfeit.] THE LAW OF E VIDENCE. by trying to pledge to B a worthless ring as a diamond ring. C. ' R. 739. v. are relevant. 11 1 . C. 130. L. C . and Z. A obtained similar false pretence irrelevant. p. (a) is A silk from B. . The facts that two days before. 456. C. 1854. 146. C.

^ Barrett v. 193. B.* (j ) question A is is. 13. The the fact that A paid C for the faith. A knew or pro- bably might have not. . adapted from Preston's Case. A's defence is that B's contract was with C. 414.^ (i) A is sued by B for the price of work done by B. if the payee had been a real person. 288. A suffered loss. Chartier. to damages from E. whether A is entitled seducer of A's wife. C. the ' Gibson v. Bl. of which A is owner. 2 H. known and of in is such a manner that relevant. accused of stealing property which he had found. (/) The question is. and the whether he meant to steal it when he took possession of it. 3 Ho. as C the management of work in question. 359. Lo. 2 H. & C. so that C was in a position to contract with B on C's own account. C was to A's knowledge supposed to be solvent by his neighbours and by persons deahng with him. The fact that. and not as agent for A. showing that A did when he took possession of good faith believe that the real owner of the properjy could not be found. 395.' [g) A sues B for a malicious libel. by the order of C. is relevant. The fact that public notice of the loss of the property had been given in the place where A was. being induced to trust C.A DIGEST OF [Part I. ' ' Sheen v. whether A.^ (h) is sued by B for fraudulently representing to B that C was solvent. a contractor. 2 Den. as in it. 353 . Ca. the acceptor of a bill of exchange. whereby B. knew that the name of the payee was fictitious. as showing that A knew that the payee was a fictitious person.' (k) The question is. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee. at the time when A represented C to be solvent. but the misdirection given in that case is set right. Hunter. proving that A did. C. v. is I Gcrish C. who was insolvent. is relevant. As to the relevancy ' This illustration of the fact see in particular Lord Campbell's remark on p. Bumpstead. Long. upon a house. it. in good work in make over question to is relevant. as showing that A made the representation in good faith. Defamatory statements made by B is regarding A for ten years before those in respect of which the action brought are relevant to show malice.

* p. The III. Law. the captain of a ship. 363. Statements made by A as to the state of her health at or near the illness as to his The question is. C 2 . knew that a is port was blockaded. See my 'Gen. v. View of Grim. 377 Harratt v. Stephens). are relevant. as tending to show that the fires were not The facts that cessively.Chap. Illustrations. & F. ' Aveson v. 712. ' R. 6 Ea. (a) A is accused of setting insured. 1102.' The question is. Wise.* Article 12. wrote affectionate letters to 19 fact that A's wife A before the adultery was committed. fire to his house in order to obtain money for which it is A had previously lived in two other houses suceach of which he insured. are relevant facts. Gray. The fact that the blockade was notified in the Gazette relevant. & C. ( /) Statements made by A before his illness as to his state of health. is relevant. as showing the terms on which they lived and the damage which A sustained.' (b) A is employed to pay the wages of B's labourers.' The question is. Coleman. Lord Kinnaird. and it is A's * See ' Note VII. the fact that such act formed series of similar occurrences. & A. time in question are relevant («) facts.* facts showing system.'' what was the state of A's health at the time when an insurance on her life was effected by B. 188. Savage and Mr.' (evidence of Dr. in each of which a fire occurred. whether A's death was caused by poison. 4 F. When there is a question whether an act was accidental part or intentional.] THE LAW OF EVIDENCE. go. Trelawney v. V. whether A. in of a each of which the person doing the act was concerned. is relevant. * j?. and that after each of those fires A received payment from a different insurance office. 9 B. I B. and during his (ot) symptoms. accidental. Palmer.

R. T. had the same poison administered to them in December 1848. whether a letter was sent on a given day. The question is. a relevant fact. P. and attempting to murder D. his wife. whether the administration of poison to A.A DIGEST OF [Part I. R. Ev. He makes an entry showing that on a particular occasion he paid more than he really did pay. whether a particular letter was despatched. 3 F.' Article 13. was accidental or intentional. R. C. (a) The question is. s. T. by Z. R. The fact that for a period of two years A made other similar false entries in the same book.^ the fact that he acted in that office Illustrations. 1848. C. cf. The post-mark upon it is a relevant fact. When clone. . R. 139. The facts that B. March 1849. Canning. E. F. 215 & . J. Richardson. &. 449 . there is a question whether a particular act was or business. v. the false entry being in each case in favour of A.' (c) The question is. a particular pubUc relevant. 2 F. are relevant. and C. F. Ph. whether this false entry was accidental or intentional. 681.* existence of course of business when relevant. When is there is a question whether a particular person held office. V. 370. and that the meals of all four were prepared by Z. Geering. and April 1849. and D (A's three sons). 46 . V. B. M. Garner. N. is relevant. in September. I ' V. the existence of any course of office it according to which is naturally would have been done. * See Note VIII.* (b) The question is. though Z was indicted separately for murdering A. 18 L. 343. 19 S. duty to make entries in a book showing the amounts paid by him.

1 Q. and that that particular letter was put {c) in that place. 846. v. 4 Camp. 250 on Woodcock v. Many cases this subject are collected in Roscoe's Nisi Prius. & W. 374-5.^ ' Hetherington v. 2 16 Warren M. Kemp. put in a certain place were. 124. HouUsworth. and see . C. whether a particular letter reached A. pp. 193 I . The facts that it was posted in due course properly addressed.Chap.] THE LAW OF EVIDENCE. . The III. Warren.' The question is. M. carried to the post. & R. are relevant. in the 21 facts that all letters common course of business. and was not returned through the Dead Letter Office. Garlett. B. Skilbeck v. are relevant.

not.' Article 15.t An admission * See ' is a statement oral or written. See Note X. I M. or A . statement by a deceased declarant (see articles or 25-31) (c) {d) Evidence given on a former occasion(articles 32-34) . Dryden. hearsay irrelevant. matter asserted thereby. CHAPTER Article IV. under any of the preceding unless such statement (a) {b) is An admission or confession (see articles 15-24) . Illustration. The fact that a statement is was made by a person not called as a witness.— A DIGEST OF [Part I. A declaration it. . or A statement made under special circumstances (see 35-38) .* CASES. & W. 615. HEARSAY IRRELEVANT EXCEPT IN CERTAIN 14. articles {e) or The judgment of a Court of Justice (see articles 39-47)- In these cases such statements are relevant or according to the provisions hereinafter contained. suggesting t Note IX. admissions defined. Stobart v. not regarded as relevant to the truth of the articles. by a deceased attesting witness to a deed that he had forged is irrelevant to the question of its validity.

unless it not an admission of the interest made during the continuance which entitles him to make it. Every admission (subject to the rules hereinafter stated) a relevant fact as against the person to favourable.. or in estate to any party thereto. in which case it [it seems] it must be made whilst the person making a person interested in an action.* who may make Admissions admissions. or is privy in law. may be made— By any party to any action whether substantial or nominal By any person who though not a party to the action or proceeding has a substantial interest in the event . Chap. un- favourable to the conclusion contended for by the person by whom or on whose behalf the statement is is made. B. L. 23 any inference as to any fact in issue or relevant fact. Co. L. whom it is un- Article 16. is sustains that character. • See Moriarty •^. is Illustrations. &= D.. in blood. IV. . 5 Q. suing. R. or sued in a representative character only. A statement made by or by a privy to any party thereto. (a) The assignee of a bond sues the obligor in the name of the obligee.] THE LAW OF EVIDENCE. unless made by a person. An admission on the paid is part of the obligee that the money due has been relevant on behalf of the defendant. C. A statement made by a it party to an action it is may be an ad- mission whenever is made. 320. and when.' * See Note XI.

. Billing. Barristers and solicitors are the agents of their clients for the purpose of making admissions whilst engaged in the actual management of the cause. are not relevant as against the holder.^ Article 17. Morgan. either in court or in cor. Lord Tenterden). ^ 2 M. 269. V.. Admissions may be made by agents authorised to make them either expressly or by the conduct of their principals but a statement merely because if made by an agent is not an admission made by the principal himself it would have been one. 257. Pocock V. * ' made by the See Note Xlt. admission by the assignee of the bond in the last illustration be relevant on behalf of the defendant. Tindal. Fiivwick V. respondence relating thereto barrister or solicitor but statements made by a on other occasions are not admissions if merely because they would be admissions client himself. after they are made he has negotiated the bill.' (d) Statements made by a person as to a bill of which he had been if the holder. & M. M..* admissions by agents and persons jointly interested with parties. Partners and joint contractors are each other's agents for the purpose of making admissions against each other in relation to partnership transactions or joint contracts. & R. (c) A statement made by a person before he becomes the assignee of a bankrupt is not relevant as an admission by hira in a proceeding by (b) would him as such assignee. 2 Bing. 24 A DIGEST OF An also [Part I. Thornton. In Smith decided exactly the reverse. 51 (by J. C.

14. 199.]^ A principal. In cases in which actions founded on a simple contract have been barred by the statutes of limitations no joint contractor or his personal representative loses the benefit of such statute. against A. is not the agent of his surety for the purpose of making admissions security. Kirkstall Brewery v. by any other or others of them. 97.. to the shop is relevant against him as an admission by an agent. IV. as against the railway. I. suggesting that the had been stolen by a porter are relevant. common them 25 The fact that two persons have a interest in the same subject matter does not missions respecting it entitle to make ad- as against each other. as admissions by an agent. I Bing. The words in the second set by The language is slightly altered. (a) Tlje question is Company made by parcel whether a parcel. interest. '^ . 9 Q. and as part of the contract of sale. c. Burton. s.] THE LAW OF EVIDENCE. Furness Ky. but says at the time a relevant fact as different time is what B says upon the subject at some ' The words in the first set of brackets were 9 Geo. a. IV. What B is of the sale. s. for the loss of which a Railway Statements sued.Chap. R. B. to sell a horse. L. 13. added by 19 & 20 Vict. as to the matters for which the surety gives Jllustrations. the station-master to a police-officer. or other money. B. was stolen by one of their servants. as such. is. 14 of the same Act. ^ Cliffords. 46S.' (c) A sends his servant.^ (b) A allows his wife to carry on the business of his shop in his A statement by her that he owes money for goods supplied absence. by reason only of any written acknowledg- ment or promise made or signed by authorised to [or by the agent duly or promise of] make such acknowledgment [or any other or others of them by reason only of payment of any principal. c.

vi'hether a ship remained at a port for an unthe plaintiff if reasonable time. 8 C. Caermarthen R. 6 C. L. statement made by A's solicitor to B's solicitor in common conversation that the debt was due from C is not The question is. i M. 9 Q. (d) The question is. 282. 72. if make admissions against another as to the part of the ship in which they have a interest. 685. and C sue D as partners upon an alleged contract specting the shipment of bark. J'^gg'^^ v. L. the plaintiff. 644. A relevant against A. 4Tau. These statements are not relevant as against A. or from C. C. R. Whitting. De La Cour. Chesney. was due from B.' is surety for B. the defendant. & P.' (/') A as to Article i8. B. P. a clerk. & Mo. i S. V. chester Whippingham. & ^ Langhorn v. A notice to produce the bill signed by A's solicitor as having been accepted (/i) and describing the bill by A is a relevant fact. 249. as admissions. common even he is co-partner with that other as to other parts of the ship. 147.' whether a debt to A. whether A accepted a bill of exchange. See also Evans v. B. Star. B being dismissed makes statements sums of money which he has received and not accounted for. Lucas V. 192 . B. Allnuit.Hawke. i Star. 5 Esp. Whikomb Holt V. not relevant as against A' [though niight have been relevant if said by A himself]. Ry. Binning. C. ' ' * ' ' Helyearv. and Either can make admissions about it as against the rest. Bacon v. v. Letters from the plaintiff's agent to containing statements which would have been admissions the plaintiff himself are irrelevant as against him.* admissions by strangers to an action.'' make a joint and several promissory note. C. . Statements by strangers to an action are not relevant as * See Note XIII. Beattie." (i) One co-part-owner of a ship cannot. C.26 A DIGEST OF it [Part I. 78. (/) A. 64. .* (g) D The question is. 511. i Fetch v. his exclusive property An admission by A that the bark is was and not the property of the firm relevant as against B and C. ManR.' (e) made by re- A. « Squire. as such. S. Lyon. s Smith 26 5 Esp. v.

] THE LAW OF EVIDENCE.t ADMISSIONS MADE WITHOUT PREJUDICE. & 366.Chap. . B says^' if C " (the caTman) "will say that he delivered the goods.^ is relevant as Article 19. 27 against the parties except in the cases mentioned in this Article. Braham. I will pay for them. Peake.* admission by person referred to by party. XV. Kemplandv. M. statements of the debt to be due to the execution creditor are relevant as against the sheriff.^ In actions against against sheriffs for not executing process debtor admitting his debtors. S. and in Article 19. When refers to a party to any action or proceeding expressly any other person for information in reference to a matter in dispute. 95 Jarrett v. Leonard." C's answer may as against B be an admission. 3 Ex. admissions as against the person Illustration. ' ^ ' Cooky. * Daniel v. IV. Article zo. Macaulay. 2 Star. No either admission is relevant in any civil action if it is made not upon an express condition * See that evidence of t See Note it is Note XIV. Pitt. u. Bridges. who refers to whether A delivered goods to B. 2 . the statements of that other person may be him. Williams v. 42. I Camp.'' The question is. 183. 265 (adapted to the new law of bankruptcy.^ In actions by the trustees of bankrupts an admission by the bankrupt of the petitioning creditor's debt against the defendant.

918.^>or was made under duress.'^ or under circumstances from which the judge infers that the parties agreed together that evidence of if it it should not be given. threat. 2 - Cory V.. to be given.* confession caused by inducement. 11. 4 C. Article 22. .. Forester. 462. Stockfleth y. threat. if voluntary. 5 M.& P. threat. and having reference to the charge against the accused person. confessions defined. or promise. proceeding from a person in authority. and suggesting the inference he committed that crime. C. J. Confessions. or promise. 28 A DIGEST OF [Part I. & G. to No confession deemed be voluntary if it appears to the judge to have been caused by any inducement.per Ellenboiough. Bretton.^ Article 21. A that confession is an admission made at any time by a person charged with a crime. are relevant facts as against the persons who make them only. Paddock V. gave the accused person reasonable grounds for supposing that by making a confession he would gain some advantage or avoid some evil in reference to th€ proceedings against him. 4 Cam. * See Note ' XVI. whether addressed to him directly or brought to his knowledge indirectly and if (in the opinion of the judge) such inducement. or promise. De Tastet. when irrelevant is in criminal proceeding.

In this case the exhortation was . who. and exhorts him upon religious grounds to confess his sins. or by an inducement collateral to the proceeding. and other persons in similar posi- tions. promising a reward and is. BosTx)ell.Chap. The prosecutor. threat. C. or by induce- ments held out by a person not in authority. magistrates. C.i. Illustrations. or promise which would otherwise render involuntary. under the influence of the hope of pardon. 584. whether A murdered B. only because it ap- pears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty. A. 186. tinctly relate to and so nmch of such confessions such facts. IV. is The master if the is of the prisoner not as such a person in authority crime of which the person making the confession against him. is 29 But a confession not involuntary. pardon to any accomplice who would confess. as dis- may be proved. officers of justice having the prisoner in custody. the chaplain of the gaol reads the Commination Service to A. This confession is voluntary. makes a confession. & Marsh. C. R. i Moo. Facts discovered in consequence of confessions improperly obtained. in consequence.] THE LAW OF EVIDENCE. is brought to the know- ledge of A. makes a confession. Gilkam. V.' {b) A being charged with the murder of B.^ • " R. (a) The question A handbill issued by the Secretary of State. accused was not committed A confession of the judge) is it is deemed shown to be voluntary if (in the opinion to have been made after the com- plete removal of the impression produced by any induceit ment. This confession is not voluntary. are persons in authority.

" but it seems from parts of the case that he was urged also to confess to man "to repair any injury done to the laws of his country. no pardon can be granted. i Leach. tell [Part is I.' (/) A.* Article 23. R. sions » The case is sometimes cited as an authority for the proposition that a clergyman may be compelled to reveal confes- made V. R. makes a confession to a policeman under an inducement which renders it involuntary.* confessions made upon oath.30 A DIGEST OF The gaoler promises to allow A. v.^ tries to induce so. to' does so. Her is mistress holds out an induce- ment (e) and she makes a confession. This is A a voluntary confession. Part of it is that he (A) had thrown a lantern into a certain pond. who gives it. with R. It has 2 = * Gould. R. and that the lantern was found in the pond in consequence. C. v. no reasons are given for the judgment. This that C a voluntary confession. 393. if he will where the property is. accused of burglary. Lloyd.* (d) A is accused of child murder. 522. 4 & P. & P. although in it was given upon it and although the proceeding to the to which was given had reference in same subject-matter as the proceeding which it is be proved. V. 364. because the mistress not a person in authority. After that A makes a statement. may be proved. The principle seems to be that a man is not likely to tell a falsehood in such cases. to him professionally. that the accused man from religious motives. Evidence amounting to a confession may be used as such against the person oath. should confess " to God. C. nothing to do with the subject. . V. 9 This is not consistent. 2 Den. 221. and although the witness might » See Note XVII. This is a volun- tary confession. to her to confess. C. & P. {c\ who see his wife. Moore." As is always the case in Moody's reports. Warwkkshall. a magistrate. 6 C. The fact that he said so. so far as the proof of the words goes. C. &c. Clerwes. A is accused of the murder of B. C. 263. R. accused of a crime. A to confess by promising to try to get him a pardon if Secretary of State informs he does The and is this is communicated to A.

v.^ charged with maliciously wounding B. A. C. V. Chidley &= Cummins.Chap. it it does not become irrelevant merely because was made under a promise of on the secrecy. 2 C. or when he was drunk. Joy. 365. answer any such question. v. 804. V.^ his answer is not a IllustratioHs. whatever may have been the form of those questions. L. R. See. appeared as a witness for C. who was charged with the same offence. is improperly compelled to answer voluntary confession. Garbett. I Den.J THE LAW OF EVIDENCE. Ev. . R. V. 5. but after refusing to if. statements by deceased persons when relevant. and T. and that evidence of might be given against him. the witness it. & B. 47 . (a) The answers given by him is a bankrupt in liis examination against {b) in a prosecution for offences against the may be used law of banlcruptcy.* Article 25. R.. too. If a confession is otherwise relevant. or in consequence of a deception practised accused person for the purpose of obtaining it. or because he was not warned that he was not bound it to make such confession. s. confession made under a promise of secrecy. iii. I V. 236. C. sections iv. 31 have refused to answer the questions put to him. Scott. A's deposition may be used against Before the magistrates his A him on own triaL ° Article 24. or because it was made in answer to questions which he need not have answered.. Widdop. I D. 8 C. R. Statements written or verbal of facts in issue or relevant ' ' ' * R. 420. C. Cases collected and referred to in i Ph. E.

In each of those articles the is word "declaration" means such a statement as by herein mentioned. Mosley. says The statement is relevant. is not irrelevant merely because was made as a deposition before a magistrate. something. 97. and to all hope of recovery at the time when it his declaration was made. Such a declaration intended to be but is irregular. specified in articles 2 6-3 1 . and on the conditions. ' R. relevant only in declarant trials for the murder or manslaughter of the and only when the declarant have given up is shown. which is taken down thus "I make the above state- — * See Note XVIII.* in his lifetime. B at the time of making the statement has no hope of recovery. Article dying declaration as to cause of death. to the issue are relevant.' B. (a) The question is. Illustrations. if the person the state- ment is dead. though his doctor had such hopes. at the time of making the statement (which is' written down). I Moo. and B lives ten days after making the statement. in the cases. to have been in actual danger of death. or as to any of the circumstances of the transacis tion which resulted in his death. whether A has murdered B. to the satisfaction of the judge. B makes a statement to the effect that A murdered him. . both inclusive.. V. A declaration made by the declarant as to the cause of his death. 32 A DIGEST OF who made [Part I. and the word "declarant" means a dead person whom such a statement was made 26.

. V. at the time when the statement wa. v. C. East. so that her statement was not a deposition within the statute then in force. C. & Ad. 2 B. is decided in 1789. and the magistrate signs it. D . It is now settled that the question > Doe V. I v. Hind. 356. whether the deceased was not under the apprehension of death ? I Leach. ' R.^ and of his own knowledge. ' 33 •' — A'-V ^i'' hope of fear of death before me." THE LA W OF EVIDENCE. ' n. The is irrelevant.'' question is. 898. Grafs R. 76. discharge of professional duty. Ir." B died thirteen hours to a The statement is. quoted in a note to R. The statement is relevant. B. was in a dying state. for the judge. The case was Woodcock. 187. whether A murdered B. is have left to the juiy the question. P. would have been admissible statement (f) The woman makes a statement which had A been on his trial for murder.. * 1 See Note XIX.Chap.^ [d) The question is. L.S made. [b) my recovery. 3 B. following R. and makes her mark to it.] ment with the recovery. 504. IV. is irrelevant. B makes a statement before a magistrate on oath. Eyre. corrects this to " with no hope at present of afterwards. V. V. Bell 253. on the statement being read over.* The C that Article 27. B.' The question whether A administered drugs woman with intent to procure abortion. Cir.* declarations made in the course of business or professional duty. A dying declaration by he (C) murdered B is irrelevant. C. i. R. but not in the presence of A. Case. at or near the time when the matter stated occurred. whether A murdered B. and had no hope of recovery. R. Jenkins. Mead. said to in fact In this case. C. A declaration is relevant when it was made by the or in the declarant in the ordinary course of business. and with no B. 608. Hutchinson. R. turford. Rep. & C.

that he was baptised on a given day is relevant. by a deceased clerk. and A returned by him to the sheriff. 326. see. because it was not the incumbent's duty to make it. i S. is relevant so far as . what is A's age. what were the contents of a after the letter is not produced after notice. V. 29. 3 Camp. A statement in the same register that he was born on a given day is irrelevant. 4 C. a relevant [c) The question is. 305. a workman and for in a coal-pit. or in South Molton Street.° The entries whom they Pricey. L. & R. {a) The question is. 11 Brain R. fact that a deceased drayman of A's. book kept for that purpose. & W. in fact. whether was arrested at Paddington. what coals were sold. A certificate annexed to the writ by a deceased sheriff's of&cer. The livery. it relates to the fact of the arrest but irrelevant so far as it relates to the place where the arrest took place. to B.34 A DIGEST OF Such declarations are irrelevant except [Part I. B. A copy entered immediately was written. so far as they relate to the matter which the declarant stated in the ordi- nary course of his business or duty. Illustrations. 328.* (e) The question is. Chamiers v. Bernasconi. Fritt V. for were made.^ (d) tell The course of business was for A. key. M. [b) relevant. Clapham. Fairclough. too. in the ordinary course of business. & .^ a. C. because B. did not know them to be true.' letter The question is. ' ' L. Smith v. the foreman. v. on the evening of the de- made an entry to that effect in a is book kept for the purpose. whether A delivered certain beer to B. 7th ed. P. (A and B being dead) are not relevant. 2 Q. B (who could not write) to get C to make entries in a book accordingly. i C. 347 . 773. Preece. Torringion. A statement by the incumbent in a register of baptisms. M. R.

IV.^ A statement made by a declarant holding a limited interest of the rever- interest in any property against the is sioner therein not a declaration against proprietary interest within the meaning of this article. may be against who makes it. These are almostthe exact words of Bayley. and of any other statement although matters referred to in stated is re- levant. see Lord Campbell's Judgment in case quoted. not referred to in. or necessary to explain such declarations. stated.* * ' See Note XX. Illustrations [a) (b) and if). ' Illustrations (d) and {<f). tion. ^ ' & M. p. are not relevant merely because they were place. A declaration is relevant if the declarant had peculiar means of knowing the matter to misrepresent it. Illustration (^) . but statements. 177.Chap. 28. Atkin. if he had no interest and ^ if it was opposed to his pecuniary or proprietary interest. in Gleadowv. I C. The whole of any such declarait.] THE LAW OF EVIDENCE. J. may be which were not against the pecuniary or proprietary interest of the decla- rant . seems] though there itself either may be no liability proof other than the statement or of its of such discharge in whole or in part. '^ made at the same time or recorded in the same A declaration the person liability.* 35 Article declarations against interest. 423.. D 2 . if part may and discharge [it the pecuniary interest of of it charges him with a though other parts of the book or document in occurs which it him from such liabiKty in whole or in part.

IV. IV. E. Ph.^ Any endorsement deceased person. 3. 33. (a) The question is.36 A DIGEST OF An [Part I. Ev. endorsement or memorandum of a payment made note. i. bill upon any promissory writing. Limitation ^ not sufficient proof of such payment to take the case out of the operation of the Statutes of . 14. has no provision similar to 9 Geo. Hence ' 9 Geo. is or memorandum to the effect above mentioned made upon any bond or other specialty by a regarded as a declaration against the proprietary interest of the declarant for the purpose above- mentioned.625-9. 3 c. 302-5. s. sufficient proof for the purpose aforesaid. IV.. 3. which is is in this case the ordinary rale * unaltered. 14. I See the question discussed in article 85.^ at the time is when it purports to have been made but it uncertain whether the date of such endorsement or memorandum may be presumed to be correct without independent evidence. 42. . James. and T. B. s. to or other by or on behalf of the party is whom such pay- ment was made. of exchange.^ Illustrations. if it is shown to have been made . the Statute of Limitations relating to Specialties. Bradley v. t. but any such declaration made is in any other form by or by the direction of the person to is whom the payment was made when such person dead. 13 C. 822. whether a person was born on a particular day. ^ and see Illustration (k).* Statements of relevant facts opposed to any other than the pecuniary or proprietary interest of the declarant are not relevant as such. ' = & 4 Will.

7th ed. IV. C.. charging himself with the receipt of such rent for A. id. ^ ' * " " Heaton.* (e) The bill * . for ^ s f doing them. whether A received rent for certain land.. Fowden. in which he charges A with the expense of repairing the gate is irrelevant. and ^i our ancient custom thus to proportion church -lay. Beviss. C. Wife.] — THE LA W OF EVIDENCE. 592. or that the money was paid. is relevant. chapelry of for costs. " Higham Stead V. The question is. Fihus circa hor. & Ro. 7 Williams v. An account by a deceased steward. v. are relevant The Haworth pay one-fifth. A . Ap.'s wife. Graves. . 669. 333. natus H. by a deceased carpenter. W." ^ whether a gate on certain land. Ridgway. V. &c. 2 S. whether certain repairs were done receipted at A's is expense. & P. Junr. Heyford." (b) Junr. L. who this year disputed this our ancient custom. Fowden. 2 Smith L. B. v. deceased steward's account.. R. Doev. Doe R. signed by deceased church- wardens. C. 3 post merid. 1768. 25 Oct. 7th ed.' (d) The question is. although the balance of the whole account is A in favour of the steward. paid it accordingly— £8. 22. note to Highamv. Vowles. 4 T. I Mo. 8 C. the property of was repaired by A. Pd. 261. question is. relevant there being no other evidence either that the repairs were done. fihus natus.— Chap. book of a deceased man-midwife in these yj An is entry in the :' words relevant " W. Ridgway. though it would have been relevant if it had appeared that A admitted the charge. but after we had sued him. 318. 456. whether a certain custom exists in a part of a parish. The following "It is entries in the parish books. £1 6s." Followed by " Received of Haworth. (c) The is question is. which in dispute.

' C.38 A DIGEST OF A [Part I. right. that he had is relevant. 1876. Crease Barrett. whether they were made before or after the loss of the will. but not as against the owner of the {h) whether A was lawfully married to B. Papendick v. 166. 341. ' ^ 4 Q. 5 E. Bridgewater. & R. A statement by a deceased clergyman that he performed the marriage under circumstances which would have rendered him liable to a The criminal prosecution. When there is a question as to the contents of a lost its will. Sussex Peerage Case. Sparke.' Mar. becauses it reduces the interest which would otherwise be inferred from the fact of A's possession. A-statement by A.* declarations as to public and general rights. whilst in possession of a house. 108. is not relevant as a statement against interest. M. B. V. & B. (deceased) gained a settlement in {/) The question is. St. & F. estate. is relevant as against his successors in field. statement paid rent for A made by A.' Article 29. declarations by testators as to contents of will. 'Weekly Notes. whether the parish of B by renting a tenement. Also I see Weeks v.' (g) The question is. In questions between the heir and the legatee or devisor such state* ments would probably be relevant as admissions by a privy in law.. Leonards. Sugdeny. 11 C. Note XXI. or blood. R. Declarations are relevant (subject to the third condition mentioned in the next article) when they relate to the existence of any public or general right or custom or matter * See . p. 917. R. & S. the declarations of the deceased testator as to contents are relevant.^ the terin. it. Exeter. . 25.* Article 30. 679 . 114. that he had no such question is. L. a deceased tenant for a term of the land in question. i M. whether there is a right of common over a certain field.

public common to all Her Majesty's and declarations as to public custom general rights are relevant whoever made them. Barrett. & E. Bradstreet. & R. to the satisfaction judge. 390. 928. and Pipe v. M. in Maps prepared by Copies of Court or by the direction of persons interested in the rolls . IV. if it is A right subjects. i E. \o Ex. R. > 2 .. In each of these cases the map was rejected Fulcher. B. 550. III. following are instances of the manner in which declarations as to matters of public and general interest may be made :^They may be made matter . & E. 929. or the tenants of a manor. I C. Crease v. Barrett. [a) The question is.] THE LAW OF EVIDENCE. * Crease v. are irrelevant. as the inhabitants of a parish. ' Implied in Hammond v. Illustrations. to have Such declarations maybe made any form and manner. 7 A. V. or who appear from the circumstances of their had competent means of knowledge. whether a road that that is public. Declarations as to general rights are relevant only they were of the when made by persons who are shown. in statement. he planted a willow (still standing) to show where the boundary of the road had been when he was a boy is irrelevant'' {b) A statement by A (deceased) A statement by A (deceased) The it is public is relevant. 39 of public or general interest. I C. & R. ticular facts But declarations as to par- from which the existence of any such public or general right or custom or matter of public or general interest may be is inferred. Bliss.' ' ' Chap. as not properly qualified. per Parke. M. A right or is if it is common to any considerable number of persons.

or information given to him by other persons qualified collected rants. Lowndes. Curell. 234. by which such to the relationship was constituted. Plaxton V. whether living or dead. between private persons decrees. & Ad. . ' ^ ' ' ' Dare. . 6 M. . marriage. 527. or death of any person. 17. & C. and similar Article 31.' ' — . Broxtowe. Verdicts.^ in cases in relationship are The (1) conditions above referred to are as follows Such declarations are relevant only is. 4 B. 273.* either the personal Such declarations may express know- ledge of the declarant. Pirn V. or to the birth. and not to be cases in which (2) it is only relevant to the issue declarant They must be made by a * shown to See Note XXII. & G.' and orders of Courts. & W. 40 Deeds and bodies ^ if A DIGEST OF leases [Part I.* declarations as to pedigree. judgments. Illustration (c) Illustration (b). or time or place at fact which any such connected with fact occurred. A after declaration is relevant (subject to the conditions hereinto the existence of mentioned) if it relates any relation- ship between persons. 6 M. or to any immediately its occurrence. • ' Illustration {a). which the pedigree to which they relate in issue. 10 B. Duke of Newcastle v.^ to be declarants. Davies v. 266. but not information qualified to by him from persons not be decla- They may be made in any form and in any document or upon any thing in which statements as to commonly made. final.

^ This condition applies also to statements as to public and general rights or customs and matters of interest. 401 —417. son Achicus. 6 M.* evidence given in former proceeding when relevant. . in pedigrees. 527.^ cestuis The question whether one of the que vie in a lease for lives is living. & P. he was believed in his family to be dead is irrelevant. is Evidence given by a witness in a previous action * See ' rele- Note XXIII. whom 41 legitimately related by blood to the person to relate (3) . 17). 203-15. Vin.] THE LAW OF EVIDENCE. (ffl) The question is. in inscriptions on fact that The as the question is : tombstones. and T. 91. The fact that the father said that took their names from fact that St. and the the birth said that she tied a string round it. Shrewsbury Peerage Case. xvi. calls the Whittuck V. 583-7. Ev. so far as they state the relationto the compiler. E. T. the second child's (b) arm is.^ before the question in relation They must be made to to which they are be proved has arisen . Abr. ' In I Ph. these and many other forms of statement of the same sort are mentioned . of L. and see Davies v. they or by the husband or wife of such a person. to distinguish are relevant. Berkeley -Peerage Case. 7 H. 375.Chap. tit. Stephanus. 26. or portraits ship of living persons . The report 4 C. and he Cor. in books used as family registers . Lowndes. not one of pedigree. Illustrations. Walters.* (c) The following are instances of the ways in which statements as to pedigree may be made By family conduct or correspondence . is and Achaicus) born at a birth the eldest. but they do not cease to be relevant because they were made for the purpose of preventing the question from arising. Paul's Epistles (see I a relation present at Achaicus was the youngest. & G. in deeds and wills . IV. which of three sons (Fortunatus.' known Article 32. b. ^ ^ * 4 Cam. ss. Evidence.

B. 17 Q. 243. perhaps. 789. 6 C. the same person facts. Godbolt. v. may be produced and given in evidence at the trial of the person whom it was taken. Derby. but not in criminal. i Tatham. . Mayor of Doncaster v. if civil. 785. 405.^ or. 243. v.* or in civil. & P. p. 783. v. 3 T. 17 Q.^ or is kept out of the way not. Hogg. 262. case I * 418 . 42. R. R.' That the questions in issue were substantially the . same in the first as in the second proceeding Provided also (3) That the action. but is seems. BeestorCs Case. R. 243. Fry Doe Wood.— — ' ' 42 A DIGEST OF [Part I. Scaife. s. B. B. ' H. or in a later stage of the same action. 444 .7. 176. party. in criminal cases. 319 Doe v. c. 1 Atk. & E. A deposition taken under against ' == 11 & 12 Vict. R. when the witness is dead. V. in civil. ^ Provided in all cases (i) That the person against whom the evidence is to be given had the right and opportunity to cross-examine the declarant (2) when he was examined as a witness . it by the adverse criminal cases. R. 326. 238.^ or so ill that he will probably never be able to travel.' is accused upon the same Article 33. depositions before magistrates. 1. V. Day. A. V. & E. was between the same . vant for the purpose of proving the matter stated in a subsequent action. 17 Q. parties or their representatives in interest (4) That. * ' " ' 3 Tau. Dears. V."^ or is mad. . cases when he cannot be found. A. in out of the jurisdiction of the Court. Eriswell. Scaife. Scaife. 720.

V. Scaife.s. the judge is not obliged to receive the deposition. 17. T. the same objections may be made to the reading of it any part of it as might have been made when was originally taken by the party who ' ' Analogy oi R. E. proved by the person who offers it as that it was taken in the presence of the person accused. v. or attorney. L. IV. & C. ill 43 if it is proved [to the satisfaction of the judge] that the travel [although witness there is dead. Stephenson. Ev. & F. or so as not to be able to . but may postpone the trial. whom it purports to be signed that the statement it was not taken upon oath to or signed or [perhaps] that witness].^ may be he is a prospect of his recovery] [or. 448.] ^ and and evidence the deposition purports to be signed by the justice by or before if it is whom it purports to have been taken .. 42. See I Ph. Nothing can be more rambling or ill-arranged than the language of the section itself. V.] THE LAW OF EVIDENCE. c. had a full opportunity of cross-examining the witness Unless it is proved that the deposition was not in fact signed by the justice by [or. the effect of which is given by the ^ R. &c. s. if kept out of the way by the person accused] if '^ or. = R. . R. 87-100. . as interpreted by the cases referred to. his counsel. 165.^ is When a deposition or other record of evidence used as evidence in a subsequent proceeding. 773. words in brackets. Tait. 17 Q. Chap. also by common practice. 553. * I believe the above to be the effect of 11 & 12 Vict. B. Scaife. V. if [probably he is too mad to testify.* was not read over by the If there is a prospect ill of the recovery of a witness proved to be too to travel. and that he. 2 F.

full of cross-examining the deponent. might have objected when the question was asked.' Article depositions under 30 34. 6. i. c. may be to produced and read as evidence. & R. and that such person or his counsel or attorney had or might opportunity have had. and if the deposition purports to be signed by the justice by or before if it is whom it purports to be taken. under 30 & 31 Vict. but no one can object to the reading of an answer to a question asked by the representative of his own party.— 44 A DIGEST OF [Part I. c.^ ' Hutchinson v. first ^ 30 & 31 Vict. The language is slightly I have not referred to depositions taken before a coroner (see altered. or is if it is proved that there no reasonable probability that the deponent will ever be able to travel or to give evidence. 35. either for or against the accused. it upon the trial of any offender or offence ^ which relates if the deponent is proved to be dead. 35. '' Sic. u. and as the belongs rather to the subject of criminal procedure than to the subject of evidence. and proved to the satisfaction of the Court that reason- able notice of the intention to take such deposition was served upon the person (whether prosecutor or accused) against whom if it is proposed to be read. 35. 2 Moo. A deposition taken for the perpetuation of testimony in criminal cases. 6. s. part of it . Bernard. & 3i vict. s. he had chosen to be present. I have omitted it. The section is very long. s. 6.

T. but these are matters not of evidence. but of criminal procedure. therefore.^ kept. or in any Royal proclamation or speech of the Sovereign Parliament. ditions c. They must be signed by the coroner . IV. because the section says nothing about the con- on which they may be given in evidence. relevancy of entry in public record made in performance of duty."^ Article 36. and made any duty by any person in the discharge of in imposed upon him by the law of the place book. register. 636 ss. or record is which such fact. Article 35. (from Greenleaf) 1429. or in any of Her Majesty's dominions or in proper time any foreign country. . any statement of made in in a contained in any public Act of Parliament. Their relevancy. 4 M. V. 17 S. 64. stating a fact in issue or relevant fact. depends on the common law principles expressed in article 33. ' T. or in any address to the opening Crown of either House of Parliament. 45 relevancy of statement in certain acts or notifiCATIONS. register. 1432. 532. . Francklin. v. 4).] THE LAW OF EVIDENCE. When recital any Act of state or any fact of a public nature it is in issue or relevant to the issue. is a relevant fact. R. IV. An entry in any official book. or record kept in at sea. is itself a relevant 7 Geo. E. Sutton. s. & S. ' R.Chap.

^ but such statements are irrele- vant if they relate to matters of private concern. or his executors or administrators. and such as are usually represented or stated in such maps. V. Article 38. ENTRIES IN tradesmen's BOOKS. Statements as to matters of general public history in accredited historical made books are relevant when the occuris rence of any such matter in issue or relevant to the issue. ' Orton. or shall have brought some ' See oases In R. No tradesman or handicraftsman keeping a shopbook. Ev. may give his shopbook in for evidence in any action for money due bill wares delivered or work done above a year before the same action brought. . 155-6. such as the relative position of towns and countries. or charts. 37. and plans. in 2 Ph.46 A DIGEST OF Article [Part I. 1 [Submittecf] facts Statements of facts in issue. maps of Australia were given in evidence to show the situation of various places at which the defendant said he had lived. or matters not likely to be accurately stated in such documents. are themselves relevant facts • . charts. but statements in such works as to private rights or customs are irrelevant. relevancy of statements in maps. or relevant made in published maps or charts generally offered for public sale as to matters of public notoriety. unless he shall have obtained a of debt or obligation of the debtor for the said debt.

All judgments whatever are conclusive proof as against all the world of the existence of that state of things which effect. 12.* definition of word "judgment. it has in articles been superseded by the principles stated 27 and 28. i7 action against the debtor for the debt or work within a year next after the deKvery of the wares or the work done. If this ever was the law. . . whether A has been damaged by the negligence of his servant B in injuring C's horse. merchant and tradesman. * ' See Note is XXIV. Article 40. c. they actually and they are relevant when tlie state their own existence or the existence of is of things so effected a fact in issue or relevant to the issue." means any final The word " judgment " in articles 40-47 judgment order or decree of any Court.Chap. IV. 7 James It I. missible in proof of appears to imply a rule that shopbooks are as such adwhat they state. (a) The question is. This does not extend to dealings between merchant and merchant. all judgments conclusive proof of their legal EFFECT. This Act printed in the revised edition of the Statutes.] THE LAW OF EVIDENCE. or tradesman and tradesman. for anything directly falling within the compass or circuit of their mutual trades and merchandises.^ Article 39. Illustrations.

7 T. . a shipowner. R. 582.' for a debt A.'' A is deprived of his living by the sentence sentence is of an ecclesiastical court. — In this case the will to which 351. Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case. Barlow. & Ry. Bury. L. The is (e) A is conclusive proof as against C. v. 346. and see Caddy v. as executor to B.^ Divorce Court. Tollervey. that A B's executor. P. for a loss by capture against to A (c) by capture.^ 48 A DIGEST OF in [Part I. 301 .' C recovered damages against A is C did recover damages against A whether A. R. R. judgments conclusive as between parties and privies of facts forming ground of judgment. and appearing from the judgment ' itself to be Green v. Judgment an action. '^ Involved in Geyer Leggait ' V. Dundas. The judgment proof that (d) of a Court by which A was acquitted due from is conclusive A was acquitted by that C Court. Assumed in Needham v. New River Company. is conclusive proof that the ship and cargo were lost (b) The question is. R. The sentence is conclusive proof of the divorce in Article 41. 130. sues grant of probate to C to B. that in that action. ' Allen V. Bremner. whether A can recover damages from B for a malicious prosecution. 681. Aguilar. i C. (See article 44. 590. The {/) conclusive proof of the fact of deprivation in all cases. actually decided by the Court. is entitled to recover as B an underwriter. 14 Ex. 37 R. 125 probate had been obtained was forged. i Man. A judgment of a competent French prize court condemning the ship and cargo as prize.'' The question is. A and B are divorced & vinculo matrimonii by a sentence of the all cases. 277. 4 T. in which conclusive proof as against B. Illustration (a). 2 T. 5 ° Judgment of Lord Holt in Philips v.

Afterwards there is a suit between A and B for the distribution of the The declaration in the first suit is in the second suit effects of C. 587. deceased. 780. & B. as between him and the company that he never was a shareholder. Bank of Hindustan. and is therefore entitled to recover the sums he paid. D the mother and children were ment arose. Illustrations. & Tri. A special of Common Pleas. unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved. 2 Swa.^ unpaid premium and calls. &c. L. on the ground of cruelty and desertion. E the father of C. a pauper. The decree in the first suit is irrelevant in the second. V. in the order that D was the wife of E is conclusive as and B. Stoate V. Stoate. whether C. 4 E. B has proved himself next of kin.Chap. which order described D as the wife of E. the judgment declaring that. E. proved by her own evidence. A charges B with cruelty and desertion. 9 Ch. Afterwards B sues A for dissolution of marriage on the ground of adultery. A applies for the repayment of the sum he had paid for premium and calls. as far as appears by the evidence. .' (rf) A obtains a decree of judicial separation from her husband B. 24. D. 588.. App.] THE LAW OF EVIDENCE. Allison's Case. it 49 the ground on which was based. in which suit neither B nor A can give evidence. Jackson. 2 ' < Hartington Middle Quarter. 582.' A and B each claim administration to the goods of C. IV. Barrsy.* • If. The statement between A conclusive proof as against (c) A that B is for A company sues A nearer of kin to C than A. The case being stated in the Court decision that he never was a shareholder is conclusive. ifi) Administration is granted to B. A obtains judgment on the ground that he never was a shareholder. (a) The is question is. R. The company being wound up in the Court of Chancery. and several of their removed from A to B before the question as to C's settleby an order unappealed against. is settled in parish A or parish B. i PWU. 223.

681. is irrelevant. to A and B is. Biydges.) This exception is treated by Lord Eldon as an objectionable anomaly in Lothian v. & P. & I. Castrignev. had been A A special verdict whether certain lands in Kent on a feigned issue between in the C and (b) D (strangers question and B) finding that 2nd Edw.50 A DIGEST OF Article 42. Aguilar. where such plainly stated upon the face of the sentence. A decree in a suit of jactitation of marriage. is conclusive proof in favour of that the cargo it was enemy's property (though on the * facts the Court thought was not. . L. is conclusive proof as against the world of the fact fact on is which the condemnation proceeded. R. sentence of a French prize court condemning ship and cargo. In such cases the judgment all except ^ in the case of judgments of Courts of Admiralty condemning a ship as prize. 2 Smith's Leading Cases. 434-5. too. has broken a warranty an underwriter. 7 T.^ The is. App. a is dis- gavelling Act was passed in words set out in the verdict irrelevant. (a) The question between disgavelled. Henderson. a shipowner. 6 M. VI. 4 E. 282. Duchess of Kingston's Case. whether A. on the ground that the cargo was enemy's property. ' '^ * * Doe V. whether A committed bigamy by marrying B during the lifetime of her former husband C. on the ground that he was not her husband.' (c) The to B The question is. except in admiralty cases. 3 B. [Part I. 760. statements in judgments irrelevant as between strangers. that the cargo of the ship whose freight was insured by A B was neutral property. Statements contained in judgments as to the facts upon which the judgment Strangers. or privy. or as is based are irrelevant as between between a party. 545. Imric. forbidding C to claim to be the husband of A. R. and a stranger. & G. See. Geyer v. Illustrations.

and see Feversham v.Chap. 24. This had previously been E 2 . 662 . 391.] THE LAW OF EVIDENCE. Emerson. Whitaker v. Winch. Afterwards B's devisee sues A's wife (who on the trial admitted that she claimed through A) for pulling down the wall and cornice. If a judgment is not pleaded by way of estoppel fact. II Ex. 2 B. 51 kffect of judgment not pleaded as an estoppel. Article 43. Jackson. is Such a judgment evidence of estoppel. See 2 Ph. n.^ ' Vooght v. it is as between parties and privies a relevant whenever any matter which was or might have been decided in the action in which it was given is in issue or relevant to the issue in any subsequent action. ^ doubted. but not conclusive in B's favour. and which might have been pleaded as an estoppel. conclusive proof of the facts which it decides. whereby the flow of water to A's mill was diminished. and building thereon a wall and a cornice. IV. & 4. and obtains a on that plea. & A. it is conclusive in B's favour that the land was his. (a) A sues B for deepening the channel of a stream. if the party it who it gives as had no opportunity of pleading an Illustrations. 926. As the first judgment could not be pleaded as an estoppel (the wife's right not appearing on the pleadings). or might have decided. C. verdict in his favour B pleSds that the land was his. is A relevant. Ev.' {h) A sues B for breaking and entering A's land. 2 H. verdict recovered by B in a previous action for substantially the same cause.

they As between As between different strangers parties and privies in suits where the issue is even though they relate to the same occurrence or subject matter Or (i) in favour of strangers against parties or privies. each of damaged by the other. (b) irrelevant to the question. Judgments are not. (a) The question is. App. who has injured C's horse. or it (2) If relates a matter of public or gejieral interest. Imrie. & I. and recovers damages on the ground that the colhsion was the fault of B's captain. 52 Article 44. relevant as rendering probable facts which may be inferred from neither state nor decide their existence.^ The fact that A was convicted of forging the collision takes place between two ships A and B. whether A has sustained loss by the negligence of B his servant. bill of exchange is action on the irrelevant. Illustrations. But a judgment may be to relevant as between strangers : As being an admission. 434. 589. 4 T. Neia River Company. This judgment (c) A which is Green v. but which. Per Blackburn. as to the fact that recovered a this sum of money from A. — A DIGEST OF [Part I. a.. R. . A judgment recovered by is C against A for C the injury. J. R. though con- clusive as against B. whether was caused by B's forged arises in an bill is negligence. in Castrique v. L.. The owner of A sues the owner of B.' The question whether bill. 4 E. as a statement under article 30. judgments generally irrelevant as between strangers.

Petrie v.' A sues B. c. A sues B (a justice of the peace) for taking from him a vessel and 500 lbs. 432. B afterwards prosecuted as an accessory to the felony committed by A. whether they are or are not necessary to give the defendant jurisdiction.* (/) A sues B for trespass on land. 28). 242. 28.] ^ (d) A is is prosecuted and convicted as a principal felon. A judgment. Ad. of gunpowder thereon. = 347. for goods delivered by A to B. I B. IV. P. 569. b. '" On the general principle in Duchess of Kingston's Case. not conclusive in an action by the owner of B against the owner of for the damage done to B. . judgment recovered by B against a person to whom he had delivered the goods. The conviction conclusive proof for B. convicting A for a nuisance by obstructing a highway on the place said to have been trespassed on is [at least] evidence to show that the place was a public highway [and is possibly conclusive].' ' The Calypso. are conclusive proof of the facts therein stated. When any action is brought against any person for any thing done delivered. Nuttall. Illustration. 11 Ex. a carrier. though A's guilt must be proved as against B. the judgment and the proceedings antecedent thereto. III.] THE LAW OF EVIDENCE. Kinnaird. & B. is relevant as an admission by B that he had them. C.Chap. 53 is . i Swab.'^ A Article 45. by him in a judicial capacity. v. B produces a conviction before himself of A for having gunpowder in a boat on the Thames is (against 2 Geo. that the thing called a boat was a boat. BuUer N. Turner. it is irrelevant. I ' * ' Semble from R. The judgment against (e) A is irrelevant as against B.' \Semble. A. Brittain v. judgments conclusive in favour of judge. C. Moo.

R. 221-3. See. the party against whom gave or. Godard v. ' FOREIGN judgments. fraud. he a stranger to that it was obtained by any doubtful whether it fraud or collusion. and Castrique 4 E. B. 813-845. ' The cases on this subject are collected in the note 1530. 414. or that has been reversed. found in R. 2 Ph. A list of the cases will be Imrie. Gray. to which neither he nor any person to whom he is privy was a party. Tlie last leading cases on the subject are v. . App. Wlienever any judgment is offered as evidence under any of the articles hereinbefore contained. P. 2 S. 139. ss. Ev. L. E. [Part I. or want of jurisdiction may be PROVED. L. & I.^ ' Cases collected in T. It is a party or privy to such a judgment can show that was obtained by a fraud to which he was not a party. and so far as they can be so enforced. s. that it the Court which had no is jurisdiction. C. too. if it it is so offered may prove it. collusion. N. R. ^ Article 47. The provisions of articles 40-46 apply to such of the judgments of Courts of foreign countries as can by law be enforced in this country. L. on the Duchess of Kingston's Case. 1524-1525.54 A DIGEST OF Article 46. 6 Q. 35.

His friends' opinions as to his sanity. The question is. a deceased testator. The fact that any person is of opinion that a fact is in issue. K.Chap. Si'E. within any of the articles hereinbefore contained. whether A. " science or art " include subjects on which a course of special study or experience * necessary to the See Note d. any such matter are relevant Such persons are hereinafter called experts. or relevant to the issue. . are irrelevant. When there is a question as to any point of science or art. does or does not exist not regarded as relevant to the existence of such fact.* WHEN RELEVANT AND WHEN NOT.] THE LAW OF EVIDENCE. Article 48. 313. XXV. opinion generally irrelevant. OPINIONS OF experts ON POINTS OF SCIENCE OR ART. was sane or not when he made his will. except in the cases specified in this chapter. "j Wright V. the opinions upon that point of persons specially skilled in facts. as expressed by the letters which they addressed to him in his lifetime. Illustration. 55 OPINIONS CHAPTER v. Doe Tatham. v.' Article 49. all is The words.

Ph. 30 S. When there is a question as to a foreign law the opinions of experts who in their profession are acquainted with such law are the only admissible evidence thereof. 8 Q. See my Gen. 28 Vict. are relevant. l8. 4 E. L. R. 624 . L. 510-511. having received all neces- sary explanations from the expert. 6 Ex. whether A. 10 H. 8 Ex. and whether to ' I S. App.s. The opinions of experts upon the question whether the exliibited by A symptoms commonly show unsoundness of mind. Imrie.' is. incapable of knowing the nature of the act. unless he perceived them himself* Illustrations. V. . T. Law. Railway. by reason of unsoundness of mind. see. It is may construe for itself^ subject to the duty of the judge to decide. W. was.L. 434 .^ and amongst others the examination of handwriting.Boehm). s. L.56 A DIGEST OF [Part I. 250-267 . R.' 357. which books the Court. Baron de Bode's Case. Castrique v. whether the in the matter is skill of any person on which evidence of his opinion is offered sufficient to entitle him to be considered as an expert. = Bristow V. E. The (b) opinions of experts as to the symptoms produced by the poison supposed to have died. at the time of doing a certain act. ' . trary to law. (a) The question is.7thed. too. the opinion of the Court above. & I. 507 . Rowley y. formation of an opinion. ^ Picton's Case. Philliffs. whether the death of A was caused by poison.55S. Sequeville. c. though such experts may produce to the Court books which they declare to be works of authority upon the foreign law in question. Ss' N. 1278. B. 221. Palmer {/lassim).C. ' R. (note Carlerv.^ The opinion on which of an expert as to the existence of the facts his opinion is to be given is irrelevant. View of Crim. T. i8. Di Sora v. or that he was doing what was either wrong or conis by which A The question . 275 « I L.

is relevant. similarly poisoned in 1848. Dove. whether an obstruction to a harbour is caused by a certain bank. Chap. The fact that other persons. 28 Vict. 124. &c. . printed Ibid. 3 Doug. v. are relevant. are Relevant' is. In this casS (tried in 1856) evidence was given of the symptoms attending the deaths of Agnes Senet. not otherwise relevant. when such opinions are relevant. or of knowing that what they do is either (c) wrong or contrary to law. was tried. The question Another document been written by A. ' be obstructed at about the " ' trial. c.. whether illustration (b) the symptoms from which they infer that A was of unsound mind existed . 391. 18. Article 50. 8. facts bearing upon opinions of experts. is whether a certain document was written by A. Illustrations. V. Facts. The question is. who were poisoned by that poison. 157. Mrs.'' (d ) The opinions of experts on the questions. 57 such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do.] THE LAW OF EVIDENCE. but to where there were no such banks. by strychnine in 1845. R.' began same time. V. whether in illustration in (fl) A's death was in fact attended by certain symptoms. (3) exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison. Chadd. whether in illustration (c) either or both of the documents were written by A.' [b] The question is. for whose murder Palmer * Foulkes v. poisoned. murdered by the same poison subsequently to the death of Cook. R. p. Serjeantson Smith. . The fact that other harbours similarly situated in other respects. s. whether A was poisoned by a certain poison. An expert gives his opinion that it is not. are relevant if they support or are inconsistent with the opinions of experts. Palmer. produced which is proved or admitted to have The opinions of experts on the question whether the two documents were written by the same person or by different persons. and Mrs. is relevant. are irrelevant.. Dove (passim).

who saw A Write once twenty years ago. when relevant. to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon. 71-2. nor D ever saw question is. opinion as to handwriting.^ of C. 25 S. The opinions of B.^ Illustration. J. given letter is in the handwriting of A. is B's whose duty it was to examine and file B's correspondence. 730 (Patteson.. 5 A. When there is a question as to the person by signed. T. J. Doev. 58 A DIGEST OF Article 51. and received letters purporting to be written by him. . V. is relevant A person of another pers'on write. is also See Illustrations. C. J. C.). C is B's clerk.) . or when. 705 (Coleridge. fact. C. or deemed to be acquainted with the handwriting when he has at any time seen that person received documents purporting to be when he has written by that person in answer to documents written by himself or under his authority and addressed to that person. a merchant in Calcutta.) " R. and D on the question whether the letter is in the handwriting of A are relevant. [Part I.'' The opinion relevant. Home Tooke. who has written letters addressed to A. though neither B. ' ^ & E. Sackermore. B is a merchant in London. in the ordinary course of business. D A write. the opinion of whom any document was written or that any person a acquainted with the handwriting it of the supposed writer is was or was not written or signed by him. 739-40 (Denman. documents purporting to be written by that person have been habitually submitted to him. The whether a. broker.

Chap, v.]

THE

LAW OF EVIDENCE.
Article
52.

59

comparison of handwritings.
Comparison of a disputed handwriting with any writing
proved to the satisfaction of the judge to be genuine
mitted to be
is

per-

made by

witnesses,

and such

writings,

and the

evidence of witnesses respecting the same,
to the Court

may be

submitted

and jury as evidence of the genuineness or
This paragraph apphes
civil,

otherwise of the writing in dispute.
to
all

courts

of judicature, criminal or

and to

all

persons having by law, or by consent of parties, authority
to hear, receive,

and examine

evidence.''

Article

53.

opinion as to existence of marriage,

when

relevant.

When

there

is

a question whether two persons are or

are not married, the opinion,
their acquaintances

expressed by conduct, of
is

and

friends

a relevant fact

;

but such

opinions are not sufficient evidence to prove a marriage
in a prosecution for

bigamy or

in proceedings for a divorce,

or in a petition for damages against an adulterer.^

Article

54.

grounds of opinion, when relevant.
Whenever the opinion of any
grounds on which such opinion
living person is relevant, the
is

based are also relevant.

Illustration.

An

expert

may

give an account of experiments performed by

him

for

the purpose of forming his opinion.

>

17

&

18 Vict.

c.

125,

s.

27

;

28 Vict.

c. l8, s. 8.

Morris V. Miller, 2 Burr. 2057; Birty.Barlotv, 1 Doug. 170 ; and Compare R. v. Mainwaring, see CatAerwoodv. Caslon, 13 Mow. 261. Dear, and B. 132.
'


6o

;

A DIGEST OF

[Part

I.

CHAPTER VL*
CHARACTER,

WHEN RELEVANT AND WHEN NOT.
Article
55.

character generally irrelevant.

The

fact that a to

person

is

of a particular character

is

not

deemed

be relevant to any inquiry respecting his conduct
articles hereinbefore contained,

under any of the

except in

the cases mentioned in this chapter.

Article

56.

evidence of character in criminal cases.
In criminal proceedings, the fact that the person accused
has a good character,
is

relevant

;

but the fact that he has
it

a bad character
issue,

is

irrelevant, unless

is

itself

a fact in

or unless evidence has been, given that he has a
character, in

good

which case

it

becomes

relevant.

When any
who

person gives evidence of his good character

Being on his
death, has

trial for

any felony not punishable with any offence punishable

been previously convicted of felony
his trial for

Or,

who being upon

* See Note
'

XXVI.

8 Geo. IV. c. 28, s. II, amended by 6 & 7 Will. IV. c. iii. If " not punishable with death " means not so punishable at the time when 7 & 8 Geo. IV. c. 28 was passed (21 June 1827), this narrows the
7
effect of the article considerably.

&

Chap. VI.]

THE

LAW OF EVIDENCE.

6i

under the Larceny Act, 1861, has been previously convicted of any felony, misdemeanour or offence punishable

upon summary conviction ;i

Or who, being upon his trial for any offence against the Coinage Offences Act, 186 1, or any former Act relating to the coin, has been previously convicted of any offence
against any such Act.^

The

prosecutor may, in answer to such evidence of good

character, give evidence of

any such previous conviction before the jury return their verdict for the offence for which the offender is being tried. ^
In
this

article

the word character means reputation as

distinguished from disposition,

and evidence may be given only of general reputation and not of particular acts by
is

which reputation or disposition

shown.^

Article

57.

character as affecting damages.
In
civil cases,
is

the fact that the character of any party to
affect the

the action

such as to
is

amount of damages which

he ought to receive,
'

generally irrelevant.^
=i

24 & 25 Vict. c. 96, s. u6. 24 & 25 Vict. c. 99, s. 37. See each of the Acts above referred to. * R. V. Rmvton, i L. & C. 520. ' In I Ph.Ev. 504, &c., and T. E. s. 333, all the cases are referred to. The most important are v. Moor, i M. & S. 284, which treats the
'

evidence as admissible, though perhaps
proposition that
it is

it

does not absolutely affirm the

so

;

and Jones

v. Stevens, 1 1
it

pp. 265, 268, which decides that

is

not.

The

Price 235, see especially question is now ren-

dered comparatively unimportant, as the object for which such evidence used to be tendered can always be obtained by cross-examining the
plaintiff to his credit.

62

A DIGEST OF

[Part

II.

PART

II.

ON PROOF.
CHAPTER VII. FACTS WHICH NEED NOT BE PROVED — JUDICIAL.
NOTICE.
Article 58.*
of what facts the court takes judicial notice.
It
is

the duty of
:

all

judges to take judicial notice of the

following facts
(i)

All unwritten laws, rules,

and principles having the

force of law administered by any Court sitting under the
authority of

Ireland, whatever
thereof. 1
(2) All public

Her Majesty and her successors in England or may be the nature of the jurisdiction
Acts of Parliament,^ and
all

Acts of Parlia-

ment whatever, passed
contrary
(3)
is

since February 4, 1851, unless the

expressly provided in any such Act.^

The

general course of proceeding and privileges of

Parliament and of each House thereof, and the date and
place of their
sittings,

but not transactions in their journals.^
See Note
s.

"•

XXVII.

'

Ph. Ev. 460-1
1873),
s.

;

T. E.
21,

4,

and see 36 and see
=

&

37 Vict.

c.

66 (Judicature

Act of
'

Z5.

13

&

14 Vict,

c

ss.

7, 8,

(for date)
;

caption of session
s,

of 14

&

IS Vict

Ph. Ev. 460

T. E.

5.

Chap. VII.]

THE

LAW OF EVIDENCE.

63

(4) All general

customs which have been held to have

the force of law in
Justice or

any division of the High Court of

by any of the superior courts of law or equity,
certified

and

all

customs which have been duly

to

and

recorded in any such court. ^
(5)

The

course of proceeding and

all rules

of practice in

force in the

Supreme Court of

Justice.

Courts of a limited
of their

or inferior jurisdiction take judicial notice

own

course of procedure and rules of practice, but not of those
of other courts of the

same

kind, nor does the

Supreme

Court of Justice take judicial notice of the course of procedure and rules of practice of such courts.^
(6)

The
The
The
or

accession and \semble\ the sign manual of

Her

Majesty and her successors.^
(7)

existence

and

title

of every State and Sovereign her successors.*

recognised by
(8)

Her Majesty and
office,

accession to
to

names,

titles,

functions, and,

when attached
judicial

any decree, order,

certificate,

or other
all

official

documents, the signatures, of

the

judges of the Supreme Court of Justice.^
(9)

The Great
was

Seal,

the

Privy Seal, the seals of the

that each Court took notice of customs held by or have the force of law. It is submitted that the effect of the Judicature Act, which fuses all the courts together, must be to produce the result stated in the text. As to the old law, see Pifer v. Chaff ell, 14 M. & W. 649-50. 2 I Ph. Ev. 462-3 ; T. E. s. 19. 3 I Ph. Ev. 458 ; T. E., ss. 16, 12. « I Ph. Ev. 460 ; T. E. s. 3. ^ I Ph. 462 ; T. E. 19 J and as to latter part, S & 9 Vict. c. 113, s. 2, as modified by 36 & 37 Vict. c. 66, s. 76 (Judicature Act of 1873)..
'

The

rule
it

certified to

to

;

64

A DIGEST OF
Justice,'^

[Part

II.

Superior Courts of
is

and

all seals

which any Court

authorised to use by any Act of Parliament,^ certain

other seals mentioned in Acts of Parliament,'^ the seal of
the Corporation of London,^ and the seal of any notary
public,^ (lo)

The

extent of the territories under the dominion of

Her Majesty and
tical divisions

her successors

;

the territorial

and

poli-

of England and Ireland, but not their geoor the
situation of

graphical
the

position

particular places

commencement, continuance, and termination of war
all

between Her Majesty and any other Sovereign; and

other public matters directly concerning the general govern-

ment of Her Majesty's dominions.^
(ii)

The

ordinary course of nature, natural and

artificial

divisions of time, the

meaning of English words.*
which they are directed by any

(12) All other matters
statute to notice.'

Article

59.

as to proof of such facts.

No
judge,

fact of

which the Court

will take judicial notice
its

need

be proved by the party alleging
if

existence;
fact,

but the
refer to

he

is

unacquainted with such

may

'

The
'
'

Judicature Acts confer no seal on the

Supreme or High Couft

or

its divisions.

Doe
1

»
'
'

I
I

V. Edwards, 9 A. and E. 555. See a list in T. E. s. 6. Ph. Ev. 464 ; T. E. 3. 6. « Cole v. Sherard, Ex. 482. Ph. Ev. 466, 460, 458 ; and T. E. ss. 15-16. Ph. Ev. 465-6 ; T. E. s. 14.

u

E.

g.,

the Articles of

War.

See

sec.

i

of the Mutiny Act.

though a confession may be proved against him. . facts admitted need not be proved. or write to the Foreign Office. & P. E. (from Greenleaf) s. may refuse 65 any person or to any document or book of reference satisfaction in relation thereto. In R. a judge will refer in case of need to an almanac. 8 C. to know whether a State had been recognised. 6. subject to the rules stated in articles 21-24. "^ Article 60.. n. 20. Thornhill. E. or to a printed copy of the statutes. "^ acted upon this rule in a trial for perjury.Chap. See Schedule to Judicature Act of 1875. or which they have admitted before the hearing and with reference thereto. No fact need be proved in any action which the parties thereto or their agents agree to admit at the hearing. Order xxxii.. Lord Abinger 391. v. ' I Ph. or for his to take judicial notice thereof unless and until the party calling to take such notice produces upon him any such document or book of reference. or by their pleadings.] THE LAW OF EVIDENCE. Ev.^ ' T.g. VII.^ In a trial for felony the prisoner can make no admissions so as to as dispense with proof.

it it must be the evidence of a witness who says he heard If it refers to a fact alleged to have been perceived by it any other sense or in any other manner. . ''See chapter xii. All facts (i) may be proved by oral evidence. proof of facts by oral evidence. 66 DIGEST OF [Part II. OF ORAL EVIDENCE. 6i. . that to say If it refers to a fact alleged to have been seen.— A . must be the evidence of the person who holds that opinion on those grounds. or to the grounds on which that it refers to is opinion held. See chapter x. — . must be the it evidence of a witness sense or in that If it who says he perceived by that manner an opinion. Oral evidence must in is all cases whatever be direct . * See Note ' XXVIII. and^ (2) must be proved either by documentary the evidence or by secondary evidence documents.* oral evidence must be direct.'^ of contents of Article 62. except The contents of such documents as must be proved Such facts as otherwise. CHAPTER Article VIII. it it must be the evidence of a witness If it who says he saw refers to a fact alleged to have been heard.

IX. primary evidence. Davis.^ is executed in counterpart.: Chap. each part primary evidence of the document Where a document only. PROOF OF CONTENTS OF DOCUMENTS. 362. & W. ARTICLK 63. 67 CHAPTER IX. or an admission of contents proved to have been made by a person whose admissions are relevant under articles 15-20. AND ATTESTED DOCUMENTS. R. 7 Ea. 153. OF DOCUMENTARY EVIDENCE — PRIMARY AND SECONDARY. Primary evidence means the document . each counterpart being executed by one or some of the parties is primary evidence as against the Where a number of documents are all made by printing. lithography. or photography. Pooley. d. ' Slatterie v. The contents of documents may be proved either by pri- mary or by secondary evidence. 664. Stowev. Querner. each counterpart parties executing it. Article 64. West v. 5 Ex.^^ Where a document is is executed in several parts. or any other process of such a 6 M. ^ ' Roe F 2 . itself produced its for the inspection of the Court .] THE LAW OF EVIDENCE. L.

:

68

A DIGEST OF
itself to

[Part

II.

nature as in

secure uniformity in the copies, each
;^

is

primary evidence of the contents of the rest
they are
all

but where
is

copies of a

common

original,

no one of them

primary evidence of the contents of the original.^

Article

65.

secondary evidence.
Secondary evidence means
(i)

Examined
:

copies, exemplifications, office copies,
^

and

certified copies

(2)

Other copies made from the original and proved to

be correct
(3)

Counterparts of documents as against the parties

who

did not execute

them

*
:

(4) Oral accounts of the contents of a

document given

by some person who has himself seen

it.

Article

66.

proof of documents by primary evidence.

The

contents of documents must be proved

by primary

evidence, except in the cases hereinafter mentioned.

R.

V.

Watson, 2 Star. 129.
;

This case was decided long before the

invention of photography

but the judgments delivered by the Court
JJ.) establish

(EUenborough, C.

J.,

and Abbott, Bayley and Holroyd,
»

the principle stated in the text.
' '

Noden

v.

Murray, 3 Camp.

Munn

V.

224. Godbold, 3 Bing. 292.

See chapter

x.


THE

Chap. IX.]

LAW OF EVIDENCE.
Article
67.

'

69

cases in

which secondary evidence relating to documents may be given.

Secondary evidence

may be
is

given of the contents of a

document
(a)

in the following cases

When

the original

shown or appears
mentioned in

to be in the

possession or power of the adverse party,

and when,

after the notice
it ;
^

article

68,

he

does not produce
ip)

When
it,

the original

is

shown or appears
after

to be in the

possession or power of a stranger not legally bound to pro-

duce

and who refuses to produce

it

being served

with a subpoena duces tecum, or after having

been sworn as a

witness and asked for the document and having admitted
that
it is

in court

^
;

(c)

When
When

the original has

been destroyed or
for
it

lost,

and

proper search has been
(d)

made
is

;^

the original

of such a nature as not to be

easily movable,* or is in a country

from which

it

is

not

permitted to be removed
R.

;

^

'

V.

is

cited

by Mr.

Entick v. Carringion, 19 S. T. 1073, Watson, 2 T. R. 201. Phillips as an authority for this proposition. I do not

think it supports it, but it shows the necessity for the rule, as at common law no power existed to compel the production of documents. ^ Miles V. Oddy, 6 C. & P. 732 ; Marsion v. Downes, i A. & E. 31. ' I Ph. Ev. s. 452 ; 2 Ph. Ev. 281 ; T. E. (from Greenleaf) s. 399. The loss may be proved by an admission of the party or his attorney ; S. V. Haworth, 4 C. & P. 254. * Mortimer V. McCallan, 6 M. & W. 67, 68 (this was the case of a libel written on a wall); Brucev. Nicolopulo, n Ex. 133 (the case of a placard ' Ativan v. Furnival, i C. M. & R, 277, 291-2. posted on a wall).

70

A DIGEST OF
(if)

[Part

II.

When the original is a public document;^ (/) When the original is a document for the
is

proof of

which special provision

made by any Act
;

of Parliament,

or any law in force for the time being
{g)

^

or

When

the originals

consist of numerous documents

which cannot conveniently be examined in court, and the
fact to

be proved

is

the general result of the whole collection
is

:

provided that that result
calculation. ^

capable of being ascertained by

In cases

{a), {b), (c),

and

(d),
is

any secondary evidence of
admissible.*

the contents of the-

document

In case

(e),

the contents of the

document may be proved

according to the provisions hereinafter contained as to the

proof of public documents.

In case

(/), the

document may be proved

in the

manner
for its

specially provided
proof.

by the law which makes provision

In case

(g),

evidence

may be

given as to the general

result of the

documents by any person who has examined
is skilled in

them, and
ments.

who

the examination of such docu-

Questions as to the existence of facts rendering secondary

evidence of the contents of documents admissible are to be

decided by the judge.

' Ibid, See chapter x. v. Doxen, Peake, Il6 ; Meyer v. Sefton, 2 Star. 276. The books, &c., should in such a case be ready to be produced if required. Johnson v. Kershaw, i De G. & Smale, 264. * If a counterpart is known to exist, it is the safest course to produce
'

'

Roberts

or account for 7 T. R. 236.

it.

Mvnn

v.

Godbold, 3 Sing. 297

;

^._v. Castleton,


Chap. IX.]

THE LA W OF EVIDENCE.

yi

Article 68.*
ruj.es as to notice to produce.

Secondary evidence of the contents of the documents
referred to in article 67 {a),

may

not be given unless

tlie

party proposing to give such secondary evidence has,
if

the original

is

in the possession or

under the control of
it

the adverse party, given him such notice to produce the Court regards as reasonably sufficient to enable
it

as

to

be

procured
if

;

^

or has,
is

the original

in the possession of a stranger to the

action, served

him with a subpcena

duces tecum requiring

its

production
if

^
;

a stranger so served does not produce the document,
justification

and has no lawful
do
so, his

for refusing or omitting to

omission does not entitle the party
the subposna to give

who

served

him with

secondary evidence of the

contents of the document.^

Such notice

is

not required in order to render secondary

evidence admissible in any of the following cases
(i) (2)

When When

the

document
action
is

to be proved
is

is itself

a notice

;

the

founded

upon the assumppower of the
*
;

tion that the

document

in the possession or
its

adverse party and requires
*

production

See Note
^

XXIX.
Newton v. Chaplin, 10 C. B. 56-69.

Bwyer v.
R.
V.

Collins, 7

Ex. 648.

'

Llanfaethly, 2 E.

&

B. 940.

*

How V.
;

Hall, 14 Ea. 247.
is

produce the bond
373
T. E.
s.

required.

In an action on a bond, no notice to See other illustrations in 2 Ph. Ev.

422.


72

A DIGEST OF
(3)

[Part

II:

When

it

appears or

is

proved that the adverse party

has obtained possession of the original from a person sub-

poenaed to produce
(4)

it

;

^

When
;

the adverse party or his agent has the original

in court

^

Article 69.*
proof of execution of document required by law

to be attested.
If a

document

is

required by law to be attested,
if

it

may
one

not be used as evidence
alive sane

there be an attesting witness

and subject

to the process of the Court, until

attesting witness at least has

been called

for the

purpose

of proving
If
it

its

execution.
that
it

is

shown

no such

attesting witness

is

alive

or can be found,

must be proved that the
is

attestation

of one attesting witness at least

in his handwriting,

and
is

that the signature of the person executing the
in the handwriting of that person.

document

The
the

rule extends to cases in

which
^
;

document has been burnt ^ or cancelled
is

the subscribing witness

blind

*
;

the person by

whom

the document was executed

is

pre-

pared to

testify to his

own

execution of

it

;

^

the person seeking to prove the
*
'

document

is

prepared to

See Note

XXX.
v.

Leeds

v.

Cook, 4 Esp. 256.

2

Collins, 7
' '

Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer » Gillies v. Smither, Ex. 639. 2 Star. R. 528. Breton v. Cope, Pea. R. 43. = Cronk v. Frith, 9 C. & P. 197 R: V. Barringworth, 4 M. & S. 353.

118. 803 Randall-^.] THE LAW OF E VIDENCE. 357. Rearden v. Garth. 3 Tau. & G. & E. Lynch. 46. 204. & W. execution by the is person who if he a party to the cause. Q. Call V. its 73 prove an admission of executed the deed. even such admission be to.— Chap. Dunning. 73. B. or has reference the cause. 450 . would perhaps justify a slight enlargement of the exception.* * See ' Note XXX. 5 M. Minter. . Taylor (ss. Bailey y. I X. and who has dealt with as a document duly executed.^ contents of the document under article 67 (a) (2) When . ' Pearce v. too. see Collins v. 8 A. B. 2 Cooper V. 53. Bidwell. his opponent produces it it when called upon and claims an interest under of the suit (3) ^ in reference to the subject-matter When its the person against is whom the document is sought to be proved cure a public officer bound by law to proit due execution. Plumer v. but the circumstances of the case were very peculiar. 2 Camp. 13 M. 8 Ex. but in no others. 4 Ea. Warren. Whyman v. See. 60 i . 588. or to prove the handwriting of any such party or attesting witness (i) When he is entitled to give secondary evidence of the . Article 70. Hooper. Tamswell. Poole v. Mr. Brisco.* cases in which attesting witness need not be called. and in the case mentioned in Article 88.' unless made for the purpose of. Bayntun. In the following cases. 8 Tau. 1650-1) . a person seeking to prove the is execution of a document required by law to be attested not bound to call for that purpose either the party who executed the deed or any attesting witness. II Q. As ^ to the sort of interest necessary to bring a case within this exception.

^ 17 & 18 Vict. 18. ' "Where an attesting witness has denied all knowledge of the matter. 26 ." Talbot v.-. An attested all document not required by law to be attested if it may in cases whatever. 251. i. s. 125. other evidence. If the attesting witness denies or does not recollect the execution of the document. c. i. proof when attesting witness denies the execution. 28 & 29 Vict. 7. 254.74 A DIGEST OF [Part II. be proved as was unattested.^ considers it doubtful whether the rule extends to instruments executed by corporations. proof of document not required by law to be attested. . civil or criminal. at all events. but his authorities hardly seem to support his view . the case stands as if there wete no attesting witness . Hodson.^ its execution may be proved by Article 72. ss. 7 Tau. Article 71. or to deeds enrolled under the provisions of any Act of Parliament. as to deeds by corporations.

73. in this chapter. it inspection from it as being what Article 75. the that document. 7 M. and identifying to be. ' as hereinafter defined. & W. 106.Chap. X. . or is relevant to the issue in is any proceeding. register or record.] THE LAW OF EVIDENCE. When sition a statement made is in any public document.' examined copies. * See Note also Doe v. proof of public documents. The contents of any public document whatever may in all cases be proved by an examined copy XXXI. PROOF OF PUBLIC DOCUMENTS. See articles 36 and 90. production of document itself. or in any pleading or depo- kept therewith in issue. judicial or otherwise. Poss.. The contents of any public document whatever itself for may be professes proved by producing the document proper custody.^ fact that that statement contained in may be proved in any of the ways mentioned Article 74. 7i CHAPTER Article X.

1389 I . ^ ' Slane Peerage Case. general records of the realm. that each should alternately read both. * See ' Note XXXII. a copy proved by oral evidence to have been examined with the original and to correspond therewith. and purporting to be sealed or stamped with the seal of the Record Office. 1379. A copy make it. 94. T. 113.^ Article 76. though is sometimes called an office copy. and is not necessary (except in peerage cases ^). & 2 Vict. Ev. An exemplification is a copy of a record set out either under the Great Seal or under the Seal of a Court. ss. 2 PK. 13. E. Any copy record under the charge and superintendence of the for the time being. . The examination may be made either by one person reading both the original and the copy. Master of the Rolls certified as may be proved by a a true and authentic copy by the deputy keeper of the records or one of the assistant record keepers.' 231 . c. P. 200. made by an is officer of the Court. I. bound by law to it equivalent to an exemplification. 12.* exemplifications. ss. An exemplification is equivalent to the original document exemplified. or by two persons. R. one reading the original it and the other the copy.^ Article 77. 5 C. N. & F. 42.76 A DIGEST OF An examined copy is [Part II.

jiarticulars in shall be receivable in evidence of certain Courts of Justice. is regarded as equivalent to an the is required by law to exemplification in same Cause and Court.^ * ' XXXII. bye-laws. I believe the above to be the effect of the provision.. documents and proceedings of corporations.] THE LAW OF EVIDENCE. s.Chap. 1440 and following sections. E. X. N. See. Article 78. but the language is greatly condensed. Many such statutes are specified in T. provided they are respectively authenticated in the Whenever. I.^ any such provision. c. 9 Vict. preamble. 113. sible as admis- evidence if it purports to be authenticated in the seal. Some words at the end of the 8 '' & . but it in other Causes or Courts it not admissible unless can be proved as an examined copy. P. but not make it. by certificate virtue of manner prescribed by such statutes. or signature required for character of the person its authentication or of the official to who appears See Note have signed it. It is official provided by many statutes that various certificates. Article 79. and certified copies of documents. Ibid. s. who is authorised make it by a rule of Court. entries in registers and other books. and of joint stock and other companies. any such copy as aforesaid is or certified receivable in it is proof of any particular in any Court of Justice. and public documents. too.* jf A copy made by an to officer of the Court. certified copies. manner prescribed by law without proof of any stamp. 1 14-5. R.

or in of justice in Ireland. 14. or stamp." They certainly add nothing to the sense.. Ii6 . ^ 14 & 15 Vict. without proof of the seal. or of the judicial or official character of the person appearing to have signed the same. they appear to have been copied from i & 2 Vict. not exceeding fourpence for every folio of ninety words. .^ provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original certified is intrusted. N. DOCUMENTS ADMISSIBLE THROUGHOUT THE QUEEN'S DOMINIONS. Ev. 13 (see art. for the upon payment of a reasonable sum same. c.78 A DIGEST OF Whenever any book or other document is [Part II. c. Mr. 241 . E. any copy admissible in proof of its thereof or extract therefrom contents. of such a public nature as to be admissible in evidence on tion from the proper custody. 76) "by some hbnourable member who did not know distinctly what he was about. because their effect is given in article 75. its mere producwhich and no statute exists renders its contents provable by is means of a copy. He adds. or signature authenticating the same. ». P. e. See. 2 Ph. 99. 7. 94. Taylor says that the concluding words of the section were introduced into the Act while passing through the House of Commons. a.g. s. If is by any law in force for the time being any document admissible in evidence of any particular either in courts couirts of justice in England and Wales.^ Article 8o. but are here omitted. section are regarded as unmeaning by several text writers. " provided it be proved to be an examined copy or ' The words extract or." occur in the Act. Every such oflScer must furnish such at a reason- copy or extract to any person applying able time for the same. note i. T. R.

" defines the British Colonies as including India. II enacts that documents admissible in either shall be admissible in the "British Colonies. 113. is 79 that document also admissible in evidence to the same extent and for the aforesaid. not being public may be proved by journals of either copies thereof purporting to be printed by the Queen's printers The House of Parliament . 9 provides that documents admissible in England shall be admissible in Ireland . 11.' copies. contents of Acts of Parliament. the and sec. 10. 10 is the converse of 9 . the Isle of Man. PROOF OF IRISH statutes. may be proved by copies thereof purporting to be printed by the printers to the Crown or by the printers to either House of ParUament. 19 Channel Islands. sec.] THE LA W OF EVIDENCE.^ Article 81. in same purpose. 19. ss. 99. X. Chap. The Acts. queen's printers. Sec. s. Queen's printers and the printers to the Crown ? '^ . prior to the union ' Consolidates 14 & 15 Vict.. This cannot mean to include' Scotland. The copy of the statutes of the kingdom of Ireland enacted by the Parliament of the same. without such proof as any court or before any judge in any part of the Queen's dominions except Scotland. and "all other possessions" of the British Crown. 9. c. though the literal sense of the words would perhaps extend to it.^ Article 82. and Royal proclamations. 3. sec. c. wheresoever and whatsoever. Is there any difference between the 8 & 9 Vict.

of the kingdoms of Great Britain and Ireland. for executing Any of the Commissioners Office of for Lord High Ad- executing the Lord High Admiral Secretaries missioners. is to say 41 Geo. tlie Trea- Any Commissioner. III. orders in council. The Commissioners the Office of miral. at and of any proclamation.^ Article 83. Any for Secretary or Under-Secretary of State. to or either of the the said Com- Secretaries of State. printer his duly authorised by is King or any of predecessors. Column Officer. 2. proclamations. c. 9. Any Member of the Committee of Privy Council for Trade or any Secretary or Assistant Secretary of the said Committee. conclusive evidence of the contents of such statutes. &c. order. ^ Column of i. Name Department or Names of Certifying Officers. or regulation issued at any time by Her Majesty or by the Privy Council. may be proved . and printed and published by the George III. s. Secretary. or Assistant Secretary of the Treasury. or regulation issued the any time by or under the authority of any such department of Government or officer as is mentioned in the first column of the note^ the hereto.— 8o A DIGEST OF [Part II. The contents of any proclamation. Committee of Privy Council Trade. . order. •The Commissioners of sury. in all or any of modes hereinafter mentioned ' that 90.

in the case of any proclamation. or any. 21). or regulation (2) the production of a copy of such proclamation.] THE LAW OF EVIDENCE.: Chap. or. 70. Any copy or extract made under the this provision may be in print or in writing. where the question any British colony or possession. & 34 (Schedule to 31 & 32 Vict.) G . and. or regulation issued by or under the authority of any of the said departments or oflficers. See also 34 & 35 Vict. of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council or by any one of the Lords or others of the Privy Council. 79. or partly in print and partly in writing. order. 8i (i) By By the production of a copy of the Gazette purport: ing to contain such proclamation. 37. or regulation purporting to be printed by the Governarises in a court in ment printer. in the case of any proclamation. Secretary or Assistant Secretary of the said The Postmaster General. s. Any Secretary or Assistant Secre- tary of the Post Office (33 Vic. order. t. order. X. c. s. official No proof is required of handwriting or position of any person certifying. in pursuance of this pro- The Poor Law Board. order. or regulation issued by Her Majesty or by the Privy Council. by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said note in connection with such department or officer. Any Commissioner of the Poor Law Board Board. of a copy purporting to be printed under the authority of the legislature of such British colony or possession (3) By the production. 5. c.

^ Article 84. orders. decrees. may be proved either by examined copies or by copies authenticated as hereinafter mentioned If . in any British possession. treaty. pleading. A DIGEST OF [Part II. to the truth of any copy of or extract from any proclamation. or of any British colony. and all affidavits. order.— 82 . 2- = Ibid. 31 & 32 Vict. s.. decree. order. and other judicial proceedings of any court of justice in any foreign state or in any British colony.^ Subject to any law that may be from jn time to time made by the this legislature is of any in British colony or possession. foreign and colonial acts of state. c. provision force every such colony and possession. and other legal documents filed or deposited in any such court. 37. that is to say to the document sought be proved be a proclamation. or other judicial proceeding of any foreign court. 3. the authenticated copy to be admissible in evidence must purport to be sealed with the seal of the foreign state or British possession to which the original document belongs And if the document sought to be proved be a judgment. or an affidavit. or other legal document filed or deposited in any such court. pleadings. treaties. vision. . seal. to or. and other Acts of state of any foreign state. in no be signed by the s. and all judgments. All proclamations. or other act of state. the authenticated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or other court to which the original the event of such court having '- document belongs. judgments. or regulation. &c.

may be to proved {primA facie) by a copy certified by the clerk or other proper officer of the legislative body of the colony be a true copy of any such law or bill. or of the signa- of the truth of the statement attached thereto.] THE LA W OF EVIDENCE. disallowance or assent.' Colonial laws assented to by the governors of colonies. or is any necessary. 7. and the fact (as the case may be) that such law has been duly to. the Isle of Man. s.. without ment could have been received proof of the seal where a seal ture. where such signature and statement are necessary. in the colony to which such law or bill re- and signifying her Majesty's disallowance of any such colonial law. "Colony" in this paragraph means "all her Majesty's possessions abroad " having a legislature. X. and India.^ ' '^ 14 28 & & 15 Vict. and bills reserved by the governors of such colonies for the signification of her Majesty's pleasure. 6. sible in admis- evidence in every case in which the original docuin evidence. s. 63. or. and properly passed and assented or that such bill has been duly and properly passed and presented to the governor. or of the judicial character of the person appearing to have made such signature and statement. by any one of on the said copy that the judges of the said court. "except the Channel Islands. or her Majesty's assent to any such reserved bill IS primA facie -^xooi oi sw±. 0. there be more than one judge. G 2 . if 83 judge. Any proclamation purporting to be published by authority of the governor in any newspaper lates. Chap. and such judge must attach to his signature a statement in writing the court whereof he If is a judge has no seal any of the aforesaid authenticated copies purports to it is be sealed or signed as hereinbefore mentioned." "Colony" in the rest of the article includes those places. 29 Vict. 99. t.

Weston. dated before the alleged adultery. 4 M. N. it it presumed to have been made on the day on which and if bears the in date. T. is produced by a bankrupt's assignees. Article 85. presumption as to date of a document.' I Ph. Anderson v. Sinclair v. to the prejudice of creditors whose claims date from the interval (b) between tire act of bankruptcy and the adjudication. or defeat the objects of any instrument admitting a debt.^ In a petition for damages on the ground of adultery letters are produced between the husband and wife. E. When is any document bearing a date has been proved. Baggallay. and dated before the act of bankruptcy. CHAPTER XL presumptions as to documents. is Further evidence of the date required to prevent collusion. 482-3 . if any person. 137 . C. 6 Bing.'^ Illustrations. practised. Smith. 2 ffoulston V.. s. Further evidence of the date of the transaction is required in order to guard against collusion between the assignees and the bankrupt. 24. injure law. to the prejudice of the person petitioned against. ' ^ . and showing that they were then on affectionate terms. & W. 403. 2 C & P. to prove the petition(a) An ing creditor's debt. 318. but have been executed the order necessary to effect the object for which they were independent proof of the correctness if of the date will be required the circumstances are such that collusion as to the date might be practised. more documents than one bear date on to same day. and would.A DIGEST OF [Part II. Best. a. they are presumed executed. 302 . Ev.

any particular growth of the judgment of Closmadeuc is v. XL] THE LAW OF EVIDENCE. £ainbridge. L. B.i2Q. L. . it is produce. and other cases are referred in the Cresswell. App. presumption as to sealing and delivery of deeds. Carrel. presumption as to documents thirty years old. proved to be or to have been signed is presumed to have been sealed and delivered. 44. Hallv. appears or attested. 18 C. When and duly any document purporting to be and stamped as is it a deed. rule traced.'S. the signature is presumed that and every other part of such document in the handwriting of which purports to be ' .^ Article 88. ' ' Marine Investment Company v. 6C. J. In this case the to. P.(ig()—Tlo. R. Haviside. 5 £• & I. R. y??Sandilands. and after being called presumed to have been duly stamped.'' unless it be shown to have remained unstamped for some time after its execution.^ Article 87. although no impression of a seal appears thereon. 624. 411. Where any document years old is purporting or proved to be thirty in produced from any custody which the judge it the particular case considers proper. When any document is not produced after due notice to for. presumption as to stamp of a document. 85 Article 86.Chap.

whilst the it. 573. E. s. . B. & W. R. The judgment reviews a great number of authorities on the subject. ^ 1 stranger. Aldous v. Pigoi's Case. 245-8 s. & W. that it was duly executed and attested by the persons by whom it purports to be executed and attested. it enforcement of any right created by unless the alteration was made before the completion of to be charged the document or with the consent of the party it under or his representative in interest. Starkie. 11 M. This rule extends to cases in which the alteration was made by a leave. 778 L. 343 . 86 A DIGEST OF is [Part II. even if the attesting witness is alive and in court. the circumstances of the particular case are such as to render such an origin probable. T. . '' 220. and the attestation or execution need not be proved. they would if it is naturally be but no custody is improper or if proved to have had a legitimate origin. 11 Rep. whom. and. person in that person's handwriting.^ Article 89.. 74 and ss. Documents are said to be in proper custody if they are in the place in which. and under the care of the person with . Cooper. presumption as to alterations. document was in the custody of the person producing but without his knowledge or 2 Ph. 47 Davidson v. No person producing any document which upon its face appears to have been altered in a material part can the claim under it. 521-6. 3 Q. This qualifies one of the resolutions in Pigot's Case. Best. Corn-well. 13 M. in the case of a document executed or attested. S93-601 . . Ev.

592. appearing seal. 215. Simmons v. in the absence of evidence relating to them.* An made alteration is said to be material when. Cornwell referred to above. 1619-20 . Catomore.Cooper and Aldous V. Gordon. Dearsley & Pearce. 16 Q. Clements. This appears to be the result of many cases referred to in T. " ss. . presumed pleted. is no presumption as to the time when alterations and interlineations. Knight V. presumed There to have been made after the executionof the will. ! Sim. and interlineations appearing all 87 Alterations on the face of a deed are. 8 A. & E. would have affected his interest or varied his obligations in whatever.^ ' ^ ' ' Doe V. in the absence of evidence relating to them. Rudall.' to have been made before the deed was com- Alterations and interlineations appearing all on the face of a will are. 745. R. XL] THE LA W OF EVIDENCE.^ Chap. see also the judgments in Davidson -^.) 136. if it it had been any way with the consent of the party charged. on the face of writings not it is under were made ^ except that presumed that they were so made that the making would not constitute an offence. B. S. V. E. is immaterial. (N. An alteration which in no way affects the rights of the parties or the legal effect of the instrument.

or any other disposition of property.^ Nor may the contents to. R. When official any judgment of any Court or any other judicial or proceeding.* evidence of terms of contracts. Article 90. or mistake . or any contract or grant. the fact that it is proved (i) Fraud. CHAPTER XII. and other dispositions of property reduced to a docu- mentary form. added varied by oral evidence. has been reduced to the' form of a document or series of documents. except the document itself. grant. party. want of capacity in any contracting wrongly dated. Starkie extends 3 Star. Illustrations (a) and {b). mistakes in some other formed particulars. of any such document be contradicted. i P. L. or secondary evidence of is its contents in cases in which secondary evidence admissible under the provisions hereinbefore contained. or Provided that any of the following matters may be want of due execution.— A DIGEST OF 88 [Part II. OF THE MODIFICATION AND INTERPRETATION OF DOCUMENTARY EVIDENCE BY ORAL EVIDENCE. or of the terms of such contract. intimidation. altered. or other disposition of property. grants. Mr. this to . no evidence may be given of such judgment or proceeding. illegality.^ want or failure of consideration. Ev. Reffell.See ' Note XXXIII. 139. 787-8. " Reffell V. & D.

or proved. con- stituting a condition precedent to the attaching of any obligation under any such contract. upon the vahdity of any document.^ (3) The existence of any separate oral agreement. and which is not terms.^ (4) The existence of any distinct subsequent oral agree- ment to rescind or modify any such contract. or order relating thereto. or of any part of or which would entitle any person to any judgment. C. 598-628. (2).^ ' Illustration {c). 5 ' Wigglesworth Illustration v. would produce any efifect it. ' Illustrations (/) and {g). or other disposition of property. grant or disposition of property. decree. if 89 in fact or law.^ (2) The existence of any separate oral agreement as to is any matter on which a document inconsistent with its silent. Dallison. L. . any other matter which.] THE LA W OF EVIDENCE. ' Illustrations ' {il) and {e]. provided that such agreement invalid under the Statute of Frauds.^ Oral evidence of a transaction that a is not excluded by the fact it documentary memorandum of was made. or custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract.Chap.* (5) not Any usage . if from the circumstances of the parties did not intend the final case the Court infers that thre document to be a complete and statement of the whole of the transaction between them. grant or is disposition of property. and note thereto. Illustration (A). XII. or otherwise. S. if such a memorandum was not intended to have legal effect as contract.

10 C. 70 and see Angell v. Oral evidence of the existence of a legal relation is not excluded by the fact that it has been created by a document. B tells promises to destroy the rabbits. Barton v. but does not mention A's verbal agreement as to Illustration (k).^ Illustrations. the destruction of the rabbits. \ Tau. 261-265. T. Morgan v.' An it estate called Gotton Farm conveyed by a deed which de- scribes as consisting of the particulars described in the first division of a schedule and delineated in a plan on the margin of the schedule. v. if his written or sealed appoint- he is shown fo have acted in it. B.* a suit against B for the specific performance of a contract. 115. Evidence cannot be given to show that a close not mentioned in the schedule or delineated in the plan was always treated as part of Gotton Farm. 174. 2 ' * ' " See authorities collected in i Ph. Duke. and not the terms on which on.' A land to B. Ev. . is when ship is the fact to be proved the existence of the relationit itself. Dawes. 449-50 . The lease is afterto wards granted. s. Eames. B. R." are shipped in a particular ship. (a) A policy of insurance is effected on goods The goods fact that that particular sliip to London. 153-162. L." ' A that he will not sign it unless A A does promise. 139. its and also prays that the contract prove that lets provisions. E. and was intended (() A institutes to be conveyed by the deed.go A DIGEST OF [Part II. Weston V. and they agree that a lease shall be given by A to B. Before the lease is given."^ was established or need not be carried The ment fact that a person holds a public office proved by the production of thereto. Griffiths. as that provision A may (d) may be reformed as to one of was inserted in it by mistake. 6 L. . such a mistake was made as would entitle him to have the contract reformed. and reserves sporting rights B may prove A. loQ. The (b) was is orally " in ships from Surinam which is lost. chap. Story's Equity Jurisprudence. ss. the rabbits. Ex. R. excepted from the policy cannot be proved.

ment might be proved." ^ Article 91. 61 1 . agrees in writing to transfer to B.) 578. Allen V. and at the same time agree verbally that the agreement C does not approve.) 369. S. although the contract is in {/) B may The writing. V. good title though the title is bad. Prink. B does not take up the acceptance.. Chap. The party interested may show this. 11 ' Lord Nugent." prove the verbal warranty. another farmer. (N. R. & B. S. (N. B shall take 91 (1?) A&B agree verbally that up an acceptance of A's. « v. 2J-. v. C. » See Note ' XXXIV. and that thereupon A and B shall make a written agreement for the sale of certain furniture by A to B. & W. B. & Ad. B sues A for not transferring the farm. Campbell. B. A may prove (/) the verbal agreement that he should do so. Wallis 17 C. A may prove the condition as to C's consent and the fact that he does not consent. Lacey. It is verbally agreed that the agreement is to be conditional on C's consent. 6ii. (i) Putting a construction upon a document means ascer- taining the meaning of the signs or words made upon it. 4 M. XII. and their relation to facts. shall not come into force unless C approves of it.* what evidence may be given for the interpretation of documents. A holds of C. a paper in these words ' : ' Bought of A a horse for 7/. 5 B. 65.] THE LA IV OF EVIDENCE. 58. whether A gained a settlement by occupying and paying rent for a tenement. Littell. & C.' a farm which (h) A agrees in writing to sell to each of them. 7 B. 6 E. Goss V. 370.' in A & B enter into a written agreement for the sale of an interest a patent. Hull. and verbally warrants him quiet in harness.* («') B 14 lots of freehold land and make a Afterwards B consents to take one lot Apart from the Statute of Frauds this agree- A sells A also gives B B a horse.'' (g) A. Lindley ^ ' * Pym V. a farmer. 140. The facts of occupation and payment of rent may be proved by oral evidence.' question is.

° Such mean- facts are hereinafter called surrounding circumstances. and also a less proper meaning. of the mfeaning of illegible may be given or not commonly intelligible characters. Illustration (d).^ In order to ascertain the relation of the words of a to facts. in which case they to their less proper meaning. must be construed accord- and evidence show is that the author intended to express some other meaning Illustrations [a) {b) ' not admissible. appear to have been used in a peculiar sense . which. they their must be deemed to have proper legal meaning. of abbreviations. local. every fact may be proved to which it may probably have been intended to refer. Illustration (k). « See all ' the illustrations. (5) If the words of a document have a proper legal ing.^ (3) If the words of a document are so defective or am- biguous as to be unmeaning. Illustrations (e) and (/).' 2 * (c). or which identifies any person or thing mentioned in it. technical. from the context. unless such a construccir- tion would be unmeaning in reference to surrounding cumstances.92 A DIGEST OF (2) [Part II. were in fact so used. . Illustration (z).^ (6) may be distinct it interpreted according If the document has one to meaning in reference to surrounding circumstances. obsolete. of foreign. no evidence can be given to show what the author of (4) the document intended to say. the meaning of which to and which do not appear from the context have been used in a peculiar sense.* or document refers. ingly. In order to ascertain the meaning of the signs and oral evidence words made upon a document. cial and provin- expressions. ' but evidence may not be is common words. and of common words given to show that plain. Illustration (g).

S. evidence it may be given to show that in fact executed with its apparent intention. XII. In such no evidence can which be given of statements made by the author of the docu- ment the as to his intentions in reference to the matter to relates. Wilson. 728. Gorrissen v. (a) A lease A contains a covenant as to " ten thousand " rabbits. Smith v. whether there thing or person to description is more than one. 3 ' Illustration (0). & Ad. * '' Illustration (k). (N. Perrin.] If the THE LA W OF EVIDENCE. evidence may state- be given both of surrounding circumstances and of ments made by any party to the document as to his intentions in reference to the matter to which the relates. in relation to rabbits.) 681. the Court may draw inferences from the surrounding circumstances as to the meaning of the document. and as to his habitual use of names (8) for particular persons or things. and weighing 2 cwt. 3 B. is admissible. ^ If the language of the document.^ Illustrations. document applies 93 (7) in part but not with accuracy to surrounding circumstances.^ document (9) If the document it is of such a nature that the Court will presume that was was executed with any other than its apparent intention. applies equally well to more objects than one.Chap. though plain in itself.' ' Illustrations (k) {/) (m). or only one which the cases whom or to inaccurate may apply. Orjil evidence to show that a thousand meant. 2 C. B. 1200.'' Oral evidence is admis- sible to show that a "bale" of gambler is a package compressed. document though evidence may be given as to language or his circumstances.* [b] sells to B " 1170 bales of gambler. .

and so omitted from the will (/) A leaves a legacy to "Mrs. 4 Hare. L. the tools mod tools for carving. these facts was admitted.' (g) Property was conveyed in trust in 1704 for the support of " Godly preachers of Christ's holy Gospel. 18 & 19.' 94 a. Miller Travers. " boats." Evidence may be given to show what class of ministers were at the time known by that name. of which the will did not " of Clare dispose. 565-6.. Washburne. but Mrs. a A DIGEST OF sculptor.'' A leaves a legacy to filled is . see 205-6.* If he has both legitimate (h) A leaves property to his " children. . he has only illegitimate children. means " boats not slung on the outside of the ship on the quarter. & F. Eight years afterwards ticular persons. 9 C. Lord Nugent. Evidence cannot be given to show that the words ' ' had been erased from the as executed. 244. or modelling-tools. and to show what bankers are. 239. that he meant parProof would have was in the habit of calling a particular person declares that A by these is letters Evidence of this declaration not admissible. ' Blackett V. M." draft by mistake. Shore Wilson. Ext. C. 365." in a (rf) Evidence may not be given to show that the word policy of insurance." Evidence to show whether ' mod " meant models.. by a will dated before 1838.' (k) A devises land to John Hiscocks." No such persons were living at the time when the legacy was made. may be given. whose maiden name had been Bowden. (it) in the shop." (e) A leaves A an estate to K. He had no estates in the county of Limerick. 2 C. and note of cases. 8 Bing 244. M been (y") admissible.2 Atk. the eldest son of John Hiscocks. v. ' B "all the marble in the yard.J. & J. Wig. leaves to [Part II. ^ ' * 5 " Clayton v. Evidence to show how the blank was intended to be not admissible. ' Lee v.) to them. bankers." and illegitimate children the whole of the property will go to the If legitimate children.' testator leaves all his estates in the A city of Limerick to A. 3 . 251-3. v. 200 Baylis y. was living. moulds. but he had estates in the county of Clare. and Miss Bowden. the property county of Limerick and may go (. and the testatrix used to call them Bowden. &c. Pain.A. & W. Royal Exchange. . Ev. p. and had a Evidence of daughter. 13 M.

i Dru. ' Chap. 27 Beav. Leach. Hill. but not the testator's declarations of intention. the natural daughter of B. his eldfest. Elizabeth Stringer. refer to instructions given named not died The Court may by the infer from these circum.' ' Doe V. in Hall v. 35 . that they were. however. in C. & W. Leonard's. and War. was vindicated. but the legatee may show. who. it who had before the date of the will. ' ' ' ' Ryall Hannam. 5 V. rule in this case Hurst v. 2 M. The Court presumes that they are not meant to be cumulative. The and a number of other cases both before and after it were elaborately considered by Lord St. B has a natural son John. or of declarations by the testator. Stringer lo Beav. 111-133. & W. that was born. V. Elizabeth Stringer. & J. and from the testator's relationship he meant to provide for John. 5 Madd. The circumstances of the family. The Court may infer from the circumstances under which the natural child father. 536. and that was put into the will by a mistake on the part of the solicitor. one being given in his will. 363. 95 John Hiscocks had two sons. assigning the same motive for each legacy.. the other in a codicil. XII. and a legitimate daughter Elizabeth. . (/) may be proved in order to show which of the two was intended. a another to George Gord the son of John Gord. and a third to George Gord the son of Gord. Gardiner. showing that the legacy was meant for a niece. stances that Elizabeth Jane Stringer was intended but they may testator to his solicitor. Simon.* (0) A leaves two legacies of the same amount to B. Doe V. Needs. A devises property to Elizabeth.' to the putative (m) A leaves a legacy to his niece. Per Leach. 360-1. Hiscocks. 351. the son of George Gord. At the date of the will he had no such niece. when Chancellor of Ireland.] THE LAW OF EVIDENCE. his second son.' (k) devises one house to George Gord. was the eldest son by a second marriage. M. 468. Evidence both of circumstances and of the testator's statements of intention may be given to show which of the two George Gords he meant. 4 De G. either by proof of surrounding circumstances. but he had a great-great-niece Elizabeth Jane Stringer. 94. v. and John. 129.

purporting to convey land to A for a valuable consideration. 3 B. . 833. Cheadle. Any a party to a document or his representative in interest may. a pauper. A deed of conveyance to which A was a party is produced. and 91 do not apply. prove any fact which he is otherwise entitled to prove [Submitted —and any party to any document or any representative in of any such party interest may prove any such fact for any purpose liability other than that of varying or altering any right or depending upon the terms of the document] Illustration. The question is. civil right is and only to cases in which some or civil liability dependent upon the person other than terms of a document in question.' call A as >• witness • ' See Note H. is settled in the parish of Cheadle. notwithstanding the existence of any document. Article cases to which articles 90 Articles 90 92*. V.96 A DIGEST OF [Part II. and 91 apply only to parties to documents. whether A. XXXV. & Ad. and to their representatives in interest. The parish appealing against the order to prove that was allowed to no consideration passed.

. 265-6 Starkie.] THE LAW OF EVIDENCE. Best. H . 337 .^ Article 94. E. CHAPTER XIII. Articlk 93. t HE WHO AFFIRMS MUST PROVE. PRODUCTION AND EFFECT OF EVIDENCE.. Chap. (from Greenleaf).* BURDEN OF PROOF.+ presumption of innocence. s. XIII. must pr(3ve that those facts do or do not exist. whether the commission of such issue in the action. If the commission of a crime action. Ev. T. Whoever desires any Court to give judgment as to any dependent on the existence or non- legal right or liability existence of facts which he asserts or denies to exist. criminal or civil. 585-6. * ' not directly in See Note XXXVI. I Ph. ss. it is directly in issue in any must be proved beyond reason- able doubt. The burden of proving that any person has been guilty of is a crime or wrongful act on the person who act.is or is asserts it. SS2 t See Note XXXVII. 97 PART III.

on a policy of fire insurance. on whom the general burden of proof The burden begins. [Part III. 198-9. Thurtell v. of proof in any action lies. i is accused of theft and pleads not guilty. & A. * Mills Ph. Twyning. whether A is settled in the parish of a man she was married in 1813. 338-9 . went abroad on -service. 425.'' A.. & 748 . regard being had any presumption which the action proceeds. East India Co. T. B pleads that A burnt down the house insured. E. 552 . V. I M. Barber. ss. ' Bing. 268. 586-7 V. a married woman.* Illustrations. (a) It appears upon the pleadings that A is indorsee of a bill of ex- change. Ev. It is proved that in 1812 she was maiTied to another person. The burden of proving that the first husband was alive at the time of the second mar- The whom riage is on the person who asserts it. . and the party interested in denying this (/') must prove it. Beaumont. & W. 3 East. lies. I02. and had not been heard of afterwards. B must prove his plea as fully as if A were (a) A sues B being prosecuted for arson. A to question in 1819 is.' (b) A sues B for damage done loaded thereon by absence of notice. 2 B. no evidence were produted on either side. 386. may appear upon it the pleadings.9t! A DIGEST OF Illustrations. I ^ * V. when the action on that party against if whom to the judgment of the at all Court would be given. Starkie. s.' Article 95. who enlisted soon afterwards. As the burden of proof rested at first may be shifted from the party on whom by his proving facts which raise a presujnp- tion in his favour. Best.^ (c) B to A's ship by inflammable matter must prove the without notice to A's captain. ^ Williams R. 339. The presumption is that the indorsement was for value.

Koster v. ' I I ' Euss. and refuses to produce it on notice. L. (f) A is indicted for bigamy. I 8.* proves that he received the rent of land. 6 B& C. On proof by the prosecution of the first marriage.^ {d) A deed of gift is shown to have been made . & K. 19. XIII. The burden of proving that the transaction was in good faith is on the solicitor. burden of proof as to particular fact. v. but that her loss had been rumoured. and gives it to B to look at. 7 A.by a client to his solicitor. P. 61. The presumption (/) that he is owner in fee simple. 310. & R. 357. She is shown to have been goods soon after the theft. and shows that the vessel insured went to sea. The burden of proving that she was not coerced by him is shifted on to the prosecutor. denies it that the ditch belongs to A. 337.' (e) It is shown that a hedge stands on A's land. The burden of proving that it is not as valuable a stone of the kind as would go into the socket is on B. i R. it is provided by any law that the burden of proving ^ R. The burden of proving that the ditch adjacent to it is not A's also is on the person of proof is in possession of the stolen who is. She shows that she stole them in the presence of her husband. and the burden of proof is on the A person (g) who denies it. Atkins. C. 33 . ' 99 y on the prosecution. Quoting Hunter v. Guy V.' The burden Article 96. and 2. H 2 . ' ' Doe V. Coulthred. N. but returns the socket.] The burden THE LA W OF EVIDENCE. Armmiry v. 235. Butler. West. Story Eq. The burden of proof is shifted to A.* finds (h) A A sues B on a policy of insurance. Juris. 113.. * i. 7 Reed. n. A proves that at the time he was a minor. This throws on the prosecution the burden of proving the consent of A's parents. & E. Delamirie. Cri. person unless The burden of proof as to any particular fact lies on that who wishes the Court to believe in its existence. and that after a reasonable time no tidings of her have been received. 3 M. 1297. ». of proving that she has not foundered is on B. Selw.' a jewel mounted in a socket.' Chap. B keeps it.

655.' Article 97. Ev. Illustrations.. must prove the admission. Stone. v. Elkin v. and cases there quoted. v. especially. ss. B. 345-6. the judgment of Alderson. on a pohcy of insurance on a ship. I Ea. sues B. where Lord Mansfield's language appears to imply what is stated above. {i) purpose. The burden of proving any fact necessary to be proved in ' ' For instances of such provisions see T. an underwriter. A. .^ {c) In actions for penalties under the old game laws. The illustration is founded 556. and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knbwledge with respect to the fact to be proved which may be possessed by the parties respectively.Jamon. A He must prove it. ' I Ph. at the time in question.^ but the burden may in the course of a case be shifted from one side to the other. and was he was not. B wishes tlie Court to beheve that. burden of proving fact to be proved to make evidence admissible. 639. B must give enough evidence to throw upon A the burden of disproving his knowledge . 13 M. & W. E. B alleges that A knew of and concealed from B material facts. though the plaintiff had to aver that the defendant obliged to give general evidence that was not duly qualified. 663-6. the burden of proving any definite qualification was on the defendant. See. and wishes the Court to believe that B admitted the theft to C. in a note to R. that fact shall on any particular person. Jarvis. more particularly on R. but slight evidence will suffice for this elsewliere. a shipowner. he was (a) A prosecutes B for theft.loo A DIGEST OF lie [Part III.

and the fact that he had given up all hope of life when he made the statement. A must prove that the document has been lost. . Illustrations. the contents document. by secondary evidence. A wishes to prove a dying declaration by B. must prove B's death. of a lost {6) A wishes to prove.CHAP. XIII. {a) A . loi order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.] THE LAW OF EVIDENCE.

or that the circumstances of their access (if any) were such as to render it highly improbable that sexual inter- course took place between them when it occurred. regard being had both to the date of the birth and to the physical condition of the husband. . CHAPTER XIV. or within such a time after the dissolution thereof and before the celebration of another valid marriage. nor are any declarations by them upon that subject regarded as relevant facts is when the legitimacy of the woman's child * in question. whether See Note XXXVI. The fact that any person was born during the continuance of a vaUd marriage between his mother and any man. ESTOPPELS. Neither the mother nor the husband as to is a competent witness the fact of their having or not having had sexual intercourse with each other.* presumption of legitimacv. that his mother's husband could have been that he is his father. unless it can be shown either that his to mother and her husband had no access each other at any time when he could have been begotten. is conclusive proof the legitimate child of his mother's husband. ON PRESUMPTIONS AND Article 98.A DIGEST OF [Part III.

Edmonds. but there is no presumption as to the time when he died. see p. L. Davies. McMahon . 207 . 215. 125. Hoprwell v. A years person shown not to have been heard of for sev6n by those (if any) who is if he had been alive would to naturally have heard of him. or ' R.^ Article 99. V. L. R.' to have died in same accident. 5 Ir. Luffe. unless the circumstances of the case are such as to account for his not being heard of without assuming his death. 8 Ea. R. v. may give evidence as to the person by whom. presumed be dead. & W. presumption of death from seven years' absence. . I C. 2 S. R. C. and see 2 M. & Ro. Lumley.] THE LAW OF EVIDENCE. or as to the order in which two or more persons died who are tlie shown battle. Harborne.^ There no presumption as to the age at which a person who shown to have been alive at a given time. and see authorities in last note. v. Eq. 562. 113 Nepean v. L. 3 C. . ' Wing\. Rep. 272-4 . 5 Ch. 196 . provided that in applications for affiliation orders when proof has been given of the non-access of the husband at any time when the wife his wife's child could have been begotten. 103 the mother or her husband can be called as a witness or not. J. 544. v. & P. De Pinna. 183. McElroy. 139. V. 25 L. . Cope v. I . Mansfield. 894. Legge R. i Q. 444 ^ Morris v. Cope. 8 H. z Camp. R. Eq. i Mo. 2 A. 912 All the caution of Lord Denman in R. An«rave.Chap. shipwreck. Nepean v. 681 . B.it was begotten. is and the burden of proving his death at any particular time upon the person who died asserts is is it. 135 . Knight. XIV. the cases are collected and considered in In re PhenPs Ti list. C. App. 198 . L. V. & E. Doe.

in Cumberland (not being navigable at that A no in in and was used for more than sixty years before 1861 in the manner which it was used in 1861. L. and vifhich B had occupied (without title) The lands formed originally an encroachment on to 1809. 3. exercised any proprietary right which might h£ld a lawful origin by grant or licence from the Crown or from a private person. P. [Part III. Lonsdale. Webb v. R. and without interruption till i860. 488. c. avoiding grants of the Forest of Dean. 13 C. This raises a presumption. When have it has been shown that any person has. II. . Wilson. C. 5 C. interrupt ' it. is. Leconfieldy. The undisturbed occupation (i) for thirty-nine years raises a presump- tion of a grant from the Crovifn to A's father.) 841. ' ' See also Doe d.104 A DIGEST OF Article ioo. 10 Moo. and enjoys a free current' of air to it over B's land as of right. («) lost. had granted a right to erect it. and the exercise of which might and naturally would have been prevented by the persons interested if it had not had a lawful origin.^ {c) A builds a windmill near B's land in 1829. 1 1 Ea.S. This enjoyment raises no presumption of a grant by B of a right to such a current of air. as it would not be natural for B to place). that all the upper proprietors whose rights were injuriously affected by the dam. of Dean. The question session of from 1754 from 1793 the Forest whether B is entitled to recover from A the poslands which A's father and mother successively occupied to 1792 or 1793.' fishing mill-dam was erected more than years before 1 861 the River Derwent. presumption of lost grant. Baldwin. there is a presumption that such right had a lawful origin and that it was created by a proper instrument which has been Illustrations. V. 502. 657. The presumption was rebutted by an express provision of 20 Ch. for a long period of time. B. (N. Deviiie v.' GoodtUle in this case V. Bird.

^ perfect his Article 102. Chasemore ^ Doe d. Hammond v. or abstains from doing or saying. neither the person nor mentioned any suit his representative in interest is allowed.] (d) THE LAW OF EVIDENCE. Richards. ' t See Note XXXIX. in or proceeding between himself and such person or his representative in interest.f Chap. . to deny the truth of that thing. is When a person in possession of any property shown is to be entitled to the beneficial ownership thereof. 1 79. 7 H. * See Note XXVIII. 105 No length of enjoyment (by means of a deep well) of water. v. of L. raises a presumption of a grant from the owners of the ground under which the water so percolates of a right to the water.* presumption of regularity and of deeds to complete TITLE. intentionally causes or permits another person to believe a thing to be true. and to act upon such belief otherwise than but for that belief first he would have acted. 349. 1 74. When any done in a judicial or official act is shown it to have been that manner substantially regular. there a presumption that every instrument has'been executed which it was the legal duty of his trustees to execute in order to title. C. When one person by anything which he does or says. XIV. its is presumed formal requisites for validity were complied with. ESTOPPEL BY CONDUCT. Cooke. 6 Eing. percolating through underground undefined passages.' Article ioi.

the negligent person is not permitted to deny that he acted in the manner in which the other person was led by such fraud to believe him to act.io6 A DIGEST OF [Part III. though not with the intention that A should act otherwise than he actually did. nor did A so act. 6 A. abstains from claiming for verses with C's attorney without referring to some months. 2 Ex. deny that he holds for C on the ground that.'.* want of no property passed ' Pickard v. but does not specifically appropriate to B any quarters. (b) belief that the machinery it is B's. to says nothing further to C being satisfied with B becomes bankrupt. cannot deny that he is B's partner. as to delivery. A cannot. C informs A. 661. for to B. Sears. 474. and by these is means impresses C with the the machinery. ' ' ' (Per Parke. 5 Q. B B sells sixty of the eighty quarters to C. R. 660. . a retiring partner of is no longer B's partner. & E. in who assents to the transfer. if he had only B had in fact a copy.' A. this. of which such neglect in the natural course of things the proximate cause. 469. . & B. The imprisonment was B had a certain original warrant. B for a wrongful imprisonment. He led A to believe that he had the original. C sells A is estopped from denying that B's. rightful. Freeman v. he A sues if wrongful.) Howard v. When tion of to any person under a legal duty to any other person to conduct himself with reasonable caution in the transac- any business neglects that duty. a copy. an action by C recover the barley. gives no notice to the customers of the In an action by a customer. it which is taken in execution by C. B. Illustrations. Hudson. Cooke. L.^ (rf) A sells eighty quarters of barley to B. 2 E. B may show that he had only a copy and not the original. Wiffen. specific appropriation. and when the person the duty is whom is owing alters his position for the worse because he misled as to the conduct of the negligent is person by a fraud. B. firm that he (c) B. i. Knights V. (a) A the owner of machinery in B's possession. and conhis claim.

" She then gives it to a clerk of A's to get it cashed. permitted to deny that the landlord had. 3. C. Australasian. 760 (note). A carelessly leaves his door unlocked. No ' acceptor of a V. so carelessly that room is left for the insertion of figures before the 50 and for the insertion of words before the "fifty. a title such land or hereditament f and no person who came upon any land by the licence of the person in possession thereof is. No tenant and no person claiming through any tenant of let any land or hereditament of which he has been possession. 181. ^ of an innocent purchaser from the Article 103. jV. in 253. bill of exchange is permitted to deny young Grate. £. Doe * Pegg. . is. 34. Barton. estoppel of tenant and licensee. XIV." A's banker pays the cheque so altered in good faith. A's wife fills 107 and gives them to his wife to fill up as she up a cheque {ot£^o 2s. R.7 . permitted to deny that such person had a to such possession at the time when such Article licence was given. or for which he has paid rent. V. J. 188. Srmn v.. till into he has given up possession. Baytiip. = Doe v. ' Per Blackburn. 307 1 T. and C S.* 104. A (e) A signs blank cheques wants money. whilst he remains title on it. at the time when the tenant was let into possession to or paid the rent. Doe v. Smyth. 11 A. & E. cannot recover against the bankei. whereby title his goods are He is not estopped from denying the thief.Chap. 2 H. . 3 A. 4 M. & E. & Doev.] THE LAW OF EVIDENCE. 4 Bing.' if) stolen. estoppel of acceptor of bill of exchange. He writes 3 before 50 and " three hundred and " before "fifty.

R. 8 Ex. Hammond. agent. 7 Tau. 209. (N. or that his bailor. by entrusted to any of whom was any goods were entitled to those them respectively goods at the time when they were so entrusted. or licensee. agent. obtained the goods from a third person who has claimed them from such bailee. 7 Bing. or licensor. 137 .) Gosling 618. 10 H. Ad. 34 Q. Robinson v. 313 . Wilcock.^ may deny his authority to endorse Article 105. v. No bailee. V. & A. B. 4 C. Sanderson v.^ nor the if the be drawn by procuration. 450. 2. Dixon. ' ^ ' * Dixon . or bill is the payable to the order of the drawer. 455. by whom purports to be drawn. Provided that any such bailee. Coleman. 9 Bing. 216. 339 . representing goods to Garland V. Bond.* of lading in the hands of a consignee or Every bill endorsee for valuable consideration. or licensee. Crossley v. L. or licensee is permitted to deny that the bailor. As to carriers. the authority it of the agent. to draw in name of the principal. and licensee. & . that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor. principal. agent. J. Hardman v. the signature of the drawer or his capacity to draw. endorse the though he bill may deny the fact of the endorse- ment . Wilson v. B. L. principal. may show. 4 M. Jacomb. Yarroia. wrongfully and without notice to the bailee. principal. 293 382 Birnie.'^ though he it. agent. or licensee. agent. estoppel of bailee. his capacity to bill. Anderton. & G.io8 A DIGEST OF [Part if III.S. Biddle v. New Quay. see Sheridan v. or licensor. or licensor. . I B. L. B.

exonerate himself in respect of such misrepresentation it by showing that was caused without any default on his and wholly by the fraud of the shipper or of the holder.Chap. holds.] THE LAW OF EVIDENCE. s. XIV. ^ or some person under whom the holder ' 18 & 19 Vict. provided that the master or other person so signing may part. is 109 have been shipped on board a vessel. 3. some part may not have been so shipped. . Ill. unless such holder of the the bill of lading had actual notice at the time of receiving fact laden same that the goods Had not been in on board. conclusive proof of that shipment as against the master or other person signing the same. c. notwithstanding that such goods or thereof.

* See Note XL. t See Note XLI. truth. Article 107. from understanding the questions put to him. CHAPTER XV. WHAT WITNESSES ARE INCOMPETENT. made in open Evidence so given is deemed to be oral evidence. signs. or any other cause of the same kind. A witness he is is incompetent if in the opinion of the judge prevented by extreme youth. all persons are competent to testify in cases except as hereinafter excepted. . from recollecting the matter on which he is to testify. any other manner which he can make intelligible but such writing must be written and such signs Court. may give his evidence in by writing or by it or in . OF THE COMPETENCY OF WITNESSES* Article io6. from giving rational answers to those questions.t A DIGEST OF [Part III. disease affecting his mind. or from knowing that he ought to speak the A witness but unable to speak or hear is not incompetent. who may All testifv.

377. L. form an exemption. XV. lb. s. 104. competency in proceedings relating to adultery. Article i68. E.^ competent and compellable to Proceedings at law on the Revenue side of the Exchequer Division of the High Court of Justice are not criminal within the meaning of this article. & S. and R. R. 1 ' 28 & 29 Vict.* 1 1 competency in criminal cases. Payne. the parties and their husbands and wives are competent wit- nesses. 1. whether a party to the suit or not. s. Wood. is liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery. omitted accldentaily. In proceedings instituted in consequence of adultery. Thompson. 34. s. provided that no witness in any [? such] proceeding. ' Reeve v. See T. unless such witness has already given evidence in the same proceeding in disproof of his or her alleged adultery.^ Article 109.] THE LA W OF E VIDENCE. 364. The word "such" seems to have been . " incompetent to Provided that in for any criminal proceeding against a husband or wife any bodily injury or violence inflicted is upon his or her wife or husband. c. Treason has been also supposed to S B. R. such wife or husband testify. R. C.1 Chap. 3. I C.* * See ' Note XLII. and every person and the wife or husband of is every person jointly indicted with him testify. c. 68. v. 237. * 32 & 33 Vict. 349. In criminal cases the accused person and his or her wife or husband.

595. Gazard. . 83.^ testify as It seems that a barrister cannot be compelled to what "he said in court in his character of a barrister. i Esp. 838. s. It is doubtful 16 & 17 Vict. 8 C. 456.^ Article hi.A DIGEST OF Article iio. R. " * widow V.* or * ' See Note XLIII. 3. No affairs one can be compelled to give evidence relating to any of State. v. Walter. questioned after the dissolution of the marriage as to what had been communicated to him whilst it lasted. communications during marriage. 5 & P. Beatson H. or as to official communications between public officers upon public affairs. made is him by and no wife compellable to disclose any communication made to her by her husband during the marriage.'''' judges and advocates privileged as to certain questions. evidence as to affairs of state. Skene. c.^ Article 112. It is doubtful whether a judge is compellable to testify as to anything which came to his knowledge in court as such to judge. & N. except with the permission of the officer at the head of the department concerned. » Ciirry v. [Part III. No tion husband to is compellable to disclose any communicahis wife during the marriage. whether this would apply to a or divorced person.

3 ;

Chap. XV.]

THE LAW OF E VIDENCE.
what took place in
either

1 1

to give evidence of

House of

ParUament, without the leave of the House, though he may
state that

a particular person acted as Speaker. ^

Article

113.

information as to commission of offences.
In cases in which the government
is

immediately con-

cerned no witness can be compelled to answer any question,
the answer to which would tend to discover the

names of

persons by or to

whom

information was given as to the com-

mission of offences.

In ordinary criminal prosecutions

it is

for the

judge to

decide whether the permission of any such question would
or would not, under the circumstances of the particular case,

be injurious to the administration of

justice,'^

Article 114.

competency of jurors.

A petty juror may not^ and
juror

it is

doubtful whether a grand

may *

give evidence

as to

what passed between the
It is also

jurymen in the discharge of
whether a grand juror
witness said

their duties.

doubtful

may

give evidence as to what any

when examined

before the grand jury.

'

=

R.
V.

Chubby Salomons, 3 Car. & Kir. 77 ; Plunkettv. V. Hardy, 24 S. T. 811. A. G. v. Bryant,
.

Cobbett, 5

Esp. 136.
169

15

M. & W.
M.

R.
'

Richardson, 3 F. & F. 693. Vaise v. Delaval, i T. R. 1 1 ; Burgess
1

v.

Langky,

5

&

G. 722.

*

Ph. Ev. 140

;

T. E.

s.

863.


;

114

A DIGEST OF

[Part

III.

Article 115.*
professional communications.

No

legal adviser is permitted,

whether during or

after the

termination of his employment as such, unless with his
client's

express

consent,

to disclose
to

any communication, by

oral or documentary,

made

him

as such legal adviser,

or

on behalf of

his client, during, in the course,

and

for the

purpose of his employment, whether in reference to any
matter as to which a dispute has arisen or otherwise, or to
disclose

any advice given by him to

his client during, in the
It is

course,

and

for the

purpose of such employment.
is

immaterial whether the client
in

or

is

not a party to the action

which the question
This
(i)

is

put to the legal adviser.

article

does not extend to
aforesaid

Any such communication as
;^

made

in further-

ance of any criminal purpose
(2)

Any

fact

observed by any legal adviser, in the course

of his employment as such, showing that any crime or fraud

has been committed since the

commencement of

his

em-

ployment, whether his attention was directed to such fact by
or on behalf of his client or not
(3)

Any

fact

with
*

which such

legal

adviser

became

See Note XLIV.
S.) 17
;

'

Follett V. Jejferyes, i

Sim. (N.

Charlton

v.

Coombes, 32 L.

J.

These cases put the rule on the principle, that the furtherance of a criminal purpose can never be part of a legal adviser's business. As soon as a legal adviser takes part in preparing for a crime, he ceases to act as a lawyer and becomes a criminal a conspirator or accessor)
Ch. 284.

as the case

may

be.

Chap. XV.]

THE

LAW OF EVIDENCE.
"

115

acquainted otherwise than in his character as such.
expression " legal adviser
their
clerks,^

The
their

includes barristers and solicitors,^

and

interpreters

between

them

and

clients.
Illustrations.
(o)

A, being charged with embezzlement, retains B,
In the course of the proceedings,

a.

barrister, to

defend him.
said to have

B

observes that an

entry has been

made

in A's account book, charging

A

with the sum

been embezzled, which entry was not in the book at the commencement of B's employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, is not protected from disclosure in a subsequent action by A against the prosecutor in the original case for malicious prosecution.'
{h) retains B, an attorney, to prosecute C (whose property he had fraudulently acquired) for murder, and says, " It is not proper for me to appear in the prosecution for fear of its hurting me in the cause coming

A

on between myself and him ; but I do not care if I give ;£'io,ooo him hanged, for then I shall be easy in my title and estate."
communication
is

to get

This

not privileged.*

Article

116.

confidential communications with legal advisers.

No

one can be compelled to disclose to the Court any
his legal adviser,

communication between himself and
'

which

Wilson

v.

Rastall,

4 T. R. 753.
2 C.

As
;

to interpreters, lb., 756.

v. Hayne, I C. & P. 545. Quaere, whether licensed conveyancers are within the rule ? Parke B.,
'

Taylor

v. Foster,

&

P. 195

Foote

in

Turquand v. Knight,
to
2
'

?

M. & W.

100, thought not.

Special pleaders

would seem

be on the same footing.

Brown

v. Foster, i

H.

& N.
S.

736.

Annesleyv. Anglesea, 17

T. 1223-4.
I

,

2

ii6

.

A DIGEST OF

[Part

III.

his legal adviser could

not disclose without his pennission,
before any dispute arose

although

it

may have been made

as to the matter refeirred to.^

Article 117.*

clergymen and medical men.
Medical men^ and [probably] clergymen
pelled to
disclose

may be com-

communications made to them in pro-

fessional confidence.

Article 118.

production of title-deeds of witness not a partv.

No
ment

witness

who

is

not a party to a

suit

can be compelled

to produce his title-deeds to

any property,^ or any docuforfeiture;* but a witness

the production of which might tend to criminate him,

or expose
is

him

to

any penalty or

not entitled to refuse to produce a document in his posonly because
its

session

production

may
upon

expose him to a
it.^

civil action,^

or because he has a lien

* See
'

Note

XLV.

Minetv. Morgan, L. R. 8 Ch. App. 361, reviewing all the cases, and adopting the explanation given in Pearse v. Pearse, I De G. & S. 18-31,
oi Raddiffey. Fursman, 2 Br. P. C. 514. ' Duchess of KingstotCs Case, 20 S. T. S72-3'
see
'

As

to clergymen,

Note XLV.
Pickering
v.

Noyes,

I

B.

&

C. 263
*

351.
=
«

Adams v. Lloyd, 3 H. ; Whitakery.Jzod,2'Xwi..\\<^.

&

N.

Doe V. Date, 3 Q. B. 609, 618. Hope V. Liddell, 7 De G. M.

B.

&

C. 858

;

Brassington

v.

& G. 331 ; Hunter v. Leathley, 10 Brassington, I Si. & Stu. 455. It has

Chap. XV.]

THE

LAW OF EVIDENCE.
Article
119.

117

production of documents which another person,

having possession, could refuse to produce.

No

solicitor,! trustee,

or mortgagee can be compelled to

produce (except for the purpose of identification) documents
in his possession as such,

which his

client, cestui

que trust
if

or mortgagor would be entitled to refuse to produce

they

were in his possession
refuse to produce a

;

nor can any one who

is

entitled to

document be compelled

to give oral

evidence of

its

contents.^

Article

120.

witness not to be compelled to criminate himself.

No

one

is

bound

to answer

any question

if

the answer

thereto would, in the opinion of the judge, have a tendency
to expose the witness [or the wife or to

husband of the witness]
forfeiture

any criminal charge, or
^

to

any penalty or
likely to

which the judge regards as reasonably
or

be preferred

sued for

;

but no one

is

excused from answering
not be refused on the ground

been doubted whether production

may

of a lien as against the party requiring the production. This is suggested in Brassington v. Brassington, and was acted upon by Lord

Denman in Kemp v. King, 2 Mo. & Ro. 437 but it seems to be opposed to Hunter v. Leathley, in which a broker who had a lien on a policy for premiums advanced, was compelled to produce it in an action against the underwriter by the assured who had created the lien.
;

See
'

L^ V.
Volant

Barlow
V. v.

(Judgt. of Parke, B.)
;

i

Ex. 801.
v.

Soyer, 13 C. B. 231

Phelps

Prew, 3 E.

&

B. 431.

' '

Davies

Waters, g
i

R.

V.

Boyes,
;

B.

M. & W. 608 ; Few v. Guppy, 13 Beav. 454. & S. 330. As to husbands and wives, see i Hale,
263
;

P. C. 301

R.

V.

Cliviger, 2 T. R.

Cartwright v. Green, 8 Ve. 405

;

Bathwick. c. 121. 68. when for required. 93-101 6 . 2 32 & ' 46 Geo. T.^ When the only proof against a person charged with a is criminal offence the evidence of an accomplice.ii8 A DIGEST OF [Part III. . or is otherwise liable to any either at the instance of the Crown or of any other person. Ev. 3 Russ. 33 Vict. c. 2 B. though they have a R. v. the wife claimed the privilege of not answering she would be compelled to do so. E. V. 887-91 c. These cases show that even under the old law which made the parties and their husbands and wives incompetent witnesses.^ No order against any person alleged to be the father of a bastard child can be made by any justices. 639 S. 35 & 6 Vict. u. any question only because the answer may establish or tend to establish that he civil suit. uncorit roborated in any material particular. is the duty of the judge to warn the jury that it is unsafe to convict any person legal right to upon such evidence. breach of promise of No is plaintiff in any action marriage can recover a verdict. 6.* R. Cri.^ Article corroboration. owes a debt. s. R. . ss. 4. do so. & ' ' 8 I & 9 Vict. 600-611. 37. 5. do not decide that if to that extent overruled. or confirmed on appeal by any Court of Quarter Session. III. v. Ph. All Saints. unless the evidence of the mother of the said bastard child is corroborated in of the said some material particular to the satisfaction justices or Court respectively. Cliviger assumes that she was. . 2. unless his or her testimony corroborated by some other material evidence in support of such promise. however. a wife was not incompetent to prove matter which might tend to criminate her husband. Worcester. 194. s. 10. . and Ad. and to some extent they suggest that she would not. 6 M. and was The cases.

4. ss. 3 Russ.^ or to misprision of such treason. 93. no one tried. III. 3. and if no circumstances are is proved which corroborate such witness.] THE LA W OF EVIDENCE. 119 Article 122. in which the overt act or overt acts of such treason alleged in the indict- ment are assassination or killing of the Queen. XV. the defendant be acquitted. In trials for high treason. c. attempt against her person. either both of them to the same overt act.. he pleads guilty) except upon the oath of two lawful witnesses. trial for If upon a is perjury the only evidence against the defendant the oath of one witness contradicting the oath is on which perjury entitled to assigned. or any direct life. 77-86. If two or more distinct treasons of divers heads or kinds indictment. III. or one of them to one and another of them to another overt act of the same treason. ' 39 & 40 Geo.^ » » 7 & 8 Will.' This provision does not apply to cases of high treason in compassing or imagining the Queen's death. whereby her suffer bodily or any direct attempt against her life may be endangered or her person harm. or misprision of treason. are alleged in one one witness produced to prove one of the said treasons and another witness pro- duced to prove another of the said treasons are not to be deemed to be two witnesses to the same treason within the meaning of this article. number of witnesses.Chap. 2. i. . or attainted (unless can be indicted. on Crimes.

OF THE EXAMINATION OF WITNESSES. N. nal cases). but if any person called as a witness refuses or unwilling to be sworn from alleged conscientious motives. Article 123." &c. the judge before whom the evidence is to be taken may. 175-6. s. P. All oral evidence given in any action must be given upon is oath. take an oath. eifect c. permit such person instead of being sworn to make his or her solemn affirmation and declaration in the following words " I. upon being satisfred of the sincerity of such objection.— DIGEST OF 'A [PaRt III. 24 c. and 49.^ If any person called to give evidence in any court of whether in a civil or criminal proceeding. A B. sincerely. according to my and I do also solemnly. I omit special pro- visions as to Quakers. s. c. as tlie enactments mentioned above include all cases. do solemnly. CHAPTER XVI. 33 & 34 Vict. 66 (crimi- 2 32 & 33 Vict. 68. sincerely. 20 (civil cases) . evidence to be upon oath. Separatists. c. & 25 Vict. 1254 . R. except in certain cases. or objected to as incompetent to take such if an oath. Moravians. The statutes are referred to in . such person must. T. 125. that the taking of ' 17 & 18 Vict. and is truly affirm and declare that the taking of any oath religious belief unlawful. E. the presiding judge is satisfied an oath would have no binding s. 4 . and ^ truly affirm and declare. objects to is justice.

v. Oaths are binding which are administered in such form and with such ceremonies be binding. c. and nothing but the truth. L.— Chap. make the following promise and decla- ration " I solemnly promise and declare that the evidence given by me If to the Court shall be the truth. the whole truth. * ' See Note XLVI. 4SS. s. he is liable to be punished as for perjury. I & 2 Vict. 14 & i^ Vict. XVI.] THE LAW OF EVIDENCE. receive. 105. Barker. and re- examination.^ Article 126. WHO IS to have power to administer oaths. I S. C. is evi- empowered to administer an oath to all such witnesses as are lawfully called before him. Witnesses must be first examined in chief. i2r on his conscience. 2 see Omichund c. . cross-examination. Every person now or hereafter having power by law or by consent of parties to hear. and then re-examined. For the old law. form of oaths." any person having made either of the said declarations wilfully and corruptly gives false evidence. 99. and examine dence. then cross- examined. 1 as the person sworn declares to Article 125. Article 124.* examination in chief. 16.

or has made a promise and decla^ ration as hereinbefore mentioned for the purpose of giving evidence. Doolin. C. Whitehead. to what matters cross-examination and re examination must be directed. 33. or becomes incapable of being his examination. v. C. may be withdrawn from and the case may be it. but the opposite party is not entitled to cross-examine merely because a witness has been called to produce a document on a subpmna identified. The judges compared the case to which is admitted.A DIGEST OF Whenever any witness has been examined [Part III. in chief. and if it does so. the party who called the The Court may in witness has a right to re-examine him. the opposite party has a right to cross-examine him . V. the parties have the right further of further cross-examination and respectively. C. or has been intentionally sworn. R. that of a dying declaration cross-examination. but the cross-examination ' R. R. is further examined at any stage of the evidence given before he became incapable If in the course of a to trial good. 123. or in is order to be After the cross-examination concluded. i Jebb. i C.^ to their decision independently of Article 127. duces tecum. re-examination If a witness dies. the jury. though there can be no 2 R. . L. The examination and cross-examination must relate to facts in issue or relevant facts. all cases permit a witness to be recalled either for further examination in chief or for further cross- examination.^ a witness who was supposed his evidence left be competent appears to be incompetent.

] THE LAW OF EVIDENCE. must not. To test his accuracy. or a re-examination. he may. . XVI. 123 need not be confined to the testified which the witness on his examination in The re-examination must be matter directed to the explanation .— Chap. * See Note XLVII. or suggesting is disputed facts as to which the witness if to testify. or credibility or To shake his credit. Article 128. facts to chief. veracity. but such questions may be asked in cross- examination. When tions (i) a witness is cross-examined. Questions suggesting the answer which the person putting the question wishes or expects to receive. introduced in examination. except in the case (2) provided for in article 120. and however disgraceful the answer may be to himself. by injuring his character. He may be compelled to answer any such question. leading questions. be asked any ques- which tend . objected to by the adverse party. Article 129. except with the permis- sion of the Court. the adverse party may further cross-examine upon that matter. of matters referred to in cross-examination is. however irrelevant it may be to the facts in issue. in addition to the questions hereinbefore referred to. and if new re- by permission of the Court. be asked in an examina- tion in chief.* questions lawful in cross-examination.

I Ex. » 28 & 29 Vict. s. J. 91. G. p. too. B deposes that he made tattoo marks on the arm of R. many years after the alleged tattooing. A.. . Trower. and answers it by denying the facts suggested. B may be asked and compelled to answer the question whether. or refuses to answer. to When a witness under cross-examination has been asked is and has answered any question which inquiry only in so far as injuring his character. 105. which at the time of the trial were not and never had been on the arm of A. V. V. * 18. evidence may be given of his previous conviction thereof* (2) If a witness is is asked any question tending to show that he not irnpartial. T. 8 Ex. 719. he may be contradicted. T. Orion. 100. 91. Ex. C. whether A committed perjury in swearing that he was R. &c. and denies or does not admit it. V. c. and many years before the occasion on which he was examined. 99-105. See summing-up of Cockhurn. See. [Part III. he committed adultery with the wife of one of his friends. Hitchcock. Hitchcock. Palmer v. pp. G. (a) The question is. 247.* ' ' R. A. of evidence to contradict answers questions testing veractity.^ 124 A DIGEST OF Illustration.. tradict (i) it relevant to the tends to shake his credit by no evidence can be given : him except in the following cases — to con- If a witness is asked whether he has been previously convicted of any felony or misdemeanour.' Article exclusion 130. I 6.

is statement. may be asked whether he has made any former statement relative to the subject-matter of the action and inconsistent with his present testimony. relative to subject- * See Note XLVIII. A witness under cross-examination [or a witness whom the judge under the provisions of article 131 has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony] may be questioned as to previous statements made by him the in writing. XVI. Every witness under cross-examination in any proceeding civil or criminal.Chap. cross-examination as to previous statements in WRITING. .* 125 statements inconsistent with present testimony may be proved. Article 132.] THE LAW OF EVIDENCE. and if he does not distinctly admit that he has proof may be The same given that he did in fact course made such a make it. if the of opinion that he called is [hostile] to the party by whom he was and permits the question. Article 131. or reduced into writing. may be taken judge with a witness upon his examination in chief. the circumsuffi- stances of the supposed statement being referred to ciently to designate the particular occasion.

their answers cannot be contradicted. 5. without such writing being shown to him [or being proved in the first instance] . Ev.' but. 2 . 18. and 28 Vict. I think the words between brackets represent the meaning of the sections. s. E. T. the adverse party. s. s. The judge may. 1324-5. believe him his oath. 18. his attention must. be called to those parts of the writing which are to be used for the purpose of contradicting him. 503-4. matter of the cause. . by the evidence of persons who swear that from their knowledge of the witness. the when such evidence is given by party who called the witness may " 17 & 18 Vict. for the and may thereupon make such use of trial purposes of the as he thinks fit' Article 133. but if it is intended to contradict him by the writing. 17 & 18 Vict. 24. credit of any witness may be impeached by the adverse party. c. and 28 Vict. ss.126 A DIGEST OF [Part III. s." &c. 125. c. t. impeaching credit of witness. but in terms they apply only to witnesses under cross-examination "Witnesses — may be " ' cross-examined. c. 3. to be unworthy of credit upon Such persons may not upon and their examination in chief give reasons for their belief. document to be at any require the produced it for his inspection. The they. but they may be asked their reasons in cross-examination. before such contradictory proof can be given.'^ No such evidence is may be given by the party by whom any witness called. 125. 2 Ph. time during the trial.

is although she not cross-examined on the subject. In these were excluded. per Kelly. Pike. in order to contradict proved. When ravish.^ in such a case be asked whether she has connection with other men. C. v. V. == p. Holmes. ^ R. what matters may be proved in reference to declarations relevant under articles 25-34. Clarke.Chap. it a man is prosecuted for rape or an attempt to may be shown that the woman against whom the offence was committed was of a generally immoral character. 3 C. ' R.^ The had woman may tradicted. 598. Ev. 25-34. Whenever any articles declaration or statement relevant under is it. 334. Holmes. show that the witness is 127 give evidence in reply to credit. because the persons by whom . worthy of Article 134. Drummond. 337. had been and had denied upon cross-examination if that person the truth of the matter suggested. v. and denies it she she [probably] may be contradicted. V.] THE LAW OF EVIDENCE. V. R. but her answer cannot be con- She may also be asked whether she has had if connection on other occasions with the prisoner. C. XVI. 241. R. 1 cases dying declarations Lea. & P. 562. all matters may be proved or in order to impeach or confirm the credit of the person by whom it was made which might have been proved called as a witness. offences against women. R. L. . both inclusive. & P.^ ' 2 Ph.* Article 135. i C. 2 Star. Martin. B. 6 C. R. and remarks in R. 504. 338. /. * R.

. A witness may. 194-5. Any writing referred to under article 136 to the adverse party if if must be proit. P. 114-17. = R. but would obviously apply to all the cases in question.^ Article 137. &c. it or so soon afterwards that the judge considers likely that the transaction was at that time fresh in his memory. refreshing memory.&F. Seecasesin R. duced and shown he requires and such party may. Ev. N. and such they were principle 1 document is made would have been incompetent as witnesses. The witness may also refer to any such writing made by to be correct.^ he pleases. refresh his memory by to any writing made by himself at the is time of the transaction concerning which he questioned. 138. [Part III. AS evidence. DOCUMENT CALLED FOR AND PRODUCED ON NOTICE. cross-examine the witness Article GIVING. liC. 195. ss.^ any other person. E. When a party calls for a document which he has given the other party notice to produce. if when he read it he knew it An expert may refresh his memory by reference to pro- fessional treatises.128 A DIGEST OF Article 136. N. and read by the witness within the time aforesaid. right of adverse party as to writing used to refresh MEMORY. 1264-70 Sussex Peerage Case. . 480. while under referring examination. P. thereupon. the- 2 2 Ph. . T.

i Article USING. the party is 129 produced duction. rjg. 235 . Calvert v. 135 . . v. ^ Hodgson.Chap. AS EVIDENCE. ' Wharam Doe V. Ev. Flower.] THE LA W OF EVIDENCE. and if it is relevant. 270. he may not afterwards use document as evidence without the consent of the other ^ party. PRODUCTION OF WHICH WAS REFUSED ON NOTICE. Routkdge. I Esp. 7 C. 12 A. A DOCUMENT. When the a party refuses to produce a document which he has had notice to produce. 386. & E. and inspected by. calling for its proif he it bound to give it as evidence the party producing requires hiiri to do so. but see remarks in 2 Ph. XVI. to. & P.

Crown Cases Reserved set aside the conviction.^ is If in a criminal case evidence improperly rejected or is admitted. some substantial wrong or miscarriage has been trial thereby occasioned in the of the action. . but if that Court of opinion that any evidence was improperly admitted or it rejected. 3. unless in the opinion of the Court. OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE. Article 140.130 A DIGEST OF [Part III. for the is is no remedy. Court for in his discretion. 1875. states a case . to which the application is made. Order xxxix. unless the prisoner con- and unless the judge. there victed. ' ' CHAPTER XVII. civil A NEW trial will not be granted in any action on the ground of the improper admission or rejection of evidence. must ' Judicature Act.

Hence it the few presumptions of law which only ones I I have thought necessary to notice are the have to deal with. For the definition of fact. however. They be found. NOTE I. 131 APPENDIX OF NOTES. 12. see Bentham vol. . See. I use the word presumption in the sense of a presumption of law capable of being rebutted. ' Judicial Evidence. i. See. too.] THE LAW OF EVIDENCE.' pp. 39-50. The in will it is definitions are simply explanations of the senses which the words defined are used in this work. my ' Introduction to the Indian Evidence Act. is A presumption of fact simply an argument. too. 14-16. 29. The definition of the word " Document " s.NOTES.' pp. to explain the manner in which arranged. is taken from the Indian Penal Code. A conclusive presumption I de- scribe as conclusive proof. the Indian Evidence Act. s. (to Article i).

.'' The authorities given for this are actions on wagers which the Court refused to try. T. that 729). ii. 493. 459. and Mann v. E. Taylor (s. wagers were in themselves impertinent and offensive.) . or criminal right" (p. Cowp. and Note XLVII. pt. 3 A. &c. and fear there no authority for the proposition advanced by Professor Greenleaf. (See article 129. remoteness. or injurious to the feelings of third persons.132 A DIGEST OF [NOTES. 699. . ss. or in which they arrested judgment. NOTE II. iii and 251. I {Da Costa v. know an of no case because action. Ji. v. see Langton. is Lord Mansfield expressly. I ii. . Ev. For instances of relevant evidence held for the purpose for to be insufficient which it . & E. evidence which is indecent or offensive to public morals. No is action now I lies upon a wager. because the as. Best. "Indecency of evidence is no objection to it^ being received where civil necessary to the decision of a 734). for instance. in Da it Costa v. a wager as to the sex of the Chevalier D'Eon Jones. & P. in which a is fact in issue or relevant to issue which the Court it bound to try can be excluded merely is would pain some one who a stranger to the said Indeed. Mr. Ph. was tendered on the ground of 2 C. Jones. (to Article See chap. 867) adopts from Professor Greenleaf the statement that " the law excludes on public grounds . 2).

3 Russ. s. ss. rest his agents to carry the plan into execution. it is asserted that entitled to it land belongs to A. 2 Br. See particularly the to the reply to the questions put by the House of Lords 593-601 Best. On 532 . text. by Greaves. 508. too.) NOTE IV..] THE LAW OF EVIDENCE. this subject see also Ph. They regard I statements contained in the title-deeds as written statements made by persons not called as witnesses. those When is. delivered by Willes. 234-9 T. Ev. is fully explained and illustrated in Mal- ODea. Note XII. Phillips and Mr. (See.. think the deeds must be regarded as constituting the transactions which they effect. 499. s. T. Article i 4). and accessory.Notes. E. is & Bing. Mr. J. 133 NOTE (to III. or principal and persons conspire to commit When various an offence each makes the (See. 10 H. . Ev. 309-10. . 157-164 . ss. 5). (to Article The colmson principle V. the Queen's Case. E.) that of principal The principle substantially the same as agent. on Crimes. 593. of L. what is meant that A is by a series of transactions of which his title-deeds are by . 611-22. 161-7. Judges. article 17. See also i Ph. and in the case supposed in the transactions are actually in issue. 527- Best. too. Taylor treat this principle as an exthe ception to the rule excluding hearsay.

"How do you translate res gestae? by whom?" Parke.) In delivering his opinion to the House of Lords. &c.). 79. of the deeds is existence thus the very fact which is to be proved. Bosanquet. (p. Mr. 8. The come Doe V. either be observed that articles 2-6 refer to strictly in issue. law the exclusive evidence (see article 40)." an expression which does not appear to It will me felicitous. A.. The doctrine of " res gestae " was much discussed in the case of Tatham J. N. 4 Bing. observed. 353. & E. facts. Articles 7. res gestae. or relevant to the issue] declarations which can explain such facts in all oral or written may be received (Same Case.13+ A DIGEST OF The [NOTES. C. "The acts by whomsoever done are issue. gestae.) The question asked by Baron Parke goes to the root of the whole subject. "circumstantial evidence. 548. matter in (7 But the question what are relevant?" " [i." its which seems to have into use on account of convenient obscurity. and I have tried to answer it at length in evidence. In the course of the argument.'' NOTE V. 9 refer to facts which would usually be described by the phrase. if relevant to the is. B. afterwards observed. (to Article 7). the same Judge laid down the rule thus issue : Where when any facts are proper evidence upon an e." . Best treats the case as one of " derivative evidence.. items of evidence included in this article are often referred to by the phrase " res gestae. or so closely connected with facts in issue as to be of the same nature. they are in issue.

" in the habit. complaint are not admissible.' is The 7 th section of the Indian Evidence Act as follows : . of late years. in accordance with Walker. Civil Service. in R. Ev. B. by George Clifford Whitworth. 521. the usage has obtained that the prosecutrix's counsel should only inquire genei"ally whether a complaint was made by the prosecutrix of the prisoner's conduct towards her. but I have heard Willes. and T. made by the prosecutrix. v. Though he excluded statement. rule that they were on several occasions. 212. "the sense of the thing certainly the first that the jury should in instance know all the nature of the complaint that she then said. Walker was decided by Parke. vouching Parke. B. Bombay Bombay. the is. Besides the cases cited in the illustrations.] THE and LAW it OF EVIDENCE. that the particulars of a J. NOTE This taken ' VI. 135 the text. v. 1839. of Baron Brarawell has been admitting the complaint itself. to give its the prominence in the statement of the law which importance deserves. E.. and But for reasons which I never could understand. 9). he said.Notes. R. 1875. & R. The practice is certainly in accordance with common sense... see cases as to statements accompanying acts collected in i Ph. (to Article is (with some verbal alterations) from a pamphlet called The Theory of Relevancy for the purpose of Judicial Evidence. leaving the prisoner's counsel to bring before the jury the particulars of that complaint by cross-examination. M. ss. as his authority. 2 I have stated. 528. 152-7.

' May 27. printed in the Law Journal. and . 136 A DIGEST OF [Notes. or in connection with other facts. of relevant facts or facts in issue. Whitworth's pamphlet it me to have corrected and completed I in a judicious manner. cause. The necessity of limiting in some such way the terms Act may be of the nth section of the Indian Evidence inferred from a judgment by Mr. they issue. or which afforded an opportunity for their occurrence or transaction. or effect. though he does not seem to if me to have grasped it as distinctly as he probably would he had lived to study Mr. are relevant. greatly differ from Bentham's. and that it depends on the conThis theory does not nection of events as cause and effect." The nth ' section is as follows : Facts not otherwise relevant are relevant '(i) If they are inconsistent with any fact in issue or rele- vant fact ' . Parbhudas and ' others. Mill's Inductive Logic. not widely enough in others and Mr. with text. make the lexistence or non-existence of any fact in fact. have accordingly embodied his definiin the tion of relevancy. immediate or otherwise..' ' In my ' Introduction to the Indian Evidence Act I extried amined to at length the theory of judicial evidence. or relevant highly probable or improbable. and show that the theory of relevancy is only a particular case of the process of induction. in the case of R. 1876. some variations and additions. My theory was appears to expressed too widely in certain parts. I . v. " Facts which are the occasion. As to the coincidence of this theory with English law. or which constitute the state of things under which they happened. (2) If by themselves. Justice West (of the High Court of Bombay).

It is can be referred to one or the other of the heads of relevancy not necessary to give specific authorities for the illustrations. which can it arise but as questions connected with different have it been raised and decided in many necessary in a Digest of the forms. principle It tliat might. but they might be justified by reference to different parts of Palmer's case. suffice to solve every question . and shows how each item of which he discusses. . Briggs on the it North London Railway. executed for murdering Mr.] THE it LAW will is OF EVIDENCE. Miiller. The last illustration was suggested by the case of Courvoisier. They are too obvious to be noticed in reall ported cases. evidence by the writers who have Mr. Whitworth goes through the evidence given against the German. no doubt. I believe.Notes. which are embodied 3-8 are only particular applications of the general stated in this article. The theory of upon the subject relevancy contained in this article would. however. be is expressed very shortly by saying to every fact relevant every other. however. would throw no light on the question how facts affect the probability of the . 137 can only say that will be found to supply a key which explain all that said on the subject of circumstantial treated of that subject. articles The principles. This. of its if it affects in any definite way the proba- bility occurrence. occurrence of other facts the principles of evidence and to obtain a real mastery of it is necessary to have clear views on this subject. is Law of Evidence to notice in them.

should scarcely (' adopt his explanation of 954-968). and sparingly illustrated. marriage. and innumerable life. You are not to is draw inferences from one not specifically connected transaction to another which with it merely because the two resemble each other." which is explained and comI mented on in Best. NOTE VII. The to criminal than to civil proceedings.!38 A DIGEST OF [Notes. it is of very much greater importance and more frequent application exceptions apply more frequently than the exceptions. ii. They must be linked together by the chain of cause and effect in some assignable way before you can draw your In its literal inference. exceptions to the rule given in articles 11 and 12 are generalised from the cases referred to in the illustraIt is important to observe that though the rule is -is expressed shortly. " Res inter alios acta alteri nocere non ss. because does not show Law of how uncon- nected transactions should be supposed to be relevant to each other. he is not a party. it sense the maxim also fails. The meaning it of the rule must be inferred from the exceptions to that it stated in articles 11 and 12. The tions. (to Articles io. which show means. 12). because is not true that a man cannot be affected by transactions to which Illustrations to the contrary are obvious . 506-510 (though it). and by Broom Maxims.' The is application of the it maxim to the Evidence obscure. Article 10 is equivalent to the maxim. debet. bankruptcy. and in criminal cases . indeed every transaction of would supply them.

The s. 480-4 esse rite T. indeed. In the case of R.] THE LAW OF EVIDENCE. E. . (Illustration a). That part of the evidence. character of the definitions usually given of hearsay well known. " Omnia acta. the prove the true character of facts which. VIII. NOTE As to presumptions arising s.' 942. on the jury. &c. 353-365. (to Article 14)." also ss. See Broom's 'Maxims. business. tition of similar occurrences. 763. might naturally have been accounted for on the supposition of accident — a supposition which was sufficient rebutted by the repev. from the course of . s.Notes. T. and so commit a crime. E. there were many other circumstances which to would have been prove the prisoner's apart from the previous fires. is In each of the cases by which evidence admitted went 'to 12 illustrated. presumption. 757. see Best. Gray -guilt. applies. standing alone. I !f'h. 495 . Ev. 480. and unsatisfactory. Best. . 124. office or s. and Star. T. NOTE The unsatisfactory is IX. E. seemed to have little influence Garner's its case (Illustration result this c. Ev. 403 . 147. See Best. note) was an extraordinary one. I39 the Courts are always disinclined to run the risk of preju- dicing the prisoner by permitting matters is to be proved which tend to show in general that he likely to article a bad man. was in every way Some account of case will be found in the evidence given by me before the Commission on Capital Punishments which sat in 1866. (to Article 13). 1 Ph.

saved from the charge of falsehood by exceptions which make nonsense in the text. or produces papers which he identifies as being written by particular individuals. point to like other facts. is If this definition is maxim. definition given by Mr.. the Ph. constitute a to slander. Phillips sufficiently exemplifies " When a witness. sets the which was the point in issue. could be regarded as relevant to his sanity. The important assertion remember about them is that bare rele- must not. by the oath of some one who heard them." &c. it of it. states the language of others which he has heard. C.140 A DIGEST OF The it : [NOTES. By attaching to intelligible it becomes both and a There is no real difference between the fact that fact. 507-5 10. 313-408. &c." can only be the meaning given true. Wright v. &c. Ev. 489-573). " Hearsay no evidence. but not acted upon by him. 4 Bing. in issue. The question was. and any other Words spoken may and if convey a contract. they must be proved. he offers what is called hearsay evidence. . ss. be regarded as vant to the truth of the matter asserted. This matter (i may sometimes be the very matter in dispute. & E. threat. amount relevant or on these or other grounds. N. man was heard to say this or that. generally speaking. Tatham on the different occasions when that case came before the Court (see 7 A. supply the motive for a crime. implying that the writers thought him sane. whether letters addressed to a deceased testator. in the course of stating his what has come under the cognizance of own senses con- cerning a matter in dispute. 143). The doctrine of hearsay evidence was fully discussed by many of the judges in the case of Doe d. The case stringency of the rule against hearsay in a light forcibly illustrated which is by a passage in the judgment . correct.

the office the conduct who permitted a who. with this addition. are. & E. plies that hearsay is That passage imexcluded because no one " ought to be That no one shall "bound by the. these." All these matters are there- fore to be treated as irrelevant to the questions at issue. but implied in or mere statements.] 141 of Baron Parke effect : A. vessel. not on oath.act of a stranger. but the it in the concluding words of the passage extracted appears to be weak. not on the actual parties are not to vouched by litigant conduct of persons by whose acts the be bound." have ." He then goes through a variety of illustrations which to had been suggested in case ought argument show that in no such statements to be regarded as relevant to the truth of the matter stated.— THE LAW OF EVIDENCE. rule quite distinct. with reference to the matter in issue in each case. These observations make the reason suggested for . 385-8). (7 Notes. in it will to be executed by a sick conduct of a deceased captain on a question after of seaworthiness. Amongst following " The conduct of the : — family or relations of a testator taking the in his . mere instances of hearsay evidence oath. examining every part of a all embarked with his family. when deliberately considered. faith that they have acted upon the statements sending the on the of their being true by their letters to the testator. even when the circumstances were such as to give the strongest possible guarantee that such statements expressed the honest opinions of the persons others he mentions the who made them. absence as if he were a lunatic — absence to some high and responsible of a physician testator. of the truth of the matter in question. same precautions his election in his . to the following —He treats the letters as " statements of the writers.

Article This definition is intended to exclude admissions by plead- ing.) (Index. including i the matter which I omit. Ev. admissions which. . amount to estoppels. The importance of of shortening proceedings. and admissions made for the purposes of a cause by the parties or their solicitors. are considerations which probably Parke's justify the rule excluding hearsay. 15). The subject. or contained in a document. E. if so pleaded. but for would be but as regarded not only as relevant to particular facts. excludes the proof of matter which. 308-401.142 A DIGEST OF to [NOTES. or series of docuit when forms part of a discourse or conversation. and the importance of excluding opportunities of fraud. the to importance compelling people procure the best evidence they can. These subjects are usually treated . and T. its but Baron illustrait tions of operation clearly prove that in some cases it. It may be found by word Admis- referring to sions. NOTE (to X. power for make is a contract for another or commit a crime is which that other to be responsible it without his authority obviously reasonable. under the may is perhaps be well to observe that when an admission ments. good grounds for believing in their existence. but is not so plain for in- why A's conduct should not furnish it good grounds ference as to B's conduct. sort A vast variety of upon admissions of every Roscoe N. treated at length in Ph. though was not authorised by B. is ss. of by writers on evidence but they appear to me to belong to other departments of the law. P. cases 653-788.

must be proved as necessary for the full understanding of the admission. 320. C. 685. 687. 392 . but the judge or jury may of course attach degrees of credit to different parts of the matter proved. 6^ D. Ph. Taylor. and T. Roscoe. and the ingenuity of the Court was at least as much exercised in countermining their ingenious devices. R. L. 362-3. George. Ev. Ev. The ingenuity of equity draughtsmen was under that system greatly exercised in drawing answers in such a form that it was impossible to read part of them without reading the whole. As to admissions by privies. and of examining the parties directly. 7 T. B. L. 398. Bauerman v. This rule ss. 712. J. 663. 938. . (to Article 16). lost 655-665. 9 & C. this article i See also on the subject of 369. by parties. E. (from Greenleaf). As to admissions by parties interested. E. 71. 719. R. Alner v. N. per Blackburn. has made great changes in these matters. ss. 394-7.Notes. P. i Camp. has much of the importance which attached to actions could not be when parties to witnesses. is discourse or conversation. Radenius. see Spargo B. 669-671. is elaborately disIt it cussed and illustrated by Mr. and T. 5 Q. v. but could be bills compelled to make admissions by of discovery. Ph.] THE LAW OF EVIDENCE. series of documents. NOTE As to admissions XI. see i s. The power of administering interrogatories. Railway. Brown. . 143 so much and no more of the document. see Moriarty v.

as . B. Langslow. A's own statements are valuable they suggest an inference which he afterwards contests . Article This comes very near to the case of arbitration. but B's state- ments in relation to the subject-matter of the -message have.144 A DIGEST OF [Notes. (to Article 18). as such. Ev. 10 Ve. for a third exception (which could hardly occur now). Grant in Fairlie Hastings. to irregular arbitrations of this kind. because they are against his interest duty is but when is the agent's done. subject of the difficult relevancy of admissions by agents rendered by the vast variety of forms which for agency assumes. NOTE The is XII. and by the distinction between an agent the purpose of making a statement and an agent for the purpose of transacting business. & M. See. by agents v. i Ph. NOTE XIII. if no special value. NOTE (to XIV.A's. (to Article 17). B's words in delivering it If A sends a message by are in effect . 45. stated and explained by Sir \V. 689-90. See. Clay V. . M. 19). 383 T. E. principle as to admissions The 126-7. he has no special interest in the matter. ss.

40-3. 3 Russ. Ph. Ev. Cases are sometimes cited to show that if a person is examined as a witness on oath.] THE LAW OF EVIDENCE. Roscoe. N.. v. 20). the in the text in a different form. 365-436. Notes. for the last lines of the NOTE XVII. and s. 2 They in are. Ev. Best. for practical purposes. how- summed up R. Cr. his deposition cannot be ss. I4S NOTE (to XV. Joy on Confessions reduces the law on the subject to the shape of 13 propositions. ss. E. E. 720-3 . by Greaves. 430. first Den. 824 j 551-574. see ss. 326-8 . 809 . effect of all of which is given Many amounts cases have been decided as to the language which to an inducement to confess (see Roscoe. on Crimes. R. 22). P. Ev. E. the law as to Confessions. used in evidence against him afterwards (see T. NOTE (to XVI. 66. i Article On T. Baldry. 702. Article i See more on ss. ever. (to Article 23). 38-56 . Ev. where most of them are collected). Cr. which is the authority paragraph of this article. this subject in Ph. T. 401-423 796-807.

ss. 32 & 38 .). see . the cake in C's presence. is . 328. and put nothing bad in was admitted as against C. however. on Cri. NOTE (to I XIX. garded as obsolete. of the cases on the Roscoe. and see note to Price v. 42. 630-643. 2 Mo. N. 239-252. 644-652 Best. These statutes authorised the examination of prisoners.146 A DIGEST OF n. 3 Russ. &c. to dying declarations. 42. tried for poison- B's dying declaration that she it. s. Ev. . The 11 & 12 Vict. [Notes. ing A. P. relate to the examinations before magistrates of persons accused of crimes. C. and since that enactment it is scarcely possible to suppose that any magistrate would put a prisoner upon his oath. and 8i8. & Ro. Ev. 250-272 (perhaps the subject) 53. c. (to Article 26). . All these cases. 31-2. 407.. on the ground that the whole formed one transaction. T. E. E. 6. XVIII. i Ph. T. Best. under the statutes which were in force before 11 & 12 Vict. Lord Torrington. 501. 505 . by Greaves. also 3 Russ. The cases may therefore be re- NOTE As ss. L. but not their examination upon oath. Baker. Crim. Article Ph. R. R. A and B C was made were both poisoned by eating the same cake. Cri. 280-300. a curious case on this subject. fullest collection v. 27). prescribes the form of the only question which the magistrate can put to a prisoner . Starkie. c. Ev. 63 2 S.

Ev. See also Ph. Lee. subject will be found in S. P. This suggests that 28 ought to be limited by a proviso that a is declaration against interest not relevant if it was made by a predecessor it. ciple stated in the text.Notes. . and partly because I find a great difficulty in understanding the place which the rule established by them ought to occupy in a systematic statement of the law. best statement of the law upon this v. no doubt Jac. 252-280: T. N. and Young v. inasmuch as to enables a predecessor in make evidence article in favour of his successor. R. s. it 17 Q. 584. it is a declaration by an ecclesiastical corpora- tion or a member of an ecclesiastical corporation . Higham 318. E. U7 NOTE XX. in title of the person who seeks to prove unless sole. I A class of an of cases exists which have not put into the form article. partly because their occurrence since the com- mutation of tithes must be very rare. in particular. i L. (to Article 28). Best. The 2 ss. 2 & Wal. and the note thereto. but in many it cases it has been declared to title be anomalous. 537). The difficulty is to see why was ever the prin- regarded as an exception. Ridgway. Short There V. They are cases which lay down the rule that statements as to the receipts of tithes and moduses made by deceased tions sole is rectors and other ecclesiastical corpora- are admissible in favour of their successors. B. Clare Hall. C. 464.] THE LAW OF EVIDENCE. 602-629 500 . illustration It falls directly within and would appear to be an obvious of it . as to the rule (see.

see Ph. But the rule as to the endorsement of notes. The it v. Law was decided in and contains inter the following . is opposed to such a view. (^the latest E. R. 50-54 collection of cases). N.. is 155) .148 A DIGEST OF v. e.. s. alia It light throws on the history of the 1813. Upon 1 this subject. than by an attempt to recollect innumerable cases.g. Sparke is remarkable for the of Evidence. J. besides the authorities in the text. aggregate (see Short Lee). ss. the branches of the rule. is it not within the branch of illustration because his " is but the opinion of the arbitrator. (to Article 30). They are collected in the works referred to above. as to the receipt of a tithe or modus. bonds. Some countenance for such a proviso may be found Gleadow it first in v. & E. 497.. P. award. applied case of Weeks to a firm grasp of principle. states the rule in Atkin. but the detailed application of such a rule as this learnt better by experience. but they appear to me merely to illustrate one or other of it. &c. the terms in which Bayley. distinctly &c. T. [NOTES. Best. and in the circumstance that when obtained currency the parties to an action were not competent witnesses. not upon " own knowledge {Evans v. 543-569. Eees. NOTE XXI. and not last to extend or vary An {b). 169-197. A great number of cases have been decided which fall as to the particular documents. Ev. 10 A.. within the rule given in the text.

419. Cam. Weeks v." Berkeley Peerage Case. as no jury would ever find that a public right of living way existed.Notes.D. the practice of the Oxford Circuit. and of the judges who have presided amongst so at various times on those circuits." This seems superfluous. of what he had often heard laid down in the West. being different..] THE LAW OF EVIDENCE. that a foundation must be laid for evidence of this sort " by acts of enjoyment within living memory. " It is 149 curious remarks by stated to be the habit and practice of species of evidence different circuits to admit this upon such a question it as the present. My learned predecessor. how very modern in much Law of Evidence Le Blanc. on the strength some deceased person had said that right. Vicary Gibbs) flatly He spoke quite right as a Western Circuiteer. This shows is. the Attorneyobjected to it. That certainly cannot make the law. Lord Kenyon. certainly held a different opinion. " So it in the when was pro- posed to read General (Sir this deposition as a declaration. Sparkes. 1811). but shows at least. from the established practice of a large branch of the profession. once was such a . Lord Eldon said. of the A. what has been the prevailing opinion upon this subject large a class of persons inteIt is stated to rested in the due administration of the law. says. of which he was a member. and never heard doubted" (4 . which had not been used in of a there report that memory. J. have been the practice both of the Northern and Western Circuits. Lord EUenborough.

306-8 . ss. T. 49-58. NOTE XXIV. E. The law is relating to the relevancy of judgments of Courts of Justice to the existence of the matters which they assert made it to appear extremely complicated is by the manner in which usually dealt with. which established the . &c. NOTE (to XXII. R. ss. 471 (see more particularly pp. Shields Boucher. Ev. As to declarations as to the place of births. (to Articles 39-47).. 434-447 . 197-233. and following. NOTE XXIII. 525-9. the The Berkeley Peerage Case (Answers of the Judges to House of Lords). i De G. Article See I Ph. Best. 238. third condition given in the text and Davies v. 401. Lowndes. in which of family pedigrees is the question fully discussed) are specially important on this subject. BuUer. & G. See also i Ph. N. 4 Cam. Ev. 633. The method commonly . N. 6 M. (to Article 32). 49-50. P. see v. P. 571-592. E.I50 A DIGEST OF [Notes. 31). & S. T.

Roman law. and in the note to the 2 S. These and 2 Ph.] THE is LAW OF EVIDENCE. must and does prove what effects of different sorts of actually effects. Thus the all leading principle stated in article 40 equally true of it judgments Every judgment. . differ as though the judgments widely as the effects of different sorts of deeds. and T. own or any other also the question of the effect of the pleas oi autrefois autrefois convict. is could The text make confined to as complete a statement as I of the principles which regulate the relevancy of judgments considered as declarations proving the facts which they use to be assert. and the question of the Justice. and never clearly defined in reference to our system) acquit. effect given to the judg- ments of foreign Courts of which would seem more properly to belong to private international law. Thus the the subject. question 151 employed to mix up the of the effect of judgments of various kinds with that of their admissibihty. which belongs rather to the law of pleading than to that of evidence .Notes. whatever may be is the effect or the made alike. 777-880. other matters are treated of at great length in 1-78. but not belonging to. as commonly treated. C. Ev. Best 588-595) treats the matter more concisely. ss. but to criminal procedure the question of estoppels. and which clearly belong not to . and judgments (terms adapted from. L. 1480-1534. evi- dence. E. . of those facts when proved. Duchess of Kingston's Case in (ss. whether it be in rem or inter partes. subjects which appear to belong to different branches of the law. introduces into Law of Evidence an attempt to distinguish between in personam or inter partes judgments in rem.

299-304. One consequence . R. N. Ph. R. 414. 7 A. ss. that as a statement affirming the truth of the subject-matter of the opinion. The of Godard Gray. On ss. L. evidence of opinions. NOTE XXV. see Best. I L.). 520-8. NOTE (to . L. 6 Q. E. 502-8. is 193-4. in the note to the Duchess of Kingston's Case. Baron Parke. Tatham. and 4 Bing. 511-17. 257-263. The subject considered at length in of the view R. R. There a convenient cases v. 325-336 is . Chapter ss. T. 4 E. & C. P. referred to above in Note IX. but as a mere question of evidence.). in the extracts there given. and Castrique Imrie. There has been much controversy as which foreign effect to the extent to ought to this be given country. ss. C. to the judgments of in Courts in and as to the cases which the Courts will refuse to act upon them differ . are the latest leading cases on the subject. list of the cases in v. (to Chapter i V. N. B. V. N. A. 201-3. P. & I. L. 139. The leading case on the subject Doe v. treats an expression is. they do not judgments. 489. of opinion as hearsay. from English The cases on foreign judgments are collected 2 S. 1273-1281. E. 520. R. Best. Rowton. VI. is 813-845. Ev. 313 .152 A DIGEST OF [NOTES. Cr. Ph. & E.See I XXVI. 3 Russ. C. T.

is. nor is the witness ever warned that he prisoner's reputation. ss. 58). that to prove it. P. which is' much to the same effect. character The What is question always put to a witness to the prisoner's character for honesty.Notes. 4-20. Ev. enumerate so notorious in it or so distinctly recorded by pubhc authority. where the subject list is gone into more minutely. as everything which is practically impossible to itself. morality. or humanity ? as the case is may be . It A convenient also given ss. who knowledge has an excellent been a receiver of stolen goods character for honesty. The case seldom if ever acted on in practice. may be doubted whether an absolutely complete list it is could be formed. NOTE XXVII. (to Article The list of matters judicially noticed in this It is article is not intended to be quite complete. is 153 of the subject taken in that case perfect truth swear that a that a witness to his may with man. has he has had the good luck to conceal It is the from his neighbours. It to confine his evidence to the would be no easy matter to make the common run of witnesses understand the distinction. E. would be superfluous to the Paragraph (i) is drawn with reference . his crimes ful if for years. N. in R. I Ph.] THE LAW OF EVIDENCE. essence of success- hypocrisy to combine a good reputation with a bad disposition. and according to R. Rowton. 88-92. 458-67. compiled from is and T. v. the reputation is is the important matter.

proved by oral evidence. were to be proved under that who died fifty years ago. must. except in excepted cases. died without issue. fusion of Law. Juris- diction effected NOTE XXVIII. Owing to the ambiguity of the word " evidence. and sometimes is to signify the testimony by which a fact is proved. article 3 1 For instance. that A's grandfather C had own told B that D. Cases . A. who died 100 years ago.'' which signify the effect of a fact is sometimes used to when proved. C's elder brother. and Testamentary by the Judicature Act. if it be proved by direct evidence. the expression " hearsay no evidence " has important mean- many ing is meanings. Admiralty. Its common and most the one given in article 14. they was the very point in must be proved in precisely the same way. said that he had heard from his father B. Article 62 expresses the is same thing to from a different point of view. which might be otherwise expressed by saying that the connection between events. and ceptions subject no exthe whatever. and reports that it is they have happened. A's statement ears. Equity. (to Article 62). his heard him make If (as in the case of verbal slander) the speaking of the words issue. It asserts that whatever may be it relation of a fact to if be proved to the fact in issue. is generally so remote that expedient to regard the existence of the reports as irrelevant to the occurrence of the events. with it. must be proved by some one who.154 A DIGEST OF [Notes.

This is probably the most ancient. 452-3. P. though he does not recollect all that they said. NOTE XXX. Collins. more particularly in it Dwyer v. may perhaps seem to be exceptions to but they are not so. . speak well of him. and he does . as far as it extends. The . 419-426 is fully R. and 2 Ph. N. (to Article 68). . When a man swears that another has a good he means that he has heard many people. Ph. ss. T.] THE is LAW OF EVIDENCE. (to Articles 69 & 70). The principle of the rules explained in the cases cited in the footnotes. E. For these rules in greater detail. 272-289 all .Notes. not. NOTE XXIX. Ev. 8 & 9. see i . Ev. 647-8). 7 Ex. the most inflexible of the rules of evidence. and all is. though he does not particularly recollect what people. have the oppo- In that case is is held that the object to of notice to produce "to enable the party if document in Court. character. to enable his nent to give parol evidence to exclude the all argument that the opponent has not taken reasonable means to procure the original. 155 in which evidence given of character and general opinion this rule. which he must do before he can be permitted to make use of secondary evidence " (p. 639.

38a . fo. The rule. ch. R. 8 Ex. if better than any other man that is it by mere force of speculative reasoning might be shown that the application of such and such a rule would be productive of such and such an . the attesting witnesses to deeds (if a deed catne in question) would seem to have been with. the jury. said. ss. ." In " Whyman shall v. summoned and to have acted as a Bracton. you must first call the subscribing witness particular case and it is not to be varied in each its by trying whether. it may is not be productive of some inconvenience. in a Court of Justice. P. 147-50. this is certainly one that as fixed. and therefore ought not to prevail but if any general rule ought to is prevail. inter se that the The parties are supposed to have agreed deed not be given in evidence without his [the attesting at- witness] being called to depose to the circumstances its tending execution. is universal that . following characteristic observations by Lord Ellenborough 353 : occur in R. sort of assessors to. Best. ss.156 A DIGEST OF & [Notes.' rule. xxxii. &c. A lawyer who with these rules would be no without them. . Fortescue de Laudibus. in application. 242-261. 807.B. therefore. formal. inconvenience. Testmoignes. See as to this. C. and universal as any that can be stated Carth. with Selden's note and cases collected from the tit. when the jury were witnesses as to matter of fact. E.. Year-books in ' Broke's Abridgement. N. 4 M. 220. T. Harringworth. For the present and the exceptions to see i Ph. S. 1637-42. Pollock. Ev. it. " v. for then there would be no such thing as a general •well stored rule.'' In very ancient times.

The of • practical importance. position for which little is cited. Roberts. NOTE XXXII. N. that it is necessary.' 11-20.] THE LAW OF EVIDENCE. R. that upon prosecutions for perjudicial upon any document the seem to original must be produced. They show is pjiaduction of the original in such cases the usual course. The authorities given me hardly to that the bear out either of these statements. 2 Ph. and 28 & 18. The learning as to exemplifications and office-copies will : be found in the following authorities Evidence. 1380-4. i & 7. the original record must be produced if it is same Court. 228. Phillips (ii. 16 Ea. old rule which applied to attested documents was restricted to those required to be attested by law. Article Mr. (to Articles 77 & 78). it too wide for the promatter. s. and very conveniently) P. is The case of Lady is Dartmouth v. that upon a plea of nul tiel in the record. (fully ss. Taylor jury assigned (s. Nisi Starkie. ss. 256-66 . 1379) says. E. . by 17 29 Vict. The second . 196) says. and following. & 18 125. Ev. 75). c. Gilbert's ' Law of Prius. however. 196-200 T.Notes. all 157 The Vict. 334.'l think. 112-15. but not. Mr. NOTE (to XXXI. BuUer. c. 26.

though the contract makes no such reservation. and they pression. (to Article The distinction between this and the following article is. or any of its divisions. subjects are so closely con- nected together. 39. 90). to exemplifications not under the Great is remarkable that the Judicature Acts give no Seal to the Supreme Court. that they are not usually treated as distinct but they are so in A and B it make a contract of marine insurance on goods. also allows the technical term to be explained. paragraph of 6 founded on Appleton v. They ex- leave unnoticed a condition usually understood in the busi- ness of insurance. and thus for another far it decides that for one purpose the document shall. Braybrook. 158 A DIGEST OF article 77 is [Notes. evi- The law does not permit oral evidence to be given of the It exception as to the particular ship.. Seal. does permit oral dence to be given to annex the condition . They verbally agree that the goods are not to be shipped in a particular ship. and reduce to writing. As & S. it M. or the High Court. The two fact. and that it shall n'ot. the make is use of a technical meaning of which not commonly known. NOTE XXXIII. and in doing . be regarded as exclusive evidence of It the terms of the actual agreement between the parties. that article 90 defines the cases in which documents are exclusive evidence of the transactions which they embody. while article 91 deals with the interpretation of documents by oral evidence.

T.Notes. I think. 332-424 (very shortly . (4).] THE LAW OF EVIDENCE. occupy a very large space will . to understand. P. be found in Ev. rules. the final and considered determination of the parties to The second depends on a consideration of the imperfections of language. it which is founded on the case of Goss to be observed that the paragraph is purposely so drawn as not to touch th6 question of the effect of the Statute of Frauds. close on one side or Hence all the exposition of these and the abridgment of the illtistrations of them 2 Ph. would not have the . is V. in the different text writers. . or to remember to apply. 226-229 R. which have occurred in practice. Lord Nugent that effect of if by reason of the Statute of Frauds the it substi- tuted contract could not be enforced. N. waiving part of the original contract but it seems the better opinion that a verbal rescission of a contract good . As to paragraph Lord Nugent. The first two operations are obviously formance and their proper per- depends upon different principles. 159 so it interprets the meaning of the document different. (an immense list of cases). for which reason a writing pre- sumed as a general rule to embody it. 648-731 . and of the inadequate manner in which people adjust their words to the facts to which they apply. 17-35. The depends upon the principle that the object of reducing transactions to a written form is to take security against is bad faith or bad memory. difficult either to state. The rules themselves are not. Best and imperfectly). It was held in effect in Goss v. ss. 1031-1110 Star. but they are by no means easy inasmuch as from the nature of the case fall an enormous number of transactions the other of most of them. . E. itself. They ss.

135. C. The the general authorities for the propositions in the text are as those specified in the last note . are not questions of the Law NOTE XXXIV. Perhaps the subject-matter of strictly this article it is does not fall within the Law . R. Article 91. 598-628. (to Article 91). L.i6o A DIGEST OF [Notes. indeed. and 'Pollock on Contracts. As to paragraph (5) a very large collection of cases will be found in the notes to Wigglesworth sideration of v. A contract by deed can be released only by deed.' 411. fall and this {4). See Noble v. on examination. under the Statute of Frauds would be good. of exchange. note L. but as it generally con- sidered to do so and I has always been treated as a it branch of the subject. 2 Ex. will be authority found. and what are bill contradictory the contract formed by subscribing a of Evidence. have thought best to deal with it. For instance. Ward. same but the great on the subject is the work of Vice-Chancellor Wigram on Extrinsic Evidence. or the contract between an insurer and an Underwriter. but the con- them appears to belong rather to mercantile law than to the tion Law of Evidence. to. case also would within the proviso to para- graph The cases given in the illustrations will be found to mark sufficiently the various rules stated. i S. Dallison. of Evidence. (6). to differ from the its six propositions of Vice-Chancellor Wigram only in arrangement and form of . the ques- what stipulations are consistent with.

and many was circum- stances pointed to the conclusion that the person •the whom Charles testator wished to be his executor Charter. on examination. but expressed an opinion (P- 319) if it were necessary. is not restritted to It will. I think." to neither.] THE and in LAW OF E VIDENCE. and in cases falling under paragraph 7. but with the actual decision in Doe v. 2 P. rejected (paragraph 7. which is inconsistent not only with the reasoning in the judgment. Charter. because part of the language employed (" my son Charter ") applied correctly to each son. and the remainder. Hiscocks. When effect. such cases as Doe (illustration Hiscocks (illustration k) and Doe V. It is difficult to justify the line drawn between the rule as is to cases in which evidence of expressions of intention it is ad- mitted and cases in which tions (k). and paragraph 8. might be evidence of declarule rations of intention laid admitted under the down by Lord Abinger in Hiscocks v. R. wills. be found. William Forster Charter and Charles Charter. It is also M . the circumstances of the case. indicated & D. all Lord Penzance not only admitted evidence of that. Needs m) produce a singular is The by the this vagueness of the distinction between them case of Charters. " Forster. placed by side. side it). Hiscocks. In case the testator Forster Charter appointed "my son •Forster Charter" his executor. illustra{m). the fact that it ^^ ] . 315. This mode of construing the rule would admit evidence of declarationsof intention both in cases falling under paragraph 8. that every used as an case cited by the Vice-Chancellor might be illustration of one or the other of the propositions contained in it. L. illustration v.Notes. He had two sons. 16 1/ expression.

" Evidence. and to consider all material facts and circumstances to be known what to the testator with reference to will. if he had recollected the circumstances of the case the wish to avoid the evil of permitting written instruments to be varied by oral evidence . R. The strictly . 160.1 62 A DIGEST OF Notes. taken to have used the words in the is and then to declare the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. But the Court to construe the will as will made by if the testator. not to is is make a for him. And the consequence sometimes is that he uses words which express an intention which he would not have wished to express. the Court entitled to put itself in the position of the testator. where the rule stated by Blackburn. and Doe After quoting v. may be presumptuous to express a doubt whether fulfil the conflict between a natural wish to the intention which the all testator would have formed . in many cases the testator has. is J. for the moment. forgotten or overlooked the material facts and circumstances which he well knew. 8 Ex. and therefore it bound to execute his expressed intention. and would have altered if he had been is reminded of the facts and circumstances." are. Wigram on : Extrinsic Hiscocks. inconsistent with the principles of the judgment in the later case oiAllgoodw. and the wish practice to give effect to wills. L. even that he has there great reason to believe by blunder expressed what he did not mean. it Conclusive as the authorities upon the subject not. perhaps. as follows : — " In construing a which he is is will. Blake. has not pro- duced in an illogical compromise. he adds " No doubt..

refer. How- ever accurate and detailed a description of things and persons may that persons be. the result of which was to give a a person whom to the testator had no wish to and who was not either named or described in his appears to me be a practical refutation of the prinit is ciple or rule on which based. Such a decision as that in Springer legacy to benefit." If the question " What did the testator wish ? " why should the Court refuse M 2 . must some extent be interpreted by surrounding circumstances. and to hold void for uncertainty every bequest or devise which was shown to be uncertain in its application to facts. affect the if if more evidence than this is the Court may look at circumstances which this in- probabihty that the testator would form tention or that. but admitted. of intention both in cases falling under paragraph and in cases falling under paragraph 8.Notes. "two" means "three. v. or to exclude such evidence in both classes of cases. I think. " What did the testator say ? " why should the Court look at the circumstances that he lived with Charles." like saying that is.] THE LAW OF EVIDENCE. Gardiner. and therefore in every case whatever. why should is declarations of intention be ex- cluded ? If the question. will. every fact must be. oral evidence is always wanted to show and things answering the description exist. allowed to be proved to which the document does. to Of course every document. and was on bad terms with William ? to How can any amount of evidence write " Charles '' show that that the testator intended to show what he did write means is "Charles"? To say that "Forster" means "Charles. admit declarations 7. would be either to 163 logical course. whatever. or probably may.

Star.364. The latter part . and his bequest should be pro tanto void. rests. It cannot be doubted. " What would he had to deliberately used this unmeaning words ? " The only answer would be. might show that it a verbal agreement had been incorporated with which to be would remove the motive. (to Article See 2Ph. Various cases are quoted by these writers in support of the first is part of the proposition in the article . (to Part In this III. as stood. for instance. v. a party to it. to look at his declarations of intention ? And what meant if third question can be asked ? The only one which can be the testator have sug- gested is.1 64 A DIGEST OF [Notes. because . s. of the article must. T. NOTE XXXV. and the following chapter many matters usually introduced into treatises on evidence are omitted. on no authority it be law.Ev. 92). and which was intended carried out. supplied a motive for an alleged crime. so far as I know. accused of that crime. though not legally binding.). They settlement cases. E. (from Greenleaf). 726. Cheadle the only one which appears to are all me to come but quite up to it. 1051. he would have had no meaning. NOTE XXXVI. and would have said nothing. I think. but R. that it if a con- tract in writing.

I have embodied in Chapter XIV. facts. 165 they appear to belong either to the subject of pleading. though has. . 555. more or less numerous and impor- which can be understood only in connection with those branches of the law. Again. 3 Russ. on Cr.over these. What doubts are reasonable in criminal cases ?" belongs to the Criminal Law. NOTE XXXVIL (to Article 94). a bearing on the proof of ordinary " The question. or to different branches of Substantive Law. and those estoppels only which arise out of matters of fact. . are tant. many of the incidents of the contract of all Passing . those presumptions only which bear upon the proof of facts likely to be proved on a great variety of different occasions. evi- the rules as to the burden of proof of negative averments in criminal cases (l Ph.] THE LAW OF EVIDENCE. Such are the presumptions as to the ownership of property. The presumption of innocence belongs principally to the it Criminal Law. Ev. as to insurance. as distinguished from those which arise upon deeds or judgments. For instance. as the illustrations show. &c. in every branch of Substantive Law there presumptions. as to consideration for a bill of exchange. 276-9) belong rather to criminal procedure than to dence.Notes.

ss. &c. of the case founded on the application of this rule to the of a negligent act causing fraud. The T. (to Articles 102-105). omnia esse . Ev. and applied to a great variety of different subject-matters. the application of these rules has involved a good deal of detail. 778. The second paragraph The rule.. 350-3 T. 88-90. like all 124. 179. preis sumptions. Sears. to As they may be applied infinitely various in a great variety of ways and circumstances. rite acta. Ev. as expressed. 480. 543Article 102 contains the rule in Pickardv. s. is Best. 474. . E. 6 A. 353. as interpreted and limited by Parke. v. I Ph. The rules them- selves appear clearly enough on a careful examination of the cases. cases is The latest and most extensive collection of to be seen in 2 S. (to Article ioi). This. E. See. 776. 6 Bing. and many others are . referred to in the text too. s. a very vague and fluid rule at best. where the cases abstracted. Best. in Freeman Cooke. as distinguished from estoppels by deed and by record. &c. i66 A DIGEST OF LNotes. C. NOTE XXXIX. These articles embody the principal cases of estoppels in pais. & E. ss. first part of this article is meant to give the effect of the presumption. L. &c. 85 1-880. article is 174. B.. i Ph. NOTE XXXVIII.

though not always on the same ground. 7 of Ireland Swan . 7 H. It would be difficult to find a better illustration of the rules of evidence. in which to. as circumstances require than is afforded by a study of these cases. Grote and its authority has always been upheld. 253). the cases are referred (4 Bing. Evans.). which was before three Courts. NOTE (to XL. important and extensive branch Law of Evidence. 5 H. (N. All of these refer to Young v. Exchequer was reversed and Halifax Guardians all v. and as to the proof of some particular issues. 167 is collected from a comparison of the following cases v.S. B. 603 where the judgment of the majority of the Court of . are nearly the only rules of evidence treated of in the older authorities. 10 Ex. The law of the as to the competency of witnesses was formerly Indeed. 2 H. & N. gradual way in which the judges construct it. petency of witnesses. The history of . v. British and Australasian Company. Bank see 175. R. or nearly the most. Wheel- wright.) 448 . 389 .] THE LAW OF EVIDENCE. & C. 183. as to the proof of documents. Great is part of Bentham's 'Rationale of Judicial Evidence' directed to an exposure of the fundamentally erroneous nature of the theory upon which these rules were founded and his attack complete that it upon them has met with a success so nearly has itself become obsolete. L.. Chapter XV. rules as to the incom- the most.: . L. C. Notes.

to be found in Mr. length in Best. part i. E. the subject ch. . E. incompetency was removed as to the parties in but not in criminal cases. If a person who and advisedly rejects all belief in fortiori. 132-188. too. NOTE XLI. book i. 148 i Ph. The concluding words of the last paragraph are framed with reference to the alteration in the law as to the competency of witnesses made by 32 & 33 Vict. 1 68 A DIGEST OF is [Notes. T. ii. a state is a competent witness. c. The statute referred to would dehber- seem ately to render this unnecessary. a God and a future child who has re- ceived no instructions on the subject must be competent also. As to paragraph T. E. The of practice of insisting on a child's belief in punishment in a future state for lying as a condition of the admissibility its evidence leads to anecdotes and to scenes little cal- culated to increase respect either for religion or for the administration of justice. i 177-81. 68. civil. 146-165. 2. NOTE At XLII. Best's work. 7 . 1240. Ev. ss. 1210-57. As to the old law. T. see Ph. . Common Law the parties all and their husbands and wives This were incompetent in cases. s. 1-104. and R. (to Article 107). 457 1 241. See. The authorities for the first paragraph are given at great ss.. see Best. 4. Ev. N. P. too. (to Article 108). 2 Ph. See. s. Ev. s. s.

which see R. The words Vict. respectively. c. their husbands and by 16 & 17 Vict. indeed. 100. s. 169 by 14 wives. These enactments.. &c. c. 2 . inhabitants and overseers are incompetent. c. were rendered obsolete by 14 & 15 Vict. 3 expressly excepts is criminal proceedings. s. The text thus represents the effect of the Common Law as varied by four distinct statutory enactments. The result would seem to be. 15 Vict.Notes. were made competent to give evidence in prosecutions of parishes for non-repair of highways. By 5 & 6 Will. bridges. IV. & 99. inhabitants. 3 E. and as to ss. this was extended to some and other cases by 3 & 4 Vict. the Courts civil should hold that they are substantially to v. i. c. as Russell. and a prosecution for a nuisance such a proceeding. that in cases as to the repair of highways. s.. which made raised parties admissible witnesses. Probably was done under the impression that the enactments c. 942. but their incompetency was removed by 6 & 7 Vict. s. relating to adultery 3. 83.] THE LAW OF EVIDENCE. proceedings. 85. c. c. have been repealed by 37 Statute this & 35. But sec. 1874). c. . however. 50. A question might be upon the effect of this. which is the authority for the next article. and 2 6. as sec. &c. 38 Vict. 99. & B. unless. were repealed by 32 & 33 68. 96 (the Law Revision Acts. 2. Persons interested and persons who had been convicted of certain crimes were also incompetent witnesses. 2. c. 2 expressly reserved the Common Law as to criminal cases and pro- ceedings instituted in consequence of adultery.

before whom the riot took place in court at v. These cases do not appear rule. gave evidence. 740. 139. cases cited and discussed in Best. Maidstone. a all solicitor as an advocate might. Cases. R. Justice Hayes at York. T. what was said before me when sitting as an ar- The trial took place before Mr. 184-6. . not at improbably. For instance. I have referred to In the trial of Lord Thanet. In addition to those cases. for an attempt to rescue Arthur O'Connor. it is to show more than a for obvious reasons improper that those who con- duct a case as advocates should be called as witnesses in it. Serjeant Shepherd. be the ing witness to a deed or will. articles are founded are only Nisi Prius decisions but as they are quoted by writers of s. reference trial may be made to the of Home Tooke for a libel in 1777. 859). might occur in which it might be absoengaged attest- lutely necessary to do so. I Lord Thanet. when he proposed that. eminence them. in 1869. have myself been called as a witness on a trial for perjury to prove bitrator. As of a to the case of an advocate giving evidence is in the course trial in which he professionally engaged. T. T. 27 S. 836. one of the special commissioners. (to Article iii). see several ss. NOTE XLIir. E. Ev. 20 S. The cases on which these . as to call the Attorney-General (Lord Thurlow). (i Ph. however.lyo A DIGEST OF [Notes.

E. E. 105-122 . Ev. Best shows clearly that none of the decided v. 837-8'. 40. except Butler Nally. cases are directly in point. it 581. i and ss. P. question whether clergymen. Ph. at R. cited Moore (Macwas 253-4). 832-9 Best. & K. 171 (to Article 115). been text solemnly decided in England. NOTE The XLV. : report of his argument in these words " The prisoner being a Papist. ss. Mr. This article sums up the rule as to professional is communiT. though writers that they can. 109 T. It is so well established and so plain It is in itself that requires only negative illustrations. M.Notes. 190. Starkie. Sparkes.] THE LAW OF EVIDENCE. which v. N. and particularly whether Catholic priests. Ph. and a pamphlet was written to maintain the existence of the privilege by Mr. stated at length I by Lord Brougham in Greenough v. by Garrow (i Du The Barri Livette before Lord Kenyon is Pea. cations. Gaskell. length in Best. Baddeley in 1865. to much . the same effect in s. NOTE XLIV. Roman can be compelled to disclose confessions made to them See professionally has never it is . The question is discussed some 583-4. (to Article 117). 98. and possibly R. every part of which explained at great length. 108). had made a confession before a Protestant clergyman of the . in arguing v. Ev. i stated by the ss.

253-4). An it exception to the general rule has advisers. [Notes. and it does not appear how the obwas taken. or whether the matter was ever argued. Michael Smith) decided the case of Butler It Moore in 1802 (MacNally. legal constitutional matter which he said he knew. The Judge said. and that it religion has never been taken away. This (Sir is the ground on which the Irish Master of the Rolls v. but has grown up by the practice of the Courts. modern Law of Evidence is not so old as the Reformation. It came into existence at a time when excepI think that the tions in favour of auricular confessions to priests Roman Catholic is were not likely to be made. " It was the undoubted." it The of no value. The general rule that every person must testify to what he knows. report J." I admitted the evidence there Mr. is said to have observed: "I should have paused before admitted. but there is been established in regard to legal nothing to show that extends to clergymen. and by decisions in the course of the last two centuries. administer interrogatories to a was a demurrer to a rule to Roman Catholic priest as to professionally only. crime for which he was indicted and that confession was permitted to be given in evidence on the trial" (before BuUer. resting as does on Peake's note of Garrow's statement of a case in which he was probably not personally concerned jection . if at all. however. Baddeley's argument lege is in a few words. Ev. and it is usually so stated as not to include them. is "and he was convicted and executed. that the privi- must have been recognised when the Roman Catholic was estabhshed by law.).172 A DIGEST OF . Lord Kenyon. .

Pitt. chap. length in 2 Ph. 3 C. v.. (to Articles 126. for obvious reasons.] THE LAW OF EVIDENCE. considered sufficiently strong." being conducted L." The analogy.Notes. J.R. 456. Alder- son. . s. was candidly admitted. to call who has a cause depend- upon a fellow-subject to testify . Cr. that no were relied special could be shown in the present instance. thought (rather feeling than would seem as a matter of good as a matter of positive law) that such evi- dence should not be given. Griffin. B. 128). . & P. 219. down s. &c. R. subject discussed at T. pt. Thus but Best. &c. 518). p.. expressed the strongest disinchnation to compel such a disclosure. In respect to leading quesa question for the presiding is tions. for one. to matters almost too famiUar to require authority. as no one can watch the proceedings of any Court of Justice without seeing the rules laid is . said. Ev. was rrot upon. what he may is know make of the matters in issue and every man bound to the discovery. " I. too. N. will never to disclose if compel a clergyman . Ca. 6 Cox. 2. and analogous cases and principles alone however. Best. in them continually enforced. said. C. 127. The x. unless specially exempted It and protected exemption by law.P. communications made to him by a prisoner I shall receive he chooses to disclose them {obiter. them in evi- dence" in Broad it v. see. Several judges have. E. realm 173 right of every subject of the ing. 182. &c. it is 631. " It is entirely judge whether or not the examination fairly. 1258. NOTE These articles relate XLVI.

147. After autho- rising. thereby exposes himself to having every transaction of his past life. questions as to the credit of the witness. inquired into by persons who may wish by doing inflicted. in which the fortune and character of other persons might be in- volved ? If this is the law. is called to prove a minor little not really disputed. . extending over many and tending to expose transactions of the most delicate and secret kind. (to Article 129). This article states what is it now the well-established practice of the Courts. however private. Act proceeds as follows 148 : " If any such question relates to a matter not relevant to the suit or proceeding. it should be altered. would to under pretence of testing his credit. NOTE XLVII. a medical fact man were be lawful. Suppose. and never was more strikingly the illustration. in a case of importance. for instance. called to prove the that to a slight wound had been it and been attended by him. compel him to series of questions as to his private years. The following section of the Indian Evidence Act (i of 1872) may the perhaps be deserving of consideration. answer upon oath a affairs. to serve the basest purposes of fraud or revenge so.— 174 A DIGEST OF [Notes. in sec. except in so far as it affects the credit of the witness by injuring his character. illustrated than in the case referred to in But the practice which it represents is modern and it may it perhaps be doubted whether upon solemn argument would be held that a person who fact. in sec. the Court shall .

or. fit. i/S decide whether or not the witness shall be compelled to answer is it. : 125. if it thinks it. but in case the witness shall. " (3) Such questions are improper if there is a great dis- proportion between the importance of the imputation against the witness's character evidence. c. contradict him by other evidence. to be represented by this article are as follows sTiall — A party producing a witness his credit not be allowed to impeach he may. the two sections of 17 & 18 Vict. the : Court have regard to the following considerations if " (i) Such questions are prbper they are of such a nature that the truth of the imputation conveyed by them would seriously " (2) affect the opinion of the Court as to the credibility of the witness on the matter to which he if testifies. (to Article 131). prove that he has made at other times a statement inconsistent with his present testimony. in the opinion of the judge. and may.— Notes. or of such a character that the truth of the imputation would not affect. by leave of the judge. or would affect in a slight degree. Such questions are improper relates to matters so the imputation which they convey remote in time. but .'' made his and the iniportance of NOTE The words of meant 22. XLVIII. the opinion of th. prove adverse. warn the witness that he not obliged to answer shall In exercising this discretion.e credibility the Court as to of the witness on the matter to which he testifies.] THE LAW OF EVIDENCE. by general evidence of bad character .

the circumstances of the supposed statement." suggest that he cannot do so unless the judge opinion. The this. in the opinion of the judge. (N. does not distinctly admit that he made such statement. contradict him by other evidence. made by him relative to the subject-matter of the and inconsistent with his present testimony. Williams. sufficient to designate the particular occasion.176 A DIGEST OF [Notes. 23.). J. is of that This is not. the law. but before such proof can be given. V. sections are obviously ill-arranged 22 so worded as to suggest a doubt whether a party to an action has a right to contradict a witness called by himself whose testimony is adverse to his interests. The words " he may. .S. must be mentioned to the witness. the circumstances of the supposed statement. and never was. before such last-mentioned proof can be given. says " The law was clear that you might not discredit your . own witness by general evidence of bad character but you might. prove adverse. 803) : " It is impossible to suppose that the Legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own witness by other evidence relevant to the issue—a right . and he must "be asked whether or but apart from made such is statement. " and he adds (p.. B. upon cross-examination as to a former statement cause. nevertheless. p. proof may be given that he did in fact make it . s. sufficient to designate the particular occasion. If a witness. must be mentioned not he has to the witness. Eccles. and he must be asked whether or not he has made such statement. in case the witness shall. 802. contradict him by other evidence relevant to the issue . In Greenough : 5 C.

the head "Evidence" Chitty's 'Statutes' The number ' referred to under that head in the Index to the Revised N . according to the vifew taken of the extent of the subject. the reply. & Bing.: Notes." have omitted it. For many years before the of 1854 it Common Law Procedure Act Caroline's was held. They would appear c. 18. 286-291)." it. unless the effect of this rule in criminal cases as to was that a witness could not be cross-examined and gave the prosecuting counsel what he had said before the magistrates without putting this in his deposition. 806). & to have been superseded by" P. Upon this subject rules of practice were issued by the judges in 1837. regarded either as voluminous or not." Perhaps On to consider the second branch of the section as^ltogether superfluous this authority I and useless (p. NOTE The Statute Law relating XLIX.. to the subject of evidence may be.] THE LAW OF EVIDENCE. and on the part of those who adopted is . that a witness could not be cross-examined as to statements writing had been first proved. the 28 Vict." said of the 22 nd section Lord Chief Justice Cockburn "There has been a great blunder the better course in the' drawing of it. 177 not only establishedty authority. when the Prisoner's Counsel Act The rules are pubUshed in 7 C. The number of in statutes classified is under 35. but founded on the plainest good sense. 676. made The in writing.. came into operation. in accordance with Queen Case (2 Br.

c. 2-4. 19 s. are the ten following Acts 46 Geo. IV. 7 6 & 8 Geo. refer to pleading and practice rather than Such evidence. 9 Geo. Statutes is 39. III. 24 6 & . 19 9 IV. fix him with a . s. 4 (article 121) & 8 Will. 12 (article 38). 6 (article 34) c. qualifies c. s. or relate to the administra- tion of interrogatories. 11). 93 (article 122). c. . relate only to the proof of particular documents. i. s. 8 & . : 34 c. . s. in the sense in which I employ the word. appeared important. j 30 & 31 Vict. for various reasons. are the Acts which enable evidence to be taken on com- mission if a witness is abroad. 42 (see article 28) 11 & 12 Vict. 42. IV. see article 120).— 178 A DIGEST OF ' [Notes. amended by s. 35 Vict. c. 11. & I. 37 (i section. c. 24 & 25 Vict. Those which as relate directly to the subject of evidence. IV. Many of these. 36 Vict c. 90. 39 & 40 Geo. s. Such are Geo. 13 (see article 17) c. 35 3. 96. c. 3 s. Many. . s. c. IV. III. 4 Will. 35. & 14. 7 Will. 7 James 116 10. 9 Vict. 37 (see article 56) 6. . in. 7 c. III. . 28. or matters of fact which may become material under special circumstances. & & ss. s. 112. 14. 20 Vict. 97. & 3 . 25 Vict. defined : in the Introduction. c. s. amended by c. I Of these (see article have noticed a few which. c. again. This Act is the rule that a witness not bound to answer is questions which criminate himself by declaring that he not civil excused from answering questions which liability. 17 (article 33) c. however. c.

. c. 6.) Judicial notice to be taken of signatures of certain judges. S. 7. Local extent and commencement of Act. Penalty for forgery. (Effect given in articles 106 1^ rnS N 2 . proclamations. if they purport to be so authenticated.15 Vict. 2.. &c. latter part of clause 8. 99: "An Act to amend the Law of : Evidence. 1845 S. S.— Notes. 3- 86-9 Vict. 85. I repeals part of 6 & 7 Vict. 1851 (20 sections) S.) S. (Article 79. 2 makes parties admissible witnesses. 4. printer's copies. 113: "An Act to facilitate the admission in evidence of certain ofiEicial and other documents" (8th August. c. 14 6. rendered admissible in proof of certain particulars if authenticated in a certain way. s. c. except in certain ^ cases. which restricted the operation of the Act.] THE LAW OF EVIDENCE. after preamble reciting that many documents are. 179 66-7 Vict. 4. c. by various Acts. 85. 7 sections). This Act abolishes incompetency from . enacts inter alia that proof that they were so authenticated shall not be re- quired S. 3. This is omitted as belong- ing to the Criminal Law." 7th August. interest or crime (4 sections see article 106). Ss. (Article 58.) Certain Acts of Parliament. I. may be proved by copies purporting to be Queen's (Article 81. &c.

Certifying false documents a misdemeanour. (Omitted as belonging to Criminal Law. 14. (Effect of repeal.) S. c. IV. 15.) Repealed by 32 s. without proof of admissible in S. and their husbands and wives. ' S.) 17. 13.) S. 5.) The first three sections not to apply to proceedings instituted in Vict. Penalties for forging certain documents. (Omitted as part of the Law of Civil Procedure. last or copies purporting to be duly certified..) . competent (Article 108. 68. and i Vict. II. S. c. 10.) S. 4. Persons accused of crime.) authorised to grant in- The Common Law Courts spection of documents. treaties. Wills Act of 1838. Who may administer oaths. 26. Documents admissible (Article 80. consequence of adultery. all.) S. Proof of registers of British ships.) either in England or seal. paragraph. (Article 125. article 109. (Article 84.) S. 7. 16. (Omitted as be- longing to Criminal Procedure. Proof of previous convictions.) S. (Omitted as part of the law relating to shipping. (Omitted as part of the S. or in the colonies. (Article 79.i8o A DIGEST OF [NOTES. (Omitted as belonging to the Criminal Law. in Ireland. 3. 9. (Omitted as part of the law relating to medical men. None of the sections above mentioned to affect the 7 Will. 12.) Ss. not to be S. Mode of proving proclamations. Law of Wills. 8. &c. Proof of qualification of apothecaries. &c. 6. Certain documents provable by examined copies. & 33 and of 3 of the last-named Act given in S.

22. S. c. 130 (i). The Common Law Procedure Act of 1854 contained several sections which altered the Law of Evidence.) writing. 24 d^ 25 S. 1861. S.) Attesting witnesses need not be called unless writing requires attestation by law. Proof of a previous conviction of a witness may be (Article given." 80. 19. a general measure was passed for the same purpose 6. S. may discredit his own witness. who objected to take an oath. Cross-examination as to previous statements in (Article 132.) S. S. 24. 131. I. (Article 72. Act not to extend to Scotland. Meaning of the word "Colony. giving rehef to Quakers. 25. S. S. Commencement of Act.] THE LAW OF EVIDENCE. (Article 23-) . c. 3 sections) : Persons refusing to be sworn from conscientious motives 1 may make a declaration in a given form. 26.) (Articles Comparison of disputed handwritings.) After several Acts. 125. (Omitted. 133 and see Note XLVIIL) (Article 131. note I. Vict. and Separatists. S. i8. 5- 17 &> 18 Vict. in 1861. 20.) Proof of contradictory statements by a witness under cross-examination. Moravians. 27.— Notes.) (Article i8i S. 23. How far a party . 66 (ist August. Articles. 49 and 52.

Commencement of Act 28 S. Re-enacts 17 & 18 Vic. 3. s. s. 22.) perjury. c. S. [Notes.— A DIGEST OF S. . Falsehood upon such a declaration punishable as (Do. 3. Sections —8 civil. 1865. Vict. 4. c. criminal as well as S. 18 (9th May. 125. 10 sections) 3 : I. 2. to apply to all courts and causes.

^i<^- '• 49 (9th August. S. and 121. .— Notes. Short Act does not extend to Scotland. I. "Judge" in article in s. 2. 99. 1870. 4. but not to be compelled to answer certain questions. Vict. c. 5. Short title. S. (The effect of this provision given in the definitions of " Court" and I. (Implied in article 73. S. 33 ^ 34 S. 4. 3. 183 S. 10. and part of 16 & 83. Act to be cumulative on Common Law.) (See articles 106 Parties competent in actions for breach of promise of marriage. S. 68. and see Note XLII. c.) 9- 32 dv 33 S. s. 125. 5. I. Atheists rendered competent witnesses. but must be corroborated. 2. Husbands and wives competent (Article 109. s. c. 3 sections) : Recites doubts as to meaning of " Court " in s. and defines the is meaning of those words.) in proceedings in consequence of adultery. (The effect of this repeal is given in article 109 S. 3. . (Articles 106 and 123.] THE LAW OF EVIDENCE. 6. Interpretation clauses embodied (where necessary) in Article 83. Act does not extend to Scotland. 15 Vict. 1869. 6.) S. and "Judge" 4 of 32 & 33 Vict.) S. 6 sections) : Repeals part of 14 17 Vict.) title. c. 68 (9th August. and S. & 2.

it. when the Statute is Law upon the subject of Evidence sifted and put it in its proper place as part of the general system. 109. 80. 72. 58. which re-enact these provisions in relation to proceedings of every kind. some of which contain other matter besides. 83. 121. 3-8. ss. 81. namely. ' I. [NOTES. 49. These provided for twice over. appears to occupy a very subordinate position in ten statutes above mentioned are the only ones The which really form part of the given in twenty Law ^ of Evidence. and their effect is fully articles of the Digest. . It will be observed that they relate to three subjects only — the competency of witnesses. 22-27. civil 125. 52. & 18 Vict. 120. and certain details details are the proof of certain classes of documents. 125. 108. 131. pro- ceedings only. both inclusive. 106. 132. 18. 133. 84.1 84 DIGEST OF THE LAW OF E VIDENCE. which concern c. 123. Thus. and again in 28 Vict. 79. in the practice of examining witnesses. These are the only Acts which deal with the Evidence as I Law of have defined it. once in 17 c. ss.

made without prejudice. letters as evidence in cases of. 108. • . Abortion. ib. Advocates' privileges as to certain questions. illustration of. evidence of. 84. Attesting witness. and when. 15 . ib. estoppel of. definition of. Agent.. Adultery. Accomplices. ill. foreign and colonial. 31. relevancy of statement in certain. . to by party. cases in which he need not be called. 2. INDEX. 6 . 106. . 7. 33. of. 25. 26. Acts of conspirators. jointly interested with parties." an. privileges as to certain questions. 74. Aifairs of State. competency of witnesses in proceedings relating . 27 ib. . evidence as to. 55- Art. proof of. to. who may make. 73. 85. judgments.. "Action. 79of State. showing intention. Admissions defined. opinions of experts on points Attestation of documents thirty years old. 112. 112. 1 1 2. when he denies the execution. illustrations by agents and persons illustrations of. Barristers. 10. of evidence. Acts of notifications. Bankruptcy. estoppel of. illustration of. 23 . Bailee. . 1 1 8. 17. 84. 22 of. &c. 130. 108. good faith. improper. 82. &c. 24 by strangers to an by person referred action. 45. of Parliament. illustrations of.

Collusion may be proved. estoppel of acceptor of. Clergymen may be compelled Collisions between ships. 3. 1 10. . Common. professional. 113. 52. 115." definition of. 36. 2 . 38. Conduct. when deemed voluntary. 98. evidence in cases Bigamy. 52. 112. Comparison of handwritings. Commission of offences. 82. Charts. 33. 20 . ib. Cases in which secondary evidence relating to documents given. when relevant. 46. as affecting damages. 78. 61. 60. Bills of Lading.i86 INDEX. 54. 116. 50. Bastardy. 115. 99. information as to. relevancy of statements in. of evidence. 107. 18. . 116. existence of course of. may be Cases in which attesting witness need not be called. evidence of. illustratiom of. for. 29. . 114. Cheques. payment of. . when relevant and when not. Communications during marriage. Competency of witnesses. to medical men and clergymen must be disclosed. Burden of Proof. Birth. of. 60. evidence . Bills of Exchange. 59. with legal advisers. 73. " Conclusive Confession. ilhistrations of. 108. 105. Colonial Proclamations. right of. 113. estoppel by. in criminal cases. 69. 68. Certified copies. to disclose communications. . forged. illustrations of. Character. Business. proof. declarations made in the course of. 107. 1 1 8. of jurors. . fictitious. . 97.

Cross-examination of witnesses. 1 1 1. &c. Confidential communications with legal advisers. . 34. in. in. 103. . 123. 187 caused by inducement. Declaration. . . 36. 117. ib. 15. questions lawful in. 27. to what matters it must be directed. illustrations of. 80. Council. "Declarant. and office. loi. good Corroboration. 41. INDEX. 31. Confessions defined. made upon oath. Criminal cases. evidence of character . dying declaration as to cause 32. Orders in. certified. Declarations made in the course of business or professional duty. 60. 122. when relevant. in trial for felony. 30 illustrations of. 121. made under a promise of secrecy. as to public and general rights. Customs. showing intention. . from seven years' absence. competency of witnesses Crimination of witnesses. as to pedigree. threat or promise. examined. illustrations of. 29. . 38 . 39. 6 . illustrations of. Construction of documents. statements by. reduced to a documentary form. 115. evidence of terms of. 118. what matters may be proved in reference to relevant declarations by. faith. against interest. Death. 65. Debtors. character . 40 . ib. ib. I. when irrelevant in criminal proceeding. Damages. illustrations of. as to previous statements in writing. . 91. 28. presumption of. ib. 127." 32.. 31. Deceased persons. 33 illustrations of. 125. " Court. 32. Copies." definition of. illustrations of. illustrations of. when required. of. by testators as to contents of will. 61. process against. dying. 68. 38. acts of. 35 . as affecting. 8 . Conspirators. Contract.

3. of. . 92. presumption as to date . thirty years old. 128. of. 75. required by law to be attested. c. 67. " Document. as evidence. 6. Queen's printers' copies colonial of. 86. not required by law to be attested. by primary evidence. 42. Documents. 87. Documentary evidence. . primary and secondary. technical terms in. admissible throughout the Queen's dominions. Depositions before magistrates. 44. 105. 74. -. of a. stamp ." . 35. &c. proof of public. s. proof of execution proof of. of. proof of contents of. 91. Divorce. in. declarations. 2 illustrations of. definition of. . . . Deeds. 67. 75. cases in which secondary evidence relating to may be . refused on notice used as evidence. 88. . a person in possession could refuse to produce. — — — — . Dying declaration as to cause of death. 129. given. to complete title. 82. by oral evi- dence. production . what evidence may be given foreign words in. 75. . . ' 85. alterations of. 85. 85. . 91. . 32 . given as evidence. . of. . evidence of terms of contract. illustrations of. of. . 49. called for and produced on notice.INDEX. 86. 84. . evidence & 31 Vict. 117.. 78. loi. . . 85. form. 72. for the interpretation of. 68. and — attested docu- ments. 50. under 30 Disgavelling. examined copies of. reduced to. proper custody construction of. 79. and foreign. ib. 88. — — . 92. 69. modification and interpretation of. presumption as to sealing and delivering. alterations.

115. 1 13. examined copies of. may be given for the interpretation of documents. burden of proving of. of licensee. . Estoppels and presumptions. fact to be proved to make it admissible. of tenant and licensee. . . 55. 68.INDEX. using as. of accomplices. of character in criminal cases. and other dispositions of property reduced to a documentary form. 124. Estoppel. i evidence. 105. 67. 97. 108. 128. . 41. what takes place in Houses of Parliament. giving as. of witnesses to be upon oath except in certain cases. v?hat. definition of. a document. ments. ^l. 56. 108. grants. 51. Embezzlement. document called for and produced on notice. the Gazette &% 81. effect of. . 129. oral. in the modification and interpretation of documentary . H2. office copies of. 100. of terms of contracts. Evidence. Entries in tradesman's books. 107. exclusion of. as to insanity. ii. iUtistrahons of. of agent. as to affairs of State. 60. production of which was refused on notice. . . of birth. n8. in cases of bastardy. . oral. ib. 118. production and -. 2. 97. primary and secondary. 108. documentary. to contradict answers to questions testing veracity. —— by conduct. given in former proceeding vifhen relevant. Effect of evidence. of acceptor of bill of exchange. and attested docu. judgment not pleaded as an estoppel. 102. 88. — . 36. 5 1 . of bailee. effect of judgment not pleaded as an. 120. 68. 107. 66 must be direct. 46. illustrations as to lOl. .

good. required by law to be attested. . right of. 100. 1 1 . ib. Game Laws. illus- necessary to explain or introduce relevant facts. confession in. 72. 3. proving. — Faith. Forgery. 82. the old. illustra- similar but unconnected. of witnesses. Fishery. 68. to what matters and re-. . on points of science and of. 8. 52. tions of. re-. the. admitted need not be proved. ib. to be proved to make evidence admissible. 1 5 . 99. bearing upon opinions of experts. 66. collusion. 81. 62 . 68. proof of. 100. improper admission and rejection Examination-in-chief of witnesses. Forged Bills of Exchange. judgments. ib. as evidence.igo INDEX. cross- . 122. opinions . illustrations of. 12. Foreign words in documents. . Exchange. proof of. Foreign and Colonial Acts of State. facts bearing upon opinions "Fact. 55- of. 4 . Execution of document. 77art. I2i. . of which the Court takes judicial notice. certified copies of. 65. 76. 2. 77- made by an Experts. . 130. of witnesses. 92. Exemplifications. may be proved. 57 . 19 . 15. 12. Gazette. . 121. showing system. issue.. bills of. illustrations of. of. . See Bills of Exchange. illustrations of a. . Felony. or want of jurisdiction. 5. burden of proof as to particular. &c. 64. Examined copies of evidence. officer of the Court. cross-. may be proved." definition of. acts showing. which need not be proved ^judicial notice. . ib. 54. 1 Fraud. 57. 121. i . illustrations of. proof of such. Evidence. must be directed. by oral evidence. 62. Facts in issue and relevant to the trations of. 53. 65.

presumption of Grants. 11. Interest. 98. illustrations of. Innocence. wrongful. proof of. 100. 18. 59. 59. 76. I. 91 . Improper admission and rejection of evidence. 1 12." definition of. 19. . Irish statutes. 119. evidence of experts as to. Intention. . He who High affirms must prove. no. 99. 113. 47. comparison of." definition of. 59. 58. ib. Impeaching credit of witness. Insurance. 79. 113. may be given for the. declarations against. ib. 97. 22 . Interpretation of documentary evidence by oral evidence. illustration to. Handvi'riting. Grant. 106. Imprisonment. acts showing. 102. as to treason. evidence as to. 94. to. reduced to a documentary form. Houses of Parliament. presumption of. 104 . 130. 58 . Inducement as a cause ceedings. what evidence illustrations of. Involuntary confessions. Illegitimate children. I Grounds of opinion. Handwritings. ib. when relevant. 126. lost. . illustrations . Incompetency of witnesses. 35. 113. 97. 88. igr Government prosecutions. 28. 28. 57. Insanity. for confession. 93. "Judgment. of documents. relevancy of opinion as to. Judges and advocates privileged as to certain questions. "Judge. evidence of. when irrelevant in criminal pro- Information as to commission of offences. General records of the realm. 90. 5S> S^- Insolvency. evidence what takes place in. 15.INDEX. Hearsay irrelevant except in certain cases.

ib. Lithographs as evidence. 46. 88. 47 . 119. rules as to. illustrations of. . 54. explanatory statements. 18. 82. illustration of. 10." of.192 INDEX. ib. of. . 67. opinion as to existence . effect of. 10. statements in irrelevant as between strangers. Acts of State. 128. confidential communications with. 50. 104. estoppel of. preparation. 108. validity of. Notifications. ib. want of. illustrations of ib. 51 . foreign. 54. Machinery. 42. Medical men may be compelled to disclose communications. Memory. "Judgment. conclusive as between parties and privies of facts forming ground of judgment. -. Number of witnesses. Notice to produce. 112. Magistrates.. except in Admiralty cases. Murder. foreign and colonial. bills of. depositions before. refreshing. - generally irrelevant as between strangers. Modification and interpretation of documentary evidence by oral evidence. 12. illustrations Judgments. relevancy of statements in. . communications during. Legitimacy. Jurors. 116. 9 illustrations of. 49. Mill-dams. 53 . 71. Acts of. &c. Maps. 52 conclusive in favour of judge. Licensee. 59. competency 113. of. 106. illustrations of. . 102. Marriage. when relevant. 115. Lading. presumption of. Motive. not pleaded as an estoppel. subsequent conduct. conclusive proof of their legal effect. Legal advisers. Libel. 108. . may be proved. 38. Jurisdiction. relevancy of statement in certain. 45. 48 .

of. Pedigree. 40. " Presumption. 85. illustrations of. 88. of. 66 . Offences. 113. . relevancy of statements in. ib. 12. illustrations of.INDEX. of experts on points of science and 55 . Parliament. Oral evidence. when relevant." definition of. 8q. Plans. Office copies of evidence. ib. ib. 67. of. 121. 20. 66. 19. . 86. 55 . 2. when not. ib. . art. except in certain cases. and estoppels. irrele- against women. existence of marriage. in. 121. evidence as as to . 57. Orders in Council. except in certain cases. proof of facts by. form of. 84. 98. . in. 56. 59 . 127. sealing and delivery of deeds. 76. 106. 1 5. vant. alterations in documents. must be direct. Oath. Acts . when relevant and relevant. documents thirty years old. 113. 55. 85. 92. Opinion generally irrelevant. . A. . evidence to be upon. — as to . as to handwriting. 193 who is to have power to administer. Houses evidence as to what takes place to. 58 . but unconnected with the facts in issue. declarations as Peerage cases. 120. 68. documents. 13. in the modification and interpretation of documentary evidence. examined copies Photography as evidence. Occurrences similar to. of innocence. 85. 79. 102. 97 . 59. 46. illustration of. when relevant. information as to commission of. Poisoning. . to. . date of documents. illustrations of. Oaths. grounds when Opinions. stamp of a document. Partnerships. Obsolete words in documents. illustrations ofse. 84.

as to particular facts. 97. of lost grant. 99. 45. illustrations of. 97. Foreign and Colonial. Privileged communications. 83. Primary evidence. . Provincial expressions in documents. Proof. 68. of death from seven years' absence. 75. 75. made in performance of duty. 105. as evidence. 112. 66. . 1 16. 68.. Professional communications. 62. 104. Privileges of judges and advocates as to certain questions. 113. 64. could refuse to produce.. government. 97. 74- of public documents. 67 . burden of. Printing.194 INDEX. recurd. Proclamations. . 88. 114. duty. burden of. &c. Presumption of legitimacy. of documents which another person. evidence of terms of contracts. 72. 74- when • attesting witness denies the execution. declarations made in the course of. grants. having possession. 115. iii. Prosecutions. of contents of documents. of document not required by law to be attested. of title-deeds of witness not a party. of documents by primary evidence. on whom the general burden lies. Privy Council Orders. proof of documents by. 45. 117. . &c. Proceedings relating to adultery. reduced to a documentary form. Proclamation a relevant fact in recital. ib. 67. 105. 82. 33. itself. relevancy of entry in. 103. 67. of facts of which the Court takes judicial notice. 79. 102. Orders in Council. of regularity. Property. 98. of execution of document required by law to be attested. 81. of deeds to complete title. Production of document and effect of evidence. must be given by those who affirm. 92. 8. of facts by oral evidence. Public ways. of Irish Statutes.

16. i. facts. illustrations of existence of course of business. Record Office. 13 . of opinion as to handwriting. 76. lawful in cross-examination. . Realm. 112. -. of evidence given in former proceedings. Refreshing memory. II. Records of the realm. Rape. presumption 105. and plans. 122. 128. Receiving stolen property. to what matters it must be directed. . 130. documents admissible throughout. proof officers of. and irrelevancy of character. 121. 46.INDEX. - — of opinion of grounds of opinion. Re-examination. Recital of Proclamations a relevant fact. 41. — of . 195 and documentary evidence. Right of common. of. of statements in maps. 75. Questions. 5. . of statements by deceased persons. documents from. 124. 37. facts in general definition of. general records of the. Repairs. 45. issue. 20. exclusion of evidence to contradict answers to. 123. 127. 76. Relevancy. right of adverse party as to writing used. 90. of. 123. illustrations of 5. 38- . leading. 31. to witnesses. . of statement in certain acts or notifications. charts. ib. improper. 18. of entry in public record made in performance of duty. 45. 58. 1 28. as to existence of marriage. Public documents. -. advocates privileges as to certain. 76. 45. 78. 5960. Rejection of evidence. Regularity. 59. Queen's dominions. ^ forming part of the same transaction as . testing veracity.

what matters may be proved ence to. illustrations of. judgments irrelevant as between. loss of. receiving. evidence as to.. judgments generally irrelevant as between. 69. Secrecy. ib. 31-. 18. 52 illustrations of. 39. 31. 12. . Strangers. 79.196 INDEX. statements in . 99. Seduction. 125. Irish. 11. Secondaiy evidence. i. as to. of. Sanity. . of contract. Royal Proclamations. Ships. in refer- in writing. cases in which it may be given. 68. 88. judgments in foreign and colonial evidence as to in affairs of. acts of. of. public and general. ib. Right of way. definition of. reduced to a documentary form. by deceased persons. in Admiralty 50 . Technical terms in documents. Statement. . 71. State. 55. Shipowner and underwriters. estoppel Terms. cross-examination as to previous. when 18. confession made under promise 48. relevant. collisions between. Science. 50. 52. 5S1 S^of. declaration Riots. 107. official. . except cases. 38. Statements by deceased persons Statutes. Rules as to notice to produce. inconsistent with present testimony may be proved. Rights. 16. 82. 63. Stolen property. • relating to documents. judgments irrelevant as between strangers. 127. opinions of experts on points Seals. evidence of. proof of. . 125. 92. relevancy of in certain acts. Tenant and licensee. 45. 112. 79.

no. 117. 7 . 8. of. cross-examination. in testify. to 120. of. -. number of. attesting. 28. declarations by testators as to contents of. except in certain cases. no. 28. production of title deeds by. . who is to have-power to administer oaths. 48. Threat. .INDEX. 39.forms of oath. of. Voluntary confessions. . in. 105. 62. as a cause for confession. 121. Way. proof of document. their production 197 when irrelevant in criminal proceed- by witness not a party. S3- in. exclusion of evidence to contradict answers to questions testing. illustrations of. . 121. -. contents .not to be compelled to criminate themselves. 1 10. examination in chief. 105. 119. 74. Trespass on land. Wills. • - who who may proceedings relating to adultery. -. right of. Will. 121. 38. Title-deeds. 122. ings. Tradesmen's books. • not testify. examination evidence be upon oath. Veracity of witnesses. right to use of. not a party. no. -. Unwritten laws. Underwriters and shipownei's. 104. -. . 119. -. are incompetent. . Wells. in criminal cases. -. 46. cases in which he need not be called. Water. evidence as to. in. 121. Witness. -. 124. 116. 116. Title. 73. when he denies the execution. 38. entries Treason. 94. Witnesses. 65. 120. competency of.

125. . 123. . statements inconsistent with present testimony may be proved. LONDON : PRINTED BY WILLIAM CLOWES AND SONS. 121. to what matters cross-examination and be directed. Women. re-examination must . to. 128. 128. offences against. 122. . STAMFORD STREET AND CHARING CROSS. 128. Witnesses. impeaching credit refreshing of. .198 INDEX. memory. giving of evidence. cross-examination as to previous statements in writing. 125. leading questions. . . exclusion of evidence to contradict answers to . . incompetent. -. right of adverse party as to writing used to refresh 128. document called for and produced on notice. 123. 122. Writing used to refresh memory. 124. re-examination. questions lawful in cross-examination. . 126. memory. questions testing veracity. 127. right of adverse party as THE END.

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KP 8935 S82 1876 c.l .

—Ill i' ii ji.1 ff*« iMitmntu -.MiitimimmMir'tm(mtm'*mft'*t9'ii^'f^^ .if . fmi'ii 1.

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