Stephen's Digest Of The Law Of Evidence

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

3 1924 020 112 847

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01^-)^

:

A DIGEST

LAW OF

EVIDENCE.

JAMES FITZJAMES STEPHEN,

Q.C.

HonHon

MACMIJ.LAN AND 1876.

CO.

^

:

LONDON

(

PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET

AND CHARING

CROSS.

INTRODUCTION.

In the years 1870-187 1

drew what afterwards became

I

Indian Evidence Act (Act

the

1

This Act

of 1872).

began by repealing (with a few exceptions) the whole of the

Law

of Evidence then in force in India, and progeeded to

re-enact

in the

it

form of a code of 167

sections,

been in operation in India since Sept. 1872. that

generally understood,

it is

commentary or

I

which has

am

informed

and has required little

judicial

exposition.

In the autumn of 1872 Lord Coleridge (then Attorneys General) employed I it

did so

in

to

draw a of the

in frequent

duced early

me

the course

consultations.

similar

It

attempts to bring

succeed

till

it

and we

was ready

to

forward, but

the very last day of the Session.

Parliament was prorogued.

It

though

I

believe

it

The

Bill

settled intro-

he could not

He

words on the subject on the Sth August, 1873,

public,

be

Lord Coleridge made

in the Session of 1873.

various

code for England.

winter,

said a

few

just before

was thus never made

was ordered

to be printed.

was drawn on the model of the Indian Evidence Act,

and contained a complete system of law upon the subject of Evidence.

In the

latter part of

1873 Lord Coleridge was raised to

;

INTRODUCTION. his present position,

and the

Bill

has not been proceeded

with by his successors.

The present work is founded upon this Bill, though it differs Lord Coleridge's Bill proposed it in various respects.

from

These are

a variety of amendments of the existing law.

omitted in the present work, which the existing law exactly as

it

is

stands.

intended to represent

The

Bill,

of course,

In the

was in the ordinary form of an Act of Parliament.

book

I

though precise to

have allowed myself more freedom of expression,

my

have spared no pains to make

I

and complete

in substance as if

statements as

they were intended

be submitted to the Legislature.

The

Bill

contained a certain number of illustrations,

and Lord Coleridge's personal opinion was in

their favour,

though he had doubts as to the possibility of making them

In the book

acceptable to Parliament.

have much

I

in-

creased the number of the illustrations, and I have, in nearly every instance, taken cases actually decided

Courts for the purpose.

vented illustrations to

suit

by

the

In a few instances I have

in-

my own

purposes, but I have

done so only in cases in which the practice of the Courts too well ascertained to be questioned.

I

think that

is

illus-

might be used with advantage in Acts of Parliament, though I am aware that others take a different view trations

but,

be

this as

disputed,

as

it

may, their use in a

they not

meaning of abstract

treatise

only bring into clear

generalities, but are, in

cannot be light

many

the

cases,

themselves the authorities from which rules and principles

must be deduced.

These explanations show, amongst other

things, that I

INTRODUCTION. cannot honestly claim Lord Coleridge's authority than a general approval of

this

which makes the law, and a widely, and

my work may

An Act

work.

which

treatise

which would have been

it,

differ

answered

they

novelty o^ the form and objects of the work

may

easily

had been urged against Lord Coleridge's

The

states

of course be open to numerous if

objections,

justify

more

for

of Parliament

Bill.

some explanations respecting it. In December

last, at

the request of the Council of Legal Education, I undertook

Common

the duties of Professor of

Court, and I chose the

my

Law

course of lectures.

first

draft Bill

which

I

Law,

Inns of

at the

of Evidence for the subject of It

appeared to

me

that the

Lord Coleridge supplied such a statement of the law as would

had prepared

the materials for

for

enable students to obtain a precise and systematic acquaint-

ance with

it

in a

moderate space of time, and without a

degree of labour disproportionate to

its

tion to other branches of the law.

No

as I know, exists

;

for all the existing

importance in

rela-

such work, so

books on the

Law

far

of

Evidence are written on the usual model of English lawbooks, which, as a general rule, aim at being collections

more or

less

complete of

all

upon a given

the authorities

subject, to which a judge would Usten in an argument in Such works often become, sometimes under the court.

hands of successive

editors, the repositories

ordinary amount of research,

but they seem

the effect of making the attainment by

to

of an extra-

me

to have

direct study of a real

knowledge of the law, or of any branch of it as a whole, almost impossible. The enormous mass of detail and illustration

which they contain, and the habit into which

their

INTRODUCTION. writers naturally

fall,

of introducing into

them everything

which has any sort of connection, however remote, with the main subject, 'make these books useless for purposes of study, though they

The

reference.

may

increase their utility as works of

last edition of

Mr. Taylor's work on Evi-

dence contains 1797 royal 8vo pages. To judge from the table of cases, it must refer to about 9000 judicial decisions,

and of

'

750 Acts of Parliament. The last edition Roscoe's Digest of the Law of Evidence on the trial of it

cites nearly

Actions at Nisi Prius,' contains 1556 closely-printed pages.

The

table of cases cited consists of 77 pages,

names of 152

contains the

of 11,704 cases referred

cases,

to.

references to statutes which

Law

Principles of the

and

is

on which the

said to

is,

besides,

a

21 {)ages more.

total

number of

practical

of

list '

Best's

of Evidence,' which disclaims

intention of adding to the subject,

There fills

one of which

which would give a

the

works on the

be intended to examine the principles

rules of evidence are founded, contains

908

When we remember that the Law of Evidence forms only one branch of the Law of Procedure, and that the Substantive Law which regulates pages,

and

refers to

rights

and

duties ought to

becomes obvious

about 1400 cases.

be treated independently of it,

that if a lawyer

is

to

it

have anything better

than a familiarity with indexes, he must gain his knowledge in

some other way than from

No

existing

books on the

doubt such knowledge is to be gained.

subject.

Experience gives

by degrees, in favourable cases, a comprehensive acquaintance with the principles of the law with which a practitioner is

conversant.

than

it

looks,

He and

gets to see that

it is

shorter

to understand that the

and simpler

innumerable cases

INTRODUCTION. which

appear to constitute the law, are really

at first sight

no more than

illustrations of a

of principles

but those

;

comparatively small number

who have gained knowledge

kind have usually no opportunity to impart

Moreover, they acquire

to

it

of this others.

very slowly, and with needless

it

labour themselves, and though knowledge so acquired

and well remembered,

often specially vivid

mentary, and the possession of

who have

those

it

it .is

often frag-

not unfrequently renders

sceptical as to the possibility,

it

is

to the expediency, of producing anything

and even as

more systematic

and complete. Circumstances already mentioned have led

I

had acquired, and

education,

established

impose upon

me

been

in

My

The

as

connection with the scheme of

by the Inns of Court, seems

who

attend

my

lectures.

labour bestowed upon

an inverse

object in

put

to

to

the duty of doing what I can to assist in

their studies those

the result.

my

me

knowledge of the subject

into a systematic form such

ratio to

it

it

This work

has, I

may

is

say,

its size.

has been to separate the subject of

evidence from other branches of the law with which

commonly been mixed up

to

;

reduce

it

into a

it

has

compact

systematic form, distributed according to the natural division of the subject-matter definite rules, illustrated,

cases

and

so limited

make able,

and

;

when

to

compress into precise

necessary,

by examples, such

statutes as properly relate to the subject-matter

and arranged.

I

have attempted, in

a digest of the law, which,

if it

short, to

were thought

desir-

might be used in the preparation of a code, and

which, at

all

events^ will, I hope, be useful, not only to

INTRODUCTION. professional students, but to every ligent interest in a part of the

directly

one who takes an

law of

on every kind of investigation

into questions of fact,

on every branch of litigation.

as well as

The Law namely,

intel-

his country, bearing

of Evidence

is

composed of two elements,

an enormous number of cases, almost

first,

all

of

last

loo

or 150 years, and which have already been collected

and

which have been decided in the course of the

classified in various

most recent of

ways by a succession of text writers, the

whom

have already named

I

;

secondly, a

comparatively small number of Acts of Pariiament which

have been passed in the course of the years,

and have

law as

it

was when

Writers on the

last thirty or forty

effected a highly beneficial revolution in the it

Law

attracted the denunciations of

Bentham.

of Evidence usually refer to statutes by

the hundred, but the Acts of Parliament which really relate

A detailed account of this matter

to the subject are but few. will

be found at the end of the volume, in Note

The arrangement of Indian Evidence Act,

the

book

and

is

is

based upon the distinction

between relevancy and proof, that

is,

What

the question

may be proved ? and

facts

between the question

a fact be proved assuming that proof of

The

neglect

of this distinction, which

the ambiguity of the

XLIX.

the same as that of the

it

is

How

may be

must

given

?

concealed by

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

really

plain

enough appear almost incompre-

hensible.

In my Introduction to the Indian Evidence Act,' published '

;

;

INTRODUCTION. in

1872, and in speeches

Council, I entered fully return to

here.

it

I

made

upon

in the Indian Legislative

and

this matter,

need not

I

may, however, give a short outline of

show the nature of the

the contents of this work, in order to solution of the problem

stated

above

which

at

I

have

arrived.

may be

All law

rights, duties,

and

divided into Substantive Law, by which are defined,

liabilities

Procedure, by which the Substantive

and the Law of

Law

is

applied

to

particular cases.

The Law

of -Evidence

is

that part of the

Law

of Proce-

dure which, with a view to ascertain individual rights and liabilities in particular cases, I.

What

facts

decides

:

may, and what may not be proved in such

cases II. What sort of evidence must be given of a fact which may be proved III. By whom and in what manner the evidence must

be produced by which any fact I.

The

facts

is

to be proved.

which may be proved are

facts in issue, or

facts relevant to the issue.

Facts in issue are those facts

which the right or

liability to

upon the existence of

be ascertained in the proceed-

ing depends. Facts relevant to the issue are facts from the existence of

which inferences as to the existence of the

may be

facts in issue

drawn.

A fact

is

relevant to another fact

when

the existence of

the one can be shown to be the cause or one of the causes, or the effect or one of the effects, of the existence of the

INTRO D UCTION. when

other, or

the existence of the one, either alone or

together with other facts, renders the existence of the other

common

highly probable, or improbable, according to the

course of events.

Four

which

classes of facts,

be regarded as falling within are excluded from certain cases

each other.

The

2.

The

(^Jies

but not specifically connected with,

to,

inter alios actcz.)

that a person not called as a witness has

fact

any person

fact that

(Hearsay.)

of opinion that a fact

is

{Opinion.)

exists.

The

4.

would usually

by the Law of Evidence except in

it

asserted the existence of any fact. 3.

life

definition of relevancy,

this

:

Facts similar

1.

common

in

fact

that

a person's

character

is

such as to

render conduct imputed to him probable or improbable. (Character.)

To

each of these four exclusive rules there

however,

are,

important exceptions, which are defined by the

Law

of

Evidence.

IL As fact

to the

manner

in

which a

fact in issue or relevant

must be proved.

Some

need not be proved

facts

will take judicial notice of

them,

at if

all,

because the Court

they are relevant to the

issue.

Every oral or

Every a

fact

which requires proof must be proved either by

by documentary evidence. except (speaking generally) the contents of

fact,

document, must be .

evidence must in

proved by oral evidence.

every case be direct, that

is

Oral

to say,

it

INTRODUCTION. must consist of an assertion by the person who gives

it

that he directly perceived the fact to the existence of which

he

testifies.

Documentary evidence Primary evidence

is

the

is

either primary or secondary.

document

itself

produced

in court

for inspection.

Secondary evidence varies according to the nature of the In the case of private documents a copy of the

document.

document, or an oral account of In

evidence.

examined or

case

the

its

contents,

some

of

public

is

secondary

documents,

must or

certified copies, or exemplifications,

may be produced

in the absence of the

documents them-

selves.

Whenever any

it

is

been

public or private transaction has

reduced to a documentary form, the document

which

in

recorded becomes exclusive evidence of that trans-

action,

and

contents cannot, except in certain cases ex-

its

pressly defined, be varied by oral evidence, though secondary

evidence III.

may be

As

given of the contents of the document.

to the person

by whom, and the manner

in

which

the proof of a particular fact must be made.

When

a fact

is

to

be proved, evidence must be given of

by the person upon

whom

the burden of proving

it

it

is

imposed, either by the nature of the issue or by any legal presumption,

estopped

by

by

witnesses by

competent.

is

proving by his

his conduct, or

The

the fact

unless

from

one which the party

own

representations,

his relation to the opposite party.

whom

a fact

is

to be proved

With very few exceptions, every one

a competent witness

is

or

ifi

all

cases.

Competent

must be is

now

witnesses

— INTRODUCTION. however, are not in

all

cases compelled or even permitted

to testify.

The evidence must be given upon oath, or in certain The witnesses must be first

excepted cases without oath.

examined

in

examined.

chief,

then

Their credit

and then

re-

tested in certain ways,

and

cross-examined,

may be

the answers which they give to questions affecting their credit

may be

contradicted in certain cases and not in others.

This brief statement

Law

tuting the

of

it

excludes

forming part of as follows

show what

will

I

regard as consti-

My

of Evidence properly so called.

many it. The

view

things which are often regarded as principal subjects thus omitted are

:

What may be proved under parmany writers treat as part of the Law

I regard the question.

ticular issues ? (which

of Evidence) as belonging partly to the subject of pleading,

and

partly to each of the different branches into

Substantive

A

is

Law may

which the

be divided.

indicted for murder,

and pleads Not

Guilty.

This

plea puts in issue, amongst other things, the presence of

any

state of

mind describable

as malice aforethought,

and

matters of justification or extenuation.

all

Starkie

and Roscoe

treat these subjects at full length, as

supplying answers to the

question.

What can be proved

under an issue of Not Guilty on an indictment

Mr. Taylor does not go so

far as this

;

for

murder ?

but a great part of

book is based upon a similar principle of classification. Thus chapters i. and ii. of Part IL are rather a treatise on pleading than a treatise on evidence.

his

Again,

I

have dealt very shortly with the whole subject

INTRODUCTION.

My

of presumptions.

me

to

and

to

Take

be

as

that they also appear to

unintelligible, except in

meaning of

real

ignorance of the law it.

is

connection with them.

for instance the presumption that everyone

The

law.

reason,

belong to different branches of the Substantive Law,

is

this is that,

not taken as an excuse for breaking

This rule cannot be properly appreciated

a part of the

Law

of Evidence.

It

if it is

as to rights of property (in particular easements

poreal hereditaments) belong not to the

which, in

Law

my

treated

belongs to the

In the same way numerous presumptions

Criminal Law.

but to the

knows the

speaking generally,

The

of Real Property.

Law

and incor-

of Evidence

only presumptions

opinion, ought to find a place in the

of Evidence, are those which relate to facts merely as

and apart from the

Thus is

particular rights

the rule, that a

man

which they

Law facts,

constitute.

not heard of for seven years

presumed to be dead, might be equally applicable to a

dispute as to the vaHdity of a marriage, an action of eject-

ment by a

reversioner against a tenant

admissibility of a declaration

other subjects.

pur

auter

against interest,

vie,

the

and many

After careful consideration, I have put a

few presumptions of

this

kind into a chapter on the subject,

and have passed over the

rest as

belonging to different

branches of the Substantive Law. Practice, again, appears to

Law in

of Evidence.

The

rules

me

to differ in kind

which the attendance of witnesses

evidence

is

to be taken

to be authenticated

from the

which point out the manner is

to

be procured,

on commission, depositions are

and forwarded

to the proper officers,

interrogatories are to be administered, &c., have

little

to

do

INTRODUCTION. with the

general

which regulate the relevancy Their proper place would be

principles

and proof of matters of fact.

found in codes of civil and criminal procedure.

A

remark applies to a great mass of provisions Under the head of the proof of certain particulars.

similar

as to

" Public Documents," Mr. things a Ust of

all,

Taylor

amongst

gives

other

or most, of the statutory provisions which

render certificates or certified copies admissible in particular cases.

To thus

:

take an illustration at random, section 1458 begins "

The

registration of medical practitioners

may be proved by

Medical Act of 1858, '

under the

a copy of the

Medical Register,' for the time being, purporting," &c.

I

do not wish

utility

for

moment

to undervalue the practical

of such information, or the industry displayed

collecting

it

;

in

but such a provision as this appears to nie to

belong not to the to

a

medical men.

Law It

of Evidence, but to the law relating is

matter rather for an index or

schedule than for a legal treatise, intended to be studied,

understood, and borne in

On

mind

in practice.

several other points the distinction

of Evidence and other branches of the law to trace.

For

between the is

instance, the law of estoppel,

more

and the law

relating to the interpretation of written instruments,

run into the line

Law

by dealing

of Evidence.

I

Law

difficult

both

have tried to draw the

in the case of estoppels with estoppels in

pais only, to the

exclusion of estoppels by deed and

by

matter of record, which must be pleaded as such; and in regard to the law of written instruments by stating those rules

only which seemed to

me

to

bear directly on the

INTRODUCTION. question whether a document can be supplemented or ex-

plained by oral evidence.

The result is no doubt to make the statement much shorter than is usual. I hope, however, petent judges will find that, as far as is

both

full

and

As

correct.

words of Lord Mansfield

:

it

that

com-

goes, the statement

to brevity, I

—" The

of the law

may

say, in the

law does not consist

of particular cases, but of general principles which are illustrated

and explained by those

Every one

will express

cases."

somewhat

which he draws from a number of

^

differently the principles

and

illustrations,

this is

one source of that quality of our law which those who dislike

who

it

like

describe as vagueness and uncertainty, and those it

I dislike the quality in question,

as elasticity.

and I used to think that the law were once for

all

it

would be an improvement

if

enacted in a distinct form by

the Legislature, and were definitely altered from time to

For many years

time as occasion required. to get others to take the

now convinced by

same view of the

I

did

my utmost am

subject, but I

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

neither unnatural nor unfounded.

It

would be as

impossible to get in Parhament a really satisfactory discussion of a Bill codifying the

Law

of Evidence as to get a

committee of the whole House to paint a I

am

picture.

It

would,

equally well satisfied, be quite as difficult at present

to get

Parhament

to delegate its

R.

V.

powers to persons capable

Bemtridge, 3 Doug. 332.

INTRODUCTION. In the meanwhile the Courts

of exercising them properly.

can decide only upon cases as they actually occur, and generations may pass before a doubt is set at rest by a

considerable

Hence,

expressly in point.

judicial decision

anything

if

done towards the reduction of the must, at present at least, be done by

to be

is

law to a system,

it

private writers.

Legislation proper

way of making

is

under favourable conditions the best

the law, but

who

writers

and

ciples

that is not to

if

rules as

appear to them to be suggested by the

and convenient,

is

and

much

very

to insist upon.

ciples

to

be

in themselves rational

none

better than

has, indeed, special advantages,

which

this is

and

in a less

of an enormous mass

I insist

to state the law in

exists

simply,

minds

the

of

propositions of law must

upon

this

because I

many

be misleading, and

maxim

says

at large;

Melius

for

Omnis

by

well

all

which

general

delusive,

An

in jure fericulosa."

and

ancient

Lord

is

ever good to rely upon the books

many

times compendia sunt dispendia, and

"It

est petere

this

definitio

belief

lawyers that

books are useless except as indexes.

wrote,

am

exists against all attempts

and of the rooted

that law

"

of

assuming unstated prin-

statutes

aware of the prejudice which

chose

It

all.

cases and" statutes alike being accessible only

;

elaborate indexes.

Coke

at

not the place

do not think the law can be

I

condition than that

decisions,

isolated

legal

deduce, from a mass of precedents, such prin-

great bulk of the authorities,

creditable

be had, indirect

on the law of judges and

legislation, the influence

fantes

quam

secfari rivulosj'

expression as the motto of his

'

Mr. Smith

Leading Cases,

INTRODUCTION. and the sentiment which

it

embodies has exercised immense

influence over our law.

It

has not perhaps been sufficiently

observed that when Coke wrote, the

namely the

'

Year Books

ports, contained probably about as

most of

much

Reporting

in the

'

Year Books

roughest possible manner, and

and arrangement

own

In our

re-

by the Council

'Abridgment') were merely abridg-

Fitzherbert's

as

large,''

and that the compendia (such books,

J

ments of the cases

at

modem

matter as two, or at

three, years of the reports published

Law

say,

"books

and a very few more

'

to such a

days

it

much

book

'

as Fisher's

appears to

classified in

me

'

the

both in extent

inferior

Digest.'*

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 them-

selves are the rivuli, the following of

My

attempt in

fontes, to

this

which is a dispendmm.

work has been emphatically

petere

reduce an important branch of the law to the form

of a connected system of

intelligible rules

and

principles.

Should the undertaking be favourably received by the pro-

and the public, I hope to apply the same process to some other branches of the law for the more I study and

fession

;

practise

of

its

it,

the

more

firmly

am

I

convinced of the excellence

substance and the defects of

writers,

from Coke

to Blackstone,

asserting the excellence of

exaggerated

strain, whilst

its

its

form.

fell

into

Our

earlier

the error of

substance in a fulsome and

they showed a total insensibility

* Since the beginning of 1865 the Council has published eighty-six volumes of Reports. The Year Books from 1307-1535, 328 years, would fill not more than twenty-five such volumes. There are also ten volumes of Statutes since 1865. b

INTRODUCTION. to

both of substance and form, which in their

defects,

many

in

He

points to have

was too keen and

bitter

obvious to

is

law

which

itself

even

if

talent,

me is

that he

is,

me

which he attacked

;

and

had not that mastery of the

Bentham

as

to

converse error

a critic to recognise the

mere

unattainable by

the student

the

into

fallen

substantial merits of the system it

Bentham seems

grievous and glaring.

time were

theoretical study,

certainly was, a

man

of

approaching closely to genius.

During the

last

twenty-five

years Bentham's influence

has to some extent declined, partly because some of his

books are

like

exploded

shells,

buried under the ruins which

they have made, and partly because under the influence of some

of the ablest and most distinguished of living

authors,

great attention has been directed to legal history,

and be

in particular to the study of difficult

their nature

Roman Law.

would

It

to exaggerate the value of these studies, but

and use

history of the

is

liable to

Roman Law no

the history of our

own law

be misunderstood.

doubt throws great

The

on and the comparison of the two

;

light

great bodies of law, under one or the other of which the

laws of the civilised world to be in every

way most

may be

classified,

instructive;

cannot

fail

but the history of

bygone

institutions is valuable mainly because it enables us to understand, and so to improve existing institutions. It

the

would be a complete mistake to suppose

Roman Law

is

in substance

that in point of arrangement

and method the

and the Digest are anything but warnings. philosophy of the

Institutes,

either that

wiser than our

own

or

Institutes

The pseudo-

and the confusion

of

the

INTRODUCTION.

my

Digest, are, to

mind, infinitely more objectionable than

and of

the absence of arrangement

general theories,

all

good or bad, which distinguish the Law of England.

However show

may

this

full

I

trust the

present work will

England on the subject to which

it

of sagacity and practical experience, and

is

that the law of

refers is

be,

capable of being thrown into a form at once plain, short,

and systematic. I wish, in conclusion, to direct attention to the

in

which

as are

embodied

in this

work.

be their

as possible from the actual

make

order to

this in

it

but what I understand

to,

though in doing so

effect,

I

have deviated as

words employed.

little

have done

I

easier to study the subject as a

Every Act of Parliament which

whole.

Law

have given, not the very

I

words of the enactments referred to

manner

have dealt with such parts of the Statute

I

relates to the

Law

of Evidence assumes the existence of the unwritten law. It cannot, therefore,

be

fully

understood, nor can

to other parts of the law be appreciated

till

its

relation

the unwritten

law has been written down so that the provisions of particular statutes this is

may

take their places as parts of

done, the Statute

Law

itself

requires, very great abridgment.

of a

In

•

admits

many

For

instance, the old

competency of certain

parts of six different Acts of Parliament

which

is

given in

So, too, the

five short articles

doctrine of

as to the in-

was removed by

—the net

result

of

(106-110).

incompetency

defective religious belief has been

and even

stated in a line

Common Law

classes of witnesses

When

it.

cases the result

number of separate enactments may be

or two.

of,

for

peculiar or

removed by many different b 2

INTRODUCTION. enactments the

effect

of which

shown

is

in

one

article

(123).

The

enactments relating to documentary

various

dence (see chap,

and

x.)

to appreciate

in a general

appear to

when they

scheme

By

addition

evi-

to follow

and arranged according

to

every part of an Act

rejecting

of Parliament except the its

become easy

to

are put in their proper places

of the law,

their subject-matter.

constitute

me

operative words which

actual

and by

to the law,

setting

it

(so

to speak) in a definite statement of the unwritten law of

which

it

assumes the existence,

brevity with substantial accuracy to

it

possible to

is

combine

and fulness of statement

an extent which would surprise those who are acquainted

with Acts of Parliament only as they stand in the Statute

At the same time

Book.*

use this book for the

I

should warn anyone

who may

purposes of actual practice in or

out of court, that he would do well to refer to the very

words of the statutes embodied in that, in stating their effect instead

may have their

given in

some

it.

It is

very possible

of their actual words,

particulars a mistaken view

I

of

meaning.

Such are the means by which

make

a statement of the

Law

I

have endeavoured to

of Evidence which will

enable not only students of law, but I hope any gent person

who

intelli-

cares enough about the subject to study

* Twenty articles of this work represent all that is material in the ten Acts of Parliament, containing sixty-six sections, which have been passed on the subject to which it refers. For the detailed proof

of

this,

see

Note XLIX.

— INTRODUCTION. attentively

ledge

what

I

have written, to obtain from

it

a know-

of that subject at once comprehensive and exact

a knowledge which would enable him to follow in an telligent

manner

the proceedings of Courts of Justice,

which would enable him to books of the

common

not say more than the matter out into

study cases and use text-

kind with readiness and ease.

this. its

I

I

do

have not attempted to follow

minute ramifications, and

avoided reference to what after matters of curiosity.

in-

and

I think,

all

are

little

I

have

more than

however, that any one who

makes himself thoroughly acquainted with the contents of this

book, will know fully and accurately

ciples

If I

and

am

all

the leading prin-

rules of evidence which, occur in actual practice.

entitled to generalise at all

rience, I think that

from

my own

expe-

even those who are already well ac-

quainted with the subject will find that they understand the relations of selves

its

different parts,

and therefore the parts them-

more completely than they otherwise would, by being

enabled to take them in at one view, and to consider them in their relation to each other.

J.

4,

Paper Buildings, Temple, May, 1876.

F. S.

TABLE OF CASES CITED.

Adams A. G.

Bryant . Hitchcock

.

.

.

.

.

z:

Comwell

.

.

V.

Fnmival

». V.

Aldons Alivon

FACE Ii6

....

Lloyd

z-.

113

124

86, 87

...

....

Allen V. Dundas

z: Fiink . Allgood V. Blake . Abler z'. Geoige Anderson v. Weston Angel V. Dnke Annesley zr. Anglesea . . Appleton V. Braybrooke Aimoory v. Delamire . Areson :'. Lord Kinnaird .

.

.

.... ... .... .

69 48 91 162

143

84 90

.

115

.

158

.

99

.

19

B.

Bacon Bail^

v.

Chesney

V.

Bidwell

.

....

Bank of Hindustan, Case

48

Barrett v. 7).

Barton

73

Allison's

Baron de Bode's Case

Bans

26

Long

Jackson Davies

v.

.

,

.... .... ....

...

Bateman v. Bailey Baneiman v. Radenius

.

.

56 18

49 90 10 143

Bayliss w. A.

G

.

TABLE OF CASES CITED. Castrique

Charlton Charter

Imrie

v.

Chambers

v.

z;.

52, 54, 56, 152

Bernasconi

Coombes

Charter

v.

.

.

34

.

.

.

114

.

.

.

161

.

.

105

.

.

113

.

.

.

.

Chasemore v. Richards Chubb z'. Salomons Clay V. Langslow Clayton v. Lord Nugent .

.... Burton .... Closmadeuc .... Sherard Cole Bayntun ... Braham .... Coole

144

94 25

Clifford V.

2/.

Carrel.

85

64

V.

Collins V. V.

Cooper

v.

Cope

V.

Cope

Cory

V.

Creeve

Cronk

Tanswell .

v.

73

.

.

....

Barrett

Frith

Dixon

Crossley

v.

Curry

Walter

w.

...

.

Bretton v.

73 27

...

38, 39

.... .

,

loj 28

.

.

72 108

in

D.

Da

Costa

v.

132

Jones

27 Dartmouth, Lady, v. Roberts 157 86, 87 Davidson v. Cooper Davies v. Lowndes 40, 41, 150 v. Waters 117 Di Sora v. PhiUipps 56 108 Dixon V. Hammond Doe V. Barton 107 V. Baytup 107 Daniel

v. Pitt

.

.

.

.

V.

Beaviss

V,

Brydg«s

37 SO

V.

Catomore

87

V.

Coulthred

99

V.

Date Derby

V.

.

116

.

42

TABLE OF CASES CITED. G.

.

TABLE OF CASES QITED. P.

Ley

Barlow Lindley v. Lacey Lucas V. De la Cour

117

V.

Paddock

.

26

M.

Moor

V.

61

.

Malcolmson v. O'Dea. Mann v. Langton Marston v. Downes McMahon v. McElroy

133 132

.

Miles

Oddy

V.

Miller

69

.

Travers

v.

69 103

94 98

.

Mills V. Barber

Minet

Morgan

v.

Morgan

Moriarty

way

116

.

90

v. Griffiths

&

L. C.

v.

D. Raillo. 23, 143

.

Morris

Davies

v.

103

Mortimer v. McCallan Muggleton v. Bamett

69

9

N.

Needham Neil

v.

Nepean

V.

Noden

10 103

Knight

Duke

v.

V.

v.

Chaplin

Ward Murray

.

O.

Omichund

v.

103

.

of,

....

towe

Newton

48

.

Doe

v.

Newcastle,

Noble

Bremner

Jakle

V.

Barker

Brox-

40 71

160 68

v.

Forester

.

.

...

TABLE OF CASES CITED. R.

— — — — —

— — — — — — — — —

— — — — — — — — —

— — — — — — — — — — — — — — — —

V.

Barnard

V.

Bathwick Bembridge Blake

V. v.

V. Bliss

.

PAGE 12 ii8

XV 7

39 29

.

v.

Boswell

V.

Boyes

H7

V.

Butler

V.

V.

Canning Cheadle Chidley & Cummins

99 20

V.

Clapham

V.

Clarke

V.

Clewes

V.

Cliviger

V.

Cole Davis

V.

V. z/.

V. V.

v.

V.

.

.

.

.

16

Donellan Doolin

Dove

12 .

.

Drummond Dunn

V.

Exeter

V.

Forster

V.

Foster

V.

Foulkes

.

V.

Francis

.

V.

Francklin

V.

Garbett

V.

Garner Gazard Geering

V.

117 IS

.

Edmunds

V.

30

10,

Eriswell

w.

34 127

V.

V.

31

.

V.

V.

164

i,

Gilham Gordon Gould Gray

122 57 127 16

10 .

.

42 38 17

6

45 .

31

.

20

.

112

.

.

5

17

.

.

20 29 87

30

.

19

V. Griffin

173

V.

V.

Harbome

103

R.

V,

Hardy

— Harringworth — Hartington, Quarter — Havforth — Heyford — Hind — Hogg — Holmes — Holt — Home Tooke — Hull — Hutchinson — Jarvis

7>

V.

V.

Middle 49 69

.

».

.

V.

37

.

V.

33,

.

42

v. V.

127

.

V.

.

17

.

58

V.

V.

.

91

.

w.

— — — —

— — — — — — — — — — — — — — — — — — — — —

"3

72, 156

33 100

V. V.

Jenkins

V.

Llanfaethly

71

V,

Lloyd Lord George Goirdon Lord Thanet

30 170 103

V.

V.

33

.

12

V.

Luffe

V.

Lumley

v.

Mansfield

V,

Martin

V.

Moore

V.

Mosley

V.

Oddy

V.

Orton 46, 124 Palmer 10, 19, 56 Parbhudas and Others 136 Patch 10 Payne III Pike 127 Richardson !0, 113 Rovcton il, 152

V. V. V. V.

V. V. V.

-Sr V.

.

103

.

.

103 127

30

•

32

.

16

.

.

.

.

.

.

.

.

.

Russell

V.

Scaife

V.

Scott

V.

Sparkes

.

.

169

4Z< 43 .

•

v.

Stephenson

V,

Stone

31 171

.

.

.43 100

TABLE OF CASES CITED.

TABLE OF CASES CITED. PAGE Garth 73,156 Wigglesworth v. Dallison 89, 160 Williams v. Bridges 27 V. East India Co. 98 V. Graves 37 Wilson V. Anderton 108

Whyman

z'.

.

.

... ...

PAGE

Woodcock V. Houldsworth Wright V. Doe d. Tatham

21

SS

.

!>.

Wing

V.

Rastal

Angrave

.

.

.

.

.

.

.

....

115

103

Y.

Young V. Clare Hall Young V, Grote

.

•

147

107,167

(

xxxi

)

TABLE OF STATUTES CITED.

7

James

....

12

I. c.

& 8 Will. III. c. 3, ss. 39 & 40 Geo. III. c. 93 7

41 Geo. III.

46 Geo. 7

go,

c.

III. c.

Geo. IV.

c.

37

IV.

9 Geo. IV.

c.

28,

c.

14,

5

& 4 Will. & 6 Will.

6&7 I

&

IV.

2 Vict.

c. c.

3

6 8

&4 &7 &9

II

.

.

181

.

126

.

169

.

60

16

&

17 Vict.

ss.

83,

t.

.

17

&

18 Vict.

t.

125

17

&

18 Vict.

c.

125,

120

24

,

ss.

21,

ss.

22-27 184

169

,

169, 179

,

s.

24

118

,

s.

26 74, 157

,

s.

27 59, 181

u.

85

u.

lo,

c.

113 (preamble)

6

.

126, 181

77. 179

19

.179

24

& &

20 Vict.

c.

97,

25 Vict.

c.

66

s.

I

,

=.

2

.

63, 179

c.

96,

,

s.

3

•

79. 179

c-

99.

...

179

8

62

ss. 7,

20

121

Vict.

21,

2

s. s.

.

Vict.

113

112

.

. ,

.

.

I,

78

3

»•

,

76

26

c.

79

169

.

.

II, 19

2

100

13

83 lO,

9,

121

Ill

<j.

14 Vict.

-, ss.

169

.

c. 50, ».

s.

•

16

36

.

7

»•

-, a.

.

.

-

60

.

105

.

.

.

ss. I, 12,

2

14

36

94,

-, ».

-, s.

25

.

179

99

u.

45

.

c.

15 Vict.

80

.

42

&

14

118, 178

Vict.

c.

&

.

.

3

s.

,

13

.

.

c.

IV.

Will. IV.

s.

47 119

.119

.

I

s. ,

3

4

s.

.

.

.

.

64,

7&8Geo.

9

s.

4

2,

PAGE

.

28

&

29 Vict.

c.

s. .

s. !i-

13

.

.

.

116

18, ss.

25

119,181

.

37

126

•

I,

.

61

•

61

7 74. 157

TABLE OF STATUTES CITED. FAGB

28

&

29 Vict.

18,

c.

-^ ,

s.

ss.

S

.

126

32

& 33

Vict.

u.

68

118

,

s.

3

III, 169

,

s.

4

120, 168

4

5.

5

,

s.

6 124, 182

,

s.

7

,

s.

8

,

S.

34

.

a.

6

.

.

,

— •

30 31

& &

31 Vict.

c.

35,

32 Vict.

t.

37

182

s.

,

.

.

.

126, 182

.

.

& 34 &

33

Vict.

I,.

49

35 Vict.

I,.

70,

C.

112,

34

182

59, 182

36

Ill

37

44

81, 82, 182

& &

37 Vict.

I,.

66,

38 Vict.

v;.

35

c.

183

2

182, 184 "-

.

-, s.

3-8

96

120, 183

.

».

5

19

a.

a.

.

.

.

81

16

63

76 .

"169

(

xxxiii

LIST OF ABBREVIATIONS.

A.

&

E.

.

LIS T

xxxiv

OF ABBRE VIA TIONS.

I

De Ge. & J. De G. M. & DeG. &S.

.

.

De Gex & Jones's Reports. De Gex, Macnaughten, & Gordon. DeG. & Smale's Reports.,

.

.

Denison's

.

.

G.

Den. C. C.

.

Dru. and War.

.

Cases.

Drury

&

Warren's Reports.

East's Reports.

Ea East, P. C.

E.

Crown

Douglas's Reports.

Doug

&

B.

.

.

.

East's Pleas of the

.

.

Ellis

&

Crown.

Blackburn's Reports.

Esp

Espinasse's Reports.

Ex

Exchequer Reports.

F.

&F.

Foster

Gen. View Cr.

Law

of the Criminal Law.

H. Blaqkstone's Reports. Hurlston Hurlston

& &

Coltman's Reports.

Norman's Reports.

House of Lords

Rep. Rep. Eq.

&

View

.

Cir.

Jac.

Stephen's General

Hale's Pleas of the Crown. Hare's Reports.

Hare H. Bl. H. &C. H. & N. H. L. C.

Ir.

Finlason's Reports.'

.

Hale, P. C.

Ir.

&

Wal.

Cases.

Irish Circuit Reports. Irish Equity Reports.

Jacob

&

Walker's Reports.

Jebb, C. C.

Jebb's Criminal Cases (Ireland).

Keen

Keen's Reports, Chancery.

L.

&

.

C.

Leach L.

J.

.

Ch.

.

L.J.Eq. L. J. M. C.

.

L.

J.

N.

Leigh

&

Leach's

.

S.

L. R. Ch. Ap, L. R. C. C.

Cave's

Crown

Crown

Cases.

Cases.

Law Journal, Chancery. Law Journal, Equity. Law Journal, Magistrates' Cases. Law Journal, New Series. Law Reports, Chancery Appeals. Law Reports, Crown Cases Reserved.

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

,

LIST OF ABBREVIATIONS. T. R. T. E.

.

Tau.

.

.

.

.

.

Term

.

Ve

Vesey's Reports.

Wigram, .

Reports.

Taylor on Evidence, 6th ed. Taunton's Reports.

-p

f

or

.

.1

-p-

Wills's Circ. Ev.

f .

_ ^ Wigram on Extnnsic Evidence. ,„.

.

.

.

Wills on Circumstantial Evidence.

——

—

(

—3

xxxvii

)

CONTENTS. PART

I.

RELEVANCY. Chapter

'

Art.

Definition of

I.

Chapter

Of Facts

II.

I.

Preliminary.

Terms

Page in issue

and Relevant to the

i

—

issue.

—

may be proved Relevancy of Facts forming part of the same transaction as Facts in issue 6. Customs 4. Acts of Conspirators J. Title preparation, subsequent conduct, explanatory state7. Motive, ments 8. Facts necessary to explain or introduce relevant Facts 4 14 9. General definition of Relevancy

Art.

Facts in issue and Facts relevant to the issue

2.

3.

—

—

—

—

—

....

—

Chapter III. Occurrences similar to but unconnected with THE Facts in issue. Irrelevant except in certain cases.

Art.

10.

tion,

.

Similar but unconnected Facts

good

faith,

&c.

of course of business

Chapter

IV.

—

12.

when

—

11.

Acts showing inten-

— ....

Facts showing system

relevant

Hearsay Irrelevant except

—

13. Existence 15

— 21

in certain Cases.

—

16. Who Hearsay irrelevant 15. Admissions defined may make admissions, and when 17. Admissions by agents and 18. Admission by strangers persons jointly interested with parties

Art.

14.

—

—

c

—

CONTENTS.

—

— —

an action 19. Admission by person referred to by party 21. Confessions defined Admissions made without prejudice 22. Confession caused by inducement, threat, or promise, when irrelevant in Criminal Proceeding 23. Confessions made upon oath, to

—

20.

—

—

made under ments by deceased persons when &c.

as

to

24. Confession

cause of death

—

relevant

— 26.

27. Declarations

made

— 28.

business or professional duty

by

29. Declarations

a promise of secrecy

—

25. State-

Dying declaration in

the course of

Declarations against interest

testators as to contents of will

—

—

Declara-

30.

— Declarations as vant — Depositions before magistrates — Depositions under 30 & 31 6— Relevancy of statement in certain — 36. Relevancy of entry in public record made or in performance of duty — Relevancy of statements in maps, 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. Statements in judgments irrelevant between except in Admiralty Cases — Effect of judgment not pleaded as an estoppel —44. Judgments generally irrelevant between strangers — Judgments conclusive in favour of Judge — Fraud, or want of diction may be proved — 47. Foreign judgments Page 22 — 54 tions

—

and g^eral

public

as to

pedigree

rights

33.

rele-

34.

Vict.

acts

to

31.

Evidence given in former proceeding when

32.

c.

35.

s.

35,

notifications

37.

charts,

38.

39.

tion

their

40.

effect

41.

as

strangers,

43.

as

45.

collusion,

46.

juris-

.

Chapter V. Art.

when Relevant and when

Opinions,

48. Opinioii generally irrelevant

—

not.

49. Opinions of experts

on

— Facts bearing upon opinions of experts — Opinion as handwriting, when relevant — Comparison of handwritings — Opinion as to existence of marriage, when relevant — Grounds of opinion, when relevant 55 — 59 points of science or art

50.

to

51.

52.

53.

54.

.

Chapter VI.— Character, when Relevant and when not. Art.

55.

Character generally irrelevant

in Criminal Cases

— 57.

—

56.

Evidence of character 60 61

Character as affecting damages

.

—

—

— CONTENTS.

PART

II.

ON PROOF. Chapter

VII.

—Facts

which need not be proved —Judicial Notice.

Art. to

58.

Of what Facts

—

........ such

proof of

proved

Facts

Chapter

—

the Court takes judicial notice

VIII.

60.

Facts

59.

—

Of Oral Evidence.

— ..........

Art.

61. Proof of Facts by oral evidence be direct

Chapter IX.

As

need not be Page 62 65

admitted

62. Oral evidence

must 66

Of Documentary Evidence—Primary and

Secondary, and Attested Documents.

—

—

Proof of contents of documents 64. Primary evidence Secondary evidence 66. Proof of documents by primary evidence 67. Cases in which secondary evidence relating to documents may be given 68. Rules as to notice to produce 69. Proof of execution of document required by law to be attested 70. Cases in which attesting witness need not be called "JI. Proof when attesting witness denies the execution 12. Proof of document not required by law to be attested 67 74

Art.

63.

—

65.

—

—

—

•

—

—

—

.....

Chapter X. Art. 77,

Proof of Public Documents.

Proof of public documents

73.

itself

—

75.

—

Examined copies

78. Exemplifications

—

—

76.

—

74- Production of document General records of the realm

79. Certified

copies

admissible throughout the Queen's dominions

—

—

—

80.

Documents

81. Queen's printers' Proof of Irish statutes 83. Proclamations, Orders in Council, &c. 84. Foreign and Colonial Acts of State, judg-

copies

— 82.

ments, &c.

—

—

75

— 83

—

CONTENTS.

xl

Chapter Art.

XI.

Presumptions as to Documents.

—

86. Presumption Presumption as to date of a document stamp of a document 87. Presumption as to sealing and delivery of deeds 88. Presumption as to documents thirty years Page 84 87 old 89. Presumption as to alterations 85.

as to

—

—

—

.

—

.

Chapter XII.— Of the Modification and Interpretation OF Documentary Evidence by Oral Evidence. Art.

90.

Evidence of terms of contracts, grants, and other dispositions

of property reduced to a documentary form

may be given which

articles

90 and gi do not apply

— 91.

What

— 92.

....

for the interpretation of

documents

evidence

Cases to 88 96

—

—— CONTENTS.

PART

xli

III.

PRODUCTION AND EFFECT OF EVIDENCE. Chapter XIII.— Burden of Proof. Art.

—

93. 95.

He who affirms must prove — 94. Presumption of innocence On whom the general burden of proof lies 96. Burden of

—

—

proof as to particular Fact 97. Burden of proving Fact to be Page 97 loi proved to make evidence admissible .

On Presumptions and

Chapter XIV.

—

.

.

Estoppels.

—

Art. 98. Presumption of legitimacy 99. Presumption of death from loi. Preseven years' absence 100. Presumption of lost grant 102. Estoppel sumption of regularity and of deeds to complete title 104. Estoppel by conduct 103. Estoppel of tenant and licensee of acceptor of bill of exchange 105. Estoppel of bailee, agent, 102—109 and licensee

—

—

106.

108.

—

— ........

Of the Competency of Witnesses.

Chapter XV. Art.

— —

Who may testify —

Competency

What

107.

ings relating to adultery

—

—

— — questions —

witnesses are incompetent

Competency in proceedno. Communications during marriage

in Criminal Cases

109.

Judges and advocates privileged as to certain 112. Evidence as to affairs of State 113. Information as to commission of offences 114. Competency of jurors 115. Professional communications 116. Confidential communications with 111.

—

legal advisers

— 117.

tion of title-deeds

—

—

—

Clergymen and medical men

of witness not a party

—

— 118.

Produc-

119. Production

of

documents which another person, having possession, could refuse 120. Witness not to be compelled to criminate himto produce

—

self

— .........

— 121.

nesses

Corroboration,

when

required

122.

Number

of wit-

no — 119

——

CONTENTS.

xlii

Chapter XVI. Art.

Of the Examination of Witnesses.

—

Evidence to be upon oath, except in certain cases of oaths 125. Who is to have power to administer oaths 126. Examination in chief, cross-examination, and reexamination 127. To what matters cross-examination and reexamination must be directed 128. Leading questions 130. Exclusion of 129. Questions lawful in cross-examination 123.

124.

—

Form

—

—

— 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 — —

•

—

131.

to

132.

133.

134.

to

135.

tions

articles

'S^-

137.

138. Giving, as

— 139.

document called

evidence,

for

and produced on

Using, as evidence, a document, production of which was refused on notice Page 120 129

notice

.

Chapter XVII.

.

.

.

—

.

Of Improper Admission and Rejection of Evidence.

Art. 140

........

.

Appendix of Notes Index

130

131

...

185

ERRATA. P. xxxiii. line 2

P. 5, Article i,

from the top, /or Atkinson's read Atkyns's. for "the faft that B just "the fact that a witness in the was shot;" and in the next line

line 2,

Illustration (a),

before he was shot," read

room with B just before B "he" read" B."

for

P. 46. Title of Article 37, insert

" Works of History,"

defore

"Maps,

Charts, and Plans."

ADDENDA. P.

49.

Note('). Add,"a.ndseeFlttters\.Allfrey,L.R.loC.'P.2g;

and contrast Dover P. 162.

At

the enflofthe

y. Child,

first

L. R.

I

Ex. Div. 172."

paragraph, add

"The

part of Lord

Penzance's judgment above referred to was unanimously overruled in the

House

of Lords

;

though the Court, being

equally divided as to the construction of the will, refused to reverse the judgment,

upon the

principle

" p-asumitur

pro negante." P. 167.

Note XXXIX. Add at the end of the first paragraph, " The rules on this subject are stated in general terms in Carr v. L. &> N. W. Railway, L. R. 10 C. P. 316-17."

—

A DIGEST

THE LAW OF EVIDENCE. PART

I.

RELEVANCY. CHAPTER PRELIMINARY. I.

Article

i.*

definition of terms.

In

this

book the following words and expressions are

used in the following senses unless a different intention appears from the context. " Court " includes all persons authorised

by any law

compel the attendance of witnesses

for

deciding any question of law or of

or of law and

" Judge " includes

all

fact,

the purpose

to oif

fact.

persons authorised to take evi-

dence, either by law or by the consent of the parties. " Fact " (i)

means

Everything capable of being perceived by the senses *

See Note

I.

:

;

—

;

A DIGEST OF

[Part any person

Every mental condition of which

(2)

I.

is

conscious.

Every part of any

fact is itself a fact.^

"

Document " means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.^ " Evidence " (i) All

made by

to be

means

statements which the judge permits or requires witnesses in court, in relation to matters of

under inquiry

fact

such statements are called oral evidence

:

All documents produced for the inspection

(2)

of the

Court or judge such documents are called documentary evidence. " Conclusive Proof" means evidence upon the production of which, or a fact upon the proof of which, the judge

bound by law

some

to regard

evidence intended to disprove

"A

fact as proved,

is

and to exclude

it.^

Presumption" means a rule of law that Courts and

judges shall draw a particular inference from a particular fact,

or from particular evidence, unless

of such inference

is

and

until the truth

disproved.^

" Action " means any judicial proceeding, whether

civil

or criminal. Illustrations, (a)

That there are certain objects arranged in a certain order in a

certain place

'

is

a fact.

Illustration (a).

-

Illustration

{b).

'

Illustration

{c).

Chap.

I.]

THE LAW OF EVIDENCE.

3

That a man heard or saw something is a fact. That a man said certain words is a fact. That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is

a

fact.

(b)

A writing is a document.

Words

printed, lithographed, or photographed, are documents.

A map or plan is a An inscription on

A (c)

is

document. a metal plate or stone

is

a document.

caricature is a document.

The production

of the record of a judgment of a Court of Record

conclusive proof that that Court delivered that judgment.

The

fact that a

married

woman committed

a theft in her husband's

presence raises a presumption that she acted under his coercion.

E 2

— A DIGEST OF

[Part

CHAPTER 11. OF FACTS IN ISSUE AND RELEVANT TO THE Article facts in issue

I.

ISSUE.

2.*

and facts relevant to the issue may be proved.

Evidence may be given

any action of the existence

in

or non-existence of any fact in issue, relevant to any fact in issue,

and of no

The judge may exclude evidence of relevant to the issue, appear to him material under

all

and of any

fact

others. facts which,

though

too remote to

be

the circumstances of the case.

The

expression "facts in issue"

(i)

All facts which, by the form of the pleadings in

any

action, are affirmed

other (2)

means

on one side and denied on the

:

In actions in which there are no pleadings, or in

which the form of the pleadings

is

such that distinct issues

are not joined between the parties, all facts from the esta-

blishment of which the existence, non-existence, nature, or extent of any right, in

liability,

or disability asserted or denied

any such case would by law

The relevancy of

follow.

facts to facts in issue,

*

See Note

II.

depends on the

Chap.

and

principles

and

LAW OF EVIDENCE.

THE

II.]

stated

rules

chapters

in

s

v.,

iv.,

iii.,

ii.,

vi.

Illustration.

A is indicted for the murder of B,

(a)

The

following facts

may be

in issue

:

and pleads not

guilty.

—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 time

fact that at the

when

;

provocation as would reduce his offence to manslaughter.

A

The had

following facts would be relevant to the issue: a motive for murdering

had murdered

B

;

the fact that

B

;

the fact that

A was,

A

—The

fact that

admitted that he

after B's death, in possession of

property taken from B's person.

Article

3.

relevancy of facts forming part of the same transaction as facts in issue. Facts which, though not in issue, are so connected with a

form part of the same transaction or

fact in issue as to

subject-matter, are relevant to the fact with which they are

so connected. Illustrations.

The question is, whether A murdered B by shooting him. The fact that B, just before he was shot, saw a man with a gun in his hand pass a window opening into the room in which he was shot, and thereupon exclaimed, "That's the butcher " (a name by which A [a)

!

was known) (b)

The

is

relevant.'

question

is,

whether

A

committed manslaughter on

B by

carelessly driving over him,

A statement '

Ex

R,

made by B

V. Foulkes,

as to the cause of the accident, as soon as

per Campbell, C.

relatione O'Brien, Serjt.

J.,

Leicester Spring Assizes, 1856.

A DIGEST OF

[Part

I.

he was picked up, is a relevant fact, though it may not be admissible as a dying declaration.' {c) The question is, whether A, the owner of one side of a river, '

owns the

The

entire

fact that

bed of

it,

or only half the bed, at a particular spot. little lower down the river is

he owns the entire bed a

relevant.^ is, whether a slip of land by the roadside belongs manor or to the owner of the adjacent land. The fact the lord of the manor owned other parts of the slip of land by the of the same road is relevant.'

(d)

The

question

to the lord of the that

side

Article

4.*

acts of conspirators.

When two

or

more persons conspire together to commit

any offence or actionable wrong, everything written

by any one of them

of their

common

purpose,

is

deemed

or written by every one, and

each of them

;

said,

done, or

in the execution or furtherance

to be so said, done,

a relevant fact as against

is

but relations of measures taken in the execu-

common

any such

tion or furtherance of

purpose are not

relevant as such as against any conspirators, except those

who make them,

or are present

Evidence of acts relevant under given until the judge

when they this

is satisfied that,

article

are

made.

may

not be

apart from them, there

are primi facie grounds for believing in the existence of the

conspiracy. * 1

R.

V.

Foster, 6 C.

and Fatteson,

J.)

who

&

See Note

P. 325.

III.

The Judges

(Park, J., Gurney, B., decided this case referred to Aveson v. Lord

Kinnaird, 6 Ea. 193. See article 11, Illustration [m]. ° Jones V. Williams, 2 M. & W. 326. '

Doe

V.

Kemp,

7 Bing. 332

;

2 Bing. N.C. 102.

Chap.

THE

1 1.]

LAW OF E VIDENCE. Illustrations,

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. The fact that A made in a book a false entry, necessary to be made in that book in order to carry out the fraud, is a relevant fact as against B. 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, is not a {a)

The

question

is,

relevant fact as against B.'

The question

A committed high treason

whether

by imagining he presided over an organised political agitation calculated to produce a rebellion, and directed by a central committee through local committees. The facts that meetings were held, speeches delivered, and papers circulated in different parts of the country, in a manner likely to produce rebellion by and by the direction of persons shown to have acted in concert with A, are relevant facts as against A, though he was not present at those transactions, and took no part in them persoftally. An account given by one of the conspirators in a letter to a friend, of (b)

the king's death

his

own

object,

;

is,

the overt act charged

is

that

proceedings in the matter, not intended to further the

and not brought

to

A's notice,

is

common

not relevant as against,

A.''

Article

5.*

TITLE.

When

the existence of any right of property, or of any

right over property is in question, every fact stitutes the title

shows that he, or any person through in possession of the property,

tutes

which con-

of the person claiming the right, or which

an exercise of the

whom

and every

right,

he claims, was

fact

which

consti-

or which shows that

* See Note IV,

R.

V.

Blake, 6 Q. B. 137-40.

R.

V.

Hardy, 24

S. t.

passim, but see particularly 451-3.

its

A DIGEST OF exercise was

pr which

disputed,

existence or renders

its

is

[Part inconsistent with

existence improbable,

is

I.

its

relevant.

Illustrations, (a)

The

An

ancient inquisitio post

question

is,

whether

A has

a right of fishery in a river.

mortem finding the existence of a right of fishery in A's ancestors, licences to fish granted by his ancestors, and the fact that the licensees fished under them, are relevant.' (b) The question is, whether A owns land.

The fact that A's (c) The question

ancestors granted leases of is,

whether there

it is

relevant.^

a public right of

is

way

over A's

land.

The facts that persons were in the habit of using the way, that they were turned back, that the road was stopped up, that the road was repaired at the public expense, and A's title-deeds showing that for a length of time, reaching beyond the time when the road was said to have been used, no one had power to dedicate it to the public, are all relevant.'

Article

6.

CUSTOMS.

When

the existence of any custom

fact is relevant

is

in question, every

which shows how, in particular instances,

the custom was understood and acted

upon by the

parties

then interested. Illustrations.

whether, by the custom of borough-English as (a) The is heir to B. prevailing in the manor of C, question

is,

A

The '

fact that other persons,

Rogers

v. Allen, I

Camp.

being tenants of the manor, inherited

309.

'

Doe

'

Common practice. As to the

Pulman, 3 Q. B. 622, 623, 626 (citing Duke of Bedford v. The document produced to show the lease was a counterpart Lopes). signed by the lessee. Sttpost, art. 64. V.

Derby Summer

Assizes, 1865.

title

deeds,

Brough v. Lord Scarsdale

— Chap.

THE

II.]

LAW OF E VIDENCE.

g

from ancestors standing in the same or similar relations to them as that which A stood to B, is relevant.'

in

Article

7.*

motive, preparation, subsequent conduct,

explanatory statements.

When any

done by any person

act

a fact in

is

issue, or is

relevant to the issue, the following facts are relevant, that to say

is

any fact which supplies a motive constitutes preparation for

for such

an

act, or

which

it.^

any subsequent conduct of such person which appears to have been influenced by any such

and any act done

act,

in

consequence of any such act by or by the authority of that person.^ all

made by

statements

and explaining any such

The conduct

or to that person accompanying

act.*

of a person against

whom

been committed, and in particular the

an offence has

fact that

he made

a complaint soon after the offence to persons to

whom

he would naturally complain, are relevant ; but the terms of the complaint itself seem not to be relevant.^

When issue,

a person's conduct

statements

made

in

• '

Muggleton

*

Illustrations (a)

(b).

*

Illustrations

(g).

are,

v.

Barnett,

and (/) and

I

is

his

in issue or is relevant to the

presence and hearing by

See Note V.

H.

&

N. 282.

' Illustrations (c) (d) and {e). Other statements made by such persons

relevant or not according to the rules as to statements hereinafter

contained.

See

ch. iv,

/w^.

'

Illustration (^).

A DIGEST OF which

his

conduct

have been

to

likely

is

[Part

affected,

I.

are

relevant facts. ^ Illustrations. (a)

The

The

question

whether

is,

A

murdered B. A, B murdered

facts that, at the instigation of

years before B's murder,

A

and that

at or before

C

twenty-five

that time used

against C, are relevant as showing a motive on A's part to murder B.* (b) The question is, whether A committed a crime. The fact that A procured the instruments with which the crime was

expressions showing malice

committed

A

(c)

The

is

is

relevant.'

accused of a crime.

time of, or after the alleged caused circumstances to exist tending to give to the facts of the case an appearance favourable to himself, or that he destroyed or facts that, either before, or at the

A

crime,

concealed things or papers, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence, are relevant.*

whether A committed a crime. commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, and the manner in which he (d)

The

The

question

is,

facts that, after the

conducted himself- when statements on the subject were made in his presence and hearing, are relevant.''

The question is, whether A suffered damage in a railway accident. The fact that A conspired with B C and D to suborn false witnesses

(e)

in support of his case issue tending to

show

is

that

relevant it

°

as conduct subsequent to a fact in

had not happened.

A

committed an act of bankruptcy, by (f) The question is, whether departing the realm with intent to defraud his creditors. Letters written during his absence from the realm, indicating such an intention, are relevant facts.'

Edmunds, 6 C. & P. 164; Neil v. Jakle, 2 C. ° R. v. Palmer 4 C. & P. 221.

'

R. R. R.

'

Common

practice.

*

Moriarty

v.

'

Rtmson

'

*

V.

V. Clewes, V.

Patch, Wills Circ, Ev. 230

V.

;

R.

v.

&

K. 709.

(passim).

Palmer, ub, sup. (passim).

London Chatham and Dover Co., L. R. 5 Q, B. 314. ; Bateman v. Bailey,-^ T. R. 512..

Haigh, 2 Bing. 99

Chap.

The

(g)

THE

II.]

upon a

question

The

A

whether

is,

by him

letter received

the issue.

LAW OF EVIDENCE is

was

sane.

The

ii

fact that

he acted

relevant, as conduct forming part of

contents of the letter so acted

upon are

relevant, as

statements accompanying and explaining such conduct.^

The

(h)

The

question

is,

whether

A

was ravished.

fact that, shortly after the alleged rape, she

are relevant, but not

The

fact that,

made a complaint

and the circumstances under which

relating to the crime,

(it

it

was made,

seems) the terms of the complaint itself

without making a complaint, she said that she had

been ravished, is not relevant as conduct under this article, though may be relevant. («.^. ) as a dying declaration under article 26.

Article

it

8.

facts necessary to explain or introduce relevant FACTS.

Facts necessary to be

known

a fact in issue or relevant

fact,

an inference suggested by a

to explain or introduce

or which support or rebut

fact in issue or relevant fact,

or which establish the identity of any thing or person

whose

identity

fix the

fact

is

in issue or relevant to the issue, or

which

time or place at which any fact in issue or relevant

happened, or which show that any document produced

genuine or otherwise, or which show the relation of the

is

parties

by whom any such

afforded an opportunity for

fact its

or which are necessary to be

relevancy of other

was transacted, or which occurrence or transaction,

known

in order to

facts, are relevant in so far as

show the they are

necessary for those purposes respectively.

'

»

Wright v. Doe R.

V.

d.

Walker, 2

Tatham, 7 A. & E., 324-5 (per Denman, C. & R, 212. SeeNote V.

M.

J,).,

A DIGEST OF

[Part

I.

Illustrations.

The

(a)

question

is,

A

whether a writing published by

of

B

is

libellous or not.

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.

The particulars of a dispute between A and B about a matter unconnected with the alleged libel are not relevant under 'this article, though the fact that there was a dispute may be relevant if it affected the

A and

between

relations

B.'

whether A wrote an anonymous letter, threatening B, and requiring B to meet the writer at a certain time and place to satisfy his demands. (b)

The

question

is,

The fact that A met B at that time and place is relevant, as conduct subsequent to and affected by a fact in issue. The fact that A, had a reason, unconnected with the letter, for being at that time at that place, is relevant, as rebutting the inference suggested by his presence.^ .

(c) ,

A

tried for a riot,

is

The

of a mob.

cries

and

of the

is

mob

proved to have marched

at the

head

are relevant, as explanatory of the

nature of the transaction.' (d)

The

made

question

is,

whether a deed was forged. It purports to be and Mary, and enumerates King Philip's

in the reign of Philip

titles.

The

fact that at the alleged date of the deed,

drawn with a

records were

Acts of State and other

different set of titles, is relevant.*

The question is, whether A poisoned B. Habits of B knovm A, which would afford A an opportunity to administer the poison,

{e)

to

are relevant facts.* (/)

The

question

His way of

him unduly,

life

is,

whether

A

made a

will

under undue influence. have influenced

relations with the persons said to

are relevant facts."

'

Common

^

R.

*

Lady

V.

and

practice.

'

R.

Lord George Gordon, 21

v.

Barnard, 19

St. Tri. 815,

&c.

St. Tri. 520.

Ivy's Case, 10 St. Tri. 615.

R. V. Donellan, Wills Circ, Ev. 192 ; and see the Criminal Law, p. 338, &c. » Boyse y. Rossborough, 6 H. L. C. 42-58. =

'

my

'

General View of

— Chap.

;;

THE

II.]

;

:

LAW OF EVIDENCE.

Article

13

9.*

general definition of relevancy. Facts, whether in issue or not, are relevant to each other

when one

is,

may

or probably

be, or probably

may have

been the cause of the other the effect of the other

an

effect

of the same cause

a cause of the same or

when

;

effect

the one shows that the other must or cannot have

occurred, or probably does or did exist, or not

or that any fact does or did exist, or not, 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

fall

iii., iv.,

within the exclusive

v., vi.

;

or that they do

within the exceptions to those rules contained in those

chapters. Illustrations.

[a)

A's death

the poison

is

is

caused by his taking poison.

relevant to A's death as

to the poisoning as [b)

A and B

its

cause.

The

administration of

A's death

is

relevant

its effect.

each eat from the same dish and each exhibit symptoms A's symptoms and B's symptoms are relevant to

of the same poison.

each other as [c)

The

effects of the

question

is,

same

cause.

whether

A

died of the effects of a railway

accident. * See

Note VI.

A DIGEST OF

14

[Part

I.

Facts tending to show that his death was caused by inflammation of

membranes of the brain, which probably might be caused by the ; and facts tending to show that his death was caused by typhoid fever, which would have nothing to do with the accident, are relevant to each other as possible causes of the same effect^A's death. (if) A is charged with committing a crime in London on a given day. The fact that on that day he was at Calcutta is relevant, as proving that he could not have committed the crime. the

accident

(e) The question is. Whether A committed a crime. The circumstances are such that it must have been committed

either

by A, B, or C. Every fact which shows this, and every fact which shows that neither B nor C committed it, or that either of them did or might have committed it, is relevant. (f) B, a person in possession of a large sum of money, is murdered and robbed.. The question is, whether A murdered him. The fact that after the murder A was or was not possessed of a sum of money unaccounted for is relevant, 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. A's knowledge that B was in possession of the money would be relevant as a fact which, in the ordinary course of ,

events, might cause or be one of the causes of the murder. (g)

A is murdered in his own house at night.

The absence of marks

murder was committed by a servant, because it shows the absence of an eifect which would have been caused by its being committed by a stranger. of violence to the house

is

relevant to the question whether the

Chap.

THE

III.]

LAW OF EVIDENCE.

CHAPTER

\i

III.

OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH THE FA CTS IN ISSUE, IRRELE VANT EXCEPT IN CERTAIN CASES. Article

io.*

similar but unconnected facts,

The

occurrence of a fact similar

to,

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. Illustrations.

The question is, whether A committed a crime. The fact that he formerly committed another crime of (a)

and had a tendency (b)

The

publican. licans,

of the

is

question

The

commit such

to is,

crimes,

is

the

same

sort,

irrelevant.'

whether A, a brewer, sold good beer to B, a A sold good beer to C, D and E, other pub-

fact that

irrelevant (unless

it is

shown

that the beer sold to all

is

same brewing).'

Article

ii.f

ACTS SHOWING INTENTION, GOOD FAITH, &C.

When

the intention, knowledge, good faith, malice, or

any other state of * '

R.

mind of any person, or when any bodily

See Note VII.

V. Cole.

I.

Judges in Mich. Term, 1810). Holcoml>e\.Hewson,2C2.m^. ^^i. ''

t See Note VII.

Phi. Ev. 508 (said to have been decided

^

See Illustrations to

by

all

the

article 3.

6

A DIGEST OF

1

feeling, or the state

[Part

of the body of any person

issue or relevant to the issue, all things

is

I.

a fact in

done or said by any

such person which express or show the existence of any such state of

mind or body,

in reference to, the particular

in question, are relevant,

though they

may

done or said on the occasion when the

matter

not have been facts

in

issue

happened. Statements

made

to

any such person which would cause

or prevent the existence of any such state of mind, are relevant facts.

'Where proceedings are taken against any person

for

having received goods, knowing them to be stolen, or for having in his possession stolen property, the fact that there

was found

in the possession of such person other property

stolen within the preceding period of twelve months,

relevant to the question whether he

knew

is

the property to

be stolen which forms the subject of the proceeding taken against him. in the case of such proceedings as aforesaid, evidence

If,

has been given that the stolen property has been found in the possession of the person proceeded against, the fact that

such person has within five years immediately preceding,

been convicted of any offence involving fraud or dishonesty, relevant for the

is

purpose of proving that the person

accused knew the property which was proved to be in his possession to have been stolen, and stage '

V.

:

may be proved

provided that not

at

less

any than

& 35 Vict. t. 112, s. 19 (language slightly modified). This enactoverrules R. v. Oddy. 2 Den. C. C. 264, and practically supersedes Dunn, I Moo. C. C. 150, and R. v. Davis, 6 C. & P. 177. See

34

ment R.

of the proceedings

illustrations.

7

Chap.

11

THE

1 .]

LAW OF E VIDENCE.

1

seven days' notice in writing has been given to the person

accused that proof

intended to be given of such previous

is

conviction. Illustrations.

A

charged with receiving two pieces of them to liave been stolen by him from C. (a)

The from

is

facts that

C

A received from

B many

other articles stolen by

in the course of several months,

them, are relevant to the fact that

C

A

from B, knowing

silk

knew

and that

A

pledged

him

all

of

that the two pieces of silk

were stolen by B from (b) A is charged with uttering, on the 12th December, 1854, a counterfeit crown piece, knowing it to be counterfeit. The facts that A uttered another counterfeit crown piece on the nth December, 1854, and a counterfeit shilling on the 4th January, 185 s, are relevant to show A's knowledge that the crown piece uttered on the 1 2th was counterfeit.'' (f) A is charged with attempting to obtain money by false pretences, by trying to pledge to B a worthless ring as a diamond ring. The facts that two days before, A tried, on two separate occasions, to obtain money from C and D respectively, by a similar assertion as to the same or a similar ring,, 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, are relevant, as showing his knowledge of the quality of the ring.' [d)

A is

Z had The fact

that

charged with obtaining money from authorised

him

to

do

B by

falsely

pretending

so.

A

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. (e) A sues B for damage done by a dog of B's, which B knew to be that on a different occasion

similar false pretence

is

obtained

irrelevant,^ as A's

ferocious.

The

facts that the

they had

made

•

Dunn's

=

R.

'

R.

"

V.

dog had previously

bitten

X, Y, and Z, and that

complaints to B, are relevant."

case,

I

Moo. C. C.

146.

'

R.

v.

Forster, Dear. 456.

Francis, L, R. 2 C. C. R. 128.

and see R. v. Francis, V. Holt, Bell C. C. 280 See cases collected in Roscoe's Nisi Prius, 739. ;

ub. sup. p. 130.

C

A DIGEST OF

[Part

I.

(/) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee, if the payee had been a real person, is relevant, as showing that A knew that

the payee was a fictitious person.'

A

[g)

B

B

sues

Defamatory statements made by

for a malicious libel.

A for ten years

regarding

before those in respect of which the action

brought are relevant to show malice.^ (h) is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, is

A

suffered loss.

The

when

time

fact that, at the

A represented C

to be solvent,

C

was to A's knowledge supposed to be solvent by his neighbours and by persons deahng with him, is relevant, as showing that A made the representation in good faith.^ (i) A is sued by B for the price of work done by B, by the order of C, a contractor, upon a house, of which A is owner. A's defence is that B's contract was with C.

The

fact that

A

proving that the

work

C's

own

The

C

good

work in make over

for the

question

faith,

to

in question, so that

C

was

C

the

is

relevant, as

management of

in a position to contract with

B on

accused of stealing property which he had found, and the

whether he meant to

is,

steal

it

when he took

possession of

fact that public notice of the loss of the property

in the place

A was,

and

known

of

where

bably might have not,

paid

account, and not as agent for A.*

A is

(j ) question

A

did, in

when he took

such a manner that

in

it,

possession of

is it,

relevant, as in

good

it.

had been given

A

knew

showing that

or pro-

A

did

faith believe that the real

owner of the properjy could not be found.' (k) The question is, whether A is entitled

to

damages from E, the

seducer of A's wife.

'

Gibson

^

Barrett

'

Sheen

'

Gcrish

v.

Hunter, 2 H. Bl. 288. Long, 3 Ho. Lo. Ca. 395, 414. Bumpstead, 2 H. & C. 193.

v.

v. v.

Chartier,

This illustration

I

C. B. 13.

adapted from Preston's Case, 2 Den. C. C. 353 ; but the misdirection given in that case is set right. As to the relevancy '

is

of the fact see in particular

Lord Campbell's remark on

p. 359.

Chap.

THE

III.]

The

LAW OF EVIDENCE.

fact that A's wife

wrote affectionate

letters to

19

A

before the

was committed, is relevant, as showing the terms on which they lived and the damage which A sustained.' The question is, whether A's death was caused by poison. ( /) Statements made by A before his illness as to his state of health, and

adultery

symptoms, are relevant facts.'' what was the state of A's health at the time when an insurance on her life was effected by B. Statements made by A as to the state of her health at or near the

during his (ot)

illness as to his

The

question

is,

time in question are relevant («)

The

question

is,

facts.'

whether A, the captain of a ship, knew that a

port was blockaded.

The

fact that the

blockade was notified in the Gazette

Article

is

relevant.*

12.*

facts showing system.

When

there

is

a question whether an act was accidental

or intentional, the fact that such act formed series of similar occurrences, in

doing the act was concerned,

is

part

of a

each of which the person

relevant.

Illustrations. (a)

for

A is

which

accused of setting

it is

fire to his

house in order to obtain money

insured.

A had previously lived in two other houses suceach of which he insured, in each of which a fire occurred, and that after each of those fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not The

facts that

cessively,

accidental.' (b)

A is

employed to pay the wages of B's labourers, and

* See

it

is

A's

Note VII.

Trelawney v. Coleman, I B. & A. go. ' R. V. Palmer. See my 'Gen. View of Grim. Law,' (evidence of Dr. Savage and Mr. Stephens). ' Aveson v. Lord Kinnaird, 6 Ea. 188. '

*

Harratt

v.

Wise, 9 B.

&

C. 712.

* j?. v.

p. 363,

Gray, 4 F.

&

C 2

377

F. 1102.

A DIGEST OF

[Part

I.

duty to make entries in a book showing the amounts paid by him. He makes an entry showing that on a particular occasion he paid more than he really did pay. The question is, whether this false entry was accidental or intentional. The fact that for a period of two years A made other similar false entries in the same book, the false entry being in each case in favour of A, is relevant.' (c) The question is, whether the administration of poison to A, by Z, his wife, in September, 1848, was accidental or intentional. The facts that B, C, and D (A's three sons), had the same poison administered to them in December 1848, March 1849, and April 1849, and that the meals of all four were prepared by Z, are relevant, though Z was indicted separately for murdering A, B, and C, and attempting to murder D.'

Article

13.*

existence of course of business

When clone,

there

the

is

naturally

it

or business,

would have been done,

a relevant fact.

When

there

is

a question whether a particular person held

a particular pubUc is

relevant.

a question whether a particular act was

existence of any course of office

according to which is

when

the fact that he acted in that office

office,

relevant.^ Illustrations.

The question is, whether a letter was sent on a given day. The post-mark upon it is a relevant fact.* (b) The question is, whether a particular letter was despatched.

(a)

* See

R.

R.

Richardson, 2 F.

Note VIII.

&

F. 343. M. C. 215

V. Geering, 18 L. cf. R. v. Garner, ; J. 3 F. &. F. 681. Ph. Ev. 449 ; R. N. P. 46 ; T. E. s. 139. R. V. Canning, 19 S. T. 370, I

'

V.

Chap. The

LAW OF EVIDENCE.

THE

III.]

facts that all letters

21

put in a certain place were, in the

common

course of business, carried to the post, and that that particular letter

was put

in that place, are relevant.'

The question is, whether a particular letter reached A. The facts that it was posted in due course properly addressed, and was not returned through the Dead Letter Office, are relevant.^ {c)

Hetherington

'

v.

Kemp, 4 Camp. 193

;

and see

Skilbeck v. Garlett,

1 Q. B. 846.

Warren M. & W.

2

16

v.

Warren,

124.

Many

Nisi Prius, pp. 374-5.

I

C.

M. & R. 250

cases

on

;

Woodcock

v.

HouUsworth,

this subject are collected in Roscoe's

— A DIGEST OF

CHAPTER

[Part

IV.

HEARSAY IRRELEVANT EXCEPT IN CERTAIN Article

I.

CASES.

14.*

hearsay irrelevant.

The

fact that a statement

as a witness,

was made by a person not called

not regarded as relevant to the truth of the

is

matter asserted thereby, under any of the preceding unless such statement (a)

An

{b)

A

25-31)

;

articles,

is

admission or confession (see articles 15-24)

;

or

statement by a deceased declarant (see articles or

Evidence given on a former occasion(articles 32-34) ; or A statement made under special circumstances (see

(c)

{d)

articles {e)

35-38)

or

;

The judgment of

a Court of Justice (see articles

39-47)-

In these cases such statements are relevant or

not,

according to the provisions hereinafter contained. Illustration.

A

declaration

forged

it,

is

by a deceased

attesting witness to a

deed that he had

irrelevant to the question of its validity.'

Article

15.

admissions defined.t

An

admission * See

is

a statement oral or written, suggesting

Note IX. '

Stobart

v.

t

Dryden,

I

See Note X.

M. & W.

615.

;

THE LAW OF EVIDENCE.

Chap. IV.]

any inference as to any

23

fact in issue or relevant fact, un-

favourable to the conclusion contended for by the person

whom

by

on whose behalf the statement

or

Every admission

made.

is

(subject to the rules hereinafter stated)

is

whom

a relevant fact as against the person to

is

it

un-

favourable.

Article

who may make Admissions

16.*

admissions,

and when.

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

or

;

is

privy in law, in blood, or in estate to any party thereto.

A

statement

made by a

mission whenever

is

it

party to an action

made, unless

it is

may be an

made by

a person,

suing, or sued in a representative character only, in

case it

[it

seems]

it

ad-

which

must be made whilst the person making

sustains that character.

A

statement

made by

a person interested in an action,

or by a privy to any party thereto,

is

not an admission

made during the continuance which entitles him to make it. unless

it

is

of the interest

Illustrations. (a)

The

assignee of a

bond

sues the

obligor in the

name

of the

obligee.

An admission on the paid

is

relevant

part of the obligee that the

* •

money due has been

on behalf of the defendant.'

See Moriarty

•^.

L.

See Note XI. C.

&= D.

Co., L.

R. 5 Q. B. 320.

;

A DIGEST OF

24

[Part

I.

An

admission by the assignee of the bond in the last illustration be relevant on behalf of the defendant. (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

also

as such assignee.'

Statements made by a person as to a

(d)

bill

of which he had been

the holder, are not relevant as against the holder, after

he has negotiated the

if

they are

made

bill.^

Article

17.*

admissions by agents and persons jointly interested

with parties. Admissions

them

may be made by

either expressly or

but a statement

merely because

agents authorised to

by the conduct of

make

their principals

made by an agent is not an admission made by the principal himself it would

if

have been one. 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.

Barristers

and

solicitors are the agents of their clients for

the purpose of making admissions whilst engaged in the actual

management of the

cause, either in court or in cor-

respondence relating thereto barrister or solicitor

but statements

;

made by

a

on other occasions are not admissions

merely because they would be admissions

if

made by

the

client himself. * '

V.

Fiivwick

Morgan, ^

Pocock

V.

2

Thornton,

M. & R.

See Note Xlt.

M. & M.

51 (by

257, Tindal, C.

V. Billing, 2

Bing. 269.

J.,

Lord Tenterden). In Smith decided exactly the reverse.

The

LAW

THE

Chap. IV.]

fact that

OF EVIDENCE.

two persons have a

same subject matter does not missions respecting

it

common

entitle

25

interest in the

them

to

make

ad-

as against each other.

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, by reason only of any written acknowledg-

ment or promise made or signed by authorised to

by the agent duly

[or

make such acknowledgment

any other or others of them

[or

or promise of]

by reason only of payment

of any principal, interest, or other money, by any other or others of them.]^

A

principal, as such, is not the agent of his

the purpose of

making admissions

which the surety gives

as to the

surety for

matters for

security.

Jllustrations. (a) Tlje

Company made by

whether a parcel, for the loss of which a Railway Statements sued, was stolen by one of their servants.

question is

is,

suggesting that the

the station-master to a police-officer,

had been stolen by a porter are relevant, as against the railway, as admissions by an agent.^ (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. to the shop is relevant against him as an admission by an agent.' parcel

(c)

A

sends his servant, B, to

sell

a horse.

What B

of the sale, and as part of the contract of sale, against A, but

what B says upon the subject

at

is

says at the time a relevant fact as

some

different time is

' The words in the first set of brackets were 9 Geo. IV. c. 14, s. I. added by 19 & 20 Vict. c. 97, s. 13. The words in the second set by The language is slightly altered. a. 14 of the same Act. Kirkstall Brewery v. Furness Ky., L. R. 9 Q. B. 46S. ^ Cliffords. Burton, I Bing. 199. '^

A DIGEST OF

26

not relevant as against A' [though

[Part

I.

niight have been relevant if said

it

A himself].

by

The

(d)

question

reasonable time.

a ship remained at a port for an un-

vi'hether

is,

Letters from the plaintiff's agent to

the plaintiff

containing statements which would have been admissions the plaintiff himself are irrelevant as against him.'

C

A, B, and

(e)

D

sue

as partners

An

specting the shipment of bark. his exclusive property

B and

against

if

made by

upon an alleged contract

A

admission by

that the bark

and not the property of the firm

is

re-

was

relevant as

C.''

D

make a joint and several promissory note. (/) A, B, C, and Either can make admissions about it as against the rest.* (g)

The

question

is,

whether

A

accepted a

notice to produce the bill signed by A's solicitor

bill

of exchange.

A

and describing the bill

by A is a relevant fact.' whether a debt to A, the plaintiff, was due from B, the defendant, or from C. statement made by A's solicitor to B's solicitor in common conversation that the debt was due from C is not as having been accepted

The

(/i)

question

is,

A

relevant against A."

One

(i)

co-part-owner of a ship cannot, as such,

make

admissions

against another as to the part of the ship in which they have a interest,

even

if

he

is

common

co-partner with that other as to other parts of the

ship.'

A

is surety for B, a clerk. B being dismissed makes statements sums of money which he has received and not accounted for. These statements are not relevant as against A, as admissions.' (/')

as to

Article

i8.*

admissions by strangers to an action. Statements by strangers to an action are not relevant as * See Note XIII. '

' *

Helyearv.Hawke, 5 Esp. 72. Lucas V. De La Cour, i M. &

Whikomb

v.

Whitting,

'

Holt

'

J'^gg'^^ v. Binning,

s

Smith

5 Esp.

chester

V.

Squire, Ry.

i S.

& Mo. i

^

Langhorn

v. Allnuit,

4Tau. 511.

S. 249.

L. C. 644. 282.

«

Fetch

v.

Lyon, 9 Q. B.

147.

Star. 64.

Whippingham, 6 C. & P. 78. See also Evans v. Beattie, Bacon v. Chesney, i Star. 192 ; Caermarthen R. C. v. ManR. C, L. R. 8 C. P. 685. 26

V.

;

Chap.

THE

IV.]

LAW OF EVIDENCE.

27

against the parties except in the cases mentioned in this Article,

and

in Article 19.^

In actions

against

debtors,

against

for

sheriffs

statements

of

not executing process

the

debtor admitting his

debt to be due to the execution creditor are relevant as against the sheriff.^

In actions by the trustees of bankrupts an admission by the bankrupt of the petitioning creditor's debt

is

relevant as

against the defendant.^

Article

19.*

admission by person referred to by party.

When

a party to any action or proceeding expressly

refers to

any other person for information in reference to

a matter in dispute, the statements of that other person

may be

admissions as against the person

who

refers

to

him. Illustration.

whether A delivered goods to B. B says^' if C " (the caTman) "will say that he delivered the goods, I will pay for them." C's answer may as against B be an admission.''

The

question

is,

Article zo.t ADMISSIONS MADE WITHOUT PREJUDICE.

No either

admission

* See '

^ '

is

relevant in any civil action

upon an express condition Note XIV.

t See Note

Cooky. Braham, 3 Ex. 183. Kemplandv. Macaulay, Peake, 95 Jarrett v. Leonard, 2

M. &

S.

bankruptcy. *

Daniel

v. Pitt, I

Camp.

if it is

that evidence of

366,

u.

;

Williams

v.

made

it is

not

XV.

Bridges, 2 Star. 42.

265 (adapted to the

new law

of

;

A DIGEST OF

28

[Part

I.

to be given,'^ or under circumstances from which the judge infers that the parties

agreed together that evidence of

should not be given,^>or

if it

it

was made under duress.^

Article

21.

confessions defined.

A

confession

is

an admission made

any time by a

at

person charged with a crime, and suggesting the inference

he committed that crime.

that

Confessions,

are relevant facts as against the persons

Article

if

voluntary,

who make them only.

22.*

confession caused by inducement, threat, or promise,

No

when irrelevant

confession

is

deemed

in criminal proceeding. to

be voluntary

if it

appears to

the judge to have been caused by any inducement, threat,

or promise, proceeding from a person

in

authority,

and

having reference to the charge against the accused person,

whether addressed to him directly or brought to his knowledge indirectly

and

if

threat, or

(in the

opinion of the judge) such inducement,

promise, 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. * See Note '

2 -

XVI.

Cory V. Bretton, 4 C.& P. 462. Paddock V. Forester, 5 M. & G. 918. Stockfleth y. De Tastet,per Ellenboiough, C.

J.,

4 Cam.

11.

Chap.

LAW OF EVIDENCE.

THE

IV.]

But a confession

is

29

not involuntary, only because

it

ap-

pears to have been caused by the exhortations of a person

make

in authority to

an inducement

it

as a matter of religious duty, or by

collateral to the proceeding, or

ments held out by a person not

The

in authority.

prosecutor, officers of justice having the prisoner

in custody, magistrates,

and other persons

not as such a person in authority

person making the confession

in similar posi-

The master

tions, are persons in authority. is

by induce-

is

if the

of the prisoner

crime of which the

accused was not committed

against him.

A confession of the judge)

is

deemed shown

it is

to be voluntary if (in the opinion to

have been made

plete removal of the impression produced

after the

com-

by any induce-

ment, threat, or promise which would otherwise render

it

involuntary.

Facts discovered in consequence of confessions improperly obtained, tinctly relate to

and so nmch of such confessions such

facts,

may be

as dis-

proved.

Illustrations.

whether A murdered B. (a) The question A handbill issued by the Secretary of State, promising a reward and is,

pardon

to

any accomplice who would confess,

is

brought to the know-

ledge of A, who, under the influence of the hope of pardon, makes a confession. This confession is not voluntary.' {b)

A being

charged with the murder of B, the chaplain of the gaol

reads the Commination Service to A, and exhorts

him upon

religious

grounds to confess his sins. A, in consequence, makes a confession. This confession is voluntary.^

•

"

R.i. BosTx)ell, C. & Marsh. 584. R. V. Gilkam, i Moo. C. C. 186.

In this case the exhortation was

A DIGEST OF

30

The

{c\

gaoler promises to allow A,

see his wife, if he will

tell

who

[Part is

where the property

I.

accused of a crime, to' does so. This is

is.

A

a voluntary confession.*

A is accused of child murder.

(d)

ment

to her to confess,

Her

mistress holds out an induce-

and she makes a confession.

tary confession, because the mistress

is

This

A is accused of the murder of B. C, a magistrate, A to confess by promising to try to get him a pardon if

(e)

induce

The

so.

and is

is

communicated

to

A.

tries to

he does

no pardon can be granted, After that A makes a statement. This

Secretary of State informs

this is

C

a volun-

not a person in authority.^

that

a voluntary confession.'

(/) A, accused of burglary, makes a confession to a policeman under an inducement which renders it involuntary. Part of it is that he (A) had thrown a lantern into a certain pond. The fact that he said so, and that the lantern was found in the pond in consequence, may be

proved.*

Article 23.* confessions made upon oath, &c. Evidence amounting to a confession may be used as such against the person oath,

had reference which

in

who

gives

it,

although

and although the proceeding

it is

to the

in

it

was given upon

which

same subject-matter

it

was given

as the proceeding

be proved, and although the witness might

to

»

See Note XVII.

should confess " to God," 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." As is always the case in Moody's reports, no reasons are given for the judgment. The principle seems to be that a man is not likely to tell a falsehood in such cases,

man

that the accused

The case is sometimes cited as an authority for the proposition that a clergyman may be compelled to reveal confes-

from religious motives. sions »

=

made

R. R. R.

V.

to

him

professionally.

It has

& P. 393. C. & P. 221. C. & P. 364.

2

Lloyd, 6 C.

V. Clerwes,

4

nothing to do with the subject. R, v. Moore, 2 Den. C. C. 522.

Gould, 9 This is not consistent, so far as the proof of the words goes, with R. v. Warwkkshall, i Leach, 263. *

V.

THE

Chap. I V.J

LAW OF EVIDENCE.

31

have refused to answer the questions put to him; but after refusing to

answer any such question, the witness

improperly compelled to answer

it,

his

answer

if,

is

not a

is

voluntary confession.^ IllustratioHs. (a)

The answers given by

against

A

him

a bankrupt in

liis

may be used law of banlcruptcy.^

examination

in a prosecution for offences against the

charged with maliciously wounding B. A. appeared as a witness for C, who was charged with the same offence. A's deposition may be used against {b)

is

Before the magistrates

him on

his

own

triaL

°

Article

24.

confession made under a promise of secrecy. If a confession

is

otherwise relevant,

irrelevant merely because

it

it

does not become

was made under a promise of

secrecy, or in consequence of a deception practised

accused person for the purpose of obtaining

was drunk, or because

it

it,

was made in answer

or

on the

when he

to questions

which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he

was not bound

evidence of

it

to

make such

confession, and that

might be given against him.*

Article

25.

statements by deceased persons when relevant. Statements written or verbal of facts in issue or relevant '

' '

*

R. V. Garbett, I Den. 236. R. V. Scott, I D. & B. 47 ; R. v. Widdop, L. R. 2 C. C. 5. R. V. Chidley &= Cummins, 8 C. C. C. 365. Cases collected and referred to in i Ph. Ev. 420, and T. E.

See, too, Joy, sections

iii.,

iv., v.

s.

804.

;

A DIGEST OF

32

[Part

to the issue are relevant, if the person

ment

is

who made

I.

the state-

dead, in the cases, and on the conditions, specified

in articles 2 6-3 1 ,

In each of those

both inclusive.

articles the

word "declaration" means such a statement as

is

herein

mentioned, and the word "declarant" means a dead person

whom

by

such a statement was

made

Article

in his lifetime.

26.*

dying declaration as to cause of death.

A

made by

declaration

the declarant as to the cause of

any of the circumstances of the transac-

his death, or as to

tion which resulted in his death,

only in

is

relevant

the murder or manslaughter of the

for

trials

declarant

and only when the declarant

is

shown, to the satisfaction

of the judge, to have been in actual danger of death, and to

have given up

hope of recovery

all

at the time

when

his

declaration was made.

Such a declaration intended to be but

is

made

not irrelevant merely because

it

was

as a deposition before a magistrate,

is irregular.

Illustrations. (a)

The

question

is,

whether

A

has murdered B.

B makes a statement to the effect that A murdered him. B at the time of making the statement has no hope of recovery, though his doctor had such hopes, and B lives ten days after making the statement.

The statement

is relevant.'

making the statement (which is' written down), something, which is taken down thus "I make the above state-

B, at the time of says

—

* See Note XVIII. '

R.

V.

Mosley,

I

Moo.

97.

THE LA W OF EVIDENCE.

Chap. IV.]

33 '

•'

ment with the

of death

fear

" with no hope at present of afterwards.

The

The

statement

question

is,

is

no

hope

of

my

would have been admissible

B

recovery."

died thirteen hours

irrelevant.'

whether

intent to procure abortion.

statement

me, and with

B, on the statement being read over, corrects this to

recovery."

[b)

before

— A'-V ^i''

A administered drugs

to a

woman

with

The woman makes a statement which had A been on his trial for murder. The

is irrelevant.''

question is, whether A murdered B. A dying declaration by he (C) murdered B is irrelevant.^ [d) The question is, whether A murdered B. B makes a statement before a magistrate on oath, and makes her mark to it, and the magistrate signs it, but not in the presence of A, so that her statement was not a deposition within the statute then in force. B, at the time when the statement wa.S made, was in a dying state, and had no hope of recovery. The statement is relevant.*

The

(f)

C

that

Article 27.* declarations made in the course of business or professional duty.

A

declaration

is

relevant

when

it

was made by the

declarant in the ordinary course of business,

or in the

discharge of professional duty, at or near the time

the matter stated occurred,^ and of his

* 1

'

608, '

R. R.

V.

n.,

said to

in fact

See Note XIX.

i,

quoted in a note to R.

Grafs R.

L. R.

C. C. R. 187. Hind, Bell 253, following R.

V. Jenkins,

Case, Ir. Cir.

when

own knowledge.

v.

v.

Hutchinson, 2 B.

&

C.

Mead.

Rep. 76.

In this case. Eyre, C. B., is have left to the juiy the question, whether the deceased was not under the apprehension of death ? I Leach, 504. The case was V.

Woodcock,

I

East. P. C. 356.

decided in 1789. It is now settled that the question > Doe V. turford, 3 B. & Ad. 898.

is

for the judge.

D

A DIGEST OF

34

Such declarations are

[Part

I.

so far as they

irrelevant except

which the declarant stated in the ordi-

relate to the matter

nary course of his business or duty.

Illustrations.

The

{a)

The

question

made an

livery,

is,

whether

A

entry to that effect in a

the ordinary course of business,

The

[b)

delivered certain beer to B.

deceased drayman of A's, on the evening of the de-

fact that a

question

is,

is

book kept

for the purpose, in

relevant.'

what were the contents of a

letter

not produced

after notice.

A

copy entered immediately

after the letter

kept for that purpose, by a deceased clerk,

is

was

written, in

a relevant

a.

book

fact.^

A

[c) The question is, whether was arrested at Paddington, or in South Molton Street. A certificate annexed to the writ by a deceased sheriff's of&cer, and

returned by

him

fact of the arrest

to the sheriff, is relevant so far as ;

but irrelevant so far as

it

it

relates to the

relates to the place

where

the arrest took place.^

The

(d) tell

course of business was for A, a

B, the foreman,

write) to get

C

to

what

make

coals

were

entries in a

sold,

book

workman and

for

in a coal-pit, to

B (who

could not

accordingly.

(A and B being dead) are not relevant, because B, for were made, did not know them to be true.* (e) The question is, what is A's age. A statement by the incumbent in a register of baptisms, that he was baptised on a given day is relevant. A statement in the same register that he was born on a given day is irrelevant, because it was not the incumbent's duty to make it.°

The

entries

whom they

Pricey, Torringion,

i S. L. C. 328, 7th ed. Fairclough, 3 Camp. 305. Chamiers v. Bernasconi, i C. M. & R. 347

Fritt

key,

V.

L. R. 2 Q. B. 326.

'

Brain

'

R.

V.

v. Preece, 11

M.

& W.

&

P. 29.

Clapham, 4 C.

773.

;

see,

too.

Smith

v.

LAW

THE

Chap. IV.]

OF EVIDENCE.

Article

35

28.*

declarations against interest.

A

declaration

is

relevant

to misrepresent

it,

and

or proprietary interest.

if it ^

the declarant had peculiar

if

means of knowing the matter

stated, if

The whole

and of any other statement

tion,

although matters

levant,

he had no

was opposed to

of any such declara-

referred to in

may be

interest

his pecuniary

it,

is

re-

which were not

stated

against the pecuniary or proprietary interest of the decla-

rant

but statements, not referred to

;

in,

or necessary to

explain such declarations, are not relevant merely because

made

they were

A

at the

same time or recorded

may be against who makes it, if part

declaration

the person liability,

which

it

occurs

may

part,

and

discharge [it

its

the pecuniary interest of

of

it

charges him with a

him from such

seems] though there

proof other than the statement

A

same

though other parts of the book or document in

whole or in

or of

in the

'^

place.

itself either

liabiKty in

may be no

of such

liability

discharge in whole or in part.^

made by a

statement

interest in

declarant holding a limited

any property against the

sioner therein

is

interest of the rever-

not a declaration against proprietary interest

within the meaning of this article.*

* '

I

C.

See Note

XX.

These are almostthe exact words of Bayley,

& M.

J.,

in Gleadowv. Atkin,

423.

^

Illustrations [a) (b)

'

Illustration (^)

;

and

if).

'

Illustrations (d)

and

{
see Lord Campbell's Judgment in case quoted, p. 177.

D

2

A DIGEST OF

36

An

[Part

I.

endorsement or memorandum of a payment made

upon any promissory

note,

bill

ment was made,

or

of exchange,

by or on behalf of the party

writing,

to

whom

other

such pay-

not sufficient proof of such payment

is

to take the case out of the operation of the Statutes of

Limitation

;

^

but any such declaration

made

form by

payment was made

when such person

is

is

any other

in

or by the direction of the person to

whom

the

dead, sufficient

proof for the purpose aforesaid.^

Any endorsement

or

memorandum

to

the effect above

mentioned made upon any bond or other specialty by a deceased person,

regarded as a declaration against the

is

proprietary interest of the declarant for the purpose above-

mentioned,

when

it

if it is

shown

to have

purports to have been

been made

made

;^

but

whether the date of such endorsement or

may

presumed

be

to

it

at the time is

uncertain

memorandum

be correct without independent

evidence.*

Statements of relevant facts opposed to any other than the pecuniary or proprietary interest of the declarant are

not relevant as such.^

Illustrations, (a)

The

question

is,

whether a person was born on a particular day.

Bradley v. James, 13 C. B. 822. the Statute of Limitations relating to Specialties, has no provision similar to 9 Geo. IV. i,. 14, s. 3. Hence '

9 Geo. IV.

=

3

t.

42,

which

in this case the ordinary rale *

'

c. 14, s. 3.

& 4 Will. IV.

is

is

unaltered.

See the question discussed in

and see

article 85.

I

Ph. Ev. 302-5, and T. E. 33.625-9, ^

Illustration (k).

—

THE LA W OF EVIDENCE.

Chap. IV.]

An is

—

book of a deceased man-midwife

entry in the

yj

in these

words

:'

relevant

" W. Fowden,

Junr.'s wife,

Fihus circa hor. 3 post merid. natus H.

W. Fowden, Ap.

Junr.,

22, fihus natus.

Wife,

£1

6s. id.,

Pd. 25 Oct., 1768." (b)

The

question

is,

whether a certain custom

exists in

a part of a

parish.

The following

entries in the parish books, signed

by deceased church-

wardens, are relevant

The Haworth pay one-fifth, &c." Followed by " Received of Haworth, who this year disputed this our ancient custom, but after we had sued him, paid it accordingly— £8, and ^i "It

our ancient custom thus to proportion church -lay.

is

chapelry of

for costs." ^

The

whether a gate on certain land, the property of was repaired by A. An account by a deceased steward, in which he charges A with the expense of repairing the gate is irrelevant, though it would have been relevant if it had appeared that A admitted the charge.' (d) The question is, whether A received rent for certain land. (c)

which

question

is,

in dispute,

is

A

deceased steward's account, charging himself with the receipt of such rent for A, is relevant, although the balance of the whole account is

in favour of the steward.* (e)

The

question

is,

whether certain repairs were done

at

A's

expense.

A

*

,

doing

for

bill

relevant

s

,

f

receipted

by a deceased

carpenter,

there being no other evidence either that

were done, or that the

"

Higham

^

Stead

'

Doe

*

them,

V.

v.

money was

the repairs

paid.

Ridgway, 2 Smith L. C. 318, 7th ed.

Heaton, 4 T. R. 669. C. B. 456. Graves, 8 C. & P. 592.

V. Beviss, 7

Williams

v.

Heyford, note to Highamv. Ridgway, 2 S. L. C. 333, 7th ed. I Mo. & Ro. 261.

"

R.

"

Doev. Vowles,

v.

is

^

A DIGEST OF

38

[Part

I.

A

(deceased) gained a settlement in {/) The question is, whether the parish of B by renting a tenement.

A

statement paid rent for

made by A, it,

whilst in possession of a house, that he

relevant,

is

becauses

it

had

reduces the interest which

would otherwise be inferred from the fact of A's possession.' (g) The question is, whether there is a right of common over a certain field.

A-statement by A, a deceased tenant for a term of the land in question, that

he had no such

right, is relevant as against his successors in

the terin, but not as against the owner of the

field.^

whether A was lawfully married to B. A statement by a deceased clergyman that he performed the marriage under circumstances which would have rendered him liable to a {h)

The

question

is,

criminal prosecution,

is

not relevant as a statement against interest.'

Article

29.

declarations by testators as to contents of will.

When

there

is

a question as to the contents of a lost

the declarations of the deceased testator as to

are relevant, whether they were

of the

made

its

will,

contents

before or after the loss

will.*

Article 30.* declarations as to public and general rights. 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 ,.

Note XXI. Also

Barrett, '

' ^

R.

V.

I

C.

M. & R.

see Weeks v. Sparke,

i

M.

&

S.

679

;

Crease

917.

Exeter, L. R.

4 Q. B. 341. Bridgewater, 5 E. & B. 166. Sussex Peerage Case, 11 C. & F. 108. Papendick

v.

Sugdeny. St. Leonards, 'Weekly Notes,' Mar. 25, 1876, p. 114. In questions between the heir and the legatee or devisor such state*

ments would probably be relevant as admissions by a privy in law, estate, or blood.

'

'

LAW OF EVIDENCE.

THE

Chap. IV.]

'

of public or general interest. ticular facts

39

But declarations as to par-

from which the existence of any such public

or general right or custom or matter of public or general

may be

interest

A right subjects,

is

inferred, are irrelevant.

public

if it is

common

to all

and declarations as to public

Her

Majesty's

rights are relevant

whoever made them.

A

right or

considerable

custom

general

is

number of

if it

persons, as

parish, or the tenants of a

is

common

to

any

the inhabitants of a

manor.

when made by persons who are shown, to the satisfaction judge, or who appear from the circumstances of their

Declarations as to general rights are relevant only

they were of the

statement, to have

had competent means of knowledge.

Such declarations maybe made

in

any form and manner.

Illustrations. [a)

The

question

whether a road

is,

A statement by A (deceased) A statement by A (deceased)

that

is

it is

public.

public

is

relevant.

he planted a willow (still standing) to show where the boundary of the road had been when he was a boy that

is irrelevant'' {b)

The

following are instances of the manner in which declarations

as to matters of public

be made

Maps prepared by matter

and general

interest

may be made :^They may

in

or

by the

direction of persons interested in the

;

Copies of Court

rolls

;

Crease v. Barrett, per Parke, B., I C. M. & R. 929. R. V. Bliss, 7 A. & E. 550. ' Implied in Hammond v. Bradstreet, \o Ex. 390, and Pipe v. In each of these cases the map was rejected Fulcher, i E. & E. III. * Crease v. Barrett, I C. M. & R. 928. as not properly qualified. >

2

—

'

'

A DIGEST OF

40 Deeds and

leases

between private persons

Verdicts, judgments,

bodies

^ if

decrees,

.

[Part

I.

;

and orders of Courts, and similar

final.'

Article 31.* declarations as to pedigree.

A

declaration

after

mentioned)

is

relevant (subject to the conditions herein-

if it relates

to the existence of

any

relation-

ship between persons, whether living or dead, or to the

marriage, or death

birth,

relationship

of any person, by which such

was constituted, or

which any such connected with

its

time or place at

to the

fact occurred, or to

any

fact

immediately

occurrence.*

Such declarations may express

either the personal

know-

ledge of the declarant, or information given to him by other

persons qualified collected

to

be declarants, but not information

by him from persons not

qualified to

be decla-

They may be made in any form and in any document or upon any thing in which statements as to

rants.^

relationship are

The (1)

commonly made.^

conditions above referred to are as follows

Such declarations are relevant only

the pedigree to which they relate

cases in which (2)

it is

They must be made by a

^ ' ' '

declarant

which

and not to

;

shown

to

See Note XXII.

Dare, 10 B. & C. 17. Duke of Newcastle v. Broxtowe, 4 B. Pirn V. Curell, 6 M. & W. 234, 266. Davies v. Lowndes, 6 M. & G. 527. Plaxton

in issue,

only relevant to the issue

* '

is,

in cases in

V.

Illustration

(b).

&

Ad. 273. •

Illustration {a).

'

Illustration

(c)

be

Chap.

LAW OF EVIDENCE.

THE

IV.]

legitimately related by blood to the person to relate

;

which they are

to

whom

they

or by the husband or wife of such a person.^

They must be made

(3)

41

before the question in relation

be proved has arisen ; but they do not

to

cease to be relevant because they were

made for the purpose

of preventing the question from arising.^

This condition applies also to statements as to public and general rights or customs and matters of interest. Illustrations.

The

(ffl)

question

and Achaicus) born

The

is,

at

a birth

is

the eldest.

Achaicus was the youngest, and he Cor. xvi. 17), and the the birth said that she tied a string round

fact that the father said that

took their names from fact that

St. Paul's Epistles (see I

a relation present at

the second child's (b)

which of three sons (Fortunatus, Stephanus,

The

arm

question

is,

to distinguish

it,

are relevant.^

whether one of the

cestuis

que vie in a lease for

lives is living.

The

he was believed in his family to be dead is irrelevant, not one of pedigree.* (c) The following are instances of the ways in which statements as to pedigree may be made By family conduct or correspondence ; in books used as family registers ; in deeds and wills ; in inscriptions on fact that

as the question

is

:

tombstones, or portraits ship of living persons

in pedigrees, so far as they state the relation-

;

known

to the compiler.'

Article 32.* evidence given in former proceeding

when relevant.

Evidence given by a witness in a previous action * See

rele-

Note XXIII.

'

Shrewsbury Peerage Case, 7 H. of L.

^

Berkeley -Peerage Case,

^

Vin. Abr.

*

Whittuck

tit.

is

4 Cam. 401

26.

—417.

Evidence, T. b. 91. The report 4 C. & P. 375.

calls the

son Achicus.

V. Walters,

' In I Ph. Ev. 203-15, and T. E. ss. 583-7, these and many other forms of statement of the same sort are mentioned ; and see Davies v. Lowndes, 6 M. & G. 527.

—

—

'

'

A DIGEST OF

42

[Part

I.

vant for the purpose of proving the matter stated in a

subsequent action, or in a later stage of the same action,

when

the witness

by the adverse criminal cases,

perhaps, in

or

is dead,"^

probably never be able to

mad,^ or so

is

travel,^ or is

party,* or in civil, but

not,

seems, in

it

out of the jurisdiction of the Court,^ or,

is

but not in criminal, cases

civil,

that he will

ill

kept out of the way

when he cannot

be found. ^ 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)

same

when he was examined

That the questions

as a witness

in issue

;'

were substantially the

in the first as in the second proceeding

;

Provided also (3)

That the

was between the same

action, if civil,

or their representatives in interest (4)

That, in criminal cases, the same person

upon the same

parties

;

is

accused

facts.'

Article

33,

depositions before magistrates.

A deposition taken under

11

&

12 Vict.

be produced and given in evidence at the

whom

against '

s.

1,7,

may

of the person

was taken.

it

3 Tau. 262. ' H. Eriswell, 3 T. R. 720. V. Scaife, 17 Q. B. 238, 243.

* '

Fry

"

Godbolt,

'

Doe

789.

42,

Mayor of Doncaster v. Day, R. R.

==

c.

trial

V.

V.

V.

Wood,

1

Atk. 444

p. 326, case

Tatham,

I *

A.

418

&

;

;

R. R.

E. 319

v. Scaife,

v. Scaife, ;

Doe

v.

v.

Hogg, 6 C.

&

P. 176.

17 Q. B. 243. 17 Q. B. 243.

Derby,

BeestorCs Case, Dears. 405.

i

A.

&

E. 783, 785,

;

;

Chap.

proved

if it is

witness there

is

he

if

as not to

43

of the judge] that the

be able to

travel [although

;^

kept out of the way by the person accused] if

he

is

mad

too

to testify,]

^

'^

and

the deposition purports to be signed by the justice by

whom

or before

it

it

purports to have been taken

proved by the person who

if it is

that

ill

a prospect of his recovery]

is

[probably

or,

[to the satisfaction

dead, or so

may be

[or, if

LAW OF EVIDENCE.

THE

IV.]

;

and evidence

offers it as

was taken in the presence of the person accused, and

that he, his counsel, or attorney,

had a

full

opportunity of

cross-examining the witness

Unless

it is

proved that the deposition was not in

signed by the justice by [or,

that the statement

or [perhaps] that

it

whom

it

fact

purports to be signed

was not taken upon oath

was not read over

to or signed

by the

witness].*

If there

is

a prospect

proved to be too

receive the deposition, but

When

of the recovery

of a witness

to travel, the judge is not obliged to

ill

may postpone

the

trial.^

a deposition or other record of evidence

is

used as

evidence in a subsequent proceeding, the same objections

may be made

to the reading of

been made when

'

R. R.

V.

it

Stephenson, L.

was

&

any part of

originally taken

it

as might have

by the party who

C. 165.

' Analogy oi R. v. Scaife. 17 Q. B. 773. * I believe the above to be the effect of 11 & 12 Vict. c. 42, s. 17, as interpreted by the cases referred to, the effect of which is given by the

^

V. Scaife,

words in brackets, also by common practice. Nothing can be more rambling or ill-arranged than the language of the section itself. See I Ph. Ev. 87-100; T. E.s. 448, &c. = R. V. Tait, 2 F. & F. 553.

— A DIGEST OF

44

[Part

I.

might have objected when the question was asked, but no

one can object

Article

own

party.'

34.

&

depositions under 30

A

an answer to a question

to the reading of

asked by the representative of his

3i vict.

c.

6.

s.

35,

deposition taken for the perpetuation of testimony in

&

criminal cases, under 30

31 Vict.

c.

35,

6,

s.

may be

produced and read as evidence, either for or against the accused,

upon the

trial

of any offender or offence

^

to

which

relates

it

if

the deponent

if it is

is

proved to be dead, or

proved that there

no reasonable probability

is

that

the deponent will ever be able to travel or to give evidence,

and if

the deposition purports to be signed by the justice by

whom

or before if it is

it

purports to be taken, 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)

whom

against

it is

proposed to be read, and

that such person or his counsel or attorney

have had,

if

he had chosen to be present,

had or might

full

opportunity

of cross-examining the deponent.^

'

Hutchinson

^

30

&

v.

31 Vict.

Bernard, 2 Moo. u.

35,

s.

6.

The

&

R.

section

i.

is

''

Sic.

very long, and as the

first

belongs rather to the subject of criminal procedure than to the subject of evidence, I have omitted it. The language is slightly I have not referred to depositions taken before a coroner (see altered. part of

it

THE

Chap. IV.]

LAW OF EVIDENCE. Article

45

35.

relevancy of statement in certain acts or notifiCATIONS.

When

any Act of

state or

any

issue or relevant to the issue, recital

fact of

a public nature

any statement of

made

it

is

in

in

a

contained in any public Act of Parliament, or in any

Royal proclamation or speech of the Sovereign Parliament, or in any address to the

of Parliament,

a relevant

is

Crown

in

opening

of either

House

fact."^

Article

36.

relevancy of entry in public record made in performance of duty.

An

entry in any official book, register, or record kept in

any of Her Majesty's dominions or

at sea, or in

any foreign

country, stating a fact in issue or relevant fact, in proper time

by any person

imposed upon him by the law of the place book, register, or record

7 Geo. IV.

c.

64,

s.

4),

is

and made

in the discharge of

kept,

is itself

in

any duty

which such

a relevant

fact.^

because the section says nothing about the con-

on which they may be given in evidence. Their relevancy, therefore, depends on the common law principles expressed in article 33. They must be signed by the coroner ; but these are matters not of ditions

evidence, but of criminal procedure.

Francklin, 17 S. T. 636

'

R.

'

T. E. (from Greenleaf)

V.

ss.

;

R.

v. Sutton,

1429, 1432.

4 M.

&

S. 532.

A DIGEST OF

46

Article

[Part

I.

37.

relevancy of statements in maps, charts, and plans.

made

Statements as to matters of general public history

books are relevant when the occur-

in accredited historical

rence of any such matter

is

in issue or relevant to the issue;

but statements in such works as to private rights or customs are irrelevant. 1 [Submittecf]

made

facts

Statements of

maps

in published

facts

in

issue,

or

relevant

or charts generally offered for

public sale as to matters of public notoriety, such as the relative position of

towns and countries, and such as are

usually represented or stated in such maps, or charts, are

themselves relevant facts •

vant

if

;^

but such statements are

irrele-

they relate to matters of private concern, or matters

not likely to be accurately stated in such documents.

Article

38.

ENTRIES IN tradesmen's BOOKS.

No

tradesman or handicraftsman keeping a shopbook, or

his executors or administrators,

evidence in any action for

may

give his shopbook in

money due

for

wares delivered

or work done above a year before the same action brought, unless he shall have obtained a

bill

of debt or obligation

of the debtor for the said debt, or shall have brought some '

See oases

'

In R.

V.

in 2 Ph. Ev. 155-6.

Orton,

maps of

Australia were given in evidence to

show

the situation of various places at which the defendant said he had lived.

THE

Chap. IV.]

LAW OF EVIDENCE.

action against the debtor for the debt or

i7

work within a year

next after the deKvery of the wares or the work done. dealings between merchant

This does not extend to

and merchant, merchant and tradesman, or tradesman and tradesman, for anything directly falling within the compass or circuit of their mutual trades and merchandises.^

Article 39.* definition of

The word

word "judgment."

" judgment " in articles 40-47

means any

final

judgment order or decree of any Court.

Article

40.

all judgments conclusive proof of their legal EFFECT. All judgments whatever are conclusive proof as against all

the world of the existence of that state of things which

they actually

effect,

and they are relevant when

existence or the existence of is

tlie state

their

own

of things so effected

a fact in issue or relevant to the issue. Illustrations. (a)

The

question

of his servant

B

is,

whether

* '

7

James

Statutes.

It

A has been damaged by the negligence

in injuring C's horse.

I. c. 12.

See Note

This Act

is

XXIV.

,

printed in the revised edition of the

appears to imply a rule that shopbooks are as such adwhat they state. If this ever was the law, it has

missible in proof of

been superseded by the principles stated

in articles

27 and 28.

^

A DIGEST OF

48

Judgment

an

in

which

action, in

conclusive proof as against B, that

[Part

I.

C recovered damages against A is C did recover damages against A

in that action.'

The

whether A, a shipowner, is entitled to recover as B an underwriter. A judgment of a competent French prize court condemning the ship and cargo as prize, is conclusive proof that the ship and cargo were lost (b)

question

A

to

by

against

capture.''

The

(c)

is,

by capture

for a loss

question

is,

whether

A

B

can recover damages from

for a

malicious prosecution.

The judgment proof that

by which

A, as executor to B, sues

(d)

The is

of a Court

A was acquitted by that

grant of probate to

A

is

C

A

was acquitted

is

conclusive

Court.' for a debt

due from

C

to B.

conclusive proof as against C, that

A

B's executor.''

A is deprived of his living by the sentence

(e)

The

sentence

{/)

A

and

B

is

of an ecclesiastical court.

conclusive proof of the fact of deprivation in all cases.

are divorced

& vinculo matrimonii by a sentence of the

Divorce Court.

The

sentence

is

conclusive proof of the divorce in

Article

all cases.^

41.

judgments conclusive as between parties and privies of facts forming ground of judgment. Every judgment

is

conclusive proof as against parties and

privies of facts directly in issue in the case, actually decided

by the Court, and appearing from the judgment '

Green

v.

New

River Company, 4 T. R. 590.

itself to

be

(See article 44,

Illustration (a). '^

Involved in Geyer

'

Leggait

&

v.

V. Tollervey,

Aguilar, 7 T. R. 681. 14 Ex. 301 ; and see Caddy

Ry. 277. ' Allen V. Dundas, 130. 37 R. 125 probate had been obtained was forged.

—

5 °

v.

Barlow,

i

Man.

In this case the will to which

Judgment of Lord Holt in Philips v. Bury, 2 T. R. 346, Assumed in Needham v. Bremner, L. R. i C. P. 582.

351.

Chap. IV.]

THE

LAW OF EVIDENCE.

the ground on which

it

49

was based; unless evidence was

admitted in the action in which the judgment was delivered

which

excluded in the action in which that judgment

is

is

intended to be proved. Illustrations.

The

(a)

question

is,

whether C, a pauper,

is

settled in parish

A

or

parish B.

D

is

E the father of C. D, E, and several of their removed from A to B before the question as to C's settleby an order unappealed against, which order described D

the mother and

children were

ment

arose,

as the wife of E. in the order that D was the wife of E is conclusive as and B.' A and B each claim administration to the goods of C, deceased. ifi) Administration is granted to B, the judgment declaring that, as far as appears by the evidence, B has proved himself next of kin. 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.

The statement

between

A

conclusive proof as against (c)

A

company

sues

A

A that B is for

nearer of kin to C than A.^ unpaid premium and calls. A special

of Common Pleas, A obtains judgment on the ground that he never was a shareholder. The company being wound up in the Court of Chancery, A applies for the repayment of the sum he had paid for premium and calls. The case being stated in the Court

decision that he never was a shareholder is conclusive, as between him and the company that he never was a shareholder, and is therefore entitled to recover the sums he paid.' (rf) A obtains a decree of judicial separation from her husband B, on the ground of cruelty and desertion, proved by her own evidence. Afterwards B sues A for dissolution of marriage on the ground of adultery, in which suit neither B nor A can give evidence. A charges B with cruelty and desertion. The decree in the first suit is irrelevant in

the second.* •

2 ' <

Hartington Middle Quarter, 4 E. & B. 780. Barrsy. Jackson, i PWU. 582, 587, 588. Bank of Hindustan, &c., Allison's Case, L. R. 9 Ch. App. Stoate V. Stoate, 2 Swa. & Tri. 223.

If. V.

24.

A DIGEST OF

50

Article

[Part

I.

42.

statements in judgments irrelevant as between strangers, except in admiralty cases. Statements contained in judgments as to the facts upon

which the judgment

based are irrelevant as between

is

between a party, or privy, and a stranger,

Strangers, or as

except ^ in the case of judgments of Courts of Admiralty

condemning a

In such cases the judgment

ship as prize.

conclusive proof as

against

all

plainly stated

upon the

on

the world of the fact

which the condemnation proceeded, where such

is

fact

is

face of the sentence. Illustrations.

The question between

(a)

had been

C and

A

disgavelled.

D (strangers

to

A

A

and

B

is,

whether certain lands in Kent on a feigned issue between

special verdict

and B) finding that

in the

2nd Edw. VI. a

gavelling Act was passed in words set out in the verdict (b)

The

question

is,

whether

A

is

dis-

irrelevant.^

committed bigamy by marrying

B

during the lifetime of her former husband C.

A decree in a suit of jactitation of marriage, forbidding C to claim to be the husband of A, on the ground that he was not her husband, is irrelevant.' (c)

The

B

to

question is, whether A, a shipowner, has broken a warranty an underwriter, that the cargo of the ship whose freight was

insured

by

A

was neutral property.

sentence of a French prize court condemning ship and cargo, on the ground that the cargo was enemy's property, is conclusive proof in

The

favour of

B

that the cargo

the Court thought

it

was

was enemy's property (though on the

not.)

facts

*

This exception is treated by Lord Eldon as an objectionable anomaly in Lothian v. Henderson. See, too, Castrignev. Imric, 3 B. & P. L. R. 4 E. & I. App. 434-5. 545. '

'^

* *

Doe V. Biydges, 6 M. & G. 282. Duchess of Kingston's Case, 2 Smith's Leading Cases, 760. Geyer

v.

Aguilar, 7 T. R. 681.

Chap.

THE

IV.]

LAW OF EVIDENCE. Article

51

43.

kffect of judgment not pleaded as an estoppel. If a

judgment

is

not pleaded by way of estoppel

between parties and privies a relevant

fact,

it

as

is

whenever any

matter which was or might have been decided in the action

which

in

it

was given

any subsequent

is

in issue or relevant to the issue in

action.

Such a judgment

is

conclusive proof of the facts which

who

decides, or might have decided, if the party

evidence of

it

had no opportunity of pleading

it

it

gives as

an

estoppel. Illustrations. (a)

A

B

sues

for

deepening the channel of a stream, whereby the

flow of water to A's mill was diminished. verdict recovered by B in a previous action for substantially the same cause, and which might have been pleaded as an estoppel, is

A

relevant, but not conclusive in B's favour.' {h)

A

sues

B

for breaking

a wall and a cornice. verdict in his favour

on

B

and entering A's land, and building thereon

pleSds that the land was his, and obtains a

that plea.

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. As the first judgment could not be pleaded as an estoppel (the wife's right not appearing on the pleadings), it is conclusive in B's favour that the land

was

'

his.^

Vooght

v.

Winch, 2 B.

&

A. 662

;

and see Feversham

v.

Emerson,

II Ex. 391. ^

Whitaker v. Jackson, 2 H. See 2 Ph. Ev. 24, n.

doubted.

&

C. 926.

This had previously been

4.

E

2

—

;

A DIGEST OF

52

Article

[Part

I.

44.

judgments generally irrelevant as between strangers.

Judgments are

not. relevant as

which may be inferred from

rendering probable facts

their existence, but

which- they

neither state nor decide

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

in favour of strangers against parties or privies.

But a judgment (i)

may be

relevant as between strangers

:

As being an admission, or

(2) If

it

interest, as

relates

to

matter

a

of public

or gejieral

a statement under article 30. Illustrations.

The

(a)

of

B

question

his servant,

A

is,

who

from A,

has sustained loss by the negligence

has injured C's horse.

judgment recovered by

clusive as against B,

A

whether

C

against

as to the fact that

irrelevant to the question,

is

A for C

the injury, though con-

recovered a

whether

sum

of

money

this

was caused by B's

is

forged arises in an

negligence.' (b)

The

question whether

action on the

bill.

The

a,

bill

fact that

of exchange

A was

convicted of forging the

bill is

irrelevant.^

A

collision takes place between two ships A and B, each of damaged by the other. The owner of A sues the owner of B, and recovers damages on the ground that the colhsion was the fault of B's captain. This judgment (c)

which

is

Green

v.

Neia River Company, 4 T. R. 589.

Per Blackburn,

J.,

in Castrique v. Imrie, L. R.

4 E.

& I. App.

434.

Chap.

53

not conclusive in an action by the owner of B against the owner of for the damage done to B.' \Semble, it is irrelevant.] ^

is ,

LAW OF EVIDENCE.

THE

IV.]

A,

A

(d)

B

is

is

prosecuted and convicted as a principal felon.

afterwards prosecuted as an accessory to the felony committed

by A. The judgment against

A

is

irrelevant as against B,

though A's guilt

must be proved as against B.'

A sues B, a carrier, for goods delivered by A to B. judgment recovered by B against a person to whom he had delivered the goods, is relevant as an admission by B that he had them.* (/) A sues B for trespass on land. A judgment, 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].'^ (e)

A

Article

45.

judgments conclusive in favour of judge.

When

any action

delivered,

is

brought against any person for any

by him in a judicial capacity, the judgment

thing done

and the proceedings antecedent

thereto,

are

conclusive proof of the facts therein stated, whether they are or are not necessary to give the defendant jurisdiction. Illustration.

A sues B (a justice of the peace) for taking from him a vessel and 500 lbs. of gunpowder thereon. B produces a conviction before himself of A for having

The

gunpowder in a boat on the Thames

conviction

is

(against 2 Geo. III.

c.

boat was a boat.'

'

'"

The

On

Calypso,

i

Swab. Ad.

28.

the general principle in Duchess of Kingston's Case.

*

Semble from R. v. Turner, BuUer N. P. 242, b.

'

Brittain

'

v.

28).

conclusive proof for B, that the thing called a

Kinnaird,

I

B.

I

Moo. C. C. =

&

347. Petrie v. Nuttall, 11 Ex. 569.

B. 432.

A DIGEST OF

54

Article

[Part

I.

46.

want of jurisdiction may be

fraud, collusion, or

PROVED. Wlienever any judgment

is

under any

offered as evidence

of the articles hereinbefore contained, the party against

whom gave or,

it

it

if

is

he

is

may prove

so offered

had no

a stranger to

it,

that

the Court which

that

jurisdiction, or that it

it

has been reversed,

was obtained by any

fraud or collusion, to which neither he nor any person to

whom

he

is

privy was a party.

doubtful whether

It is

a party or privy to such a judgment can show that

obtained by a fraud to which he was not a party.

Article

was

47.

FOREIGN judgments.

The

it

^

'

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, and so far as they can be so enforced.^

'

'

Cases collected in T. E.

The

cases

on

ss.

1524-1525,

s.

1530. See, too, 2 Ph. Ev. 35. on the Duchess

this subject are collected in the note

of Kingston's Case, 2 S. L. C. 813-845.

found in R. N. P. 221-3.

A

list

of the cases will be

Tlie last leading cases on the subject are

Godard v. Gray, L. R. 6 Q. B. 139, and Castrique 4 E. & I. App. 414.

v.

Imrie, L. R.

THE

Chap, v.]

OPINIONS

LAW OF EVIDENCE.

55

CHAPTER v.* WHEN RELEVANT AND WHEN NOT. Article

48.

opinion generally irrelevant.

The

fact that

any person

of opinion that a fact

is

in

not

issue, or relevant to the issue, does or does not exist

is

regarded as relevant to the existence of such

within

any of the

articles hereinbefore contained,

fact,

except in the

cases specified in this chapter. Illustration.

The question is, whether A, a deceased testator, was sane or not when he made his will. His friends' opinions as to his sanity, as expressed by the letters which they addressed to him in his lifetime, are irrelevant.'

Article

49.

OPINIONS OF experts ON POINTS OF SCIENCE OR ART.

When

there

is

a question as to any point of science or

the opinions upon

any such matter are relevant

facts.

Such persons are hereinafter

The words,

called experts.

" science or art " include

* V.

See Note

Doe

d.

subjects

all

a course of special study or experience

Wright

art,

that point of persons specially skilled in

is

XXV.

Tatham,

"j

on which

necessary to the

K. Si'E. 313.

A DIGEST OF

56

[Part

I.

formation of an opinion,^ and amongst others the examination of handwriting.

When

there

of experts

is

who

a question as to a foreign law the opinions

in their profession are acquainted with such

law are the only admissible evidence thereof, though such

may produce

experts

the

to

books which

Court

declare to be works of authority

upon the

they

foreign law in

question, which books the Court, having received all neces-

sary explanations from the expert,

may

construe for itself^

the duty of the judge to decide,

It is

opinion of the Court above, whether the

on which evidence of

in the matter

sufficient to entitle

is

The opinion on which

him

to

subject

skill

to

the

of any person

his opinion is offered

be considered as an expert.^

of an expert as to the existence of the facts

his opinion is to

be given

is

irrelevant, unless he

perceived them himself* Illustrations.

The

(a)

The

question

is,

whether the death of

A

was caused by

poison.

opinions of experts as to the symptoms produced by the poison

A

by which

supposed to have died, are relevant.' is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or con-

The

(b)

is

question

trary to law.

The

opinions of experts upon the question whether the

exliibited

'

I

by

A

symptoms commonly show unsoundness of mind, and whether

S.L.C.55S,7thed. (note

to

Carlerv.Boehm); 28 Vict.

c. i8,s. l8.

Baron de Bode's Case, 8 Q. B. 250-267 ; Di Sora v. Philliffs, 10 H. L. 624 ; Castrique v. Imrie, L. R. 4 E. & I. App. 434 ; see, too, ^

Picton's Case, 30 S. T. 510-511. =

Bristow

V. Sequeville,

'

R.

V.

Palmer

Rowley y. L. Ss' N. W. Railway, ; Ph. 507 ; T. E. s. 1278. See my Gen. View of Crim. Law,' 357.

6 Ex. 275

L. R. 8 Ex. 221.

«

{/lassim).

I

'

,

.

Chap, v.]

THE

LAW

OF EVIDENCE.

57

such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either (c)

wrong

The

or contrary to law, are Relevant'

question

Another document been written by A.

is,

is

whether a certain document was written by A. 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, are relevant.'' (d ) The opinions of experts on the questions, whether in illustration in (fl) A's death was in fact attended by certain symptoms; whether illustration (b) the symptoms from which they infer that A was of unsound mind existed ; whether in illustration (c) either or both of the documents were written by A, are irrelevant. ,

Article

50.

facts bearing upon opinions of experts. Facts, not otherwise relevant, are relevant

if

they support

or are inconsistent with the opinions of experts,

when such

opinions are relevant. Illustrations,

The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, (3)

exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.' [b] The question is, whether an obstruction to a harbour is caused by

a certain bank.

The

An

expert gives his opinion that

where there were no such banks,' began same time, is relevant. '

"

it is

not.

fact that other harbours similarly situated in other respects, but

R. V. Dove (passim). 28 Vict. c. 18, s. 8. R. V. Palmer, printed

to

be obstructed

at

about the

Ibid., 391.

' trial, p. 124, &c. In this casS (tried in 1856) evidence was given of the symptoms attending the deaths of Agnes Senet, poisoned, by strychnine in 1845, Mrs. Serjeantson Smith,

and Mrs. Dove, murdered by the same poison subsequently to the death of Cook, for whose murder Palmer * Foulkes v. Chadd, was tried. 3 Doug. 157. similarly poisoned in 1848,

;

A DIGEST OF

58

Article

there

is

it

of the

whom

any

any person

supposed writer

was or was not written or signed by him,

relevant

A

relevant.

signed, the opinion of

acquainted with the handwriting that

when

a question as to the person by

document was written or

I.

51.

opinion as to handwriting,

When

[Part

is

a

fact.

person

is

deemed to be acquainted with the handwriting when he has at any time seen that person

of another pers'on write, or

written

when he has

by

received documents purporting to be

that person in answer to

documents written by

himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually

submitted to him.^ Illustration.

The

given letter is in the handwriting of A, a merchant in Calcutta. B is a merchant in London, who has written letters addressed to A, and received letters purporting to be written by him. C is B's clerk, is B's whose duty it was to examine and file B's correspondence. broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon. The opinions of B, C; and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C, nor D ever saw question

is,

whether

a,

D

A

write.''

The opinion

of C,

who saw

A

Write once twenty years ago,

is

also

relevant.^

See Illustrations. Doev. Sackermore, 5 A. 739-40 (Denman, C. J.). '

^

"

R.

V.

Home

& E.

705 (Coleridge,

Tooke, 25 S. T. 71-2.

J.)

;

730 (Patteson,

J.)

LAW OF EVIDENCE.

THE

Chap, v.]

Article

59

52.

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

made by

witnesses,

and such

evidence of witnesses respecting the same, to the Court

all

may be

is

per-

and the

submitted

and jury as evidence of the genuineness or This paragraph apphes

otherwise of the writing in dispute. to

writings,

courts

of judicature, criminal or

civil,

and to

all

persons having by law, or by consent of parties, authority

and examine

to hear, receive,

evidence.''

Article

53.

opinion as to existence of marriage,

When

there

is

when

relevant.

a question whether two persons are or

expressed by conduct, of

are not married, the opinion, their acquaintances

and

friends

is

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. '

—

;

A DIGEST OF

6o

[Part

I.

CHAPTER VL* CHARACTER,

WHEN RELEVANT AND WHEN NOT. Article

55.

character generally irrelevant.

The

fact that a

deemed

to

person

of a particular character

is

is

not

be relevant to any inquiry respecting his conduct

under any of the

articles hereinbefore contained,

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,

a bad character

is

is

relevant

;

but the fact that he has

irrelevant, unless

it

is

itself

a fact in

or unless evidence has been, given that he has a

issue,

good

character, in

When any

which case

it

becomes

relevant.

person gives evidence of his good character

who Being on his death, has

Or,

trial for

any felony not punishable with

been previously convicted of felony

who being upon

his trial for

* See Note

&

any offence punishable

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.

THE

Chap. VI.]

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

which reputation or disposition

is

Article

shown.^

57.

character as affecting damages. In

civil cases,

the action

is

the fact that the character of any party to

such as to

he ought to receive,

is

affect the

amount of damages which

generally irrelevant.^

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 '

=i

'

evidence as admissible, though perhaps proposition that

it is

so

;

and Jones

pp. 265, 268, which decides that

it

does not absolutely affirm the

v. Stevens, 1 1 it

is

not.

Price 235, see especially question is now ren-

The

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.

—

A DIGEST OF

62

PART

[Part

II.

II.

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

the duty of

is

following facts

judges to take judicial notice of the

all

:

All unwritten laws, rules,

(i)

and principles having the

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

Her Majesty and her successors in England or may be the nature of the jurisdiction

Ireland, whatever thereof. 1 (2) All public

Acts of Parliament,^ and

ment whatever, passed contrary

is

The

(3)

all

Acts of Parlia-

since February 4, 1851, unless the

expressly provided in any such Act.^

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.^

"•

'

Ph. Ev. 460-1

Act of '

13

of 14

1873),

&

&

s.

T. E.

See Note s.

4,

XXVII.

and see 36

&

37 Vict.

c.

66 (Judicature

Z5.

14 Vict,

IS Vict

;

c

21,

ss.

7, 8,

and see =

(for date)

Ph. Ev. 460

;

caption of session

T. E.

s,

5.

THE

Chap. VII.]

(4) All general

and

any division of the High Court of

by any of the superior courts of law or equity,

customs which have been duly

all

63

customs which have been held to have

the force of law in Justice or

LAW OF EVIDENCE.

to

certified

and

recorded in any such court. ^ (5)

The

force in the

course of proceeding and

Supreme Court of

all rules

of practice in

Courts of a limited

Justice.

or inferior jurisdiction take judicial notice

of their

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

accession and \semble\ the sign manual of

Her

Majesty and her successors.^ (7)

The

existence

recognised by (8)

The

accession to

when attached or

judicial

and

title

of every State and Sovereign

Her Majesty and to

official

office,

her successors.*

names,

any decree, order,

titles,

functions, and,

certificate,

or other

documents, the signatures, of

all

the

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

The Great

The

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).. '

rule

certified to

it

to

;

A DIGEST OF

64

Superior Courts of

Justice,'^

and

[Part

all seals

II.

which any Court

authorised to use by any Act of Parliament,^ certain

is

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

graphical

her successors

the territorial

;

and

poli-

of England and Ireland, but not their geo-

position

or the

situation of

particular places

commencement, continuance, and termination of war

the

between Her Majesty and any other Sovereign; and

all

other public matters directly concerning the general govern-

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

The

ordinary course of nature, natural and

divisions of time, the

artificial

meaning of English words.*

(12) All other matters

which they are directed by any

statute to notice.'

Article

59.

as to proof of such facts.

No

fact of

which the Court

will take judicial notice

be proved by the party alleging judge,

The

'

or

if

he

is

existence;

its

unacquainted with such

Judicature Acts confer no seal on the

fact,

may

refer to

Supreme or High Couft

its divisions. '

Doe

'

1

»

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.

'

I

'

E.

u

g.,

the Articles of

War.

See

sec.

i

need

but the

of the Mutiny Act.

Chap. VII.]

THE

LAW OF EVIDENCE.

65

any person or to any document or book of reference satisfaction in relation thereto, or

may refuse

notice thereof unless and until the party calling to take such notice produces

reference.

for his

to take judicial

upon him

any such document or book of

"^

Article

60.

facts admitted need not be proved.

No

fact

need be proved

in

any action which the parties

thereto or their agents agree to admit at the hearing, or

which they have admitted before the hearing and with reference thereto, or by their pleadings.^

can

felony the prisoner

make

In a

trial for

no admissions so

dispense with proof, though a confession

as

to

may be proved

as

against him, subject to the rules stated in articles 21-24.^

'

T. E. (from Greenleaf)

s.

20.

E.g., a judge will refer in case of need

to an almanac, or to a printed copy of the statutes, or write to the

Foreign Office, to know whether a State had been recognised. See Schedule to Judicature Act of 1875, Order xxxii. ' I Ph. Ev. In R. v. Thornhill, 8 C. & P., Lord Abinger 391, n. 6. "^

acted upon this rule in a

trial for perjury.

—

;

A

66

—

;

;

DIGEST OF

CHAPTER

[Part

II.

VIII.

OF ORAL EVIDENCE. Article

6i.

proof of facts by oral evidence.

All

may be proved by oral evidence, except The contents of such documents as must be proved

facts

(i)

otherwise; and^ (2)

Such

facts as

must be proved

by documentary

either

evidence or by secondary evidence

of

the

contents

of

documents.'^

Article 62.*

oral evidence must be direct. Oral evidence must in is

all

cases whatever be direct

;

that

to say

If

it

refers to a fact alleged to

the evidence of a witness If

who

have been seen,

says he saw

refers to a fact alleged to

it

have been heard,

be the evidence of a witness who says he heard If

refers to a fact alleged to

it

any other sense or

in

evidence of a witness sense or in that If

it

refers to

opinion

held,

is

it

must

it

it

must be the

says he perceived

it

by

that

manner an opinion, or to the grounds on which that it

must be the evidence of the person who

holds that opinion on those grounds. * See Note '

must be

have been perceived by

any other manner,

who

it

it

See chapter

x.

XXVIII. ''See chapter

xii.

:

THE

Chap. IX.]

LAW

OF EVIDENCE.

CHAPTER

67

IX.

OF DOCUMENTARY EVIDENCE — PRIMARY AND SECONDARY, AND ATTESTED DOCUMENTS. ARTICLK

63.

PROOF OF CONTENTS OF DOCUMENTS.

The

contents of documents

may be proved

either

by

pri-

mary or by secondary evidence.

Article

64.

primary evidence. Primary evidence means the document

itself

.

for the inspection of the Court

contents proved to have been

;

produced

or an admission of

made by

its

a person whose

admissions are relevant under articles 15-20.^^

Where a document is

is

executed in several parts, each part

primary evidence of the document

Where a document

is

executed in counterpart, each

counterpart being executed by one or some of the parties only, each counterpart parties executing

is

primary evidence as against the

it.^

Where a number of documents

are

all

made by

printing,

lithography, or photography, or any other process of such a 6 M. & W. 664. West v. Davis, 7 Ea. 362. Stowev. Querner, L. R. 5 Ex. 153.

'

Slatterie v. Pooley,

^

Roe

'

d.

F 2

—

:

A DIGEST OF

68

nature as in

itself to

[Part

secure uniformity in the copies, each

primary evidence of the contents of the rest they are

all

II.

common

copies of a

no one of them

original,

is

but where

;^

is

primary evidence of the contents of the original.^

Article

65.

secondary evidence. Secondary evidence means (i)

Examined

certified copies

(2)

copies, exemplifications, office copies,

and

^ :

Other copies made from the original and proved to

be correct (3)

Counterparts of documents as against the parties

did not execute

them

who

* :

(4) Oral accounts of the contents of a

by some person who has himself seen

Article

document given

it.

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.

invention of photography

(EUenborough, C.

J.,

;

This case was decided long before the

but the judgments delivered by the Court

and Abbott, Bayley and Holroyd,

JJ.) establish

the principle stated in the text. '

Noden

v.

'

Munn

V.

Murray, 3 Camp.

224. Godbold, 3 Bing. 292.

»

See chapter

x.

— THE

Chap. IX.]

LAW OF EVIDENCE. Article

cases in

67.

may be

given of the contents of a

in the following cases

When

(a)

69

which secondary evidence relating to documents may be given.

Secondary evidence

document

'

the original

is

shown or appears

to be in the

possession or power of the adverse party,

and when,

after the notice

does not produce

When

ip)

it ;

mentioned in

article

68,

he

^

the original

is

shown or appears

to be in the

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

duce

it,

and who refuses to produce

it

after

with a subpoena duces tecum, or after having

being served

been sworn as a

witness and asked for the document and having admitted that

it is

(c)

in court

When

^ ;

the original has

proper search has been (d)

When

made

the original

is

been destroyed or for

it

'

is

R.

cited

V.

;

and

of such a nature as not to be

easily movable,* or is in a country

permitted to be removed

lost,

;^

from which

it

is

not

^

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

by Mr.

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).

A DIGEST OF

70

[Part

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

II.

(if)

which special provision

made by any Act

is

or any law in force for the time being

When

{g)

;

^

proof of

of Parliament,

or

consist of numerous documents

the originals

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

be proved

is

the general result of the whole collection

provided that that result

is

:

capable of being ascertained by

calculation. ^

In cases

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

the contents of the-

In case

(e),

and

(d),

document

is

any secondary evidence of admissible.*

the contents of the

document may be proved

according to the provisions hereinafter contained as to the

proof of public documents.

In case

(/), the

specially provided

document may be proved

in the

manner

by the law which makes provision

for its

proof.

In case

(g),

result of the

them, and

evidence

may be

given as to the general

documents by any person who has examined

who

is skilled in

the examination of such docu-

ments.

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,

— THE LA W OF EVIDENCE.

Chap. IX.]

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, the original

if

in the possession or

is

under the control of

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

procured if

;

as

be

is

in the possession of a stranger to the

him with a subpcena

duces tecum requiring

its

^

production

;

a stranger so served does not produce the document,

and has no lawful do

it

to

or has,

^

the original

action, served

if

it

so, his

him with

justification

for refusing or omitting to

who

omission does not entitle the party the subposna to give

served

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

tion that the

the

document

the

action

document

*

Bwyer v.

'

R.

*

How V.

V.

Collins, 7

373

;

T. E.

&

s.

422.

is

is itself

production

^

a notice

;

upon the assumppower of the

* ;

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

B. 940.

Hall, 14 Ea. 247.

produce the bond

its

See Note

Ex. 648.

Llanfaethly, 2 E.

founded

in the possession or

is

adverse party and requires

•

to be proved is

required.

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

— A DIGEST OF

72

When

(3)

it

appears or

is

[Part

II:

proved that the adverse party

has obtained possession of the original from a person sub-

poenaed to produce

When

(4)

in court

;

it

^

;

the adverse party or his agent has the original

^

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

to be attested. document

If a

is

required by law to be attested,

not be used as evidence

and subject

alive sane

if

there be an attesting witness

to the process of the Court, until

attesting witness at least has

of proving If

it

is

its

may

it

been called

for the

one

purpose

execution.

shown

or can be found,

that it

no such

attesting witness

must be proved that the

of one attesting witness at least

is

is

in his handwriting,

that the signature of the person executing the

alive

attestation

and

document

is

in the handwriting of that person.

The the

rule extends to cases in

which

document has been burnt ^ or cancelled

the subscribing witness

the person by

pared to

whom

testify to his

is

blind

;

the document was executed

own

execution of

the person seeking to prove the *

^ ;

*

See Note

it

;

is

pre-

^

document

is

prepared to

XXX.

'

Leeds

2

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.

Collins, 7 ' '

v.

Cook, 4 Esp. 256. v.

— Chap.

I

THE

X.]

LAW OF E VIDENCE.

prove an admission of

its

executed the deed, even

if

made

such admission be to,

73

he

is

who

person

execution by the

for the

;

a party to the cause,' unless

purpose

of,

or has reference

the cause.

Article 70.* cases in

which attesting witness need not be called.

In the following cases, and in the case mentioned in Article 88, but in

others, a person seeking to prove the

no

execution of a document required by law to be attested not bound to

call

is

who

for that purpose either the party

executed the deed or any attesting witness, or to prove the handwriting of any such party or attesting witness (i)

When

he

is

entitled to give secondary evidence of the

contents of the document under article 67 (a) (2)

When

his

opponent produces

claims an interest under of the suit (3)

;

When its

;^

called

upon and

in reference to the subject-matter

^

the person against

sought to be proved cure

it

when

it

is

whom

the

document

is

a public officer bound by law to pro-

due execution, and who has dealt with

it

as a

document duly executed.* * See

Note

XXX.

Call V. Dunning, 4 Ea. 53. See, too, Whyman v. Garth, 8 Ex. 803 Randall-^. Lynch, 2 Camp. 357. 2 Cooper V. Tamswell, 8 Tau. 450 ; Poole v. Warren, 8 A. & E. 588. '

'

As

Pearce

v.

Hooper, 3 Tau. 60

;

Rearden

v.

Minter, 5

M. & G.

204.

to the sort of interest necessary to bring a case within this exception,

see Collins v. Bayntun,

i

Q. B. 118.

Plumer v. Brisco, II Q. B. 46. Bailey y. Bidwell, 13 M. & W. 73, would perhaps justify a slight enlargement of the exception, but the circumstances of the case were very peculiar. Mr. Taylor (ss. 1650-1) ^

A DIGEST OF

74

Article

[Part

II.

71.

proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the

execution of the document,

its

execution

may be proved by

other evidence.^

Article

72.

proof of document not required by law to be attested.

An

attested

may in

all

document not required by law

to

be attested

cases whatever, civil or criminal, be proved as

if it

was unattested.^ considers

it

doubtful whether the rule extends to instruments executed

by corporations, or to deeds enrolled under the provisions of any Act of Parliament, but his authorities hardly seem to support his view ; at all events, as to deeds by corporations. '

"Where an

attesting witness has denied

all

knowledge of the

matter, the case stands as if there wete no attesting witness ;" Talbot v.

Hodson, 7 Tau. 251, 254. ^

17

&

18 Vict.

c.

125,

s.

26

;

28

&

29 Vict.

i.-.

18, ss. i, 7.

Chap. X.]

THE

LAW OF EVIDENCE.

CHAPTER

7i

X.

PROOF OF PUBLIC DOCUMENTS. Article

73.

proof of public documents.

When

made

a statement

in

any public document,

register

or record, judicial or otherwise, or in any pleading or deposition

kept therewith

any proceeding, the that document,

is

in issue, or is relevant to the issue in

fact that that statement

may be proved

in

is

contained in

any of the ways mentioned

in this chapter.^

Article

74.

production of document

The

itself.

contents of any public document whatever

proved by producing the document proper custody, and identifying

it

itself for

may be

inspection from

as being what

it

professes

to be.

Article 75.'

examined

The

copies.

contents of any public document whatever

cases be proved

by an examined copy

* See Note

XXXI., '

See

also

Doe

articles

v.

may

in all

as hereinafter defined.

Poss, 7

36 and 90.

M. & W.

106.

A DIGEST OF

76

An

examined copy

[Part

II.

a copy proved by oral evidence to

is

have been examined with the original and to correspond

The examination may be made

therewith.

either

by one

person reading both the original and the copy, or by two persons, one reading the original

and the other the copy, and

not necessary (except in peerage cases ^), that each

is

it

should alternately read both.^

Article

76.

general records of the realm.

Any

record under the charge and superintendence of the

Master of the Rolls

copy

certified as

for the time being,

may be proved by

a

a true and authentic copy by the deputy

keeper of the records or one of the assistant record keepers,

and purporting

Record

to be sealed or

stamped with the

seal of the

Office.^

Article

77.*

exemplifications.

An

exemplification

is

a copy of a record set out either

under the Great Seal or under the Seal of a Court.

A copy make

it,

made by an is

officer of

the Court, bound by law to

equivalent to an exemplification, though

it

is

sometimes called an office copy.

An

exemplification

is

equivalent to the original

document

exemplified. * See '

^ '

Note XXXII.

Slane Peerage Case, 5 C. & F. 42. 2 PK. Ev. 200,' 231 ; T. E. ss. 1379, 1389 I

&

2 Vict.

c.

94,

ss. I,

12, 13.

;

R. N. P. 113.

THE

Chap. X.]

LAW OF EVIDENCE.

jf

Article 78.*

A copy made by an

officer of the Court,

make it by a rule of Court, but not make it, is regarded as equivalent to an

to

same Cause and Court, but

the is

not admissible unless

it

in other

who

is

authorised

required by law to exemplification in

Causes or Courts

it

can be proved as an examined

copy.

Article

79.

certified copies. It is

provided by

many

statutes that various certificates,

and public documents, documents and proceedings of corporations, and of joint stock and other companies, and official

certified copies of

and other books, jiarticulars in

documents, bye-laws, entries in registers

shall

authenticated in the

Whenever, by certificate

be receivable in evidence of certain

Courts of Justice, provided they are respectively

manner prescribed by such statutes,^ any such provision, any such

virtue of

or certified

copy as aforesaid

is

receivable in

proof of any particular in any Court of Justice, sible as

evidence

if it

it is

admis-

purports to be authenticated in the

manner prescribed by law without proof of any stamp, or signature required for character of the person

*

&

its

seal,

authentication or of the official

who appears See Note

to

have signed

it.^

XXXII.

9 Vict. c. 113, preamble. Many such statutes are specified in T. E. s. 1440 and following sections. See, too, R. N. P. 1 14-5. Ibid., s. I. I believe the above to be the effect of the provision, but the language is greatly condensed. Some words at the end of the '

''

8

A DIGEST OF

78

[Part

Whenever any book or other document nature as to be admissible in evidence on tion from the proper custody,

renders

its

and no

contents provable by

thereof or extract therefrom contents,^ provided

it

is

is

II.

of such a public

its

mere produc-

statute exists

which

means of a copy, any copy admissible in proof of

its

purport to be signed and certified as

a true copy or extract by the officer to whose custody the original certified

is

intrusted.

Every such

able time for the same, for the

oflScer

must furnish such

copy or extract to any person applying

at a reason-

upon payment of a reasonable sum

same, not exceeding fourpence for every folio of

ninety words.^

Article

8o.

DOCUMENTS ADMISSIBLE THROUGHOUT THE QUEEN'S DOMINIONS. If is

by any law

in force for the time being

any document

admissible in evidence of any particular either in courts

of justice in England and Wales, or in

couirts

of justice in

Ireland, without proof of the seal, or stamp, or signature

authenticating the same, or of the judicial or official character of the person appearing to have signed the same.

section are regarded as

unmeaning by several

text writers.

See,

e.g.,

R. N. P. Ii6 ; 2 Ph. Ev. 241 ; T. E. ». 7, note i. Mr. Taylor says that the concluding words of the section were introduced into the Act while passing through the House of Commons. He adds, they appear to have been copied from i & 2 Vict. c. 94, s. 13 (see art. 76) "by some hbnourable member who did not know distinctly what he was about." They certainly add nothing to the sense. " provided it be proved to be an examined copy or ' The words extract or," occur in the Act, but are here omitted, because their effect is

given in article 75.

^

14

&

15 Vict.

c.

99,

a.

14.

;

THE LA W OF EVIDENCE.

Chap. X.]

that

document

is

also admissible in evidence to the

extent and for the aforesaid, in

79

same

same purpose, without such proof as

any court or before any judge in any part of

the Queen's dominions except Scotland.^

Article

81.

queen's printers,' copies.

The Acts,

contents of Acts of Parliament, not being public

may be proved by

copies thereof purporting to be

printed by the Queen's printers

The

journals of either

House of Parliament ; and

Royal proclamations,

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.^ Article

82.

PROOF OF IRISH statutes.

The copy

of the statutes of the kingdom of Ireland

enacted by the Parliament of the same, prior to the union

' Consolidates 14 & 15 Vict. c. 99, ss. 9, 10, 11, 19. Sec. 9 provides that documents admissible in England shall be admissible in Ireland ; sec. 10 is the converse of 9 ; sec. II enacts that documents admissible

in either shall be admissible in the "British Colonies;"

and sec. 19 Channel Islands, the Isle of Man, and "all other possessions" of the British Crown, wheresoever and whatsoever. This cannot mean to include' Scotland, though the literal sense of the words would perhaps extend to it. Is there any difference between the 8 & 9 Vict. c. 113, s. 3. Queen's printers and the printers to the Crown ? defines the British Colonies as including India, the

'^

— A DIGEST OF

8o

[Part

II.

of the kingdoms of Great Britain and Ireland, and printed

and published by the George

III.

predecessors,

his

King

duly authorised by

printer

any of

or

conclusive

is

evidence of the contents of such statutes.^

Article

83.

proclamations, orders in council, &c.

The

contents of any proclamation, order, or regulation

issued at any time by

Her Majesty

or by the Privy Council,

and of any proclamation, order, or regulation issued

at

any

time by or under the authority of any such department of the

Government or

column of the note^ the

modes

'

Name

of

mentioned

is

may be proved

hereinafter mentioned

Column

^

as

officer

hereto,

41 Geo. III.

that

;

c.

90,

s.

is

•The Commissioners of

tlie

Trea-

Names

Any

first

any of

to say

Column Officer.

the

9.

i.

Department or

in

in all or

2.

of Certifying Officers.

Commissioner, Secretary, or

Assistant Secretary of the Trea-

sury.

sury.

The Commissioners the Office of

for executing

Lord High Ad-

miral.

Any

of

the

Commissioners

for

executing the

Office of

High Admiral

or either of the

Secretaries

the

to

said

Lord

Com-

missioners.

Any

Secretaries of State.

Secretary or Under-Secretary

of State.

Committee of Privy Council Trade.

for

Any Member of the Committee

of

Privy Council for Trade or any Secretary or Assistant Secretary of the said Committee.

:

THE

Chap. X.]

By

(i)

LAW

OF EVIDENCE.

8i

the production of a copy of the Gazette purport-

ing to contain such proclamation, order, or regulation

By

(2)

order, or regulation purporting to

ment

printer, or,

British

:

the production of a copy of such proclamation,

be printed by the Govern-

where the question

arises in a court in

any

colony or possession, of a copy purporting to be

printed under the authority of the legislature of such British

colony or possession (3)

By

the production, in the case of any proclamation,

order, or regulation issued

by Her Majesty or by the Privy

Council, 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, and, in the case

of any proclamation, order, or regulation issued by or under the authority of any of the said departments or

by

oflficers,

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

Any copy

officer.

or extract

made under

this provision

print or in writing, or partly in print

No

proof

is

required of

the

and partly

may be

in

in writing.

handwriting or

official

position of any person certifying, in pursuance of this pro-

The Poor Law Board.

Any Commissioner

Law Board

of the Poor

or any; Secretary or

Assistant Secretary of the said

Board.

The Postmaster

Any

General.

Secretary or Assistant Secre-

tary of the Post Office (33 Vic. c. 79, s. 21).

(Schedule to 31

&

32 Vict.

c.

37.

See also 34

&

35 Vict.

&

34

t. 70, s. 5.)

G

—

;

A DIGEST OF

82

[Part

II.

any copy of or extract from any

vision, to the truth of

proclamation, order, or regulation.^ Subject to any law that

by the

legislature

provision

this

is

may be from

made

British colony or possession,

of any in

time to time

force

colony and

such

every

jn

possession.^

Article

84.

foreign and colonial acts of state, judgments, &c. All proclamations, treaties, and other Acts of state of any foreign state, or of any British colony, and

decrees, orders,

and other

all

judgments,

any court

judicial proceedings of

of justice in any foreign state or in any British colony, and pleadings,

all affidavits,

deposited in any

and other

such court,

legal

documents

may be proved

filed

either

or

by

examined copies or by copies authenticated as hereinafter mentioned If

;

that

is

to say

the document sought

to

be proved be a proclamation,

treaty, or other act of state, the authenticated

copy to be

admissible in evidence must purport to be sealed with the seal of the foreign

the original

And

the

if

state

or British

possession to

which

document belongs

document sought

to

be proved be a judgment,

decree, order, or other judicial proceeding of any foreign court, in

any

British possession, or

an

affidavit, pleading, or

other legal document filed or deposited in any such court, 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 '-

31

&

32 Vict.

c.

37,

s.

2-

no

document belongs, seal, to

=

or, in

be signed by the

Ibid.,

s. 3.

;

THE LA W OF EVIDENCE.

Chap. X.]

judge, or,

if

83

more than one judge, by any one of

there be

the judges of the said court, and such judge must attach to his signature a statement in writing

the court whereof he If

on the

said copy that

a judge has no seal

is

any of the aforesaid authenticated copies purports to

be sealed or signed as hereinbefore mentioned,

ment could have been received proof of the seal where a seal ture, or

admis-

it is

evidence in every case in which the original docu-

sible in

is

in evidence, without

any

necessary, or of the signa-

of the truth of the statement attached thereto, where

such signature and statement are necessary, or of the judicial character of the person appearing to

have made

such signature and statement.' Colonial laws assented to by the governors of colonies,

and

bills

reserved by the governors of such colonies for the

signification of her Majesty's pleasure,

case

may

and the

be) that such law has been duly

passed and assented

to,

or that such

bill

fact (as the

and properly

has been duly and

may be

properly passed and presented to the governor,

proved {primA

facie)

by a copy

certified

other proper officer of the legislative

be a true copy of any such law or

by the clerk or

body of the colony

bill.

Any

to

proclamation

purporting to be published by authority of the governor in

any newspaper lates,

and

in the colony to

which such law or

signifying her Majesty's disallowance of

bill re-

any such

colonial law, or her Majesty's assent to any such reserved bill IS

'

14

'^

28

primA facie

& &

15 Vict.

29 Vict.

t. 0.

-^xooi oi sw±. disallowance or assent.^

99,

s. 7.

63,

s.

6.

"Colony"

in this

paragraph means

"all her Majesty's possessions abroad " having a legislature, "except the Channel Islands, the Isle of

Man, and India."

"Colony"

rest of the article includes those places.

G

2

in the

A DIGEST OF

[Part

II.

CHAPTER XL presumptions as to documents. Article

85.

presumption as to date of a document.

When is

any document bearing a date has been proved,

presumed to have been made on the day on which

date,

and

if

it

more documents than one bear date on

same day, they are presumed

to

it

bears the

have been executed

in

the order necessary to effect the object for which they were

executed, but

independent proof of the correctness

the date will be required

if

collusion as to the date might be practised, practised, injure

of

the circumstances are such that

and would,

if

any person, or defeat the objects of any

law.'^ Illustrations,

An

instrument admitting a debt, and dated before the act of bankruptcy, is produced by a bankrupt's assignees, to prove the petition(a)

ing creditor's debt.

Further evidence of the date of the transaction

is

required in order to guard against collusion between the assignees and the bankrupt, to the prejudice of creditors whose claims date from the interval

between

tire

act of bankruptcy

and the adjudication.^

In a petition for damages on the ground of adultery letters are produced between the husband and wife, dated before the alleged (b)

adultery,

and showing that they were then on affectionate terms.

Further evidence of the date

is

required to prevent collusion, to the

prejudice of the person petitioned against.'

I Ph. Ev. 482-3 ; T. E. s. 137 ; Best, a., 403. Anderson v. Weston, 6 Bing. N. C. 302 ; Sinclair v. Baggallay, 2 ffoulston V. Smith, 4 M. & W. 318. 2 C & P. 24. '

^

LAW

THE

Chap. XL]

OF EVIDENCE.

Article

85

86.

presumption as to stamp of a document.

When any document

is

not produced after due notice to

produce, and after being called

been duly stamped,'' unless

unstamped

for

some time

it

for, it is

presumed

to

have

be shown to have remained

after its execution.^

Article

87.

presumption as to sealing and delivery of deeds.

When

any document purporting to be and stamped as

a deed, appears or

and duly

attested,

delivered, although

proved to be or to have been signed

is it

is

presumed

to have

no impression of a

Article

been sealed and

seal appears thereon.^

88.

presumption as to documents thirty years old.

Where any document years old

is

purporting or proved to be thirty

produced from any custody which the judge

the particular case considers proper, the signature

' ,

Closmadeuc is

traced,

v.

is

presumed

in

that

and every other part of such document

which purports to be

rule

it

in the handwriting of

Carrel, 18 C. B. 44.

In

any particular

this case the

and other cases are referred

to,

in the

growth of the judgment of

Cresswell, J. ' '

411.

Marine Investment Company v. Haviside, L. R. 5 £• & I. App. 624. Hallv. £ainbridge,i2Q.'S.(ig()—Tlo. y??Sandilands, L. R. 6C. P.

;

A DIGEST OF

86

person

is

[Part

II.

in that person's handwriting, and, in the case of a

document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested; and the attestation or execution

need not be proved, even

and

if

the attesting witness

alive

is

in court.

Documents are

said to be in proper custody if they are in

the place in which,

whom, they would if it

and under the care of the person with

naturally be

;

but no custody

proved to have had a legitimate

is

improper

is

or

origin,

if

the

circumstances of the particular case are such as to render

such an origin probable.^

Article

89.

presumption as to alterations.

No

person producing any document which

face appears to

claim under

it

the

was made before the completion of

document or with the consent of the party

the

under

it

its

enforcement of any right created by

unless the alteration

it,

upon

have been altered in a material part can

to be charged

or his representative in interest.

This rule extends to cases in which the alteration was

made by a

stranger, whilst the

of the person producing

it,

document was

in the custody

but without his knowledge or

leave. ^ 1

2 Ph. Ev. 245-8

Best, ''

13

s.

;

Starkie,

Pigoi's Case, 11 Rep. 47

M.

521-6; T. E.

s,

74 and

ss.

S93-601

;

220.

& W.

Aldous

;

Davidson

v.

Cooper, 11

M. & W. 778

L. R. 3 Q. B. 573. This qualifies one of the resolutions in Pigot's Case. The judgment reviews a great number of authorities on the subject.

343

;

v. Corn-well,

^

THE LA W OF EVIDENCE.

Chap. XL]

Alterations

and

interlineations appearing

a deed are, in the absence of

presumed

all

87

on the

face of

evidence relating to them,

have been made before the deed was com-

to

pleted.'

Alterations

and

interlineations appearing

a will are, in the absence of

presumed There

and

to

is

have been made

no presumption

all

seal,

evidence relating to them,

after the

executionof the

as to the time

interlineations, appearing

under

on the face of

when

will.

alterations

on the face of writings not

were made ^ except that

it is

presumed that they

were so made that the making would not constitute an offence.*

An made

alteration is said to

be material when,

if it

with the consent of the party charged,

it

had been

would have

affected his interest or varied his obligations in

any way

whatever.

An

alteration

which in no way

affects the

rights of the

parties or the legal effect of the instrument, is immaterial.^

^

Doe V. Catomore, 16 Q. B. 745. Simmons v. Rudall, ! Sim. (N.

'

Knight

'

'

"

ss.

V.

V.

Clements, 8 A.

&

S.) 136.

E. 215.

R. V. Gordon, Dearsley & Pearce, 592. This appears to be the result of many cases referred to in T. E. 1619-20 ; see also the judgments in Davidson -^.Cooper and Aldous

Cornwell referred to above.

— A DIGEST OF

88

[Part

II.

CHAPTER XII. OF THE MODIFICATION AND INTERPRETATION OF DOCUMENTARY EVIDENCE BY ORAL EVIDENCE. Article 90.* evidence of terms of contracts, grants, and other dispositions

property

of

reduced to

a

docu-

mentary form.

When

any judgment of any Court or any other

official

proceeding, or any contract or grant, or any other

judicial or

disposition of property, has been reduced to the' form of a

document or

series of

documents, no evidence

may be

given

of such judgment or proceeding, or of the terms of such contract, grant, or other disposition of property, except the

document

itself,

or secondary evidence of

cases in which secondary evidence

provisions hereinbefore contained.^

its

contents in

admissible under the

is

Nor may

the contents

of any such document be contradicted, altered, added

to,

or

varied by oral evidence.

Provided that

any of the following matters may be

proved (i)

Fraud, intimidation,

illegality,

want of capacity in any contracting wrongly dated,^ want or

failure

- See '

"

Illustrations (a)

and

Reffell V. Reffell, L.

want of due execution, party, the fact that

it is

of consideration, or mistake

Note XXXIII.

{b).

R.

i

P.

&

D.

139.

mistakes in some other formed particulars.

Mr. Starkie extends 3 Star. Ev. 787-8.

this to

THE LA W OF EVIDENCE.

Chap. XII.]

in fact or law, or

any other matter which,

produce any

efifect

any part of

it,

upon the vahdity

of

if

89

proved, would

any document, or of

or which would entitle any person to any

judgment, decree, or order relating thereto.^ (2)

The

existence of any separate oral agreement as to

any matter on which a document inconsistent with

its

terms,

case the Court infers that

document

to

if

silent,

is

and which

is

not

from the circumstances of the

thre

be a complete and

parties did not intend the final

statement of the whole

of the transaction between them.^ (3)

The

stituting

existence of any separate oral agreement, con-

a condition precedent to the attaching of any

obligation under any such contract, grant or disposition of

property.^ (4)

ment

The

existence of any distinct subsequent oral agree-

to rescind or

modify any such contract, grant or

disposition of property, provided that such agreement

is

not

invalid under the Statute of Frauds, or otherwise.* (5)

Any usage

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.^

Oral evidence of a transaction that a

is

not excluded by the fact

documentary memorandum of

memorandum was

it

was made,

not intended to have legal

if

contract, or other disposition of property.^

'

and

'

Illustration

'

Illustrations (/)

and

Wigglesworth

Dallison, and note thereto, S. L. C. 598-628.

5 '

Illustration

{c).

v.

(2).

{g).

Illustrations '

{il)

such

effect as

{e],

Illustration (A).

a

A DIGEST OF

go

[Part

Oral evidence of the existence of a legal relation

excluded by the fact that

when ship is

it

carried

The

is

the existence of the relation-

and not the terms on which

it

was established or

on."^

fact that

a person holds a public

proved by the production of

ment

not

has been created by a document,

the fact to be proved

itself,

is

II.

thereto,

he

if

is

shown

office

need not be

his written or sealed appoint-

fo have acted in

it.^

Illustrations.

A policy of insurance is effected on goods

(a)

to

London."

The

The goods

" in ships from Surinam which is lost. excepted from the policy

are shipped in a particular ship,

fact that that particular sliip

was

orally

cannot be proved.' (b)

An

scribes

estate called

Gotton Farm

is

conveyed by a deed which de-

as consisting of the particulars described in the first division

it

of a schedule and delineated in a plan on the margin of the schedule.

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 to be conveyed by the deed.* a suit against B for the specific performance of a

Farm, and was intended (()

A

institutes

contract,

may be reformed as to one of was inserted in it by mistake. such a mistake was made as would entitle him to

and also prays that the contract

provisions, as that provision

its

A may

prove that

have the contract reformed.' (d)

A

lets

land to B, and they agree that a lease shall be given by

A

to B.

A that he will not sign it unless A A does promise. The lease is after-

Before the lease is given, B tells promises to destroy the rabbits.

wards granted, and reserves sporting rights the destruction of the rabbits.

A, but does not mention A's verbal agreement as to

to

B may prove

the rabbits." '

Illustration (k).

2

See authorities collected in i Ph. Ev. 449-50 ; T. E. s. 139. Weston V. Eames, \ Tau. 115. Barton v. Dawes, 10 C. B. 261-265. Story's Equity Jurisprudence, chap. v. ss. 153-162. Morgan v. Griffiths, 6 L. R. Ex. 70 and see Angell v. Duke,

' * ' "

L. R.

;

loQ.

B. 174.

.

THE LA IV OF EVIDENCE.

Chap. XII.]

(1?)

A&B

agree verbally that

and that thereupon

A

of certain furniture by

may prove

and

A

B

B

to B.

shall take

make

shall

B

91

up an acceptance of A's,

a written agreement for the sale

A

does not take up the acceptance.

the verbal agreement that he should do so.'

A & B enter into a written agreement for the sale of an interest a patent, and at the same time agree verbally that the agreement

(/)

in

come into force unless C approves of it. The party interested may show this.''

shall not

C

does not approve.

A, a farmer, agrees in writing to transfer to B, another farmer, A holds of C. It is verbally agreed that the agreement is to be conditional on C's consent. B sues A for not transferring the farm. A may prove the condition as to C's consent and the fact that he does not consent.' (g)

a farm which

(h)

good

A

to each of them.

though the title is bad. ment might be proved.*

A

(«')

A

B 14 lots of freehold land and make a Afterwards B consents to take one lot Apart from the Statute of Frauds this agree-

agrees in writing to sell

title

sells

also gives

B B

a horse, and verbally warrants him quiet in harness. a paper in these words

'

Bought of

'

:

A

a horse for

7/. 2J-. 6ii."

B may

prove the verbal warranty.' question is, whether A gained a settlement by occupying and paying rent for a tenement. The facts of occupation and payment of rent may be proved by oral evidence, although the contract is in {/)

The

^

writing."

Article 91.*

what evidence may be given for the interpretation of documents. (i)

Putting a construction upon a document means ascer-

taining the

and

meaning of the

signs or

» See Note '

^ ' *

'

words made upon

it,

their relation to facts.

Lindley

Pym V. Wallis

XXXIV.

v. Lacey,

17 C. B. (N. S.) 578. Campbell, 6 E. & B. 370.

V. Littell, 11

C. B. (N. S.) 369.

Lord Nugent, 5 B. & Ad. Allen V. Prink, 4 M. & W. 140. Goss

V.

58, 65. «

R.

v.

Hull, 7 B.

&

C. 61

1

A DIGEST OF

92

(2)

[Part

In order to ascertain the meaning of the signs and

words made upon a document, of the mfeaning of

oral evidence

commonly

or not

illegible

may be

expressions, of abbreviations,

given

intelligible

and provin-

characters, of foreign, obsolete, technical, local, cial

II.

and of common words

which, from the context, appear to have been used in a peculiar sense

common

;

but evidence

'

may not be

words, the meaning of which

do not appear from the context

to

given to show that

is

plain,

and which

have been used in a

peculiar sense, were in fact so used.^ (3)

If the

words of a document are so defective or am-

biguous as to be unmeaning, no evidence can be given to

show what the author of (4)

document refers,

which

the

document intended

to say.^

In order to ascertain the relation of the words of a

or

to facts, every fact may be proved to which it may probably have been intended to refer,* or

identifies

any person or thing mentioned

in

Such

it.°

facts are hereinafter called surrounding circumstances. (5) If the

ing,

to

and

have

tion

words of a document have a proper

also a less proper meaning, they their

legal

mean-

must be deemed

proper legal meaning, unless such a construc-

would be unmeaning in reference to surrounding

cumstances, in which case they

cir-

may be

interpreted according

distinct

meaning

to their less proper meaning.^ (6)

If the

document has one

to surrounding circumstances, ingly,

and evidence

to

show

express some other meaning Illustrations [a) {b) '

Illustrations

(e)

Illustration (g).

and

is

it

in reference

must be construed accord-

that the author intended to

not admissible.' 2

Illustration (d).

(/).

*

See

«

Illustration (k).

(c).

all '

the illustrations. Illustration

(z).

THE LA W OF EVIDENCE.

Chap. XII.] If the

(7)

document applies

93

in part but not with accuracy

to surrounding circumstances, the Court

may draw inferences

from the surrounding circumstances as to the meaning of the document, whether there thing or person to description

may

whom

is

more than one, or only one

In such

apply.

which the

or to

cases

inaccurate

no evidence can

be given of statements made by the author of the docu-

ment the

as to his intentions in reference to the matter to

document

relates,

his circumstances,

though evidence

and as to

may

which

be given as to

his habitual use of

language or

for particular persons or things. ^

names

If the language of the document, though plain in

(8)

applies equally well to

be given both of surrounding circumstances and of

made by any

ments

itself,

more objects than one, evidence may state-

party to the document as to his

intentions in reference to the matter to which the

document

relates.^

(9) If the

document

presume that

it

is

of such a nature that the Court will

was executed with

apparent intention, evidence it

was

in fact executed with

its

may be

any other than

its

given to show that

apparent intention.^

Illustrations. (a)

A lease

contains a covenant as to

" ten thousand

" rabbits.

Orjil

evidence to show that a thousand meant, in relation to rabbits, 1200, is

admissible.* [b]

A

sible to

sells to

show

B "

that a

1170 bales of gambler.''

"bale" of gambler

is

Oral evidence

is

admis-

a package compressed, and

weighing 2 cwt.' '

Illustrations (k)

3

Illustration

'

Gorrissen

v.

(0).

{/)

''

(m). *

Smith

v.

Illustration (k).

Wilson, 3 B.

Perrin, 2 C. B. (N. S.) 681.

& Ad.

728.

'

A DIGEST OF

94 a, a

(it)

'

II.

B "all the marble in the yard, the tools mod tools for carving." Evidence to show whether

sculptor, leaves to

in the shop, bankers, '

[Part

mod " meant

models, moulds, or modelling-tools, and to show what

bankers are, may be given. " boats," in a (rf) Evidence may not be given to show that the word policy of insurance, means " boats not slung on the outside of the ship

on the quarter."

A leaves

(e)

an estate to K, L, M, &c., by a will dated before 1838. declares that

Evidence of

ticular persons.

by these

this declaration

is

letters

not admissible.

M

that

A

been

admissible.''

A

(y")

A

he meant parProof would have was in the habit of calling a particular person

Eight years afterwards

leaves a legacy to

intended to be

filled is

.

Evidence to show

how

the blank

was

not admissible.'

(g) Property was conveyed in trust in 1704 for the support of " Godly preachers of Christ's holy Gospel." Evidence may be given to show what class of ministers were at the time known by that name.* If he has both legitimate (h) A leaves property to his " children."

and

illegitimate

children the whole of the property will go to the

legitimate children.

may go (;)

A

city of

If

he has only illegitimate children, the property

to them.' testator leaves all his estates in the

Limerick to A.

He had

no

county of Limerick and

estates in the county of Limerick,

but he had estates in the county of Clare, of which the will did not " of Clare dispose. Evidence cannot be given to show that the words '

'

had been erased from the

draft

by mistake, and so omitted from the

will

as executed." (/) A leaves a legacy to "Mrs. and Miss Bowden." No such persons were living at the time when the legacy was made, but Mrs. Washburne, whose maiden name had been Bowden, was living, and had a Evidence of daughter, and the testatrix used to call them Bowden. these facts was admitted.' (k) A devises land to John Hiscocks, the eldest son of John Hiscocks.

'

Blackett

^

Clayton v.

'

Baylis

*

Shore

5 "

V.

Royal Exchange, C. 3

Lord Nugent,

y.A.J.2

13

;

2 C.

&

M. & W. 200

244.

J. ;

see 205-6.

Atk. 239.

Wilson, 9 C. & F. 365, 565-6. Wig. Ext. Ev., p. 18 & 19, and note of cases. v.

Miller

v.

Travers, 8 Bing 244.

'

Lee

v.

Pain, 4 Hare, 251-3.

'

,

THE

Chap. XII.]

LAW

OF EVIDENCE.

95

John Hiscocks had two sons, Simon, his eldfest, and John, his second son, who, however, was the eldest son by a second marriage. The circumstances of the family, but not the testator's declarations of intention, (/)

may be proved

A

in order to

show which of the two was intended.

devises property to Elizabeth, the natural daughter of B.

B

has a natural son John, and a legitimate daughter Elizabeth. The Court may infer from the circumstances under which the natural

was born, and from the testator's relationship he meant to provide for John.'

child

to the putative

father, that

(m)

A leaves

At

a legacy to his niece, Elizabeth Stringer.

the date

of the will he had no such niece, but he had a great-great-niece Elizabeth Jane Stringer.

The Court may

was intended

stances that Elizabeth Jane Stringer refer to instructions given

the legacy

was meant

by the

;

but they

testator to his solicitor,

for a niece,

before the date of the will,

it

was put

may

not

showing that

who had

died

into the will

by a

Elizabeth Stringer,

and that

named

from these circum-

infer

mistake on the part of the solicitor.' (k) devises one house to George Gord, the son of George Gord,

a

another to George Gord the son of John Gord, and a third to George Gord the son of Gord. Evidence both of circumstances and of the

may be given to show which of the two George Gords he meant.* (0) A leaves two legacies of the same amount to B, assigning the same motive for each legacy, one being given in his will, the other in a codicil. The Court presumes that they are not meant to be cumulative, but the legatee may show, either by proof of surrounding circumstances, or of declarations by the testator, that they were.'

testator's statements of intention

'

Doe

'

Ryall

'

Stringer

'

Doe

V. Hiscocks, 5

V.

V.

M. & W.

363.

Hannam, v.

lo Beav. 536. Gardiner, 27 Beav. 35

Needs, 2

M. & W.

C,

;

4 De G.

&

J.

468.

129.

Hurst v. Leach, 5 Madd. 351, 360-1. The and a number of other cases both before and after it were elaborately considered by Lord St. Leonard's, when Chancellor of Ireland, in Hall v. Hill, i Dru. and War. 94, 111-133. '

Per Leach, V.

rule in this case

was

in

vindicated,

A DIGEST OF

96

Article

Articles 90

and

do not apply.

91

and 91 apply only to parties to documents,

to their representatives in interest,

which some

II.

92*.

cases to which articles 90

and

[Part

civil right

terms of a document

is

or

civil liability

in question.

and only to cases

in

dependent upon the

Any

person other than

a party to a document or his representative in interest may, notwithstanding the existence of any document, prove any fact

which he

is

otherwise entitled to prove [Submitted

any party to any document or any representative in of any such party

may

—and

interest

prove any such fact for any purpose

other than that of varying or altering any right or

liability

depending upon the terms of the document] Illustration.

The

whether A, a pauper, is settled in the parish of Cheadle. A deed of conveyance to which A was a party is produced, purporting to convey land to A for a valuable consideration. The question

is,

was allowed to no consideration passed.'

parish appealing against the order to prove that

• '

H.

See Note

XXXV. & Ad.

V. Cheadle, 3 B.

call

833.

A

as

>•

witness

;

LAW OF EVIDENCE.

THE

Chap. XIII.]

PART

97

III.

PRODUCTION AND EFFECT OF EVIDENCE. CHAPTER XIII.* BURDEN OF PROOF. Articlk

93. t

HE WHO AFFIRMS MUST PROVE.

Whoever

desires

any Court to give judgment as to any

legal right or liability

dependent on the existence or non-

existence of facts which he asserts or denies to exist, must pr(3ve that those facts

do or do not

exist.^

Article 94.+

presumption of innocence. If the commission of a crime action, criminal or civil,

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

a crime or wrongful act

is

on the person who

whether the commission of such

act- is or is

asserts

it,

not directly in

issue in the action. * '

I

See Note

XXXVI.

Ph. Ev. SS2

;

t See Note XXXVII. T. E. (from Greenleaf), s. 337 ; Best, ss. 265-6

Starkie, 585-6.

H

A DIGEST OF

9t!

[Part

III.

Illustrations.

on a policy of fire insurance. B pleads that A burnt down the house insured. B must prove his plea as fully as if A were

A

(a)

sues

B

being prosecuted for arson.'

A

(b)

sues

B

for

loaded thereon by absence of notice.^

B

to A's ship by inflammable matter must prove the without notice to A's captain.

damage done

A

question in 1819 is, whether A is settled in the parish of a man she was married in 1813. It is proved that in 1812 she was maiTied to another person, who enlisted soon afterwards, went abroad on -service, and had not been heard of afterwards. The burden of proving that the first husband was alive at the time of the second mar-

The

(c)

to

whom

riage

is

on the person

who

asserts

it.'

Article

95.

on whom the general burden of proof

The burden on

begins,

of proof in any action

that party against

Court would be given,

on

rested at

first

by

to

may be

shifted

the action

were produted

at all

any presumption which

As

the pleadings.

the burden of proof it

had

when

the judgment of the

no evidence

if

either side, regard being

may appear upon

lies,

whom

lies.

the action proceeds,

from the party on

his proving facts

which

whom

raise a presujnp-

tion in his favour.* Illustrations. (a)

It

appears upon the pleadings that

change.

The presumption

is

the party interested in denying this

A, a married woman,

(/')

'

Thurtell v. Beaumont,

Williams

^

R.

V.

is

must prove

indorsee of a

I

Mills

bill

of ex-

for value,

and

it.''

guilty.

Bing, 339. I02, 198-9.

Ph. Ev. 552 ; T. E. ss. 338-9 ; Starkie, 586-7 V. Barber, I M. & W. 425.

*

*

was

accused of theft and pleads not

East India Co., 3 East. Twyning, 2 B, & A. 386.

^

V.

i

is

A

that the indorsement

& 748

;

Best,

s.

268.

'

THE LA W OF EVIDENCE.

Chap. XIII.]

99

y

'

The burden

on the prosecution. She is shown to have been goods soon after the theft. The burden of proof is shifted to A. She shows that she stole them in the presence of her husband. The burden of proving that she was not coerced by him is shifted on to the prosecutor. (f) A is indicted for bigamy. On proof by the prosecution of the first marriage, 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.^ {d) A deed of gift is shown to have been made .by a client to his solicitor. The burden of proving that the transaction was in good faith is on the solicitor.' (e) It is shown that a hedge stands on A's land. 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

denies

that the ditch belongs to A.*

it

A

is,

proves that he received the rent of land. The presumption (/) that he is owner in fee simple, and the burden of proof is on the

who

person

denies

(g)

A

finds

(h)

A

sues

it.'

a jewel mounted in a socket, and gives it to B to look at. B keeps it, and refuses to produce it on notice, but returns the socket. The burden of proving that it is not as valuable a stone of the kind as would go into the socket is on B.*

B

on a policy of insurance, and shows that the vessel

insured went to sea, and that after a reasonable time no tidings of her

The burden

have been received, but that her loss had been rumoured. of proving that she has not foundered is on B.'

Article

96.

burden of proof as to particular

fact.

The burden of proof as to any particular fact lies on that who wishes the Court to believe in its existence,

person unless

'

I

'

I

& K.

it is

provided by any law that the burden of proving

Euss. Cri. 33 ; and 2, 337. Story Eq. Juris., ». 310, n. *

113.

'

Doe V. Coulthred, 7 A. Armmiry v. Delamirie,

7

Koster

'

v.

Reed, 6

B&

&

^ R. v. Butler, i R. & R. 61. Quoting Hunter v. Atkins, 3 M. Guy V. West, Selw. N. P. 1297.

i.

E. 235.

I 8.

L. C. 357.

C. 19.

H

2

A DIGEST OF

loo

that fact shall

may

lie

on any

and

be shifted from one side to the

in considering the

to shift the

III.

particular person;^ but the burden

in the course of a case

other,

[Part

amount of evidence necessary

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. Illustrations.

A

B

and wishes the Court to believe that B admitted the theft to C. must prove the admission. B wishes tlie Court to beheve that, at the time in question, he was (a)

prosecutes

for theft,

A

He must prove it. A, a shipowner, sues B, an underwriter, on a pohcy of insurance on a ship. B alleges that A knew of and concealed from B material facts. B must give enough evidence to throw upon A the burden of disproving his knowledge ; but slight evidence will suffice for this elsewliere. {i)

purpose.^ {c)

In actions for penalties under the old

plaintiff

had

obliged to give general evidence that

any

game

laws, though the

was not duly qualified, and was he was not, the burden of proving

to aver that the defendant

definite qualification

was on the defendant.'

Article

97.

burden of proving fact to be proved to make evidence admissible.

The burden

'

'

of proving any fact necessary to be proved in

For instances of such provisions see T. E. ss. 345-6. Elkin v.Jamon, 13 M. & W. 655. See, especially, the judgment

of Alderson, B., 663-6. ' I Ph. Ev. The illustration is founded 556, and cases there quoted. more particularly on R. v. Jarvis, in a note to R. v. Stone, I Ea. 639, where Lord Mansfield's language appears to imply what is stated

above.

CHAP. XIII.]

THE LAW OF EVIDENCE.

loi

order to enable any person to give evidence of any other fact is

on the person who wishes

to give such evidence.

Illustrations.

A wishes to prove a dying declaration by B. must prove B's death, and the fact that he had given up all hope of life when he made the statement. of a lost {6) A wishes to prove, by secondary evidence, the contents document. A must prove that the document has been lost. ,

{a)

A

A DIGEST OF

CHAPTER

III.

XIV.

ON PRESUMPTIONS AND Article

[Part

ESTOPPELS.*

98.

presumption of legitimacv.

The

fact that

any person was born during the continuance

of a vaUd marriage between his mother and any man, or within such a time after the dissolution thereof and before the celebration of another valid marriage, that his mother's

husband could have been that he

unless

it

is

the legitimate child of his mother's husband,

can be shown

either that his to

conclusive proof

his father, is

mother and her husband had no access

each other at any time when he could have been

begotten, regard being had both to the date of the birth

and to the physical condition of the husband, or that the circumstances of their access

such as to render

it

course took place between them

when

Neither the mother nor the husband as to

(if

any) were

highly improbable that sexual interit

is

occurred.

a competent witness

the fact of their having or not having had sexual

intercourse with each other, nor are any declarations by

them upon

that subject regarded as relevant facts

legitimacy of the woman's child *

See Note

is

in

XXXVI.

when

the

question, whether

THE

Chap. XIV.]

LAW OF EVIDENCE.

103

the mother or her husband can be called as a witness or not, 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

may

his wife's child could

have been begotten,

give evidence as to the person

by whom- it

was begotten.^

Article

99.

presumption of death from seven years' absence.

A

person shown not to have been heard of for sev6n

by those

years

any)

(if

who

naturally have heard of him,

he had been alive would

if

is

presumed

be dead, unless

to

the circumstances of the case are such as to account for his

not being heard of without assuming his death; but there

no presumption

as to the

time when he

died,

of proving his death at any particular time

who

asserts

There died

who

is

upon

the person

it.^

no presumption as

shown

is

to

to have

to the age at

have been

to the order in which

shown

is

is

and the burden

which a person

alive at a given time, or as

two or more persons died who are

died in

tlie

same accident, shipwreck, or

battle.'

'

V.

R.

V. Luffe,

8 Ea. 207 ; Cope v. Cope, i Mo. & Ro. 272-4 ; Legge R. v. Mansfield, i Q. B. J. Eq. 125, see p. 135 ;

Edmonds, 25 L.

444

;

Morris

v.

Davies, 3 C.

&

P. 215.

McElroy, 5 Ir. Rep. Eq. I ; Hoprwell v. De Pinna, z Camp. 113 Nepean v. Doe, 2 S. L. C. 562, 681 ; Nepean v. Knight, R. V. Lumley, L. R. I C. C. R. 196 ; and see 2 M. & W. 894, 912 All the caution of Lord Denman in R. v. Harborne, 2 A. & E. 544. the cases are collected and considered in In re PhenPs Ti list, L. R. ^

McMahon

v.

;

;

5

Ch. App. 139. ' Wing\. An«rave, 8 H. L. 183, 198

;

and see authorities

in last note.

A DIGEST OF

104

Article

[Part

III.

ioo.

presumption of lost grant.

When

it

has been shown that any person has, for a long

period of time, exercised any proprietary right which might

have

h£ld a lawful origin

by grant or licence from the Crown

or from a private person, and the exercise of which might

and naturally would have been prevented by the persons interested

if

it

had not had a lawful

origin,

there

is

a

presumption that such right had a lawful origin and that it

was created by a proper instrument which has been

lost.

Illustrations. («)

The

whether B is entitled to recover from A the poslands which A's father and mother successively occupied to 1792 or 1793, and vifhich B had occupied (without title) The lands formed originally an encroachment on to 1809. of Dean.

question

session of

from 1754 from 1793 the Forest

is,

The undisturbed occupation

for thirty-nine years raises a

presump-

tion of a grant from the Crovifn to A's father.'

A

no

fishing mill-dam was erected more than years before 1 861 the River Derwent, in Cumberland (not being navigable at that

(i)

in

and was used for more than sixty years before 1861 in the manner which it was used in 1861. This raises a presumption, that all the upper proprietors whose rights were injuriously affected by the dam, had granted a right to erect it.^ {c) A builds a windmill near B's land in 1829, and enjoys a free current' of air to it over B's land as of right, and without interruption till i860. 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),

in

interrupt '

it.'

V. Baldwin, 1 1 Ea. 488. The presumption was rebutted by an express provision of 20 Ch. II. c. 3, avoiding grants

GoodtUle

in this case

of the Forest of Dean,

See also Doe

d. Deviiie v.

V. C, 502. ' '

Leconfieldy. Lonsdale, L, R. 5 C. P. 657. Webb v. Bird, 13 C. B. (N.S.) 841.

Wilson, 10 Moo.

f

THE LAW OF EVIDENCE.

Chap. XIV.] (d)

No

105

length of enjoyment (by means of a deep well) of water,

percolating through underground undefined passages, raises a presumption of a grant

from the owners of the ground under which the water so

percolates of a right to the water.'

Article ioi.* presumption of regularity and of deeds to complete TITLE.

When any done

manner

in a

substantially regular,

formal requisites for

When

shown

judicial or official act is

its

validity

it

is

have been

to

presumed

that

were complied with.

a person in possession of any property

is

shown

be entitled to the beneficial ownership thereof, there

is

to

a

presumption that every instrument has'been executed which it

was the

perfect his

legal duty of his trustees to execute in order to title.^

Article

102.

ESTOPPEL BY CONDUCT.

When

one person by anything which he does or

says,

or abstains from doing or saying, 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

he would have acted, neither the person nor

mentioned

first

his representative in interest is allowed, in

any

suit

or

proceeding between himself and such person or his representative in interest, to

* See

deny the

Note XXVIII. '

Chasemore

^

Doe

d.

truth of that thing.

t

See Note

XXXIX.

Richards, 7 H. of L. C. 349. Hammond v. Cooke, 6 Eing. 1 74, 1 79. v.

A DIGEST OF

io6

When

[Part

III.

any person under a legal duty to any other person

to conduct himself with reasonable caution in the transaction of to

any business neglects that duty, and when the person

whom

the duty

because he

is

owing

alters his position for the

worse

misled as to the conduct of the negligent

is

person by a fraud, of which such neglect

in the natural

is

course of things the proximate cause, 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. Illustrations.

A

(a)

the

owner of machinery

in B's possession,

execution by C, abstains from claiming

it

verses with C's attorney without referring to

means impresses C with the

A

the machinery.

A, a

(b)

belief that the machinery

estopped from denying that

is

retiring partner of

which

is

taken in

some months, and conhis claim, and by these

for

it is

is

B's.

C

sells

B's.'

B, gives no notice to the customers of the In an action by a customer, he

no longer B's partner. cannot deny that he is B's partner.'. firm that he

A

(c)

B for a wrongful imprisonment. The imprisonment was B had a certain original warrant; rightful, if he had only B had in fact a copy. He led A to believe that he had the

sues

wrongful,

a copy. .

is

if

A

though not with the intention that

original,

than he actually did, nor did

A

so act.

should act otherwise

B may show that

he had only

a copy and not the original.^

A

(rf)

eighty quarters of barley to B, but does not specifically

sells

appropriate to

B any

B

quarters.

C.

C

this,

says nothing further to

B

by

C

A

informs A,

cannot,

holds for

in

an

C on

sells sixty

of the eighty quarters to

assents to the transfer.

action

as to delivery. to

C being satisfied with B becomes bankrupt.

recover the barley, deny that he

the ground that, for

no property passed '

who

want of

specific appropriation,

to B.*

Pickard

v. Sears,

6 A.

&

E. 469, 474.

'

(Per Parke, B.)

'

Howard v.

Freeman v. Cooke, Hudson, 2 E. & B. i.

'

Knights

Wiffen, L. R. 5 Q. B. 660.

V.

2 Ex. 661.

THE LAW OF EVIDENCE.

Chap. XIV.]

A

107

and gives them to his wife to fill up as she up a cheque {ot£^o 2s. so carelessly that room is left for the insertion of figures before the 50 and for the insertion of words before the "fifty." She then gives it to a clerk of A's to get it cashed. He writes 3 before 50 and " three hundred and " before "fifty." A's banker pays the cheque so altered in good faith. A (e)

signs blank cheques

wants money.

A's wife

fills

cannot recover against the bankei.'

A

if)

whereby

carelessly leaves his door unlocked,

He

stolen.

is

not estopped from denying the

purchaser from the

title

goods are

his

of an innocent

thief. ^

Article

103.

estoppel of tenant and licensee.

No

tenant and no person claiming through any tenant of

any land or hereditament of which he has been possession, or for which he has paid rent,

is,

let

into

he has

till

given up possession, permitted to deny that the landlord had, at the time

when

or paid the rent, a

the tenant was let into possession

title

to

such land or hereditament

f

and no person who came upon any land by the licence of the person in possession thereof

on

it,

is,

whilst he remains

permitted to deny that such person had a

possession at the time

when such Article

licence

to such

title

was given.*

104.

estoppel of acceptor of bill of exchange.

No '

'

acceptor of a

young

V.

Grate,

Per Blackburn,

bill

4 Bing. J., in

of exchange

is

permitted to deny

253.

Srmn v. jV. £. Australasian,

C.

3,

2

H. and C

181. =

Doe *

Doe v.

V.

Barton, 11 A. & E. 307 1 T. R. 760 (note).

Pegg,

Doev.

Baytiip, 3 A.

&

E. 188.

;

Doe

v.

Smyth, 4 M.

&

S. 34.7

;

A DIGEST OF

io8

[Part

the signature of the drawer or his capacity to draw, or bill is

if

the

payable to the order of the drawer, his capacity to

endorse the

bill,

ment ;^ nor

if

name

though he

the

of the agent, by

the

III.

bill

may deny the

be drawn by procuration, the authority

whom

it

purports to be drawn, to draw in

of the principal,'^ though he

to endorse

fact of the endorse-

may deny his

authority

it.^

Article

105.

estoppel of bailee, agent, and licensee.

No

bailee;

agent, or licensee

permitted to deny that

is

the bailor, principal, or licensor, by entrusted to any of

them

whom

respectively

was

any goods were entitled to those

goods at the time when they were so entrusted. Provided that any such bailee, agent, or licensee,

may

show, that he was compelled to deliver up any such goods

some person who had a

to

right to

them

as against his

bailor, principal, or licensor, or that his bailor, principal, or

licensor, wrongfully

and without notice

to the bailee, agent,

or licensee, obtained the goods from a third person

claimed them

Every

bill

who

has

from such bailee, agent, or licensee.* of lading in the hands of a consignee or

endorsee for valuable consideration, representing goods to

'

^ ' *

Garland V. Jacomb, L. R. 8 Ex. 216. Sanderson v. Coleman, 4 M. & G. 209. Robinson v. Yarroia, 7 Tau. 455.

Dixon

V.

Hammond,

2.

B.

&

A. 313

;

Crossley v. Dixon, 10

H. L.

Birnie, 7 Bing. 339 ; Hardman v. Wilcock, 9 Bing. Biddle v. Bond, L. J. 34 Q. B. 137 ; Wilson v. Anderton, I B. & ; Ad. 450. As to carriers, see Sheridan v. New Quay, 4 C. B. (N.S.)

293 382

618.

;

Gosling

v.

THE

Chap. XIV.]

LAW OF EVIDENCE.

have been shipped on board a vessel,

is

109

conclusive proof of

that shipment as against the master or other person signing

the same, notwithstanding that such goods or thereof,

of the

may

bill

of lading had actual notice at the time of receiving

same that the goods Had not been in

the

some part

not have been so shipped, unless such holder

fact laden

on

board, provided that the master or other person so signing

may

exonerate himself in respect of such misrepresentation

by showing that part,

or

was caused without any

it

default

on

his

and wholly by the fraud of the shipper or of the holder,

some person under whom the holder

'

18

&

19 Vict.

c.

Ill,

s.

holds. ^

3.

t

A DIGEST OF

CHAPTER

[Part

III.

XV.

OF THE COMPETENCY OF WITNESSES* Article

who may All

io6.

testifv.

persons are competent to testify in

cases except as

all

hereinafter excepted.

Article

107.

WHAT WITNESSES ARE INCOMPETENT.

A witness he

is

is

incompetent

if

in the opinion of the judge

prevented by extreme youth, disease affecting his mind,

or any other cause of the

matter on which he

is

same

to

kind, from recollecting the

testify,

from understanding the

questions put to him, from giving rational answers to those questions,

or from knowing that he

ought to speak the

truth.

A witness but

may

unable to speak or hear

give his evidence

any other manner

in

is

not incompetent,

by writing or by

which he can make

it

such writing must be written and such signs Court.

Evidence so given

* See

Note XL.

is

deemed

to

t See

signs,

intelligible

made

in

or in ;

but

open

be oral evidence.

Note XLI.

1

THE LA W OF E VIDENCE.

Chap. XV.]

1 1

Article i68.*

competency in criminal

cases.

In criminal cases the accused person and his or her wife or husband,

and every person and the wife or husband of

every person jointly indicted with him

Provided that

in

husband or wife

for

upon

is

incompetent to

"

testify.

any criminal

proceeding

against

any bodily injury or violence

his or her wife or

husband, such wife or husband

competent and compellable to

a

inflicted is

testify.^

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.^

Article

109.

competency in proceedings relating to adultery. In proceedings instituted in consequence of adultery, the

and

parties

their

husbands and wives are competent

nesses, provided that

no witness

whether a party to the

bound

to

in

any

[?

wit-

such] proceeding,

suit or not, is liable to

be asked or

answer any question tending to show that he or

she has been guilty of adultery, unless such witness has already given evidence in the same proceeding in disproof of his or her alleged adultery.* * See

Note XLII.

R. 1. Payne, L. R. I C. C. R. 349, and R. v. Thompson, lb. 377. ' Reeve v. Wood, Treason has been also supposed to S B. & S. 364. form an exemption. See T. E. s. 237. '

1

'

28

&

29 Vict.

c.

104,

* 32 & 33 Vict. c. 68, omitted accldentaily.

s.

34.

s.

3.

The word "such" seems

to

have been

A DIGEST OF Article

[Part

III.

iio.

communications during marriage.

No

husband

tion

made

wife

is

compellable to disclose any communica-

is

him by

to

his wife during the marriage,

compellable to disclose any communication

and no

made

to

her by her husband during the marriage.^

Article

hi.''''

judges and advocates privileged as to certain questions. It is doubtful

whether a judge

to anything which

judge.^

It

testify as

came

to his

is

compellable to

knowledge

testify as

in court as such

seems that a barrister cannot be compelled

to

what

to

"he said in court in his character of a

barrister.^

Article 112. evidence as to affairs of state.

No affairs

one can be compelled

to give evidence relating to

any

of State, or as to official communications between

public officers

upon public

affairs,

except with the permission

of the officer at the head of the department concerned,* or

* '

to a

16

&

17 Vict.

c.

83,

See Note XLIII.

s. 3.

It is doubtful

whether

this

would apply

widow

or divorced person, questioned after the dissolution of the marriage as to what had been communicated to him whilst it lasted. "

R.

*

Beatson

V.

Gazard, 8 C. v. Skene, 5

&

P. 595.

H. & N.

»

838.

Ciirry v. Walter,

i

Esp. 456.

3;

Chap. XV.]

THE LAW OF E VIDENCE.

to give evidence of

what took place in

1 1

either

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,

names of

the answer to which would tend to discover the

persons by or to

whom

information was given as to the com-

mission of offences.

In ordinary criminal prosecutions

it is

judge to

for the

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 may *

juror

give evidence

jurymen in the discharge of whether a grand juror witness said

'

=

R. '

*

it is

as to

their duties.

may

when examined

doubtful whether a grand

what passed between the It is also

doubtful

give evidence as to what any

before the grand jury.

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

R.

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

Esp. 136.

Cobbett, 5

15

M. & W.

169

V.

1

Ph. Ev. 140

;

T. E.

s.

863.

v.

Langky,

5

M.

&

G. 722.

— ;

A DIGEST OF

114

[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 express

client's

consent,

on behalf of

or

any communication,

to disclose

made

oral or documentary,

him

to

as such legal adviser,

his client, during, in the course,

and

by

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

course,

and

immaterial whether the client in

which the question This (i)

article

is

is

or

It is

not a party to the action

does not extend to

Any such communication as

Any

is

put to the legal adviser.

ance of any criminal purpose (2)

his client during, in the

purpose of such employment.

for the

fact

aforesaid

made

in further-

;^

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 *

'

Follett V. Jejferyes, i

which such

legal

adviser

became

See Note XLIV.

Sim. (N.

S.) 17

;

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.

THE

Chap. XV.]

LAW OF EVIDENCE.

115

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

and

clerks,^

"

The

includes barristers and solicitors,^

between

interpreters

them

and

their

clients. Illustrations. (o)

A, being charged with embezzlement, retains B,

defend him.

In the course of the proceedings,

made

entry has been

B

in A's account book, charging

a.

barrister, to

observes that an

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 prosaid to have

secution.'

A

{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

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

communication between himself and '

Wilson

v.

Taylor

v. Foster,

As

4 T. R. 753.

Rastall,

&

his legal adviser,

which

to interpreters, lb., 756.

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

2 C.

Turquand v. Knight,

in

would seem

to

?

P. 195

M. & W.

;

Foote

100, thought not.

Special pleaders

be on the same footing.

& N.

2

Brown

'

Annesleyv. Anglesea, 17

v. Foster, i

H.

S.

736.

T. 1223-4.

,

I

2

ii6

A DIGEST OF

.

his legal adviser could

although

III.

not disclose without his pennission,

may have been made

it

[Part

before any dispute arose

as to the matter refeirred to.^

Article 117.*

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

may be com-

communications made to them in pro-

disclose

fessional confidence.

Article 118.

production of title-deeds of witness not a partv.

No

witness

who

not a party to a

is

to produce his title-deeds to

ment

suit

can be compelled

any property,^ or any docu-

the production of which might tend to criminate him,

or expose

him

to

any penalty or

forfeiture;* but a witness

not entitled to refuse to produce a document in his pos-

is

session

production

may

or because he has a lien

upon

only because

civil action,^

its

* See

Note

expose him to a it.^

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

Pickering

'

v.

Noyes,

I

B.

&

«

B.

to clergymen,

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

&

C. 858

;

Brassington

v.

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

C. 263 *

351. =

As

Note XLV.

&

N.

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

THE

Chap. XV.]

LAW OF EVIDENCE. Article

117

119.

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

or mortgagor would be entitled to refuse to produce

were in his possession refuse to produce a

evidence of

;

nor can any one who

document be compelled

if

they

entitled to

is

to give oral

contents.^

its

Article

120.

witness not to be compelled to criminate himself.

No

one

bound

is

any question

to answer

if

the answer

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

any criminal charge, or

husband of the witness]

any penalty or

to

which the judge regards as reasonably or

sued for

;

^

but no one

forfeiture

be preferred

excused from answering

is

may

been doubted whether production

likely to

not be refused on the ground

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.

Barlow

(Judgt. of Parke, B.)

'

Volant

V.

Soyer, 13 C. B. 231

'

Davies

v.

Waters, g

'

R.

V.

P. C. 301

Boyes, ;

R.

V.

i

B.

;

i

Phelps

Ex. 801. v.

Prew, 3 E.

&

B. 431.

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

Cliviger, 2 T. R.

263

;

Cartwright v. Green, 8 Ve. 405

;

A DIGEST OF

ii8

[Part

III.

any question only because the answer may establish or tend to establish that he civil

suit,

owes a debt, or

otherwise liable to any

is

either at the instance of the

Crown

or of any

other person.^

Article corroboration,

No

plaintiff in

121.

when

any action

required. breach of promise of

for

marriage can recover a verdict, unless his or her testimony is

corroborated by some other material evidence in support

of such promise.^

No

order against any person alleged to be the father of a

bastard child can be

made by any

justices, or

confirmed on

appeal by any Court of Quarter Session, unless the evidence of the mother of the said bastard child

some material

particular

to

the

is

corroborated in

satisfaction

of the said

justices or Court respectively.^

When

the only proof against a person charged with a

criminal offence

the evidence of an accomplice, uncor-

is

roborated in any material particular,

judge to warn the jury that

it is

it

is

the duty of the

unsafe to convict any person

upon such evidence, though they have a

legal right to

do

so.*

R. v. All Saints, Worcester, ; These cases show that even under the old law which made the parties and their husbands and wives incompetent witnesses, a wife was not incompetent to prove matter which might tend to criminate her husband. R. v. Cliviger assumes that she was, and was The cases, however, do not decide that if to that extent overruled. the wife claimed the privilege of not answering she would be compelled to do so, and to some extent they suggest that she would not. 2 32 & ' 46 Geo. III. c. 37. 33 Vict. u. 68, s. 2. R.

V.

6 M.

Bathwick, 2 B. and Ad. 639

&

S. 194.

'

8

&

'

I

Ph. Ev. 93-101

9 Vict.

c.

10,

5. ;

6 ; 35 & 6 Vict. T. E. ss. 887-91

c. ;

6,

s.

4.

3 Russ. Cri. 600-611.

THE LA W OF EVIDENCE.

Chap. XV.]

Article

119

122.

number of witnesses. In

trials for

high treason, or misprision of treason, no one

can be indicted,

he pleads

tried, or attainted (unless

guilty)

except upon the oath of two lawful witnesses, either both of

them

to the

same overt

act,

or one of

them

to

one and

another of them to another overt act of the same treason. If

two or more distinct treasons of divers heads or kinds

are alleged in one

indictment,

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.'

This provision does not apply to cases of high treason in

compassing or imagining the Queen's death, in which the overt act or overt acts of such treason alleged in the indict-

ment

are assassination or killing of the Queen, or any direct

attempt against her

life,

or any direct attempt against her

person, whereby her

life

may be endangered

suffer bodily

If

upon a

defendant

is

or her person

harm,^ or to misprision of such treason. trial for

perjury the only evidence against the

the oath of one witness contradicting the oath

on which perjury

is

assigned,

and

if

no circumstances are

proved which corroborate such witness, the defendant entitled to

»

7

&

be acquitted.^

8 Will. III.

c. 3, ss. 2, 4. '

»

39

& 40

3 Russ. on Crimes, 77-86.

Geo.

III.

i,.

93.

is

— DIGEST OF

'A

CHAPTER

[PaRt

III.

XVI.

OF THE EXAMINATION OF WITNESSES. Article

123.

evidence to be upon oath, except in certain cases.

All

any action must be given upon

oral evidence given in

oath, but if

any person called as a witness refuses or

is

unwilling to be sworn from alleged conscientious motives,

whom

the judge before

upon being

satisfred

the evidence

is

to be taken may,

of the sincerity of such objection, permit

such person instead of being sworn to make his or her

solemn affirmation and declaration in the following words "

A

I,

B,

do solemnly,

sincerely,

and

truly affirm

and

is

according to

my

declare that the taking of any oath religious belief unlawful,

and ^

truly affirm

If

and

and

whether

also solemnly, sincerely,

declare," &c.^

in a civil or criminal proceeding, objects to

take an oath, or

is

objected to as incompetent to take such

an oath, such person must, that the taking of ' 17 & 18 Vict. nal cases).

32

do

any person called to give evidence in any court of

justice,

2

I

&

33 Vict.

if

the presiding judge

is

satisfied

an oath would have no binding

c.

125,

c.

68,

s.

s.

20

4

;

(civil cases)

33

;

& 34 Vict.

visions as to Quakers, Moravians,

and

mentioned above include all cases. T. E. s. 1254 ; R. N. P. 175-6.

24 c.

&

49.

25 Vict.

c.

66

eifect

(crimi-

I omit special pro-

Separatists, as tlie enactments

The

statutes are referred to in

—

on

LAW OF EVIDENCE.

THE

Chap. XVI.]

his conscience,

make

i2r

the following promise and decla-

ration

" I solemnly promise and declare that the evidence given

by me

to the Court shall be the truth, the whole truth,

and

nothing but the truth." If

any person having made

wilfully

and corruptly gives

either of the said declarations

false evidence,

he

liable to

is

be

punished as for perjury.

Article 124.

form of oaths. Oaths are binding which are administered in such form

and with such ceremonies

as the person

sworn declares to

be binding. 1

Article

WHO

IS

125.

to have power to administer oaths.

Every person now or hereafter having power by law or

by consent of parties to hear, receive, and examine dence,

is

empowered

to

administer an oath to

all

evi-

such

witnesses as are lawfully called before him.^

Article 126.*

examination in chief,

and

cross-examination,

re-

examination. Witnesses must be

first

examined in

chief,

then cross-

examined, and then re-examined. * '

I

I

&

2 Vict.

S. L. C. 4SS.

c.

105.

See Note XLVI.

For the old law, 2

14

see

&

Omichund

i^ Vict.

c.

99,

v. s.

Barker, 16.

A DIGEST OF

[Part

Whenever any witness has been examined

III.

in chief, or has

been intentionally sworn, or has made a promise and decla^ ration as hereinbefore mentioned for the purpose of giving

evidence, the opposite party has a right to cross-examine

him

;

but the opposite party

not entitled to cross-examine

is

merely because a witness has been called to produce a

document on a subpmna

duces tecum, or

After the cross-examination

identified.

who called the The Court may in

party

in is

order to be

concluded, the

witness has a right to re-examine him. all

cases permit a witness to be recalled

either for further examination in chief or for further cross-

examination, and

does

if it

so,

the parties have the right

of further cross-examination and

further

re-examination

respectively.

If a witness dies, or

examined

at

becomes incapable of being

any stage of

his examination,

given before he became incapable If in the course of a

trial

is

good.^

a witness

who was supposed

be competent appears to be incompetent,

to

may be withdrawn from

the jury,

to their decision independently of

Article

further

the evidence

his evidence

and the case may be

left

it.^

127.

to what matters cross-examination and re examination must be directed.

The examination and

cross-examination must relate to

facts in issue or relevant facts,

'

R.

V.

Doolin,

i

cross-examination.

The judges compared the case to which is admitted, though there can be no 2 R. v. Whitehead, L. R. i C. C. R. 33.

Jebb. C. C. 123.

that of a dying declaration

but the cross-examination

—

THE

Chap. XVI.]

LAW

OF EVIDENCE.

need not be confined to the

on

testified

his

examination in

facts to

which the witness

chief.

The re-examination must be

directed to the explanation

of matters referred to in cross-examination matter

is,

123

;

and

by permission of the Court, introduced

examination, the adverse party

may

if

in

new re-

further cross-examine

upon that matter.

Article

128.

leading questions. Questions suggesting the answer which the person putting the question wishes or

expects to receive, or suggesting

disputed facts as to which the witness if

is

to testify,

must

not,

objected to by the adverse party, be asked in an examina-

tion in chief, or a re-examination, except with the permis-

sion of the Court, but such questions

may be asked

in cross-

examination.

Article 129.* questions lawful in cross-examination.

When

a witness

is

cross-examined, he may, in addition to

the questions hereinbefore referred to, be asked any questions

which tend

To test his accuracy, veracity, or credibility or To shake his credit, by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except in the case (i)

;

(2)

provided for in article 120.

*

See Note XLVII.

^

A DIGEST OF

124

[Part

III.

Illustration. (a) The question is, whether A committed perjury in swearing that he was R. T. B deposes that he made tattoo marks on the arm of R. T., which at the time of the trial were not and never had been on the arm of A. B may be asked and compelled to answer the question whether, many years after the alleged tattooing, and many years before the occasion on which he was examined, he committed adultery with the

wife of one of his friends.'

Article exclusion

130.

of evidence to contradict answers

to

questions testing veractity.

When

a witness under cross-examination has been asked

and has answered any question which inquiry only in so far as injuring his character,

him except

tradict (i)

it

is

relevant to the

tends to shake his credit by

no evidence can be given

in the following cases

:

—

to con-

asked whether he has been previously

If a witness is

convicted of any felony or misdemeanour, and denies or

does not admit

it,

or refuses to answer, evidence

may be

given of his previous conviction thereof* (2)

If a witness

that he

is

not

suggested, he

'

'

asked any question tending to show

irnpartial,

may be

and answers

it

by denying the

facts

contradicted.*

R. V. Orion. See summing-up of Cockhurn, C. J., p. 719, &c. A. G. V. Hitchcock, I Ex. 91, 99-105. See, too, Palmer v. Trower,

8 Ex. 247. » 28 & 29 Vict. *

is

A. G.

V.

c.

18,

Hitchcock,

s.

6.

I

Ex. 91, pp. 100, 105.

Chap. XVI.]

THE

LAW OF EVIDENCE.

125

Article 131.* statements inconsistent with present testimony may be proved. Every witness under cross-examination in any proceeding civil

or criminal,

may be

asked whether he has

made any

former statement relative to the subject-matter of the action

and inconsistent with

testimony, the circum-

his present

stances of the supposed statement being referred to ciently to designate the particular occasion,

not distinctly admit that he has

may be The same

proof

and

made such a make it.

if

suffi-

he does

statement,

given that he did in fact course

examination in

may be taken

chief, if the

[hostile] to the party

judge

with a witness upon his is

of opinion that he

whom he was

by

called

is

and permits

the question.

Article

132.

cross-examination as to previous statements in WRITING.

A witness

under cross-examination [or a witness

whom

the judge under the provisions of article 131 has permitted

by the party who called him as to previous statements inconsistent with his present testimony] may be

to be examined

questioned as to previous statements writing,

or reduced into

* See

writing,

made by him

relative to

Note XLVIII.

the

in

subject-

A DIGEST OF

126

[Part

III.

matter of the cause, without such writing being shown to

him

[or being

proved in the

first

contradict him by the

intended to

instance]

;

but

if it

is

writing, his attention

must, before such contradictory proof can be given, be called to those parts of the writing

which are to be used for the

The judge may,

purpose of contradicting him. time during the

trial,

for his inspection, for the

require the

document

to be

any

at

produced

and may thereupon make such use of

purposes of the

trial

it

as he thinks fit'

Article

133.

impeaching credit of witness.

The

credit of

any witness may be impeached by the

adverse party, by the evidence of persons they,

from

their

unworthy of credit upon

upon

his oath.

that

to

be

Such persons may not

their examination in chief give reasons for their belief,

but they

and

who swear

knowledge of the witness, believe him

may be asked

their answers

No

such evidence

any witness

is

their reasons in cross-examination,

cannot be contradicted.'^

may be

given by the party by

whom

when such evidence is given by party who called the witness may

called,' but,

the adverse party, the

" 17 & 18 Vict. c. 125, s. 24; and 28 Vict. c. 18, s. 5. I think the words between brackets represent the meaning of the sections, but in terms they apply only to witnesses under cross-examination "Witnesses

—

may be " '

cross-examined," &c. 2 Ph. Ev. 503-4; T. E. ss. 1324-5. 17 & 18 Vict. t. 125, s. 2 ; and 28 Vict.

c.

18,

s.

3.

THE

Chap. XVI.]

LAW OF EVIDENCE.

give evidence in reply to

show

that the witness

127

is

worthy of

credit.

Article

134.

offences against women.

When ravish,

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,

although she

woman may

is

The

not cross-examined on the subject.^

in such a case be asked whether she has

had

connection with other men, but her answer cannot be contradicted.^

She may also be asked whether she has had

connection on other occasions with the prisoner, and denies

it

she [probably]

may be

if

she

contradicted.*

Article

135.

what matters may be proved in reference to declarations relevant under articles 25-34. Whenever any articles

proved

declaration or statement relevant under

25-34, both inclusive, in order to contradict

is it,

proved,

matters

all

may be

or in order to impeach or

confirm the credit of the person by

which might have been proved

whom

it

was made

had been and had denied upon cross-examination

called as a witness,

if

that person

the truth of the matter suggested.^ '

2 Ph. Ev. 504.

^

R.

V.

*

R.

V.

R. V. Clarke, 2 Star. 241. Holmes, L. R. i C. C. R. 334. Martin, 6 C. & P. 562, and remarks in R. v. Holmes, ==

p. 337,

per Kelly, C. B. '

R.

/.

Drummond,

1

cases dying declarations

Lea. 338. R. v. Pike, 3 C. & P. 598. In these were excluded, because the persons by whom ,

A DIGEST OF

128

Article

[Part

III.

136.

refreshing memory.

A

witness may, while under

memory by

referring

examination, refresh his

to any writing made by himself at the

time of the transaction concerning which he

is

or so soon afterwards that the judge considers

questioned, it

likely that

the transaction was at that time fresh in his memory.

The

witness

may

also refer to

any such writing made by

any other person, and read by the witness within the time aforesaid, if

An

when he read

expert

may

it

he knew

refresh his

it

to be correct,^

memory by

reference to pro-

fessional treatises.^

Article

137.

right of adverse party as to writing used to refresh MEMORY.

Any

writing referred to under article 136

duced and shown

to the adverse party if

and such party may,

if

must be pro-

he requires

it;

he pleases, cross-examine the witness

thereupon.^

Article GIVING,

AS

138.

evidence, DOCUMENT

CALLED FOR AND

PRODUCED ON NOTICE.

When

a party calls for a document which he has given

the other party notice to produce, and such

made would have been incompetent as witnesses, but would obviously apply to all the cases in question.

they were principle 1

2

document

2 Ph. Ev. 480, &c. ; T. E. ss. 1264-70 Sussex Peerage Case, liC.&F. 114-17.

;

is

the-

R. N. P. 194-5. Seecasesin R. N. P. 195.

=

THE LA W OF EVIDENCE.

Chap. XVI.]

produced

to,

he

duction,

producing

it

and inspected by, the party is

bound

requires

to give

hiiri

to

do

Article USING, AS EVIDENCE,

calling for its pro-

as evidence

it

so,

and

129

if

the party

if it is relevant, i

rjg.

A DOCUMENT, PRODUCTION OF

WHICH WAS REFUSED ON NOTICE.

When

a party refuses to produce a document which he

may

has had notice to produce, he the

party.

'

not afterwards use

document as evidence without the consent of the other ^

Wharam

v.

Routkdge,

Esp. 235

I

;

Calvert v. Flower, 7 C.

&

P.

386. ^

270.

Doe

V.

Hodgson, 12 A.

&

E. 135

;

but see remarks in 2 Ph. Ev.

A DIGEST OF

130

CHAPTER

'

'

[Part

III.

XVII.

OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE. Article

A NEW

140.

not be granted in any

trial will

civil

action on the

ground of the improper admission or rejection of evidence, unless in the opinion of the Court, to which the application is

made, some substantial wrong or miscarriage has been

thereby occasioned in the

trial

of the action.^

If in a criminal case evidence

admitted, there

is

victed,

and unless the judge,

for the

Court

is

for

is

improperly rejected or

no remedy, unless the prisoner

is

con-

in his discretion, states a case

Crown Cases Reserved

;

but

if

that Court

of opinion that any evidence was improperly admitted or

rejected,

it

must

'

set aside the conviction.

Judicature Act, 1875, Order xxxix. 3.

THE

NOTES.]

LAW

OF EVIDENCE.

131

APPENDIX OF NOTES.

NOTE

I.

(to Article

i).

For the definition of fact, see Bentham vol.

i.

pp.

See,

39-50.

too,

Indian Evidence Act,' pp.

word " Document " s.

in

is

my

14-16.

'

Judicial Evidence,'

Introduction

The

See, too, the Indian Evidence Act,

definitions are simply explanations

which the words defined are used in

I

the

taken from the Indian Penal Code,

29.

it is

to

definition of the

The will

s.

12.

of the senses

this

work.

They

be found, however, to explain the manner in which arranged.

use the word presumption in the sense of a presumption

of law capable of being rebutted. is

'

simply an argument.

A

scribe as conclusive proof.

of law which only ones

I

I

have thought

have to deal with.

A

presumption of fact

conclusive presumption I de-

Hence it

the few presumptions

necessary to notice are the

A DIGEST OF

132

NOTE

II.

(to Article See chap.

I ii.

Ph. Ev. 493, &c. pt.

;

[NOTES.

Best,

2).

iii and 251; T. E.

ss.

ii.

For instances of relevant evidence held for the purpose for

remoteness, see

to be insufficient

was tendered on the ground of

it

Ji. v.

&

Langton, 3 A.

which

,

2 C.

&

459; and

P.

Mann

v.

E. 699.

Mr. Taylor (s. 867) adopts from Professor Greenleaf the statement that " the law excludes on public grounds , .

evidence which

is

.

indecent or offensive to public morals, or

injurious to the feelings of third persons.''

The

authorities

given for this are actions on wagers which the Court refused to try,

or in which

they arrested judgment, because the

wagers were in themselves impertinent and offensive,

as,

for instance,

a wager as to the sex of the Chevalier D'Eon

{Da

Jones,

Costa

v.

a wager, and

I

Cowp.

No

729).

that

fear

there

action

now

proposition advanced by Professor Greenleaf.

no case

in

which a

which the Court

is

it

action.

Indeed, in

expressly,

Da

Costa

v.

it

or criminal right"

Note XLVII.)

is

(p.

upon

for the

know an

of

issue

can be excluded merely

Jones,

"Indecency of evidence

being received where civil

to try

would pain some one who

because

I

fact in issue or relevant to

bound

lies

no authority

is

is

is

a stranger to the

Lord Mansfield

no objection

said

to it^

necessary to the decision of a 734).

(See article 129, and

THE

Notes.]

LAW

OF EVIDENCE.

NOTE (to

On 532

;

this subject see also

Best,

III.

Article i

4).

Ph. Ev. 157-164

;

T. E.

principle

is

&

persons conspire to commit

that of principal

When

agent.

an offence

IV.

(to Article principle V.

is

ODea,

fully

Judges, delivered i

explained and illustrated in Mal-

by

Willes,

Ph. Ev. 234-9

Mr. Phillips

5).

10 H. of L. 593.

reply to the questions put by the

See also

(See, too,

Note XII.)

NOTE

The

various

each makes the

rest his agents to carry the plan into execution.

colmson

527-

Bing. 309-10,)

same as

substantially the

and accessory, or principal and

article 17,

ss.

508; 3 Russ. on Crimes, by Greaves, 161-7.

the Queen's Case, 2 Br.

(See,, too,

The

s.

133

;

J.,

to the

611-22.

T. E.

and Mr. Taylor

See particularly the

House of Lords

ss.

593-601

Best,

;

treat this principle as

ception to the rule excluding hearsay.

s.

499.

an ex-

They regard

the

statements contained in the title-deeds as written statements

made by

persons not called as witnesses.

I

think the deeds

must be regarded as constituting the transactions which they effect; and in the case supposed in the transactions are actually in issue.

land belongs to A, what

by a

is

meant

series of transactions of

When is,

which

that

it is

A

is

text,

those

asserted that entitled to it

his title-deeds are

by

A DIGEST OF

13+

[NOTES.

The

law the exclusive evidence (see article 40). of the deeds

Mr. Best

is

thus the very fact which

treats the case as

is

be observed that

me

as to be of the

same

felicitous.

2-6 refer to

articles

strictly in issue, or so closely

existence

be proved.

one of " derivative evidence,"

an expression which does not appear to It will

to

connected with

facts, either

facts in issue

Articles 7, 8, 9 refer to facts

nature.

which would usually be described by the phrase, "circumstantial evidence.''

NOTE V. (to Article

The

items of evidence included in this article are often

by the phrase "

referred to

come

into use

V.

Tatham

Bosanquet, gestae,

acts

J.,

&

issue.

E. 353.)

to have

The

in the case of

do you

translate res gestae?

Parke, B., afterwards observed,

"The

res gestae, if relevant to the

But the question

is,

what are relevant?"

In delivering his opinion to the House of

Lords, the same Judge laid facts

which seems

convenient obscurity.

In the course of the argument,

"How

by whomsoever done are

A.

any

its

was much discussed

(p. 79, &c.).

observed,

by whom?"

matter in (7

res gestae,"

on account of

doctrine of " res gestae "

Doe

7).

down

are proper evidence

the rule thus

upon an

they are in issue, or relevant to the issue] declarations which can explain such facts

issue

:

[i.

all oral

may

"

Where

e.

when

or written

be received

(Same Case, 4 Bing. N. C. 548.) The question asked by Baron Parke goes to the root of the whole subject, and I have tried to answer it at length in in

evidence."

LAW

THE

Notes.]

and

the text,

to give

of the law which

its

OF EVIDENCE.

135

the prominence in the statement

it

importance deserves.

Besides the cases cited in the illustrations, see cases as to statements accompanying acts collected in

and T. E. R.

ss.

521, 528.

Walker,

v.

I

&

M.

2

i

Ph. Ev. 152-7,

have stated, in accordance with

R. 212, that the particulars of a

complaint are not admissible; but I have heard Willes,

J.,

were on several occasions, vouching Parke,

B.,

Walker was decided by Parke,

B.,

rule that they

R.

as his authority. in

v.

Though he excluded

1839.

"the sense of the thing certainly the

first

know

instance

the prosecutrix, and

which

I

the

statement, he

that the jury should in

is,

made by

the nature of the complaint

all

said,

that she then said.

But

for reasons

never could understand, 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

leaving

her,

the

prisoner's

counsel to bring before the jury the particulars of that complaint

by cross-examination."

Baron Brarawell has been admitting the complaint

accordance with

in the habit, of late years, of

The

itself.

common

NOTE This

is

taken '

(with

is

certainly in

VI.

(to Article

pamphlet called

practice

sense.

9).

some verbal

The Theory

alterations)

of Judicial Evidence, by George Clifford Whitworth, Civil Service.

The

7 th

Bombay,

from a

of Relevancy for the purpose

Bombay

1875.'

section of the Indian Evidence Act

is

as follows

:

;

A DIGEST OF

136

[Notes.

" Facts which are the occasion, cause, or effect, immediate

or otherwise, of relevant facts or facts in issue, or which constitute the state of things under

which they happened,

or which afforded an opportunity for their occurrence or transaction, are relevant."

The nth '

section

as follows

is

:

Facts not otherwise relevant are relevant

'(i) If they are inconsistent with

vant fact '

amined

show

'

in

connection with other

highly probable or improbable.'

fact,

Introduction to the Indian Evidence Act

at length the theory of judicial evidence,

that the theory of relevancy

is

of the process of induction, and that

nection of events as cause and

have grasped

to

it

'

and

I extried

only a particular case

it

depends on the conThis theory does not

effect.

greatly differ from Bentham's, though he does not

me

facts,

the lexistence or non-existence of any fact in

or relevant

my

In

to

by themselves, or

make

issue,

issue or rele-

;

(2) If

they

any fact in

as distinctly as

seem

he probably would

to if

he had lived to study Mr. Mill's Inductive Logic.

My theory was

expressed too widely in certain parts, and

not widely enough in others appears to

me

to

judicious manner.

The

of the

and Mr. Whitworth's pamphlet

have corrected and completed

have accordingly embodied

I

tion of relevancy, with text.

;

some

variations

necessity of limiting in

nth

it

in a

his defini-

and additions,

in the

some such way the terms

section of the Indian Evidence

Act may be

inferred from a

judgment by Mr. Justice West (of the High Court of Bombay), in the case of R. v. Parbhudas and

others, printed in the

As

'

Law

Journal,'

May

27, 1876.

to the coincidence of this theory with English law, I

THE

Notes.]

can only say that will

explain

it

that

all

LAW

on the subject of circumstantial

said

evidence by the writers

137

be found to supply a key which

will is

OF EVIDENCE.

who have

treated of that subject.

Mr. Whitworth goes through the evidence given against the

German,

Miiller,

executed for murdering Mr. Briggs on the

North London Railway, and shows how each item of

can

it

be referred to one or the other of the heads of relevancy

which he discusses. not necessary to give specific authorities for the

It is

They

illustrations.

are too obvious to be noticed in re-

ported cases, but they might

be

all

by reference

justified

The

to different parts of Palmer's case.

was

last illustration

suggested by the case of Courvoisier.

The theory of

relevancy contained in this article would,

I believe, suffice to solve every question

upon the subject

;

which can

but as questions connected with

been raised and decided in many

Law

necessary in a Digest of the

different

it

forms,

arise

have it

is

of Evidence to notice

them.

The

articles

3-8 are only particular applications of the general

principle

principles, however,

stated in

this

article.

expressed very shortly by saying to

every other,

bility

light

of

its

if it affects

might,

no doubt, be

every fact

definite

in

way

is

relevant

the proba-

no

facts affect the probability of the

and

;

the principles of evidence

it is

this subject.

any

in

occurrence of other facts

on

It tliat

This, however, would throw

occurrence.

on the question how

which are embodied

to obtain a real mastery of

necessary to have clear views

A DIGEST OF

!38

NOTE

[Notes.

VII.

(to Articles io, ii, 12). Article 10

equivalent to the maxim, "

is

non

acta alteri nocere

mented on

in Best,

debet," which

ss.

The

Evidence

is

application of the it

inter alios

should scarcely

I

and by Broom

it),

obscure, because

Res

explained and com-

506-510 (though

adopt his explanation of 954-968).

is

maxim

Maxims,'

('

Law of how uncon-

to the

does not show

nected transactions should be supposed to be relevant to

The meaning

each other.

the exceptions to that

it

means,

it

of the rule must be inferred from

stated in articles 11

You

transaction to another which

with

it

and

12,

which show

draw inferences from one

are not to

not specifically connected

is

merely because the two resemble each other.

must be linked together by the chain of cause and

some assignable way before you can draw your In

its literal

true that a

he

is

and

sense the

man

innumerable

The

also

fails,

inference.

because

it

is

not

cannot be affected by transactions to which Illustrations to the contrary are obvious

not a party.

transaction of

maxim

They

effect in

life,

bankruptcy,

;

marriage,

indeed

every

would supply them.

exceptions to the rule given in articles 11 and 12

are generalised from the cases referred to in the illustrations.

It is

important to observe that though the rule

expressed shortly, and

much

is

sparingly illustrated,

it

is

-is

of very

greater importance

and more frequent application

The

exceptions apply more frequently

than the exceptions.

to criminal than to civil proceedings,

and

in criminal cases

THE LAW OF EVIDENCE.

Notes.]

I39

the Courts are always disinclined to run the risk of preju-

prisoner by permitting matters

dicing the

which tend to show in general that he likely to article

is

a bad man, and so

In each of the cases by which

commit a crime.

12

is

be proved

to

evidence admitted went 'to

illustrated, the

prove the true character of facts which, standing alone,

might naturally have been accounted for on the supposition

— a supposition which was

rebutted by the repe-

of accident

In the case of R.

tition of similar occurrences.

would have been

sufficient

apart from the previous

indeed, seemed to have

case (Illustration

was

result

little

way

-guilt,

That part of the evidence,

influence

on the

Garner's

jury.

was an extraordinary one, and

its

Some account

of

unsatisfactory.

case will be found in the evidence given by

this

the

prove the prisoner's

to

fires.

note)

c,

in every

Gray

v.

were many other circumstances which

(Illustration a), there

Commission on Capital Punishments which

NOTE

me

before

sat in 1866.

VIII.

(to Article 13).

As

to presumptions arising

business, see Best,

The

403

s.

presumption, "

;

1

Omnia

from the course of

Ph. Ev. 480-4 esse

See Broom's 'Maxims,' 942; s.

124, &c.

;

I !f'h.

rite

Best,

;

acta," also ss.

office or

T. E.

s.

147.

applies.

353-365; T. E.

Ev. 480; and Star. 757, 763.

NOTE

IX.

(to Article 14).

The

unsatisfactory

given of hearsay

is

character of the definitions usually

well

known.

See Best,

s.

495

;

T. E.

A DIGEST OF

140

ss.

The

507-5 10.

exemplifies

it

:

definition given

When

"

[NOTES.

by Mr.

Phillips sufficiently

a witness, in the course of stating

what has come under the cognizance of

his

own

senses con-

cerning a matter in dispute, states the language of others which

he has heard, or produces papers which he identifies as being

by particular

written

individuals,

This matter

hearsay evidence.

matter in dispute," &c. correct, the

(i

he

Ph. Ev. 143).

maxim, " Hearsay

what

offers

is

may sometimes be

called

the very

If this definition is

no evidence," can only be

is

saved from the charge of falsehood by exceptions which

make nonsense in the text,

no

it

of

attaching to

becomes both

to say this or that, threat,

it

fact that

and any other

the meaning given

and

intelligible

between the

real difference

convey a

By

it.

a

There

true.

man was

is

heard

Words spoken may

fact.

supply the motive for a crime, constitute a

contract,

amount

in issue,

on these or other grounds, they must be proved,

like other facts,

The important assertion

must

to slander, &c., &c.

;

and

if

relevant or

by the oath of some one who heard them.

point to

remember about them

not, generally speaking,

is

that bare

be regarded as

rele-

vant to the truth of the matter asserted.

The doctrine of hearsay evidence was fully discussed by many of the judges in the case of Doe d. Wright v. Tatham on the different occasions when that case came before the Court (see

The

7

A.

&

E.

313-408; 4 Bing. N. C. 489-573).

question was, whether letters addressed to a deceased

testator,

implying that the writers thought him sane, but

not acted upon by him, could be regarded as relevant to his sanity,

which was the point in

issue.

The

case

sets the

stringency of the rule against hearsay in a light

which

forcibly illustrated

is

by a passage

in the

judgment

— THE LAW OF EVIDENCE.

Notes.]

of Baron Parke effect

:

—He

&

A.

(7

E.

to

385-8),

141

the

following

treats the letters as " statements of the writers,

not on oath, of the truth of the matter in question, with this

addition,

on the

faith

that they have acted

to

that

no

in

sending the

then goes through a variety

had been suggested in

of illustrations which

show

He

the testator."

letters to

upon the statements

of their being true by their

argument

such statements to be

case ought

regarded as relevant to the truth of the matter stated, even

when

the circumstances were such as to give the strongest

guarantee

possible

that

statements expressed the

such

who made them. Amongst following " The conduct of the

honest opinions of the persons others he mentions the

:

—

family or relations of a testator taking the

same precautions

—

his election in his

in his .

absence as

if

he were a lunatic

absence to some high and responsible

office

;

the conduct

of a physician

who permitted a

testator; the

conduct of a deceased captain on a question

who,

of seaworthiness, vessel,

embarked

in

will to

be executed by a sick

examining every part of a

after

with his family;

it

all

these,

when

deliberately considered, are, with reference to the matter in issue in each case,

mere instances of hearsay evidence

mere statements, not on the actual

oath, but implied in or

vouched by

conduct of persons by whose acts the

parties are not to

be bound."

litigant

All these matters are there-

fore to be treated as irrelevant to the questions at issue.

These observations make the reason

suggested for .

it

in

rule quite distinct, but the

the concluding words of the

That passage imexcluded because no one " ought to be

passage extracted appears to be weak. plies that hearsay is

"bound by

the- act

of a stranger."

That no one

shall

have

A DIGEST OF

142

power for

make

to

a contract for another or commit a crime

which that other

authority

why

be

to

is

responsible

obviously reasonable, but

is

The importance

importance

is

without his

not so plain for in-

was not authorised

it

of shortening proceedings, the

compelling people

of

it

good grounds

A's conduct should not furnish

ference as to B's conduct, though

by B.

[NOTES.

the

procure

to

best

evidence they can, and the importance of excluding oppor-

which probably

tunities of fraud, are considerations

the

tions of

but Baron

excluding hearsay;

rule

Parke's

operation clearly prove that in some cases

its

excludes the proof of matter which, but for

regarded not only as relevant to particular

good grounds

(to

This definition

is

Article

of by writers on evidence

;

matter which I omit,

Ev. 308-401, and T. E.

but they appear to

is ss.

admission ments, or

Roscoe N. P.

is

The

treated

653-788.

upon admissions of every

may

amount

to estoppels,

by the

These subjects are usually treated

to other departments of the law.

It

but as

15).

for the purposes of a cause

parties or their solicitors.

sions.)

facts,

intended to exclude admissions by plead-

and admissions made

referring to

it

would be

X.

ing, admissions which, if so pleaded,

cases

it,

for believing in their existence.

NOTE

the

justify

illustra-

sort

me

to belong

subject, including

at length in

A

i

Ph.

vast variety of

may be found by

(Index, under the

word Admis-

perhaps be well to observe that when an

contained in a document, or series of docu-

when

it

forms part of a discourse or conversation,

THE

Notes.]

so

LAW

much and no more

OF EVIDENCE.

143

of the document, series of documents,

discourse or conversation, must be proved as

necessary

is

for the full understanding of the admission, but the

or jury

may

parts of the matter proved.

This rule

cussed and illustrated by Mr. Taylor, lost

much

parties to

judge

of course attach degrees of credit to different is

ss.

elaborately dis-

655-665.

of the importance which attached to actions could not be

compelled to make admissions by

has

It it

when

witnesses, but could be bills

of discovery.

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, and the ingenuity of the Court was at least as

much exercised in countermining their ingenious devices. The power of administering interrogatories, and of examining the parties directly, has made great changes in these matters.

NOTE

XI.

(to Article 16).

As

to admissions

by

parties, see

Moriarty

v.

Railway, L. R. 5 Q. B. 320, per Blackburn, George, i Camp. 392 ; Bauerman v. Radenius,

As

to

Brown, 9

B.

&

7

;

Alner

v.

T. R. 663. v.

C. 938.

369, 398; and T. E.

As

J.

admissions by parties interested, see Spargo

See also on the subject of

N. P.

L. C. 6^ D.

this article i

Ph. Ev. 362-3,

669-671, 685, 687, 719; Roscoe,

ss.

71.

to admissions

by

T. E. (from Greenleaf),

privies, see i s.

712.

Ph. Ev. 394-7, and

A DIGEST OF

144

NOTE

[Notes.

XII.

(to Article 17).

The is

relevancy of admissions by agents

subject of the

rendered

by the vast variety of forms which

difficult

agency assumes, and by the distinction between an agent

for

the purpose of making a statement and an agent for the

purpose of transacting business. B, B's words in delivering

ments

If

A sends

a message by

are in effect ,A's; but B's state-

in relation to the subject-matter of the -message have,

as such, if

it

no

A's

special value.

own

statements are valuable

they suggest an inference which he afterwards contests

because they are against his interest duty

is

The

but

;

when

the agent's

done, he has no special interest in the matter. principle as to admissions

by agents

explained by Sir \V. Grant in Fairlie

v.

is

stated

and

Hastings, 10 Ve.

126-7.

NOTE

XIII.

(to Article 18). See, for a third exception (which could hardly occur now),

Clay

V.

Langslow, M.

&

M.

45.

NOTE (to

XIV.

Article

19).

This comes very near to the case of arbitration. to irregular arbitrations of this kind, ss.

689-90.

i

Ph. Ev. 383

See, as ;

T. E.

;

THE

Notes.]

LAW

OF EVIDENCE.

NOTE (to

See more on ss.

702, 720-3

this

subject in

20).

Ph. Ev. 326-8

i

;

XVI.

Article

22).

the law as to Confessions, see ss.

Cr. Ev.

796-807, and

38-56

T. E.

;

R. N. P. 66.

(to

On

XV.

Article

NOTE

T. E.

I4S

;

s.

3 Russ.

i

Ph. Ev. 401-423

824 j 551-574; Roscoe, on Crimes, by Greaves, 365-436. Best,

ss.

Joy on Confessions reduces the law on the subject to the shape of 13 propositions, the

effect of all

of which

is

given

in the text in a different form.

Many amounts

cases have been decided as to the language which to

an inducement

to confess (see Roscoe, Cr. Ev.

40-3, where most of them are collected). ever, for practical purposes, 2

summed up

Den. 430, which is the authority paragraph of this article.

They in

R.

are,

v.

how-

Baldry,

for the last lines of the

first

NOTE

XVII.

(to Article 23),

Cases are sometimes cited to show that

examined as a witness on

if

a person

is

oath, his deposition cannot be

used in evidence against him afterwards (see T. E.

ss.

809

A DIGEST OF

146

and 8i8,

n.

[Notes.

6; also 3 Russ. on Cri., by Greaves, 407, &c.).

All these cases, however, relate to the examinations before

magistrates of persons accused of crimes, under the statutes

which were

These

in force before 11

&

statutes authorised the

12 Vict.

42.

c.

examination of prisoners, but

The

not their examination upon oath.

11

&

12 Vict.

42,

c.

prescribes the form of the only question which the magistrate

can put to a prisoner ; and since that enactment

scarcely possible to suppose that any magistrate

a prisoner upon his oath.

The

may

cases

it is

would put

therefore be re-

garded as obsolete.

NOTE

XVIII.

(to Article 26).

As

to dying declarations, see

644-652

ss.

;

Best,

s.

250-272 (perhaps the subject) 53,

;

505

;

i

Ph. Ev. 239-252; T. E.

Roscoe, Crim. Ev. 31-2. R.

v.

B's dying declaration that she

presence, and put nothing bad in

it,

;

3 Russ. Cri.

Baker,

2

A and B C was

poisoned by eating the same cake. ing A.

38

of the cases on the

fullest collection

a curious case on this subject.

is

&

Starkie, 32

Mo.

& Ro.

were both

tried for poison-

made

the cake in C's

was admitted as against

C, on the ground that the whole formed one transaction.

NOTE (to I

Ph.

Ev. 280-300;

R. N. P. 63 2 S. L.

;

C. 328.

XIX.

Article

27).

T. E. ss. 630-643; Best, 501; and see note to Price v. Lord Torrington,

LAW

THE

Notes.]

OF EVIDENCE.

NOTE

U7

XX.

(to Article 28).

The

Higham

be found in 2 ss.

S.

L.

A class

Best,

;

500

s.

subject will

Ridgway, and the note thereto,

v.

See also

318.

C.

602-629

of an

of the law upon this

best statement

Ph. Ev.

i

252-280: T. E.

R. N. P. 584.

;

of cases exists which

I

have not put into the form

because their occurrence since the com-

article, partly

mutation of tithes must be very rare, and partly because a great difficulty in understanding the place which

I find

by them ought

the rule established

statement of the law.

They

occupy in a systematic

to

There V.

are

sole

tions

Lee,

is

and other

&

Jac.

as to the rule (see, in particular, Short

The

537).

464; and

Wal.

ciple stated in the text,

of

it

;

but in

make evidence

that

article

and would appear

many

unless sole,

it

was ever

it

it

cases

it

to be

the prin-

an obvious

has been declared to

enables a predecessor in

title

This suggests

28 ought to be limited by a proviso that a

by a predecessor

tion

why

in favour of his successor.

declaration against interest

it,

Clare Hall,

v.

It falls directly within

be anomalous, inasmuch as to

Young

difficulty is to see

regarded as an exception.

illustration

ecclesiastical corpora-

admissible in favour of their successors.

no doubt

2

17 Q. B.

rectors

the

and moduses

rule that statements as to the receipts of tithes

made by deceased

down

are cases which lay

is

or a

is

not relevant

in title of the

person

who

if it

was made

seeks to prove

a declaration by an ecclesiastical corpora-

member

of an ecclesiastical corporation

148

A DIGEST OF

aggregate (see Short

v.

[NOTES.

Lee), as to the receipt of a tithe or

modus.

Some countenance

for such

the terms in which Bayley,

a proviso

may be found

J., states the rule in

Atkin, and in the circumstance that

when

in

Gleadow

v.

obtained

it first

currency the parties to an action were not competent wit-

But the rule as to the endorsement of notes, bonds,

nesses.

&c.,

is

distinctly

opposed to such a view.

NOTE

XXI.

(to Article 30).

Upon 1

this subject, besides the authorities in the text, see

169-197; T.

Ph. Ev.

R. N. P. 50-54

A

(^the latest

They

me

because his

it

"

is

which

fall

merely to

the branches of the rule, e.g., is

as to the

within the rule given in

and not

not within the

illustrate

one or other of

to extend or vary

branch of

last

An

it.

illustration

{b),

but the opinion of the arbitrator, not upon

own knowledge

"

{Evans

v.

Eees, 10 A.

&

E.

but the detailed application of such a rule as this learnt

497;

s.

are collected in the works referred to above,

but they appear to

award,

543-569; Best,

ss.

number of cases have been decided

great

particular documents, &c.,

the text.

E.

collection of cases).

by experience, applied

is

155)

;

better

to a firm grasp of principle,

than by an attempt to recollect innumerable cases.

The it

case of Weeks

v.

Sparke

throws on the history of the

decided in

1813,

is

remarkable for the

Law

and contains

of Evidence.

inter

alia

It

light

was

the following

THE LAW OF EVIDENCE.

Notes.]

curious remarks by

be the habit and practice of species of evidence

"

Lord EUenborough.

149

upon such a question

That certainly cannot make the law, but

stated to

It is

admit

different circuits to

this

as the present.

shows

it

at least,

from the established practice of a large branch of the pro-

and of the judges who have presided

fession,

at various

times on those circuits, what has been the prevailing opinion

upon

amongst so

this subject

large a class of persons inte-

rested in the due administration of the law.

It is stated to

have been the practice both of the Northern and Western Circuits.

My

learned predecessor. Lord Kenyon, certainly

held a different opinion, the practice of the Oxford Circuit,

of which he was a member, being different." Berkeley Peerage Case, Lord Eldon said, "

posed to read General

(Sir

this deposition as

Vicary Gibbs)

quite right as

a Western

So

when

it

in the

was pro-

a declaration, the Attorney-

flatly

objected to

Circuiteer, of

He spoke

it.

what he had often

heard laid down in the West, and never heard doubted" (4 .

Cam. 419,

much

of the

A.D.

Law

1811).

This shows

of Evidence

is.

Le

how

Blanc,

very modern

J.,

in

Weeks

v.

Sparkes, says, that a foundation must be laid for evidence of this sort "

by

acts

of enjoyment within living memory."

This seems superfluous, as no jury would ever find that a public right of living

way

existed,

memory, on the

which had not been used in

strength

deceased person had said that right.

of a there

report

that

some

once was such a

A DIGEST OF

I50

NOTE (to

See

XXII.

Article

31).

Ph. Ev. 197-233; T. E.

I

[Notes.

ss.

571-592;

Best,

633;

R. N. P. 49-50.

The Berkeley Peerage Case (Answers of the Judges to House of Lords), 4 Cam. 401, which established the

the

third condition given in the text

6

M.

&

the question

of family pedigrees

specially important

As

;

and Davies

v.

Lowndes,

G. 471 (see more particularly pp. 525-9, in which

on

is

fully

discussed)

are

this subject.

to declarations as to the place of births, &c., see

Shields

v.

Boucher,

i

De

G.

& S.

NOTE

49-58.

XXIII.

(to Article 32).

See also

i

Ph. Ev. 306-8

;

T. E.

ss.

434-447

;

BuUer,

N. P. 238, and following.

NOTE

XXIV.

(to Articles 39-47).

The law

relating to the relevancy of judgments of Courts

of Justice to the existence of the matters which they assert is

made

which

it

to appear extremely complicated is

usually dealt with.

by the manner

in

The method commonly

THE

Notes.]

employed

to

is

LAW

OF EVIDENCE.

mix up the

151

of the effect

question

of

judgments of various kinds with that of their admissibihty, subjects which appear to belong to different branches of

the law.

Thus the the

Law

subject, as

commonly

treated, introduces into

of Evidence an attempt to distinguish between in personam or inter partes

judgments in rem, and judgments

(terms adapted from, but not belonging to,

never clearly defined in reference to our system) acquit,

;

Roman

own

law,

and

or any other

also the question of the effect of the pleas oi autrefois

and

autrefois convict,

which clearly belong not to

dence, but to criminal procedure

evi-

the question of estoppels,

;

which belongs rather to the law of pleading than to that of evidence

;

and the question of the

ments of foreign Courts of

Justice,

effect

given to the judg-

which would seem more

properly to belong to private international law.

These and

other matters are treated of at great length in

2

1-78,

and T. E.

ss.

Duchess of Kingston's Case in (ss.

Ph. Ev.

1480-1534, and in the note to the 2

S.

L. C. 777-880.

Best

588-595) treats the matter more concisely.

The text make

could

confined to as complete a statement as I

is

of the principles which regulate the relevancy

of judgments considered as declarations proving the facts

which they

assert,

made

use to be

whatever

may be

of those facts

leading principle stated in article 40

judgments

alike.

the

effect

when proved. is

equally true of

Every judgment, whether

inter partes,

must and does prove what

though the

effects of different sorts of

or

it

it

the

Thus the all

be in rem or

actually effects,

judgments

widely as the effects of different sorts of deeds.

differ as

A DIGEST OF

152

[NOTES.

There has been much controversy as which

ought

effect

Courts in

foreign

which the Courts

country,

this

judgments

of in

the

to

will refuse to act

upon them

mere question of evidence, they do not

The

judgments.

813-845.

There

6 Q. B.

139,

but as a

;

from English

Duchess of Kingston's Case, is

a convenient

The

R. N. P. 201-3.

differ

on foreign judgments are collected

cases

in the note to the

to the extent to

and as to the cases

be given

to

of Godard

cases

and Castrique

2 S. L. C.

of the cases in

list

v.

Gray, L. R.

Imrie, L. R. 4 E.

v.

on the

414, are the latest leading cases

&

A.

I.

subject.

NOTE XXV. (to

On

evidence of opinions, see

1273-1281;

ss.

Chapter

Best,

ss.

Ph. Ev. 520-8;

511-17; R. N.

leading case on the subject

313

i

V.).

is

Doe

v.

P.

193-4.

Tatham,

7 A.

T. E.

The

&

E.

and 4 Bing. N. C. 489, referred to above in Note IX.

;

Baron Parke,

in the extracts there given, treats an expression

of opinion as hearsay, that

is,

as a statement affirming the

truth of the subject-matter of the opinion.

NOTE (to .See

I

R.

V.

Chapter

Ph. 502-8; T. E.

3 Russ. Cr. 299-304.

Rowton,

I

L.

&

XXVI.

The

ss.

325-336

subject

C. 520.

VI.).

is

;

Best,

ss.

257-263;

considered at length in

One consequence

of the view

LAW

THE

Notes.]

OF EVIDENCE.

of the subject taken in that case perfect truth swear that a

character for honesty, his crimes

from

if

that a witness

is

man, who

been a receiver of stolen goods

153

to his

may

with

knowledge has an excellent

for years, has

he has had the good luck to conceal It is the

his neighbours.

essence of success-

hypocrisy to combine a good reputation with a bad

ful

and according

disposition,

on

The What is

in practice.

character

is,

morality, or

to R. v.

The

the important matter.

if

is

ever acted

may

be

;

nor

is

the

to confine his evidence to the

is

would be no easy matter to make

It

run of witnesses understand the distinction.

XXVII.

(to Article list

seldom

question always put to a witness to

NOTE

The

is

humanity ? as the case

prisoner's reputation.

common

Rowton, the reputation

the prisoner's character for honesty,

witness ever warned that he

the

case

58).

of matters judicially noticed in this

not intended to be quite complete. I Ph. Ev. 458-67,

and T. E.

gone into more minutely.

ss.

A

It

is

article is

compiled from

4-20, where the subject

convenient

list is

is

also given

ss. 88-92, which is' much to the same effect. may be doubted whether an absolutely complete list

in R. N. P. It

could be formed, as everything which

is

it is

practically impossible to

so notorious in

recorded by pubhc authority, that to prove

it.

Paragraph

(i)

is

it

itself,

enumerate

or so distinctly

would be superfluous

drawn with reference

to the

A DIGEST OF

154

fusion of

[Notes.

Law, Equity, Admiralty, and Testamentary

diction effected

Juris-

by the Judicature Act.

NOTE

XXVIII.

(to Article 62).

Owing

to the

ambiguity of the word " evidence,'' which

sometimes used to

signify the effect of a fact

and sometimes

signify the

to

testimony by which a fact

proved, the expression " hearsay

is

is

when proved,

is

no evidence " has

many

meanings.

ing

the one given in article 14, which might be otherwise

is

Its

common and most

important mean-

expressed by saying that the connection between events,

and

reports

remote that

they have happened,

that it is

so

generally

is

expedient to regard the existence of the

reports as irrelevant to the occurrence of the events, except in excepted

cases.

whatever.

ceptions

relation of a fact to if

proved by

who

It asserts

if it

is

subject

that whatever

be proved to the

oral evidence,

For instance,

same thing

Article 62 expresses the

from a different point of view, and

to

no ex-

may be

fact in issue,

it

the

must,

be proved by direct evidence.

were to be proved under

article 3

1

that

died

fifty

years ago, said that he had heard from

his father B,

who

died 100 years ago, that A's grandfather

A,

C had

told

B

A's statement

own

ears,

that D, C's elder brother, died without issue,

must be proved by some one who, with

heard him make

it.

slander) the speaking of the words

was the very point

must be proved

same way.

issue, they

his

If (as in the case of verbal

in precisely the

in

Cases

which evidence

in

may

LAW

THE

Notes.]

is

OF EVIDENCE.

given of character and general opinion

perhaps seem to be exceptions to

When

are not so. character,

155

a

man

this rule,

but they

swears that another has a good

he means that he has heard many people, though

he does not particularly recollect what people, speak well of him, though he does not recollect

NOTE

all

that they said.

XXIX.

(to Article 68).

For these

and

rules in greater detail, see

2 Ph. Ev.

The

272-289

principle of

;

all

T. E.

the rules

cases cited in the footnotes, Collins, 7 Ex. 639.

document

in Court,

is

and

is fully

more

In that case

of notice to produce

i

419-426

ss.

;

Ph. Ev. 452-3,

R. N. P. 8

particularly in it

is

he does

nent to give parol evidence

.

.

.

that the opponent has not taken

Dwyer v.

to

have the

not, to enable his

to exclude the all

9.

held that the object

"to enable the party if

&

explained in the

oppo-

argument

reasonable means to

procure the original, which he must do before he can be permitted to

make use

of secondary evidence "

(p.

647-8).

NOTE XXX. (to Articles 69

This

is

&

70).

probably the most ancient, and

extends, the most inflexible of

all

is,

as far as

the rules of evidence.

it

The

A DIGEST OF

156

[Notes.

Lord Ellenborough

following characteristic observations by

occur in R. "

The

&

Harringworth, 4 M,

v.

S.

353

the subscribing witness particular case

by

;

and

it

is

:

you must

rule, therefore, is universal that

first call

not to be varied in each

trying whether, in

its

application,

it

may

not be productive of some inconvenience, for then there

would be no such thing as a general

man

that

without them,

is

reasoning

it

and such a

if

A

rule.

with these rules would be no

•well stored

better

lawyer who

by mere force of speculative

might be shown that the application of such

rule

would be productive of such and such an

inconvenience, and therefore ought not to prevail

any general rule ought to is

is

than any other

as fixed, formal,

prevail, this is certainly

;

but

if

one that

and universal as any that can be stated

in a Court of Justice."

In "

The

deed

Whyman

8 Ex. 807, Pollock, C.B., said,

supposed to have agreed

inter se that the

not be given in evidence without his [the attesting

shall

being called to depose to the circumstances

witness]

tending

Carth,

v.

parties are

its

at-

execution.''

In very ancient times, when the jury were witnesses as to matter of

the attesting witnesses to deeds

fact,

catne in question) would seem to have been with,

and

See as to

to

have acted as a

this,

Bracton,

Year-books in

'

rule,

Ev. 242-261; T. E. 220, &c.

;

Fortescue de Laudibus,

and cases collected from the

Broke's Abridgement,'

For the present

ss.

;

ss.

a deed

summoned

sort of assessors to, the jury.

38a

fo.

ch. xxxii. with Selden's note

(if

tit.

Testmoignes.

and the exceptions to

it,

see

i

Ph.

1637-42; R. N. P. 147-50; Best,

The

LAW

THE

Notes.]

OF EVIDENCE.

old rule which applied to

be attested by law, by 17

restricted to those required to Vict.

c.

125,

&

and 28

26,

s.

29 Vict.

NOTE

Mr. Phillips

196) says, that

(ii.

record, the original record

18, ss.

c.

i

&

&

18

7.

XXXI.

Article

(to

documents was

attested

all

157

75).

upon a plea

must be produced

of nul tiel in the

if it is

same Court. Mr. Taylor jury assigned

be produced.

(s.

1379) says, that upon prosecutions for per-

upon any

The

judicial

document the

bear out either of these statements.

hardly to

They show

that the

pjiaduction of the original in such cases

but not,'l think, that

Dartmouth

v.

position for which little

it is

it

is

the usual course,

case of

Lady

too wide for the pro-

is

The

cited.

is

to

The

necessary.

Roberts, 16 Ea. 334,

must

original

me

seem

authorities given

matter, however,

is

of

practical importance.

NOTE

XXXII.

(to Articles 77

The

&

78).

learning as to exemplifications and office-copies will

be found in the following authorities Evidence,' 11-20; BuUer, Nisi Starkie,

196-200

256-66 ;

T. E.

(fully ss.

:

Gilbert's

Prius, 228,

and very conveniently)

1380-4; R. N.

P.

'

Law

of

and following;

112-15.

;

2

Ph. Ev.

The second

•

;

A DIGEST OF

158

paragraph of 6

M. As

&

S.

article 77 is

[Notes.

founded on Appleton

v.

Braybrook,

39.

under the Great

to exemplifications not

Seal,

is

it

remarkable that the Judicature Acts give no Seal to the

Supreme Court, or the High Court, or any of its

NOTE

XXXIII.

(to Article

The

distinction

between

divisions.

this

90).

and the following

that article 90 defines the cases in which

article

is,

documents are

exclusive evidence of the transactions which they embody,

while article 91 deals with the interpretation of documents

by

oral evidence.

The two

subjects are so closely con-

nected together, that they are not usually treated as distinct but they are so in

fact.

A and B

insurance on goods, and reduce

it

make

a contract of marine

to writing.

They

verbally

agree that the goods are not to be shipped in a particular ship,

though the contract makes no such reservation.

They

leave unnoticed a condition usually understood in the busi-

ness of insurance, and they pression, the

The law does

make

meaning of which

is

use of a technical

not

ex-

commonly known.

not permit oral evidence to be given of the

exception as to the particular ship.

It

does permit oral

dence to be given to annex the condition ; and thus

evi-

far it

decides that for one purpose the document shall, and that for another

it

shall n'ot,

be regarded as exclusive evidence of

the terms of the actual agreement between the parties. also allows the technical term to be explained,

and

in

It

doing

so

it

LAW

THE

Notes.]

interprets the

OF EVIDENCE.

meaning of the document

two operations are obviously formance

159

depends upon

and

different,

principles.

different

The

itself.

their proper per-

The

first

depends upon the principle that the object of reducing transactions to a written form

bad

bad memory,

faith or

sumed

as a general rule to

to take security against

is

which reason a writing

for

embody

determination of the parties to

is

pre-

the final and considered

The second depends on

it.

a consideration of the imperfections of language, and of the

inadequate manner in which people adjust their words to the facts to which they apply.

The

rules themselves are not, I think, difficult either to

state, to

understand, or to remember

means easy

to apply,

an enormous number of transactions and the abridgment of

which have occurred in

Ev. 332-424

;

(very shortly

and

immense

V.

list

ss.

all

practice,

on one

side or

them

the illtistrations of

occupy a very large space will

1031-1110

imperfectly),

close

the exposition of these

They

in the different text writers.

T. E.

fall

Hence

the other of most of them. rules,

but they are by no

;

inasmuch as from the nature of the case

ss.

;

be found in

Star.

648-731

226-229

2 Ph.

Best

;

R. N. P. (an

;

of cases), 17-35.

As to paragraph Lord Nugent, it

(4), is

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.

Nugent that

if

It

was held

in effect in Goss v.

by reason of the Statute of Frauds the

tuted contract could not be enforced, effect of

it

Lord

substi-

would not have the

waiving part of the original contract

;

but

it

seems

the better opinion that a verbal rescission of a contract good

A DIGEST OF

i6o

[Notes.

under the Statute of Frauds would be good.

Ward,

L. R. 2 Ex.

note

(6).

and

this

graph

and 'Pollock on

135,

A contract

v.

Contracts,' 411,

by deed can be released only by deed,

case also would

fall

within the proviso to para-

{4).

The

cases given in the illustrations will be found to

As

sufficiently the various rules stated.

very large collection of cases

Wigglesworth sideration of

v.

what

Dallison,

Law

will

be found in the notes to

to belong rather to mercantile

For instance, the ques-

of Evidence.

and what are

stipulations are consistent with,

contradictory

by subscribing a

the contract formed

to,

mark

to paragraph (5) a

S. L. C. 598-628, but the con-

i

them appears

law than to the tion

See Noble

bill

of exchange, or the contract between an insurer and an Underwriter, are not questions of the

Law

of Evidence.

NOTE XXXIV. (to

Article

Perhaps the subject-matter of strictly

within the

sidered to do so

Law ;

The the

this article

of Evidence, but

and

branch of the subject,

91).

I

as

it

it is

does not

fall

generally con-

has always been treated as a

have thought

it

best to deal with

it.

general authorities for the propositions in the text are

same

as those specified in the last note

;

but the great

on the subject is the work of Vice-Chancellor Wigram on Extrinsic Evidence. Article 91, indeed, will be authority

found,

on examination,

Vice-Chancellor

to differ

Wigram only in

from the its

six propositions

of

arrangement and form of

THE

Notes.]

and

expression,

the

in

fact that

it

is

used as an

of one or the other of the propositions contained

it.

It is difficult to justify the line

to cases in

tions (k),

by

side

drawn between the

8, illustration

such cases as Doe (illustration

v.

&

is

He

•Forster Charter" his executor.

Forster Charter and Charles

effect,

The by the

In

this

"my

son

D. 315.

had two

Charter, and

sons, William

many

circum-

stances pointed to the conclusion that the person testator

•the

Charter.

wished

to

be

placed

indicated

Charter appointed

Forster

ad-

Hiscocks (illustration k) and

case of Charters. Charter, L. R. 2 P. testator

When

{m).

m) produce a singular

vagueness of the distinction between them

the

is

rejected (paragraph 7, illustra-

it is

and paragraph

it),

side,

Doe V. Needs

case

rule as

which evidence of expressions of intention

mitted and cases in which

all

16 1/

,

not restritted to

case cited by the Vice-Chancellor might be illustration

in

]

be found, on examination, that every

It will, I think,

wills.

^^

LAW OF E VIDENCE.

his

executor

was

whom Charles

Lord Penzance not only admitted evidence of

the circumstances of the case, but expressed an opinion

(P-

319)

that,

if

it

rations of intention laid

were necessary, might be

down by Lord Abinger

evidence of decla-

admitted under the

rule

in Hiscocks v. Hiscocks, because

part of the language employed ("

my

son

Charter ")

applied correctly to each son, and the remainder, " Forster,"

This

to neither.

mode

of construing the rule would admit

evidence of declarationsof intention both in cases falling under

paragraph

8,

and

in cases falling under paragraph 7,

which

is

inconsistent not only with the reasoning in the judgment,

but with the actual decision in

Doe

v.

Hiscocks.

It is also

M

1

A DIGEST OF

62

Notes.

inconsistent with the principles of the judgment in the later

case oiAllgoodw. Blake, L. R. 8 Ex. 160, where the rule

by Blackburn,

stated

Court

the

testator,

known

is

and

J.,

as follows

:

— " In construing a

entitled to put itself in the position of the

to consider all material facts

to the testator with reference to

taken to have used the words in the

what

is

is

will,

will,

and circumstances which he

and then

is

to be

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."

After quoting

Evidence, and Doe

many

Wigram on

Extrinsic

No

doubt, in

Hiscocks, he adds

v.

"

:

moment,

cases the testator has, for the

forgotten or

overlooked the material facts and circumstances which he

And

well knew.

the consequence sometimes

is

that

he uses

words which express an intention which he would not have wished to express, and would have altered

reminded of the

facts

and circumstances.

to construe the will as will

made by

him; and therefore

for

expressed intention, even that he has

if

if

he had been

But the Court

the testator, not to

it

there

is

make a

is

bound

is

great reason to believe

to

execute his

by blunder expressed what he did not mean."

Conclusive as the authorities upon the subject not, perhaps,

are,

it

may

be presumptuous to express a doubt whether

the conflict between a natural wish to

fulfil

which the

he had recollected

all

testator

would have formed

the circumstances of the case

;

if

the intention

the wish to avoid the evil

of permitting written instruments to be varied

evidence

duced

in

;

and the wish practice

an

by

oral

to give effect to wills, has not pro-

illogical

compromise.

The

strictly

THE LAW OF EVIDENCE.

Notes,]

would be

logical course, I think,

either to

163

admit declarations

of intention both in cases falling under paragraph

7,

and

in

cases falling under paragraph 8, or to exclude such evidence in both classes of cases,

and to hold void

for uncertainty

every bequest or devise which was shown to be uncertain in

a person

appears to

ciple or rule

Of

whom

and who was not

benefit,

in

Gardiner, the result of which was to give a

v.

legacy to

will,

Such a decision as that

application to facts.

its

Springer

me

named

or described in his

be a practical refutation of the prin-

to

on which

the testator had no wish to

either

based.

it is

course every document, whatever, must

to

some

How-

extent be interpreted by surrounding circumstances.

ever accurate and detailed a description of things and

persons

may

that persons

and therefore

be, oral evidence is always wanted to show and things answering the description exist;

in every case whatever, every fact

must

be.

allowed to be proved to which the document does, or

probably may, refer; but

more evidence than

if

may

this

admitted,

if

affect the

probabihty that the testator would form

the Court

tention or that,

cluded

?

why should

If the question,

is

"

is

look at circumstances which this in-

declarations of intention be ex-

What did the testator

say

? "

why

should the Court look at the circumstances that he lived with Charles, and was

on bad terms with William ?

amount of evidence write

" Charles

"Charles"?

To

like saying that is,

"

What

''

to

show

show

How

can any

that the testator intended to

that

what

he did write

means

say that "Forster" means "Charles,"

"two" means

did the testator wish ? "

"three."

If the

is

question

why should the Court refuse

M

2

1

A DIGEST OF

64

[Notes.

And what

to look at his declarations of intention ?

question can be asked

gested

"

is,

What would

deliberately used this

would

?

be,

third

The only one which can be the testator have

unmeaning words ? "

meant

sug-

he had

if

The only answer

to

he would have had no meaning, and would

have said nothing, and his bequest should be pro tanto void.

NOTE XXXV. (to Article See 2Ph.Ev.364;

Star.

92).

726; T. E. (from Greenleaf), s. 1051.

Various cases are quoted by these writers in support of the first is

part of the proposition in the article

the only one which appears to

They

are

all

settlement cases.

rests, so far as I

be law.

It

me

The

to

;

but R.

come

latter part

know, on no authority

;

but

it

crime, a party to

it

it,

up

to

it.

of the article must,

cannot be doubted, for instance, that

tract in writing, as

Cheadle

v.

quite

I think,

if

a con-

stood, supplied a motive for an alleged

accused of that crime, might show that

a verbal agreement had been incorporated with

it

would remove the motive, and which was intended

which to be

carried out, though not legally binding.

NOTE XXXVI. (to Part In

this

III.).

and the following chapter many matters usually

introduced into treatises on evidence are omitted, because

THE LAW OF EVIDENCE.

Notes.]

165

they appear to belong either to the subject of pleading,

For instance,

or to different branches of Substantive Law.

the rules as to the burden of proof of negative averments in criminal cases

Ph. Ev.

(l

&c.

555,

;

Russ.

3

on Cr.

276-9) belong rather to criminal procedure than to dence. are tant,

Again, in every branch of Substantive

more

presumptions,

or less

numerous

Law

and

evi-

there

impor-

which can be understood only in connection with

those branches of the law.

Such are the presumptions as

to the ownership of property, as to consideration for a bill

of exchange, as to insurance.

many

of the incidents of the contract of

Passing .over

all

these,

I

have embodied in

Chapter XIV. those presumptions only which bear upon the proof of facts likely to be proved on a great variety of different occasions,

and those estoppels only which

of matters of

as distinguished from those which arise

fact,

arise out

upon deeds or judgments.

NOTE XXXVIL (to Article 94).

The presumption

of innocence belongs principally to the

Criminal Law, though

it

has, as the illustrations show,

bearing on the proof of ordinary "

What doubts

to the Criminal

facts.

The

a

question,

are reasonable in criminal cases ?" belongs

Law.

;

A DIGEST OF

i66

NOTE

LNotes.

XXXVIII.

(to Article ioi).

The

first

part of this article

omnia esse

the presumption,

T. E.

ss.

124, &c.

sumptions,

is

;

Best,

s.

is

meant

to give the effect of

rite acta, i

353, &c.

a very vague and

Ph. Ev. 480, &c. This, like

all

fluid rule at best,

pre-

and

is

applied to a great variety of different subject-matters.

NOTE XXXIX. (to Articles 102-105).

These

embody

articles

the principal cases of estoppels in

pais, as distinguished from estoppels

As they may be applied infinitely various

circumstances,

rules has involved a

good deal of

the cases. cases

is

The

latest

s.

I

The

detail.

;

and most extensive

T. E.

ss.

to

rules

them-

careful examination of

and many others are

Ph. Ev. 350-3

record.

ways and

application of these

to be seen in 2 S. L. C. 85 1-880,

referred to in the text too,

the

enough on a

selves appear clearly

by deed and by

in a great variety of

collection of

where the cases See,

abstracted.

88-90, 776, 778; Best,

543Article 102 contains the rule in Pickardv. Sears, 6 A.

& E.

474, as interpreted and limited by Parke, B., in Freeman Cooke, 6 Bing. article is

174,

179.

The second paragraph

founded on the application of

of a negligent act causing fraud.

The

this rule to the rule,

v.

of the case

as expressed,

;,

:

is

of Ireland

Evans, 5 H. L. 389

v.

;

Swan

and Australasian Company, which was before see 175,

v.

British

three Courts,

2 H. & C. C. B. (N.S.) 448 ; 7 H. & N. 603 where the judgment of the majority of the Court of

7

;

Exchequer was reversed

;

and Halifax Guardians

wright, L. R. 10 Ex. 183, in which

All of these refer to

to.

167

from a comparison of the following cases

collected

Bank

LAW OF EVIDENCE.

THE

Notes.]

all

v.

Wheel-

the cases are referred

Young v. Grote

(4 Bing. 253),

authority has always been upheld, though not always

and

its

on the

same ground. It

would be

way

gradual

in

difficult to

find a better illustration of the

which the judges construct

as circumstances require

it,

than

is

rules of evidence,

afforded

by a study of

these cases.

NOTE (to

The law

as to the

XL.

Chapter XV.).

competency of witnesses was formerly

the most, or nearly the most, important and extensive branch

of the

Law

of Evidence.

Indeed, rules as to the incom-

petency of witnesses, as to the proof of documents, and as to the proof of

some

particular issues, are nearly the only

rules of evidence treated of in the older authorities.

part of

Bentham's 'Rationale of Judicial

directed to

Great

Evidence'

is

an exposure of the fundamentally erroneous

nature of the theory upon which these rules were founded

and

his attack

complete that

upon them has met with a success so nearly has itself become obsolete. The history of

it

;

1

A DIGEST OF

68

the subject ch.

to be found in Mr. Best's work,

is

132-188.

ss.

ii.

As

177-81.

[Notes.

book

i.

part

i.

See, too, T. E. 1210-57, and R. N. P.

to the old law, see

NOTE

i

Ph. Ev. 1-104.

XLI.

(to Article 107).

The

authorities for the first paragraph are given at great

length in Best,

paragraph T. E.

s.

1

2,

ss.

146-165.

see Best,

241.

s.

See, too, T. E.

148

;

i

Ph. Ev. 7

The concluding words

;

As

s.

1240.

2

Ph. Ev. 457

to

of the last paragraph

are framed with reference to the alteration in the law as to the

competency of witnesses made by 32

The

practice of insisting

on a

&

33 Vict.

child's belief in

c. 68.

s.

4.

punishment

in a future state for lying as a condition of the admissibility

of

its

evidence leads to anecdotes and to scenes

culated to

administration

The

of justice.

seem

to render this unnecessary.

ately

and advisedly

state is a

little

cal-

increase respect either for religion or for the statute referred to

If a person

rejects all belief in

competent witness, a

fortiori, a

who

would dehber-

God and a future child who has re-

ceived no instructions on the subject must be competent also.

NOTE

XLII.

(to Article 108).

At

Common Law

the parties

were incompetent in

removed

all

and their husbands and wives

cases.

as to the parties in

civil,

This

incompetency was

but not in criminal cases,

THE LAW OF EVIDENCE.

Notes.]

by 14

&

wives,

by 16

15 Vict.

&

reserved the

c.

99,

2

s.

17 Vict.

c.

;

and as to

Common Law

their

But

i, 2.

ss.

83,

169

husbands and

sec. 2 expressly

and pro-

as to criminal cases

ceedings instituted in consequence of adultery.

The words Vict.

c.

68,

s.

relating to adultery 3,

which

is

were repealed by 32

Persons interested and persons

who had been

33

convicted of

certain crimes were also incompetent witnesses,

&

incompetency was removed by 6

The

&

the authority for the next article.

but their

7 Vict. c. 85.

text thus represents the effect of the

Common Law as

varied by four distinct statutory enactments.

By 5 & 6 Will. IV. c. 50, s. 100, inhabitants, &c., were made competent to give evidence in prosecutions of parishes for non-repair of highways,

other cases by 3

& 4 Vict. c.

have been repealed by 37 Statute this

Law

and

this

&

was extended to some

These enactments, however,

2 6.

38 Vict.

c.

and

35,

c.

was done under the impression

were rendered obsolete by 14

&

parties admissible witnesses.

raised

upon the

effect

of

this,

that the enactments

15 Vict.

made

96 (the

Probably

Revision Acts, 1874), respectively.

A

c.

99,

s.

2,

which

question might be

as sec. 3 expressly excepts

criminal proceedings, and a prosecution for a nuisance

such a proceeding.

The

result

would seem

is

to be, that in

cases as to the repair of highways, bridges, &c., inhabitants

and overseers are incompetent,

unless, indeed, the Courts

should hold that they are substantially to

which see R.

v.

Russell, 3 E.

&

civil

B. 942.

proceedings, as

A DIGEST OF

lyo

NOTE

[Notes.

XLIir.

(to Article iii).

The

cases

on which these

Nisi Prius decisions

eminence

(i Ph.

;

articles are

founded are only

but as they are quoted by writers of

Ev. 139; T. E.

s.

859), I

have referred to

them.

In the

trial

of Lord Thanet, for an attempt to rescue

Arthur O'Connor, Serjeant Shepherd, one of the special commissioners, before

whom

Maidstone, gave evidence, R. I

the riot took place in court at v.

Lord

Thanet, 27 S. T. 836.

have myself been called as a witness on a trial for perjury

to prove

what was said before

The

bitrator.

trial

me when

an

sitting as

ar-

took place before Mr. Justice Hayes at

York, in 1869.

As of a

to the case of

trial

in

an advocate giving evidence

which he

is

cases cited and discussed in Best,

ss.

184-6.

In addition to those cases, reference trial

of

Home Tooke

in the course

professionally engaged, see several

may be made

for a libel in 1777,

to the

when he proposed

to call the Attorney-General (Lord Thurlow), 20 S. T. 740.

These cases do not appear rule,

it is

for obvious reasons

to

show more than

that, as

a

improper that those who con-

duct a case as advocates should be called as witnesses in it.

Cases, however, might occur in which

lutely necessary to

do

so.

For instance, a

as an advocate might, not at

ing witness to a deed or

will.

all

it

might be abso-

solicitor

engaged

improbably, be the

attest-

LAW OF EVIDENCE.

THE

Notes.]

NOTE

171

XLIV.

(to Article 115).

This

sums up the

article

cations, every part of

and ss.

much

to

832-9

;

M.

&

K.

communi-

explained at great length, i

Ph. Ev. 105-122

It is so well established

581.

s.

;

T. E.

and so plain

requires only negative illustrations.

it

stated at length I

is

the same effect in

Best,

in itself that

rule as to professional

which

by Lord Brougham

in

Greenough

v.

It is

Gaskell,

98.

NOTE

XLV.

(to Article 117).

The

question whether clergymen, and particularly whether

Roman

Catholic

confessions

priests,

made

can

them

to

be compelled

solemnly decided in England, though writers that they can.

See

R. N. P. 190; Starkie, 40. length in Best,

to

disclose

professionally has never

Ph. Ev. 109

i

stated

it is

T. E.

;

been

by the ss.

The question is discussed

text

837-8'; at

some

583-4; and a pamphlet was written to

ss.

maintain the existence of the privilege by Mr. Baddeley in 1865.

Mr. Best shows clearly that none of the decided

cases are directly in point, except Butler Nally, cited

253-4),

in these

made

in arguing

Du

Pea. 108).

The

by Garrow

Lord Kenyon is

and possibly R.

(i

words

:

"

The

v.

v.

Moore (Mac-

Sparkes, which

Barri

v.

was

Livette before

report of his argument

prisoner

being

a Papist, had

a confession before a Protestant clergyman of the

A DIGEST OF

172

crime for which he was indicted

;

[Notes.

and

that confession

was

permitted to be given in evidence on the trial" (before

BuUer, report

J.),

"and he was

The

convicted and executed."

of no value, resting as

is

does on Peake's note of

it

Garrow's statement of a case in which he was probably not ; and it does not appear how the obwas taken, or whether the matter was ever argued. Lord Kenyon, however, is said to have observed: "I

personally concerned jection

I

admitted the evidence there

is

in a few words, that the privi-

should have paused before admitted."

Mr. Baddeley's argument

must have been recognised when the Roman Catholic

lege

religion

was estabhshed by law, and that

has never been

it

taken away.

modern Law of Evidence is not so old as the Reformation, but has grown up by the practice of the Courts, and by decisions in the course of the last two centuries. It came into existence at a time when excepthink that the

I

Roman

tions in favour of auricular confessions to priests

were not

likely to

every person must

be made.

testify to

to the general rule has

The

Catholic

general rule

what he knows.

been established

An

is

that

exception

in regard to legal

nothing to show that

extends to

advisers, but there

is

clergymen, and

usually so stated as not to include them.

This (Sir

is

it is

it

the ground on which the Irish Master of the Rolls

Michael Smith) decided the case of Butler

1802 (MacNally, Ev. 253-4).

It

Roman

matter which he said he knew,

if at all,

said, " It

Moore

was a demurrer to a

administer interrogatories to a

The Judge

v.

in

rule to

Catholic priest as to professionally only.

was the undoubted,

legal constitutional

THE LAW OF EVIDENCE.

Notes.]

right of every subject of the

upon a

ing, to call

know make

realm

who has

a cause depend-

what he may

fellow-subject to testify

of the matters in issue

173

and every man

;

by law.

It

was candidly admitted, that no

bound

is

to

and protected

the discovery, unless specially exempted

special

exemption

could be shown in the present instance, and analogous cases

and principles alone however, was

rrot

were relied

The

upon."

analogy,

considered sufficiently strong.

Several judges have, for obvious reasons, expressed the strongest disinchnation to

compel such a

Best, C. J., said, " I, for one, will never to disclose if

communications made to him by a prisoner

he chooses to disclose them

dence"

Thus

disclosure.

compel a clergyman

in

{obiter,

Broad

son, B., thought (rather feeling than

as

it

them

I shall receive

3 C.

v. Pitt,

&

P. 518).

;

but

in evi-

Alder-

would seem as a matter of good

a matter of positive law) that such evi-

dence should not be given.

R.

v.

6 Cox, Cr. Ca.

Griffin,

219.

NOTE

XLVI.

(to Articles 126, 127, 128).

These

articles relate

to matters almost

too

famiUar to

require authority, as no one can watch the proceedings of

any Court of Justice without seeing the

them continually enforced. length in 2 Ph. Ev.

&c.

;

tions,

see, too, Best, it is

said,

pt. 2, s.

The

chap.

631, &c.

" It is entirely

x. p.

L.R. N.P. 182.

is

456, &c.

;

down

in

discussed at T. E.

s.

1258,

In respect to leading quesa question for the presiding

judge whether or not the examination fairly,"

rules laid

subject

is

being conducted

—

A DIGEST OF

174

NOTE

[Notes.

XLVII.

(to Article 129).

This

article

what

states

now

is

and

practice of the Courts,

the well-established

never was more strikingly

it

illustrated than in the case referred to in

But the practice which

it

represents

the illustration.

modern

is

;

and

may

it

perhaps be doubted whether upon solemn argument

would be held that a person who fact,

is

it

called to prove a minor

not really disputed, in a case of

little

importance,

thereby exposes himself to having every transaction of his past

life,

however

private, inquired into

by persons who

may wish

to serve the basest purposes of fraud or revenge

by doing

so.

inflicted,

fact

that

and been attended

to

a

answer upon oath a

series

extending over

wound had been

slight

by him, would

under pretence of testing his credit,

affairs,

man were

Suppose, for instance, a medical

called to prove the

to

it

be

lawful,

compel him to

of questions as to his private

many

years,

transactions of the most delicate

and tending

and

to expose

secret kind, in

which

the fortune and character of other persons might be in-

volved

?

If this

is

the law,

it

should be altered.

following section of the Indian Evidence Act (i

may

perhaps be deserving of consideration.

rising, in sec. 147,

the

The

of 1872)

After autho-

questions as to the credit of the witness,

Act proceeds as follows

in sec.

148

:

" If any such question relates to a matter not relevant to

the suit or proceeding, except in so far as

of the witness

by injuring

it

affects the credit

his character, the

Court

shall

—

THE LAW OF EVIDENCE.

Notes.]

i/S

decide whether or not the witness shall be compelled to

answer is

and may,

it,

Court

shall

thinks

if it

not obliged to answer

it.

fit,

warn the witness

In exercising

that

have regard to the following considerations

" (i) Such questions are prbper

he

this discretion, the :

they are of such a

if

nature that the truth of the imputation conveyed by them

would seriously

affect

the opinion of the Court as to the

credibility of the witness

" (2)

on the matter

which he

to

Such questions are improper

which they convey

if

the

testifies.

imputation

remote in time, or

relates to matters so

of such a character that the truth of the imputation would

not

or would affect in a slight degree, the opinion of

affect,

the Court as to

th,e credibility

of the witness on the matter

to which he testifies.

" (3) Such questions are improper

if

there

is

a great dis-

proportion between the importance of the imputation against the witness's character

made

and the iniportance of

his

evidence.''

NOTE

XLVIII,

(to Article 131).

The words of meant 22.

A

impeach he may,

&

the two sections of 17

to be represented

by

party producing a witness his credit

18 Vict.

this article are as follows sTiall

c. :

125,

—

not be allowed to

by general evidence of bad character ; but

in case the witness shall, in the opinion of the

judge, prove adverse, contradict

him by other evidence,

by leave of the judge, prove that he has

made

or,

at other times

a statement inconsistent with his present testimony; but

A DIGEST OF

176

[Notes.

before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate

the particular occasion, must be mentioned to the witness,

and he must be asked whether or not he has made such statement. 23. If a witness,

cause,

upon cross-examination as

made by him

statement

and inconsistent with

distinctly

to a former

relative to the subject-matter of the

his present testimony, does not

admit that he made such statement, proof may be

given that he did in fact

make

it

;

but before such proof can

be given, the circumstances of the supposed statement, sufficient

designate the

to

mentioned

to the witness,

not he has

made such

The this,

particular

occasion,

statement.

sections are obviously ill-arranged

s.

22

is

so

must be

and he must "be asked whether or

worded

;

but apart from

to suggest a doubt

as

whether

a party to an action has a right to contradict a witness called

by himself whose testimony

The words

is

adverse to his interests.

" he may, in case the witness shall, in the opinion

of the judge, prove adverse, contradict him by other evidence," suggest that he cannot do so unless the judge opinion.

This

V. Eccles,

5 C. B.

is

not,

and never was, the

law.

is

of that

In Greenough

(N.S.), p. 802, Williams, J., says

law was clear that you might not discredit your

own

:

"

The

witness

by general evidence of bad character but you might, nevertheless, contradict him by other evidence relevant to the ;

issue

;

"

and he adds

(p.

803)

that the Legislature could

any

own

fetter

:

" It

is

impossible to suppose

have really intended to impose

whatever on the right of a party to contradict his

witness by other evidence relevant to the issue—a right

:

LAW OF EVIDENCE.

THE

Notes.]

177

not only establishedty authority, but founded on the plainest

good

sense." said of the 22 nd section

Lord Chief Justice Cockburn

"There has been a great blunder

in the' drawing of

on the part of those who adopted the better course

is

have omitted

Case

it

was

&

(2 Br.

writing

as to

On

Common Law

Procedure Act

Queen

Caroline's

Bing. 286-291), that a witness could not be

had been

first

proved.

made The

in writing, unless the effect of this rule in

was that a witness could not be cross-examined

what he had said before the magistrates without putting

in his deposition,

Upon

the reply.

by the judges

came

useless (p. 806)."

held, in accordance with

cross-examined as to statements

criminal cases

and

it.

For many years before the of 1854

and

to consider the second branch of the

section as^ltogether superfluous this authority I

it,

..." Perhaps

it."

and

c.

were issued

when the Prisoner's Counsel Act The rules are pubUshed in 7 C. &

They would appear

the 28 Vict.

gave the prosecuting counsel

in 1837,

into operation.

P. 676.

this

this subject rules of practice

to have been superseded by"

18.

NOTE The Statute Law relating

XLIX.

to the subject of evidence

may be,

regarded either as voluminous or not, according to the vifew taken of the extent of the subject.

The

number of

"Evidence"

in

statutes

Chitty's

classified

'Statutes'

is

under 35.

the

head

The number

referred to under that head in the Index to the

'

Revised

N

—

A DIGEST OF

178

Statutes

'

is

Many

39.

[Notes.

of these, however, relate only to the

may

proof of particular documents, or matters of fact which

become

material under special circumstances.

Of these

have noticed a few which, for various reasons,

I

Such are

appeared important. (see

19 s.

& 3

11);

20 Vict.

&

3

;

42,

c.

7

article

I.

c.

10,

Will.

;

24

s.

6

& ;

III. c.

c.

6

&

c.

j

42 (see

35 3,

&

30

& 31

c.

90,

s.

2-4; 39

9 Geo. IV.

;

Vict.

&

c.

35,

24

c.

&

6,

40 Geo.

c.

14,

12 Vict.

s.

6 (article 34)

&

;

28,

s.

11,

25 Vict.

c.

96,

c.

;

8

&

(article 121)

4

s.

&

11

8 Geo. IV.

in;

19

s.

;

37 (see article 56)

s.

36 Vict

ss.

14,

112,

c.

amended by

i,

article 28)

7 Will. IV. c.

25 Vict.

35 Vict.

13 (see article 17)

s.

12 (article 38); 7

c.

amended by 116

97,

4 Will. IV.

17 (article 33)

s.

James

s.

c.

IV.

Geo.

9

&

34

:

III. c.

;

93

9 Vict.

&

7

8

(article

122).

Many,

again, refer to pleading

and practice rather than

evidence, in the sense in which I employ the word.

Such

are the Acts which enable evidence to be taken on com-

mission

if

a witness

is

abroad, or relate to the administra-

tion of interrogatories. relate directly to the subject of evidence,

Those which as

defined

Acts

in

the

Introduction,

are

the

ten

following

:

46 Geo. III. qualifies

c.

37

(i

section; see article 120). This Act

the rule that a witness

is

not bound to answer

questions which criminate himself by declaring that he

excused from answering questions which liability.

fix

is

him with a

not civil

— THE

Notes.]

66-7

Vict.

c.

LAW

OF EVIDENCE.

179

Act abolishes incompetency from

85. This

interest or crime (4 sections

;

see article 106).

3-

86-9

Vict.

c.

113:

"An

in evidence of certain

August, 1845 S.

I,

;

Act

ofiEicial

to facilitate the admission

and other documents" (8th

7 sections).

preamble reciting that many documents

after

are,

by various Acts, rendered admissible in proof of certain particulars if authenticated in

a certain way, enacts

inter alia

that proof that they were so authenticated shall not be re-

quired S. 2.

judges. S. 3.

if

they purport to be so authenticated.

(Article 79.)

be taken of signatures of certain

Judicial notice to

(Article 58, latter part of clause 8.)

Certain Acts of Parliament, proclamations, &c.,

be proved by copies purporting to be Queen's

may

printer's copies.

(Article 81.) S. 4.

Penalty for forgery, &c.

This

is

omitted as belong-

ing to the Criminal Law.

Local extent and commencement of Act.

Ss. s, 6, 7.

4.

14 6- 15

Vict.

c.

99:

"An

Act to amend the Law of

Evidence," 7th August, 1851 (20 sections) S.

I

repeals part of 6

&

7 Vict. c. 85,

:

which

restricted the

operation of the Act. S. 2

cases.

makes

parties admissible witnesses, except in certain

(Effect given in articles 106 1^ rnS

^

N

2

A DIGEST OF

i8o

S. 3.

Persons accused of crime, and their husbands and

wives, not to be S. 4.

The

instituted in

(Effect of repeal,

Repealed by 32

and of

s.

&

33

3 of the last-named

article 109.)

None

of the sections above mentioned to affect the

Act of 1838,

as part of the S. 6.

(Article 108.)

three sections not to apply to proceedings

consequence of adultery.

Act given in

Wills

competent

first

Vict. c. 68.

S. 5.

[NOTES.

Law

7 Will.

IV. and

(Omitted

Vict. c. 26.

i

of Wills.)

The Common Law Courts

authorised to grant in-

spection of documents. (Omitted as part of the

Law

of Civil

Procedure.) S.

Mode

7.

proving

of

proclamations,

treaties,

&c.

(Article 84.) S. 8.

Proof of qualification of apothecaries.

(Omitted as

part of the law relating to medical men.) Ss. 9, 10, II.

Documents admissible

either in

England or

in Ireland, or in the colonies, without proof of

admissible in S.

12.

all.

seal, &c.,

(Article 80.)

Proof of registers of British ships.

(Omitted as

part of the law relating to shipping.) S. 13.

(Omitted as be-

Proof of previous convictions.

longing to Criminal Procedure.) S. 14.

Certain documents provable by examined copies,

or copies purporting to be duly certified.

(Article 79, last

paragraph.) S.

15.

Certifying

false

documents

a

misdemeanour.

(Omitted as belonging to Criminal Law.) S. 16. S.

17.

Who may

administer oaths.

(Article 125.)

Penalties for forging certain documents.

as belonging to the Criminal Law.)

(Omitted

'

— LAW OF EVIDENCE.

THE

Notes.]

S. i8.

Act not to extend to Scotland.

S. 19.

Meaning of the word "Colony."

note

i8i

(Omitted.) (Article

80,

I.)

Commencement

S. 20.

of Act.

5-

17 &> 18

Vict.

c.

125.

The Common Law Procedure Act

of 1854 contained several sections which altered the

Law

of Evidence.

How

S. 22.

Articles, 131,

a party

far

133

;

may

discredit his

witness.

Proof of contradictory statements by a witness

S. 23.

under cross-examination.

(Article 131.)

Cross-examination as to previous statements in

S. 24.

(Article 132.)

writing.

Proof of a previous conviction of a witness may be

S. 25.

given.

(Article

130

Attesting

S. 26.

(i).)

witnesses need

writing requires attestation by law. S. 27.

49 and

own

and see Note XLVIIL)

not be

unless

called

(Article 72.)

Comparison of disputed handwritings.

(Articles

52.)

After several Acts, giving rehef to Quakers, Moravians,

and

Separatists,

who

measure was passed

objected to take an oath, a general

for the

same purpose

in 1861.

6.

24 d^ 25 S. I.

motives 1

23-)

Vict.

c.

66 (ist August, 1861, 3 sections)

:

Persons refusing to be sworn from conscientious

may make

a declaration in a given form.

(Article

— A DIGEST OF S. 2.

Falsehood upon such a declaration punishable as (Do.)

perjury. S. 3.

28 S.

Commencement

Vict.

I.

c.

s. 4.

of

Act

18 (9th May, 1865, 10 sections)

Sections

3

criminal as well as S. 3.

[Notes.

—8

to apply to all courts

civil.

Re-enacts 17

&

:

18 Vic.

c.

125,

s.

22.

and causes,

— LAW

THE

Notes.]

OF EVIDENCE.

embodied (where necessary)

Interpretation clauses

S. 5.

183

in Article 83.

Act to be cumulative on

S. 6.

Common

Law.

(Implied

in article 73.) 9-

32 dv 33

c.

&

17 Vict.

83,

c.

given in article 109 S. 2.

68 (9th August, 1869, 6 sections)

Repeals part of 14

S. I.

of 16

Vict.

;

s.

&

15 Vict.

(The

2.

c.

99,

4,

and part

effect of this repeal is

and see Note XLII.)

Parties competent in actions for breach of promise

of marriage, but must be corroborated.

and

s.

:

(See articles 106

121.)

S. 3.

Husbands and wives competent

in proceedings in

consequence of adultery, but not to be compelled to answer certain questions. S. 4.

(Article 109.)

Atheists rendered competent

witnesses.

(Articles

106 and 123.) S. 5.

Short

S. 6.

Act does not extend to Scotland.

title.

10.

33 ^ 34 S. I.

^i<^-

'•

49 (9th August, 1870, 3 sections)

Recites doubts as to meaning of " Court "

"Judge"

in

s.

4 of 32

meaning of those words.

&

33 Vict.

(The

c.

effect

given in the definitions of " Court" and I,

and

:

in

s.

68,

Short

S. 3.

Act does not extend

and

defines the

of this provision

"Judge"

125.)

S. 2.

and

title.

to Scotland.

is

in article

1

DIGEST OF THE LAW OF E VIDENCE.

84

[NOTES.

These are the only Acts which deal with the Evidence as

I

have defined

It will

it.

Law

of

be observed that they

— the competency of witnesses,

relate to three subjects only

the proof of certain classes of documents, in the practice of

and

examining witnesses.

certain details

These

provided for twice over, namely, once in 17 125,

c.

ss.

details are

&

22-27, both inclusive, which concern

ceedings only; and again in 28 Vict.

c.

18, ss.

18 Vict, civil

pro-

3-8, which

re-enact these provisions in relation to proceedings of every kind.

Thus, when the Statute

and put

sifted

is

system,

it

The

it.

which

Law upon

the subject of Evidence

in its proper place as part of the general

appears to occupy a very subordinate position in ten statutes above mentioned are the only ones

really

form part of the

effect is fully

given in twenty

Law ^

of Evidence, and their

articles

of the Digest,

some

of which contain other matter besides.

'

I.

49.

52.

58, 72, 79, 80,

123, 125, 131, 132, 133.

81,

83, 84,

106,

108, 109,

120, 121,

;

INDEX. Abortion, 33. Accomplices, evidence

of, 1 1 8.

"Action," an, definition of, 2. Acts of conspirators, 6 ; illustrations of, 7. showing intention, good faith, &c., 15 ; illustration of, Acts of notifications, relevancy of statement in certain, 45. ,

17.

of Parliament, 79of State, judgments, &c. foreign and colonial, 82.

Admissions defined, 22

;

who may make, and when, 23 ;

illustrations

of, ib.

by agents and persons

•

jointly interested with parties,

illustrations of, 25.

by strangers to an by person referred

made without

action, 26.

to

by

prejudice,

party, 27

;

illustration of,

ib.

ib.

of evidence, improper, 130.

Adultery, competency of witnesses in proceedings relating ,

to, ill.

letters as evidence in cases of, 84.

Advocates' privileges as to certain questions,

1 1 2.

Aifairs of State, evidence as to, 112.

Agent, estoppel

of, 108.

Art, opinions of experts on points

of, 55-

Attestation of documents thirty years old, 85.

Attesting witness, cases in which he need not be called, 73. , proof of, when he denies the execution, 74.

Bailee, estoppel of, 108.

Bankruptcy, 10, 31, 84, 106. Barristers, privileges as to certain questions, 112,

24

INDEX.

i86

Bastardy, evidence in cases

of, 1 1 8.

Bigamy, 50, 99. Bills of Exchange, 98.

Bills of

,

fictitious, 18.

,

forged, 52.

,

estoppel of acceptor

of,

107.

Lading, 108.

Birth, evidence of, 36.

Burden of Proof,

97.

Business, declarations .

made

in the course of, 33.

when

existence of course of,

relevant,

20

;

illustratiom

of, ib.

Cases in which secondary evidence relating to documents

may be

given, 69.

Cases in which attesting witness need not be called, 73.

payment

Certified copies,

for, 78.

of evidence, 68.

Character, evidence

of,

,

when

,

as affecting

in criminal cases, 60.

relevant and

when

not, 60.

damages, 61.

Charts, relevancy of statements in, 46.

Cheques, 107.

Clergymen may be compelled Collisions between ships, 52. Collusion may be proved, 54.

to disclose communications, 116.

Colonial Proclamations, 82.

Commission of offences, information

Common,

right

of,

as to, 113.

38.

Communications during marriage, 112. ,

professional, 114; ilhistrations of, 115. with legal advisers, 115. to medical men and clergymen must be disclosed,

116.

Comparison of handwritings, 59. Competency of witnesses, 1 10. of jurors, 113.

" Conclusive

proof," definition of, 2

;

illustrations of, 3.

Conduct, estoppel by, 105. Confession,

when deemed

voluntary, 29.

;

INDEX.

187

Confessions defined, 28.

caused by inducement, threat or promise, when irrelevant in criminal proceeding,

ib.

;

illustrations of, 29.

made upon oath, 30 illustrations of, made under a promise of secrecy, ib. ;

31.

in trial for felony, 65.

Confidential communications with legal advisers, 115. Conspirators, acts

of,

6

illustrations of,

;

showing intention, good

ib.

&c. 15. Construction of documents, 91. Contract, evidence of terms of, reduced to a documentary form, Copies, certified, examined, and office, 68.

Corroboration,

when

Council, Orders

" Court,"

required, 118.

in, 80.

definition of,

I.

Criminal cases, evidence of character ,

faith,

in, 60.

competency of witnesses

in, 1 1 1.

Crimination of witnesses, 117. Cross-examination of witnesses, 121. , to what matters it must be directed, 122. questions lawful in, 123.

,

as to previous statements in writing, 125.

Customs, 8

;

illustrations of,

Damages, character

ib.

as affecting, 61.

Death, dying declaration as to cause ,

presumption

of,

Debtors, process against, 27. Deceased persons, statements by, ,

of,

32.

from seven years' absence, 103.

when

relevant, 31.

what matters may be proved in reference

to relevant

declarations by, 127.

"Declarant," 32. Declaration, 32. ,

Declarations

dying, loi.

made

in the course of business or professional duty,

33

illustrations of, 34.

against interest, 35 ; illustrations of, 36. by testators as to contents of will, 38. as to public

and general

as to pedigree,

40 ;

rights,

38

;

illustrations of, 39.

illustrations of, 41.

INDEX. Deeds, presumption as to sealing and delivering, 85. of, to complete title, 105. Depositions before magistrates, 42.

&

under 30 Disgavelling, 50. Divorce, evidence

" Document,"

31 Vict.

c.

35,

s.

6, 44.

in, 49.

definition of, 2

illustrations

;

,

proof of execution

,

proof

,

production

of,

of a,

3.

required by law to be attested,

72. of,

not required by law to be attested, 74. of, 75.

examined copies of, 75. called for and produced on

,

notice, given

as evidence,

128.

refused on notice used as evidence, 129. Documentary evidence, primary and secondary, and

—

attested docu-

ments, 67. ,

modification and interpretation

of,

by

oral evi-

dence, 88. form, evidence of terms of contract, &c., reduced to, 88. Documents, proof of contents of, 67. , by primary evidence, 68. cases in which secondary evidence relating to may be ,

,

given, 69. ,

proof of public, 75. admissible throughout the Queen's dominions, 78.

-,

Queen's printers' copies

and

,

colonial

,

presumption as to date

,

'

alterations of, 86, 87.

—

,

proper custody

,

,

of,

85.

alterations, 86.

,

construction

of,

thirty years old, 85.

,

—

,

of, 84.

stamp

,

— — — —

of, 79.

foreign, as evidence, 82.

of, 85.

91.

what evidence may be given foreign words in, 92.

for the interpretation of, 91.

technical terms in, 92. a person in possession could refuse to produce, 117. Dying declaration as to cause of death, 32 ; illustrations of, ib. ,

,

declarations, loi.

INDEX. Effect of evidence, 97.

judgment not pleaded as an estoppel, Embezzlement, 115.

5

1 ;

iUtistrahons

of, ib.

Entries in tradesman's books, 46.

Estoppel, effect of judgment not pleaded as an, 51.

by conduct, 105. of tenant and licensee,

——

107.

of acceptor of bill of exchange, 107. of bailee, 108. of agent, 108.

of licensee, 108.

Estoppels and presumptions, 102.

Evidence, definition

of, 2.

of birth, 36.

given in former proceeding vifhen relevant, 41. as to insanity, 55, 56.

of character in criminal cases, 60.

66 must be direct, ii. documentary, primary and secondary, and attested docu-

oral,

,

,

;

ments, 67. ,

examined copies

,

office copies of, 68.

of, 68.

the Gazette &% 81. of terms of contracts, grants, and other dispositions of property reduced to a documentary form, oral, in the modification and interpretation of documentary ;

-

i

evidence, 88.

may be

given for the interpretation of documents, ^l.

,

v?hat,

,

production and

-,

effect of, 97.

burden of proving

100; illustrations

of,

fact to

be proved to make

it

admissible.

lOl.

H2. what takes place in Houses of Parliament,

as to affairs of State, as to

1

13.

of accomplices, 118. in cases of bastardy, n8. of witnesses to be upon oath except in certain cases, 120.

— ,

exclusion

of,

to

contradict

answers to questions

testing

veracity, 124. ,

giving

,

using

notice, 129.

as,

as,

document called

for

and produced on notice, 128.

a document, production of which was refused on

INDEX.

igo

Evidence, improper admission and rejection

of,

130.

Examination-in-chief of witnesses, 121.

Examined

,

cross-, of witnesses, I2i.

,

re-,

,

to

of witnesses, 121.

what matters

cross-

and

re-,

must be directed, 122.

copies of evidence, 68.

Exchange, bills of. See Bills of Exchange. Execution of document, proof of, required by law to be attested,

72.

Exemplifications, 68, 76. certified copies of, 77-

,

made by an Experts, opinions ,

facts

of,

officer of the Court, 77-

on points of science and

bearing upon opinions

art, 55-

of, 57.

"Fact," definition of, i ; illustrations of a, 2, 3. burden of proof as to particular, 99. proving, to be proved to make evidence admissible, ,

,

100.

Facts in issue and relevant to the trations

issue,

4

;

may be

proved,

ib. ;

illus-

of, 5.

necessary to explain or introduce relevant facts,

1 1

;

illustra-

tions of, 12. ,

similar but unconnected,

1

5

;

illustrations of,

ib.

showing system, 19 ; illustrations of, ib. bearing upon opinions of experts, 57 ; illustrations of, ib. which need not be proved ^judicial notice, 62. of which the Court takes judicial notice, 62 ; proof of such, 64. admitted need not be proved, 65. proof of, by oral evidence, 66.

—

Faith, good, acts showing, 15.

Felony, 53. ,

confession

Fishery, right

in, 65.

of, 8.

Foreign and Colonial Acts of State, judgments, &c., 82. Foreign words in documents, 92. Forged Bills of Exchange, 52.

1

Forgery, 12.

Fraud, collusion, or want of jurisdiction,

Game

Laws, the

old, 100.

Gazette, the, as evidence, 81.

may be

proved, 54.

INDEX.

igr

General records of the realm, 76.

Government prosecutions, Grant, presumption of Grants, evidence

of,

113.

104 ; illustrations of, ib. reduced to a documentary form, lost,

Grounds of opinion, when

I

relevant, 59.

Handvi'riting, evidence of experts as to, 57, 58, 59. relevancy of opinion as to, 58 ; illustrations ,

Handwritings, comparison of, 59. Hearsay irrelevant except in certain cases, 22

He who High

affirms

;

to, ib.

illustration

to, ib.

must prove, 97.

treason, 119.

Houses of Parliament, evidence

as to

what takes place

in,

113.

Illegitimate children, 94, 102.

Impeaching

credit of witness, 126.

Imprisonment, wrongful, 106. Improper admission and rejection of evidence, 130. Incompetency of witnesses, no.

Inducement as a cause

for confession,

when

irrelevant in criminal pro-

ceedings, 28.

Information as to commission of offences, 113. Innocence, presumption of, 97. Insanity, 11. ,

evidence as

to, 5S> S^-

Insolvency, 18.

Insurance, 19, 90, 98, 99, 100. Intention, acts showing, 15.

,

Interest, declarations against, 35.

Interpretation of documentary evidence by oral evidence, 88.

of documents, what evidence

may be

given for the, 91

illustrations of, 93.

Involuntary confessions, 28. Irish statutes, proof

of, 79.

"Judge," definition of, I. Judges and advocates privileged as to certain questions,

"Judgment,"

definition of, 47.

1

12.

;

INDEX.

192

"Judgment,"

effect of,

not pleaded as an estoppel, 51

illustrations

;

of, ib.

Judgments, conclusive proof of their legal effect, 47 ; illustrations of, ib. conclusive as between parties and privies of facts forming ground of judgment, 48 ; illustrations of, 49. statements in irrelevant as between strangers, except in Admiralty cases, 50. -

of

generally irrelevant as between strangers, 52

;

illustrations

ib.

conclusive in favour of judge, 53 ,

-,

;

illustration of,

ib.

foreign, 54.

Acts of State, &c., foreign and colonial, 82. want of, may be proved, 54.

Jurisdiction,

Jurors,

competency

113.

of,

Lading, bills of, 108. Legal advisers, confidential communications with, 115. Legitimacy, presumption of, 102. Libel, 12, 18.

Licensee, estoppel

of,

108.

Lithographs as evidence, 67. Machinery, 106. Magistrates, depositions before, 42.

Maps, relevancy of statements

in, 46.

Marriage, validity of, 38. opinion as to existence ,

of,

when

relevant, 59.

communications during, 112. Medical men may be compelled to disclose communications, 116. ,

Memory,

refreshing, 128.

Mill-dams, 104. Modification and interpretation of documentary evidence by oral evidence, 88. Motive, preparation, subsequent conduct, explanatory statements, 9 illustrations of, 10.

Murder,

10.

Notice to produce, rules as to, 71. Notifications, Acts of, relevancy of statement in certain, 45.

Number

of witnesses, 119.

;

INDEX.

193

Oath, evidence to be upon, except in certain cases, 120. Oaths, form of, 121. ,

who

to have

is

power

to administer, 121.

Obsolete words in documents, 92. Occurrences similar to, but unconnected with the facts in issue, vant, except in certain cases, 1 5.

irrele-

Offences, information as to commission of, 113.

against

women,

127.

Office copies of evidence, 68.

Opinion generally

irrelevant, 55

as to handwriting,

— as to

relevant, 58

existence of marriage,

grounds

,

when

Opinions,

illustration of,

;

when

of,

when

when

;

ib.

illustrations of,

ib.

relevant, 59.

relevant, 59 ; illustrations of, when not, 55.

ib.

relevant and

of experts on points of science and

art,

55

;

illustrations

ofse. Oral evidence, 66 ; must be direct, ib, proof of facts by, 66. ,

in the modification

and interpretation of documentary

evidence, 88.

Orders in Council, 8q.

Parliament, Acts ,

of, 79.

Houses

of,

evidence as to what takes place

Partnerships, 106.

Pedigree, declarations as

to, 40.

Peerage cases, examined copies Photography as evidence, 67.

in, 76.

Plans, relevancy of statements in, 46.

Poisoning, 12, 13, 19, 20. ,

evidence as

" Presumption, A," as to ,

,

,

,

,

to, 56, 57.

definition of, 2.

documents, 84.

date of documents, 84.

stamp of a document, 85. sealing and delivery of deeds, 85. documents thirty years old, 85. alterations in documents, 86. of innocence, 97

and estoppels,

;

102.

illustrations of, 98.

in,

113.

INDEX.

194

Presumption of legitimacy, 102. of death from seven years' absence, 103. of lost grant, 104. of regularity, 105. of deeds to complete

Primary evidence, 67

;

title,

105.

proof of documents by, 68.

Printing, as evidence, 67.

Privileged communications, 115. Privileges of judges

and advocates as

to certain questions, 112.

Privy Council Orders, 81.

Proceedings relating to adultery, iii. Proclamation a relevant fact in recital, 45. Proclamations, Foreign and Colonial, 82. ,

Orders in Council, &c., 83.

Production of document

and

itself, 75.

effect of evidence, 97.

of title-deeds of witness not a party, 1 16. of documents which another person, having possession,

could refuse to produce, 117. Professional communications, 114.

duty, declarations

made

in the course

of,

33.

Proof, 62.

of facts of which the Court takes judicial notice, 64. of facts by oral evidence, 66. of contents of documents, 67. of documents by primary evidence, 68. of execution of document required by law to be attested, 72. of document not required by law to be attested, 74-

when

attesting witness denies the execution, 74-

of public documents, 75. of Irish Statutes, 79.

•

,

,

must be given by those who affirm, 97. burden of, 97. on whom the general burden lies, 98, illustrations of, burden of, as to particular facts, 99.

ib.

Property, evidence of terms of contracts, grants, &c., reduced to a documentary form, 88. Prosecutions, government, 113.

Provincial expressions in documents, 92.

Public ways,

8.

recurd, relevancy of entry in,

made

in performance of duty, 45.

INDEX. Public documents, proof officers

195

of, 75.

and documentary evidence, 90.

Queen's dominions, documents admissible throughout, 78. Questions, advocates privileges as to certain, 112. leading, to witnesses, 123.

,

lawful in cross-examination, 123. exclusion of evidence to

,

contradict answers

to,

testing

veracity, 124.

Rape, II, 127. Realm, general records of the, 76. Receiving stolen property, 16, 18. Recital of Proclamations a relevant fact, 45. Record Office, documents from, 76.

Records of the realm,

76.

Re-examination, 121. -,

to

what matters

it

must be

directed, 122.

Refreshing memory, 1 28. ,

right of adverse party as to writing used, 128.

Regularity, presumption

of,

105.

Rejection of evidence, improper, 130.

Relevancy,

i.

— of

-.

issue, ^ ,

facts, 5.

forming part of the same transaction as ; illustrations of 5.

facts

,

general definition of, 13 ; illustrations of existence of course of business, 20. of statements by deceased persons, 31.

of, ib.

of evidence given in former proceedings, 41. of entry in public record made in performance of duty, 45. of statement in certain acts or notifications, 45. of statements in maps, charts, and plans, 46.

of opinion as to handwriting, 58. -

of grounds of opinion, 59.

— of opinion

as to existence of marriage, 59-

and irrelevancy of character, Repairs, 37. Right of common, 38-

60.

in

INDEX.

196

Right of way, 39. Rights, public and general, declaration

as to, 38,

Riots, 12.

Royal Proclamations,

79.

Rules as to notice to produce, 71.

Sanity, 11.

evidence as

,

to, 5S1 S^-

Science, opinions of experts on points

of, 55.

Seals, official, 63.

Secondaiy evidence, 68. relating to documents, cases in

•

which

it

may be

given, 69.

Secrecy, confession

made under promise

of, 31-.

Seduction, 18.

Shipowner and underwriters,

48.

Ships, collisions between, 52. ,

State, ,

loss of, 99.

judgments in foreign and colonial evidence as to

Statement, relevancy of in certain in

Admiralty

acts of, 82.

affairs of, 112.

acts, 45.

judgments irrelevant as between strangers, except cases,

50

;

illustrations of,

in

ib.

inconsistent with present testimony

may be

proved, 125.

in writing, cross-examination as to previous, 125.

by deceased persons, what matters may be proved ence

in refer-

to, 127.

Statements by deceased persons Statutes, Irish, proof of, 79. Stolen property, receiving, 16, Strangers,, statements in ,

when

relevant, 31.

18.

judgments irrelevant as between,

judgments generally irrelevant as between, 52

50. ;

illustrations

of, ib.

Technical terms in documents, 92.

Tenant and licensee, estoppel Terms, definition of, i. of contract, evidence

of,

of,

107.

reduced to a documentary form, 88.

INDEX. Threat, as a cause for confession,

when

197

irrelevant in criminal proceed-

ings, 28. Title, 7 ; illustrations of, 8. Title-deeds, their production

Tradesmen's books, entries

by witness not a party,

116.

in, 46.

Treason, 119. Trespass on land, S3-

Underwriters and shipownei's, 48.

Unwritten laws, 62.

Veracity of witnesses, exclusion of evidence to contradict answers to questions testing, 124.

Voluntary confessions, 28, 65.

Water, right to use

Way,

of,

104, 105.

right of, 39.

Wells, 105. Will, contents ,

of, 38.

declarations

by

testators as to contents of, 38.

Wills, evidence as to, 94.

Witness, attesting, cases in which he need not be called, 73. -, proof of document, when he denies the execution, 74. not a party, production of title deeds by, 116. Witnesses, competency of, 1 10. ,

,

in criminal cases,

,

in.

proceedings relating to adultery, in. are incompetent, no, 122. -, in

•

-

who who may

no.

testify,

•

not

testify,

no.

- not to be compelled to criminate themselves, 117. -,

number

-,

examination

of, 119. of, 120.

be upon oath, except in certain cases, - forms of oath, 121. -, who is to have-power to administer oaths, 121. -,

evidence

-,

examination in

-,

cross-examination, 121.

of, to

chief, 121.

120.

INDEX.

198

Witnesses, re-examination, 121.

re-examination must , to what matters cross-examination and be directed, 122. ,

incompetent, 122.

,

leading questions, 123.

,

questions lawful in cross-examination, 123.

,

exclusion of evidence to contradict answers

to

questions

testing veracity, 124. -,

statements

inconsistent

with

present

testimony

may be

proved, 125. ,

cross-examination as to previous statements in writing, 125.

,

impeaching credit

,

refreshing

of,

memory,

126.

128.

right of adverse party as to writing used to refresh

memory,

128. ,

giving of evidence, document called for and produced on

notice, 128.

Women,

offences against, 127.

Writing used to refresh memory, right of adverse party as

to, 128.

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