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All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol -^ (meaning "CON- TINUED"), or the symbol y (meaning "END"), whichever applies. Maps, plates, charts, etc., may ba filmed at different reduction ratios. Those too large to be entirely included in one exposure are filme signifie "A SUIVRE", le symbole V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent Atre filmte A des Uiux de rMuction diff^ents. Lorsque le document est trop grand pour ttre reproduit en un seul clichA. il est film* A partir de I'angle supArieur gauche, de gauche A droite. et de haut en bas. en prenant la nombre d'images nAcessaire. Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 8 # F- ii''^ kS EVIDENCE, 1; lii' ;f .. 'SJ'.: 41 /> y/t^^ ^ EVIDENCE: 'osicMa a' / ^. .i ♦; ;-<^: ^t -11 R i 1 ?^ 3=UJ Mr •,\"^n'iiv.ii i'.o ,i>,rv'(i i a/ -VT^. ,Y v;( r'Ki i''i ;; I iH ! ja Ji/ ;/•. :r ,^.5^) ;^_ :ivi .1 r Mt uA f fill, PtiMtrv fl !>•>■ , ROPOSAL TO UNDERTAKE THIS WORK. 3, Neiv Square, Lincoln', Inn, lOM December, 1824. HAVING prepared a letter for, the pr.„ ,d -Ire-ed .„ .he W Chancelfcr «, the .e" „i,v -J practicabiHty of for™i„, , Code of the Uw ^'f should bi p„b.isl.ed. i„ „hich the pri„oipie,rd «"era rule, of th.. bran.h of Ju.JZtt eoncsely ...ted, and which „„,v serve L.Tl^ '"'" "' 'he plan propose.! i„ ,|,a, |,„„. ^ You have been mentioned :.o „e. a,a.. u„Ji. dual „ „,, ,„,„,^ ^„^ .__^^^^ ^^/ a.. UHi. to the subiecf / nnrl t - -n. j»»Mct; ?;•''=! !" ■.I- ▼ I PROPOSAL. ideas as to the outline of the plan, and I shall always jc Iiappy to aflbrd you any additional ill farm ati(le — it is to digest the whole body of the common law on this subject, so as exhibit, in a striking manner, all the rules and exceptions which are established or re- cognized as law. In doing this, the greatest care must be given/ not to admit mere circumstances and detaiU of facts, which belong only to particular cases, and which have no general application ; bttt^ at the name time, not to exclude any tkuig which may be necessary to a clear view of the subject, or which may be usefuL in so important a part of the practical jurisprudence of the country^ The form I propose, is that of a celebrated \% ork — Domat^ Civil Law, upon which 1 intend to offer a specimen in a digest of the New Bankrupt Law. I have cliosen this furm, after grcut con- f idorrticn, but shall be happy to bestow my appro- l/atiun upon any other which may be found here- after to be better adapted to this great object. I wish the authorities to which you refer, in suppoct of your propositions and cases, to be ntaftly staled in. tables at the end of t^e %Tork, ai'd r efe ff ad to by. words ib italics. This I recommend, the mind, partieularly of the student, will PROPCSAl. Til ""t be .li,.„,bed by.be p„pe.„., jj , „f »d the pr„fe„,„„ »„ be,„™e acc„,.„„ed ., ..e «»J .o .ekooHledge pl.i„ and ln^ntfore»ibU '.ook..«h.ch h.v. „o other ralue. .h.. A^ubtjjr., te reason ami ««« of a,.n. Thew table. -!«..»ed to cont«»|.^^' '»» ». > wienee. — f»«» im Sir WilliaB Jones, in ,p«jj ,, ^^^ ^^^^ «»U.ne o. Blackatone, .ays. .. If, indeed. !£ U«e, wh.ch he professed only to .ketch i. oJZ tary discourses, were filled up with ..actn^TTd P<.r.p.cui,y, Englishmen might hope « 1..^. ,» r";\ ' '"S'" 0/ 'Mr /«.., whici, wonl/i;,. but imle room for coo„o«r.y. e.c^ 1. X ! «r rlu PROPOSAL," u dep«nding on their particular circumstance* ; a work which every lover of humanity and peace roust anxiouMiy wish to see accompli, lied." To fulfil the wish of that great man, has been an object which has never ceaaed to employ my leisure hours, from the earliest days of my profes- sional pursuits ; and I sincerely hope, for the honor of-*he English Bar, to find a suflScieut number of able and aspiring men Aho wiU«^play a noble zeal, in effecting » purpose, as honorable to the mind which conceived it, as.it wi|l be beneficial to their country^whi!!! etfec^ed.^ ^"'^ ' * - When the whole code is coiapleted, and had been tome time before the public, various improv- ments w ill no dombt be suggested by a learned andyiiberal profession. Great additions may be made to the general rufes, by a careful examioAtiun of dll the partictflar dtuM; toany of which may be found to contain positions of more general af^lica^ tiortj than may at first a p pear, An^ when the rule is not well defined, oiMiniversaTin its application, these cases may be retained, as clear and scientific records of the varieties of essential circumstances, upon which our courts of law have decided : but which do no^ come with strictness under the deoo- mination of exceptions. The incongruities and contradictions which have unavoidably occured in the itiMc^^siQtf of age»,-will be thus brought 2»or«" i *, A PROPOSAL. i, "»meJiatcly to view ; and the able,, „o„. i„ the profe«,„„, „ay fiod an »n,plc field ■„ showing the ".o.tea,y n,e.h„d^f restoring principle, to .heir '-g...n.a.o s.a«o„-o„tr„l,ng, a, .hov em o,„„ " science ;he vague and dangerous innovation, of lojse and slovenly practice. Tl,„t .i „, ^i|; ,,.. 27':'! '" rr""""'" '''" '^-^ •"'' "eneficial •i">$». 1 am fully convinced, but 1 an. al.o well —J. -ha. this snlyect only re,„i.es to be col -need , .,h j„d,.en.. ^od^ration. and sound Tofe """"r*' "" '"^ "f'""' "o"" "f would k" * **' P"blir.^donb, v^hich iney must be under the public scrutinv ""ged, before th,s can be accomplished • and ^hou d even this sanction bewithheld*; tht^'i. Z ^ft a hope, that works which have received .he approbation of the profession, will a. le^. b^Ll as goo a„.,,„^. - '"^ -;'-U of individui^: •i^plorable co„fusi<,„ , ^j ,.^.^,^^^^ «" '» ^ '■ V t ^<>;'^^'^ ;V)> iff I*-'* it ^ PROPOiAL.^ afforded to some system, worthy of a great and enlightened nation. If to cherish this wish be a crime, 1 plead guilty, and I am willing to endure the ignominy which attaches to the lUMtod names of Blackstone and Jones, and to the memory of erery intellectual la'vyer this empire has ever pro- duced. With these observations, I leave the execution of the work to your own skill and judgment, — others will soon follow youjn the noble enterprise. .( I am. Sir, With best wishes for your success. Your obedient Servant, Crofton Uniacke. t i "i ' , •» 1 •"I PREFACE. i- 1 , :-1 Ml' i :"';'" *« '«-a! cou,id„atio„ If .h"' •;"'' ' lo the difficoltv of tk. . J : ° PfofessioD /"««. by adopting with ike ^Zl, '" "^ >" arrangement „f Domaf/f^^ *^"""" "'« felt any pecalia, v«„ratioo foAh "' f »'^»1«. "^'"I Law, b,„ have enter.2^. "'^''' "' ">* P^l-aps laudable, p.ejJiXt,t ''°.- '■"""' »'"' >« certainly .he^ can bZol '''"'''anUge , '""ice ^ho„ld prevent J 'T"' ' ""' P'^' ^^l^J-icum^^l^arra '""'* ""*'' "'*" ".'" '■^•^"sary, arrt-iffS; ^'"'•'«"M ^-«'-«' age. to bHng ..„-:-^,;;j^ XII PREFACE. proof of the advantages arising from ^ clear sys(eni of arrangement, I might na-jntion Mr. Cruise, and several other most distinguished writers. Second!}/, Although far short of the perfection, which we may- hope to see accomplished in die ait of generalizing 'deas upon legal suhj fits, I l.ave ciuleavoured to avoid the statement of me^e circumstantial details, and to give as general and cumpiehensive extent to the propositions, as the nature of the subject would admit. And thirdly, I have given the points of cases, which, as they form a distinct, and subordinate part of the plan, I have put into a smaller type, in a method in some degree qorre- :»ponding with tl^at adopted by Mr. Justice Bayley, in his most excellent treatise on the law of bills of exchange. It will be observed, that, in f'ome in- stances, I have given a full collection of the cases / on a subject ; in ttthers, only a few, in the nature of iliustrations ; and in others again, none whatever, I considered it necessary to give the leading cases under a rule, when 1 found it so indefinite in its terms, that a reference to former decisions, must be made, in order to show its lappllcation ; but wiitiii it was tolerably defined, I thought it sufli- ciently explained, by one or two Ciis(s by way of illustration; and wherevrr "'it was so compre- hensive as to include all possible cases, or where its terms were so cleariy defined, that there could be no diflkulty in a^tplying it to practical purposes^ xiii PREFICB. -.l.i.":r:ir'""'""-' general arrangement of the work !«„♦•• diiBcuIty in- finHm. T anticipated no the n. f ?'i"^^"8^«"y subject required; yet as the profession, havp Koo» i ^ ">e use of an ainh K ! . '""S «™»ton,ed to -»h .0 .^ e v5 t H '"/"= * ""« -* » wort -. 1 . . '°® concise style of thi work Would admit Wifl. ♦!. , ^ ® • profession, .nd an enlightened public. ' id , ',^ ^ ,"••3 S. B. H. 3, Essex Court, Temple, 1st June. '825. M-fj I TABLE OF CONTENTS. I *^'ectious Intro'iucticn I. Matters judicially noticed *by the courts II. Admissions . . III. Confessions IV. Presumptions V. Persons incompetent to be wit "es^es from deficiency of reason VI. Persons inadmissible as witnesses trom want of religion VII. Persons inadmissible as witnesses by reason of infamy ^ III. Persons inadmissible as witnesses' by reason of interest IV. Inalmissib^li^y of parties i„ a suit to be Witnesses X. Inad.iiis.ibility of husband' or ' 7'^^ ^[th. Parties to be witnesses Al. Inadm,ss.b.:,iy of counsel [or at- tornies of the parties to be witnesses XII. Attendance of witnesses XIII. Examination of witnesses XIV. ISumber .of witnesses required to prove a fact Page . 1 2 . S 11 14 16 16 17 19 33 34 35 37 Ir., .-.' ^, f tf 43 XVI CONTENTS. 1 1'' I I.-1 / 7 Section XV. Acts of parliament XVI. Judgments XVII. Proc<-edihg-s in chniicery Paste 46 47 52 XVIII. Proceedings of conrts of peculiar ! jurisdiction If XIX. Decisions ormagistrates ' (XX. Depositions . ... 'XXI. Other judicial written documents XXII. Public written documents not, ju- (dicial • XXIII. Mixed written documents, partly public, and partly private . . : XXIV. Deeds ..... XXV. Wills . . ... XXVI. Mercantile contracts . XXVII. Other private written documents . XXVIII. The best evidence must be pro- duced \ , , XXIX. The evidence must be contined to the issue .... XXX. The substance only of the issue need be proved XXXI. The affirmative of the issue must bo provetl .... XXXII. Hearsay . . . . . XXXIII. Demurrers to evidence XXXIV. Bills of exceptions , 60 61 65 75 83 86 IM 114 120 126 131 135 151 153 158 158 EVIDENCE. ■ 'i4 ••' INTRODUCTION. bound to t.kt1ud-lr„ii ■"*"*'/ **" eo-rt" are Ua WrittenT^ "*""'*' '"«»P*"o<. I Written Evidence is cori«idered ii»U» a. v . fc'^iL''o»r''d^"'f-^^.t'^ Lri»diSrL"i^-2:,t:'?;»^^^^ |Uon«— Other ittJiciiil-^!!LJj*^ ^****'''^^^*«» [wntteii docuiaeBta. "'f"'^**! met pi^m i: JUDICIAL NOTIC^. [S^<. 1. 1^ General Uuies appointed to regulate tJ^je MO^Action of cTKlence, arr next adverted to; Wfm are — That the best evidence the nature of tiM •Me admits muU i)e produoed— Thft t|w evidence ii to be^ confined to the points in issiie between the Erties — ^Tbat the substance of the issue need only proved — ^That the affirmative of the issue mast he proved — and lastly, ..That hearsay is not in rnBeral evidence of a £|ct. And in conclusioB, oemufrers to evidence, and bills of exceptions so for tts they relatn to the s^ubject of evidence, shortly «w secnoN I. Matters judicially noticed. J«[9ICIAL NOTICE. »• Tbb Cttofts will takn judicial notice, lat,. Of the •Bslence of.focls, which must have happened, according do the conatant-abd^ invariable cooimI •f t t mhut , iM%, Of all genemi laws, a»>^fnM«l tta hitrit : Am vi^ of a oarporatiom at iasgev'tsj ffeuMTe one dl Unwnnihofs, miless <4liat power ii| ddegated by n bye law, or charter, ik>' a seleotl |(ii« of the GotfunHom ; the psviUg es of the Kinfil /ofaost; the p w aonnti ve nf the Cmwn: tim ' •nd privileges off we Q«ren; aadthe eedsnt mril, and nMitne laws. Sd^, Of Ihe tine ef Kirnif* ncoeaeion ; of the conHnencement td a iSSR of pmliaaent ; the fiafx of holding prlianii «si any pnrtionlar dny ; Hie pnrt « Hm other>,ceMrt8 at IFcs^wiinilii » MWriP of Ihe coontiea Pa&iMic, the oonrta of Sid. 2.] ^I>MlS«mNS. of govern^ ^^t^^^^ '^^^^^^ of mer^cAi*/ appointed by th^ caK^ u ^""^^^ ^''•<^h <^e "d the begi^^n.^ «Mtiy»'OfaIl^ii.f *J^^tentVf a>r^ A^d -»^ ^'i^b^y^P^nra^tne^;^'^^ ''^"■ » |. ? .■ SEOTION II. ^ 1-^y record , «. «-^^^;&JLf^^^^^ ««^o. rf^urrer. •• ^ ?**rH^ generaOy, ' '■ I. ' ' - .; . i .... i ■ > 't 1 ; ■■ V<'i^-i 1*^^" i •^*a Kiefemt^ 't-' Judirment hy default, Ac. ADMISSIONS. [Seet.i. nor can any be received, to ditpnie such admis- sion ; for the jury are only sworn to try the mat- ters in issue between the parties, so that nothing «be is properly before them : But an averment in * ' on« count of a declaration, or in one distinct plea, cannot he insisted on, as an admission of any fact I in another count or plea. II. A judgment by default, is an admission of the cause of action, and of all the material allegations respecting the contract in the declaration ; and in the same manner, a judgment on demurrer admits every thing but the amount of the sum in demand : the following cases are illustrations of the rule, with regard to judgments by default. 1.— In an action on a bill of exchange aarainst the acceptor, by »nflrerinK judgment to go by default, the defend- ant admits the acceptance, and that the bill is as stated in the declaration. !.>— In an action for good$ sold and delivered, and money iMd and received, the defendant by suffering judgnent to go by defeult. admits thai something 18 due, and he cannot aAerwards dispute the ex- tract of sale, or sho^v fraud on the part of the plaintiff in making the contract. III. court.'''''***. I*ayn»entof money into. court is an admission by the defendant, that the plaintiff has a legal demand to the amount of the sum paid into court* and when paid in generally upon the whole decla- ration, it admits the contract upon which the action is brotight, and all the formal requisites to l}e proved, as hand-ivriting , and sufficiency of the stamp on a bill of exchr ige, the execution of a deed, and the title on which the plaintiff sues ; although it appears in eviden 'e that if the admis- sion had not been made, the! ^aintiff must have been nonsuited. But if a plaiiHiffi by misrepresentO' i Sect. 2.] ADMISSIOKS. tian, Induce a defendant to believ# th<.» ♦!. tion . and in an action aeainst a «i«/,v.* «/! for an act done in his official cVpact^ th^,' ^*'"' money into conrt, by virtue oraStl!l""^'°8^ proZtTrofthTrlor "'?' " P'^^*'^ ^^ *e IV. «>« cour.e o? bSs, ^ whir's *" ?•"•"•"' '" "' '"°»~'- strong pr.s,„,ft"r:,UZt.J:°ttJ^^ "* cw^' y«"3." panr will :' t " nr/?- •kowing, that otheMtTm. i •» precUed from more conclude «,(!." ?ff JT"'"' "'"'«'' "« party deliveri-7Vhl&'^'^"*"y. P«clude the demiiid difer^i -.^ -^ ^'"S evidence of aiiv xrreTciSt- --^^ note »„ giveT'ji^T"^'*"' '""'*='» »i« *-ou, s :cco»":;*.fi^%Thi4„Tr,^ 1 .1 .<« ^m^ « i: Parties. ADMISSIONS. :[Seti.iL sUnip, or by roasoo of any .othei def«Qt. he w\U be nonsuited : and even it u plaintiff deliver a ^hit- ticular under a judge's order, and ai^rwjtfdf a iecond, without an )rdcr, he cannot give evidence of any claim contained in the secQp4 ,< particular, which was riot included in the tirst. Bat although a plaintiti* is restricted in his own evidence, by tM partiQulars he has delivered, yet to ieareaae his demand, he may avail himself of, any evidenca adduced by the defendant. Particirfars of demaml delivered under a judges order %fe suficient^ though m some respects inaccurute, if they give proper information to the opposite party, so as to guard hiu.against surprise, and it does not app««r that ao^ wilful misrepresentation was int.ided : They are proved by the proaucfion of the judge's order, and proof of the delivery of the parti- culars. ^ V. '-:■" Admissioaa by the parties are either, Ist, Sueb which ar6 strong evidence against that party, or any other party on the record who has a joint in- terest with him: 2tlly, Such as are made by a person who is really interested in the event of the suit, though not named on the record, which lidli be evidence against the payty on the recojd ; as is af>pca/:''ases,when declarations by rateii inh^N- tant8;»re evidence, though the appeal is e&tered it the names of the parish officers; or the deoiaratioM of persons interested in a policy, will be evideaoe agamst ;thej plaintiff ; or in actions against «Im sheriff* when he is iodemnified, declanSons made by the oarty iodemnifying, are evidence against the *hei*jj.: 3dly, Suchas are made by anominal pasty who sues merely. as a trustee iox the benefit SvSi then fshich are in general, evidence against him; iMit the declacrttioDs^ a guardkai, are not admissible I. &«r. 2.j i>MlISI0lK8. i. «id*«« .gain,, , ^j„, ,^^ ,^ ^^ ^ ^ record; but in i^tiooT o(*^e2^\^r^ ?'.'*»! * feet of Sfi; * •^<»'«»"M>ns of one party w U>X laci or the trespass or offence •«. n^; j against any 6f ?he others reT;prdeX:S»r^ SS^; ^ ^^^ ^^^" recelved'in i ADMISSIONS. [Sect. % Deputies. i. CAnduct^ IX. Admissions of authorised deputies, for whose i actions the principals are answerable, are evidence against their princLpals; as the declarations and I statements of the under-sheriff in all cases, and those of a sheriff's officer, so tar as they form a part ot tlie transaction in which he represents the sheriff, ana It the warrant to him be established by inde- pendent proof, are evidence against the sheriff. • X. A party, although he may have made no direct admission, may frequently preclude himself from disputing a fact, by the tenor of his conduct and demeanour; under this rule, the follomng case* nave been decided : — I .1.— Aftfr acquiescing, and acting for serenil yeanl under a commission of bankrHptey, a party cannotl _ diipute the commission. -" I 2,— By not objecting at a meeting before the commu.! sioaers, cUon for u.e and OMa^ttai ?»T"^' > IK'S'" "^ •>-"=■« -SS-CriiLtffw'i- 0...0. Lpu J {J: "p'.S';; °Lfc '£ j?f ' J* may show that it i> at an Md ' ""'""f'' >■« «e"«.t to the d..t«i„.rrrdSd«, ta'sissi It i: I' n ADMISMO-S. [SeH.'i. of me and occupati ,n, admits tlic tenancy, udit precluded from disputing the title of the ntaintUr. ft.— In actions of t^er'merU, by a landlord against hit te- 1 nant, the tcn,».it cannot lucMtion the title of hit landlord, although he m &t liberty to ihow that it has expired. fS.— By.deli /iring an invenioryinto the spiritaal coirt, cji administrator admiu, that there are asscti to thcj amonnt sttltcd In the inventory. f4.— If a party tMlfce his seat in parliam< % it it eridenctl , logo tOajnry.'ihat he has t ^^d to the cha- ra.cter of a candidate, and ado, '!»e acts of kill committee. t5.— By proniisihg to tj&y, or paying part of the moacr. atkingtime »or pavment.'an occ^or oFa bAI ofl exchange admiht hi8 own liability, and tite i^ei>| ^«lty of jproying the acceptance i« dispensed wftk 26.— By accepting a bill of exchange, the acceptor adaiibl the ability Oi the dratter to make the bill, and m made after iight of the bill, his signature. I ^«7.— By indorsing a bill or note, a party admits the ^iM^M a;ld siji^atore, of ^very antecedent painty. 1 «8.— 9y ^cei^ting a bill payable to the orawer's 6wn wdttJ the acceptor admits the drawer's abilitv td'inima iofifhe cannot indorse, he was not abife to 6nm\ • And' prepludes himtelf from relying to^i^h inf in such drawer, and iudorser. «9.— If a hill is drawn in the name of a fnh, pWp«.« to consist of several persons, the acaefktaocei mita that thete is such a firm. i , u t.M. adit ntur. » te-l fkh\ Mtit t, cy otkc lcnc«| clw- fhii Sect, a,] CONPBS9ION8. «EcnoN in. ,, CONl^B88ION8. ii '•« i-' J . ..... CONTEJJTS, ,<^'fe.t.^t["*ot::f "e^lLt'r** v>iM.2^^^^^^ keep. rf>.ch^JSfii£Tifr Tl.?T^ 11. truth ;^r^';S,'^f-?,5lP"««^^ oyghtlTS^ ^h*t the prosecutor wKL Jre^il "S:?*^^ ;pn.oner to .peak .he tiSh*: :S"iJ!^ •I J;*"! "1*^5 *P**'- out. if the r- ^^- — •'Tk checked the proMcior, id 12 CONFESSIONS. [Seet.Z- II Writing. lyeuon. Before other per- ••ni. soner not to regard him, but to say what he thought E roper," nor in any case, if the promise or threat ela out, may be considered as not having been made, with sufficient authority to influence the prisoner. The^ should aUo be rec|uced into writing; and signed by the magistrate, as paro' evidence of I their effect cannot be received, un iS' clearly proved, that they were not reduc .. tu 'y writing ; I nor (i^re mvwin of a prisoner's examisalioB, net signed by him, but made by a witness who was present, of themse'ives admissible, though the witness may use them to refresh his memory, w4ken S'ving parol evidence of the coafessioa ; . nerlcan e examination of a prisoner be received a« eyidence against him, if it be actualbf taken, or even purport to have been taken, on oath. In caseA of treason^ a confession of thie drwtl «cts mnst be. proved to h^ve been made by twol 'WittaesBi^s present at the time, except whep tii«| tiferi act charged upon the prisoner is a 4u«Bct| ittempt agaiiist di6, life, or person of tiie KiQc;| br'wben tihe confession is only offeree! as cti^l m/oforu. evidencie, ox in piooi of some oo^lts/av/l fiict ; In .which cases, if it be proved by one vfit| ness only!, ' it is sufficient III, Confessions made by a prisoner of his guik, of any fact thtit may tend to the proof of it, uiy other person, even if before a committee of i ^otfSe of commons, are admissible as evidence, it be proved that they likewise were volunt ttad made without threat or promise, or such etbe inducement as may be supposed to have infiuenc iSbk prisoner's mind, in hopes of a pardon, or favfl iili^wn to him. tli .M \)•J^■^'^l\•^ Sect. 3.] CONFPJSIONS. IV. 13 :3.! Confessions are only evidence against the «irty Effect who makes diem, and not against others, e^ *^' It be proved that they are acccmplices; but al- though a confession itself, from iU having been improperly obtained, cannot be received in evi- dence, yet any facts that are brought to lidit in consequence of its having been madi, may bi pw- perly lectived as evidence agamst the pity ^ fessing, or any of his accomplices: and a prisoner may be cmvtcted upon bis own confession, without other evidence. Confessions before a magistrate if taken down Howprov- m wriUBg at the time, must be produced, and ***' KPved to contohi the true efen of what the pri- soner 6o«fe8sed. which is best done by the maS- trate or his clerk ; but if they were not wri^n down atihetime, and this fact mi clearly pttjved. ^/evidence of their contents wfll be Admitted • When confessions made be " . .'.if* -'.'■ 'J V, .. *■ 'i.. J 1« i WANT OF REA«6n OR RKUGION. [Seer«.54'«. the prisoner was seen near the body, with a bloody weapon, or v ith marks of blood upon his clothes, would afford a strong presumption that he had committed the murder; an»{, 3rdly, It has been decided, that >f here a tenant for life, has not been seen, or heard of for fourteen years, by a person resident near the estate on which he resided, al- though not a member of his family, it is primft facie evidence of the death of such tenant. Rtaaon. 'i 5 : M Religion. SECTION V. DEPICIENCY OF REASON. The fdllowhig persons are incompeteiit to be witnesses from ade^iency of xeasop; vu. sdiois, lunatic*^ except in their lucid ""-nnfr. |iiiwi of non-$ane memory, and chiktrm, so youBg a» n*t to comprehend^ the nature of an oatk. .'IC • ■ ■ ■ SECTION- VI. • ' "•>•;«-!':.«■■' WAl^r t?F RELIGION. All at^istSf and pers^aos who profess no leU- gion, and have no belief that they are answerable to God, are inadmissible as witnesees, frcno a defect of ireligiflntejpnnciple; 4nt l*ot« who have no belief in the Christian dispessation, asf Jmou Makontetansi Gentom, «iBfd other Pagatu,.j9i if th^ believe jtt « ^od, the «venger of filsdiood, and th6 obligation' of aa oalh^ th^y may be! ad- mitted to»give evidence in o«7 courts, in bothvoWH and ctAmAm/ oases; and may be sworn in^l^ manner^ they oeoiiiQfM- most binding upon their toiueimcet: and, by ttatuie, ptrsona UxQmati^U cated are admissible as iritnesses. .r i.i i< ^^'•7.J INPAMY. SECTION VII. INFAMY. CWH TENTS. 1— P^f mniM render a man in&mou*. 2.-.mw.infamy is proved. ^ I. crimeTv" '.'el!:l'^.?L the following i„fa„,ous Cdae.. to withhold his evicw!^' ^^ "*' * P«"<>o II. thereupon, whether * L Vk !^' ^^^ Jtidptnent the judimient nor thf^- •^^'"'^^"'''^ ^^'^'^"t himself wm be r»ffl- f^**««» of the witness sible, however it f"^ff '? u'""*^"'" ^'"^ ^-'^d-'is- I be produced, evidence of infamy. '^IN :^-. 18 lN'-\>iT. [Sett. 7. w r How re- •tored. III. An infamous per£.on is reridered admissible as a witness, in three several ways, 1st, By the re- versal of the judgment or outlawry, proved by the record ; 2ndly, By proof, that the party has been admitted to his clergy, and been burnt in the hand, or suffered such other punishment as may have been substittJted by statute, for burning in the hand at common law ; which must hv proved in all cases, except when the witness is a peer or clergyman, who arc ehtitled to clergy without burning in the hand, or other substituted punish- ment; and 3rdly, By proof that the pa.ty Inu received a pardon, which is granted either under I the great seal, or by act of parJiament; the for- mer is proved by mapeetion, and will render aui mfamous person an admissible witness, in all cases, when the infamy is only a cc ^bmb of the judgment, UB in perjury at commojlaw; b«t not when infamy is a part of the punishment, as in perjury on the statute of Elizabeth: and in both kinds of pardon, if they arc conditional, it must be shown that the amcUtion has been performed. ' t m & I t; I 1' It U Cases. lit branch INTEBBST. [Sect. %\ missibh m witnesses in crimknal prosecutions;, Srd'y. That certain persons, although intere9t«(i| are made admissible hy act '•*" parliament; 4thly,f That persons entitled to rewai-ds on the convictionl of offenders, are admissible; 6thly, That agentsj carriers, factors, brokers, and servants are admiJ siole in most cases, from a principle of publicf convenience ; and lastly, i'hat persons are admisF sibie as v/itnesses, when they are equally inter] ested on both sides. i;. The following cases have been decided, unde • the first branch of the general rule, viz. tha whenever the verdict can be used, either for, . against a party, proposed as a witness, he canna be examined. 1.— A tervaMt cannot, without a release, dbprove ku ot negligence, in an action against hit master. f.— In an action by u nuutert for an i^nry done to horses, his servant, the driver of the horses, not prove negligence on the part of the dcfctuu 3.— An agent of a waier company, after information of - dangerous state of a water-pipe had been giveai the ♦^mcock, was not considered admtMible, disprove negligence on the part of the compa in an aetiMi for an injury done to a home, by bursting of the pipe 4.— A pilot, on board a shir is not allowed to dispro^ negligence, in her having run d'^ n a barge. 5.— A broker c&anot, without a release, disprove bis oi negligence, in an action against his priociptiL 6. - an action on a policy of iasurance, agaisfct the i derwriter, the plaintiffs, who were the hisnn. were not allowed to call the owner of the sMp, I prove thK'. she was sea-worthy. 7.— In an action against an undertfriler, he cannot call I captain ot a-sbip, to disiii^ove th6 charge of I retry. ■ 8.- In ai3 action by tbe master oi. n v^sel, against custom-house officers, for oot clearing the ih and re-delivering the cooketis; the fUintiff not allowed to call tbe freighters, to prove the of hia being the master. r'»'>n. • A tenant of lands, within a pariU il . nt sible witness to prove a cusVin,* , ' ^° *dn»'8- going crop, wi, J„ such p^aJur* '''"''"« *° «^»>- ' land *nel^f %hir.aSS!'/^ "^^' »"«t the the chapd/anit a?tboSh*'S>^^ «« '^epair .Perty, fir a rent ce^^w^L^'/ '"^"^^ J"» P-"*' .t will make no diflfereice^^""* "^^ deductions, - *V^here a member of a corl^* • advantag^e fr'om a\23K""he"" '"'7 * P«""-«' .n a cauS. for tbexJorSoi '^"^ "^ * *''"«» Place, canno^b^ S^? JS^^ S/-;-Ur > 4 21 * »l • .1 1 . .. ( '.if o«> INTEREST. [StetM Ca,sfs. 2nd brand none, bat the iB«nber« of a particolsr eorporatd body, hare a right to exercise such trade in thatf place. I ««.— A tenant in poueuion, in tjeetment, cannot snpponl the title of the fiefendant, under whom i» holds. The following cases have been decided, uadeil the second branch of the general ride concerninJ Interest ; vie. That sach as have a certain, direct,! and immediate interest, however small it may bcj in the event of a mhC one way, are inadmissible J witnesses. ' 1.— If a plaintiff a|ree to grant a lease of hwds to a p€rJ son, if he shafi succeed in a suit for the recoveni of them, thatperson is not an admissible witnt ' for the plaintiff in such suit t — If a witness is to rqMy to the plaintiff, a sum of meat if he fiU! in his action, but not otSsushmei^.hti not i^ire cvidcBce for the plaiotii*. > ^ 3.— If an uudermiitry wh* harpaid hia proporttan, ii be repaid, in the event of >e phintiff'Mnco he cansiot be a witness for the phintiff, in an tion agsintt anotter nndtrwriter, on the policy. 4.— In an action en a bill of exchange, against the ceptor, upon an acceptance for the acccNmnodatu ot^the dr aw n, hinuelf or hu wife, are not admi sible witncnet for the defendant. 5.— Creditor of kmaknifU, or decerned per«ons, ai-e adaisaibic witnesses, to increase the fund whidi they nny receive a dividend. 6.— A petitioning creditor is not admlssibie to a ,:iwumi$sim regularly sned out, althoh may prove a fiKt, which will dtfemt a coiun or lemen Mr own debt. 7.— A bankrupt is not a good witneas, to prove n^- in hiMself, or a debt dne to himself, or in any o manner to increase the fundf in an action by assignees, althongfa he may be a witness to creaae bis estate. 8.— A creditor of a bankrupt i» not admissible to him a g emk ite , 9.- A creditor^ to wiKNn a bairiirapt before he obtai his certificate, promised payment in full, is g good witness to snpport a second coramissien. 16. A persw wM^tntnaier^JKn to JmimiMfy tj^ 13, 114. |15. 16. 118.- 119.- oat( pron \noU ^et.dAirtt. 8. J. INTEREST. «'■ rporatti in that! lopponl ^olds. under erninj! iirectfia. ly b«, bie atl a ptt\ covetjj iritoi re latio Hit I M -Pnsons Hatie lo ihe cost, „f »Ti ' °™'=>'- . witness, to prove tba?-. . .ffi ^ ^° ?'^""''«'»''« ^^w«Ieftfov/heeo^^taVs"'^"'"'•^ '' ^«-"«>" -A djejjr., ,s not allowed to prove the sanity of a de- "'' 'rtm;o^-1a"^r"^*P^^^^'^"y ^-^» --er„i„, action by in rxectoV urtt'\^""^ T'"''' '» »» Whole fesidn^!' "'"'**"* * '^^^'^'^ of the ~ J k Jf ! g« t«t without a releaup i«nn»„ j . •opporta will nn.. f^- ' °^^ ^"^^^ witness, to -A &««rV.; ^V' "«• to increase the estate. A fe«or cannot be called to nrove a riW.t nf „ •ion in his lessee ^ "ght of posse*. «eiendaut, is Uie possessor of the land. The first exception to the ge%al rule that «II *« ex- persons .wb* are interested in the event Af. *" <*P«on. are inadmissible as witnesses is that h • '"' ^"^j' '"" parties are'aUowed to gi^r:;id:„t n' pp^^oV rtus exception, extends to all cases, but p7o'se^u l^onsoa statutes which give ^.specific remX ^ - m party inj^iPed, as- the -tatuteof pc/.Wi/ whirh gives £10., and prosecutions for /or?X when h J p pa^ whose nan.e is forged, or upCSse ge "u L: '*^'^^*- prow My fa«ts tending.totiie'Rr^of of.thp fnr„.«V 23 114. 115. 116. |l8.- 119.-- I*- 1 .' ?i ; 28 INTEREST. [Sect. 8. VIII. i timir"'" ^}^^ '^^^ exception to the generiil rule, is whert einKil in- a witness is equally interested on botii sides, so teirst. Remote interest, that it is ininiaterial to him which is successful, for he is then admissible for either party ; the cases on this head are : — 1.— A person is admissiblo, to prove the receipt of money from the plaintifi", for the defendant s use. 2. — A captain of a ship, may prove tliat money was ad- vanoed to him on account of the ship, in an action against the owner for money lent. 3- — A pauper is a good witness for eitiier parish, in a set- tlement case. 4.— The acceptor of a i>iil of exchange, is an admissible I witness, to prove that he had no etiects of the drawer's in his hands, in an action by indorsee against drawer. 5- — The paj/ee is admissible to prove, that lie indorsed a bill before it became (\no, in payment of good , inf an action by indorsee against drawee. 6.— One joint maker of a promissory note, may prove the I signature of the other. 7. — In an action by indorsee against indorsor of a promiji- sory note, themaker is a good witness for the plaintiff.1 8. -In an action against the acceptor of a bill, the drawer! is a good witness, either for the plaintiff or dtfendant] even if he is in custody, upon a charge of having! forged the bill. | 9.— One r^artner is admissible, to prove that another bad! no authority to draw in the name of the firm, in anl action on a bill of exchange drawn in the partnership! name, by a separate creditor of the drawer. I 10 — iJpon a plea in ahatemept, that promises were madel jointly by the defendant and others, one of those! other persons may be a witness for the plaintiff. IX. But a remote or contingent interest, or wisbeJ and a strong bias, or a belief without any foun| dation, by the witness himself, that he is intel rested, are not sufficient to render the evidence ofl a witness inadmissible, however they may aft'ect| 1?.— i;^.— «../' Sect. 8.J ID Ilis on 1. 'NTERRST. ?.- ■i.~.< 5. 1? l.S executor ,h.M)nt..it, become liable as an A prrsoii who |,as brrii i,, «/k , bo call..,! to ,, rove \r nt.ff'' '?''"': ^ '"^Y , subjortl.im to?, ;;. .eZ^'^ '»*"*•««', vvould A.^™,/ Ota ".anoV rShe^u''!" r'^'^''^' ■ w'tiuss, to prove that a . ^o '« ««' adinissihie «^- the lord, aliho.Vl u- H. "'"' ''"^ "" »'"' ^^^'^'h partners. ' ^ P*^"*^^ "•« contract tor bit -A bond ,u„t/,o,Z 'aLi i. ?" '''• "'"■ '""'""er. _";rtnL:tpi:::?£'f-;:;.:^ ' ^Sj^arXn^eTorr"' -"not derive any -bioh tj.e corp^ratL f "'^^7?"^ t \'"^^' -'^ "esses tor the corporation ^' "^^ ^" ^'t- -In an action against a sheriff for a fai ««//« Aom<, after having take, tul ^?''*^'-etnrn of execntion, at the M.it of the pbS'''' "^ '^'^'''' '" claims property in the goods K,'."* '''''■««" ^^o claim, takJn the jjoodsW A? /I ""''" '"'^ ""**''•• «''al «l'eritf, is a «ood witness tbr ' 'T'^*""" «^ "'« 8"rh property in tlurgoods ' '''"'^' »" P'-«ve ;l.edete„Jant.t:.;^ovrtno'rpaT^ ^'^"'^^^^ ^- -'ifJtiieiSS^S-:^;;;'^-^^;''^^^^^^^^ -bo is .10 party in thecaus^^'lt "H^!!^'''.."' ".''» ™uani .. „ot w.thin the di«^nptu;„"^ [h^ 9 10, 2.0 1 / :'l^ 30 I if u.- 15.- 16.- 17.— IH.- 19 — 20.— «1.— 92.- 23.— INTEREST. [Sect. 8. Trustees and cxeriifois not taking any br'uficial in- terest under a vW, arc ^ood witnesses to establish sueh wiM. Where several aetious are hront;ht ajjainst two dc f<'ndants, lor tlie same assault, tlu\ may be witncssci t' r eaeh other. Where several persons arc indicted for jieijury, in suearin^j to the •^anie fact, at anv time i)etor<' conviction, they may be witnc.xscs tlie one for the other. One undet writer, is an admissible witness for another on the same ,»olicy, unless he lius entered into the consolidation rule. One murinei, may prove wa^es tlwc to another for a voyage, ia respect of which, he himself has u claim. A joint purchaser of an annuity, as tenant in com- mon with the pi. inlitf, is a j,M)od witn(ss in an ac- tion against a conve>ancer, for n- glij-ence and fraud in the negociation of the annuity. When the only (piestion at i>isiie. relates to the original destination of a ship, tlie captain, although he is part-owner, is a good vvitniss to give evidence oij that point. In an action on the warranty of a horse, a prior ven- dor, who warranted to the defendant, is admissible to proxc the soundness. The creditor of an intestate person, is a good witness for the administrator, to prove due administration by payment of a debt to liimsi If. ' A woman whose husband has Leen convicted, may 24.— 25.— 26.- 27.- give evidence .-.gainst a prisoner although ,he ex- pects, that on his conviction, her husband will be |>ardoned. In an issue, on a right of common claimed by pre- scription, as belonging to the estate of one person; another party, who claims a prescriptive right to 1 the same common, as appurtenant to his own estate I may be a witness, to establish the light of cohimon When the question was, whether the eldest son of a freeman, was entitled to the freedom of a corpora- ti)n, the t'ather was helrj to be a good witness, to 1 pr-jve the custom for sons of freemen to become free. The vendor of an estate, who has sold without anv covenant for good title, or warranty, is admissibii to prove tl'P vendee's title. -A trespasser not sued, is a good witness for a plaintiff, asr.iiiist his cQ-trSRSK-isKpr. with ' ' the plai»t=*f. k«M01yU *J ' Sect. 8.j INTEREST. '2li. credilor of his j, ',. ..T"" ' c^ome a bunknipt, a was made. ' ''* "'*^ <""« »'•« representation I.iuln. "'""' '" l»-«Mn Hsai>,.t |l,e prize. -^ '^ " entitled to a share of the "'^/orL'rSiS'^Jj;,;^'^-^ '-"^ '-b.e to an admissible. '"^' ^°" ""^ "-ender him in- he ot.ght to make it on tL^^' -^'T'^ ^^ '"^^^^^t, »'on- •»'e .Loss is sw>r in er;rhe\"' '"' '^t'^ at the time- but if L . ' 5 '^ ^'^^'"^ o^ 't ^(jircd his interest fraudulently, for the purpose of depriving a party of the benefit of h's testi-l reony; or when a witness is c^ua//// interested on both sides: 2ndly. A member of a corporation, may render himself an admissible witness for the corporation, by resigning his franchise, even by parol, if it is accepted, and another person elected, or by disfranchisement regularly effected: and, Srdly. If it be necessary, that one of the baill should be exannned as a witness, the court, on an affidavit of merits, will a'lovv his name to be| struck out of the bail piece, on adding and justi- fying another in his place. .*r Svrt. 0] PARTIES. SECTION IX. .3.3 PARTIES TO THE SUIT. No persons who are on the record, as parties Parties, to the suit, though merely trustees, as prochein- ami/, (j'nrdian of an infant, or goverturrs of the poor, w, o arc made liable to costs in appeal cases by statute, are allowed to give evidence for themselves, or for any joint suitors ajrainst the opposite parly, except in the following cases; 1st, When trustees of incorporated public charities, are sued in their corporate capacity, they are good witnesses for themselves; 2ndly. In proceedings by, or against a corporation, if the members will not derive any individual advantage from the decision either way, they may be witnesses; 3rdlv U heri persons have been arbitrarily joined as defendants, to prevent their testimony fiom being given, and no ev.dence whatever has been offered aga.Dst them, they may be admitted as witnesses; 4th., When a party, has been made a defendant by mistake, the court, on motion, will allow his name to be struck out, even after issue it ^d and he will be an admissible witness; 5thK i actions against the hundred, on the statute of Umton the parlies ro66erf, are allowed to prove the robbery, and the amount of their loss, but nc. any oiner facts, which may be easily proved by other witnesses; 6thly. In actions for malici- ous prosecutions on criminal charges, the defend- ant Bay prove the evidence, he gave on the trial of an indictment; or 7thly. When the suit may be considered as at an end, with regard to a co detencant, as by a nolle prosequi having been en- tered as to him, or his having submitted, and been nned on an indictment for an as ult. or bv iiid.r- .aeui on default having been entered up 'against iinj in trover or ejectment, such co-defendant may C 4 m :\. 34 Ji". HUSBAND (iK WTFE. [Sect. Ut. be called as a witness; but a judfrment by default, will not rv'tider a codetVndaiit, an admissible wi'- nes8 on the trial of a misdimcanor, nor in actions of trespass, and on joint contracts. Nor can parties to a suit, whether they are on the record, or are the parties really interested, althoujrh not nanie<| on the record, be compelled to give evidence agninst themselves; but it has been held, that a co-plaintiff, with th- consent of the defendant, may be admitted Jo dispro/e the de- f«ndant's liability. In couits of ctiuily, although any of the defendants in i suit, may be examineai \Scct. 11.] COUNSEL OR ATTORNIF.S. .).— On an ai.peal of bastardy, in tlio ca^c of a married worniiM, slie may prove the fact of tlio criminal con- »it ction, Ixit that only. -On ;in iipp.-il against the remoral of a woman a* a widow, »hf may disproM- a i>rima facie casf of niariiai»p. -In casts of harkiuptcy, the liaiikrnpt's wife may be cxamincil Ix tore the conimissioncrs. U lien a wife has act<(l for, inid nndcr the authority ot »ier Imsband, he is bound by her admissions, and ucknowUdgments. In actions between third persons, a wife may be a witness, if the actio- do not immediately attect 'ler husband's interest, » ..n if her evidence, may by p s- sib-biy expose him to a legal demand. llO.-In cases of high treason, it is said, that a wife ni&y be *ness against her husband. 36 0. u. SECTION XI. COUNSEL OR ATTORNIES. Persons who stand in the situation of counsel, t-ounsel or or attorney, or agent to an attorney, or interpreter **^'"''y- etween an attorney and his client, are not allowed lo j;ive evidence, either in criminal or civil pro- ceedings, of communications made to them, at ant/ ^ime, in their professional character; nor can they jbe compelled to produce documents, entr«sted to jtheir care, in the same capacity. And as it is the privilege of the client, and not of the witness, jthe cotjrts will interfere, to prevent a witness from tdivulging such communications, if he is willing jto betray his trust; but the client may, if he jchooses, waive hi« privilege, and consent to the |production of such evidence, which will make it Jadmissible: and if a counsel or attorney, is exa- gmined as a witness for his client, be mav be cross- [pJamined by the other party, as to ■_ same matter. i:'^. ■% % * i I fe:'^-::v 30 I' • El -.v \.l. i ( Men nar- lowing the rule. COUNSEL OR ATTORNIES. [.,fr"'""'^-«t'«° howevJ arittolniv 'nH h^ r' ''huh he oi-^/aard between an attorney and his client, for this is owintr to fl>.| negligence of the client himself. ^ I 9.- ■1X1 Seel. I2.j ATTENDANCE. SECTION XII. 37 ■:?.i ATTEXDANCE OF WITXESSES. C;ONTRNTS. 1- — ^« civil cases. 2. — /« criminal eases. 4. —Before courts martial, h.— Before magistrates. I. , IS procured b> personal service upon him ot a copy, oruckct of a writ of .uW^a ad tet' hcandum. w.thm a reasonable time bXre the trla and .t he .s to produce deeds, or other document ' ^clause o duces tecum is added. commandrnTh m pe ed to attend or g.ve evidence, without having hd.l the reasonable ea;penses of jroing to, stavinra, udretunnng trou. the trial, tendere'd tJhim! at^be fraeo. theserviCH of ,he subpcena ; althoueh no compensation is allowed for loss of W^^ to anv but ,^^,e«/ n.en and attornies; even dthough ife ^"tum, bu he may maintain an action for his expenses, although he has refused to give e^dence vv ■ nV"'''n'''"'' thoy h.^ve not been pa^Td or L; no Veef Tr' '"^^"^^^' ^^^^"- the cause na& not l»een called on. A witness is also protected from arrest durino- Arr.- he necessary space of tin.e, taken up in goinR to hf "^■ place of trial, stavina- ih^.^ ^..a "./ S"»'»'Otne again, whether he a«.«rfof his own freewill, or be (. '. 38 v; I'unisli- iiifnt. When in s offelonj^, the reasonable eZnZ[i hitnesses are allowed by the court. III. Commissioners of bankrupt,, are empowered bv 1' mk e.r tt-arran^ to compel witnesses to appear bef<^-^ em; and are to allow such costs and charge as hey shal thmk hi. The general inclosure actfJyel In.l.. I power to the commissioners to summon in wrft ng '« ^ ersons wjth.n a certain distance, to appear an be jxamined before them, and if the person sum- oned |efusP to appear, he is liable to a penalty. IV. I ached in h ''" \T'' '''«'''^«'' ^^ ™ay be '.altial. Lv a, ? h VT °^^'"^ ^ ^^"^»'' i" the same >ay, as it he had neglected to attend a trial in jome criminal proceeding i„ that court. V. Magistrates have no power to compel the at- vr • . bdance of witnesses, for the purpose of a sum ''^'^'•'*'^*^' bary trial, except such as is given them, by the Ipecial provisions of the legislature ^ 29 f a ■f If 40 EXAiMlNATlON. [Sect. 15 1 ): SECTION XIII. EXAMINATIOX OF WITNESSES. f If . It" 5weaniig. CONTENTS. 1- — Of swearing the icit/iessca. 2.— Of examination, noss examination, and r\ examination. I ^.—What questions witnesses u. e not compelled l\ answer. 4.— From what degree of knowledge they mu speak. 6. —How the credit of a witness may be impeacheil I. When a witness is in court, and before he J sworn, It IS the proper time to ask him as to religious belief; and the proper question to « asked, IS not, whether he believes in Jesus Christ, or the holy Gospels, but whether he believes ii| God, the obligation of the oath he is about totalis and a future state of rewards and punishments. I these questions are answered in the affirmative, jh. must be sworn, whatever may be his rojik, stati J orrehg.ous belief; although the oath, need not^ necessity be sworn on the evangelists, as the for of It may be such, as the witness considers, mosi binding upon his nmscience : thus. Christians ol tlie church ot England, are sworn by kissing thl ^ew lestament Quakers are allowed to give evil dence m civil cases, upon their solemn affirmatloD; &nd Moravians, upon their declaration; but neithel ot these can give evidence for other persons, ii cases substantially of a criminal nature withoJ uemg sworn, although in criminal proceedings,! V/. 13.] EXAMINATION. where a defendant in ordinary cases, would be al- lowed to make oath to exculpate hi -..self, they may alfirm. or declare in their defence: Scotch covenanters are sworn, by holding up their hands, whilst the book lies open before them : Jews ore sworn upon the Pentateuch: Mahometans on the Alcoran; (ientoos by touchino with their hands the foot ot a liramin-, and indeed, it mav be said ge- nerally, that all persons ought to be sworn, accord- inir to the ceremonien of the peculiar religion they profess at the time ; for it has been decided, that a person who was a./eachcd. The creditor a witness may be impeached by tbii opposite party, in three several ways : 1st. By eJ amining other witnesses as to his general bad cki racter, but not as to any particular offences : 2dlJ By proof, that he has made statements out of couitj upon the same subject, contrary to what he sweanl upon the trial ; although it will be necessary befortl this can be done, that the witnesses be cro$i-Ji amined as to the former statements : or, 3dly. ij seems, by calling other witnesses to swear, thai Irora what they have observed from his convert] tion, and manners, they would not believe him obI his oath. A party cannot discredit his own will nesses, by either of these modes, but if awitnesi unexpectedly state facts, against the interest of thel party calling him, other witness may be called, by the same party to disj)rove those facts. r. M. 14.] NUMBER. 4ft SECTION XIV. ntoA NUMBER OF WITNESSES. IS cotiP One credible witness, is sufficient to prove a fact Nuniber of In all cases, except on indictments for perjury, !).'*ufr|fj* Irhen to obtain a conviction, " there must be '^""^*^ fctrong and clear evidence, and more numerous Ihan the evidence given for the defendant;" and DD prosecutions for high treason, two witnesses must be produced, to prove the overt act, unless the treason charged, be a direct attempt at the King's life, or person, when a prisoner may be convicted ^ipon the like evidence, as if he stood charged with murder; or if it be a treason concerning the coin of the realm, one witness is only requisite for the proof : But ir petit treason or misprision of treason, here must be two witnesses. Also in the eccle- siastical courts, two witnesses must be produced W all cases, except to prove facts, coming before jthem collaterally, and which would only require jproof by one witness in courts of law ; for if they Irefuse to notice such facts, for want of proof by Itwo witnesses, a prohibition may be granted. ti. 1 ., Si; A( IS Ol PAH I.I ami; NT. [Sfcf. li t • Si:(TI()N XV. ACTS Ol' PAIU.TAMFAT CONI KNTS. \—Puhlic sto tales. 2. — Private statutes. Puhlii 1. Priratf. 1 ublic statutes are cither, such ns aflect all ihJ King s subjects generally, or such as though pri- vate in their nature, are declared to be public bv the legislature ; they are not rrcjuired to be proved as the courts take judicial notice of their content^ | by reference to the printed statute books. Copies of the statutes of Ireland, prior to tL«, iJnion, when printed anj published by the Kino') printer, are receivet? as conclusive evidence in aiiT court of Great Britain. " II. Private statutes must be formally proved, either by copies, sworn to have been examined with the parliament roll, or by excmplijication under the great seal but a printed copy of a private act, has' been held sufficient, in the case of an appeali against an act done under such statute, or where' the act though private in its nature, yet related to a whole country, as the act of Bedford levels, and the act for rebuilding Tiverton. SfCt. 10] JUnCiMKNT.S. 47 SECTION xvr. ■l^ \ Jl IXiMTNTs. (ON TENTS. I- — ^V auprrinr inurts. '2. — How prond, iJ.- -//» I rim i mil rases. 4.~/n rem. in the r.a/trf/nvr. 0. - y/y vononissiomrs of' rrrjw. '^•~~^^ injhior vonits not of rcvmd. I. .'iidtymonts nti*^»'^«- i^mr cause botwocn the san,e parties reaUy. and «A.fo«^/«% .nt..re.st«,l,whr„ thoy sue. or are sued n the same cnpant,, or cl.aractcT ; ^nd also be: ween tho.r pnv.es in blood, in e*/a/... and in law Mudpnent ks also cvidonco against one, who might im .em a party to it if he wouhl. for he canno omplan. ot the want of Ihose advantnffrs. which he ia.volun.anIy given np; but a rerm . iy !„''' ">t, upon issue joined upon matter of title, is oiiL •onchKs.ve upon the subject matter of such title yhen pleaded by way of estoppel. But a former recovery, cfinnot be given in f vi- l^ncc, agaimt a stranger to the record in a former "lit, nor yor a stranger, against either of the for- ner parties ; except in the following cases : — -In finestions of tolh, aiul manorial, or othrr customs -In question, of public right of u:uy, or oMiaS to I repair a At/j-Aicf/y. ' P -In questions on customary rights of common. Strangen. 4U i^ Common law judi?- inent how proved. 5. 6. JUDGMKNTS. [SecMe.| 4.— liMpn-stioiis of the public ri^Ut of elect ion to a pa« dual ortiii' ; ii! tin sc tonr casts, a virdict in a fofmtrl action, l)«t\\t,, JrOGMENTS. when ill any other court, they must be prtwed by a witiKss III the usual niHiiner. A copy authenticated by a person trusted by the court tor that i.urpose IS admissible, withr.ut proof of actual examination' but a copy, ^ven out by an officer who is not trusted tcr thatpurposf , but has merely the ciutodu of thf records, roust be regularly examined. The ofticer who has the custody of records, may be ex- amined as to their condition, but not as to their ■ matter. W hen a record is relied on in ev nee the Iwhole ot It, or if it is exemplified or copied, a copy lof the whole should be produce.! ; ' aithouffh the hwi prtiM record, w ith the postea inoorsed, is eood |evidencet*> prove, that a cate«ecame on to be tried hei It IS not sufficient evidenc of a verdict, vith- lout production of the judgnaent. .ntertd on i Vdgment^roll. A final judgment can only be proved by an examined copy from the recoi 1 as file lM)ok at the judgment office, is not sufficient femi to prove the time of signing the judgment, except It be a judgment of the House of Urds rhicb may be provi d by an unstamped copy of be\r minute book. An Irish judgment will not be Jiiftciently proved, by showing that it was com- pared with a |)archment roll, woduoed to the wit- ness in the tour Courts ; ' nust be proved feat the record was seen i nds of theproper peer, or m the proper p.a.e for the custody of luch records. 49 III. A judgment in criminal cases, is conclusive evi- In criminal Pence, upon the trial of a subsequent indictment, *^*^**- tr other cnminal proceeding for the same offence ; m when offered as evidence in civil cases, it cannot N used to prove any thing more than the mere fact L .LJ •^"^'u"*'^"^.®^^.^P* ^^^^^ ^® defendant --^ conjcsscii uio guilt, wheu the convictiou wiil be i 50 111 rt-nu in the Exche- quer. JUDfiMENTS. [Sect. U MSect. same admifsible evidence in an action for t wrong. All criminal records are open to the impection of j every person, except in the particular case of au acquittal on a prosecution for felony ; when a copy of the indictment cannot regularly be obtained] by the defendant, without an order of the court for I that purpose ; but it seems that if an officer do give ' a copy of a record, or produce the original, with- out such authoiity of the court, it will be received I in evidence, although obtained in contempt of the court. A criminal judgment is proved, by inspection,! or exempliiicatiun, in the uaual way, ' ^ in jJOIDp particular cases> by transcript under j express [ directions of the legislature. As a general rule, a criminal judgment cam be used in evidence either for, or ag.'inst pernons, who were strangers to the former proceedings; except in (he following cases. 1. — Wljen a pari»h is indicted, for not repairing a road, itl may prove a non-liability to repair, by prodncin{l a reco'-d of conviction, establishing the fact, titifl another parish is bound to repair ♦hat road. | J. — On the trial of in accessory, tlie record of c JDvictioil of the principal felon, is admissible in evideucJ to show that the felony was committed Dy thtl person convicted as principal. ' I 3. — A record of conviction is conclusive to prove the tii/aifl of a witness, and the record of reversal, to shoi' his admissibility. IV. Judgments of condemnation in the Exchequer] are col( a-Jive evidence against all persons, iiotj only of the King's right to the goods srized, bull also, ia justiiication of the officer who made thej seizure; but a record of conviction for penalties, iu not considered as evidence between strangers aodH t> .''■ \SecL 16. J JUDGMENTS. SI ranted It does not appear clear, that a sen- ence of acquittal ... rem. in the Exchequer, is in like manner conclusive; although Lord K^nvon seems to have held an opinion, in favour oFthe |conclusive operation of such a judgment. V. Judgments of condemnation by commissioners of Bycom- fcxc.se, are generally thought to have the same con- «^/««j«"«'-« Lr^arly :^.^Sr^""' '"^ '''' P^^"' '^' -* VI. Judgments ^ inferior courts not of record, are Of Inferior Ny evidence to prove, that such decisions have <^^'^^- bken place, and are usually proved by the pro- uct.o..of the books, containi.,g the minutes of^tiie ^oceed.ngs of the courts ; but evidence of the ^oceeUmgs prior to the judgment, should be given. J order to show that they have been reLlar. in . as the proceedings are in some measure public locuraents, they are opec to the inspection of all lersons interested, and may be proved bv copies. ■ I » ••: ' r : -;^ i ^-1 D 2 '1 52 CHANCERY. SECTION XVII. [Sect. 17, PROCEEDINGS IN CHANCERY. CONTENTS. l.—Bill. 2. — Answer. 3. — DepositioTis. 4. — Decree. I. Bill. A bill in chancery, is not evidence in a court ofj law to prove any /oc^s, either alledged, or demedf therein; but only to show, that a certain suit] existed, and that certain facts were in issue be-j tween the parties, in order to introduce the answerj or the depositions of witnesses ; except in thel instance of a bill filed by an ancestor, which wi be evidence of a family pediyree therein set forth, II. Answer. An answer in chancery, is strong eviden against the party making it, or his privy ; but tkl answer of a minor by his guardian, is not evident against the minor, although it would be admissibli against the guardian ; nor is that of a trustee, i any case, evidence against the cestuy que trusi nor is that of one defendant, generally evidem agair.il a co-defendant: although the answer of odi partner, to a bill filed by a creditor, has bei received as evidence, in an action by another c ditor against .he other partner. \I7U ^»a ^^^ .It .^«7i ^()0(l ovi»U»nco. Depositions are not uduiissibli' jis evidomic, without prmf of thn bill and 1' w, r ; exctpt tin y be so anvtvnt that no bill or answer cun be found, or the dt'fmdant be in con. tempt of the court; or has wa ved his right of cross-oxiiniiniition ; or unh ss they bo produced in a ccMirt t)f common mw, under an ordvr of the Court of Chancery. Nor are they admi:H8ible, after a biU has b. en dismisseil for inrfjularitif, in the mode oti brin^iii;; a cause before '.e court; nor before an anstvir i;* put in, unless the witness has been exa* niined (it- hcne cssr, and has died before answer put m, in which case, the d(>positions may be read at evidence, although there is no answer. Depositions taken on iutvnof/atorii'S under i commission of moilern diiti , are not evidence,, without thi production of the commission; but ill the depositions are ancient, so that the commission, may be presumed to be lost, they are evidence of themselves, in which case, there is no necessity to produce the bill and answer. And if a man in giving his depositions in chancery, refer to any written ;ya/>'. Depositions mv proved, in ( ourts of common I law by examined copi* s, but in tiu' Court of Chan eery, ojfire copies are considerid suHicient. IV. The decree is governed by the same rules, as a judgment or verdict in a court of common la^^, and may l)e given in evidence, in the same manner, | and under the same restrictions and limitations: li| lo . ..•. 1 .,;4U,._ 1 _* ij ..i-j- *» It 1 .1 1 ffi fV It nttuit uiiuK Stet. 18.] PECULIAR JURISDICTION. Uieseai ot the court; Silly. By a sworn ropy; or 3'lly. By a (iecretal order in papor, with proof i)f the bill and answer, unless they be either recited in the decretal order, or the decree he ho ancient, that the bill and answer cannot be found after proper search, in which last cage, the decree will l)p admitted as evidence by itself, without further proof. 66 SECTION XVIII. PROCEEDINGS OF COURTS OF PECU- LIAR JURISDICTION. CONTENTS.| 1 . — Ecclesiastical Court. 2. — Courts of Admiralty. 3. — Colleges in the Universities. 4. — Foreign courts generally. 6 —Foreign judgments of debt. 0. — Courts martial. l.~Commissio s of bankruptcy. I. Sentences of Ecclesiastical Courts, directly de- Ecdtsiasti termining (he validity of marriages, and wills of '^''*' ^'""t* personal property, or upon granting administration, are conclusive evidence of the facts directly deter- niiaed ; but not of any collateral matters, which may be collected, or inferred from the sentences ; and altlu)u;j;h ^sentence of jactitation, is admissible evidence against a marriage, it is not conclusive, like a sentence of ntdlity or affirmance. But th(7 are not evidence in any criminal proceeding, and will not preclude inquiry upoji a criminal pro- secution, except in the case of a prosecution for polygamy ; when by the express enactment of the ts. f !■. > .. :/ ' . ^.^ '■J' V>l IIUltlL^ ui iiiai' i h ' I r 66 PECULIAR JURISDICTION. [Sect. 18. riage, but not a sentence o( jactitation, will protect the party from any criminal inquiry. Sentences of Ecclesiastical Courts, on questions of raaniage, are proved by examined copies, in the same manner as proceedings in chancery; and it is generailj necessary to prove the Itbel, and other proceedings previous to the sentence ; although a sentence of divorce a niensA et thoro, has been received without such preliminary proof: Sentences of Ecclesiasti cal Courts, as to wills and administration, that i$ probates, and letters of administration, are con- sidered in another place. The practice of the Ecclesiastical Courts, must be proved like any other matter of fact, by the tes timony of witnesses. II. Admirtlty. Sentences of Courts of Admiralty both dome$tic, and those abroad, which are acknowledged by the law of nations, and possess competent jurisdiction, are conclusive in prize questions, against all the world upon the matters thereby directly decided, when the same point arises incidentally in other courts ; and this is the case, whether the decisions involve questions as to right of property, as in actions of trover, or of compliance, or non-com- pliance with warranties, as in actions on policies of insurance : And whenever they state the /ac/«, upon which the condemnation was grounded, ihey are conclusive of those facts, if it appear that they warranted a condemnation ; but where the fact, which is the ground of condemnation, is speciji- cully stated in the decretal part, the sentence is only conclusive of that fact, and not of any others previously recited : and if no grounds of condem- nation appear on the face of the sentence, the court will presume, that it was on the ground of the pro- perty belonging to an enemy : and a sentence of condemnation of a neutral sljip, by a British vice- Srct.m.] PECULIAR JURFSDICTION. admiralty court, is sufficient evidence to raise a presumption, that the ship had been engaged in some illei^al transaction, although the ground of condemnation do not appear in the sentence. A condemnation before a conml of one belli^ferent state, resident in another, in alliance offensive and de ensive with it. has the same effect, as if decreed m the state appointing the judge who condemns; but a .sentence of condemnation, pronounced by an enemy s prize court holden in a neutral country, is aji^uUity, and therefore cannot be given in evidence Sentences of the Courts of Admiralty in this country, are proved by examined copies, vfiiYi proof ot the prior proceedings, if they can be found, if not.withoutsuch additional proof; those of Foreign Courts, are proved by an exemplification under the seal ot the court. III. Sentences of Colleges in the Universities, either College,, by the master and fellows, when unappealed against or by the visitor, on an appeal to his authority' are conclusive in courts of common law, upon all subjects within their jurisdiction, such as the de- privation, or expulsion of the members of a college • and are proved, by examined copies, in the usual 57 ■ i IV. thoritl*^"''!' °^F«''^ig» Courts, of competent au- Foreign whTch^i. ° *Vy ^•'■'^'*^>' ^^^'^^ a^y question. CouS which IS properly cognizable by the law of the ZSI '" ^.k'** '^'^ ^^^°"^' «««•" to be coa! In" in f^i?°±.!?°'^^"^''V^"' incidentally aris- ■^vr UliCA crimmoi « . r,— > ' ^»V^ r"i« applies as well to owT.L T^ proceedings, and under it, the fol. 'owing cases have been decided : u lii ■ If" » i 68 PECULIAR JURISDICTION. [Sect. 18. 1. — A sentcnoo of a foreign court, directly cstablithin^ a marriage, is conclusire of the validity of the marriage, in any court in this country, i- — A sentence of a foreign court, in a country where a bill of exchange is negotiated, which vacates the ac- ceptance, wonlii be conclusive here, of that fact. 3. — An acquittal of muider in a foreign court, would be conclusive evidence, on an indictment here, for the same offence. 4. — A sentence of divorce by the Synagogue at Leghorn, U admissible to prove such divorce, if the law of the country be previously established. 5. — A sentence of a foreign court of yidmiralty, is conclu- sive upon all th4 world, in civil suits, as to all matters within its jurisdiction, and decided by the sentence. 6. — A sentence of a foreign prize court, of competent jn- risdiction, proceeding on the ground of infraction of treaty, however unwarranted that conciusioD may be, is conclusive in this country. V. Jitdginents. ^" ^" action on a foreign judgment, the sentence ' is only primA facie evidence ^of the debt, when the proceedings on which it is grounded, appear upon the face of them, consistent with reason and jtistice ; and for the purpose of ascertaining whether a judgment has been fairly obtained, and is pro- nounced by competent authority, and on a case within the jurisdiction of the foreign court, the courts here will examine into the proceedings, and receive evidence, of what the law of the foreign state is, and whether the judgment is warranted by that law. Foreign judgments are proved, by exemplifications signed b\ the judge, and having the seal of the court attaciied to them, when it is not only necessary, to prove the handv;riting of the judge, but also the authenticity of the seal, by some one acquainted with its impressimi: And if a Colonial Court possess a seal, it must be used, this is clearly proved, so that there can be no ex- emplification under seal, then some other requisite, so Sect. 18.] PECULIAR JURISDICTION. to give credit to the judgment, as proof of the signature of the ju.lge, must be resorted to. But a document professing to be a copy of a judgment, made by the chief officer of the court, is not ad- missible in any case. VI. Courts martial, are bound by the same rules of Courts evidence as the courts of common law, and their -^'^'''a'- general proceedings, when not otherwise regulated by act of parliament, must follow the same course ; and their sentences, when within the scope of their authority are in general conclusive, although a sen- tence of acquittal by a court martial is not evidence of the illegality of an imprisonment. VII. The proceedings on commissions of bankruptcy, Commis- if they are not enrolled, are proved by production ?.'"°,^" «' but if they are enrolled as directed by the statute, ^^"''"'P*' they are proved by copies, duly signed and attested by the officer who has the custody of the originals. Depositions made before the commissioners, may be given in evidence against the person who made them, by producing and proving them in the ordi- nary way, even although the proceedings are not I enrolled. • * « -1 ■ 11 'J 1.x t 1 ; .'- ■'< I4' V -•• . '*; • 't. 1 •,* T-' ¥ ■ J* I: J i "1 if--' ki. . ' (■'■ ■i '■ ■ -V J -;;r4 i- 41 ■■■m ^./ 00 MAGISTRATES. SECTION XIX. [SfCt. 19 DECISIONS OF MAGISTRATES. r- At quarter sessions. CONTENTS. 1.— Judgments of Quarter Sessions. 2. — Orders of justices. 3. — Convictions by magistrates. I. Judgments of quarter sessions, when amfirmin' orders of removal, are conclusive upon the appef- lant parishes, and may be {;iven in evidence against them, by third parishes in any subsequent appeals; but when discharging orders of removal, upon the merits, they are only conclusive, upon the con- tending parishes, that the settlement of the pauper was not in the appellant parish at the time of re' moval. Orders. II. Orders of justices when confirmed at sessions, are conclusive as to all the facts stated iu the ordei's ; and an order of removal, when executed without appeal, is conclusive as to the settlement ot the pauper, up to the time of the order, and as to all derivative settlements, oven aithouoh the party removed was therein misdesci ibed ; b'ut Id ^^^lu^^^^ justices have acted without jurisdic itc-n, tiieii oruers i.re voia, and may he objected ^eCt. 20.] DEPOSITIONS. against, even after a lapse of twenty years. If l^ ZT T' '" "^^^^ "f rernovyhas been lof^t, parol evidence may be given of its content.. III. the?"h1v!!°? ^l "*6'^t!^*««. •'" cases where Convic- they have jurisdiction, if regularly made, are »'«"«• condustve evidence for the ma|istratL, in <^h2 brought against them; and whilst they remain ^ reversed, or quashed, they cannot hLontrZrZ or disproved in evidence ; although the magiTtTatrj Td nfod" '''' 'T'-rityof theifown con^icUots and produce, and prove in court, the informaUons on which they were founded. 61 SECTION XX. DEPOSITIONS. ./ '<' % CONTENTS. 1 When admUiibk as evidence generally. I — Uepositions on interrogatories. ^- taken in India. i'~~ -before magistrates. ^- - — (tefore coroners. *» ecclesiastical cmtris. 1/ the^r/'th^A f ' T'^ admissible, 1st. When When ad- I Imif u^ evidence, the nature of the case ™'"^''- lUmits, as when the witness him-olf .„„„.* u examined viva voce, on account of deathjnsinitv^ "ot bemg found after strict enquiry. contrivanJ; ! Y> , ■!' ifcf 63 DEPOSITIONS. 1 M- I n,: ^^ [Sect. 20, of the opposite party, or beint; out of the king- dom, and not amenable to the process of the court: 2ndly. When the party against wV y are ottered, was a ;>flr/y, ^r y>mv/ tc. ':;;. j>i .edings, in w! ich they were taken; bm in c-ses c- customs, and to'ls, and generally in all caser v \w ? hearsay and reputation would be evidenc, oi ere, they are offered to contradict, what t e s -o witness swears at a trial, but not to suppt ' .estimony, they are admissible evidence against strangers: 3rdly. When the proceeding in which they we;c taken, was o, judicial one, as otherwise they are mere voluntary affidavits : and 4thly. When the deponent was cross-examined, or might bare been so, by the party against whom they are offered, or by the person under whom he pjaims. But before depositions can be received as evi- den-«, it will be necessary to prove all the prepa- rafo.y facts, as the death of the witness, his in- sanity or the cause of his absence, and the iden- tity of the cause, and the parties to the proceeding. II. iitJS '''■ ^^^^° * material witness, is about to leave the • country, or resides abroad, the courts will allow his depositions, taken on interrogatories by con- sent, to be used as evidence in both civil and criminal ca; ai' ; if at the time of the trial, it is proved that ti.e witness ':as quitted the country, or even, that he is on board ship f'^r that pur- pose, and ha. >-> driven back by storms, or cannot proceed on account of contrary winds: but It will not be sufficient, merely to show, that the witness is a sfafarin-- man, and that he lately be- longed to a vessel, which is lying at a certain place, without proving' that pains had been taken, to procure his attendance. Depositions taken on interrogatories at llw chief justice's chambers, may be proved by a copy signed by the chief justice, DEPOSITIONS. Sect. 20.] and nceivcl from his clerk, unless some suspicion ot forgery is thrown upon the signature of the deponent, when the original depositions must be produced. And whenever papers are referred to m the depositions, such papers may he read as part ot the evidence, as if the master of a private vessel, when exam.ned on interrogatories, refer to his log-hook, the entries referred to, may be read as part of his deposition. It IS no objection to depositions taken in an ancient suit to perpetuate testimony, and to which both the plaintiff and defendant were privies, that the iiiterrogatories upon which the depositions were Irumed, were kadiny interrotiatories, and such as would not have been allowed at the trial. III. Depositions duly taken in India, and returned in in ludia. tne lorm prescribed by statute, are to be admitted in any case, where there is a judicial enquiry in this country, about any offence, or cause of action arising in India; and are to be deemed, and taken to be us good and competent evidence, as if the witnesses had been themselves sworn at the trial and examined. * IV. Depositions made before magistrates, in cases cf Before ma- inaiisfatighter, ^nd felony, but in those cases oniW, ^^'^^^^ may be used in t/idence, if ii be proved, Ist! Thac the informant is dead, or that he is insane, or thiu he is kept away by the contrivance of the pri- soner; 2nuly. That they were taken upon oath, m the presence o( the prisoner, or at least, that they were read over, to the deponent, and sworn to by him, in the prisoner's presence; 3dly. That the de- positions offered in p.viHftn"^ «»r'" the s^mr^ -.- '- — — — -- ... ...... ^ txr t bii <.« 7A£a«\« «a3 were sworn before the magistrate, without any alteration or addition; but it does not appear es- OS vi f •-■■' 64 DEPOSITIONS. m [Sect. 20. sential, that they should be signed by the absent witnesb: and they will be evidence against a pri- soner, in the county where he is tried, although they were taken, in a county where the crime was iiot committed, and wht.e the magistrate had no original cognizance of the offence: and may be used by a prisoner, to show a variance, between the testiinony of a witness at the trial, and hig de- position before the magistrate. Parol evidence is not fidmissible, to add to, vary, or discharge de- positions. V. Uy coicne. Depositions taken by a coroner, in oases of mur- der and manslaughter, when made in the same manner as depositions before magistrates, may be used in evidence, under the same restrictions, and in the like cases; and like them, they should b^ proved, to contain the true substance, of what was deposed upon oath, without any alteration or ad dition : but it does not appear essential, that it should be proved, that the prisoner wdis present at the time they were made. In Ecclesi- astical Courts VJ. Depositions taken in the Ecclesiastical Courts, in causes within their jurisdiction, seem to be ad missible in evidence, upon the same footing, and under the same limitations, as depositions in chan- cery, although it is said in a book of gr* at autho- rity, that they shall not be admissible in any case whatsoever. Sect. 21.] JUDICIAL D0CUMEVT3. SECTION XXI. *>i OTHER JUDICIAL DOCUMENTS. 1.- 5>.- 3.- 4.- 5.- 6.- 7— 8.— 9.— 10.— 11.— CONTENTS. -Rules of court. -Writs. -Inquisitions. ' -Examinations. -Voluntary affidavits. •Fines and recoveries. ■Certificates. ■Probates of wills. ■Letters of administration. •Discharges under the insolvent debtor's act Awards. I. Rules of court, are evidence that the courts Rules of have ordered as therein .stated, but not of any allesa- <-o»"-*- tionsin them, which are the mere suggestions of the parjy who obtained them; they are proved, either by production of the originals, or by office copies, which a IS not essential to prove have been examined. 11. Writs are good evidence, to prove the actual Writs, 'me ot the comnencemenf of a suit, whenever that '3 material, as to show, that an action bad not been commenced, until after the expiration of one tuonth from the delivery of an attorney' s hxW; or in til after the hrst day of term, although there is only a general memorandum on the declaration, 1 i ,j 1» M I ^^ JUDICIAL DOCUMENTS. [Sect. 21. and the cause of action had accrued after the com- mencement of term; or to bar t!'.e statute of li- mitations; or to negative a tender, stated in the pleadings to have been made before the action vi^as brought. They are also good evidence in justification of a badiff, for taking the g;oods of ihe plaintiff, if he be the party against whom the writ issued ; but if the action is brought by any other person, claiming the goods by virtue of any colourable title, the bailiff must not only prove the writ, but also the judgment, or information, upon which the writ is founded. 'ioiurn. The sheriff's return duly made, and filed, is prim^ facie evidence of the facts there stated, as .or instance, if he has returned a rescue, or that he has levied a certain sum cf money; although in the farst case, it would be open for a party indicted for the rescue, to r/iow that the return was false; and in the latter case, the ,eturn would be no proof, that he had paid over the money to the judgment creditor, so as to charge him in an action for the receipt: yet generally the sheriff's return, is strong evidence against himself. How proved Writs are either not returned, in which case, to prove them, the original itself should be produced; or they are returned, when they become a part of the record, and are proved in the same manner as any other records, l)y examined copies from the judgment roll; which is conclusive evidence, of all the proceedings which it sets forth; therefore in an action for use and occupation, by tenant by cleyit, an examined copy of the judgment roll, is evidence of the issuing, and return of the elegit, without provhig the writ and inquisiti. . Writs may also be divided into such as are mere inuiters of induce- ment, which are proved Ly production; or such as are the gist of the action,- hen a copy from the re- cord is necessary to prt . them. The best evi- dence to prove the issuing of a wc'M, is an offic< I ■''h Sect. 21.] JUDICIAL DOCUMENTS. ^ copy; and before secondary evidence of the issu- ing can be given, it must be proved, that proper search has been made for the original at theTrea- siiry for It IS not sufficient to produce the filacer's book, and to prove a notice to produce the writ. III. felo de se, which are not conclusive of the fact tound hut may be removed into th* Kine's Bench, and traversed by the executors and ad! muustrators of the deceased person; or of IWam tecu. wh.ch ,t seems are conclusive, and not U^ versable; or inquistions po*^ morte.n, which are adra.s.ble in evidence, though not conclusive. -icily. Ut iunacy, which are admissible evidei. e in cnmmal as well as civil ca. s. thou- h not coi- clusiye so as to affect the rights of third persons. JuJ' /"?"''"r' ^y ^^^ '^^"*^' "«• <^o'-"ner, by V utue of he.r office, or under special writs, and tliose found by commissioners specially appointed which d regularly taken, and under a competent authonty^ ^re admitted as evidence of the facts there found, even against third persons : but when inquisitions have been taken without legal autho nty they are inad. visible; therof -e, an inquisition nadeby a,A.,v^', jury, to ascertain who was en- .tied to -he property of goods taken in execution, "s not admissible evidence, even against the she- ntt in an action cf trover, ..rought by the party m whose favour the inquisition was found, since it was merely a proceeding c. the sheriff on his own ai'thority. When inquisitions . vffered in evidence, the H,.w proved con.nnssion under w ... they ere taken, ought re- gularly to be proverl, ..v shown cO be lost, except, wliere the commission J« of such public notoriety as the co-.>mi>^sioFi ot ,7.,. T///. that it revills of personal property but they are not received as proof of wills oT eli nrC pertyeven though the original is proved to beC and they are only produced to establish a ^X^f. but in some particular cases, the iedyer-dk of the Ecclesiastical Cot.rt,or a copy of it,will be second! ary evidence of a devise of a real estate. A pro- bate whilst unrepealed, is in civil cases, the o^nly proper evidence of the validity of the ^ill, of "he appointment o th. executors, Ind of their nterest in the personal ,perty; as the original «, J it- self .s not ad...s.bh in evidence, without being authenticated by the i^cclesiastical Court, whisf ml on a probate need not be proi^ed foMhtr''''^*^ ^"^ ^'''*' ^^ ""^ P'-oduced after notice Lost for that purpose, an exemplification under the seal of he court or an examined copy of the Act Book or the ortginal will, produced by an officer ofThe cc^u'^^t'^aifd'h ^""-^^'r^ b,-""^ the «eal of that IZh th L"? '"^"^'"'^ '"' '^^ instrument on comt simply indorsed on the will, are good evi- dence of the contents of such will : 4nd an Ix amined copy of the probate, is evidenc'e of the per^ offh ^'^n"''™^^i^^'"^ executor, although a cbpy of the will, would not be evident of thaJ fact pave court, is good evidence to provd. that a probate ha, been revoked ; and a ;,arVLay .how! 71 ^:^ ■ I . %■ ^ » t) '. 72 JUDICIAL DOCUMENTS. [Sect. 2\ that a probate is forged, or that an inferior Eccle- siastical Court, had no juriidiction, by reason of there being bona notabilia ; but he is not aUmced to prove, that another person was appointed exe- \cutor, or that the testator was insane. Letters «>f Administra tion. IX. A party must prove his title as administrator, by the production of the certificate, granted by the' Ecclesiastical Court, if it can be produced ; if not, after having accounted for its absence, he may 8ho\«' such title, by giving in evidence, either the book of the Ecclesiastical Court, wherein is entered an order for granting administration; or the original book of acts, with the surrogate's fiat, directing the letters of administration to be granted, even although subsequent U iters of administration have been granted to another person, if the first be not recalled ; or lastly an examined copy of the act book, stating that administration had been granted, without any notice to produce, the letters them- selves. But the letters of administration will be no ni oof of the death of the intestate. Whenever a party sues as administrator, he must produce the letters of administration, unless the defendant has by his pleading, admitted the plaintiff's right to sue in that character ; and if it appears, that an administrator sues for a greater sum, than is covered by the ad valorem stamp of bis letters of administration, they cannot be re- ceived in evidence, •• X. Insolvent's The discharge of an insolvent debtor, may be discharges, pj-^^ed bjFthe certificate of the officer, under the provisions oi the in&olvent act', andindependently of such provision, a discharge by a court of Quarter sessions, may be proved by the order of the court Sect. 21.] JLDICIAL DOCUMENTS. 73 for that purpose ; and to prove such order in the insolctnt debtor's court, the original entry of the judgment by the court ought to be prcduced, for it IS not sullicient to produce, and prove, the order of the court to the marshal for the discharge of the debtor, although it recites the judgment ; but an imtrumeiit purporting to be a copy of the original discharge of an insolvent, and signed by the clerk ot the proper oilicer of that couit, with the seal of olhce alHxed to it, is admissible in evidence to prove such discharge, without the production of the certificate itself, or proof that tht paper is an examined or attested copy . XL \^lien awards are regularly made by an arhi- Awards. trator, to whom the matters in difference are re- ferred, they are conclusive on the parties to the re- ference, upon all matters enquired into, within the submission; but they are not evidence between strangers, nor as to any matters which were never contested at the arbitration ; and the arbitrator may be examincdio prove, that no evidence was given as to those particular subjects ; or to prove that a par- ticular claim was made, although the award is ge- neral, and contains no reference to such claim. But evidence of partiality in the arbitrators is not allowed, in an action of debt on an award. When actions are brought upon awards, they How proved imist be properly stamped, and the suijmission of all the parties must be proved, either by parol evi- dence, or by the production and proof of the writ- ten instrument of submission. The execution by ' the arbitrator must also be proved, b> the attesting witness, if there be one, if there is none, or he is dead, by proof of his handwriting in the usual man- ner : But where a submission was made to /iro per- ms and such third person as they should appoint, the mere production of an award, executed by the three E ii « »; f W: 74 " JUDICIAL DOCUMENTS. [Sect. 21. persons, and reciting that the two, bad appointed such third person, is not suiiicieat proof of the exe- cution of the- award. Where an original award had been lost, by the mail in which it was, havini; b^n robbed, the court allowed it to be proved by a copy. *.V-*^.' "/ When an order of reference has been made by ■ a judge at a trial, it may be proved by the original order ; if the order has been made a rule of court, and it is necessary to prove it in the same court, it may be done by an oflBce copy, but if in any other court, the original rule itself should be pro- duced. Award by If an award of commissioners under an act of Coiumis- Parliament is given in evidence, the act must be produced, to show the authority ot the commis- sioners ; and if it be a private act, it must be regu- larly proved: but if the commissioners are required by the act, to give any notices or do any other par- ticular act, previous to making their award ; proof of the regularity of such notices, will not in general be necessary, unless the circumstances of the case, raise a presumption, that all has not been regularly performed, when it will be necessary for the party to prove a compliance with the provisions of the act. To explain an ambiguous award of a road, under an inclosure act, evidence of contempora- neous acts, by the occupiers of the land may be received. sioners. 1 \i Sect. 22,] NONJUDICIAL DOCUMENTS. 75 •v5i SECTION XXII. PUBLIC NONJUDICIAL DOCUMENTS. CONTENTS. 3. — Journals of Parliament. 2, — Gazettes, and acts of state. 3. — Ancient surveys. 4. — Terriers. 5. — Parish registers. 6, — Ship's registers. 7. — Parish books. 8. — Books in public offices. 9. — Herald's books. 10. — Histories and public chronicles. 11. — Foreign laws. 12. — Almanacks. I. The journals of both houses of parliament, are Pailiuiu iit. admissible evidence of their proceedings, in both civil and criminal oases ; and those of the house of Lordsh&ye been admitted, to prove an address from that house to the King, and his Majesty's answer, in support of an averment in an information. But the resolutions of either house, are not evidence to prove any facts there affirmed. Entries in the journals, may be proved, by ropies examined with the originals, which need not be stamped ; but they cannot be proved by the printed journals. \y^} E 2 IMAGE EVALUATION TEST TARGET (MT-3) WJi .// ,-4,o "m ii: 1^ r-. it.' FK'' • I*' . lit I' f -^ 78 I'Hiisli le- ^ristors. Ship's rt« g'isters. NONJUDICIAL DOCUMENTS. [Sect. 22. ^rcArfeacon of the diocese; though they may still be admitted, if the circumstance of their being found eiseidhere, can be satisfactorily explained and ac- counted for. Ecclesiastical terriers are always strong evidence against the parson, but not for him, unless they are signed by the church-wardens, as well as himself; anderen then, if the church-wardens are of his nomi- nation, they are of very little credit, unless they Are also signed by some of the substantial inhabitants of the parish; but although a terrier may be imper- fect, because not signed by the parson, yet it will still be admissible. V. Parish registers being in the nature of records, are evidence of the facts to which they relate, and are proved, by examined copies from the register book, although they are first entered in a day book, and there is a variance between that and the register book. A register of marriage, only proves the fact of a marriage having been solemnized between certain persons therein named ; therefore, to establish a marriage, other proof of tiio identity of tho parties must be given. Neither the Fleet books, nor a copy of a regiitry of a marriage in s. foreign chapel, are admissible ip evidence to prove a marriage ; nor in like manner, can a registry of baptism in Guernsey, be received in the courts here. VI. Ship's registers are conclusive evidence, to nega- tive ownership, but are not in any case, a proof of mmenhip, fc r a party who claims an interest in a vessel ; nor will they be evidence to charge a man as a part-owner of a ship, without it is shown, that they vcre made with his privity, as by his having made Sect. 22.] NONJUDICIAL DOCUMENTS. the necessary affidavit to obtain tbe registry ; or that he afterwards assented to such registry, and adopted It. They are not even sufficient of them- selves, to prove a joint ownership, in support of h plea mabntement ; nor to prove an averment, which states the interest m a ship, to be in certain persons, in an action on a policy of insurance ; nor to prove that a ship IS Bniish built as stated in the register, ^hip? registers are proved by the certificate granted by tne registering officer. VII. Old entries in vestry books, are -admissible to p.ri.i. prove an averment in an indictment for libel, or in Books, cases where reputation would be sufficient: there- fore an entry in a .parish register, of different mo- duses, the sum total of which was in the hand- writing of a deceased vicar was admitted. Rate books are made evidence by the legislature, in cases of appeal, at the general, or quarter s, .sions. liooks tor the entry of parish indentures, are in the same manner sufficient evidence of the existence of the indentures registered in them, and also of the soveral particulars spocitied in the register respect- ing such uidentures, in case it shall bo proved to the satisfaction of the court, that the indentures are lost or destroyed. Parish books, are in general open to the in- spection of all persons interested, but those, which are kept only for the private use of the parish, and relate to its private interests, are not allowed to be 'S ''^''^''"' claiming a right aga'nst such VIII. Books kept in public offices, which are authorised Public by competent authority, are in general admissible, «o"'<^ although in most cases as secondary evidence only • and the general rule with regard to such books, is! lit ■t^ii ,i -^ V: 80 NONJUDICIAL iiOCUMENTS. [Sect. "22. that such persons onlj/ who have an interest in their content", have a right to inspect, and take copies of such parts as relate to their interest ; and that when the books themselves are admissible in evi- dence, examined copies are equally admissible : but if an original document is not admissible in evi- dence, unci a copy of it is made so, by act of par- liament, the copy only will be evidence, for the original is not made so by implication. The fol- lowing are cases, where public books have been received in evidence : Hooks J. — The retjister book in the nary office, or in the sick and icreiveil. hurt office, or the muster book., transmitted by an officer of a ship to the navy office, are evidence to prove the death of a sailor. ,2.— The logbook of a man of war which convoyed a fleet, is evidence to prove the time of sailing, 3. — Such log-book, and the official letter of the conimander to the admiralty, have been received as evidence, to prove that the fleet encountered a stornif and that a particular vessel parted company. 4. — An entry in the book at Lloyd's, is evidence of the fact of the capture of a ship. 5. — A custom-home copy of the searcher's report, produced by the officer in whose custody it is lodged, is evidence of the actual shipment of the goods therein speciiied. 6. — A book in the office of the secretary of hankrvpts, con- taining entries of the allowance of certitirates, is good secondary evidence of the allowance of a certiticate, if the book has been kept by order cf the Lord Chancellor. 7. — Books transcribed by officers of excise from specimen papers in malt-houses, are admissi' e evidence against the malster, although not si^^icd by him, and though the excise officers are not called to substantiate the books by proof. 8. — The registry at the secretary of state's office, is good evidence to prove the contents of a license frcm the crown, which has been lost. 9. — An order entered in a book, and signed by the gover- nors of Queen Anne's bounty, is sufficient evidcnc: of the augmentation of^ curacy, without going on to prove, that the money had afterwards been laid out in land, and allotted by deed, under the cor- poration 8cal of the governors, to be annexed to the curacy, and that such deed was enrolled vvitiiin Sect. 22.] NONJUDICIAL DOCUMENTS. 81 tire SaPuul '""" ''' execntion, in pursuance of 10.-E„trie., in the b;oks of the cjerk of the peace, of depu- ™inT ''"•«"''^''.*° game-keepers, by the owners of manors, are evidence to show that manorial rights 11 The7,v l''"?'*^'^ exercised by such owners. ^ ' ll.-The dav-books .n prisons, but not «,pte* of them, are S hrr'.'p '\ P""""" "'^ ""*-- «f <^ommittment or distharge of any prisoner, but not the cauL of such committment. 12.-The book .n the ma,ster;s office, in the court of Ki.ig's ^naUnrnJt?T^^^ *° P'""^'^ * particular person Tk ^"orney of that court. i^eSc?.'''" ^* P"''''^ elections, are admissible ^^-^'^U^^'^f -^^^^''^ '^'shop's institution to a living report was received to prove who was the patron v^here^there was a blank' left for his name'J^the* raadp'in'L^T*' particular cases, entries, although Books not made n books of public officers, are not admis- ^^^^'^'ved. bar Jd hr?""'"' r'i**^"' '^^^•"g *»»^t ^^'^ Pa'-ty trieH?th.f ^f,?"t«dto, or authorised such en- part of thV7;i^^"'""^ '"" ^" "^*"»^^^ «^ ^''•^ 1— An entry in a tax^atherer's book, stating that a cart is the property bf two pers is,' will not be evidence autt^ -^'h ' "''^'•""* ^''«^*°g t''^^ b«th the partie* authorised such entry. *^ ZT^"? ""^'^ '" *»•« «ffi" fo*- "censing stage iWiognSiirr^prlV"""^ °' ^ ^«^^^' -•^''-^ IX. minute hont"'f^rl' 'V}l^ ^'•«''^* ^^^^^ ^»o''»- wherhr'-^'^P'^'^'.""' "°^ •"««« <^^««' even ^hen the minute book was found in a private library, .t was allowed as evidence : Bnt an LrcS rom a pedigree, proved to have been taken out of the records, ,s not evidence, because a coov of E 3 '"^ . f >1 I ^ _ i4 '''l^ ,^..>- j-ir ?.. k 32 NONJUDICIAL DOCUMENTS. [Sect. 22. the record might have been had, and it is therefore not the best evidence : and a book found in the herald's office, purporting to be an account of the possessions of a monastry, is not evidence of that 'act. Histor'uv H * t-H' ' if J Foreign laws. Histories and public chronicles, are evidence to prove a matter relating to the kingdom at large ; ♦ jerefore, in order to show that a deed was forged, which boic date i Ph. & M. and gave all the titles to Philip, which lie used after the surrender ot Charles the riflh ; chronicles were admitted to show that he did not take those titles, until six months after the date of the deed. But histories are not {admissible to prove any particular local rii;hts or customs, which do not affect the whole country ; therefore where there was a question, whether by the custom of Droiticich, salt pits could be sunk in any part of the town, or only in a certain place ; on a trial at bar, Camden's Britannia was refused as evidence of the fact. A book published by authority in a foreign country, as a regular copy of treaties concluded by the state, is not evidence, without proving that it has been examined with the original archives. The year-books are evidence to prove the course of the court. XI. Foreign laws, even those of Scotland, when necessary to be proved, must first have iheir exist- ence clearly shown, which is proved like any other fact by appropriate evidence ; after which, if they are written, they are proed by copies, properly authenticated ; thus, a printed copy of the " Cinq Codes" of France, produced by the French vice- consul, resident in London, who purchased them at a bookseller's shop in Paris, was received «s 'evidence of the law of France; upon which the .• *5 Sect. 23.] MIXED DOCUMENTS. 83 court would act : if they are umoritten, they may be proved by the parol evidence of witnesses, possessing competent professional skill. XII. The courts are bound to t ke notice of the ordi- Almanacks. nary computation of time by the c»>lendar, and of the fasts and festivals, whether moveable or fixed, which are thereby appointed : th?rjfc e, when it is necessary to prove any matter relating to time. It IS only requisite to bring the subject properly before them ; for this purpo:se, the almanacks and tables, framed by the statute made for altering ^e style, and prefixed to the hook oi Common Prayer, are sufficient in ail cj>ses.. to prove the coincidence of any particular day of the week, with that of the year, or the time at which any given fast or festival happened. SECTION XXIII. MIXED DOCUMENTS. CONTENTS. 1. — Court rolls. 2. — Corporation books. 3. — Books of public companies. I. Court rolls and customaries of manors, are evi- Court rolJs. dence in cases between the lord and his tenants ; entries in the court rolls, stating the customs within the manor, as found by the homage, and regulating the course of descents and tenures, although no 84 Corpora- tioH bookj. MIXED DOCUMENTS. [Sect.Ti instaacos are shown of their liaving been acted upon, arc adniissihlo evidence to prove such cus- toms. Anci ancient documents, not signed by the tenants, and not properly court rolls, but found amongst ihein, and delivered down from steward to steward, have S>een admitted to prove a course of descent, or a reputation, w ithin a nianor ; but presentments by homage, restricting the lord's right, in respect of parcel of his demesne land, to turn so many cattle only on the waste, when not acted on, have no weight against an uniform contrary usage. Court rolls are open to the inspection of the lord and tenants, and any one who has a prim^ facie copyhold; but not strangers, who have no concern with the manor court, or court rolls ; and when they are used, are proved by the production of the originals which need not be stamped, or by exa- mined copies. II. Corporation books are evidence in suits between any of the members, or by persons against the corporation, but not for the corporation, to sup- port a claim again:^t strangers, except in questions of public rioht, such as the swearing and admitting freemen : And when used, it is necessary to prove that they come from the proper place of deposit, and tiiat they have been publicly kept, and that the entries have been made by the proper officer, except he was sick, or refused to attend, when entries made by a stranger would be sufficient. Corporation books are open to all the members, either in disputes between themselves, or m ith third persons, but are not in any case, accessible to stran- gers ; which rule extends to corporations sole as well as^aggregate. They may be proved by copies'owA the court will not order the originals to be produced, unless an inspection is necessary, on the ground 8A ^^f' 24.] DEEDS, of ail erasure, new entry, or other circurhstunce u Hcli lenders tlie autbenticily of the cony doubt- Ui\, and an inspection of the original iiecessary. III. Books of public companies, or copies from Books oi thera. are evidence between those persons, who f^"^''^- ^o'"" are interested in them, cither as asainst each other. »''"'''''• orapmstthe company; thus the books of the East India Company, are evidence in a cause between parties possessing East India stock; the Bank books, are good evidence to prove a transfer of stock; and an entry in the South Sea Company' ^ books, of the minutes of a license granted by them, IS admissible in evidence, without sailing as a witness the officer who made the entry. Books of pubhc companies are on/y open to the impection of persons who are interested in their contents. SECTION XXIV. DEEDS. CONTENTS. \. —General rule, as to the admission of parol evidence to explain, or alter them. •l.—First exception, when an ambiguity arises from extrinsic circumstances. ^.—Second exception, explanation of ancient char- ters or deeds. j.~Third exception, evidence of the grantors title o.— Fourth exception, evidence of a different con- sideration. a— Fifth exceptim, evidence of a different time of delivery, -' m r't 5 ' ,-'' i*' i HU DREDS. [Sect. 24 7. — Sixth exception, proof of a customary right not expressed in the deed. 8. — Seveyith exeeptiou, fraud or illegality in the creation oj the deed. J). — Of the exeention of deeds. 10. — I low praeed, when in the possesion of the party, if attested, find the witnessesi can be produced, 11. — How proved, what the witnesses cannot be pro duced. 12. — How proved, when not attested. 13. — In what cases the execution need not be proved. 14. — floiv proved, when in the possession of the ad- versary. 15. — Of notice to produce. 16. — liow proved, tchcn in the possession of third i|,',' persons. ' 17. —How proved when lost, or not produced after notice or snlrpcena. 18. — Proof by admission. 1 9. — Proof by enrolment. Deeds being the highest description of private written evidence, are themselves the best proof ot the facts they contain, and of their maker's in- tentions ; and in their construction, which is for the court, and not the jury to determine, regard must be had to all their parts ; and the words aod phrases are to be understood, according to their common acceptation, at the time the instruments were made, and with reference to the nature of the subject, 'i he general rule, with regard to the ad mission of par'-l evidence, to explain the meaning, or to add to, vary, or alter the express terms of a Kxceptions. ^g^^^ jg^ thp t it shall not be admitted, except in the following particular cases, 1st. When, although the deed itself is clearly expressed, some ambiguity arises from extrinsic circumstances : 2ndly. When the language of a charter or deed has become ob- 8cure> aod the construction doubtful from antiquity: Geueral Rule. ^Ct. 24.] DEEDS. Jrdly. When a grant appear , uncertain from not .ou,g ac«,.nunted with the ^rra.:tor\s estate at the Ume: 4thly ro show a ^litTerent consideratio,! consistent wuh but not repugnant to that state.l .n the deed Useh : 5thly. To show a ditteront time ut delivery, from that, at which the deed purports to have been made : (Uhly. To prove a customary r.ght. not expressed .n the d.ed. if not inconsistent w.th any of .ts st.pu at.ons : or. 7thly.To show fraud or .Hegahty n, the Jorn.ation of the dee.l. But if a tr^hT "" ^'^^''^"""^'.V. <>«• defectively expressed. h.i the court cannot even by reference to The con- text collect the meaning of the parties, it must be voui on account ot its uncertainty. II. The lirst exception to the general rule, is that i.» *^ ;i;etr"f\"!";^ ^'^''-^»-deed appe;::^'pt ;Sute I'e face of it, o be clearly expressed, some km- •'*'°^''^"»y- b.gu.ty arises from extrinsic circumstances, the courts wdl receive parol evidence, to explam such ambiguity; under this exception the followlR cases have been decided. "wiuig 1. -Where a party graufed a manor by a particular namP and he had two manors of that namerparo" e^Sc^ 2 W.r/ "^"""^'J. f" .^''«w >* J'icl. of then, he mtant 2.-W ere a man having two manors of the same Lmo ev.ed -Afineot one, vithout distin^uishin- wS' paiol^evidence was admitted to show which was ' "^irEI!'''' i" "'^ occupation of a particular per- os'how ^J^;"*^";^'^^' Pr» evidence wa. admit^ted 1,^^ >, ^ "" *'^"'"' '^*"*"'' "^3s under the premises ad not been occupied by that person, and theS Old not pass under the demise "lererorc ^.-Evidence of- nsage was received, to show that a ^o!tlv t^nar-.f ft-.r !tf= U;;Tt = i=!? ihr. .- s-- .--.«■- -. will only take an estate for tiie grantor's life. . « vi ' » M • •■■ '!'"•. • '..■ .W 00 D£EDS. [Sect.24. 1 1 > ' K^'^ r^"^' 4th Excep ? tion. Different .'» '^i considera- *»*'■ J tion. Wi i i ri .ti V. The fourth exception is^ that parol evidence is allowed, to show a different consideration, con- sistent with, but not repuguant to that stated in the deed itself; the following cases are iliustrations of this exception. 1. — If a deed is expressed to lie madr for divers good con- siderations, the bargainer may prove by parol evidence, what the particular consideration was, whether money or other valuable consideration. 2. — Where a deed was expressed to be in consideration of £'2Q. i>arol evidence was admitted, to prove that by an agreement made before the execution, the consideration was altered to jESO, which was paid. 3. — In cases of purchasing estates within the staiut: relat- ing to settlements, parol evidence has been ".J- mitted to show, that in fact, tl-e consideration given by the purchaser was less than £30, and not bona fide paid, although the deed expressed a greater consideration. VI. 5th Excep- '^^^ fi'^h exception to the general rule, is, that tlon. parol evidence is admissible, to prove a different VvtX!'' ^^' ^"^^ °^ delivery, from that stated in the deed itself; the following are cases under this exception. 1. — In an action of debt on a iond, the plaintiff may declare upon a bond bearing date on a certain day, and prove a bond delivered on another day. i. — In an action on a deed, the plaintiff may state in hii pleading, that the deed was indented, made, and concluded, on a different day, from that on which the deed itself professes to have been indented and concluded. 3. — When a deed purported to bear date on the 20th No- Vfiiibei , and was executed by one of two defendants on the 16th of that month, and by the other, on a previous day, it was iummterial, as it did not appear that a blank had been lelt for the date at the time of the execution. Sect. 24.] DEEDS. VII. 91 The sixth exception is that parol evidence may 6th Excep- be admitted to prove a d'st-^mary right, not expres- customarr sed in the deed, if not incOi.isistent with any of its right, stipulations ; the following are cases under this ex- ception. 1.— It mav be shown, that a heriot is dne by custom on the death of a tenant forlife, thoui^h not expressed in the lease. 3.— Although no.rigbtto an away-going crop, is reserved in a lease, if there arc no covenants which either in ex- press terms, or by implication of law exclude snch right; the lessee may produce parol evidence, to show that he is entitled to such away-going crop by the custom of the country. i.— Evidence of a custom for an away -going tetmnt, to pro- vide work and labour, tillage and sowing, and all materials for the same, in his away-going year, the landlord making him a reasonable compensation, has been received, although there is an express written afi;rcement between the landlord ^»ul tenant, bnt which is not iuconsistcr* with such custom. VIII. The seventh exception to the general rule, is, that ^.^^ E\*oep- for the purpose of avoiding a deed on the ground of Fraud and fraud or illegality ; a party may give parol evidence, lUegaUty. that at the time he executed, he was so drunk, as not to knaw what he did, or that he was lunatic at the time ; or that it was obtained by fraud, or durets, and wrongful imprisonment, or by menace of life, member, mayhem, or imprisonment: or that the deed was obtained, without the real assent of the mind, having been falsely read over to him, who was a blind man, or unable to read ; or that it ',^as a forgery, or was delivered as an escrow, upon a condition not yet performed; or if the party charged be a woman, she may give parol evidence that she was a. feme covt it at the time of the execution: bnt ,,1 :t;vi r> ii: tU «1. f_„ :ii lowed to prove any different consideration in sup- port of the deed. .41 A ■<♦:•,.' m- i'l I i '■ •Vi- 'I ^1 02 u. I ,.,3; M p..-'t' I' ?i; lUt Excciuiou. jL/i. 11 f\ i V. DEEDS. [5eo/. 24. 1 The follcwing are cases decided under this exception. 1.— In an action on a bail-bond, the court received parol evidence, to .show that tlic .sheriff' had taken it after the return of the writ, which makes it void: and in another caio, parol evidence was received, to show that a bail-bond was .sealed and delivered, when onlv the penal part was lilfed up, and consequently void as to the condilion, which was inserted afterwards 2.— Parol evit'ence is admissible, to show that a mortgage who hasdr^wn a mortgage deed, purposely omitted ♦he covenant for it-deniption; or where there were to be two mortgage deeds, the one absolute, and the other a defeasance, to prove on the part of the mort- gagor, an agreement to execute the latter. IX. The execution of deeds, generally consists of signing, sealing, and delivering ; the first of these IS not absolutely necessary to a deed, unless it is required, J particular acts of parliament, or in the due execution of poA ers. Sealing is an essential part of a deed, although it is not material, with what seal it is sealed, as any number of persons may use the same seal, 01 one person may seal for another with his consent, or evidence may be given to show that by the custom of a foreign counrry, a, peculiar pe/iwarA is used instead of a seal ; ar.d proof that a party signed a deed, which bears upon the face of it a declaration that the deed was sealed by the party, is evidence to be left to a jury, that the party settled and delivered the deed: a corporation seal, is sufficiently proved, by some one \vho is acquainted with its 'impression, showing that it is the sea) of that particuiar corporation, as no evidence of its annexation need b<; given ; and it is said, that the common seal of the City of London proves itself. Aiic atriiveiy ui « ue,iu, is the most 'mportant requisite of the execution, but it may be done with- ■agii tted vere Ithe lort- Of ese t is the tial 'ith ons for i^en '. » oof the led : a me "? nd of int ,h- \Sect. 24.] OEEPS. manner, as by throwinl M /V !. '"*^"J'°" '" «"y he other partVto Tke^ '' ' ^'^^ ^? J^^ '«*^. for Mee.,, fnto^the^l'^laTtrX;- 'oTli^^alf '^^ ng a «/rfl„^.r to deliver it for him ;,r „ fh^ of a corporation, bv affixino- h ' "^ ^^^^ Khich is Tquivaleit to^ mZl nluZT' ^-'' >vhere a corporation has gi^eVr le t^ /'.f'^^'P' Meliver a deed, when the deed vlln 1'^^^^^""^ ntil actnally delivered I„ «M ' "° ''^ *^^"'«' ireexecuted'«nder;ower/o:LTr Thr^^^ mist execute in tlie namp of h- ^' • ^^^'^^^ hat be done, it is no ^ater al in'"whr^f "' 'J 'ords such execution is denofpd K Zt •*'''"™ °^ >fihe name. Rejrularlv the «^ ? ^''^ signature hould be produced and hl^T" '^^^"«'-"«y itself - an as^ignmrnJXttL'^^;;^^^^^^^^^^^ »(ler an eiccution, made in the nan.! ! j cuted under the seal of office o the MT^/t fh" "der-sherff, mav be Drove.l wi.k . l-"'- 5^ "" lenlt s name. I he execution of a deed i. :„ ;rasuifieie„tly proved by evidenct'of t ^ S:! "M, alter he had done so, brouuht th. i j ll'e attesting witness, and old him haf he fj «uled it, and desired him to attest i. ; »"gh the party had executed the deed 'n To" B, tTlh""^ "",';" ""^ ''«'" °f 'he witness -" o:^7d:r'th'';e';ts'di;e:ti^^^7«'>" <" >> -«-"- "■'i»™en,, it must bo attes d 7". ^ ->'" ""'.°'' °""'"^"- »rvane o,„„the>.J,S.r,S^^^^^ 'esiauon only expre;^i„glhat";L^a ^l^r^e:!; OS V , ■ i •*• ■-S^:-J 94 DEEDS. [ '^**'* ^ two seal., .s nat f^P" > "7" n„t a good exec 3._Aii «ica>arty making the deed. XI. If it be proved, that at the time of the trial, Attertinf me attesting witnesses are dead, blind, or insane; witnesael or have become infamous, or interested subsequent "*^ '9'^^- to the execution of the deed, or that they are absent "*^"^' jiQ a foreign country, even Ireland, either for a mrmanent residence or a temyorary purpose; or that they have set out for the purpose of leaving \^^ kingdom; or that from circumstances, it mav n^uiy be presumed that they have left the country; Ob .^.;'i -I H-.' ] h^: 90 "I h . ■ ..1 •-■ % m DEEDS. [£,..t. 24. or that upon enquiry at the admiralty, it apptars that they are^ serving in the navy, but in what ship, or on what station cannot be ascertained ; or that on any other account,they are not amenable to the process of the court ; or that they cannot be found after strict and diligent tnquiry ; then, after proof of any one of these circumstances, the execution of a deed may be pr^.ed, by evidence of the hand- writing of the witness, and if there be more than one witness, It will be sufficient to prove the hand- writing of only one of theni ; but proof of ilinets, or that the witness is keeping out of the way to avoid being arrested, are not sufficient reasons for dispensing with the attendance of the attesting witness ; and although it is usual also in such cases, to prove the handwriting of the parti/ executing the deed, it seems to be unnecessary in cases of deeds executed in this country, except to show the idcn- tity of the party. By statute, deeds executed in the East Indies, when the subscribing witnesses are resident there, may be given in evi'' nee in this country, upon proof of the handwriting of the parties, and of the witnesses. XII. No attcstiiic But if the deed never vas attested by any one, witness. Qj. i^j^j ji(.fi(io^s names upon it as witnesses, or was attested by such as were legally incompetent at the time of execution, or by. persons who had attested without the knowledge or consent of the parties, it is the same in effect, as if it had never been at- tested at all; and maybe proved, by the evidence of any person, who was present at the execution, although he is not indorsed as a witness ; or by the acknowledgment of the instrument by the party charged, or by proof merely of h»« handwriting, which may be established by witnesses, who either ■' r -j ' '^*'^'- 24.J DEEDS. having received letters from hira. are acquainted with h.s handvvrmng; and such witnesses are allowed to refer to the signature, to refresh their ■".T ?;■?* r T'^ comparison of handwriting. Compari With that of any other writings acknowledged to be •''>" o^' genuine, will not be sufficient proof of a signature **^''"- in e.therrnm.Wor civil cases; except in the case oi ancient deeds, which may be proved by a wit- ness who has merely inspected other ancient au^ thentic documents, bearing the same signature. Handwriting cannot be disproved by a person, who has merely seen the party write since the com- Diencement of the action, for the purpose of making nim a witness. ° 07 XIH. The execution of deeds need not be nroved vvv,nn under either of the following circumstance^s : IsV. cSS When upon production, they appear upon the face "«» ^e ot them, tree from rasure or interlineation, and to ^ ' be above ihirty years old ; and are proved to have come from such custody, as to afford a reasonable presumprion, that they were honestly and fairlv obtauied, and preserved for use, and are free from suspicion of dishonesty ; in which case, the law makes it a peremptory rule, to suppose that the witnesses are dead, and does not require any proof of the execution ; unless the deed be a bond, when payment of interest, or some other mark of auth^n- ticity must appear, as otherwise the presumption ot law IS, that the bond has beer satisfied : 2ndly VVhen they are produced, under ., rule of Court fot that purpose: 3dly. When they come out of the possession ot the opposite party under a notice to produce, and he claims a beneficial interest under them ; or is a public officer, and in the discharge of His official duties, was obliged to, and did prepare Whl .^®^'!' ^"^ ^f\ ^^^^ d.ily executed : 4thly. ' "£'' tiic party, or his allorney, deliberately arfwtlf ■i- » i A M t ' '.m ^^^ "%»:■-".;"« DEEDS. [Sect. 24. the execution, for the purposes of the cause : or 5thly. Where the deeds have been cniulkd pur- suant to the statute. »>'% f I'o.ix'.is'k I't iidvi'i - '^ • ground that the other has been lost by the opposite party. Nor will a party he obliged to produce evidence against him- self, although he has such evidence in court, and has been served with a notice to produce it. Nor is a plaintiff who is an original party, compellable to produce tor inspection, an instrument on which he is suing, on suspicion that it is forged. XV. Notice to Notice to produce, must be served either upon ^ the party, or his attorney, within a reasonable time before the trial ; but service at the dwelling-hovM How »erv- of the client, or the office of the attorney is suffi- cient ; and although the notice is usually in writing, it may be Tiven by parol, but when written, it U bad, if entitled in a wrong cause. When tliere is a close privity between any parties, a service upon either of them, will warrant the reception of se condary evidence, although the document is ac- tually in the hands of the party not served ; as in the cas^se of the owner of a ship and the master, service of a notice on the owner, is sufficient to let in secondary evidence, although the document i« in the han«lsot'the master; or if it be ^ ^ .i that a deed came into the hands of the defen' > other, cnde. whom he claims, a service of nouc^ ^o pioduce on the defendant, will be sufficient to warrant th« reading of a copy, even thongh the defendant has sworn in an answer in Chancery, that he has not got the original. ed < - 101 ^''f'- 24.J DliEDS. Notice to produce shouM be given in all cases, ex- W1h» w- cept, 1st. VVhcrttroiuthe nature ot the proctrdincs '"'"'T'- the party has suU cient notict; from the nlradints • as ... actions of t.ovcr for bonds, agreements, im»- missory notes, ccrtifieates of ships r* ui^try • or on prosecutions for stialint, bills of exchan-e, or other writings: or in trials for /rc«*o/i contained in let- ters or other papers, where the prisoner has been proved to be in possession of the ori-inal docu- mtuts: 2dly. >Hien the party has fraudulently ffot /WMmo/tot written instruincnti beIon-ri„jr to third persons: 3.ily. Where ihere is a coM/i/er/,.,/, v^hich will be evidence against the jmson who signed the original, or any one who claims in privity under inn. without any notice to produce such ouginal- but a counterpart cannot be read in evidence against a stranyer, without accounting for the absence of the original, by proof that it is lost, or IS m the possession of the partv, i.nd that he ha^ bud notice to produce : 4thly. In actions for wa^es by seamen, whether engaged on board Britisk ships on foreign voyaye^, or in the coasting trade, t.ie defendant is bound to produce the ship's ar- t'des without notice, ii' he intends to resor^ to thini in proof: or othly. Where the party who h, s possession of the required e tak< n, and to produce the ori- ^inui at th- trial. tice is given by parol, it may be How pror- t'd. J \\ Here :io 102 ■,.M ♦ iA 3U ()! tliinl Pi ont when 1(1 -t, c\C. DEEDS. [Sect. 24 proved by any person w ho heard it delivered ; and a written nolice, is proved by a duplicate original, or an exanuned copy ; and v/hen a notice has been given in both forms, it may be proved in either; but it seems that no notice need be given, to pro- duce a notice calling for the production of do- cuments. XVI. AVhcn deeds are in the possession of third per- sons the usual course is, to serve the parties with a writ of SiibpoiUci duces tecum, which oUitjes them to attend at the trial with the deeds, and to product tliem if required b\ the court; but which production the court will nol compel, if it will tend to sidyect the witness to a criminal charge, or any kind ot penalty, or fort* ituro; but by analogy to the rult; adopted with respect to parol testimony, a party uill not be excused from producing a document in his possession, and which is relevant to the matter i issue, merely on the ground that it might esta- I'lish, or tend to establish, that he owes a debt, or that it might make him liable to a ciml suit: but if the party has no excuse for not attending, and pro- ducing the document, by neglecting to do so, he makes himself liable to the same punishment for the contempt, as if he had been served with a subpoena ad tesiiticandum ; and if he states as an excuse for not having ohcj/cd a writ ol suhpa'na duces tecum, thai he had delivered over the document to the op- posite party, after service of the writ ; secondary evidence mav be given of the contents of such do- cument, and it will not be necessary, to scr\ethe party with a notice to produce. But if the sub-^ poen^ is coniplied with, and the deeds are produced, they must have their execution proved in the usual manner. When deeds are lost, or destroved, or are no' 24 .1 .^ DEEDS. not Sect. 24.] produced by the adversary after notice for that pur- pose, or by th.rd persons, althoucrh served with -, subpcBna duces tecum; it is necersa'irhl first place, to account for their absence; either 1st Bv Zt1ueZr'''V''''' "'^ ''' there are ;.eS parts the loss or destruction of the u-Aofc of them should be saustactorily proved: 2dly. By showin" that .t may reasonably be presumed; that thev a^e' swearin^rSV. "'"' ''V '^ '^'^^ by alX rr/. f '^, ; .. ''^•♦'/''*''"^^ ^*''''^^^" «^'^ as useless and that he beueved them to be lost, or destroyed ' or by proving, tliat every search and 4«^ 7had been made for the documents in question. v4lou access ; and ,n general the loss, should be proved y the person, iu whose hands thev were at 'he •me of the loss, or to whose custodj; they were fast raced : or 3dly By showing, tha{ they arefn the possession of the adversary, or third persons in the manner be ore mentioned. uc counterpart in existence, it may be prov d an examined copj,; and if there ^is noVopy, oh] / / '". ^^"^^^^l^ent deeds, and even by s Ion r'' ""'-T'^] unexamined, if possession las gone along with the deed for many years • i::l;;i^!.^^'-'*''.^»-t,wevide^^n::y 103 I 104 DEEDS. evidence, may refer to entries made memo randum book to refresh his [Sect. 24. m his memo- t-f- > ^'> '- r i ^ Proof by admission. Proof by fMioInient. XVUI. The party to a suit, or the attorney on the re- cord, or even any other attorney, if it be satisfactorily proved that he was the authorised aiiciit of the party, may de'tiberately admit the vaUditv of a deed, for the purpose of a suit ; or a party may do the same thin^j; by h\s pleadings; in which cases, the consent of the parties supersech s the necessity ot the usual proof, and the mere production of the deed, without furtl.er proof of its authenticity, is sufficient evidence of its contents : but a mere pa- rol admission, not made for the purposes of the cau«e, or even an admission made by a party of the execution of a deed, in an answer in chancery, are not sufficient. XIX. In cases, where the lecislature expressly directs aceds to be enrolled, an examined ctpy of the enrolment, is good evidence of the autluntcity of a deed, against all parties; but where deeds are en- rolled merely for safe custor/i/, the enrolment, is only evidence atjainst the party aoknonicuginir the deed, or persons claiming under him. IS ^ect. 2>.j WILLS. SFXTION XXV. WILLS. CONTENTS. -~At!u7'' 'fr'"^fi WLiLS. [Sect. 25. The ioUowing are cases, which show the appli- cation of this rule. ',•»■■ 1. — If a man has tiro sons, both of the sanio name, and coiK<.iviiig that the elder of them is deaii, devises his land to his son pencrally ; the younger may pr(>(lucc witnesses, to prove his father's intent, and tliat he tliontilU his brother was (i< ad ; or, to sliow, that at Uie time of ni;ikinp his will, he named the son by the addition of younger, btit that the writer left out that description. !<;. — Where a de> isec gave an estate to her cousin by name, and there were two persons, father and son ol that name, evidence was admitted, to show that tht so» was meant. 3. — When a devise ^as to a person by his christian and surname, without any other description, and no such person appeared to claim 1'"" legacy, and it did not appear ihat any such person was known to the testator, parol evidence was admitted, to show that t'l-; names had been mistaken, by the person who vook the instructions tor the will. 4. — Where a blank wa- Lft, for the christian name of a per- son to whom a bequest was made ; evidence wa^ adn'itted, to prove acts of kindness on the paic ol the deceased, and that he had said, he would pro- vide for the j)arty who claimed the bequest, and had left him something in his will. 5. — Where tiiere was a bequest to " Mrs. G.'', evidence was admitted, to show who was intended by tlie initial . 6. — AVliere there is a devise to a person by a particnbi description, parol evidence may be given, to show that it neither applies to that ncrson, nor to any om else, and the description niity be rejected as sur- pliissage. 7. — If a devise be made to the .son of a person, by a parti cular christian name, parol evidence is admissible, to sh- w tiiiit such person has only one son, havins a dilierent christian iMine, ard that he is the person intended. 8. — Where a devisee was made to one , by the name ot " Muiy," whose name was Elizabeth, parol evi- ^e'lce was admitted, to show the identity of tlw party, and that there was a mistake in the nan)c. 9.— Where a testator L'ave a sn.n cf money tc '•' ■ four chihhen of a woman, and it appeared th liai^ Sect. 26.J WILLS. :o :i. 12— 11— Il- ls, ho fu?m^, '° '7 ?" '«"" h"«''a„d and two by Lai pro id'ed t tf.:'"" ^^ l"^te«tator, that hj 'le wouhll.Hve notion, rr* '''^•'•""' ''"» *''«» band's children waf received to* 'h ''" 1"* *>""• intended in the be.mest ' '''""^ '"''** *"^ -where a testator beaueathpH i.i. , i • time of making /is wTlI 'or . ^? "°'' ^* ^''^ in that fund, J.avinrsoldo,.t '^'nH "'''.*">' ^^^^'^ anot»R-r fund • evi,tnJ« ' purchased into vvhencethe^li^takearoe'nVthrr''' '' ^"^^ tisfied, ontof thenevv fi.nA » ^''^'^gacy was sa- Imd purchased ""^ '""^ "''"«'» "'^ testator allowed to be ^liSwiTrn e.Weice Zj ^"' ",™ devLor. ^"" ""■"■' ""•= '»<^''«l«l (.}■ tl,e '^''!r„T."„''"''^'' "" «»"*»«»<•«»" good,, a, wool a trunk undrr the cliamber window "ti,f P! Slim to " all :.iwl Is i< a codicil , gave another 107 -( ' 1 y ) - .-"* '1 '■,' • 1 V 1 ;.f'-^i ' .M '&■ 108 1 i?^' V -. v4 IWt' 1 WILLS. II. P; [Sect. 2i ^lu evi- Parol evidence is not allowed to add to, or ^ller (Uncetoai- tJ^g terms of a >vill, or to show an intention of the to tbcni. ^gg^ato,.^ in express contradiction to its stipulations ; and if a will, be o defectively expresseil, that tht; meaning of tlie lu.v isor eiirol evidence is netadiri- si'ole to add to, or alter the express stipulations oti will. ]. — Wliorc a man had three brothers, who rach had ;; son o till' name of . Simon, aixi j^ave an estate to " Mat (hi'w Willis his brotlu r, and to Simon Willis hi' biotlier's son,'' it was held, tliat p.uol evident was in.idmissih'.p, to let in declarations of the il- visor, as to the juTson meant, it beii'i: riear, tliu the jH'ison entitled was Simon the son of Mattli>*' i. — Wlicre a testator, liud devised an estate to his ^lusii- tlan^'hto', by a particular name and descriptuD. 1 1 - I. i _ i 1 .1 I,...., »!.„ „„!.. .r: i'l tlu' fan;ily v lio aii-^wered ti tlie name, but v^a' b.id never lived, or been in the plaec desciibi'lii the will, and a graiid-daughter whose descript 25 I Sect. 25.] WILLS. 100 answered, but whose name was (lifferont; parol 'cnc-e was rrjcotcd, to sImw \>lii(li df tiiu two 4.— C— 7.- 8.— 9.- 10 II evid was meant, and the devise was held wnd. AVhere a testator gave a le«aey to everv of I he sons and danj^hters ofhislate consiu, uii(* liad Uttvw legi- timate daughter, and one son and on- datitjhter illefjjilimate ; parol eviden«e wis refiiMil, to siiow that the testator intended, that the illo -itimate children should take under the will Where a m.iti devised his lands, to one of the sons of a certain person, wh<. had seve- .. sons ; parol evi- dence was refused, to explain which of the sons he meant. Where a testator, after mentioning his wife and niece in his will, afterwards nave a particular estntc to her for life, parol evidence of tlie testator's inten- tion, was refused to show who was meant. Where a testator devised the resiUuL- to his executors, and one of them owed him nioufy on a boiid ' parol evidence was refused, to show that he meant to extini;:;uish the bond. Where a legacy was given to a person, wlio was dead at the time, parol evidence was held to be inadmis- sible, to show that it was the intent of the testator, that the leg.icy should be transmissible. If a blank be left in a will, for (he devisee's nume, evi- dence ( aiinot he received, t;> show vAunt uunic the devisor inteiKb'd to insert. -Where a man (i<:\ised his "estate o^iAxhton," parol evi- dence w i:; not allowed, to show that the testator intended to devw ail his niateinal estate, which consisted of two manors in the parish of Ashtun and another in the adjoining parisii. —Where a man devised all the estate he had at Coscomb, parol evidence was rejected, to show that another estate, which was not situated at Coscomb, but which was formerly united to if, and had ever since been enjoyed witi« the Coseomb esta»e, was in tended to pass under the devise. —Parol evidence ot' ilcdar at ions made by a testator, be- fore the making of the will, are inadmissiitie to construe its terms. ,— If a testator has left property v.iich corrcspofids with thedescriptioi. in the will, evidence is not admis- sible, to show that he intended to inciiuhi other property, not within that descriotion. • 'I t I* ' m iiU i ■• ' 110 Who may attest. WIIiLS. III. [Sect. 25. The rule, with regard to who may be attesting witnesses to a will, is the same, as that regulating the admissibility of witnesses to give parol testi- mony ; viz. that persons who have not the use of their reason, who have been convicted of any infa- mous crime, and who are influenced by interest at the time of execution, are not admissible witnesses to a will; but executors and trustees, who take no beneficial interest under a will, or the wives of such persons, and parties who are equally interested, whether a will be established or not, are good wii- nesses. And by statute several persons who would be otherwise inadmissible, are made good witnesses to attest a will, these are, 1st. Devisees and lega- tees who take an interest under the will, who may attest, and prove its execui. 'i, although by so doing, ♦heir devise or bequest becomes void ; 2dly. Cre- ditors, whose debts are charged by the will upon the estate ; 3dly. Legatees, who have been paid, or have refused to acnept their legacies ; but this statute, does not extend to the husband of a devisee, who takes an estate in nimainder under a will, al- though the wife dies after the 'eath of the testator, and before the determination of the life estate, and the witness survives the wife. t\ I' i IV. How pro- When a will becomes necessdry in eviu...ce, and testiiigvvit- '^ '" existence, it must be produced, and have its nesses. execution proved ; in courts of common law, by any one of the attesting witnesses, who can prove all the circumstances required by the statute to esta- blish the validity of a will, but in chancery, or upon the trial of issues directed out of chancery, all the attesting witnesses must be examined before a will can be established : and althouffh thp Hf^'-'isoo v^QCiX only produce one witness, who°can prove all the '\ Seet. 25.1 WILLS. in statuary requisites, ii the heir makes any objection to the will, he may have it proved by all the wit- nesses, but he must prodnce them himself. The facts to be proved by attesting witnesses, F»ttx to l.i are 1st. That the devisor, or some other person in ^ P'^'vid. his presence, and by his express direction, signed the will , this may be done en any part of the will, (ither at the end, the beginning, or the side, but a mere sealing without signing, is not sufficient : and where the will consists of several distinct sheets, some of which the testator signs, and intends to si|;n the others, but is not able, it is not a sufficient sisning of the whole; but where a will on three sheets of paper, concluded, by stating that the tes- tator had signed his name to the first two sides, and had put his hand and seal to the last, when in fact he had signed and sealed the last, but had omit- ttd to sign the other sides, it was held, that the wili was good, and that the signing of the last sheet, showed that the former intention had been aban- doned. 2dly. They are to prove, that they saw the devisor sign the will, or that he acknowledged to them, that a signature thereon was in his hand- v'Titing. 3dly. They must prove, that they attested the devisor's signature, either in his actual resence, or in such a situation, that he might have seen them it he wished, and had chosen to look, although it would not be a good ex, cution, if the devisor was III a state of insensihiliti/ , or could not by any pos- '^ibiliti/ see the witnesses subscribe ; unless the devisor were blind, when it seems only necessary, to take every precaution to prevent fraud. But it does not seem essential that the witnesses should express in their attestation, that they subscribed in Hie presence o*" the testator, for whether they did so or not, is a question for a jury, to be determined on evidence ; nor does it seem necessary, that they 'should a!! attpa.t at th writing their m the presence a ao mc\ riTVir^ r\»» rv«r o r,^, .IKr lam es, for if a man publish his will, of two witnesses, wh fl IgU It in nis 112 WFLLS. m/. m irf [Seel. 25. prescco. and a rnonfh afterwards he sends for a h.rd w.tn.ss and ,>u -lishes it aoain in h.s pros nee ^ vd! he j,.>od ; and it has been deci.led that th! witnesses may sul.scil.e ti.e .ill at ..r. ./ tin e and that an attestation hy a ;«.r/i. is a snthS suoscriptu.n uithin the stafnt... It IS not necessary, that a testator slnndd ^.,/^,J the ■ strument executed l,y him to h. his uUl o ' that the witnesses shonU attest every page, or ha , but tl ''T .'^'"*';1 '^ ''-•-••''-'V sh.ivn' t , U.em ' bu he whole wdl ou^htto l>o present at the time o attestation, ford a person make a uill on severa th'V% , ''''^'■• ^"^^ ^''^^^ ''' ^''^^•'' witnesses t U^^ las sheet, but none of them ever saw the M tt»//, It IS not a sufhc.entexecutioi:; although the c,uest.on whether the entire will was in :heToo^ s aquest.on ot tact for the consideration of a Z' ULdess .there ,s positive evidence that it was not so.' V. "7wC; ^^''''" *''^" "^ttestino: witnesses are abroad, or dead witnesses O"" '"^''"^;, or cannot be produced, for any of the not forth- causes bclore-nientioiier! if iv in tu > r * V coming, pps^arvf.. o^ '"t^"i'Ofie'} It ^ ,n the first place ne- ^ 8' c^.J^a^tc account for their absence; after which a Tn r^'' T"'"-^ ^y P^oof of their /^a.cl-r^i^n, and the hand-v ntinrr of the ,levisor, and the j m ob'serrd'^rt'ti; '" '" ''"^^'^"^ '^^^ ^'- «^^^"^^ -- oDservcd at the execution. If a subserihins witness deny the execution he Aay be contra.'.cted l,y the others, or if thev a deny ,t, the devisee may o.vo circumstan ia'^v dence to prove the due execution ; orTf one of thei^ cTe'thiu'" "' ;'" ^^""^' of /...^::;Lri5 cate the otU.s who are dtaf/, evidence of their the sub^cnoino- witnesses are dead, and no proof ot ofThe i'i'T'"^ ""!,^^ given, fr^m the «S' of the signature, it will be sufficient to nmvp J. siguu-uie oi the testator alone. ' Sect. 25.] WILLS. VI. 113 When a will is lost or destroyed, or cannot be H<»w pro. • procured from the pos.session of the adverse party, uf," &c' and any of these facts are clearly proved, its con- " ' tents may be shown by secondary evidence ; as by copies, the ledger bonk, in which the will is set out atlenfith, or the original will itself produced by (he ollicer of the ecclesiastical court, and uuler the seal of the court; but a probate is not of itself admis- sible eviden-u; of a devise of real properti;, without positive proof that it is a true copy. VII. If a will has been admitted to he genuine, by the Proof of ex- parties to a suit, or their attornies, it may be ^iven *^'^^'^^^ "" in evidence without proof of th.^ ex-cution ; but the "^'^*^''*^'^- mere fact, that it is abov3 thirty y. s old, will not of itself, do away with the necessity of proof of the execution, unless it be proved, that possession has gone regularly under the will. VIII. A will may be shown to have beer' revoked, 1st. Revocation. By proof of a subsequent will or codicil in writing, or other writing properly executed, in pursuance of tlic statute of frauds, which either in express terms, revokes the former will, or by operation of the law renders its effect niie:atory ; but if a man, by a se- cond, revoke a former will, and keep the first un- (lestroyed, and then cancel the second, or if the second be inoperative as a will, ti;2 first will be revived: 2dly. By proof that it was burnt, cancelled, torn, or obliterated, either by the testator himself, or by some other person in his presence, and by his direction and consent, and with an express intention to revoke the will; for any obliteration of a will, shall not operate as a revocation, when the party was oi an unsound uiiud at the time of the act : '1 * I 114 4/' MERCANTILE CONTRACTS. [Sect. 2 birth of a child, uill afford a />rf- sumption of the revocation of a udl, which would otherwise entirely exclude Ihem, l)ut the j.irth of a clnld will not Im; suf?ici«nt of itself: -Ithly. The operation of awdl of lands may Ih' defcatecfas to a particular property , hy showinj; Miat itwas purchased after the execution of the will: ,>thly. By levying iijine, ox sKii\(^\m^virecoviry of lands, which he had at the time of the execution of a will, ii testator re- voke:< the will, as to those lands; and if a testator after having made his w ill, levy a fine to such nsts, as h.' shall by deed or will appoint, and die without maknitj any new will, the will made prior to the hue is thereby revoked. •■*■ SECTION XXVI. MERCANTILE CONTRACTS. CONTENTS. l.f. 1 . — Admission of parol evidence to explain, or alter them. 2. — How proved. I. 'f :■• Iv- Piiiol cvi- Wherever equivocal or ambiguous language is ShforaU "^^'^ ^" * mercantile contract, it "ay be construed and explained by evidence of Ic jsage and cus- tom of merchants, given by per^/ns of competent knowledge and skill; although evidence of the i!---.--^^. vi t,:a.u>, i3 iiUl UUniibaiutc, i\j COMUttUnH lilt* »«i thrni. Sect. ''6.] MERCANTILE COirTRACTS. ||.-, express wonls of a c /ntrart. But |»arol cvi fence is iiU allowed to alter, >ary, or discfiarjje a iner- caiitiie contract, by showinjr"', that there was a tlif- f( rent agreement between the parties, than that .vhich is stated in the contract itsell; althoui-h for tiie |)'irpose of s/wnhi : I i 116 pi : k 10 11 I'J IJ 1^ MERCANTILE CONTRACTS. [Sett. 20. ** convoy" niounf siicli a cohvoy as shoiilil be ap- pointed by f^oiernment. — \V lifie tlicre was a warranty to sail witb convctf, in a politv of insiirancL',t vidince of tin- nsaj^*- of trade was irceived, to sliow that the warranty meant, to sail witli convoy from the Downs, or Spitheud whu'h were tlie ns|)ertive places where ships n^;.ally joined convoy. -Where a particular avera. loss of £.64. per cent, had bteii .>ettlvd by a men .landi n of adjustment, in- dorsed on the back of ;• pcdicy ; parol jvidence was allnwe\t\]> was insuied from Londcii to Jamaica, and wa- lost iii cousthi^ the inland, a!ter she had touched for some days at one port there, but b( fore she iiad delivered all her oiitward-bound carf,'0 at the other ports of tiie island ; evidence of the iisa'je of merchants was received, to show that the risk ended, when the ship had moored in a;iy port of the island. . — V\ hen tiie words " at und/rom'' a place, are used in a linlicy, they mean the first arrival at the place. — \\'hen in a retnesentation ruat'e to an underwrit' ,-, it was said, that a ship would sail from St. Donungo in t!ie month of Octi-licr ; evidence of the usage of tr.ide was received, to show that i)y that expres- sion, meichauts pcnc ' 'ly understand that the •ship will not sail, until ,lie t'oth of that month. . — Where a m.itc, had entra red to tro a voyage for a sum certain, to be raid on arrival at the port of des- tinati'ii, and iiad taken a note tor the simi, pay- able on such arrival, and ditd on the voyage; evidti.ce was received, to show wlu iber or not there was an u-a^e in that particidar trade, that the ad!!iinistiatn\ of such mate, was entitled to sucii poition of the wiiole sum, as lie had earned pi ior to Ids , . o^'?;r^:s^,!S'--'^^^'Peof^;::;-f tackle emTdovednt' «'!'■"'' " '^ '''^ ""*^« ^"'l tl.e,,«lic7. ^ ^'''*'>'' """'^ '"''''"^^•' in 19.-When in a policy of insnrance, there is liberK- • bereceived to sS'tf ^^"''*'."* "sase can not i^ not allowed a L' Vat' V'"!"' "■'''^""='- '°'"'™*- cantile contract hv "l.! ^*' "' <''*'^l'"8'i a raor- .wee„ the ,S. dkt:;?«„r;;„ aiS' "^ t contract itself. stated in the se„,ati,„„. ■ore.trau tie X,- I ^etS'* ''■'>''■■ ."..u, (.orunna »as s„i„,it„ted fo^VotS^^'' I 4| .■■?| iia %**: " ^''- How cd. (• MERCANTILE CONTRACTS. [Sect. 2G, i.—Whcrc a i-LiintitV covenanted in a charter-party, to sail from London to Gibraltar, and tliirt- deliver an outward caruo, and receive from the defend- ant's ayent an lioincward earjjo, and to sail diiect for London ; it was held, that evidence of a ver- bal direction by the au;ent, to sail to Liverpool instead of Lon/lon, conid not be received. 5.— In an action on skip's nrtides, eviilei'ce of an agree- ment, to pay further wages than those mentioned in the arti«les, wn'- refused. 6— In an action b- .rawer against acceptor of a bill foi the freit'lit ofa chartered ship, parol evidence was refused, to sh >w that the piaiutilf had agreed to rcntw tiie bill, if the cliarterer dni not return be- fore the bill nas due. 7.— In an action on a promissory note, evidence was refused, to prove an agreement, that payment should not he demanded v\hen duo, but that tlit note should be remwed. 8.— Evidence was refused, to show tiiat a note purport- insr to be payable nx demand, was intended to bi payable on a contingency ; as that it was not to bt paid until after the death of the maker, or unt.l certain estates had been sole or unless a bank- rupt's i.llowance would be sutficient to pay tbt amount. 9._}>arol evisto handw":it'^'ic ^;r:i^:;"i- -'i-'"^-! vvith Jl 4 ■/. ^. I "'" Willi .cut nC.ho . ''■ , . ""-'y "'■'■ oxreulcd l.v an it eipaUar ,'''1='' I""''?'" '-'-ccorilS I cipal has III other similar cases moqnised hU •'...l.ority as an agent: ami if a a.n«e» auThoritv s an"a"'"\l'""''"''y^-"'«''- ""e age^nt him: sen IS an a.Iiuissible witness for the ourno.e 7.t r""f "• P.™»f of subscription by a^a L ise, p^:/So'^--,t-K^--3.£p.. i'^EforZh': ""-•"" f°^'^™ absen'cetot^e «iyactioa ol the court, am! to prove that thev e. n„e1 ^'r""^ Joeunients. a'nd were pZe ly' 'tamped if thai were necessarv «nrl .1. . .u " »o;.lul terms? h^? wa,' and l.r. 'r.'^"^'"'""* "^" "'^^•'' ''«'« paid ani-t^x ?e 'over tck" the' d'V'^'?'"^^ "'^ landlord"' JKi't "rt^fat'tf ' '^ r^^ ""^-^-^ ^""•- all taxis •■'"' ''''* '" ^^ V^'^ ^'ear of S.-Where there was a written agreement, to part with the ffr«« and vesture off ascertain meadow nlo evidence was refused, to show tim l.v a'vKa ?o pm w?th?^"1 'r ''"'' "'"^' it wl? intended to pait with he whole possession of the sail and 4.^ParK 7°* t''»t meadow and another letiSe 7i ..f/'?"^*^ ''?' admitted, to prolong ti.e time i'm.ttdinawntten contract, for the dJL«of a quantitv of barley aeuveiy ot '■"^'^or^leWinrtU'"'""'' ^^ ^"«" ^'^^^ *"« *""« b°en » wJ ,'^'"^'"'''" ''"•■t of goods had li^^n inu.onged, when the goods were to Iip .IpI! Teli'v' r^ed?"^^'" '^^' ^''"*^' ^^ * P-t «.ad bet Itl »■ ! I '4} II. *i^'and '';oL'i"rf . "°f ""^"^ ';^'' ^« ^""^'ti«"^ of Ensealed «?H»r ^"'^/^''(^f '^^ of every description, are con- writings lerras cannot be altered, vaned, or contradicted bv parol evidence: althouoh proof of co//a/.>/a facts may be given, to explain the documentf and to show i^e^ntention of the parties: and a p;rty tav III. are required to be proved, they must be nroHnooH ed. - .uai u may appear that they aVe^ jfropeHy > I f-' :r. » IM OTHER PRIVATE DOCUMENTS. [Sect. 21. Stamped, if that be necessary; but an " 10 U" may be given in evidence, without a stamp, as it is neither a promissory note, nor a receipt. It' there is a 8uhscrii)ing; niiness to the document, and he is living, he must heprodncd to prove the execution; but if he is dead, or cannot be procured, on ac- count of absence in a forei^u country, or «)iher suf- ficient excuse, it is suificient to piove his hand- writing ; and it is usual fcrthe purpose of showing the identit of the | arty who executed, to provehis handwriting also, although it does not seem gene- rally necessary ; but an iustrument executed abroad, and witnessed by a fmeigncr residing there, must be proved by evideuce of the handwriting of the vritness, and the contracting party, as it is not suf- ficient to prove that of the latter alone. When there is no attesting witness, the document may be proved by evidence of the handwriting of the party charged, if he himself executed the instrument, or by proof of the authority of an agent, who executed for his principal, and evidence of his signature: and when a document comes out of the hands of the opposite party, under a notice to produce, the party who calls lor it, must prove its ixeiuiion in the tisual way. If the documents are lost, or destroyed, or are not produced; after properly accounting for their absence, and proving them to have had a genuine existence, their contents may be given in evidence by copies, or parol testimony ; but if they would not have been admissible as evidence, if produced, from being unstamped, or from any othercause, evidence of their contents cannot be received, even if they were destroyed by the tcrcngful act of the party who makes the objection. IV. indorsed oc a'dced, although it is strong presump- Sect. 27.] otheA privatr documents. tive evidence against the party who gives it, is not conclusive upon hira that he has received the money tor he may show that the raonev never was paid ' but a receipt in full of all demands, when given with a fullknowledge of all Uie circumstances; will HI the absence o( fraud, be conclusive upon the party ; and the usual acknowledgement in a pol'-u of insurance, of the receipt of the premium from the assured is conclusive of the fact of payment, be- tween the underwriter and the assured, although not so, as between the underwriter and the broker- but a receipt indorsed on a bill of exchan're, is only prima facie evidence of payment by the accepter. Although a party has got a receipt, lie is not bound to produce it in proof of payment, for he may not- withstanding, give poro/ testimony for that purpose. V. When notices for any purpose have been serred. n«»,v^ i notice to produce them at the time of the trial should be given in all cases, except when the no- tices themselves, were given for the production of documents m the possession of the adversary ; as It does not appear to have been clearly decided, in what cases, secondary evidence may be given of the contents of a notice, without calling for 1*3 production in the regular way; although in one case, it was held, that a written copy of a letter ginng notice of the dishonour of a bill of exchange,' and made at the same time, was sufficient, without proof ot notice to produce the original. If the notices are produced, they will prove themselves, but It not. It wiil be necessary to prove the service. >vhich may he done in several ways: 1st. By proof ot personal service, f-ither upon the adverse party, or his atfaruf!/ ; but when there is an agent in town' notices in the course ol a cause, should be givea to him, and not to the. aMrsmsv In tUs, -..-^-.-.t. 2dly. By proof of service at thi dwemn^^/Mmse^og G 3 19$ m n :i\ 'a ■ .* I 1 I H if ^: ^^<|4 OTHER PRIVATE DOCUMENTS. [Sect. 21. the client, or the oflSce of the attorney, which will be sufficitnt in all cases, Ltnt where a personal service is required, by some statutary provision : 3dly. By proof, that the notice was put into the post ojfi'cc, v\hich Is considered sufficient, in cases of notices relating to bills of exchange ; and where there is no post, it may be proved, that the notice was sent by the ordinary mode of conveyance: 4lhly. By prot)f of tlie delivery of a paroi notice, which is sufficient, where its object is merely the production of documents, or generally in all cases, except where a ^^ rilten notice is expressly required; and where a notice has been served, both in writing, and by parol, it may be proved in either waif. The next step, is to prove the contents of the notice, which may be done, by a duplicate original, or an examined copy ; but a copy made by a copy- ing machine, will not be sufficient, without proof, that it was atterv^ards examined with the original, and found to be correct. A notice cannot be given in evidence, if upon production, it appear that it was entitle! in a wrong cause, even if the mistake be made in the most trijling particular. VI. Letters ai.J Letters and entries of third persons, who are entries of strangers to the parties in an action, are not in general admissible in evidence ; but in the follow- ing cases, tliey are admitted, when the parties themselves aie dead, and they would have been good witnesses, had they been alive; although iltacit, or being out of the kingdom, will not be sutilicifnt to let in the entries of third persons, as evidence. 1.— In an action of adultery, letters written by the wife to the luisl)anil, whilst they were living apart froii each other, and proved to have been written, at the lime they iiear date, and when there is no reason to suspect colliuiun, are admissible in evideoce. third per sons as Sect. 27.] OTHER PRIVATE D0CLM!:NTS. 2. — A letti-r «ri»» ,. 1... - . 3.-A 5.-A 6.— ?.- 9. m n ■Letters xMiifin i,,, „ «• • * aiidn' uM r „^*""•"■'" «P''"t. assuring to at.. j,^ . '^ .^^^1 absent, on an exf.«/ agai-jst the r''««lM"Kl.i8 credit ■ ""■' P'"P««^ o»' im; (liflerent nt- sons ?J ^^ '/* '"'!"« '^^-eived Iron, »Hti>factic . of ?res.Lsr ^ « ^"""*:'- «^vner, in l>»vinent of », ch I.^r '*,"'"''• '° "">" "■« iWm. '"""• ""' "" "Slit ta receive ''tl,'/ j'f'"^' ''""^'' ''y « '"aster of a vessel for tlie del, very of noods tn » „..,::_.. '^*^'"^'' ??' —A asM^ns, on pa>, mnt of f. . ,*'''"''S"^*' ««• »»« .ii^^ ^n •! M 1 .>: .§« ^ .t ■"a ite OTHER PRIVATE DOCUMENTS. [Sect. 27. fered ; a» was a liook containing charges fv pre- paring a leaae, to prove the time of exrcntion. 15.-A r^^nJ^wife. book'; which contained --"try of liavins delivered a woman of a child, on « ra^J'- nilardav, wa.reiciv.d, to ,,rove the a«c of the chiUl, ai the time he afterward, .utfered a re U -An enuy'^bv a rector of h:» receipt of titLen is evi- deni^ for h s successor, to prove a Lability to snch tithes. l.-n,l« nf i:; An old receipt of a former rector, in the hands ot '""^ ^ho Sant, for .he payment cf money inheu of tithes, and Which was shown to have probably come to him from an ancestor of the same name, was received as evidence to support a modus. | VII. Maps and Maps and surveys of estates, are eviJenco to ""ey«- show the extent of a man s estate, when it w proved, that they have been made with the privity knd consent of the oumers of th#;,adjoining lands and when two manors were in the hands of one per- son, .nd a map was m*de by him. and afterwarc , oneof the manors was conveyed to another peison. and. at a distant time, a dispute arose as to the boundaries, the map so taken wr received as ev^ dence. But if maps be made, without the privity or consent of the owners of the adjoining lands, as ifa lord de-cribe the boundaries of his waste, or church vcardem cause an engraved luap to he made whereij they describe land which i.n individual claims! to be a highway, they will not be evidence against persons, who were not parties to their being made. VIII. Shopbook.. The shop books of a tradesman or banker, are not evidence in any case, atter a year has expiied, nor are they of themselves, evidence withm t year, unless li be i>»oc/6u, i»ai 5."- =-.. t-.=- - - - --- them is dead, and that the entries are made m h.. 27. pre >i. ry of rarti- r the a re* evi- ty to d.t of II lieu bably name, :o to it is rivity lands D pcr- ?art' , Bison, o the IS evi' irivity (Is, as ite, or made, i vidua! ideiicfc 3 their er, are K pi red; hill the o wrott > in hi> Sect. 27.] OTHER PRIVATE DOCUMENTS. Slnln"/''"!'''"' ^^"^« accustomed to make hat the Jff '? J ' r°' """"^ '^^' business, and contemporary with the fact, was received as con hrmatorv evidence, to prove\hedeLve7; cff .X f he be a v7 ^ ?''"""^«'^^'*^ as evidence, for ourt the !„?• *" ' """"" '^' .)"--isdiction of ..he court, the entr.es can oni , p.oved by himself. IX. bJ m chancery: m ,M 8;ecial ver.ict slating « good evidence to prove the ume o(^ the birth of , «oa, or his legitimacy. * ir? ^1 4 f^, ttft BEST EVIDENCE. [Sift. 28. n- SECTION XTiVIII. BEST EVIDENCE. n P'-; General rule. Cases un- der the rule. CONTENTS. I.— General rule, and rases decided under it. 2. — Exceptions to the rule. I. The first p;oneral rule applicable to the pro(^uc- tion of evidence, is, that the bfst evidence THE NATURE OF THE CASE ADMITS, MUST BE produced; but when it is said, that the law requires the highest evidence, of Nshich the nature of the thiuR is capJile, it is not to be understood, tb in every matter, there must be all the torce o! evidence, which by any possibility, nnj-ht have been procured, and that nothing under the highest assurance possible, shall bo given in evidence to prove any matter in question ; but merely, that the law requires such evidence, as from the nature of the case, supposes that the.. .. no heiier behind, in the possession or pmccr of the party. And ihere- fore a person is not allowed to give any secondary evidence, which fron. its nature, presunnes that ereater evidence is in existence, unlil he has laid a foundation for so di ing, by showing, that such ereater evidrnce cannot be obtained. The following are the leading decisions, whicb have taken place under this rule. 1 -A copy of a de,d «annot be received as evidence, • Jhen the origi:.al, ur a conntcr, nt ca„ l.c p ^ duced ; hut if it be sat.sfacloi. y p.ov.d, that original is lost or destroyed, or ni the hands of the a copy which is then the best evidence of the contents of the deed will be received. Sect. 28.1 «.— In BEST EVIDENCE. 12t 3.— 4. 6.— 7.- 9.— 10.— a.— 12.— an action l»v the owners of a ihip. «jr«ir,«» the huit Indtu Companv, ibr ricisjIitiDK combustible K'M)i|s, w.iliont ,„„i,.,. ,,,• ,|„ j,. „;,,„r,. ,„ „,^ ^^ tain; it v^itsiU-, 1,1,(1, tliat the plaintiff onRht t» prove, that siicli nuicc «as not fjivcn, bv callin* tbe person who cithci.lHiveml, or uce'ivp.l tlie qoo.lH. andbtcanse lie ,li,| not c.ll either of tbem. bnt p.opose.l to >how the fact by secondary evi- ilenci, be was nonsiiited. •In an imlictment ajjainst ,-. person, f-.^r having fet fre to Ins brnse, xvith witent to .lef.and an innunince company; the miiirai re. cannot be proved, bv means ot the ent y in the company's books, unless « notice h.is been given to the defendant to pro- unre the policy. •The contents of a" registered deed, cannot be proved Dy tlie memmial, or other secondary evidence nnless tlure has been a notJc« to the party in- whose possession it is, to produce the oriainal. —Farol evidence is not admissible, to p-yve the taking 01 the toleration oaths, as the fact may be proved, by the records of t le court in which they we/e taken. ^ Dnudalf'sjVI.)na5liroB ,^38 refn^ed, to show whether an oMry was an inferior one or not, because tUe orfsfifial records mi^lit bp had at the auginentatioii olrice. ■ '■ ' •To prove the day, on which th* court sat for the trM ot a cause at nisi imu$, the record ittelf is tli best evidence, and must therefore {»e prodnccd. I'arol evidence is not adinissibk-, to prove a license to trade from the cro\vn',''e\Vn though i> is lost because the registry at the secutary of state's othce 18 the be>t proof of its £xistenre. An insolvents (iischmge, by a court of uuarter ssi- sions, must be proved bv calling the clerk of the peace, and givinj; in evidence the jud^-mcnt of the court lor the dischar}.e, as parol eviueuce, or even an admission is not sufficient. To set aside a verdict and juJimtnt, as obtained by the attorney without the consent o; the client the best evidence, is the affi.-Javit of the client' which must therefore be produced. * A bill for business done in a particular conrt, is not Mitficient to prove tliat a party is an attorney of roll ot atlornies. " Where the ftroceeaings in a former cause, form the in. ducemem to an action, the plaintiff miut Dt9\% Q 3 ff' 4 .11 I ■J.f Hi (I i 1 .,1 i ii Ui s?'*. laO BEST EVIDENCE. [Sect. 28 them, either by the production of the original, or by a coi>y of the roll, even if all the papers are in the hands of the defendant, who has had notice to produce them. 13.- An entry in llie register book at the cnstoin-honse, stating that a certificate of the registry of a sh-p had been granted, on an affidavit made to procure 8ii( h registi y, is not sufficient to prove the affidotit; but some person should be called who has seen it, and knows tiiat it was made. 14. — When it is necessary on the trial of an indictment, to prove ihat a party is an apprevtice, the indentures are the best evidence of the fact, and must there- fore be produced, and proved by the attesting witnesses in the nsual way. II. Exceptions. There are several exceptions to this rule, r#. quiring the production ot the best evidence the nature of the case admits, these are, 1st. Records, which in couits, to which they dc not belong, are proved by exempliiicatiuns, or oiner copies from a principle of public convenience : 2dly. Journals of parliament, proceedings in chancery, in the ecclesiastical, admiralty, and inferior courts, parish registers, entries in corporation and public books, and indeed ill documents of a public nature, and which upon production, would require no collateral proof to support them, may be proved by examined copies; but a copy of a copy, will not be evidence in any case : Cdly. In cases respecting jtut'cea of the peace, constables, officers of the revenue, col- lectors of taxes, or other uiithorised pitblic officers, as si,nrogat€s, and officers in the army, it is sufficient, to prove that they have acted in their several ca- pacities, without producing their appointments: 4thly. Wheu handwriting is to be proved or dis- proved, it is not absolutely essential, to call the writer himself, as it may be done, by other j^erioM ^bo either from having seen him write, or having ^ ' 1 1 ., . _ ■ • _• . 1 • . l_^ jL- tcCCiVeu icilcsa .iuui uiiU, aie abuuau'icu vviiu iuCi character of his handwriting; but (he handwritioi , i U J- Sect. 29.J CONFINED TO ISSLB. of a deceased person, cannot be proved by com- paring It with official returns, made by hira, and signed with his name; nor can handwriting be proved, or disproved, by a person who has merely seen the party sign his name since the commence- ment of the action, for the purpose of making him a witness ; nor by a witness who has only seen him write his name once before, when he used a differeat/orm of signature. ym. ., ■Kit m fl SECTION XXIX. Confined to the issue. 1 si CONTENTS. l.^'General rule, and cases decided under it. 2.^Wlieti evidence of charttcter is admissible. I.: The second rule, is, that the EVIDENCE OT- qmi^i FERED, MUST iN BOTH CIVIL AND CRIMINAL nSe. CASES, BB CONFINED TO THE POINTS IN ISSUE BETWEEN THE PARTIES, fof if it neither tends to prove, nor disprove those points, it cannot be re- teived ; and as all matters, which are admitted by the pleadings on the record, are no longer in issue between the parties, they require no proof. But it may be frequently absolutely necessary, to receive evidence of transactions previous, or foreis-n to thA immediate subject of inquiry, for the purpose of il^/ ^s %^ r-' Cases' un- y;. der the Ist *%v part. I'f w'^ CONFINED TO ISSUE. [Sect. 26. discovering the knowledge of the parties, their motives or intentions. The foUowina; cases, will show what matters have been decided to be extraneous to the subject in issue, and which were therefore rejected in evi- dence. 1^ 1 , - 1.— In an action on a bill nf e ichanpe against the acceptor, who defended on t!it ground that his signatnre was foigtd, evidence was not allowed, to show that the peiiion charged with the forgery, had forged the acceptor's name to otiur bills, and had absconded. t. — In an action against a pntlican on a brewers agreement, the brewer cannot prove, that he furnished good beer, by showing the quality of the beer he fur- nished to othpr purchasers during the same period of time. S.— In a q!>estion between fandlonl and tenant, whether rent was payabV quarterly Qr half yearlyjevidence of the mode, in which oilier tenanis of the same landlord paid their rent is not admissible. 4. — Where the question was. whether the office of registrar to an Archdvacon, had been usually granted for three lives, evidence was refused, toshow that the office was usually so granted, inotber Archdeacon- ries within the same diocese. ' 5. — Where a right is claimed by custom, in a particular manor or parish, proof of a similar custom in an adjoining manor or parish is not admissible; unless it be first proved, that both manors Yiere/oimerly one, or were held under one lord, or the custom is Iriid as a general custom of the country, or of that particular district. 6. — In an action of trespass, when the question was, whe- ther certain common land was the soil and freehold of the lord of t'«e manor, on which the plaintiff had a right of conmon, or the soil and freehold of the plaintit!"; leases of minerals granted by the lord toother persons, in other parts of the unin- closed waste land, were decided not to be admis- sible fn evidence, unless it was firM -.hown, that the locus inqiio formed par^ of one entire waste, to which those leases were applicable, r — Where an issue in covenant, was whether a tenant bad committed waste on a farm, evidence of an no- husbandlikc treatment of the farm bat not amovnt ing to waste, was refused. Sect. 29.] CONFlNEft TO ISSUE. 133 8— Where a prisoner was indicted fGrahurghm,, evidence of Ins tiavMur on.niii ti.da laiccny in tlie same house on the previous day, W4Si refused. The following are cases, where it was allowed. Cases un- to inquire concerning transactions, which had hap- der2d.part. pened previous to the immediate subjectof inquiry, or which at hrst sight appeared "foreis-n to its menls, tor the purpose of showing the nature of the particular casp under consideration. l.-ln order to prove tliat the acceptor of a bill of exrhance. kaew the name of the payee to be »i 'titions. evi! M«5«ire was received, to show that I e had accented similar bills, before they could according to their date, have arrived from the place of date ; and to prove that the indorsee hat^a geneial authority from the acceptor, to fill up b lis with the name of a nctitioiis payee. 1-Evidence of skid and judgment, although in some res- pects rollateial, may be given in many cases to prove the issue. 3.-Fonner threats, ami ill «ill, are admissible to prove malice on indictments for murder 4.-On aij indictment for arson, evidence was received, to show that property taken out of the house at the time ot firing, was afterwards found secreted in file possession of the prisoner 5.-On an indictment for treason, the declarations and se- ditious language of the .prisoner are admiss.ble in evidence. . . : ■ 6.-0n an indictment for sending a threatetiing'/r/Zer, a subsequent letter from the t>risoPer, ex|4aiiatl»<)w by whom it haa heientloie been repaiicd, tor tlie purpose of as- certaining whether or not it is a public bridge. II. Character. In civil cases, evidence of the character of either party cannot be received, unless by the nature of the proceedings themselves, such character is indi- rectly put in issue ; as in actions to set aside instru- ments on the ground oi fraud, and imposition ; or in actions for libel, slander, seduction, or criminal conversation ; in which last act.^n the defendant may give evidence of the previous bad character of the wife, but will not be allowed to prove any cir- cumstances of her misconduct subsequent to the act of adultery; but the plaintift" will not in general, be all( ^d to give evidence of (jrooti character, until it has been impeached by the defendant In criminal prosecutions, which have for their object the punish- ment of the offence, the defendant's character is put in issue by the prosecution ; and the prisoner if always allowed to call witnesses to speak to his general good character, but not as to particular acts: and in cases of rape, or assault with intent to commit a rape, where the prosecutrix's character is collaterally put in issue, general evidence of her bad character, is admissible, although evidence of particular facts to impeach her clmstity, cannot be received, even for the purpose of contradicting hef •nswera incross-examinfttion. i ■^ect. 30.j SUBSTANCE OF ISSUE. 1» SECTION XXX. SUBSTANCE OF THE ISSUE. ■^1 •I CONTENTS. l.-Cenerai rule, and cases to show its application. 2. — Materiality ofavermmts. 3 — Ca»es of material variance. 4. — Cases of immaterial variance. I. The third rule, is, that it is sufficient to General fROVETHE SUBSTANCE OF THE ISSUE; and the n*^*- degree of proof requisite, will vary with the man- ner in which the aliedged facts are introduced, for matters of inducement, do not require such stnct proof, as those facts, which are directly put in issue between the parties. To explain the application of this rule, th.^ fol- Cases of lowing cases wdl show what proof is sutficieut to sufficient support particular issues. P'^oof* l.-In actions on simple contrnrfs, whether of asanmo- sit or dibt, the plaintiff may prove, and re- cover a less sum, than he has demanded in his «.— In an artlon of waste, for rntting down tree*, the plaintiff may prcve a less number clit dovni.than what IS mentioned in ihe dkclaration. 3.-ID covenant tipon a bon.l, conditioned to perform covenants, and hrfi<-h astiDtiori ;» ^,.*«:n- :i,~~- trees, the plaintiff may prove a less number uiao tnat mentioned is the breach. ^ i\ 186 m^ E-*f fl. 4. 5. 6. 7.- 8.— 9.— 10.— 11 — 12.— 13— 14.— 15.- 16.- 17.- 18.- SUBSTANCE OP ISSUE. (Scct. 30 —If a plaintiff declare on a policy for a total loss, lit may recover for a partial loss. —If a iiiainliticieciare in ejectment, for a fourth part of an estate, he may recover a third of one fourth part. Proof of the tender of a larger sum \v;il support an ailepation of tlie tender ot a .smaller sim>. When the issue, was wliellier a slieriff had taken|i man and his wife in enculion, and suffered them to escape; it was held that the issue was sufficiently proved, hy evidence that he had taken the man alone, and that he escaped, the execution heing for a deht due fioni the wife before her coverture. In actions of slander, it is sufficient if the plaintiff prove some material part of the viords alledged on the record. If the issue, he whether or not a party was tsken in execution under a ca. sa. it is sufficiently proved by showing that he was taken under au alias ra.sa. Und* r a count against a sheriff for a voluntary e$capt, the plaintiff is entitled to recover if he prove a negligent escape. Wl ( re a defendant is charged with composing, print- ing and publishing a libel, he may be convicted of the /.riw/iMg-and publishing only, or of composing and publishini; without the print. ng. If a plea in ties/mss alledge tv\o matters, either of which would aHiouut to a justification, it is suf- ficient to prove one of them, althou;:l) the whole be put in issue by t!ie general plea of de injuria. On a vhiirgvoii.ttitt:e,ison,if the killing with malice is proved, the defendant may be found guilty of muHlcr. On an indictment for burglary, and stealing goods, or iobl)eiy,and it cannot b« proved, that in the first case, the offence was committed in the night, or in the second, that the property was taken with violence, the prisoner may be convicted of simple larceny. If an indictment for treason charge several overt acli it is sufficient to prove one. If an o/f, net' at common !avv, be laid to have been com milted against the form of the statute, the allega- tion may he rejected. On an indictment for murder, the jury may find the jirisoncr ^iiiiiy or iiiSiisian^iiitT. On an indictment for murder, by killing with i dagger, it is sufficient to prove a killing witli s Sect. 30.] SUBSTANCE OF ISSUE. 137 •taff ; or in a similar cliarffo, for killing by twiwn OJ one sort, evidence to prove a killing by another sort of poison is adiuissilile. ' The followinor cases w.ll show what proof is not Ca,esof in- suHicieiit to support partcul.ir' issues. sufficient , wu .1 ■ proof. l.-When the is.ue was, whether orn .t two persons were churchiranhns, proof that one w,is, unil not the , , other, was held not to he siiffi(i,iit. 1-Upon an isMie joined on a plea of t.nder, M,at the plainlift, hctorc the action, and after the tender, demanded the snni tendered, he will be ohii-ed to prove the dnnund of the ^peeifi(• sum, for proof of . the demand of a larger sum will nut 8:ipport the ■' issue. ' ' 3.-When the issue was whether Lord Diljware demised or not. It wrfs held, that proof that a persiHi had r demi>ed, who was not Lord Delaware at the time, ot dem:se,hiit had become so at the time of trial, was not sufficient. 4.— If in repfttin the «lefendant avow damage-feasant, and the plaintiff just.fv for common, and aver, that the cattle were levant and conchant, and there , IS issue thereupon, proof only for part of the cattle IS not sufficient. ' $.-If^n an indictment for murder, the charj;e is for poison- ing, proof that the dealh was caused by stabbing, starving, or other means distinct from poison, will not suppoit the indictment. II. All the material facts of a case when put in Materiality issue, must be supported bv proof; and an aver- "^ ^^"■ ment, is said to be material, when it cannot be """"*"• struck out of a dtclaration or indictment, \^ithout getting: rid of a part cssoifiai to the cause of action, or the essence of the offmce, in which case, although It may he more particular than it need have been, the whole of it must be prove.!, or the plaintiff cannot tvcorrr; but itnnmterial averments, that IS, such as may be struck out, without destroying the right to the action, or affecting the charge against a *>*••«>/»»• 4.^ ..<^r;.4 „„*. I » • _ i • - - g" --■^■::zT , ijww-^: i:x;i, ■ ,; piUVCii. /iiiii ail- tUougb an averment might have been unnecessary. • il M I y[ 138 •-a ^h Material tariance. Contracts. SUBSTANCE OF ISSUE. [Sect. 30. it is not consequently imraateria!, for if a party aver an indnrctment on a note payable to bearer, or that he was bapfized, as well as known by a certain name, he will be obliged to prove the averments, allhoij^h they are unnecessary, and might have been 9:i0gelher omitted. iir. Thp facts upon which the action is grounded, or which constitute the ofleiice, having boei- cor- rectiy staleil, wiih all their alteudi.nt ciicumstauces upon the pleadinjrs ; they must he provid precisely as laid, for if the proof, mateiiallv differ from the statement on tic p'eadinus. the vari nee will be tatal, and the whole foundation of the proceeding Til 'l*'. "^'stroyed ; anH a defendant, is not pre- cluded from msistinj: upon a variance, by an admis- «on produced at the trial, "ot the i\u'e execution of the dee.l mentioned in the declaration," but it ^ould be otherwise, if the admission had been, •• ot the deed as mentioned in the declaration." The following are cases of material variance. l.—When « dt-claration stated, that the defendant was in. del)ted, tor Koofls delivered to him, to be sold and disposed of ; and it appeared in evidence, that he had received a dtl atdere commission, on cnaran- teeing tiie solvency of the pnichasers, the declara- -Mion \xM held bad, as the coiuraission was not tlierein stated. 2.-An Hveimcnt, tliat stock was to be transferred on re- qncM IS not proved by evidence tlwt it was to be translerred on a certain day. 3.— Where the contract stated, was to deliver /aWow at 4s per M,„„.; and that proved, was for d» livery at 4s. pir stone and so mndi more as the plaiutilf }'a"' to any otiier person, it was a vai iance. 4.— Lvidence ot an agreemmt, to deliver goods to the Ut tendant, is a variance from a coinit, on an aeree- ment to deliver tliem to another person 5.-AU agi cement declared on, for the sale of oa^s at so miicb per bnshel, means Winchester measure, and 18 not proved, by fivid^nce cf hh a?rssn<£n» ».-. ==^!! by toaie other measure. ^ " •• .— 30. Sect. 30.] SU^S^ANCE OF ISSUE. 190 6.— Under a count, for tiMiir// had and rereived by three d't'f ndants, the plaintiff cannot {j'vc ovidtncc of money h.nl ami n ceived by tiiem, and a fourth pai Int-r wiio is dead. 7. — When the drcLiratioii ^tated a furheitrance, in onn^ide- ratioii of a rcrt.iin sum witli'int a videlicet, cvi- dence of the foibearauce of a less sum was a vaiiaiire. 8. — When tlieconsiderati n for the purchase of sheep, was st.ited as a ceriain sum, and tlie>u:u proved was les!<, it vas a variance because the Kum was not laid under a videlice*. 9.— Wiicn the ileclaration stated the defendanl'stpn cy in one place at a certain rent, as a comidemtion for Ills promise to manage in a husbandlike manner, and the evidence pioved that the land for which the rent was received, wjis in that place and another, it was }* fatal variance in stating the con^ sideration for the promise. 10. — When the |tromise declared on, was for the delivery of good merchantabh- vhenl, and tlie piomise proved, was to deliver good second sort of wheat, it w-a5 a fatal variance. U. — When the declaration stated, that a person was jn&tly indebted, and by the evidence it appeared that sncli person was a feme coccrt, it was a fatal variance. 12._When the declaration stated a contract ta remove goods in a reasonalde time, and the contract proved, was to remove in a month, the variance was fatal. l3._When a declaration stated a contract, to sell goods crpictid by the Kanny Al.nira, and tiie evidence proxid the contract to be of «oods expected by tlu- Fanny and Almira, tlie \;niance was fatal. 14. — An undertaking to diliver goods to a person, is not proved, by an a>:reenient to ileliver goods to the bearer ot'ariceijti for such goods, given by the defendant. 15. — It is a fatal variance, to describe a contmct to deliver soil, as a contract to deliver soil or breeze. 16.— If in an action ay:ainst a cairiir, it isalledged, that the contract was to carry from one place to another, these names are material, and a variance between the pleadings and the i roof will he fatal. 17.— A declaration stating that a bill of exchange was Bills and drawn and accepted at Dublin, to wit at West- Notes.. _._. /« -•-_ ..1 ;_ »:..._j iJiillSIci', Tor u CCriiiiZi 5*5IIi ;iieti;il« j!;viJt.U.ik-;j, without alledging it to be at Dnblin in Iretaod, .« Hi ! ■^1 '^ I H ;i 140 pi SUBSTANCE AiP ISSUE. [5rr>. 30.' mrnn.» thut it wjls drawn in Enirlanfl T,,.- rn„r i. 18.-A lull ,|..,.h„,;, „p„„^ ««d.a«n hv John Tonrb i. W.~V J.n. a l.ii Has alic.lirr.l ro he fr, r«/u, rr crivc.I of a »l.~In va.inr. '"' "'''''''^ «enc,aliy, it vli, a fatal Deeds. vaiiintrc an action against the acapfor of a liil, if the decia ft-ndant.and he hill is made |MVHhle at a cntain lare na.n.d, hot not l.y any | art cnla. per.soi i^ «e.~\Vhm.ahiH Mas .Mated, rv.n under a videi-rer to U fraun „uyv.v person, and on r>od,..tion it an M.-irif|ra' /»././'""'/*' »'■- ''^^ '^n ,, hi. h . , e"? uH b sXari:;,;r'''^"'"'^^'''''''''^-'-«'-M^ ***~^^'''L', "•;■'?;:"■"" ^^^^^^^ ^'^ '''>-""^<' --"venant to often I n..J ''"''■ "" '"''"'''"^^ «^ «" 'i'nes.a' ott n as need or oeeasion shortld ncniire and af 25 -Whe^; h'hIh '""" ^""••" "'«""'« after n^, l^' ""'' ^^ " thi.fr. el nSn".:^'"''" a covenant to /.„•/./ house, I „i , . *'.""'' '""' ""♦'ired that Ihev were bu I, w. inn the tin.e ; i, „«. held, that evidence thn. ' "'"^ ""* ^^"rP"'t the declara- J6.-\V|,en a declaration stated, that /a„d was set out by sr.-A^-here the consideration tor a demise, was stated to ciU TJh 'T"'''^.'?'" >■'"•»-" -^ "n prod ! »:.? !1''.?:T/L"' r'^''".^^ it appeared, to be a, - '-r = =-- -viisiuii uuou oi iiie prection of the fur- Sect. 30.] SUDSTANCE OP ISSUE. 19. 30.- 3J.- 32.- .33, 34. 35. 36, 37 38 atioii of, Ac "a,,, fr.?. „ . '" '"'' '" <'>"«'der. of.l... co;..a eVr "; wT,h r tl "'^"'*'"»'^ ""* part I>e iHte ill th(. i,r,„.,7r ■' •' ' ''^^"^ P«« miscs to ii.c- ica,:it , r."^s!«;'/r^.''i'■' ^' *!•'■ r"'''" '" '^;.^Ju's.::t^i";S::t^ :^: ''-'-«tio„ ,»«»« Record. it. is a fatal variance^ iui^^ "" *''*^^ '"''°'"J. declaration 8. a to the' i u . J.!!^ '"'■.'.'"•''• '^'''e fen(lant,wl.enltwHs!ii, ". ^ 'f'""'*' ""« ^e- it was taken at the imll'?' " 7""' "'"■" '" ^^^^ It vvasa fatal var a. ce .f^ ' clumh.,,, isa va.iance. jury ..n aili.-|/^^ of'r ^ *^' " *•" "ulntment tor per- nu.^dei„da.t\\voreL';»r;' ""''•', ^'^'^J. 'hat party Hs.anltod h^an I t rhr' "'"' r***'"' "'^'^ eneJ to sho<.t I.er ami U ^''t ?'"♦; """^ <''ieat. which theuoi. "t'.m?' ad^h '■'''' ""'•"r'*'^^ i- It i» a fatal "umIcsc.- «„ o^a t'Si^";'! • -A variance het»ecn theda/oV he ictn n o?'"''' v * appears „pon Us prodL ion a, m.?! ^ "''''• " —If a judgment be dcsot.bed as i. a ..,:» ^ ■ reign of the present KinI »n,V h* "."/..^J"-'^^ the 141 m 4 I 'ti 'm 4 143 SUBfTANCK OF ISSUE. [Sect. 30. Ser' u J S9._If a |nH(rTn*nt be pleaded as of Hilary Tfrin, and on r jnodiirtion, it appear to be of Easttr Term, the T variance i» fatal. I 40. — A jnditment was dcrlarpd on, a< against il.FloniiiiK, Jlsq. and on tiul tiel ii-coid piraitcd, it proved to be atrain^t the ri^lit lioiionialile H. l''lemiiii;, Karl of Wifjlon iMving privilege of pecr.tge, the vari- anee wa> fatal. Tortt. 41. — When the ileelai.ilion stated, tiiat the defendant had wron^lfnily plared, and continued a henf) of earjli, whereby the refnse water w-".* pi evented from flowin;: away from his house, down a dileb at the ba( k thereof ; and the evidenr e proved, that the • heap was not oiiginally plaeed .ho as obstruct the vv.iter, bnt that in pr f ., ^ Ser*. 3c.] SUBSTANCE OP ISSOli. 143 liad composed, written, and piibliithed the liheUons mattir; an«l it appeared from the librl itself, tliat be hiid tfiveii leteuixt <« to another work, from whirli flic IiIhI uasiak«r, the varianre w-is fatal. —In statin:: a cHvemnt upon w'« real name was .St. EtlielbniL'a, it was a tdtal variance. When the declaration slated, that the defendant went before the Baron of Walerfork, in a certain conn- ty, and charged the plaintifi with a felony, and it was proved, that the title of the magistrate was Baron of nateiiiark, it was a fatal variance. Where premises «hcre described, as being in Hie parisiiofyt. George the Mar- -, Hloomahinu, ^nd were proved to be in the ,)arish of at. George, BJoomsbnry, ihe variance was fatal. When in ejectment, the premises were described to be sMiMted in two united parishes. and it appeared that they were situated in one of tlum onlv, and that the parishes were smited for inainraining Uieir poor, but lor wo other purpose, the varance was A plea of tender of half a yea,', rent simpiv, is rot Tender, snpported, l,y evidence of a tender of the half years rent, rc(|uiiing the lessor to gei change and pay back ilie properly lax. If a tender be alled-cl, and a tender accomijuiiied by a demand of a receipt in lull, or uwicr a an.dition that It s!ia I be rect ived as ihe whole of the ba* lance due is proved, it is a fatal v,iri^p.-e. 50 51 52, 53.— 54.- oj.— 5(5.— 57 58.— 59.— m ■4 i <0 Proof !'.* r, upou cuiiuiiion tiidt a pariicuiar t'',.^ '■ 144 Cufftora 61 and pre- Ecription. 62 63. Character. 64. Statute. 65. Process. 66.— An 67.— i ft; i--' i Partner. 69. h Policy. Replevin. TO. 71.. Money. 72.- SUBSTANCE OP ISSUE. [Sect. Zo. document should be given np to be cancelled wilJ not support a pica offender generally. .—On a jnstitiroof of a phiries bill of Mid- diesex. v ... When a defendant justifies ni.der a peace officer, andi that peisVtn appears t(» bv meiely a palrolc em f ; ployed by the parish, bnt not a constable, tix evidence does not support the piea. 68.^Aji TiHt Ration that the plaintift gave 6*«7 to thel sheritt, IS not supported by pun ' .hat he paid IIk debt, and £lO for costs into the liands of (be sheriff. —A surviving partner may declare, without namint the deceased; but if goods sold bv Ihe two part- ners, be 'iescrifn d as the goods of the snrvifbr. the variance is fatal. — Wlieie a derla.afion stated that a ship was lost aflffl she had departed on her voyage, and it was proved ( that she was lost whilst at her moorings, it was a a f ,Tal variance. -If a defendant in replevin, avow on a con^ract'Tor ilio rent, and prove a demise of rss. an acre, amounting to £lii, if i» a fatal viiriance. -An averment that a ptrsnn has received a sum of I momy, is not supported bv proof of the tracdfer into his name, of that amount in stock. Sect. 30.] SUBSTANCE OF ISSUE. ^45 IV. Tje omission to prove facts, which as mere sur- immaterial plusage are not necessary, arc! might have been See.""' wholly omitted, without injury to the statement of ^ the cause of action or the offence, or the proof of I redundant facts, which are not stated in the plead- I iDgs, Will not be a material variance. The following are cases of immateriixl variance ; 1. -Proof of the acknowledgment of one Uem c*" debt n . . stated.''' '"^*P°'' ^ '"""' "P«" ^ account <^"^^^^- 2.-In an action for non-delivery of goods, proof that thev were to be paid for « by a1>in A two mo»?L on invoic- or deliverv," is not a "ance Tom « statement in the declaration, th. .e/wcrMTb^ paid for - by a bill at t.vo mont.s." ^ " ^ 3.~Mhcre the contract declared upon, was for tfc. mU of a large quantity of goods. w!,ich was -fier- wards ascertained to be a given quantity, and ihe evidence proved a contract for tJie sale of all the ". wi ^ ''T- "" ."'^^'" '"''P' *''*^'"« ^-^^ n« variance. 4 -When a particular sura was mentioned under a vid-- icet m the inducement of a declaration, as the balance of -x larger sum, and was referred to as such by t le subsequent averments, it was 00 v». sim''^' ^"'^"''^ ^''""^^^ "'^^ ^^" ^^"^ ^^^ 5.-\Vhere the contract laid, was for the delivery of a younjr ho.se worth £80, and there was a breach a Hedged ,n ooth respects; it was no variance, that the contract proved, was for the delivery 0/ a young horse worth £80, which was sound, and had never been in harness. 6,-A contract dccbred on, as for the purchase of a certain quantity of Af,„p, to wit 8 tons; was sufficiently ^irf^ .^ evidence of a contract to purchasJ about 8 tons, the exact amount not being then itnown, but afterwards ascertained '""'^^' JJ'^tT''"^'!.'*'^*^'"''^'' °"' "'as'^or the sale of 3^8 ci.ests, and 30 half chests of oranges and kmoio at a certain price, to wit a certain suml: it was ro variance, that the contract proved, was for 0O8 chests, and 30 half chests of china oranges, and 20 chests of lemons without specify- ing the price. ^ ' i •4 M ¥ 1 u 1 1 ;>1 11 m 14(1 SUBSTANCE OF ISSUE. [Sect. 30. m 8. — A contract declared upon, to deliver stock on a cei- tain day, was siiffi(i«iitly proved, by evidence ot a contract to deliver on tiie .settling da^, which at that time was lixed for, and nndorstood by tin parties, to mean the day mentioned in ihe decla ration. 9. — If a declaration state a C' idition to he a certain rea- sonable reward, cvidi nee that a speiific sura wai agreed npon, is no variance. 10. — An allegativui of a loan of lawful money of Great Britain is snffieiently proved, by evidence that it consisted of foreign coin. 11, — Where the declaration alicd^ed a certain sum due;.* rum money, it was no variance to prove it, bv note for that sum, witli an additional stipulatiun written after ^he signature of the note, fcr a pint of rum per day. l^.— Whce the contract proved, was for the delivery of goods at a certain price, warranted ready for de- livery from ship or warehouse by a certain dav, and that stated in the derlaration, had omitlcd the words " ship or warehouse" it was no vari-p ance. 13.— Where the declaration stated, that the carriage olj goods was to be paid for by the consignor, and tha evidence showed, that it was to be paid by tii4 consignee, it was no variance. 14._Whcre the contract stated, was that the dcfendaBi wonld take proper c"-e of a borrowed horse, ar,if return iiiu) in as good condition as he was all time of the promise, or pay 1 j guineas, and it«al proved in addition, that the defendant should ti the horse, meat for his work, it was no varianreJ 15. — Where a declaration stated tiie consideration oi| guarantee, to be that the plaintift" woidd give crtr(i| to a third person *' in manner then and there aj;r«i npon between them' and in evidence, the ten were "to be agreed upon,'' there was no va:| ance. 16. — Where a declaration in describing a guarantee, staitj credit generally, and in the instrument the exprej sion was usual credit, there was no variance. 17. — Wh-re a declaration on a guarantee, stated that i| de'end^nts undertook to indemnify a person, if holding goods in bis warehouse on their behalt,: delivering theNi.ne -ip to them when requestcJj to do ; and on production of the instrument, appeared, that the defendants only guarantd \Sci't.30.\ SUESTANCE OF ISSUE. 147 lu !.■' :().— ;i.-lt ;.-A .4.— I'9,- Iiini fur liolilin;,' ilic ."ooils in his warehouse on tliiir lulialf, liurc was no vaii;incc. -A bill (;f c,\(:li;n!^o drawn in the nanio of two persons Bills and iV- i.o. n:ay be dLclMt;d on, as a bill diawn by an "otts. ajr^rc'Tute/'/w, and if it bt- proved that the firm oi;iy coi.Msts or one person, it is no variance. A declarutiou !.tated a b.ll to ha\e been drawn npon, limlaeeeited by three persons, it was no variance, that It v.as proved to have been drawn upon and accepted by the three joii:tly with a fonrti". A bill made payable to a certain person rovtd by evidence of an accept- ance by tlieir aitlhorised .,■,•''< «^. bill was sl.ited in (he declaration, to have been indi.tseJ b; fore it bic c due, and it appeared in evidence iliat it bad b'cn indorsed alter, it was no variance. In a dedar.ition on a bill of excbaniro, the omission of the woid " sler.'ififr " is inunaterial. an action b\ indorsee a.aj^-t a<'ccptor of a bill pava!>!e 60 d.;ys alter sight, the declaration al- le(lj,'ed an acceptanre on t.ie 11th An-ust, and a presentnunt for payment on the.ird October, and the evidence proved an iiceeiitance on the 19th Sei)t( nib; r and a presentment for payment on the nth iN'arch, it was not a material variance. Where a declaiation alledj;ed, that a bill was pre- sented for i)aymcnt .'ly a particular person, and the plaint i;i proved a prcsenlnuut., but not by that person, it was no v.riai'ce. 1 note be made payable at ". pai ticular totcn, and the maker lias mi residence there, proof of a pre- sentment at the bankiiii; houses there, will justify, and support an allegation that it was presented ♦''cre to the tnaker. -Where a dee'aration .Uated, that a mining lease Deeds granted i.berty to make levils, pits and sloughs; and upon prodnction of the lease itap.piared, that the w( d was " soughs," it was not a fatal va- riance Where lands were stated to be in the occupation of a 2 -In -If m i ml M I r' ^^ it;. * ■« 48 ... ■ * ■ i 33 A m Recoid.ledgej was no ccl had I'cnte,' Sect. 30.] SUBSTANCE OF ISSUE. 149 quarter sessiom, which was in fact at the general " qiur- sesMons, it was no variance, as the word ter" was siirplusaRC. W.— The introduction ot" au unmeaning word, in the re- 41 4-J where. was no ^ com- tbrmir red:' an in- lat the ind till' is tried 3m the 48.-: 1 under ciently he seal nd Ire- genenl jO.— ■ ji,— cital of any instrununl, is ivu a fatal variance. .—There is no material difttreuce, between costs and damages. —An averment that an issue was joined, is proved by the prod.ictio'i of au information coiit.iininjr two counts, upon each of which is^ue was scnar.iti ly taken. ' ^ —The omission of a party's addition of younjrcr, is not a fatal misrecitul of a record, when it gives rise to DO anibignity. was no variance in describin:; a record in an in- dictment, to call the Palaci' Court " the Court of the ivin;;s Palace at W cstniwistir," instead of " the Court of the King's i'alace of West- minster.'' lu an action for a malicious prosecution, tlu? piaintirf stated under a videlicet, tiiat on a certain day he was acquitted, a variance between thut day and the day mentioned in the record of acquittal is not material. In assumpsit for use and oc-upation, the name of the Place, parish is immaterial, and therefore if it be de- scribed by a wrong name, it is no variance. In ejectment, the premises were laid to be in Furnh '»i, and proved to be in Fur l.um Royal, it was not a fatal variance, as it was uol shown that there were two Farnhams. In ejectment, the demise was laid to be bv the mavor &c. of the borough town of Maldon, and "the charter proved, that the name of the corporation was the m.3yor,' 1 « I 4 h '\ M:' 'it ¥l C'riuic-'. ^1 M. - 1,30 SUBSTANCE OF ISSUE. [5<'f^ 30. Statutes. 52.— In an action on the sUitvd", to rrcnvcrd-iihic the y:i!!!i of K'XJd'* leinovtd to prt'Miit ii (lish;:ss, if tlic (liclaration state that a certain sum is due for rent, it uccil not l)e precisely croved as laid, for it is no variance if a less sum be lUMved. 53.__In ;i;i iiction 1( r the penullii on tiie statute of usury, i!ie declaration slat ■(! tint a s|iei!fie sum had beoii lent, hut it ai»ptared in evidence (lutt tiie loan w^s p.irt mo)iev, and part i^ood- of a known defwiift \iihie, \\ii';(h the party had agreed to take ui cash, it was no v;;ri.;i!cc. .51.— An alle;;atio.i of a clririre of /i7r>;!//, is supported Ij proof of a charjie upon siispicion of felony. 5j._A vaiiaiic.' iis to tl;e owner's name, in an indictmcm for robhriy in a d 'veiling house, is not material. 5(j._It is no variance, if (irnon be alledued to have !)i'.i; ronimittv d in the niuht time, and tlic proof siiow that it was oinmitted in the clay. :,7.— M'hen a declaiation fcr a faNc return to nfi.fn. again • tv>o per-i.'ns, allidjed tliat both of them had good within the bailiwick, and the evidence only proved that ene of them had, it was no variance. 58.— If the declaration on a policy of iusurance, state that the ship sailed af.er the makiui; of '.in policy, and the evidence shows that sLc sailed before, it is an immaterial variance. 59.— A declaration stated a right of eommen of pasture, k respect of a messuage and land, and the proof only established a right of common in .espect of the land, there was no variance. 60.— Evidence of a right of common for f,';eep and cou will sup;)ort a pica prcscribin;; for eonnjion oiiiv for sheep. 01. — "Where the allGgatinn was, that the plaintiff was c titled tt; a r glit of common in re;|)( ct of a ccrt.ir. quaulilij of l.i'.id, and it was jirovtd, that he \\;i entitled in respect of a part only of that land, ;: was sulncient. nme. 62. — In an action of debt upon a bond, the plaintilf ma decl-.-.re upon a lionl In arir.j; (/«/i' on a certain da} and prove a bond delivered on another day, ami : ia no variance. I'ro'.-ess Policy. Prescrij tioa. ■ct. 30. IP value if tlie line for lul, for f nsimj. Ail bioii nan \\a< (Icfuiiti take :,3 rtcd by licttmi.! orial. ive ik'c; i)f show- f. again id good; y proved tate that licy, and , it is an roof onh -•t of tilt nd cou'\ non ciiiy ' was c;> a cortcnr. t lie \\:l- t land, ntitf 1112 tain (lav ay, an ii Sect. 31.] AFFIRMATIVE OF ISSUE. SECTION XXXI. AFFIRMATIVE OF THE ISSUE. CONTENTS. 1 General rule, and its application. %-^Exceptiom to the rule. I. The fourth rule is, that the obligation of General l-ROViNa A FA'JT, LIES UPON THE PARTY ^'^^' WHO ASSERTS THE AFFIRMATIVE OF THE ISSUE : and as a negative nnnot regularly be proved, it is therefore sufficient to deny what is afDnned, until it be establishcil in evidence; but when the affirmative has been proved, the other side may contest it with opposite proofs, for it is not merely proving a negative, but establishing some proposition totally inconsistent with y, hat is af- firmed. And as a consequence of this rule, that party is entitled to begin, who has asserted tlxe allirmative of the issue; but he must open his whole case in chief, and cannot proceed in parts ; for although a plaintiff, must have an opportunity of answering any specific fact, which may be adduced by the defendant, and to which an answer may be given, yet he cannot go into general evidence in reply to the defendant's case ; for under no cir- cumstances is a plaintilf entitled to go into half his case, and reserve the remainder. 161 ' m ' ,4\ i n ■' ^%\ ^ ti>-4- ^** AFFIRMATIVE OF ISSUE. \Se.ct, 31. II. Exceptions. The followinj^ are particular cases, where it has been decided, that a party is bound to prove cer- tain facts, although in so doing, he may be obliged to prove a negative, and they may therefore be mentioned as exceptions to the general rule. 1.— When the issue is on tlie life or death of a person, the proof of the fact, lies upon that partv who asserts the death. J.— In prosecutions nil the s/a/u/c, for coursing deer in in- eolsed grounds, without the consent of the owner of the deer, it;onf;ht tu appear, from tiie evidenrc produced on the part of the prosecution, that tlie owner had not given his consent. 3. —When a defendant in a snif for tiihn in the spiritual court, pleaded tliat tlic plaintifi" had not read the thirty-nine articles, the defendant was bound to prove tluil fact, although a lugutivc. 4. — In ao action by the owner of a ship, against parties for putting on board a quantity of combustible and dangerous articles " without giving due notice thereof" the plaintiff was hound to prove thi» ne^tive averment. 5.— On an information, for refusing to deliver up the rolls of the auditor of the exchequer, the plaintiff must prove the negative. 6 — In an information in the nature of quo warranto, be- cause a defendant has not taken the sacrament within a year, the fact that he has not done so. must be proved by the plaintiff. 7.— When the validity of the seizure of smuggled Toods i in issue, and it is averred to have been julawfiil by the plaintitJ, the defendant must disprove the illegality. 8-— Where a servant has been accustomed to account with her master without any written vouchers, for monies received for h^s use ; it is not sufficient to charge the servant, .o show that certain sums have been received by her, it lies upon the master to prove further, that she has liot paid them over. 9— In an action by assignees of a bankrupt, where the de- fendant under a notice of set-off, gives in evidence promissory notes dated belure the bankruptcy, he must also show, that they came into his hands before that time. Sect. 32.] HEARSAY. 10. — In imformations on the gamelaws^ although the plaintiff must aver that the defendant is not qualified, the proof of that fact, will lie upon the latter, as it is a fact peculiarly within his own knowledge. n— When in assumpsit, a defendant pleads iVaicy, and the plaintiff rei)!ies, that " the defendant after he had obtained his^full age, ratified and confirmed the promise," the ground of defence must be proved by the defendant. 12.— On an agreement to pay f.lOO, if the plaintiff would not send herrings to the London market for a twelvemonth, it was the plaintiff's part to prove that he had not done so. !3.— When there is a presumption of law in thefavour of one party, tlie other must disprove it, although his evi- dence may involve tlie proof of a negative. 163 SECTION XXXII. HEARSAY. CONTENTS. 1 . — General rule, and exceptions. 2. — First exception, of evidence at a former trial. 3. — Second exception, of dying declarations. 4. — Third exception, of contemporancovs decla- rations. 5. — Fourth exception, in questions of pedigree, and legitimacy. t>- — Fifth exception, in questions of public rights., customs, boundaries and prescriptions. I. •t ■f) .4 .,.-1 1 ■U fif The fifth rule regulatinsr the production of proof.. General IS, that HEARSAY IS NOT ADMISSIBLE As' Ev'l- '^"'^• DEKCE OF A FACT; except in the following cases, H 5 ►< , 1 lo4 1st. cxcvp tion. Se- cuud trial. HEARSAY. [Str./. 32 1st. The testimony given at a forincr trial between the same pa*-^'"'' ni;iy be received inuler certain ^estricti'>n^^ : " 'i\. ^ying declarations are admis- sible in ^ i- '.ninal cases: 3dly. Declarations which ir'- contemporaneous with an act done, and which are necessary to show its true nature, are ad- missible : Itlilv. Hearsay cvidtncG is admissibif in questions of petliu: e. a"d legitimacy: ami Gthly. Jividcnce of n j >.iation and t.adilion, may be received in questions of public ri>j;,hts, customs, boundaries and prescriptions. ir. The first exception, to the rule excluding tin admission of hearsay evidence, is where there is a second trial between the same parties, and in which, the point at issue is precisely the same; and when a uitncss, who was sworn and examined at the former trial, is dead, or does not ap[)e; i upon his subpania, and there is rca.son to believe, that he is kept away by the conlricancc of the oppo- site party ; the courts will allow the testimony lit gave at the former trial, to be proved either by tlu judge's notes, or by any one who heard him give the evidence, if that person, will undertake to swear to the precise words used by the witness, and nit merely to their elicct. And for the purpose of in troducing an account of \.hat a deceased witiios- swore on the first trial, the niii piius record with the postea indorsed, is good evidence, to show that the cause came on to be tiied, or that it actually was tried. III. 2d. cxcep- The second exception is, that declarations made tion. Dying j^y ^ person, who has received a mortal injury, and decliu-ations ^^^^ .^ under the apprehension of immediate death, are admitted as evidence, after the decease oi iii<^ party, if he would have been an admissible witness Si'Ct. 32.] HEARSAY. 166 whilst living ; but only io cases, where the death ot' the deceased, is the crime charged against the prisoner; for evidence of the dying declarations of a person who was not a relation, nor in any manner connected with the parties, was refused, on a ques- tion of pediurce, tried in an action of ejectment. As a preliminary step to the 'eception ot dying decla- rations, even in cases where they are admissible as ividence, it is necessary to satisfy the court, either from the nature of the injury sustained by the deceased, or from his expressions, that at the time of making the declarations, lie was fully aware of his danger, and had given up all hopes ot" recovery. The declarations of a person, who has been con- victed of an oft'ence for which he is to sufter death, even when made just before his execution, are not admissible in evidence against an accomplice, inas- much as the party himself could not have been ex- amined as a witness, at any time after his con- viction. IV. The third exception to the rule is, that in cases 3,1 exccp- where it is necessary in the course of a trial, to ir •( a. Con- fjuire into the nature of any particular act; proo- ■f»P«rane- luay be given, of what the party who did the act, "ationji.^ said or wrote at the time, in order to show the true nature of the transaction ; but evidence of the declarations of a man since dead, as to a fact done by himself is not admissible. The following cases are given as illustrations, where evidence of hearsay, has been admitted under this exception. 1.— In an action by the assij^ees of a bankrupt, hi'5 decla- rations, made at the time of his absenting himself from his house, were received to si ow hib motive jr..;, -_ j,-:__ J.— In an action of assault by husl tnd and wife, for an assault upon the wife, her declarations immedi- i i f i ■ A[ - I H n ■^ 1 ,1 •$ iiii' I6e HEARSAY. [Sect. ^2. itely upon receiving the hurir, were considered as admissible in evidence. S. — In actions of assault, what a man has said to his turgtm^ i* rereived as evidence, to show the Jex- t«it of the injury rec ived by the assault. 4.— In an action by a husband, on a policy of insurance on tke life of his wife, her declarations made at the time it was etfected, were received in evidence to show her own opinion of her hea'ih at that time. 5. — In action* for criminal conversation, the declarations •f the wife at the time of her elopement, and which state her reason for so doing, are received as evidence against the husband. 6. — In an acMon for destroying a picture, which was ex- poieu to public inspection, the declarations of the specUtors made at the tini^, were received to snow a libellous meaning in the picture. 4th.Excep- The fourth exception is, that in questicng of dip^, &?' Pe^'g'"®^, legitimacy, or the time of the birth of a child, hearsay and reputation are admittrd as evi- dence; if it be shown, that " the tradition r )mes from persons having such a connection with the f>arty to whom it i elates, that it is natural aud ikely, from their domestic habits and connections, that they are speaking the truth, and that they could not be mistaken." But declarations which are made, either when a suit has been commenced, or when there is a controversy preparatory to one, upon their subject matter ; or when they are made by a party, who could not have been examined as ajojV- n^M, had he been alive ; or such as are of matters of Eublic no/orie*^, and which may therefore be proved y "better proof, are not admissible in evidence. The following cases ore given as illustrations, where evidence of hearsay has been received under this exception. 1.— Proof by one of the family, that a particnlar person had gone abruad many years before, and was sup- posed to have died there, and that the w itness had not heard in the family, of his having married , Sect.22.] HEARSAY. 167 was considered as jfoud'priir' evidence or the person's leaih witlioirt ' •^- tal -• j. ?.— Declarations made by a dec; ed Uiu-.^nd, as to the legitimacy ot his wife, are e' t s supposed to have been married, arc at'-rassi' '» to disprove tlie fact oi' marriatfe. i.— The declarations of a parent, a. ^ood evidence aff^r his or her death, to prove that a cAi7(i -va'i hinn before or after niairiagc; but not to provo want of access, so as to bastardize a child born during tlie supposed marriage. .5.— The declarations of a deceased parent are admissible to prove the time of the birth of a child, but not the place. VI. The last exception to the general rule is, that in :,tli. ixccp- (juestions of public rifjhts, customs, boundaries, or M*'"- ouDtry, to be payable from Old Lady-day. And the declarations of deceased tenants, are ad- missible to show that particular pieces of land, are part of an estate which they occupied'; and proof that they exercised acts of ownership upon it, when not resisted by contrarv evidence, is HpriRivo, f ^ .i\ 'if *\ "I -.4 '■1 108 iiEARS.w. [Sect. 33^34. SECTION XXXIII. DEMURRERS TO EVIDEXCE. l-t Donmrrcis to cvidciici', These are analar/ons to demurrers upon facts alle(l<;t(l in pleadir,-;, and are tlic proceedings by which a judge is called upo'i, to determine what the hiw is upon the facts in evidence; and the party demurring, must cditiit every fact and conclusion, which the evidence conduccii io piove. SECTION XXXIV. Bills of ex- coptioii.s. BILLS OF Exceptions. If a judge at the irial of civil cases, cither at bar, or at nisi prius, decide uj)on the adTiiissibility; or in- admissibility of u'liy particular evidence, to tiie aggricvance oi' cit/ur the plaintiff, or tlu deiendant ; the aggrieved j)arty r;.ay tender to such judge, a l)iil of exci'j'tions, which he is boujul to .'-ea'., in all cases where a writ oicnor will lie, and to acknow- ledge, when the error conies ou to be tried. TABLE OF AUTHORITIES. ^ 4 III ilic foUoiviTKj table, a similar division into sections and cLutscs has been adopted; and it may perhaps be neces- sary to ohsei-i-e, that the detached words refer to, and correspond ivith, the icords printed in italics, in the corresponding; sectloJis and clauses in the body of the work; and also, t.iat the hook cited as an authority, is always a report, unless part icidarly distinyuished. SECTION I. MATTERS JUDICIALLY NOTICED BY THL COURTS. Nature 8 East, Statutes 1 Phil. Evld. Corporation Dougl. Palaces i.' Ld. Rayni. Crown ;; Ld. Ilayni. Queen i' Ld Rayni. Lcclcsiastioal 1 Roll. Abr. Marine 2 H. Black Kinp's 1 Ld. Rayni. S( ssions 1 Ld. Rajni. Place t Ld. Raym. Prorogation 1 Lev. Cours!> i Saund. Own 1 T. R. ( iianccry Cro. Jac, Westminster 2 Rep Palatine 1 Saund 202 L'OO J 50 980 930 yao .526 606 791 olJ 210 296 lal 118 ;5 , 16 , 74 Wales Cro. Car. I7y Canterbury 1 Ford, 416 Merchants.. 2 Ld. Raym. 1342 Gavelkind..'^ Ld. Raym. 1025 Borough English Cro. Car. 56!i! Time 1 Str. 387 Vust.s 2Salk. 626 Moveable , 6 Mod. 81 Month 1 Roll. Abr. 625 Coincidence .... Cro. Eliz. 227 Term 'j Ld. Raym. 1557 Counties 2 Inst. 557 Dioceses. ... 2 Ld. Raym. 854 I'ort iStr. 469 Parliament 3 M. & S. 67 Proclamations. .4 M. &, H. 332 < t ft I '- 1 «- 1 ni SECTION II. ADMISSIONS. I. Of Record. t Dispute Averraci PIpa. 2 Rep. 4 rracnt . 2 VVms. Saund. 103 Pleadings B. N, P. 298 j •M ' ,*••• .1 i| ^'\ p4 L60 TABLE OF AUTHORITIES. II. By judgnent by default, and on demurrer. Contract.., 1 Str. 619 Demurrer l B. 6c V. 368 Exchange 3 T. R. SOl Goods.. « 1 Str. 612 III. By payment of money into court. Demand 1 B. & P. 264 Sum 1 T. R. 464 Generally...., .2 B. & A. 116 Contract. 8 B. ^r P. 550 BroaghC 2 Stark. 103 Handwritiiig..2H. Black. 374 Stamp...... 3 Camp. 40 Execution 2 Camp. 357 Title 4 Price, 58 Nonsuited 2 East, 128 MisreprescBtatlojSB.&P. 556 Justice 13 East. 'i02 Rule 4 T. R. 173 Attorney 3 Camp. 40 IV. By particulars of demand. Particalars i B & P. 49 Nature 4 Esp. 7 Title 2 B. & P. 243 Consideration 4 Esp. 7 Second i Taunt. 353 Adduced • i C4unp. 68 Inaccurate..,.,. 2 Taunt. 224 Information i Camp. 68n Wilful 3M. &S. 380 Proved Peake, 172 By parties generally. Record 7T. R 670 Interested l Wits. 257 Appeal iM.iVS. 636 Parish officers. . . . U East, 589 Policy 16 East, 143 Sheriff 4 Camp. 38 Trustee 7 T. R. 663 Guardian. ti Stark. 366 By partners. Joint contracts . 1 M. & S. 249 Joint interest. . . . l Stark. 161 Continuance i Taunt. 104 Party Peake, 203 Trespass ii East, 585 Co-conspirators... 2 Stark, lio VII. By agents. Agent 10 Ves. 158 Authority 2 Camp. 9 Contract 4 Taunt. 519 Account 4 Taunt. 662 VIII. By attornies. Attorney 1 Camp. 141 Conversation .... 2 Stark. 239 Compromise 3 Esp. 113 Negociatiou ....... 1 Esp. 143 TABLE IX. other authorised puties. Under sheriff. . iLd.Ravm. .Sherift''s officer . ..i Caiii|), Warrant / x. K. OF AUTHORITIES. 161 By de- 190 117 X. By conduct and demea- nour. r>ankniptcy c Esp. 20 iialaiice 2 M. .S: S. 26.5 Commission iCamp. ;581 Goods 1 Esp. 312 }J[oman 2 Esp, 6S7 Pliysician t> Camp. 411 ?,*»'. 2 New K. 453 Notice to qui i ...2T«unt. 109 Tenant 3 Taunt. 73 Ownership 1 E.^p. 355 Inn-keeper 3 T. R. 637 Newspaper 4 T. U. 126 Ijisolvcnt 3 Camp. 13 \oter .3 Burr. 1590 Nuisance Peake, 91 'i'olls 10l':ast, lot 'I'itfies 3T. R. 685 Clcrn;yman 3 T. R. 63bn Hector 5T. R. 4 Title Peake, Ev. 2 1-* t>'stross 3 Camp. 37-^ Ejectment . .2 W. Black. 12,59 I->^P'ied 4T. R. 68iJ Inventory i Esp. 313 Candidate 1 Camp. 2I8 Acceptor 2 Camp. I^iavver 7 Taunt. Sight iStr. Indorsing 2 Camp. Indorse 4 Esp. Firm .,.4M.^S. 450 755 643 im 187 13 SECTIOX III. CONFESSIONS. I. By pleading guilty, or su'o- mitti.ig to the King's mercy. Court 2 Hale, P. C. 2?5 Mercy 2 Hawk. c. 31 Received..! Leach, C. C. Objection... 1 Phil.Evid. l^aiol 1 Leach. C.C. Minute;. ..6 How, St. Tr. Actually B. N, P, *^'>'port 1 Stark Treason . ..1 East, P, C. Attempt 39 <5>; 40 Geo. III. c. Coiitiimatory 13How.St.rr.622 Collateral ...I Phil. Evid. lio 298 104 347 214 '.^42 242 133 93 II. Befoiu magistrates. Strong 2 Leach, C.C \5 llireat l Leach, C. C. j25 Promise. . . ,2 Leach, C. C. 6M III. Before other pet sons. Otherperson,l Leach, C. C. 298 Commons 2 Stark 3m i •* I ' I ■ t \ i ^». <^ 102 TABLE OF AUTHORITIES. Their efl'ect, and how proved. Party Kclyng IC (."(iiiscqiiciuf 1 LpacIi,C.C. 299 Coiuictccl, 1 Leach, (". C. oi9 }A\WX t' Hale, P. C. i'Hl I'aiol 1 l.eacli, C. C. .]\i SECTION IV. PRESUMPTIONS. *'■«, t-T \ ur • ^il T. Of law. Innocence 2 B. Partnership,.'} Stark. Ev. 1252 Gavelkind, 2 Ld. Kayni. 1292 Fishery Lotft. 364 Stolen ... ?,liii(k'r . Ten.iut.. II. Of fact. 2 Stark. 139 Gill). Ev. 1(50 4 B. c\ A. 4Ji SECTION V. PERSONS INCOMPETENT TO P, K WITNESSES FROM DEITCIENOY Oi' REASON. Idiots 7 Coin. nil?. 447 Lunatics .... 7 Com. DiK. 447 Intervals 2 Hale, P. C. 37 Q Ncn-sanc Co. Lit. (•lui(,irci n. N.P. 21':; Oath.. . 1 Ecach, C. C. '^37 TABLE OF AUTHORITIES. 1G3 SECTION VI. PEPSONS INADMISSIBLF. AS WITNESSES FROM WANT OF RELIGION. Atlicists V,. N. P. 292 Rt'lif,'ioii Willes, 519 Tliosc Willes, 53o Jews 1 Ld. Rayiii. 282 MahoiucUuis 1 Wils. 81 Gentoos 1 Atk. 19 Paj;aiis ^"Wles, 560 Ciiniiiial. . . .1 Leach, C. C. (54 Coiisi'ieiu't's. 1 Atk. 21 Statute 53 Geo. III. c. 127 8ECTI0X VII. PERSONS INADMISSIBLE AS WITNESSES BY REASON OF INFAMY. M I. What crimes render a man iiilamous. Trmson 7 Com. Dig. 447 Felony Co. Lit. 6 Piracy ...2 Roll. 686 FoineVv 2 Str. 1148 Swindling Fost. 209 Ciieutini: 7 Com. Dig. 417 Common law Co. Lit. 7. Statute 5 Eliz. r. 9 Attah.t Co. Lit. 7 I'limnniic Co. Lit. 7 li.r'Ot'.y 2 Salk. 690 IJriliery Foitcsq. 208 Cons})iiacy, 2 Leach, C. C 496 Winning 9 Anne, c, 14 Outlaws vl .. Sir T. Rayni, 369 E\eul|iiile 2 Salk. 461 Petit larceny, 31 Geo. III. c. ^ri Outlawries .. .Sir \V, Jones, 98 II. How infamy is proved. Record u East, 79 Judgment Cowp. 3 English 1 Sid. 61 Foreign 2 Stark. 184 Conviction Cowp. 8 Admission 8 East, 7/ III. How infamous persons are rendered admissible as witnesses. Reversal Cowp. 8. Clergy 18 Elir. c. 7 Hand B. N. P. 292 I'unisluncnt . ..3 P. W ms. }85 Will-out 1 Phil. Evid. 32 Paulon 1 Ld. Rayni. 39 Inspection. . . .1 Phil. Evid. 36 Consequence 2 Salk. 614 Part ... .Temp. Holt. 13S Condition 3 P.Wms. 486 *l 9 irt4 TABLE OP AUTHORITIES. h - fi SECTION VIII. PERSONS INADMISSIBLE AS WIINESSES BY OF INTEREST. REASON u«-' i V; \ I. General Hule, Ist. That those for,or against whom the verdict will be evi- dence; and, 2dly. those who have a direct inte- rest, are inadmissible. Verdict 3 T. R. 27 Intereat B. N. P. 284 Small ..5 T. R. 174 Event .k 1 T. R. i63 II. Cases under the Rule. Ut Mrrnnch, Servant 4 T. R. 589 Master 8 Taunt. 484 Water 4 T. R. 589 Pilot 2 Ld. Raym. 1007 Broker Holt. 1S9 Owner Peake, 117 Underwriter .... l. M. & S. 9 Freighters Skin. 174 Drawer 4 Taunt. 464 Payee i Camp. 408n Landlord 3 Camp. 521 ShcriflPs officer ,3 Ld. Raym. 141 1 Execution 2 New R. 331 Bail 2Esp. 606 Custom 1 Ld. Raym 736 .Pasture i Taunt. 261 Crops 1 PhiI.Evid. .54 Chapeliy 1 B. & A. 87 Corporation.. 2 Ld. Raym. 1350 Modasdecimaudi, Giib. Ev.ll3 Trade Dou j;l. 359 Ejectroent Covvp. 621 2il Branch. lease Gilb.Ev. 108 Repay l Str. 129 Underwriter l Ej^p. 339 Drawer 1 Taunt. 464 Bankrupts 1 Camp. 381 Deceased 2 Camp. 301 Commission 2 Camp. 411 Defeat 2 Camp. 412 Lessen l Stark. 40 Bankrupt B. N, P. 43 Fund Cow p. 70 Gambler i Str. 507 Creditor 2 Esp. 736 Indemnity 1 Esp, 319 Prochein amy . . . . 2 Str. 1026 Guardian i str. 506 Governors 3 East, 7 Goods 3 Camp. 317 Common. .,,. 5 T. K. 174 Devisee .... 1 Ld. Raym. 730 Remainder iSalk. 283 Residuary 4 Camp. 27 Legatee .... 1 Ld. Raym, 505 Increase 2 Stark. 546 lessor 4 Esp. 164 Ejectment 5 Taunt. 183 III. First exception, that tho parties injured, may be witnesses in criminal pro- secutions. All cases 1 Phil. Evid. II2 Perjury 4 East, 572 Forgery 2 New R. 87 Allowed lLeacli,C.C. 255 Collateral ..2Leach, C.C. 487 ^*l ! •. "W TABLE OF Casliier 1 Leach, C. C. 350 Hauktr .... l Lea( !i, C. C. 57 Keceipt B. N. P, 2H9 Kcsidcnce 2 Taunt. 3'ii^ Attorney i Biiifj. isji Alt( line Bayl, H. 4.V2 Ht-lcased. . . . 1 Leach, C, C. 184 ^^■'" 2Leach, C.C. 503 Amount « East, P. C. 997 AUTHORITIES. 165 IV. 8f confl exception, that ac- complices are admissihle. Accomplices. . 1 Leach, C.C. 14 li"lj|jt^O 1 W. A: AL c.« ^"»ini"^ 6 AV. IIL 0. 17 Riirt,'iaiy 10 W. IIL c. i>3 Hoiiseliieaking, . 5 Anne. cSl Horse-stealing' . .5 Annt. c. .31 Privately 5 Anne. c.3l Connlerteit. . .13 Geo. 11. c. ^^8 Convicted.. . 2 Leach. C. C. 55>1 Bribe Willes 4'J3 Statute 2 Geo. II. c. 21 Statutes 22 Geo. III. c. ,^8 4 Geo. 1. c. 11 Uoceiving.. . 2 Leach C. C. 467 Keward 2 East P. C. 782 <'!<■' k Cowp. ly7 f'state 2 Ld. Kaym. 1008 Co-trespasser 2 Camp. bSS v. Tliird exception, in favour of interested persons, made admissible by sta- tute. Execution Gill). F,v. 114 Informers Willes, 422 Bnbcry 2 Geo. II. c. 24 Prosecutions 3 Esp. 68 Machinery. . 21 Geo. III. c. 27 Gaming Willes, 4«5 Statute 9 Anne, c. 14 Prosecutors Willes, 425 Artificers 23 Geo. 11. o. 13 Certificates . .32 Geo. IIL c. 56 Hackney coach, 33 Geo. 3,c 75 Embezzling . . 17 Geo. 11. c. 40 Naval Peake, 218 Bridge . . , , 1 Anne, st. 1. c. 18 I'arishes 3W. III. c. 11 Hundred 8 Geo. II. c. 16 Surveyors ...13 Geo. HI. c. 78 Offenders C T, R. 177 Penalties. ... 27 Geo. III. c. 29 Inhabitants, .54 Geo. Ill, c. 170 ***t<^s 6 Price, 146 VI. Fourth exception, in favour of persons entitled to re- vv^ards on conviction. Parliament Willes, 422 Proclamation 1 Leach, C.C. 353 Private persons 1 Phil. Evid.l20 VII. Fifth exception, in favour of agents, carriers, fac- tors, brokers, and ser- vants. Convenience B. N. P. 289 Factor ....3 ^vi:8. 40 Certain sura.. 2 H. Black. 590 Servant ..4 T. R. .^90 C'^';''; 2 Esp. 509 Book-keeper Peake, 129 Carritr 3 Camp. 144 Goods Post. 247 Porter. B, N. P. ?89 'I'rover 2 Ld. Rayro. 87i Banker's clerk 2 str. 647 ^oal .......B.N. P. 889 m i lOG TABLE OF AUTHORITIES. /' Assault 1 Str.^P.) Seduction '2 Str. lO.)! Master I'cnko, 120 VITI. Sixth exception, that per- sons are admissible, when etjually interested on both sides. Receipt 7 T. R. 480 Captain 7 T. H. 181 Pauper 'J T. It. 'J()7 Acceptor ....I Esp. 3;5'2 ]»ayee 1 Camp. lOH Joint-maker.... 5 ^I. c\. S. 71 Maker liayi.It 1J2 riaiutiflf ..4 Ksp. :V: Defendant I'eake, VJ V Forged o Ksp, 6 .' Partner l.> East, 1 r.i Jointly 2 Stark. 41 1 [X. What is not a disqiali^ying- interest. Heir 1 Ld. Raym. 7'J4 Executor l)ouu;I. 15 \ In office. . . .Temp. Hardw. o5fi Steward ;5 Kel). '.)() Partner 2 'launt. ,5'.'5 Sub-lessee 1 Cunip. 311 Reversioner 1 Biufj, 'i,")7 Surety 1 'I . K. ie3 Obligors ....1 Str. .S,. Corporation 2 Lev, '2 Esp. 9i) Administiation. . . . H. N. 1*. 14j Woman 1 Leaeli, C, C. 151 Prescription 1 l', R, .",02 Freeman 1 Wils. 33'2 Vendor l Str. 445 Trespasser 5 M(.ore, 319 Creditor 3 Esp. ','07 Insolvent 2 Stark. 47 Usury 7 T, K. fiO Escape Peake, 121 Rescue (i -Mod. 211 Rail 2 Esp. 604 \\ ager Cowp, 736 Tio\er 4 15. iV A. 410 Prize Skill, 403 .' ction 1 'i". li. \6'.) H >nor 1 Lamp. 144 X. examination of \Fitnessc3 as to interest. Ahy time IT. R. 717 Strutk or.t 1 l.sp. 37 Sibseoucntly 1 T. R, 717 Documents '> Camp, 11 Obviitcd Ptake, 213 XI. How interested persons am rendered admissible as witnesses. Releas'? 1 C!amp. 2-i9 Transaction 2 Stark. 342 Authority 2 Siark, 41 Residiiarj 4 Cunip. 27 Proved 1 Camp. 37 Otiered 3 T. R. 27 Tendered ....... .Dougl, 1,54 Depriving . 1 M, & S, 9 Ei/ually 7T. R. 481n Re' igning 2 Saik. 432 Regularly H i^^od. 225 Bail. ,..!.. .Temp. Hardw, 133 TABLE OF AUTHOR^ TIES. SECTION IX. / 167 J IVADMISSIBILITY OF THE PARTIES IN A SUIT TO BE WITNESSES. For themrdves. Parties (Jill). Kv. llf, Trustees 7 T. \l. <.',!; I'ru'liciii luiiy 'j Str. I'Jjcl Guaidia:i l Sfr. ,i(lo (iovernors . . . „ j East, 7 CorporalL'. . . . 1 'oikr. i:).5 Cor()',)r,ui()n. . . . . « • * .' Liv. •.;';; 1 Arbitriiri'v.. . . ....r.. Is.!'. i.'};.") Mistiikr ... v.. N. i'. •j;!.-) llobb,::\ J 1 N. V. 'Jul' PrG-,('ciiti()iis. . i; . N. I . ii Noll'' prosequi. . . ,1 ^looro, .Siiliiuitti'il. Temp. Hiuilvv. Ti over 'J Ksp. I'jcetniciit 4 F.sp. A!i->(|','ni(>aiioiir 5 Msp. 'Iirspuss J (amp. Coiurarts ii Tamil ■^i^ainst tliouscfres. Not 11 V.n' ^ .•3.19 303 -* ' t .').S2 191} 1 Ibi •• tv.r.'i .141 ^ .)78 178 378 230 1 SECTION X. INADMISSIBILITY OF THE HUSBAND OR WIFE OP THE PARTIES TO DE WITNESSES. Wife 4T. R.678 Tor (.'ai. Lit. 6 Agaiiut .3 i.>p. I(i7 Dissolved h Fast, ll'i Consents .. Temp. Hiiidw. 'J64 Woman 1 Price, ol Exceptions. Abduction . . Temp. Hardw. 83 Bigamy ilB.N.P. '287 Murder 2 Leacli^C.C. 565 Violence iStr. 6.33 1/ach ctlicr 2 Hawk. c.4() liastardy. . . .Temp. Hardw. 82 Removai 6 T. R. 330 ]5ankniptey 21 Jac. I. c.l9 lionnd 1 Camp. 394 Admissions 1 Bine;. 199 A( . nowledgments.. .1 Esp.142 Tliird B. N. P. 287 Interest.. .. 1 Str. .509 '{'reason B. N. P. 267 i V.I *1 U' 4 . ' 108 TABLE OF AUTHORITIES. SECTION XI. INADMISSiniLlTY OF THE COUNSEL OR ATTORNIES OF THE I'ARTILS TO liE WITNESSES. f f I. ' r^ t situation 4 T. R. 7:r'> toimscl 1 Es;». 1,57 Agent 2 Stark. '.'.'>9 Intcrprctn- I'eakf. 78 Anv tinif 4 T. K. 7.5'.> Character « li. \ B. 4 Docninents 1 Pliil.Evid. l.S'J Client H. N. P. 'i84 Diviil^inj,' 7 T. R. 759 Same '2 Atk. ;V-'4 (uses iiiirroicini! the rule. Suppusitiuu u E«p. 113 Matters 4T. R. 7o.) Suit 1 Vtnt. 197 CoMipromise 4 T. R. 451 Iilentity 2 Str. 1122 Handwriting 2 Hawk. c. 4(; Perjury Cowp. 84S KxLcution Cowp. 846 Usurious Peake. 108 Instrument B. N. P. 284 Notice 7 East, 357 Overlieard 4 T. R. 753 >iegligence 2 Camp. 10 SECTIOX XII. ATTENDANCE OF WITNESSES. I. In civil cases. When at liberty. Per";onal. .Temp. Hardw. 313 Ticket Cro. Car, 340 Subpoena Tidd.Prac. 805 Reasonable 1 Str. 510 Clause Tidd. Prac. 806 Expenses 1 H. Black. 49 'i'inie 5I\I. &. S.156 Medical 3 B. &. B. 72 Attornies 1 B. &. B. 515 Compensation. . . .4 Moore, 300 Refused 13 East, 15 Called on 3 B. Sc A. 118 Arrest 1 H. Black. 636 Necessary 3 B. * A. 252 Attend.. "....1 H. Black. 636 Absconded 1 D. & R. 20 Bail 2 Stark. 13^2 Arbitrator 3 East, 189 Bankrupts 3 T. R. 534 Attachment.. 2 Ld. Raym. 1618 Contempt 6 Tannt. 9 Action Uougl. 535 Debt 5 Eliz. c.9 When in custody. Prisoner Tidd. Prac. 809 Affidavit Cowp. 672 War 7T. R. 745 Contrivance 3 Burr. 1440 II. In criminal cases. Sub|.oenA 8 T. R. 585 Witnesses .... 1 Aonr ,n. 1. c. 9 TABI-E OP AUTHORITIES. 169 Recognizance. . . .2 Havxk. c. 45 Keloiiv od Geo. HI. c. 70 III. Before commissioners of bankrupts, and under the inclosure act. Maiiknipts 1 Jac. I. c. 15 Warrant 3 Geo. IV. c. 81 Cost* 8 Ei'st, 3iy ] Inclu!84 Rank Cro. Car. 64 Evangeristt VVilles, 538 Conscience 1 Atk. 'it Qnakers 7 & 8 W. Ilf. c.34 Moravians. . . ,11 Gen. II. c. 30 Criminal Cowp. 39s; Defience Cowp. 383 Covenanters Peake, 23 Pentateuch Willes, 543 Alcoran 1 Leach, c. c. 64 Brainin 1 Atk. Vi Ceremonies 1 Atk. 21 Jew 1 Esp. 385 II. Of examination, cross-ex- amination, and re-exami- nalion. Examination. Identify 2 Stark. 116 Fact 1 Camp. 43 Hostile 1 Phil, Evid. 246 Crois examination. Leading... «4 How St. Tr. 755 Relevant 7 East, 108 Sworn 2 Stark. 47j Party i Esp. 357 Ordered out 9 Price, 41 III. What questions witnesses are not compelled to answer. Penalties 3 Camp. 51*^ Punishment 3 Camp, fio Criminal 3 Taunt 424 Irn velaut. . . .1 Piiil, Evid. 2o5 Bound 2 Gurn. R. 288 Channel i> Stark. 135 Colony Hojt, 299 Orders. 2 Stark. 183 Govemnieot....2B. & B. 156ii Military 2 B. & B. 13p Council. . . ; . .3 Clar. Hist. 236 Parliament . 29 How.lSt.Tr. 71 .1 V:| .'^ 1 I i\ m IMAGE EVALUATION TEST TARGET (MT-3) // W- *t ^^ /. Ccl J 7 <^ fA 1.0 l.i 1.25 1^ IM 1^ 12.2 u U£ ^ "^ ||||M L4 III 1.6 V] <^ /^ */J w "> ■> .^'..' ^7 /^ T-lL^i 1-'- riiuio^cipiiic Sciences Corporation ?3 WEST MAIN STREET WEBSTEP, N Y 14SS0 (716) S'J-^SOS y Ill' 170 TABLE OF AUTHORITIES. TV. From what degree of know- ledge they must speak. Eutry 3T. R. 752 Examined 2 Camp. 112 Ship Peake, 25 Survey 1 Camp. 117 Insurance 2 Stark. 258 Post-office 4T. R.498 Commerriil Peak'^, 43 Seal 4 T. k. 49« Engineer 4 T. R. 498 Medical men. . 1 Phil. E\ir1. ?75 How the credit of a witness may be impeached. Cliaracter B. N. P. 296 Not 2 Stark. 149 Particular Holt, 541 Statements: 2 Esp. 691 Contrary 2 Esp. 489 Cross-examined. .2 B. & B. 286 Oath Peake, 11 Discredit B. N, P. 296 Interest B. N. P. 297 SECTEOX XIV. NUMBER OF WITNESSES REQUIRED TO r»ilOVE A FACT. 'A / One credible Cajth. 144 Perjury 10 Mod. 194 Prosecutions .. 1 Ed. "VI. c. 12 Treason . . 5 & 6 Ed. VI. c. 11 Orert 7 & ? W.III. c. 3 Attempt.39 & 40. Geo. III. c.93 Coin 182P.& M. c. 10 One 1 Leach, C.C. 50 Petit treason . . 1 Ed. VI. c. 12 Misprision .... 1 Ed. VI. c, 12 Prohibition 2 Salk. 547 BC'iJf: SECTION XV. ACTS OF PARLIAMENT. I. Public statutes. Statute books. . . .B. N. P. 225 jLieland .... 41 Geo. Ill c. 90 II. Private statutes. Examined Gilb. Ev. 12 Exemplification Gilb. Ev. It Appeal 12 East, 479 ~ .B. N.P. «2S B.N. P. 226 Bedford Tiverton • ••••••• • •••■'<*• ■"'litt' TABLE OF AUTHORITIES. SECTION XVI. JUDGMENTS. 171 I. Of superior courts. Hecidetl 2 W. Black, rsi .Same cause 3 East, o4d I^Pally 2 Hurr. 663 t.iil).^tai.tiailj ..i' \V. Black, bi? Capacity 5 Rep. 33 l>'Ood 3 Mod. 142 Kstate 1 Ld. Raym. 730 l>aw 3 Gwill. 1237 'M'ght Bacab. Ev. 616 Only 1 Salk. 276 I'stoppel 2 B. & A. 662 AgaWst 4 B. & A. 412 For Temp. Holt. 134 'I'oJIs Carth. 131 Manerial Carth. 181 Customs. Doiiffl. 222n ^^'ay 1 East, 335 Highway Peake;219 Common .^ T. R. 4l3n Election Peake,156 Admissible .1 ^ast, 357 Conclusive , 2 Wils. 23 Pedigree B. "fJ. P, 233 Athol's 2 ^tr. 11.51 Inducement 1 Stark, 347 Quo walrants 6. N. t*. 231 Corporator :.2Str. li09 ^4ij Claimed Hob. 15j Stranger Gilb. Ev. 55 Hearsay B. N. P. 239 Proof. Gilb. Ev. 56 Ancient 2 Price, 234 Defendant 1 M. & S. 4 Order .15 Ves. 176 Irregularity Gilb. Ev. bi Answer. . . .Sir T. Ray, m. 335 De bene esse 1 Salk. 278 Interrogatories 6 Esp. 8^ P^ipers. . .. 2 Ld. Ray m. l\6i Gejitoo Willes, 53f Office copies 2 Stark K IV. The P,ecree. Exemplification 1 Phil. Ev. 37i Sworn Copy.. 1 Phil. Evid.S?; Decretal 1 Keb. 21 Recited ..... .7 Com. Dig. 4Sl Ancient .... 1 Phil. Evid. 372 3, not of fc East, 216 Black, 834 .Wilies, 37 f Str. 1242 Dongl.37ii TABLE OP AUTHOBITIES. SECTION XVIII. 173 PROCEEDl^GS OF JURIS COURTS OF PECULIAR DICTION. .2 Str. 920 . N. P. 243 1 4tk. 445 i .1 Salk. 290 Sentence. . . .1 Phil. Evid. S« Conclusive llSt. Tr. «61 tnm,nal.....i Phil. Evid. 325 Polygamy 1 Jac. I. c. 11 Jactitation 11 St. Tr. 260 Libel 1 Esp 4 ^^yorce 1 Stark. Ev. 247 Practice 3 Camp. 388 JI. Courts of Admiralty. ?^"e»t»c Carlh.474 Abroad . . . . Sir T. Ray m. 473 ?*!'«os-. 2 East, 473 Jmsdiction 5 East, 155 !!.«5-ld 1 Pirk.J^s. 49.» -.'^ectly ST. R. 192 Trover .... Sir T. Ray m. 473 warranties 3 B. & P. 4P9 if^*^--- • 14Ea8r,392 ^^rr^nted 7 R. R. 533 iPec'fically 8 T. R. 192 f™""ds 8T. R.444 ondemnation 1 Marsh 39 ■^'""f 7 Com. Dig. -tJl I hil. Ev. 373 1. Evid. 373 . 1 Keb. 21 n. Dig. 4Slffa8tef . Evid. 373 isitor III. jolleges in the universities. •Cowp. 315 « T. k. 346 ■••••<lony 2 & 3 P. & M. c. 10 Only iLordRaym. 729 Dead B.N. P. 242 Contrivance Kelyng, .W Oath Kelyng, i Prisoner . . 2 Leach, C. C. 638 Read over 2 Stark. 208 Alteration.. 1 Hale, P. ( . 305 Signed 2 Leach, C. C. 996 County Cro. Car. 2l3 Vanaucc 2 Hawk.c. 4(i Parol.. 1 Stark. Hi R. 620 R. 173 R. 556 lagis- k B. 432 : B. 432 R. 633* Str.7l0 T..BLK OF AUTHORITIES. V. Refore coroners. ^'Oronor.... 18a P. & m „,o ' • • • • • • • B. N. P 242 I 175 VI. Ill ecclesiastical courts. Ecc)esi.,8tical 1 Phil. Evid. 359 A"»'""-"y B.N. P. 242 SECTION A XI. I ^'^"^^ JUDICIAL WRITTEN amp. 171 6i S.4!i7 la. & P. 1T7 HI. C.63, ate 8. kM.c.l3, i M. c. 10 aym. 729 N. P. 24« elyng, .W [ielvng, i C. C. 638 talk. 208 P. ( . 305 C. C. 99(3 Car. 213 iwk. c. 4() 5tai-k. M< DOCUMKNTS. r. Rules of court. nffi^^T^. 6Tannt. 19 ''"™"'^** 1 Camp. 100 II~ Writs. Attorney's 1 B. & P. 263 Iemoraiidnm....3B„rr\'4r Limitations , Strata Tender.. -l^tr.oSO Goods. •■vLdSr'**^* ,^!o..rapfeV.::2'^S;.5K. o1 ^^"'•''•- 11 East. 29^ Rescue. . . A 11 ' ,1 4 Burr. 2129 *''"^y JM.&S.599 £?,•,•::: ^^-^-^ 2^j...:.::::::b;^:^?M^ ;'^g'^ 2M. &s :"*^ B. N. p. reasury 5ti5 4Esp. 160 III. Inquisitions. ''^on.r....iWmsSaand. 362« Post-mortem jAtk 4i9 ^"^y- ....3 Camp! m Criminal 1 Phi, £^j J ^ Comm.«,.oner,.v.- 1 Bnrr. li^ ^""'""«y Ptake,i84 ^'^:fl: 2 W. Black 4?? Hen. VIII....... B J,, p. j,J IV. Examinations. Panpers 1 East w% Appellant ^"EaiV IJ Mutiny act.. 55 GeV.m.tlo'J Ori»u,;i •• 3 Geo. IV. CIS ^*«^^«^y 5T.R. iri ■ V. Voluntary affidavits. S***"' B. N. P 2^« ^'gnature ..B.N.P jS &.V.-: %r-P^^ Degndanv-.-.VWiBfa'^rifS. 'I '^1 ♦1 L ',3 I i ^1 •^\ 176 TABLE OF AUTHORITIES. I ** •.!■»< P .9 •Hi i/ VI, tines anti recoveries. ^?ine Gill. Ev. n VII. Certifita/k, 473 loorr 231 , 3 East. 15 4 T. R. IJ Camp. 444 4E5p. 18' Wills, 143 5 East. 209 4 Camp. 17 .iStr. 5S6 1. & S. 558 Taunt. 73i TABLE OP AUTHORITFES. SECTION XXTT. PUBLIC WRITTEN DOCUMENTS NOT JUDICIAL. 177 I. Journals of parliament. ^°'^'*»V. 5T.r:445 Resolutions 4 St. Tr. 39 )fP'^'- -....Cowp. 17 '^"'•i^a Dougl. 593 P"""®" Cro Car. 455 *""«y .....2Price, 435 ««"K'?"8 1 Wils. 170 Commissions 1 WiJg. 170 ?.""«y» tlEast, 284 i'OmmooweaUb...2 Priee, M0 J?***"" 1M.&8. 29* J;0"^o»» P^ke. ess P"**'" iBurr. 147 ir. Gazettes and acts of state. Government 8 Price, 89 l^'"*? Ttujp. Holt. *296 Proclamationg ... .a Camp. 44 f«ace B.N. P. its y/rmcnt 4 M. & S. .532 Addresses 5 t. R. 435 ^'"/•••: 2 Camp. 513 Partiiership ^ Camp. 619 ^."'^"C Peake, 42 K^^ding 1 Stark. I86 Acts 0/ State. Y^l""' 5T.R. 442 Ambassador 4 Esp. 266 ''"^'•ages 4M.&S. 532 IV. Terriers. P"">;e»-. B.N. P. 248 Boandanes. . . .Ld. Raym. 734 ?,"'»« 6 Price, 380 J?.^P««'^ .3 'taunt. 91 ^^!l• 4 Price, 216 , ;'^ 2A5«t. 386 ■r^/ Ar^eacon 3 A*,t. 789 -^ / Elsev.here 4 6win. 1453 ^ f*"""* B.N.P. 248 Imperfect 4 Gwill. I615 III. Ancient surveys. ^™^»°« Hob. 188 *^»"s Gilb.Ev. 78 I 5 Parish registers. S^'P.'"--;. Dongl. 162 Register Book a Str 1073 JJarriage B. N. P 97 f^'«^^ books PeakeTwI l°'\'S^ lEsp ,??J .^^Pt**" ICoi, 275 "i^ V.'' I "■ '■* 1 i ■J i\ i' •«\ •^ ITB 3 r- ■" ■* V TAnLK ol' AV riloRlTlKS. \ I. Nt'uativf > I'- '»• ^ '■' OwntMsliij) M ^•■»>■^ -"'♦' ]*i-ivity 'J 'I aunt. S y\rt\*hivit 4 i aiiul. HOi AosenUtl .'^ ('«i»p- '^■''^ AbaHiiitiil .^ (:aiii|>. i-lX) InttTf ^t 4 Tamil, f).)-^ Itiilisl\ 8<.'iinn>. 475 VJl Parish hooks. Li|>H siCentp. loO kepiilatioii ^ Cajup. tbQ ModttscH \Viglit<». 63 ^peal 17 Geo. n C. S8 Indentiirt*. .4'^ Oeo. IK. c. 46 Isteiested 2 Str. 9.')4 Inspected....! Ld. Kaym. 337 Vlll. Books in public oflSces. Public offices 6 Esp. 47 Authority Holt, 601 Siecondary ^ Camp. 4 9 Only '^S"". 717 loter^^t ... .t l-^i. KayiH. ».'>< Er.amiiged . . 1 Ld, Rayn. IM I;mi)licatinn .... 2 C^iuiy. 121 Books ffceived. Navy B. N. H; «4 Sick 6 tsp. 117 M,U8ter ... 1 Leach, C. C. '29 l.og-book 1 E&p. 427 SU)tm 4 Camp. 272 Lloyd's 2 E»p. 242 Custom-house 6 E»p. 47 Bankrupts 3 Camp. 499 Excise . •• . 1 Price, 371 License 2 Tannt. 237 Bonnty n East. 478 Statutes . 1 Gtu. 1. St. 2. c. lO ^_ ..... 9 Gro. II. c. 36 llMj^U^tiqDf .... c o.li. 4(. A« 341 I pi„» ;ni. &P. 188 Tinu- I Ltach, C. C. 4^6 c.ui ;5 15. Mv 1!'!' Ait.Minv t l^P- *'" I'oli-l.oJks VVllles 45i!4 I'at.oi. 1 Will. ai3 Hooks not raeired. TjK-pitlu It IS 1 K!ir. Extratt H- N- **• Mouasliy « Af»t. 2*4 j lo:< 24B 601 Histories and public chronicles. Kingdom........ BN. P. 240 Deed B.N. P. 249 Particular 1 Salk. Hit Droitvvich «kiti. t^i^ Ticaiii's 1 Camp, oj V ear-books VSalk. Saa Kx'5 XL Foreign laws. ScoUand 3 E-^p. Exiattnce .......... Ptake, 17 Fact Cowp. 174 Written ...4 Camp. 155 Cinq-oode» 1 I). & It. 38 UnwritU-u 3 Camp. t6o I Xlf. Almanacks. Notice Cro. Car. r^7 Statute 24 Geo. II. c. 4« BuoL...... ...6 Mod. 81 ^ p. 18H L'.. 4M IV MM P- 5Vu •«. 4-i4 II. aij .p. S(i9 >'l . th f», 214 J itr. iui F. 'Ha Int. 601 blic V. 240 p. 249 ilk. im kin. ^!?,1 diiip . UJ nlk. sua £>ip. l(x'3 bake, 17 w|J. 174 iinp. ibb & |{. 3i imp. t6b Car. 2i7 lie. 40 MoU. 81 TAilLi: OF AtlHOKii ; l* 17¥; Sr:CTIO\ WiFT. MIXnn WR.TTKN DOCUMKNTN. PAIITLY PUBI.,0 AND PARTLY PRIVATK. I. Court rolls, fj«""" «ilb.F-:v. (17 1,""'"""' .vr. K. o,i ;•■'""■••» 10 Kant, .vj(» nociimcnta , p ^ 47 J i'K"*^^'' IT.K. '166 K''»»'«tation ,j,.^„ ,0 »resnitmeiit«...2 M. \- s. 44() '«"«"»«• 3T.K. 141 i "»'>'•«''' IC'EuM, 255 ?,"■'"'«'*•■» lWil«. 104 t,""*^"" 3 r,H. J 42 Manor court. jf n j^ J^""*?**' 16 East! 208 ^«1»'" 5K.p. aa 'I CiirporatioQ books. J'"'" I8t. 93 .Mrati«,.ri. .5 H. & A. 142 ,***'P* 1 .Vr. 93 lh..iMHHvr« ...I W.HIark. «7 Aer.Nsil.l,. .1 W'ii,. 39(, J or, raiioiii. 8 T. K. 593 *"l"«'« iStr. 307 III. Books of public com- panies. JP**'" rMod. H9 Smith 8« 4 Taunt. TST ?"'y 2T. R. 610 Hisj't^tioii 1 atr. S04 SECTfON XXIV. DEBD8. I. 6€nor^l rule, that parol fividence is not admis- sible to explain, or alter them. Goustruction Van^h. 169 ^"'"^ 1 T. R. 172 ^l'\^: 4 Moore, 448 \'*P^'** 1 Bro. C. C. 92 };'^dtoo 1 Moore, 346 Jf.7: 3Moor.,M ;f""^ Cowp. 47t ^Tir^ 5Rep. t6 ?,. 3-22 Cuagers '^ Camp. 'Z^: Fore-croi»s. , 7 East, ^2i)l Award ft Taunt. 23i IV. Third exception, evidence of the grantor's title. Life.. 2 B-& B. 351 ■ V. Fourth exception, evidence of a different coasidera- tioB. Considerations.....! R9 Wntuig 11 Ves. 467 One T Ccm. Dig. 4i;9 l>i>|>t use . . . . . . 4 M. A: S. 3o') Crniiiiml .... 2 East. P. C. 82^ Admitted 2 Fist, 187 As»iii>ici:s Duugi. i' ! () Aniiwcr 5T. K. 360 Strangers 4 Elast. D-i Collateral 4 E«p. 239 I Cancelled Peake, 30 D-.te 2 Stark. 284 Cause 2 B & P. 85 Meanc> Skiv, 413 Witnesses 4 M. Ac S. 3o3 Handwriting Peake, 147 Party 7 I'aunt to i X. How proved, when in the possession of the party, if attested, and the wit- nesses can be produced. Produce 10 Rep. 92 Requisite ..55 Geo. III. c.184 Stamped 6 T. R. 452 Rasnre B. N. P. 255 Accident Latch, 226 Execution Palm. 403 Fraud Hetl. 138 Ple»<(«d ;..... 4 East, 585 Exi-ttnce 2 Stark. 183 xr. How proved, when the witnesses canuot be produced. Dead 1 1 & A. 19 Biiml 1 Ld. Ka>M. rj4 Insane S Camp 283 Infamous 2 Sir. 833 Exrcutiwn 2 V.sp. 697 roveigH 7 T. K, Voo Ireland 1 Stark, ^^o Periuiuient ....'...; Peake, 9>j Tenvo'ary. . . ... . .t Eia^, 25o Kingdom 1 Tanut. 4(>j Country 2 Camp, aa^ Navy 2 Taunt. ^'^J Process I B. & P. Stji Fonud ......4 B. & A. 697 Strict 2 East, 133 Diligent 1 Taunt. 36 1 Inquiry 2 Chit. 10^3 One 1 B. a a East, 548 Party 3 Taunt. 60 Estate ,. . 3B. drB. 139 Sheriff- 1 Phil. Evid.432 Siiglit 3 Camp. 502 Secondary 3 Camp. 363 Stamped 1 Stark. 35 Calling.. 1 Esp. 210 Inspects 5 Esp. ^^35 Obligation 1 Gow. 26 Time of produclion. Case 2 Stark. 23 Coutents t Stark. 49 Elicit 1 Stark. 2831 Compelling production. Application a Taunt. 159 Support 6 Taunt. 302 Court Peake, 93 Forged... IB. &P. 271 XV. Of notice t(» ■ oduce. How served. Party 9 T. R. 203 » Attorney ST. R. 306 Reasonable 1 Stark. 283 Dwellir ^-house 1 Esp. 22 Parol 1 Camp. 440 Wro"g 2Sark. 17 Owner 1 Stark. 338 Brother B. N. P. 254 tVhen necessary; Bonds 14 East, 274 Agreements 4 Taunt. 866 Notes 1 Camp. 143 Certificates 3 B. & P. 143 Stealing 1 Leach, G. C. 330 Treason 1 East, P. C. 124 i-osoeiaioU 4 Esp. 25 Counterpart ...... 7 East, 36^ 3 TABLE OF AUTHORITIES. 1«& Pfison 6 T. U. u\h P'ivity 81ia!,t, 487 Stransror , i Salk. yR7 li' itish 3 Caiiij* ayo Voyages 2 Geo, II. c. 36 Coasting 31 Geo. III. c 39 Articles 2 Camp. 319 Stake Barnes, 439 L»^a8e 1 Taunt. 386 How proced. ifnplirUe..,., i.Esp. 203 Botii forms . . i Camp, 440 Notice 4 Esp. 203 xvr. How proved, when in the possession of tliircl per- sons. OI>l«ee8 9 East, 473 Produce Holt, 239 Penalty 2 Taiint. IL-j Civil suit .... 1 Phil. Evid. 419 Contempt Holt, 239 Obeyed 4 Esp. 266 XVII. How proved, whfn lost, or not produced after notice or suhpoen^. Several parts . . . . B. N. P. 254 Whole 6 R. T. 260 Aside 7 East, 66 Believed 8 East, 288 Search 3 B. & A. 296 Enquiry 4 M, a: Js. 43 Hands 6 T, R. 236 Cust'-dy I B, & A 173 GeJmJne 1 Atk, Stfimped ,5 B, & A Executed Skin. 573 Counterpart 6 T. R, Unstamped 1 Camp, Copy 1 Esp Recital r Com, Dig Abstract ,. B N. P. 2.i4 Parol East, 273 Produced ..8 Taunt 450 XVIII. Proof by admission. Attorney 1 Camp. 140 Deliberately t Taunt. S98 Pleadings.... B..N. P. 298 Chancery 5 T. R. 366 XIX. Proof by enrolment. Copy 6B. N. P. 220 Authenticity. ....... Salk. 280 Custody 1 Pliil, Evid. 443 '3 446 » 5«8 > 573 ■n 236 J 501 409 430 .1 SECTION XXV. WILLS. I Admission of parol evi- dence to explain them. Frauds 29 Car. II. c. 3 Explaii|..,....lW. Black, 60 Extrinsic 4 Dow. 93 Twro sons ..:... 6 Rep. 58 Ceusin; . .'.'. . . . 1 W. Black, 60 Names P. Wnis. 141 y»>auk 6 Ves. ()«» Initial 3 Ves. \ Ij Description . . 6 T. K. 67l 184 TABLE OP AUTHORITIES. n 7^/ ■."« : ff "^ 'h -:i>- ■ :¥■■ 'ry Son Amb.174 Mary 7 East, '■2\<9 Children aVes. 216 Fnnd 3 Ves. 306 Stock «B. & B. 5Jl Closes 1 M.&S. «99 Household 2 \tm. 517 Two 2Bro. C.C. 52« Wife B.N. P. 297 Hospitals 1 P.Wms. 421 Statnte 25 Geo. II. c. 6 Hu^baiul 5 B. & A. 589 II. Admission of parol evi- dence, to add to or alter them. Passed 8T. R. 147 Name 6T. R. 671 Substituted 8 T. R. 147 Corerture 34& 35 H. VIII. c. 5 Memory... ....... 11 Mod. 157 Cn»e$. Brothers 4 B. & A. 57 C^rasd-daiighttfr . . 6 T. R. 671 Legitimate 3 Aust^ 684 Sous -2 Vqi. 624 Her 3 Atk. 258 Be!«idiie Trmp.Talb. 240 I^g3ey< i Bro. C. C. 85 Blank 2 Atk. 239 Axbton STannt. 147 Devise 4 Dow. 65 CoscoDib 3M. &S. 171 Declarations 6 T. R. 671 Corresponds .... 4 M. & S. 55') III. Who may be attesting witnesse.s. Witnesses Willes, 665 Time 5 B. & A. 589 Executors 6 Tan sit. 220 Ti nstees 1 W. Black, 365 Wives .....12 East, 250 r qnally 8 Bu'r. 427 IV. How proved, when the at- testing witnesses can be produced. Law jStr. 1254 Chancery l Wils. 216 Issues Coop. 136 Heir B. N. P. 264 Part SLev.l Beginning 3 Lev. 86 Sealing 2 Ves. 459 Sheets Dougl. 241 Abandoned 2 B. & B. 650 Acknowledged 2 Ves. 454 .Situation 2 Salk. 687 Seen 1 M. & S. 294 Wished S Salk. 395 Look Garth. 81 / Insensibinty ^^IfS- 241«t ,. PossibiPity IP. Wins. 239 Blind 2NewR. 415 Attestation Willes, 1 Mouth B. N. P. 263 Several 2 Atk. 177« Mark 8 Ves. 185 Declare 3 Burr. 1773 W h(He will 3 Mod. 288 Room 3 Burr. 17''3 How proved, when the at- testing witnesses cannot be produced, or t^^^y deny their attestation. A broad 5 Ves. 4] i Handwriting 2Str. li«9 Deny 1 W. Black. 365 Frand 3 Esp. 284 Dead 4 Esp. 50 Antiquity 9 Ves. 5 ■ TABLE OF AUTHORITIES. 185 VI. How proved, when lost or destroyed, or not pro- duced. Ledger book 1 Ld. Raym. 731 Original 3 Moore, 658; Property B. N. P. 246 "Vii. Wh6ri proof of the execu- tion 18 dispensed wi'Ji. Possession 6 Dow. 202 VII. Proof of thvir revocation. Revived Cowp. 91 Intention 3li & A. 489 Unsound ... .1 Pluil. Adm. 74 Marriage 5 T. R. 58 Birth 2 East, 630 Presumption Dougl. 30 Fine '* Moore, 24 Recovery 2 Nevr R. 491 Uses -2 New R. 401 SECTION XXVI. itERCANTILE CONTRACTS. 1 Admission of parol evi- dence to explain or alter them. Rnowtedge » .Dongl. 509 S^Qwiag B^ Ni P. 173 %$t Branch. East India . .... .Park, Jui. ^ Baltic ..3 Camp. 16 Newfoundland . . 1 Camp. £33 Landing..., Dougl. 510 Instructions ... .2 B. & P. 164 government.. 2 H. Black. 551 Convoy 2Str. 1250 Downs 2SaIk. 443 Spithead ? Str. 1265 Adjustment 6 Moore, 233 Coastiug ....1 W. Black. 417 At and from 1 Atk. 548 Mouth Peake, 43 Voyage 6 T. R. 320 Cargo . . . . ; I Ves. 459 Bill of lading 3 Esp. 121 Privilege 4 Carap. 385 Captain 1 Stark. ?10 Negotiable .3 Burr. 1216 Twinrv.foi hours 1 T. R. 252 Greenland Park, J'la. 7T' Cruise Dougl. 509 irid L ranch. Brokers l Taunt. 115 Policy 1 Skin. 54 Charterparty 12 East. 583 Gibraltar ..... .1 Moore, 368 Ship's articles .3B,.*.V, "6 Renew .....% Stark., *B6 Renewed • • 3 Camp^ 67 Death • 3 I^, & A. 233 Estates Bla.uBt. 92 Bankrupts 1 Stark. 361 Day. I Moore, 635 Joiid 1 Gow. 74 Navy biH 1 Taunt. 347 Alteration 1 Price, 404 II. •How proved. Produced 4 Taunt Requisite ..... .4 M. & S. Stainpefl '. 3 Esp General. 3 P. Wms. 427 Recognised 1 Camp. 43n Written 1 Esp. 89 Allegation 9, Burr. 1188 Genuine 1 Atk. 446 602 445 213 M I U it 186 TABLE OP AUTHORITIES. SECTION XXVIl. OTlIhR PRIVATE WRITTEN DOCtMENTS. , ''' * I' ■:. . TABLE OF Buriur 1 Ld. Rayiii. 743 Lading 3 Taunt. 3<)3 Sciveuer'8 B. N. P. '2Q3 Attorney 2Str. 112^ Lease 16 East, 32 Midwife's.... 10 East, 109 Rector 5 T. R. 121 Modus 2 Pri je, 307 AUTHORITIES. 187 VII. Maps and surveys of estates. Estates 1 M. Raym. 734 Owners 5T. R. 123 Manors .'.... 1 Str. 95 Churcw^rdens . . . - Peake, 18 VIII. Shop books. Banker 2 Esp. 705 Year 7 Jac. 1. c 12 Proved B. N. P. 28t Usual 3 Camp. 379 Charge 2 Esp. 646 Defendant 1 Esp. 329 Illness . . . .- 3 Camp. 457 Only 1 Esp. t IX. Title ileeds, inscriptions, and other family wri- • tings. Family Cowp. 59i Chancery 7 T. R. Sii Will 11 East, 504 Relationships B. N. P. 23* Bible 4 Cmnp. 401 SECTION ,r ... '» THE BEST EVlbSNCK I. General rule, and cases de- cided under it. Highest evidence. .6ilb. Ev.l5 Behind 3 Camp. 236 Power 2 Stark. 473 Secondary 2 Camp. 685 Nature '. 1 Esp. 127 Castft. Deed B. N. P. 294 East India. » East, 192 Insurance 1 Esp. l^T Memorial 2 Lsp. 548 Toleration Peake, 132 Abbey ....... 1 Salk., 281 Nisi prius 6 Esp. 80 License .... 2 Taunt. 237 Discharge 3 Can;p. 236 Judgment 1 \/s(. 271 Attorney Peake, 236 Roll 4T. R. 366 ProQeedings . . . . . . 1 Esp. 399 XXVIII. MUST BE PRODUCED. Affidavit 4 Camp 90 Appprentice 1 Leach C.C. 208 II. ILxceptions to the rule. Copies .Gilb. Ev. 8 Collaiei-ai.. ..1 Ld. Raym. 154 Of a copy B. N. P. 226 Justices .4 T. R. 366 Constables..2Lfaeh,C. C. 581 Revenue.... 26 Geo. HI. c.77 20 Geo. III. c. 82 11 Geo. I. c. 30 Taxes ;.Wightw. 67 Surrogates 3 Cainp. 432 Army 2 Camp. 513 Handwriting, 2 East, P.C. 1001 Persons 1 Sta^k. lo7 Returns Peake^ 20 Commencement . .4 T. H. 497 Form 2 Stark. 164, i-'i ,,.j. '/I >\\ nr I 188 TABLE OP AUTHORITIES. < SECTION XXIX. THE EVIDENCE MUST BE CONFINED TO THE ISSUE. ^/ I. General Rule, and case* decided under it. Ext>aneouatiia'ter». *'0'"H:'«1 Peiikc, 142 Other bills i Esp. 293 ffpwer t Camp. 391 ^r«nd^o'd Peake, 95 Archdeacon aStr. 957 {J«»of istr. 661 Farishii Cowp. 8<)7 S'lnilar 12 East. 6« FomiPHy Cro. Car. 434 ^istnct 14 £a,t, 352 Common land . . 2 B. & A .Si4 y»»^e ST. R. sbr Burglary ...i I^ach, C. C. 316 Ptrtinent tranMoctiona. Arceptor « H. Black. 888 ^•^•'I «3taA. Ev. 382 Ar»on 2 Eait. P. C. J035 T^fPason 2 Stark. 134 l-t'ttr « Ea«t, P. C. I'll a Uittred 1 NVw R. 92 f>«*^<">mt Bayl.B. 450 Posstssion Bayl. B. 447 J^I»"f.v 1 New R. 94 (^'""ats 1 Capni. 400 andgc iM.ScS. 26^J II. When evidence of charac- ter is admissible. Character B. N. P. 295 P«'"»y 2B.P. 532(o) F'a"<* B.N. P. J96 Criminal B. N. P. 295 Subsequent 1 Esp. 562 )*<>od.. 1 Camp. 460 General. it. ft. 754 Kap*"'-'* 2Stark. 243 SECTION XXX. TMfi SUBSTANCE ONLY OP THE IS8U PROVED. E NEED BE J. Generel rule, and cases to show its application. Irwiucement 1 New R. 210 Strict proof 3 T. R, 643 Caaea 0/ sufficient proof. ]!f«»te Hob. 53 *'^^»*"" Hob. 55 P^'x^y 2 Burr. 9c4 Kjectment 1 Burr. 330 Tender 8T. R. 683 Kxerntion H.N. P. 299 SlHi'lf r 2 W. Black. 793 P»a Hob. 53 •^-scape 2T. R. i!^6 LibH , 2 Camp. Kofi i'riinmg 2 Camp. 646 TABLE OP 'J'ri'iipaM 1 T»iin». 146 Petit frcanoii . ..Funl-^Ml 104 HuiKlary....«Ea»t, P. C. 513 Tn-Mion Fo»t. 194 (^fivnre ^^ R. let ■^•"••'er o Rep. 57 *'<»"*o" 1 B. &H. 473 CaaeM qf inauffident proq '. ('Iiurchwui dtna . . B. N. P. 299 '^•''"and t> B. f««th 1 East, P. C. .141 All THORITIIS. 189 11. Materiality of avermeDtn. Struck out DodrI. 664 Kdsential t H. He P, 456 <>fftiice v{ Kast, P. C. 514 Uecover n Eaut, 452 Averraenu 2 East, 446 Charge 2 East, P. C. iOftl Prisoner ... .2 Eant, P. C. 785 Unnecessary. . . .1 M. & S. 204 Indorsement 1 Camp. 175 Baptised 1 Camp. 479 III. Cases of material variance. Variance i Camp. 70 Contract*. Del. Credere. . . .1 Moore, 279 ^tock 5 East, 111 Tallow 1 T. R. 447 Aerecment 4 T. R, 687 ^'ats 4T. R. 314 Money 6 T. R. 363 Poib«»arance. . . .3 M. & S. 17S ^i'l^ep 3T. R. 67 Consideration.... 4 Taunt. 700 Wheat ,,,.,,,? DousL >s??.« Feme covert Peake, 1 19 Remove Peake, 42 Expected 2 Camp. 3t6 fi*'fti\)t 2^tark. 60 8"«l 1 Chit. 60 <^»"*" «SU#k. 385 liilU ami wtet. l>«'l»lin S B. & A. 301 '••••land 1 B. /»c C. 16 Crouch 3 B. AP. 539 l^ate-. ..«Camp. 308 Value 6 M. & S. 65 Acceptor 2 Stark. 336 l^ravrn 4 Taunt. 810 Innfalmcnt."' . .3 Moore, 79 Deeds. Ktpair ...1 Moore, 89 Ii"'''l 3T. R. 59(» l-aii^i 2 Marsh. 96 Furnaces 2 B. ^k A. 76» iStorehouses 4 M. ^k S. 470 Casualties 5 Mwre, 164 Asvrell 1 Chit. 518 S»«l R 1 Camp. 194 Rtcordu, Jndfment 1 H. Black. 4* Recognisance 2 Malk. 6.'>y t^itnt 1 Camp. 404 Nisi prius 2 Camp. 193 Applicable 11 East. 609 Fofeign 2 Stark. 7 Writ 1 T.R. 656 J«»gn Cartb. 158 T*«™ 3 Moore, 73 Nul.tiel., 7 T.R. 447 Forts. Heap 5 Tannt. 534 Busint's .....3 Price, 5i Anchor sEsp. 226 W***"" 6 Price, 7 Slander and libel. Umbrella '-? B & A. 756 Affirmatively « T. R. 155 Indictment 4 T. R. 217 Trausporled « Marsh j 50« Composed 5 B. df A. 61^ Haee. Covenant ....... .9 Ea«t, Varhn., 6 Taunt. -_T-^ r a— sj .. 1:1: . . , ,.i nA'tOlK, Weir 2 East, Non-residence . .2 B. & P 188 S94 I6a 500 281 •'■1 ■1 I h H :i 1^ i ^' ■ 1 1 .iOO TABLE OF Water park ....,••1 Chit. 507 Bloomsbiiry ..... 8 Taunt. 539 United 2 Camp. vf74 Tender-. ^ Rent .dTannt. 336 .Accompanied . ... , . .5 Esp. 48 Cundit.on .4 Camp. 156 .Document .2 Camp. 21 Custom and pifscription. Custom 1 B. & P. o94rt VoHtry Peake, 1.56 Prescription . 1 Camp. 3uy Ckaracier. Newspaper. 4 Esp. 4G7 Statute 29Eliz. c. 4. Words 6T. R. 771 J^roctsa. Bench 3 M. & S. 166 Peace-officer 5 Esp. 39 Bail 4 Camp. 213 Partner 4 B. <& A. 374 Ship...,..v 6 Taunt. 464 Replevin ........ .4 Taunt. 320 ,lVIoney .... ..., 2 Esp. 205 AUTHCRITIES. IV. Cases of immaterial variance. Contracts. Item 5M. &S. 65 2 Mo? 3 Price, 68 Sale....... 1 B &A. 9 Balance 2 Moore, 114 Young Horse 8 Eaot. 7 Hemp .13 East, 410 Oranges .1 Moore, 547 Settling day 2 B. & A. 335 Reward 2 New R. 458 Loan 5 Taunt. 228 Rum money 1 B. & P. 7 Delivery. ...... .2 Marsh. 287 Carriase .. = = = = = = = , i T-. R= 659 Borrowed horse 2 B. d» B. 359 Guarantee 1 B. & B. 523 Credit 2 Chit. 403 Warehouse 4 Moore, 515 Firm BilU Mtid note», 4 M.&S. 13 Three persons. . 1 B. & A. 224 Value 3M. & S. 351 Accepted 2 M. & S. 282 Agent 2 Camp. 604 Indorsed 1 Camp. 139 Sterling 1 Stark. 69 Sight 1 Stark. 46 Presentment Gow. 55 Town 2 Stark. 3t9 Slo^^^ilS 6 Taunt. 394 Occupation 2 Marsh, 96 Mortgage 4 M. & S. 474»i Trfjscrer 1 1> A: A. 57 Bond 4 Camp. 34 Marriage \ Moore, 66 Hecords. Judgment 13 East, 547 Despaired 1 T. R. 237n Understood 1 T. R. 237n Perjury 14 East, 218n Seal 1 Taunt. 71 Sessions .... 2 W. Black. J050 Unmeaning 1 Dougl. I94fi Costs 3Salk. 214 Issue Peake, 38 Addition 6 Esp. 116 Pftlace court . ..5 B. & A. 634 Acquitted 9 East, 157 Place. Use 1 Taunt. 570 Famham I3 East, ? Corporation. ... 1 B. & A. 699 ^'estbury 5 M. & S. S26 Thames. 4 T. R. 558 Part 4 Taunt. 671 Statutes. Statute 11 Geo. II. c. 19 Distress 3 T. R. 643 Penalty I H. Blatk. 283 Usury 12 Anne, c. 16 Crimes. Pplnnv 1 Stnrk •iT'7 Robbery 2 East, P. C. 785 Arson .'.... 2 East, P. C. 1021 Fi. fa 4M. & S. 349 Insurance 5 T. R. 496 TABLE OF AUTHORITIES. 10] Pasture. ::r^TchU.t04 I ^--^^^ ' ' ^^^0. Jac. 6« ^•'"' 1 Taunt. 142 I Date .^"T.'. a Lev. 348 SECTION XXXI. THE AFFIRMATION OP THE ISSUE MUST BE PROVED. I. General rule, and its ap- plication. Affirmative 4 T. R. 33 P'a'ntiff 2 Stark. 30 II. Exceptions to the rule. Peath 2 East. 312 Statute.... 42 Geo. III. c. 107 j[?> ^"^ 2 Camp, 654 /.'"'f" 1 Roll., 83 Combustible 3 East, 193 Exchequer B. N. P. 298 Sacrament 10 East, 211 Seizure Peake, 162 ^ervaat 3 Camp. 1 Assignees 6T. R. 57 Informations ...AM. Ac S. 206 Game laws 1 East, 650 Infancy 1 T. R, 648 Herrings 2 B. & B. 302 Presumption 1 T. R. 270 SECTION XXXII. HEARSAY. I. General rule and excep- tions. Proof 3T. R. 707 Contrivance B. N. P. 243 Precise 4 T, R. 290 Nisiprius 1 Str. 162 II. rirst. PXf-PTit.ion ci^ i^viAi^ni^i^ B*yk former trial. Trial . .•* 3 Taunt. 262 Witness , 5 Eso. 56 III. Second exception, of dying ut:v;iai ttliutis. Dpitb 2 Leach, C. C. 566 Ejectment ..... .4 B. & A. 53 Execution.. 1 Leach, C.C. 578 •t, 4 a:i .* • 1 .J » . 1? 192 n of con- declara- ^^ t. IV. Third exception, temporaneuus tions. Himself 1 . Bankrupt 1 Stark Wife ^kin. Surgeon 6 East, Insurance 6 East, Elopement rt East, Husband 3 Esp. Picture 2 Caii.p. TABLB OF AUTUORITIRS. I Legitimacy U Ves. 148 Marriage 6 T. H. 330 Child Cowp. 591 Access Temp. Hardw. 79 Time ....loEast. 120 Place... 8 East, bit «99 353 4()« 198 188 193 276 51 i V. Fo'irth exception, in ques- tions of pedigree and le- gitimacy. Birth iCamp. 177 Tr&lition 13 Ves. 514 Controversy 4 Cainp. 4^1 Witness Temp. Hardw. 79 Notoriety 8 Eftst. 54f Abroad 12 East. S93 VI. Fifth exception, in qnes- tions of public rights, customs, boundaries, and prescriptions. Publir rights... iM. AS. 679 Boimdaiits 1 ^I.'S' S. «1 Prescriptions ... .14 East, 327 Question 4 Camp. 401 (^ntrovei«y....4 M. &S. 486 Fact 1 M. & S. 687 Private 1 M. & S. 77 Wood 2M. &8. 494 Estates 14 East, 331 Sheep-walk 2 Chit. 535 Kent. 4B.&B. 588 Tenants , 2 T. R. 55 i:^I SECTION XXXIII. DEMURR&tRiS TO EVIDENCE. Analogous.... 2 H. Black. 285 I Admit. .2 H. Black. 187 1 1 ■,'.S- ' < SECTION XXXiV. BILLS OF EXCEPTIONS. Trial SSalk. 155 I Either Civil cases Teaip. Hardw. |49 | %0Kbl. txi Error ......B.N. P. 316 I N D E ^ A. ACCOMPLICE, may be a wRneM, 24. ACTION, evidence of its oommenoeinient, 66. ACT OF PARLIAMENT, Public, 'le. Private, 46. ACT OF STATE, how proved, 76. ADMINISTRATION, Letters of, eflFect in evidence, 72. how proved, 72. ADMIRALTY, Court, sentences of, how far evidence, 36. how pn)ved, 37. ADMISSIONS, of record, 3. by judgment by default, and on demurrer, 4. by payment of money into court, 4. by particulars of demand, 6. by parties generally, 6. of execution of deeds, 104. of wills, 113. by partners, 7. by agciita, 7. by attomies, 7. 194 ikdbx. 5. .' I I rl .v ADMISSIONS, by other aatlh rised deputies, 8 Undersheriff, 8. Sheriff's ofScer, 8. . by conduct and demeanour, 8. AFFIDAVIT, effect of in evidence, 68. hov piovd, 68. AFFIRMATIVii OF THE ISSUE must be proved. general Pile, an I its application, 151. ex caption J to the rule, 152. ACJENTS, admission, by, 7. when witnesses, 27. AGREEMENT, within tbe stotute uf frauds, 120. ALMANACKS, how for evidence, 83. AMBIGUITY in deeds, 87. in wills, 105. in mercantile oontraots, 114. ANSWER IN CHANCERY, effect of in evidence, 62. . . how proved, 5& AR'.EST, privilege of witnesses from, 37. ARTICLES OF WAR, how proved, 76. ATHEISTS, cannot be witnesses, 16. ATTENDANCE of witnesses in-ciyil cases, 37. when at liberty, 37. > .when in ct^tody, 38. in criminal cases, 38. before coramissioacrs of bankrupts, 39. under the iuclosure act, 39. before courts mnirtial, 39. boiOfe iiia{jisiiatca, 3v. '*"• INOSX. ATTESTING WITNESSES to dccdn, 94. to wills, no. to mercantile contracts, 1 18. to other d cumcnts, 122. ATIORNIES admission by, 7. when they .: ay hr witn«'sses, 35. AWARDS, how far evidence, 73. how proved, 73. by cunimisiiiuuersj 74. 195 B. BAIIj, how rendered admissible . witnesses 32 BENEFIT OF CLERGY, efiect .f in restoring infa. OMus persons, 18. BEST i:VID£NCE, must be produced, explanation of the rule, 128. cases under the rule, l^^ e.'vceptions to the rule, 130. BILL IN CHANCERY, effect of in evidence. 52 BILL OF EXCEPTIONS, where it lies, 168 BOOKS ' public, how far evidence, 79k which tave b^n received, 80. wluch not, 81. of public coinpanies, 86. BROKERS, are good witnesses for their |*iireipaU, 27. ;■' : I c. CARRIER^S, are good witnesscsfor their employers. K2 27. ••ij 190 INORX. J' r ¥•' '1 t*,'. r^' i*^tv.. CERTIFICATES, V several kinds, 69. effect of in eviuence, 70, CHANCERY, proceedings in, till, 52. answer, 52. depositions, 53. decree, 54. CHARACTER, evidence of, when admissible, 134: CHILDREN, wlien witnesses, 16. CHROMCLFS, when evidence, 82. COLLEGES, in the universities. sentences of, when evidence, 57. COLONIAL COURTS, sentences of, when evidence, 58. how proved, 58. COMMISSIONERS of bankrupts, sentences by, when evidence, 59. CONDUCT and demeanour, admission by, 8. CONFESSIONS, by pleading guilty, or submitting to the king's mercy, 11. before magistrates, 11. should be voluntary, and in writing, 12. before other persons, 14. their effect, and how proved, 13. CONFINED TO THE ISSUE, evidence must be. general rule, 131. cases of extraneous matters, 132. cases of pertinent transactions, 133. CONSIDERATION of a deed, proof of, 90. CONTINGENT INTEREST,ruleof in evidence, 28. CONVICTIONS of magistrates, when evidence, 61. COPIES of records, 48. of other public documents, 130. m^ > 4iif^>HX. 197 COPIES of deeds, 103. office copies, what, and when evidence, 48. COROxNER, inquisitions by, 67. depositions before, 64, CORPORATION BOOKS, when evidence, 84. how proved, 84. CORPORATORS, when witnesses, 21. 29. COLNSEL OR ATTORNIES, when witnesses for their clients, 35. COUNTERPART of a deed, when evidence, J03. CREDIT of a witness, how impeached, 44. CREDITOR, when a witness, 22. CRIMES, what render infamous, 17. CROSS-EXAMINATION, of a witness, 41. CUSTOMARY of a manor, when evidence, 83. ■S'l D. DEATH, evidence and presumption of, 152. 14. DECISIONS of ir.a-islrates, GO. DECREE in chancery how far ev'dence, 54. Iiow proved, 54. DEEDS, general rule as to the admission of parol evidence to explain or alter them, 86. latent ambiguity in, 87. explanation of, when ancient, 88. evidence of grantor's title, Hi). evidence of dilTerent consideration, 90. time of delivery, 9il customary right not expressed, 91. fraud or illegality in the creation, 91. ■I fci' . a '■ 'i- m f,4 l'^ 188 INDEX. DEEF1S execution :-f, OS how proved, u'en in tfe ; arty's po&sessioi), if attested, afl t»'e witnesses can be l»r- !l-;ct\ fM. when t' ,- wit' essess cannot be pr» 'veed, 9'S wlici nrt uttestc? in what cases, exec;. ti'.i- net! ra : ^ proved, 97. )iow pro\ed, >\hc»> i»« t!.e pfsscasion of the adver- sary, 98. of notice to produce, 100. how proverl, vhen in the possession of third persuus, 102. when lost, or not produced after notice of subpotnd , prooi' ].y adnission, 104. pr of by enrolment, 104. DEFA'jLT, ju'lg'^cr' y, how far an admisiion, 4. DEMANP, particulars of, admiiision by, 5. wlen snflicient, 6. how j»r-'ve»l, 0. DEMURRER to evidence, what and when used, 168. DEMURREtl,j»;.V^' -^to-s admission l>^ , 4. DEPOSITIONS, when admissible generally, 61. on intern ;^-at«>ries, 62. taker ■ ,r lia, 63. beforr; r«?t;istiates, 63. before cor.;iiers, 64. in ecclesiatticai courts, 65. in chancery when admissible as evidence, 53. how proved, 54. INDSX. 199 DEPUTIES, autliori'-^d, admissions by, 8. DISCHARGE of insolvent, how proved, 72. DISFRANCHISEMENT of corporators, how proved 32. DOMESDAY BOOK, when evidence, and how proved 77. DUCES TECUM, clause of in sabpoenft, 102. DUPLICATE COPIES, effect of in evidence, 102, 124. DYING DECLARATIONS, when evidence, 164. E. ECCLESIASTICAL COURTS sentences of when evidence, 66* how proved, 66« practice of, 56. ENROLMENT of deeds, 104. ENl'RIES by third persons, effect of in evidence, 124 EQUAL INTEREST, how it operates, 28 EVIDENCE best to be produced, 128. must be confined to the issue, 131. noed only prove tie substance of the issue, 135. aflBrniative to be proved, 151. EXAlTiNATION of witnesses generally, 41. as to interest, 31. M'hat questions may be asked in, 42. of i^auiiers, 68. of pregnant women, 68. , EXCGMM'JNICATEDPERSONS,inaY be witnesses, IS. i 200 INB'EX. EXECUTION of deeds, 92. under powers, 93. vhen unnecessary to prove, 97. ; of wills. 111. i ^ when unnecessary to prove, 11" of mercantile contracts, 118. of other documents, 121, EXEMPLIFICATIONS of English Courts, 48. of Fo<-eIgn Courts, 58. EXPENCES of witnesses, rule regulating, 37. F. FACTORS, are good witnesses for their principals, 27. FAMILY DOCUMENTS, how far evidence, 127. FINES AND RECOVERIES, how proved, 69. FOREIGN COURTS sentences of how far evidence, 67. Foreign judgments of debt how far evidence, 68. how proved, 82. FORGERY, who may be witnesses to prove, 23. O. GAMING, losers at, are good witnesses to prove their loss, 26. GAZETTES, when evidence, 76. GENTOOS, may be witnesses, 16. GUARDIAN admission by, 6. answer in equity of, 62, INDSX. 201 H. IIANDWRITINO how proved, ami disproved, 96, 130. comparison of, 97. HEARSAY generfii rule, and exceptions, 153. evidence at a former trial, 154. dyin^ declarations, 154. contemporaneous declarations, 155 ID quesuons of pedigree, and legitimacy, 156. of public rights, customs, boundaries, &c. 157. HERALD'S BOOKS, how far evidence, 81. HISTORIES, liow far evidence, 82. HUSBAND AND W^IFE when they may be witnesses for or against earh other, 34. admi|sion3 by w ife, 35. IDIOTS, .al prosecutions,^. accomplices, 24. interested persons nads adnissiUe by statute, 26. . persons «Btit4eil to Kvi^rthi, 29. agents, carriers, factors, brokers, servants, 27. persons equally Mterested, 28. contingent ;ind rej^i .te, 29. excmination as to, 31. how removed, 32. INTERROGATORIES, depositions on, 54. INTRODUCTION, 1. IRELAND, statutes of, 46. i if. i U;J J. aACriTATlON, sentence of, effec^in f vidence, 55. JOURNALS of irarliament, when evidence, 75. how proved, 75. JUDGMENTS of superior courts their eifect in evidence, 47. how proved, 48. , in criminal cases, 49. in rwn in the exchequer, 50. by commissioners of excise, 51. . nf infArinr miirtft nnt ni rp«».nrfl "«1 w 'NDBX. 203 JUDICIAL NCTlCi;, .I,at n^atter. the court, will Pr-tic- witht t (Ai'ic'icc 9 JCSTIC£«, orders ol, tiu. K. KING, act of, how prove«1, 76. L. LEGrriMACY?' ' ' '*''"""'' """'"' '''• evide- c> in questious oF, 166. access, 167. l^l.N MOT A, rul ust-s 156, 157. LUNATIC. ca,.„ot bo . vitrei, v. -.il.t under the Influ- eiice of Lis disorder, 10. 3L MAGISTRATES coafessions jiefore, U. decisions of, 6(). juy, 61. MAHOMETANS, may be witnewes, 16. MAPS, hov. far evidence, 126. MARRIAOE, how proved 78. --■-"-^-«.T..-,i;i^,,i^ wuut»»e»» rule m to, 43. s«- *■ ^ M, 204 \ INDEX. MERCANTILE CONTRACTS admiMion of jparol evidence to explain, or alter them, 114. how proved, 118. MORAVIANS, when witnesses, 40. N. NEGATIVj:, rule as to proof of, 151. NOTICES generally effect of in evidence, 123. how proved, 124. to produce docaments hew served, 100. -, when necessary, 101. how proved, lOU ^ O. OATH, form of administering, 40. OFFICIAL COMMUNICATIONS, rule as to, 4. OPINION, evidence of, when admissible, 43. P. PAGANS, may he witnesses, 16. PARDON, effect of in evidence, 18. how proved, *8. PARISH REGISTERS, how far evidence, 78, PARISH BOOKS, how far evidence, 78. PA RLIAMENT, jeamals of, how far evidence, 75. r attcr . 4. 75. XNDEX. r .206 PAROL EVIDENCE when admitted to explain or alter deeds, 87. Wilis, 105. mercantile con- tracts, 114. other writlnf^n not under seal 1 2^J. PARTICULARS, bill of, eflecl of in evidence^ 5. PARTIES injured, may he witnessoi in criminal cases, 23. PARTNER, admission by, 7. PARTY admissions by, 6. when a witness, 'Z3. . PAYMENT of money into court admission by, 4. how proved, 5. PECULIAR JURISDICTION, proceedings of courts of, Ecclesiastical courts, 55. Courts of admi|;alty, 56. Colleges in the universities, 47. Foreign courts generally, 67. Foreign judgments of debt, 68. Courts martial, 59. Commissioners of bankrupts, 59. PEDIGREE, how proved, 48, 156. PLEADINGS, admissions on, require no proof, 4. POWER OF ATTORNEY, to execute deeds, 93. PRESUMPTION of law, 14. of fact, 15. PRISONER OF WAR, how attendance procured, 38. PRIVILEGED COMMUNICATIONS, what are, 35, 42. • i f AJ! •. i ■\ 200 INDEX. PROBATES OF WILLS, how far evidence, 71. how proved when lost, 71. revocation of, 71. PROCHEIN AMY, cannot be a witness, 33. PRODL'CTION of documents, by adversary, 98. tiineo.', SO. mode of compelling, 99. by third persons, 102. PROOF, burtlnn of, upcn vhc:-! it lies, 151. PRCSECUTORS, Mhen good witnesses, 23, 26. PUBLIC BOOKS, i hew far evidence, 79. which have be^n received, 80. which not, 81. ' - ■? '■< t if I 4 - ' i 'i t - '*,,'• ••'(1 a} Q. QUAQERS, when witnesses, 40. QUARTER SF^IONS, jud^ents of. 60.' QUESTIONS, what a witness must an. wer, 42. R. R£ 3EIPTS, effect of in evidence, 122. RECITALS, when evidence, 103, 127. RECORD, Admission of, 3. Ii"*w proved, 48, &c. RECOVERIES, how proved, 69. RE-EXAMINATION, of witnesses, 42. HEFEKENCE, order of, how proved, 74. INDRX. «07 'l E L EA S E, of in terest, 32. REPUT\TION, when evidence. 166. RESOLUTIONS OF PARLIAMENT, not evi 3. of wills, 113. of mercantile contracts, 11 (i. of other docujnents, 121. ~* , SERVANTS, w'.en witnesses, 27. n ' *' ' SERVICE of notice to i»rndo?f. no SHERIFF'S OFFICER, admissionly. 8. ' SHIP'S REGISTERS. how far evidence, 7a how proved. 79. SHOP JJOOKS, how far evidence, 126 SOLDIER, exarai:«ation of, 68. SUBP(EN \ a*l testificandum, 37. duces tecum, 102. ^ t V ^■: i '! »■ 'i" i'i'' 208 JWPKX. SUBSTANCE OF THE ISSUE, oii'y neea be proved, jfeneral rule, 135. cases of sufficient proof, 135. cases of insufficiei^t proof, 137. materiality of averments, ^37. cases of material varianr., 138. cases of immaterial variaii':e, 145. SURVEYS, priva/e, 126. public, 77. S^A EARING the witnesses, 40. '■M 1 , > i f m 4- T. TERPIERS how far evidence, 77. how proved, 78. TREASON, confession of how proved, 12. TRUSTEES, v.*ien witnesses, 30. U. UNDERSHERIFF, admission by, 8. UNi/£. WRITER, when « witness, 30. I ^AGE OF TRADE, effect of in evidence, 115. V. • ■ VARIANCE,' cases of material*, 138. cases uf immuterial, 145. VERDICT, how far evidence, 47. [)vcd, INDEX. VOIRE DIRE, examination on, 31. 208 \ W. WIFE, admission by, 35. wills'"" * ''''"''" *'*'"'^ ''*' hvnhmd, 34. admission of parol evidence to explain them, 105. to add to or alter , them, 108. who may attest them, lio. I'ow proved when the attesting witnesses can be . produced, no. liow proved when the attesting witnesses cannot Reproduced, &c. 112. '"^uc'eTm"''"'"' or destroyed, or not pro- wtien proofof the execution isdispensed with, 1 13. proot of tiieir revocatioD. 113. WITNESSES, who may not be, Lc. 16 to 36. number necessary, 4.3, attendance of, 37. privilege of, frcm antwt, 37. expenses of, 37. punishment of, for contempt, 38 swearing- of, 40. examination of, 40. generally, 40. as to interest, 31. ordered out of court, 42. what fijuestion? nay be askedT^S. from whatknowlcdc-R thf>vmiiaf o,»^„i, ^o 'ir f. i •i i.) 210 W INDEX. wrrNEssEs, cross-examination of, 41. re-examination of, 42. how their credit may be impeached, WPITS how far evidence, 65. how proved, 66. WRITINGS not under seal, their eflFect in evidence, 121. how proved, 121. I H f K > J " >> THE END. I; ',?-^ > a^* f.r IV- T, i,' Printed by Hewlett and Brlmner, 10, Fritli Steeet, Sf "-o. 1^*