UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Gift of Howard Surr iw' TREATISE LAW OF EVIDENCE FROM THE EIGHTH LONDON EDITION, WITH CONSWERABLE ADDITIONS. BY S. MARCH PHILLIPPS, ESQ. AND ANDREW AMOS, ESa. BARRISTER AT LAW. "U/itfb OAioteA twvo- «%e[etert-ce5 to- Olbtmlica^ A&aJ^eS. BOSTON: PUBLISHED BY ELISIIA G. HAMMOND. 18 3 9. T Eulered according to llic Act of Congress, in the year 1839, by E L I s H A G. Hammond, ill the Clerk's Office of the District Court of Massachusetts. "Worcester : Printed by Spooner & Howland //rjS 7/' ADVERTISEMENT EIGHTH LONDON EDITION. The work now presented to the public, is an enlargement of the first Volume of the last Edition. It was thought most desirable to make this a separate publication, and not to connect it with the details of particular actions. The presen^^^ therefore, is confined to the enquiry into the general prniciples of our Law of Evidence ; and the rules of Evidence, applicable to particular actions, a s referred to for example and illustration. » 4 ♦ •-— -♦ My friend Mr. Amos, who assisted me in the last Edition, took upon himself the whole charge of this, and completed the greater part of the Work, when he was prevented from finishing it, by his appointment to an office in India, in the autumn of last year. At that time, he had proceeded in the Work to the end of the Fourth Chapter of the Second Part. On quitting-OEngland, Mr. Amos committed to Mr. Gale the charge which he had undertaken, explaining to him his own views of what remained to be done. Mr. Gale commenced with the Chapter, " On tJie admissihilily of Parol Evidence^ in explanation of Written Instruments,'^^ /page 710), and completed the remainder. 306175 ADVERTISEMENT. Tho cliicf part of my duty, in preparing this Edition, has consisted in revising and correcting, making additions and alterations, as I thought advisable. In doing this, I have bestowed all the care and attention in my power. I ought to make some apology for the size of this Vol- ume, Avhich I must admit, has far exceeded our calculation ; and yet, I douM wlieth^ any materialgreduction of the size might not have lessened the usefulness and value of the Work. S. M. PHILLIPPS. Whitehall^ July, 1838. CONTENTS. PART THE FIRST. CHAP. I. Page Of the Exclusion of Evidence in certain Cases, and of Incompetency from Defect of Understanding % General Rule as to Credibility and Competency - 2 The several-#4ounds of Incompetency - - 3 Sect, t. Of Incompetency from Want of Under- standing - - - - - - 4 'GenerfQ Rule - - * - - - 4 Idiots — Lunatics - - - - 4 Children - - - - - 5 Account given by, not Admissible - - 6 CHAP. II. Or Examination upon Oath, and of Incompetency from Defect of Rehgious Principle - - 7 Principle of the Rule - - - --7 Import of Oatli - - - - 8 Form of Oath - - - - - 9 Religious Belief— Religious Principle - - 11 Examination as to Religious Opinions - - 12 Atlieists— Infidels - - - - 11 Examination previous to Swearing - - - 12 Quakers and Moravians - - - 13 Excommunication - - - - 13 VI CONTENTS. CHAP. in. Of incompetency from Infamy of Character - - 14 Distinction between Legal and Moral infamy - - 14 Principleof the Rule - - - - 15 Propriety of Exclusion - - - - 15 Sect. I. What Offences incapacitate - - 17 Treason, Felony, Crimen Falsi, Forgery, &c. - - 17 Bribing a Witness — Conspiracy - - - 17 Gaming - - - - - - 18 Outlawry - - - - - 18 Infamous Punishment - - - - 18 Sect. II. Extent and Effect of Disability - - 19 Sect. III. Proof of Incompetency - - - 19 Proof of Judgment - - - - 19 Sect. IV. Competency how Restored - - 20 1. Reversal of Judgment - - - - 20 2. Pardon, Effect ot - - - - 21 Proof of Pardon - - i% - - 21 y. Effect of Suffering Punishment - - - 23 Felonies - - - - - 23 Misdemeanors - - - - 24 CHAP. IV. Of the Evidence of Accomphces, Informers, and Self- Discrediting Witnesses Sect. I. Of the Admissibility of Accomplices - 25 General Rule - - - - - 25 Objections to Evidence of Accomplices - - 26 Accomplices competent - - - - 26 Implied compact with Accomplices - -^ - 27 Practice as to admitting Accomplices r - 28 Accomplice, separately, jointly, indicted t - 28 Breach of Implied Contract - - - 29 Principal and Accessary - - - - 29 Accomplice admissible for Prisoner - - - 29 Sect. II. Of the Confirmation of Accomplices - 30 General Rule - - - - - 30 CONTENTS. VII Page Practice requiring Confirmation - - - 30 Extent of Corroboration - - - - 32 Confirmation as to Material Fact - - - 32 Confirmation as to the circumstances, and as to the Per- son ... - 33,37 Confirmation by several Accomplices - - 38 Wifis of Accomplice - -^ - - 39 Accomplices, who - " - - 39 Sect. III. Informers and Self-Discrediting Witnesses 39 Informers ... - 39 Witness alleging his own Dishonesty - - 40 Witness invalidating an Instrument — Indorser — Payee - 41 Person bribed - - - - - 41 Subscribing Witness - - - - 42 Other instances - - - - - 42 CHAP. V. Of the Incompetency of Witnesses from Interest - 43 Principle of the Rule - - - - 43 \ CHAP. VI. Of the Incompetency of the Parties to the Suit. General Rule - - - - - 43 Policy of the Rule - - - - 43 Objections against - - . - 43 Answer to Objections - - - - 44 Sect. I. Of the Rule of Incompetency from Interest with reference to the Parties to the Suit in civil Proceedings. Principle of the Rule - - - - 46 Party to the Suit incompetent - - - 47 Ground of Incompetency - - - - 47 Nature of Interest - - " - - 47 Interest in Costs - - - - 48 Members of Corporations . - . 48^ 49 Inhabitants of Counties, Parishes, &-c. - - 50 Co-defendant in cases of Judgment by default - - 50 1. Effect of a Judgment by Default - - 50 Defendant incompetent for Co-defendant - 51 Defendant incompetent for Plaintiff" - - 51 Defendant when competent for Plaintiff" - 52 VIII CONTENTS. Page In Actions on tort - - - - 52 Co-defendantsuffering- Judgment by default - 52 Co-defendant when competent for Co-defendant - 52 On Assessment of Damages - - - 53 In Ejectment - - - - 54 2. Effect of a nolle prosequi - - - 55 After pleading Bankruptcy - - - 55 Effect of nolle prosequi - - - 56 Separate Verdict - - - 56, 57 Effect of, in restoring Competency - - 58 3. As to a separate Verdict at the Trial - - 58 Co-defendant in tort - - - 58 Separate Verdict — when taken - - 59 Party named in Declaration, but not sued - 60 A Party made Defendant by Mistake - - 60 Ejectment - - - - - 61 Sect. II. Of the Competency of Parties to Criminal Prosecntions, and of the Party injured by the of- fence. Party injured - - - - - 61 Prosecutor - - - - - 61 Indirect Interest - - - - - 62 General Rule - - - - - 63 Party aggrieved in Forgery - - - 65 Prosecutor when incompetent from Interest - - 66 Summary Convictions - - - - 66 Forcible Entry - - - - - G6 Exception to General Rule - - - 66 Stolen Goods — Restitution - - - 67 Property recoverable by separate Action - - 67 Perjury - - - - - 69 Fine or Imprisonment - - - - 68 Defendant in criminal Prosecutions - - - 68 Nolle prosequi - - - - - 68 Plea in Abatement, and Judgment by separate Verdict - 69 Judgment by Default - - - - 70 CHAP. VII. Of the Rule of Interest with regard to Persons not Parties to the Suit - - - - 71 General Rule - - - - - 71 Direct Interest - - - - - 72 Indirect Interest - - - - 72 Alteration of the Law as to Indirect Interest - - 75 CONTENTS. IX Page What is such an Interest as^will disqualify - 76 Nominal Party - . - 79, 80 Bail - - - - 79,80 Husband and Wife - - - - 80 Surety in Replevin Bond - - - 81 Persons not Parties to Proceedings - - 81 Uncertain Interest - - - - 81 Competency Presumed - - - 82 Amount of Interest - - - - 82 Interest in Costs - - - - 82 Balance of Interest - - - 82 Consolidation Rule - - - 84 Collateral Agreement - - - 84 Joint Interest in subject of Action - - 85 Partners — Co-contractor — Co-obligor Residuary Legatee — Next of Kin — Creditors — Specific Leg- atees — Bankrupt — Insolvent — Creditor of Bank- rupt, &c. — Interest in Land — Tenant in Posses- session — Remainder-man — Tenant by Courtesy — Devisee— Executor — Legatee — Heir—Entitled to Dower — Charge on Land — Rated Inhabitant, &c. — Replevin conusance 85 — 95 Liability over - - - - 95 Broker— Sheriff's Officer— other Persons 97, 98 Nature of the Interest in these Cases - - 99 Servant of the Plaintiff"- of the Defendant — Captain of Ship Driver of Stage Coach Result of Cases - . - Other Cases of Incompetency Liability over . - . Sale of land — Vendor with warranty Sale of Goods ... Vendor of Horse - - - Witness proving Property in Himself - Actions on Bills of Exchange - Liability to Costs — Accommodation Bills Drawer incompetent for accommodation Ac- ceptor ... Accommodation Indorser Agent employed to discount - Witness to prove payment to Himself Cases of Incompetency from Costs Liability arising from illegal Contnact Effect of Stat. 3 & 4 W. 4, c. 42, § 26, 27 - Witness liable over to Defendant to Plaintiff" Immediate interest not within the stat. h. 99, 100 - 101 - 101 - 102 - 102 - 102 - 102 - 102 - 104 - 104 - 104 - 104 - 104 - 104 - 105 - 106 - 106 - 107 -11.3 109 109 110 108- CONTENTS. Page Drawer of Accommodation Bill - - 111 Distinction between Witnesses liable over to Plaintiff and to Defendant - - - 112 CHAP. VIII. What is not such an Interest as will disqualify. Connection of Witness with the question at Issue - 114 Wishes or expected Benefit _ _ _ 114 Witness in same situation in Civil Cases - - 114 Co-trespassers — Underwriter in policy - 114,115 In same Situation in Criminal Cases - - - 115 Influence of Verdict _ _ - . 116 Borrower incase of Usury — Possibility of Action — Uncer- tain Interest — Actions by Executor — Specific Legatee — Annuitant under a Will — Creditor of Estate — Creditor of Bankrupt, &ic. — Mere Trustee — Actions respecting Real Property — Policy of Insurance — Captain — Assignees of Bankrupt - . - - IIG— 121 Witness believing Himself interested - - 121 Honorary Obligation - - - - 122 Interest on both Sides - - - . 123 Joint Contractors . _ - _ 124 Partners of Drawer of Bill _ . _ 125 Actions on Bills and Notes — Joint maker of Note — Draw- er of a Bill — Accommodation Drawer — Indorser — Ac- commodation Indorser — Maker of Promissory Note 125 — 127 CHAP. IX. Of certain Exceptions to the General Rule on the sub- ject of Interest. Owner of Stolen Goods entitled to Restitution - 129 Persons entitled to Rewards — to Pardon - - 130 Trial for Bribery — Informers — Other Exceptions 131,132 Inhabitants of County, &c. — of Hundred, &c. 133, — 138 Other Exceptions by Statute — Local Acts, &c. - 138 Exceptions from Necessity — Public Question — Agents, Servants, &c. — Factors and Brokers — Servants and Car- riers — Agents - - - - 139 — 142 Exceptions on Special Grounds — Issue from Court of Equi- ty — Action for Malicious Prosecution — Interest in Costs in certiorari - - - - 142 — 144 CONTENTS. W Page Exceptions to prevent an abuse of Rule of Exclusion — Witness offering to Release, &c. — Legatee, &c. — Inter- est acquired fraudulently — Interest acquired since cause of Action — Underwriter having paid — Wager on Con- viction . - - - - 144—147 CHAP. X. Of the mode of objecting to the Competency of an interested Witness, and of the means of restoring Competency. When objection to be taken - - - 148 Release — By Minor or Guardian — By one of several Obli- gees, or to one of several Obligors, — Several Contrac- tors — Partners — Part Owners — Residuary Legatee — Stamp of Release — Undertaking to Release - 151 — 155 Member of Corporation _ . . 155 Bail .... 155, 15G CHAP. XI. Privilege of withholding Evidence, and Incompeten- cy of Witnesses to give Evidence upon particular Subjects. Sect. I. Of the Privilege of Parties to the Suit from being Examined ' - - 157 Rated Inhabitants— Co-Plaintiff - - - 159 Sect. II. Incompetency of Husband or Wife, Par- ties to the Suit - - - 159 Civil Cases — Criminal cases - - 159 Exceptions - - _ . 160 Collateral Proceedings 162—167 Actions between Third Persons - - 167 Conversations between Husband and Wife - - 168 Non-access - - _ . . igg Exceptions to General Rule — Forcible Marriage — Rape — Assault, &c. — Articles of Peace — Secret Facts 1G9 — 171 Wife acting by the Husband's Authority - - 172 A Woman represented as Wife - - - 173 Sect. IH. The Exclusion of Matters disclosed ni Professional Confidence - . - 173 General Rule - - - - - 173 XII CONTENTS. Page Nature of Privilege - - - 173 What Persons privileged — Counsel or Attorney —Interpre- ter or Agent — Barrister's, or Attorney's Clerk — Person supposed to be, but not in fact an Attorney—Medical Advisers — Friends — Bankers and Stewards— Clergy- men — Clerk to Commissioners - - 173 — 177 What Communications privileged — Where Suit Expected — Communications collateral to the Suit — Suit closed — Attorney changed - - - 177 — 179 Where no Suit Expected— Sale of Estate - - 179 Instructions for fraudulent Deed - - 180, 181 Form of Communication - - - - 181 Production of Deeds — Rule in Prosecutions — Attorney of two Persons, or of Stranger to Suit — Case and Opinion — Inspection by Court - - - 181 — 186 Communications not privileged — Collateral Facts, &c. - 18G Sect. IV. The Exclusion of Matter of Evidence, the disclosure of which would be preju- dicial to Public Interests. Principle of Exclusion - . _ . igg Communications of Spies, of Agents of Police, and Officer of Government - - - 189—192 Official Communications - - - - 192 Member of Parliament — Grand Juryman - - 193 Private Communications to Official Persons - - 195 Non-access . . . _ . 195 CHAP. XII. General Rules relating to the Exclusion of Evi- dence ------ 196 Sect. I. Original and Hearsay Evidence - - 196 Transactions by word or writing — Letters to Testator — False denial of a Bankrupt— Bankrupt's Directions— Re- puted Ownership — Owner — Character — General Opin- ion— Intention of Testator - - - 197—200 Expressions of Mental Feelings - - . 200 Expressions of Bodily Feelings — Relation of previous Symptoms — of period of Conception - - 201 — 203 Statement of cause of Injury— Complaint in Rape - 203—204 Declarations accompanying Possession - - 204 Hearsay, part of res gestae - . - 206 — 216 CONTENTS. xiii Page Sect. IL Of the Exclusion of Hearsay Evidence 217 Policy of the Rule - - - - 217 History of the Rule - - - - 219 Extent of the Rule - - - - 220 Declaration of Attesting Witnesses - - - 221 CHAP. xni. Exceptions to the Rule excluding Hearsay Evidence 222 Sect, I. Relaxation of the Rule in the case of Pedi- gree _ _ _ - - 223 Sect. H. Hearsay Evidence upon Matters of Public or General Interest . - - 250 CHAP. XIV. Hearsay Evidence of Ancient Possession. Ancient Documents evidence of Possession - ' 285 CHAP. XV. Of Dying Declarations - - - - 29 In Civil Cases - - - - - 291 In Criminal Cases .... 294 CHAP. XVI. Declarations and Entries by Deceased Persons - 306 Sect. I. Declarations and Entries against the Inter- est of the Persons making them - 307 Sect. II. Declarations and Entries made in the course of Duty or Employment - 332 Tradesman's Books - . . . 337 CHAP. XVII. Other Exceptions to the Rule which excludes Hear- say Evidence ----- 352 Deceased Witness who has been examined on Oath 353 XIV CONTENTS. CHAP. XVIII. Page Admissions and Confessions - - - 356 Sect, I Admissions. How far whole Admission must be taken together - 357 Admission of a Fact of which there is Written Evidence 364 Admissions during Treaty - - - - 365 Voluntary Admissions . . - - 367 Indirect Admissions .... 368 Implied Admissions ... - 369 Admissions by Demeanour, by Acquiescence, by Posses- sion of Ancient Documents, by Conduct ' 372 — 377 Admission of Law .... 377 Effect of Admissions ... - 378 Admissions under Oath, by Deed, by Writing not under Seal .... 385—391 Admissions of a Party to the Suit ... 393 Admissions of Persons nominally Parties - - 393 Admissions by a Party in Interest, who is not a Party on the Record - - - - - 394 Admissions by a Party in a different capacity - - 398 Admissions by other Party to the Suit - - 398 By a Partner, Party, and not Party to the Suit - - 399 Admissions by Party to Instrument . - - 400 Admissions by Agents .... 401 Implied Autliority to admit ... 406 Admissions by Wife — by Guardians — by Attornies — by Counsel — by Principal of a Surety - 407 — 412 Admissions in Criminal Cases ... 410 Admissions by Privies in Interest, in Blood, in Law, in Es- tate - - - - - 412 Admissions by Persons under whom Parties claim - 413 Sect. II. Confessions . - - . 419 Whole Confession - . - Effect of Confession ... Voluntary Confession ... Confession on Oatli ... What Inducements make a Confession inadmissible Knowledge obtained by inadmissible Confession Acts done in consequence of inducement Confessions not evidence against others Confession in case of Treason 420 423 423 424 425 432 433 433 435 CONTENTS. ' XV CHAP. XIX. Page Exclusion of Secondary Evidence - - 437 Principle of the Rule .... 433 Extent of the Rule . - - - 439 Quantity of Evidence .... 44O Writing the subject of Dispute ... 441 Other Cases — Contracts — Terms of Tenancy — Fact of Tenancy — Collateral Writing — Secondary Written Evi- dence — Matter of Record — Official Memorandum — In- formal Examination — Fact of Marriage - 442 — 448 Writings not excluding Oral Testimony - - 449 Resolutions at a Meeting - - . 450 — 452 Exceptions to the Rule — Records— Entries in Public Books— Written Appointment of Public Officer - 452 Voluminous Facts .... 454 Notices - - - - - 454 Original Evidence not available ... 455 CHAP. XX. On Presumptive Evidence - - . - 456 Sect. I. Presumptions made by Courts and Juries 457 Circumstantial Evidence - - - . 457 Presumptions of Law - - . 459 Particular presumptions — Age — Legitimacy — Marriage — Intention — Malice — Innocence — on publication of Li- bels — Thell from Possession — Contra Spoliatorem 4G1 — 407 Fabrication of Evidence - - _ _ 457 Presumption of continuance of Life - - - 468 Survivorship — Missing Ships — Public Appointment - 4G9 Omnia rite acta - - . . 4G9 From course of public and private Office - - 471 Possession — Boundaries — Incorporeal Rights — Public Way — Faculties— Fences - - . 472 — 474 What may be presumed — Act of Parliament— Surrender of Terms — Writs — Grants from the Crown — Private conveyance — Livery of Seisin— Licences— Bye-law 474 — 47S Presumptions in Treason - - . - 478 Presumption of Payment - - . - 479 Reputed Ownership - - . . 479 Acceptance of Benefit - - . . 480 XVI CONTENTS. Presumptions in Equity and Ecclesiastical Courts Other Transactions to shew knowledge Proof of Customs in other Manors Acts of Ownership, &,c. in other Lands Evidence of Character Presumptions in Criminal Cases Other Acts to shew Intention Subsequent Facts 480 Sect. II. On the Relevancy of Presumptions - 481. - 488 - 483 - 485 - 488 - 492 494—499 - 495 PART THE SECOND OF WRITTEN EVIDENCE. CHAP. I. Of the Admissibility and Effect in Evidence of Judi- cial Writings ----- 505 Sect. I. Of the Admissibility and Effect in evidence of Judgments, and Verdicts in the Supe- rior Courts - - - - 506 Verdict upon the same Matter - _ - 5i2 Verdict between same Parties - _ - 514 Real and Nominal Parties . _ . 515 Verdicts binding on privies in Blood, Law, or Estate - 517 Verdicts in Criminal Cases - - - 520 Sect. II. Admissibility and Effect in evidence of Judgments of Inferior Courts - 525 Sect. III. Proceedings in Foreign Courts - 533 Sect. IV. Of Sentences in the Ecclesiastical Courts 543 Sect. V. Of Judgments of Courts of Admiralty ; Judgments in rem in the Exchequer ; Judgments by Commissioners, Visitors, Trustees, Courts Martial, Arbitrators, Justices, &c. - - - - 550 TABLE THE CASES CITED A. Page Page Aickle's case 669 Abbey v. Lill 648. 901 Alban v. Bitchell 172 Abbott V. Massie 733 V. Pritchett 407 Abbot V. Plumbe 365. 650 Alcock V. Cook 262 . 289. 580 Abigny v. Clifford 8 585 593. 628 Abigney v. Clifton 608 Alchorne v. Gomme 383 Abingdon's case 434 Alderson v. Clay 364. 375 Able V. Potts 598 Aldred V. Halwell 607 Abrahams v. Bunn 117.520, 521 Aldridge v. Haines 555 Abraham v. Newton 568 Alexander v. Brown 390 Absolonv. Beaumont 836 V. Gibson 402. 902 Acceri v. Petroni 688 903, 904 Acebel v. Levy 771 Alford's case 619 Ackerley v. Parkinson 555 Algernon Sydney's case 705, 706 Ackland v. Pearce 455. 671 Alivon V. Furnival 624 627 . 662. 674 Ackroyd and Warburton's case 427 Allan V. Tapp 812 Adams v. Arnold 203 Allen's case 439.615 507 Allen V. Dundas 544 141 657.661 Allesbrook v. Roach AUington v. Bearcroft 697. 700 87 Adam v. Kerr Adams v. Lingard 41 Allison's case 447. 642 873 Allibone v. The Att. Gen. 573 T IM-ill-in 90 Alivon V. Furnival 449. 538 389.479 Allott V. Wilkinson 415 „ 117 11 756 Allport v. Meek 700 Adamthwaite v. S^nge 248. 269 Almon's case 466 615. 624 Alner v. George 384. 388. 394 Addington v. Clode 807 Alsop V. Bowtrell 463. 608 Adey V. Bridges 358 Altham, Lord v. Lord Atkinson 577 Adey's case 17.3. 381 Altham's case 712. 742 Aflalo V. Fourdrinicr 56, 57. 666 Alton V. Farrcn 155 TABLE OF CASES CITED. Page Alvez V. Bunbury 624 Ambrose v. Cleiidon 209 Amey v. Long 780. 786 Amilie Villeneiive, case of 123 Amos V. Hughes 834 Ancient Britons, trustees of v. Spurrier 395 Anderson v. Pilcher 769 : V. Saunderson 172. 408 V. Sir W. Hamilton 193 Anderton v. Magawley 628 Andrews v. Dobson 731 Andrew V. Pledger 623 Anglesea case 274 Angus V Smith 927 Ankerstcin v. Clark 859 Annandalc, Marchioness of v. Harris 387 Annesley V, Lord Anglesea 178.240 244, 245. 458. 467 Ansley v. Birch 800 Anscomb v. Shore 74. 254. 264 Anstey v. Dowsing 144. 151 Anslay v. Donney 159 Antram v. Chase 627 Apothecaries' Co, v. Bentley 465 Apperley v. Gill 474 Appleton V. Braybrook 624. 640 Appleby's case 423 Appottun V. Dunswell 294 Archangelo v. Thompson 604 Archer V. Holligstyle 611 Arding v. Flower 782, 783 Armory v. Delamaire 467 Armstrong v. Hewitt 322. 588. 644 Arnfield v. Bate 855 Arnold v. Bishop of Bath and Wells 602 . V. Revoult 858, 859 Arnott V. Redfern 537, 538 Arundel V. Arundel 574 Ai'undle's Lord, case 322 Arundell v. I^ord Falmouth 261 Arundel v. White 622 Ashby V.Power 414.513.518.588 Ashby V. White 555 Ashford V. Thornton 460 Ashley V. Harrison 207 Ashmore v. Hurdy 365. 386 Ashton V. Songes 105. 125 Ashton V. Poynter 555 Aslinv. Parker 512.516 Aspinal V. Kempson 477 Page Astley's Sir .J., case 480 Atherfold v. Beard 807 Athol V. Ashburnham 241 , Duke of, case 264 Atkins V. Drake 315. 603. 645 V. Hatton 644 V.Humphreys 571 V.Meredith 666 — V. Tredgold 393. 400 Atkinson v. Carter 666 V. Pierrepoint 382 V. Warne 837 Attorney General v. Bowman 488 ■- ^v. Bulpit 886 V. City of Co- ventry 810 V. Davison 568 569 V. Foster 746 V. Good 198 V. Griffith 13 V. Grote 735 — V. King 552 V. Le Marchant GG3. 780 V. Parker and others 740 -V, Parnther 4G8 V. Randall 383 V. Theakestone 592 V. Corporation of Warwick 27.290 Avery v. Dickinson 806 Aveson V. Lord Kinnaird 168.172 202,203.207. 216.292 Ayre's case 170 Ayrey v. Davenport 616 B. Bacon V. Chesney 389. 402. 405. 411 Backhouse v. Middleton 562 Badcock's case 22. 24 Baggaley V. Jones 413 Bagot, Lord v. Williams 508. 509 Bailey v. Bailey 81 Bailiff, &c.. of Tewkesbury v, Brickncli 857 Bain v. Case 598 Baillie's case 175 Baillie v. Hole 80. 156 Baillie V. Wilson 117 TABLE OF CASES CITED. ixxiU Baikie v. Chandless Bain V, Mason Baker v. Davey • V. Dewey ■ V. Morley V. Sweet V. Tyrwhitt Baker's case Bakiev. Chandless Baldney v. Ritchie Baldwin v. Dixon Balls V. Westwood Balutti V. Serani Bambridge's case Bainfield v. Massey Banbury Peerage case 229 248.269. 462 Banks V. Colwell Barber v. Holmes Barclay's, Lord, case Barell v. Russell Barford v. Nelson Baring v. Roy Baring v. Clagett Barker v. Keate V. Macrae V. May V.Ray 308.314 320. 329. 352. Barlow V. Bishop Barnes v. Mawson 254. Barony of Clifford Powis case Barough v. Martin Barry v. Alexander V. Bebbington 312. Barrett's case Barstow's case Barthon v. Loughman Bartleet v. Downes Bartlett v. Pickersgill Barton v. Boddington Barzillay v. Lewis Barlow V. Vowel Barnes v. Wenklar Barne v. Whitmore Barrett v. Wilson Barron v. Grillard V. Humphreys Barrough v. White Barrymore, Lord v. Taylor Page 690 595 758 387, 389 172 628 86. 154 949 686 664 103 381 482 297 489 .231.239 .557.582 416 598 484 838 390 534 533, 534 470 141 408 315.318 335. 467 408 261.286 583 581 895 816,817 326. 330 441 370 435 900 477 63, 521 384 534 145, 146 527, 528 357 526 712. 398 786 392.416 358,359 363 Basker v. Sir W. Dixie Bass V. Clive Bassett V. Dodgin V. I^Iitchell Basten v. Carew Bate V. Hill V. Russell Bateman v. Bailey V. Phillips Bates V. Gratham Bateson v. Hartsink Bath V, Kinsey V. Montague Earl of V. Battersea Page 162 383,384 105 846 555, 556 489 59 209 807.819,820 821 755 186 182.673.667 28. 115 357.571 198 173.381 Batsford v. Alderson Batthews v. Galindo Bauerman v. Radenius 43, 392, 393 394. 403 Bayley v. Lloyd 153 Baylie v. Wylie 629 Baylisv. The Attorney General 750 Bayne v. Stone 444 Baynham v. Guy's Hospital 747 Beale v. Bird Beamon v. Ellice Beard v. Ackernian Beasley v. Magrath Beauchamp v. Parry V. Vassey 817. 824 886 125 409 207 416 Beaumont V. Fell 715. 717. 725,72© 727, 728, 729, 730, 731 Beauvain v. Scott Beaver v. Lane Bebb V. Thomas Beckwith v. Bonner V. Sydebothatn Becquet v. M'Carty Bedell's case Beebee v. Parker Beeching v. Gov/er Bere v. Ward 205. 238. 241. 652. 701 622 859 207 137. 664 901 538, 539 761 271 148. 885 Berryman v. Wise Bell v. Ansley v. Harwood v. Smith Bellamy's case Bembridge v. Osborn Bendshye v, Pearce Bongough v. Walker Benjamin v. Porteus Bonnet's case Bennet v. Clough 453 394 124 84. 395 622 479 442 740 140 666 465 xxxiv TABLE OF CASES CITED. Page Bennett v. Hundred of Hertford 8 Bennet v. Watson 78G Benson v. Bennett 388 V. Marshall 415 V. Olive 414. 513. 518. 577 Bent V. Baker 74,75.100.101.1151 145.263; Bentley v. Cook 161 Bentzing v. Scott 866 i Berkeley case 225, 226. 229. 231 244, 245. 248. 2.38. 206. 269. 272 276, 277. 281. 944 Bermon v. Woodbridge 363 Bernard! V. Mottcau.\ 532.535 Bernasconi v. Farebrother 392. 397 907 Berner'.s Peerage 229 Berry v. Banner 263. 265. 518 and Goodman's case 472 Berryman v. Wise 371 Berth on v. Lough man 899 Bertie v. Beaumont 635. 638. 652 V. Falkland Berwick's case Best V. Barlow Betham v. Bonson Gow . V. Benson 740 435 595. 642 402 Betsworth v. Betsworth Bettison v. Bromley Bevan v. Jones V, Waters q. t. V. Williams Beveridge v. Minter Biddul[)h V. At her Biden v. Loveday Biggs V. Lawrence 405 544 119 859 187 570 168 254. 263. 286 478 402. 758 28 Bilbou and others Bilton V. Corporation of Liverpool 180 Binns V. Tetley 81 Birch V. Depeyster Bird V. Appleton Birkett's case Birt V. Barlow 463.581, V. Kershaw , 89 759 534 54 596 107 699 Bishop Atlerbury's case of Durham v. Beaumont 946 Hereford v. Duke of Bridge water 810 Meath V. Belfied 602 V. Mary of Win- chester 590 Biss V. Mountain 103 Page Black V. Holmes 193 Blacky. Lord Braybrooke 613. 624 Black's case 434 Blackeln v. Crofts 351 Blackett v. Lowes 254, 256 V. Weir 124 Blacket v. Royal Exchange As- surance Company 739. 743. 76& Blackham's case 545. 547 Blackwell v. Bull 733. 745 Blaikeler v. Crofts 326 Blake's case 774 Blake V. Foster 382, 383 V. Pilfield 194 Blakemore v. Glamorganshire Canal Company 519, 520, 521 Blakey v. Porter 818 Bland V. Ansley 95 V. Swaffham 786 Bland ford v. De Tastet 786 Blewett V. Tregonning 944 Bligh V. Wellesley 681 Blogg V. Kent 819 Blount's claim 240 Blower V. Hollis 619,620 Bloxam V. Elsee 364 Biundeli v. Howard 487. 588 Blunt V Blount 236 V. Clarke 471 Blyth V, Barnpton 857 Boardman v. Jackson 358 Bodle's case 578 Boehtlinck v. Schneider 624 V. Inglis 625 Bokenham claim 234 Bold V Rayner 73S. 743 Bolton V. Corporation of Liverpool 410 ■ — V. Gladstone • 534 Bond V. Seawell 470 Bonham's, Dr., case 555 Booth V. Howard 876. 883 — — v. Saunce 400 V. Wilson 474 Bootle V. Blundell 735 Borthwick v. Carruthers 881 Bosanquet v. Anderson 383 Boswell v. Smith 479. Bosworth v. Colcbett 329. 346. 348 349 Botham v. Swingler 150, 151 Boltings v. Firby 529 Bottomley v. Usborne 182 TABLE OF CASES CITED. XXXV Bottomley v. Wilson Boucher v. Lawson Bourne v. Turner Bousfield V. Gregory Bovvden v. Home V. Waithman Page 105 535. 537 78 824, 825 508, 509 631 Bowditch V. Mawley 858 Bowles V. Johnson 785 V. Langworthy 365. 569. 650 V. Neale 838 Bowman's case 622, 623 Bowman v. Maugelman 671 V. Norton 185 V. Rostron 387 ■ V. Taylor 230. 387 Bowsher v. Cally , 215 Boxer V. Kobeth 66 Boydell V. Drummond 751 Boyle V. Boyle 521 Braddick v. Thompson 555. 774 Bradley v. Arthur 593 V. Ricards 902. 904 Bradshaw v. Bennett 656 772 Bradwin v. Harpur 714 Brady's case 622 Brackenbury v. Brackenbury 761 Braine v. Dew 251 Braithwaite v. Coleman 109. 467 -B ram wick v. Lucas 189 Brand v. Ackerman 182 Brandram v. Wharton 400 Brandrcth's case 210 Brangam's case 802 Branwell v. Penneck 556 Braughe v. Cradock 184 Brayne v. Veale 405 Brazenose College v. Bp. of Salisbury 590 Brazier v. Bryant 555 V. Jones 627 Brazier's case 5. 8. 204 Brecon v. Smith 877 Breedon v. Gill 563. 567 Bree v. Beck 3l2. 532. 588 Breton v. Cope 598. 639. 650 Bretton v. Prettiman 405 Brett V. Boales 251. 255. 261. 278 289, 290. 313. 590. 594. 605. 610 161 V. Levett 397 V. Rigden 740 Brewer v. Palmer 442 Brewster v, Sewell 675 Page Briant v. Eicke 866 Brice v. Smith 47a Bridget v. Coyney 556 Bridgman, Sir J. v. Jennings 262 288. 415 Briggs V. Crick 102, 103 Bright V. Walker 473 Brisco V. Lord Egremont 690 Briscoe v. Stevens 527 Bristow V. Eastman 384. 388 V. Wright 853. 855 British Museum, Trustees of V. Furnis Brittain v. Kinnaird Broad v. Pitt V. Vertet 474 556 177 180 Brocas V. Mayor of London 641 Brock V. Kent 405 Brodie v. St. Paul 751 Brogan's case 630 Bromage v. Prosser 464 V. Rice 700 Bromley v. King 208. 397 V. Wallace 489 Bromwich's case 565. 570 Brookbard v. Woodley 701 Brook V. Carpenter 521 V. Willett 857 Brooks V. Blanshard 866 V. Warwick 464 Brooksby v. Watts 382 Broomfield v. Jones 853 Broughton v. Harper 163 — V. Randall 46» Brounker, Lord v. Sir R. Atkins 518. 605 Brower v. Hay, Lord, widow of, 292 Brown V. Brown 51 V. Bullen 553 V. Capel 607 V. Corporation of London 155 V. Crashaw 21 • V. Davis 416 V. Dean 631 V. Fox 51 V. Gracey 627 V. Jacobs 85D V. Knill 858 V. M'Kinally 525 V. Rose , 820. 824 V. Sayce 855 V. Shelley 241 V. Thornton 608. 624 XXXVI TABLE OF CASES CITED. Page Brown V. Woodman 44o.662.63 1.682 Browne v. Gumming 805 Browne v. INI array 843 's case 619.574,575 Browning v. Aylwin 820 Brownsord v. Edwards 521 Bruce V. Hurley 206 Brudenell v. Roberts 382, 383 Brune v. Rawlings 701, 702 Brunton's case 27 Bryan v. Wagstaff 666 V. Winwood 486 Brydges v. Duke of Chandos 754 Buchanan v. Rucker 538, 539 541. 623. 626 Bucher v. Janet 444 Buckland v. Tankard 127 Bucklerd v. Millard 754. 758 Buckley v. Smith 657 Buckworth's case 353 Budd V. Randall 512 Bulkeley v. Butler 622 Bullen V. INIitcheli 253. 262, 312 324. 586. 587. 602. 628. 633 633. 644. 652. 685. 948 Bunbury case 324 Bunting's case 545 Burdett v. Colman 212 Burdon v. Browning 63,520 Burgess v. Cuthill 109. Ill Burghart v. Angerstein 409. 595 Burleigh v. Stibbs 387. 456. 670 ^ V. Stott 400, 401 Burley v. Bethune 464 Burioy's case 427, 423 Burnard v. Nerot 613. 620, 621 Burnett v. Lynch 655 Burnet v. Taylor 657 Burr V. Harper 693. 695. 697, 698 Burrell v. Nicholson 833 Burridge's case 22 Burrough v. Martin 598 Burrows v. Jemimo 541. 627 Burt V. Barlow 447 V. Palmer 405 V. Walker 659 Burton V. Hinde 48. 82. 93 V. Payne 664 V. Plummer 449. 893. 895 897 Busby V. Greenslade 102. 120 Bush V. Railing 41. 131 Busheil v. Barrett 17 Bushwood V. Bond Bust V. Palmer Butcher and Aldworth's case ^ V. Jarrat Butchers' Company v. Jones Butclier's case Butler V. Alnut V. Cook V. Carver V. INIoore Butler's case Byam v. Booth Byerley v. Windus Byne v. Moore Page 857 400 612 663 150 432 471 87 149. 885. 937 177 669. 831 561. 62a 474 860 497 458 365. 650 569 795. 801 V. Bovil V. Flower Cambridge Tolls, case of Camden v. Anderson Cameron v. Lightfoot Campbell v. Noconlow V. Richards ■ V. Twemlow Cannel v. Curtis Came v. Needle V. Nicoll Caddy v. Barlow Cadogan v. Cadogan Call V. Dunning Callaghan's case Calliard v. Vaughan Calvert v. Archbishop of Can- terbury _ 326. .334. 337 534, 535 668 261. 289 597 386. 630 175 899, 900 173 453 319 205 Carlile v. Eady 151 Carlisle v. Trears 855 Carpenters' Company v. Hay- ward 2. 263 Carpenter v. Thornton 55S Careless v. Careless 712 Carrington v. Brown 198 Carey v. Pitt 693, 694. 696 479 383 655, 656 732 618, 519 357 263 154 899 836 482 V. Gerrish Carrick v. Vicary Carr v, Burdis v. Carr V. Heaton Carr's case Cart V. Hodgkin Carter v. Abbot ■ — V. Boehm V. Jones V. Pryhe TABLE OF CASES CITED. Page Carter v. Sherwood 416 Cartridge v. Griffiths 858 Cartwright'v. Williams 1.'32 Cary v. Adkins 172 Casburn v. Reid 613. 630 Case of Dameree 212 Castlcton V. Turner ' 750 Cates V. Hardacre 913 q. t. V. Winter 663. 665. 780 Catlin V. Bell 758 Cato V. Howard 898 Cato Street Conspiracy 39 Cator V. Stokes 631 Catt V. Howard 359. 400 Catteris v. Cowper 472 Cavan v. Stewart 532. 539, 623 Caxton's Burial Cazenove v. Vaughan 240. 601 568. 574, 575, 629 Celier's Case 18 Chadwick v. Bunning 646 Clialenor v. Bowyer 740 Chambers v. Bernasconi 294 314. 316, 319. 326. 328. 333 335. 339. 343, 344. 376. 572 V. Chambers 458 Chamier v. Cling 516 Champion v. Atkinson 141. 484 Champneys v. Peck 336. 338. 341 Chancellor v. The University of Oxford, case of Chancy's case Chandos Peerage Chapman v. Beard V. Cowlan 229 464 17 233. 236 238. 641 370, 470 251. 262 284. 604 - V. Gardner - V. Graves - V. Poynton - V. Smith 250. 252. 314 V. Walton Charlesworth's case Carlton v. Barrett Charnock's case Charrington v. Milner Chaters v. Bell Chatlield v. Fryer Chaurand V. Angerstein Chcetham v. Hampson Chesmer v. iVoyes Chctwind V. INlarnell Cheyne v. Koops 900. 34 785 538 899 19 497 26. 31 126 383 258, 2.59 739. 901 474 607, 608 818 85. 153 Page Child v. Chamberlain 59 V. Grace .375 Chippindale v. Thurston 400 Cholmondeley v. Clinton 477, 563 Chorley v. Bolcott 381 Christian v. Coombe 339. 607, 925. Christie v. Greggs 481 V, Secretan 533, 534 Chubb V. Westley 497 Churchill v. Evans 474 v. Wilkins 855 City of London v. Clark 25 1 . 263, 264 Clargcs V. Sherwin 264 Clarincard's Lord, case 594 Clark V. Bedford 341 V. Clark 178, 371, 379 V. Lucas 93 Clarke V. Gannon 118 V, Gray 856 V, Hougham 401 V. SafFrey 899 Clarkson v. Hanway 763 v. Woodhouse 262, 263 285, 236, 287, 288. 290 Clay V. Langslow 397 Clayton v. Gregson 738. 743 Cleeve v. Powell 184, 514, 523 Clegg V. Levy 624. 626 Cleghorn v. Desanges 631 Clerk V. Bedford 343 Clermont v. TuUidge 697 Clewe's case 435 Clifford v. Burton 172. 408 V, Hunter 909 Clifton v. Walmsley 747. 754 Clinan v. Cooke 764 Clinton Peerage case 237 Clive V. Gwyn 615 Clothier v. Chapman 256 Clunnes v. Pezzy 467 Clutterbuck V. Lord Huntingtovver48 Clymer v. Littler 293. 299 Coates V, Bainbridge 402. 404, 405 v. Stevens 882, 883 Cobden v. Henrick 178, 179 Cochran v, Iletzberg 759 Cockman v. Mather 605 Cocks V, Nash 816, 821 Cocksedge v. Fanshaw 950 Cockshot V. Bennet 394 Coe v, Westernam 543 Coghlan V. Vvilliamson 657 Cohen v, llannam 855 XXXVI n TABLE OF CASES CITED. Cohen v, Hinkley V. Templar Page 469 186 353 Coker v. Farewell Colchester, Mayor, Etc. of, case of 155 Coles V. Trecothick 751 Colledge V. Home 410 Collenridge v. Farquarson 207 Collett V. Lord Keith 358, 359. 367 Collier V. Hicks 465 Colling V. Treweek 455, 456. 668 670, 671 Collins V. Blantern 758 V. Carnagie 872 V. Godefroy 785 V. Gresley 289. 602 Ex. V. Wright 366 Colonel Gordon, case of 664 Colsel V. Budd 479 Colvel V. H. M. Procurator Gen. 469 Colvin V. Eraser 161. 480 Commins v. The Mayor of Oakhamp- ton 91 Compagnon v. Martin 848 Compton V. Chandless 632 Comp. of Mersey and Irwell Nav. V. Douglas 864 Conway v. Beazeley 536 Coogan's case 524 Cook V. Green 473 V. Lo.xley 382 V. Nethercote 886 V. Rogers 208 V. Tanswell 682. 825 Cook's case 919 Cooke V. Banks 258, 259. 327. 335 600 V. Booth 747 V. Hearn 181.673 V. Lloyd 225 V. Maxwell 20. 193. 405. 622 V. Sholl 552 Cooks V. Hellier 471 Coombs V. Coether 251. 261. 639 V. Pitt 371. 384 V. Wheeler 602 Cooper V. Amos 879 V. Gibbons 467. 663. 667 V. Marsden 339. 351 V. Meyer 388 V. Smith 363 V. Turner 479 V. Wakley 838 Page 873 405 594 463.595 563 186 619 629 151 181 159 382 489 180, 80. Cooper V. Whitehouse Coore V. Callaway Cope V. Bedford Cope V. Cope 171. 195. 246, Copeland v. Stanton Copeland v. Watts Coppard's case Corbett V. Corbett Corking v. Jarrard Cormack v. Heathcote Cornish v. Pugh V. Searall Cornwall v. Richardson Corporation of Barnstaple v. La- they 811, 812 London v. Long 395 Sutton Coldfield v. Wilson 48 Corsen v. Duboits 186 Cory V. Bretton 366 Cosham v. Goldnay 124 Cossens v. Cossens 387 Cost V. Birbeck 263 Coster V. Reed 440 Cotes V. Davis 408 CotteriU V. Cuff 857 V. Hotby 443 Cottington's case 536 Cotton V. James 197. 604. 837. 839 Counden v. Clark 712. 742 Countess of Rutland's case 754 Courteen v. Touse Cousins V. Brown v. Padden 405. Cowling V. Ely Cowper V. Covvper Cox V. Allingham V. Coleridge V. Copping Cozer V. Pilling Cragg V. Norfolk Craib v. D'Aeth Craig V. Cundell Cranburn's case Cray v. Halls Craythorne v. Swinburne Crease v. Barret 242. 251 267. 271. 308. 319, 320, Creevey v. Bowman v. Carr 891 860 880 408 467 646 809 464 387 392 113 923 358. 362 762 259. 353 Crepps v. Durden Crerar v. Sodo Cresby, Sir P., case of Crew, q. t. V. Blackburn 261 413 113 909 55Q 844 28 807 TABLE OF CASES CITED. XXXlX Crew q. t. v. Saunders Crisp V. Anderson Crisj)in v. Williamson Crilclilow V. Parry Croft V. Pawlet Crotton V. Poole Croke V. Dowling Crooke v. Edwards Crosby v. Percy 's case Cross V. Fox V. Kaye V. Salter Crossfield, Trial of Crouch V. Drury Crowley v. Page Crowther v. Hopwood Cuddington v. Wilkins Cuilen V. Morris Cundell v. Pratt Cunliffe V. Sefton Currey v. Walter Currie v. Child Curtis V. Perry V. Wheeler Curzon V. Lemon V. Lomax Cuthel's case Cutler V. Newling Cuts V. Pickering Cutter V. Powel D. Da Costa v. Jones V. Pym V. Villa Real Dacres v. Morgan Dagleish v. Dodd Dale V. Johnson Dalgleish v. Hodgson Dalisen v. Stark Dalrymple v. Dalrymple Dalston V. Coulsworth Ddlzel V. INIair Damaree's case Dance v. Robson Daniell V. Phillipps V. Pitt Daniels v. Potter Dartmouth, Countess of v. erts 357. 3G0. 386. Dartnell v. Howard 2 Page 800. 811 467. 883 857. 860 383 470 37] 613.620.630 90 659 Ql OO OQ -~^> ^^, *J 88 370 545 419,436 351 442. 927 18 21 555 922 365.660,661 175 57.59.657 761 839 272 261 466 411 178 768 251 195 697 544 284 358 161 535 444. 450 625 467 384.388 213 613. 632 556 405 215.399 Rob- 414. 476 621 Davenport v Davies Davies v. Brown ■ V. Davies V. Edwards V. Lewis V. Loundes V. Pearce316. 325. Davis and Carter's case V. Capper v. Dale V. Dinwoody V. Humphreys V. Morgan 48.92 252. V. Nest V. Reynolds V. Ridge V. Williams Dawson V. Macdonald Day V. Bower V. Davies V. Trigg V. W^illiams 713. Deacle v. Hancock Deacon's case Deade v. Hancock Deady v. Harrison Dean and Chapter of Ely v. decoft art I' en De Berenger's case 192. De Bertram v. Smith De Gaminde v. Pigou Delatield v. Freeman De la Motte, case of 669. Delany v. Tenison De Lisle Peerage case 232, Demise of Radford Denn v. Fulford v. Page v. Spray 250.261. V. White Dennison v. Elsley Derby's, Lord, case Derosne v. Fairlie De Rutzen v. Farr De Sailly v. Morgan De Symonds v. De la Cour Page 877 805 119 878 254. 256 557 413.415 19 556 908 159.394 810 248. 251 269. 330 521 444 393 647 824 877 879 723. 730 477 314 493 284 417 Cal- 313.376 Stew- 652 War- 484 456.914 381 388 90. 623 692.699 709. 923 467 238,239 583 713 613 721 270. 604 407.516 288 523 121 330 925 100. 121 ?I TABLE OF CASES CITED. Page Dcspard'scase 26.33.39 Devenage V. -Bouverie 819 Devon, Earldom of 233 Devonshire, Duke of v. Lodge 757 De Whelpdale v. Milburn 386. 519 Devvhersl's case 447. 56G Dicas v. Lawson 786 Dickenson v. Coward 369. 371. 381 V. Shee 911 V. Valpy 381 Dicken V. Lodge 3l6 Dickinson v. Prentice 125 Dickson v. Evans 829. 465 Digby V. Sieadraan 338. 351 V. Steel 364 Dike V. Polhill 230. 547 Dillon v. Harris 752 V. Parker 948 Dingler's case 297 D'Israeli v. Towel 698 Ditcham v. Bond 478 Ditchburn v. Goldsmith 195 Ditcher v. Kendrick 185 Dixon's case 464 Dixon V. Atkins 681 V. Cooper 140 V. Dixon 468 V. Haigh 662 V. Hammond 384 V. Purse 87 Dobson V. Waterman Doddington v. Hudson Doddington's case Dodd's case Doe V. Benson V. Bingham 7 V. Bluck V. Bowerman v. Sybourn 714 120 714 466 Dodd V. Norris 438, 489. 914 Doe d. Aldane and Ll^rry v. Har- vey 672 V. Allen 374 d. Ash V. Calvert 547 • d. Ashforth v. Bower 714. 744 V. Askew 604 d. Baggaley v. Jones 317 d. Baker v. Wombwell 373 d. Bank of England v. Chambers 652 d. Banning v. Griffin 243 V. Barnard 645 V. Barnes 246 d. Barrett V. Kemp 486 . d. Bath V. Clarke 121 d. Beach v. The Earl of Jersey 732 d. Beard v. Parell 660 Page 755 3.444 615 391 557 595 373 382 717 374 646 Bray Briggs Bristow V. Pegge Brown V. Greening Cadwallader Calvert Chandler v. Ford 758. 760 Chevalier V. Huthwaite 714 Clarges v. Foster 373 Clarke 472 Cockell 13a Cole 681 Cooke 475 Corbett V. Corbett 839 Courtail V. Thomas 186 Coyle v. Cole 413. 455 Curtis V. Spitty 665 Deakin Digby v. Steel Dodsbury v. Thomas Dring Durnford Dyeball East London Water Works Company Errington Evans 367. Eyre v. Lambley P'enwick v. Reed Fleming Ford Forster Foster v. Earl of Derby 354 519.571 V. Sisson 250. 271.483 242 386 256 735 455 472 405 873 577.658 384 476 463 761 373 Futler V. Randall 228. 239 243. 248 George v. Jesson 468 Gore v. Langton 714. 732 740 Gray 666 Green 54.61.317 Griffin 468 Griffin V. Mason 490 Guillim v. Guillim 740 H addon 554 Hales 374 Hall 63^ TABLE OF CASES CITED. xU Page Doe d. Hall v. Benson 751 d. Hammond v. Cook 477 d. Handson v. Fyldes 735 d. Hanson v. Smith 640 V. Harcourt 589 V. Hardy 753 V. Harris 180 V. Harvey 443. 512. 516 d. Hawthorn v. Mee 640 d. Hayter v. Joinville 734 V. Henning 656 d. Hendson v. Kersey 144 d. Higgs V. Cockell 667 V. Hilder 477 d. Hindson v. Kersey 151 V. Hodgson 370 V. Hollom 732 V. Huddart 512.516.840 d. Human v. Pettett 412 V. Hurt 476 d. Jackson v. Ramsbottom 383 d. Jan»es v. Brawn 453 V. Johnson 472. 658 d. Johnson v, Pembroke 229 230 V. Jones 325. 412 d. Jupp V. Andrews 186 d. Knight V. IVepean 468 V. Laken 262. 283 d. Leicester v. Biggs 373 d. Lewees v. Preece V, Lewis V. Lloyd d. Lloyd V. Deakin V. Passinffham Lord George Thynne JNIaddock v. Lyne IVIaisey Manton v. Austin V. Thrupp 516 470 595 468 353 331 701 92 382 413 d. Marriott v. Edwards 383.87 1 V. Martin 665. 740 V. Mason 27 1 . 474. 647 V. Miles 364 d. Morgan v. Morgan 742. 742 743 d. Morris V. Roe 819.821 • V. Rosser 406.512 ooo V. INIorris 673 V. Needs 741 d. Ncpean v. Budden 382 V. Newton 699. 700. 701. 703 Page Doe d. Northey v. Harvey 243 V. Ormcrord 646 d. Oldham v. Wolley 463.651 652 V. Oxendon 717.724.727 d. Pattershall v. Turford 335 336.339.341.471 V. Payne 205 d. Pearson v. Ries 690 V. Perkins 449. 893. 895, 896 d. Perry v. Newton 700 d. Peter v. Watkins 180. 184 185 d. Peters v. Hopkinson 755 V. Pettett 205.316. 325.413 d. Phillips V. Morris 662 V. Pike 472 V. Plowman 477 d. Poole V. Errington 875 d. Powel V. Hill 326 V. Preece 78 ■ d. Preedy v. Hottom 744 d. Priestly v. Callaway 640 d. Pring v. Pearsay 473 d. Pritchard v. Dodd 230. 336 V. Rutland 477 V. Pye 374 V. Randall 243 d. Reed v. Harris 200 V. Reed 476 V. Richarly 205 V. Rickerby 413 V. Ridgway 218. 294 V. Roberts 761. 763 d. Roberts v. Roberts 760 V. Robson 313. 325. 329. 332 V. Scott 476 V, Seaton 288 d. Sewell V. Parrott 740 d. Shellard v. Harris 181. 180 d. Smith V. Cartwright 315.601 and others v. Gal- loway 714, 715 V. Smart 841 Smythe 382 Spicer V. Lea 754 Spicer 755 Spilsbury v. Burdett 651.653 Stacey " 332 Stansbury v. Arkwright 601 Staple 476 Slroder v. Seaton 184. 41.5 517. 601 xlii TABLE OF CASES CITED. Page Doe V. Suckermore 693. 695, 696 697, 698, 699, 700, 701, 702, 703 704. 706 d. Sutton V. Ridgeway 242. 246 292 d. Sweetland v. Webber 205 417 V. Sybourn 476 d. Sykes v. Durnford 649 V. Tarver 701,702 V. Teague 92. 120 d. Temjdemanv. Martin 731 736 V.Thomas 185.476.712 d. Tilman v. Tarver 283 d. Tollett V. Salter 863 V. Tooth 48.396 V. Turtbrd 307. 334. 338. 340 345 V. Tyler 74. 77. 91, 92. 312. 322 519 d. Tyrrell v. Lyfford 748 V. Vowles 308. 314. 333 V. Wainwright 656. 681 d. Walker v. Stephenson 946 V. Wallinger 693 d. Warren v. Bray 447. 840 d. Watney v. Grey 672, 673 .. V. Watson 364. 383. 734 V.Webber 319.519 . d. Weld V. Ormerod 250 d. Westlake v. Westlake 712 d. Wetherall v. Bord 410 v. Whitcomb 516 v. Wilde 78 . d. Wilkins v. Lord Cleve- land 376. 478. 654 .-s d. W^ilkins v. Wilkins 656 V. Williams 78. 205. 316. 325 V. Wilson 478 d. WoUaston v. Barnes 594.840 d. Wood v. Morris 443, 444 , V. Wright 497 Doker v. Hasler 168 Donaldson v. Thompson 535 Doncaster v. Day 632. 568 Donellan, defence of 459 Donington's case 426 Donnison v. Elsley 252, 253. 256 262 Door V. Geary 7 14 Dormer v. Fortescue 55. 61 Dorset, Lord v. Carter 396 Page Douglas V. Forrest 539 Peerage case 274. 458. 467 669 V. Scougal 461 Dover V. Mcstacr 442.441 Dowden v. Fowle 380. 394. 396 Dowdeswell v. iSott 48. 82 Downc'scase 857 Downes v. Moreman 639 V. Skrymsher 612 Dowsett V. Sweet 712. 727. 7.34 Dowton V. Cross 397 Drake v. Marryat 402. 607 V. Smith 322. 588. 603. 644 V. Sykes 396.407.631 Draycott v. Draycott 595 Drayton v. Dale 383 Drew V. Durnborough 481 Drewry v. Twiss 864 Drinkwater v. Porter 265 Druce v. Davison 714 Drummond's case 282.295,296 Du Barre v. Livetti 175, 176, 177 Du Bo.st V. Berestord 200 Ducket V. Williams 568 Dutbeld V. Oriel 589 V. Orrel 314 Duffin V. Smith 180. 187 Duins V. Donovan ''')95 Duke v. Alridge 334.395 V. Povvnall 153 Duncan v. Hill 876 V. Scott 333. 631, 632 Dundas v. Lord Weymouth 858 Dunn's case 497 Dunn V, Murray 508, 509. 555 V. Slee 411 V. White 172 Dupay V. Shepherd 592 Durrell v. Bederley 899 Durstan v. Tuthan 855 Dutton V. Colt 10. 574 Dyer v. Bowley 383 Dyke v. Aldridge 396 Dyson V. Wood 623 E. Eagleton V. Coventry 691.697, V. Kinuston Eardley v. Turnock Earl V. Baxter Earl V. Lewis 699 693 858 475 600. 603. 635 TABLE OF CASES CITED. xliii Earlc V. Picken East V. Chapman Easton V. Pritchett Eaton V. Lyon Eccles V. Hill Eccleston v. Petty V. Spoke Page 364. 39.3 913 834 747 61.5 230,231.408 23 Eden, Sir John v. Earl of Bute 736 Edgar V. Blake 444 Edge V. Salisbury 734 Edie V. East Jndia Company 739 Edmonds v. Lowe 105. 127. 141 V. Rowe V. Walter Edmonstone v. Plaisted Edmunds v. Groves Edmunstone v. Webb Edward's case Edwards v. Crook V. Lucas V. Rees V. Ronald V. Vesey Egerton's case Egg V. Barnet Egglestone v. Speke Eike V. Nokes 11 891 631 831 456 431 201 859 312 542 806 493. 496 479 408 187. 390 Ekins V. Dormer Elden V. Keddell Eldridge v. Knott Eliza Ann, case of Elliot V. Elliot Ellis's case Ellis V. Hardy V. Soltan • V. Watson 314 647 475 592 480 493 200 175 385. 400. 597, 593 771 Elmore v. Kingscote Elsam V. Faucett 201. 489 Elton V. Larkins 410. 938 Elwes V. Elwes 458 Ely, Bishop of V. Bentley 554 V. Stewart 640 Embden's case 621 Emerson v. Blonden 172. 407 V. Boswell 480 Emmett v. Butler 57. 59 England, Bank of v. Anderson 746 England d. Syburn v. Slade 333 Entiisv. Donnisthorne .3.54 Entick V. Carrington 662 Ernest v. Brown 831, 882, 883, 884 Erskiiie v. Ruffle 433 Es.scx, Earl of, Trial of 434 Evans V. Bcattie 402. V. Bicknel V. Birch V. Butt V. Evans V. Getting V. Lake 335. V. Morgan V. Phillips V. Sweet . V. Tripp V. Williams ■ V. Yeatherd Sir S. case Everth V. Hannam Everett v. Lowdham Ewens V. Gold Ewer V. Ambrose 360. 620 V. Preston Exon V. Russell Exparte Aitkin Burl Campbell Church Coles Holyland Hooper James Learmouth Lyne Malkin Osborne Partridge Roscoe Taylor Tillotson Yeatman Youna Eyre v. Palgrave F. Fabrigas v. Mostyn Fachina v. Sabine Fairfax's case Fairlie v. Denton V. Hastings 197. 402, Fairmainer v. Budd Faith V. Mclntyre 111,112. 8.35. v. Pearson Falconer v. Hanson 358.561. Falmouth, Lord v. George Fancourt v. Bull Page 405. 411 476 479 486 457, 453 606 338. 397 247. 447 803 664 714 123 85 345 634 884 87,88 . 902. 907 925 397 855 180 87 569 607 569 468 754 159 632 783 90 90 824 785 596 783 180 56 639 405 10 750 374 403 389 844 532 578 263 126 xliv TABLE OF CASES CITED. Page Farquano v. Knight 175 Fan ant's case 566 Fanington's case 464 Fassett V. Brown 660 Faulder v. Silk and another, ex- ecutors of". Jervoice 534 Fawcett V. Fowlis 556 Fearsliire's case 506 Feaubert v. Turst 627 Fellows V. Williamson 206 Fenn v. Granger 158. 396 V. Harrison 405 d. Thomas v. Griffith 442, 443 Fenner v. Duplock 388 Fenton'scase 631 Fentum v. Fococke 757 Fenwick V. Reed 175 V. Thornton 398 Sir J., case of 171.194 Fermor v. Lordino 588 V. Phillips 631 Ferras v. Arden 609 Ferrar v. Oven 627 Ferrers v. Shirley 391. 557. 706 Field V. Beaumont 780 V. Curtis 88 V. Mitchell 97 Fielder v. Ray 443 Filliter v. Minchin 695 Filmer v. Gott 758 Finch V. Messing 312. 324 Finden v. Westlake 198. 377 Fisher v. Boucher 199 V. Graves 286 V. Hemming 182 V. Lane 527. 622 V. Ogle 534, 535 V. Wainwright 879, 880 Fitzgerald v. Elsee 660 V. Eustace 387 V. Fauconberg 470 Fitzjames v. Moys 8 Fladowen, case of 535 Fleming v. Fleming 247 V. Gooding 382 V. Simpson 264 Fleming's case 567 Fletcher v. Braddyll 604. 648 V. Froggat 353. 363 V. Greenwell 49 Fletcher's case 435 Flindt V. Atkins 623 Flower v. Herbert 88. 379 Flower V. Young Folkard v. Hemet Folkes V. Chad FoUiott V. Ogdea Fonnereau v. Poyntz Fonsick V. Agar Foote V. Hayne Forbes v. Hale Ford V. Grey Forester v. Pigou Fort V. Clarke Forty V. Imber Foster v. Blakelock V. Compton V. Jolly V. Steel Page 597 807 901 536 735 578 175.405 651,652 587. 574 84. 146, 147 230. 387,388 848 389 618 756, 757 461 435. 447 Foster's case Fotheringham v. Greenwood 91. 122 123 Foulkes V. Gellway Fountain v. Young Fowler V. Coster Fox V. Clifton V. Jones V. Lushinston 199 175 833. 838 381 805.815 101 665 631 France v. Lucy Frances v, Neave Francia's case 435. 437. 669.692. 709 Frankhmd v. M'Gusty 539 Franklin's case 691 P'rankum v. Earl of Falmouth 873 Fraser v. Marsh Free v. Hawkins Freeman v. Arkell V. Baker V. Phillips 153 756 676 598 261. 264.269 276. 279, 280. 284 Freeman's case 378 Fremoult v. Dedire 627 French v. Backhouse 107 Friedlander v. The London As- surance Company 902, 903 Friend, Sir J., case of 783. 914. 944 Frith v. Gray 864 Frogmorton v. Scott 383 Frogwell v. Lewelyn 366 Frontine v. Frost 830 Froswell V. Welsh 471 Fry v. Wood 651,652 Fuller V. Cotch 5oG V. Fetch 653. 639 V. Lane 474 V. Prentice 785 TABLE OF CASES CITED. xlv Page Fulwood's case 169 Furley dem. Mayor of Canterbu- ry V. Wood 754 V. Nevvnham 784.795 Furneaiix v. Hutchings 483. 485 Furness v. Cope 351 Fyson V. Kemp 615 G. Gabay v, Lloyd Gahan v. Mainjay Gainsford v. Grammar 178. 188. Galbraith v. Neville 526. 537. Gale V. Halfknight V. Lindo V. Packington Galen, case of the Ganer v. Lady Lanesbor ' 627. Garden v. Creswell Gardiner v. Crasdale Peerage case 202, 203. 239. 341. 462. 463. 582. 642, V. Tadis Garland v. Scoones Garnem v. Barnard Garnet v. Ball Garnet's case Garnett v. Ferraud Garnons v. Bernard V. Swift 405, 691, Garrels v. Alexander Garrett v. Lister Garrick v. Williams Garth V. Howard Gartside v. Ratcliffe Gas Company v. Clark Gaunt V. Wainman Geery v. Hopkins Genden v. Robson George v. Surrey V. Thompson Gervis v. Grand Western Ca 614. 401. 403. 514. 739 526 405 409 540 203 760 313 123 624 786 847 231 643 488 618 316 406 420 555 258 683 692 647 686 405 467 814 759 806 381 692 665 nal Company Gcvers V. Mainwaring Geyer v. Aguillar Gibbons v. Phillips Gibbon V. Featherstonehaugh Gibson V. Coggon 364, V. Hunter 949, V. INLiccarty V. \\ inter Gigner v. Bayly 387 97. 741 551 63! 479 396 950 522 .394 814 Page Gilchrist's case 524 Giles V. Smith 120, 681 Gilham's case 177. 426 Gill V. Shelley 744 Gillicr V. Smithier 682 Gillingham v. Laing 198 Gimbert v. Coyney 55& Gladstone v. Neale 857 Glanville v. Payne 470 Glazier v. Glazier 480 Glendow v. Atkin 244. 329. 332, 333 346. 349 Glossop V. Poole 584, 585 Glynn v. Bank of England 290 325. 338. 344, 345, 346. 348. 350 V. Thorp 506 Goater v. Nunnely 819 Goblet V. Beachey 730, 731, 739 740 714 511, 512. 763 61& 59a 657 509 380 409 806 95 22. 824 85. 154 848 150 740 733 87 Godbolt's case Goddard's case Godefroy v. Tay Godfrey v. Macanley V. Norris Godson V. Smith Goldie V. Gunston V. Shuttleworth Golding V. Fenn V. Nias Goldschmidt v. Marryat Goodacre v. Bream Goodes V. Wheatley Goodhay v. Hendry Goodinge v. Goodinge Goodman v. Edwards Goodmanchester, Bailiffs of, V. Phillips 473 Goodright d. Farr v. Hicks 488 V. Moss 169. 195. 225. 229 233. 241. 272. 231 V. Saul 237. 463 Goodtitle V. Baldwin 478 V. B rah am 901 d. Bremridge v. Walter 803 V. Duke of Chandos 326 d. Pinsent v. Lammiman 863 d. Rivett V. Braham 696. 841 V. Southern 713. 723. 730 V. Wilford 117, 119. 144 782 855 858 654 Goodwin V. West Gordon v. Austin V. Gordon V. Secrctan xlvi TABLE OF CASES CITED. Page Gordon's case 500. 784. 851 Gorham v. Thompson 593 Gorton V. Dyson 646. 669 Gosling V. liirine 384 Goss V. Lord Nugent 771. 775 776, 777 V. Tracey 119. 657 V. Watlington 311. 314. 411 412. 600 Gough V. Cecil 661 Gould V. Barnes 381 V. Jones 701 Governor of Chelsea Water Works V. Cowper 652 Gracewood v. 819 Grafton, Duchess of, v. Holt 947 Graham v. Dyster 668 V. Hope 593 . V. JMaxwell 532 V. Peat 472 V. Furlong 90. 119 Sir R., Trial of 802 Grant v. Gould 555 V. Jackson 386. 399 Graul V. Jackson 400 Gravenor v. Woodhouse 382 Graves v Key 379. 389 Gray v. Bond V. Cookson 556 v. Palmer 401 Gray's case 867 Greathead v. Bromley 525 Greaves v. Ashlin 770 v. Hunter 697 Green v. Brown 469 V. Clark 878 V. Dunn 358, 363 V. Gatuik 553 V. Greenbank 856 V. Hewit 584 V. Jones 90 V. Proude 587. 628 V. Rennet 859 V. Ronde 617 V. The New River Company 96. 99, 100. 507 Greenhough v. Gaskell 180 Greenway v. Hindley 364 Gregory v. Doidge 382 V. Howard 366, 367 V. Parker 172 508 V. Tavernor 939 Greg's case 435 Grigg's case Page Grellier v. Neale 660 Grcnville v. Barwell 555 Grey v. Smith 360 Griffin, Sir John, claim of 232 Griffith V. Davies 188 Griffith V. Matthews 474 v. Williams 409. 699, 700 161. 170 Grimes v. Smith 470 Grimwood v. Barrit 860 Groenvelt v. Burwell 803. 806. 815 Groom v. Thomas 468 Groome v. Forrester 5.56 Grose v. West 472, 473 Grove V. Rutten 199 Groves V. Western Canal Company 380 Guest v. Caumont 864 V. Elwes 874 Guiness v. Carroll 526. 537. 542 Guiseppe Sacchi, case of 940 Gully V. The Bishop of Exeter 96 386. 417. 675 Gunnis v. Erhart 772 Gunston V. Downes 28. 115 Gurney v. Langlands 696 Gutch's case 466 Guthrie v. Crossley 208 Guy V. West 473 Gwilliam v. Hardy 612 Gwillim V. Gwillim 710 Gwinnett v. Phillips 853. 860 Gyfford v. Woodgate 631 Gyles V. Hill 615 H. Habershaw v. Treby Haddovv V. Parry Hadley v. Green Hagedorn v. Reed 336. Hailey's case Haire v. Wilson Halden v. Glasscock Hall V. Cazenove V. Curzon V. Hall V. Hoddesdon V. Rex V. Stone V Wilcox Hall's case Halliday v. Ward Hallelt V. Mears 175 316 509 338.471.682 621 464 627 763 124 172 563 85 508 757 435 401 785 427, TABLE OF CASES CITED. xlvii Page Hamer v. Raymond Hamilton v. Dutch East India Company 532 Hammerton v. Hammerton 458 Hammond v. Howell V. Stewart Hamond v. 555 782 575 714. 718 576 473 870, 871 Hampshire v. Pierce Hamsoa's case Hamson v. Parker Hanbury v. Ella Hancock v. Welsh 395. 512. 514. 516 Handlbrd v. Palmer 857 Hands V. James 470 Hankey v. Wilson 383 Hanson's case 500 Hanson y. Parker 394 Hanter v. Rice 406 Hardcastle v. Sclater 628 Harding v. Carter 405 V. Cobley 109 V. Crethern 390 V. Greening 466 V. Jones 367 Hardwicke v. Blanchard 104 Hardy's case 189. 211. 212. 214. 434 479. 502. 503. 892. 914. 922 Hardy v. Lee Hare v. JVIunn Hargest v. Fothergill Hariey's case Harman v. Davis ■ V. Fisher V. Lasbrey . V. Tappenden • V. Thompson V. Vanhattan Harper v. Brooke . V. Charlesworth Harratt v. Wise Harrington v. Caswell V. Fry Harris v. Aldrit V. Cooke V. Hill V. Mantle V. Ti|)pctt V. White 85. 895 833 665 590 380 203 105 555 835 365 312 474 593 109 694 821 863 186 847 910. 922 21 56 G Harris's case Harrison v. Blades 314,315.35 J . 658 ■ V. Gould 837 V. Vallana 395 V. and Wife v. Moore 365 3 Harrison v. Williams V. Wood Harrison's case 419. 565, Harrop v. Bradshaw Harrow v. Rislip Harscot's case Hart V. Horn V. M'Namara V. Newman Hartley v. Cook Harvey v. Clayton V. Grabham V. Key V. Morjran 771 Harvey's case Harwood v. Goodright V. Keys V. Sims 250. 253. Hary's case Hasker's, Dr. case Haslam's case Hatch V. Blisset Hatfitdd V. Hatfield v. Thorp Hathaway v. Barron Hathaway 's case Havelock v. Cook V. Rockwood Hav/es V. Watson Hawkes v. Salter Hawkins v. Finlayson V. Howard V. Inwood V. Hare 63. Haynes v. Hare V. Holliday Hayslep v. Gymer Haywood v. Firmin Hazard y. Treadwell Head V. Head Headlam v. Hedley Heamc's case Hearn v. Rogers Heath y. Hall Hebden v. Freeman Ilelliard v. Jennings Helyar v. Hawke Fleming v. English Hemming v. Parry Hemrnings v. Jlobinson Henderson v. Wild Hendy's case 216. 380. Page 811 878 570. 923 944 618 529 257 95. 395 552 385 600 176 776, 777 364 665 545 467 396, 397 283, 284 439 465 29 783 545 159 520. 522 200 371 535 384 472 97 186 80 444 754 738 373, 374 272 402. 405 107. 463 472 435 589 119 602 92 402. 403 155 871 383 400 912 385. 90. xlviii TABLE OF CASES CITED. Henry v. Adcy V. Leigh Henley v. Soper Heninun v. Dickinson Hennel v., l^yon Hcnshaw v. Pieasance Hensey 's case Herbert v. Ashburner V. Cooke V. Reid V. Tucknal ■ V. Walters V. Wilcocks Page 623 698. 663 542. 556 165 620, 62 1 553 709 806 527, 537 740 oOq 229 951 208 Heme v. Rogers 378 Hervey v. Hervey 236. 247 Hetherington v. Kemp 472 Heudebourck v. Langston 137 Hevey's case 434 Hevvard v. Shipley 42 Hewitt V. Piggott 360. 375. 823 Hewson v. Erown 612 Heydon's case 737 Hick V. Keats 479 Higginson v. Clowes 772 Higgs V. Dixon 649 Higham v. Ridgway 244. 308, 309 312. .325, .326. 329. 333 Highfield v. Peake 561. 578. 6 13 614. 620. 629 Hildyard v. Smith 817 Hilldyard v. Grantham 345 Hill V.Aland 817 V. Bateman 556 V. Elliot 175. 366 ■ V. Fleming 60 V. Hill 407 V. Manchester W. W. 290.376 V. Salt 867 V. Saunders 383 V. Sheritr of Middlesex 63 1 V. Squire 369 V. Street 873 Hill's case 849 Hilliard, case of 522 Hilly ards v. Phaly 231. 546 Hirst's case 447 Hitchin v. Campbell 509. 5 15 Hoadley v. M'Lane 77 I Hoar V. Mill 858 Hoare v. Allen 206 . V. Coryton 397 V (iraham 756 Hobhouse v. Hamilton 690. 614 Hobson V. Blackburn V. Parker Hobson's case Hockin V. Cooke Hockley v. Lamb Hodgts V. Atkis V. Fillis V. Holder V. Horsfall Hodgkinson v. Fletcher V. Willis Page 733 807 630 855 74. 263 812. 815 855 339. 837 751 159 168 172 621 Hodgsdon V. Fullarton 375 ^ V. Hodgsdon 716 Hodgson's case 494, 495. 914 Hodnet V. Forman 657 Hodson V. Marshall 110 V. Sharpe 382 Hoe V. Nathorp 547. 646 Hoffman v. Pitt 88 Hogg V. Snaith 756 Holcombe v. Hewson 482 Holcroit V. Smith 688 Holden V. Hartsink 479 Holder V. Coates 473 Holding V. Pigott 764. 766 Holdipp V. Otway 833 Holland V. Hopkins 877 V. Reeves .358. 456. 671. 940 Hollis V. Goldfinch 374. 486 Hollo\\vay v. Rakes 316. 325 Holme V. Green 400. 401 Holt V. Squire 409 Holway v. Clarke 480 Honeyer v. Lushington 535 Honeywood v. Peacock 657 Hood V. Reeve 405 Hooper v. Hooper 510 Hopewell V. Depenna 468 Hopins V. Neal 43. 107 Horford v. Morris 627 Home V. Lord T. Bentick 193 V. Smith 780 Home Tooke's case 189. 211. .376 479. 501. 616. 694 Horsfall V. Testar 8.58 Horton v. Horton 735 Houghton v. Ewbank 405 Honliston v. Smith 201 Houseman v. Roberts 665, 666 Houstman v. Thornton 469 Hovill V. Stephenson 147. 658 How V. Hall 444. 668 TABLE OF CASES CITED- xlix Howard v. Booth V. Canfieltl V. Shipley V. Tremaine V. Tucker Howatth's case Howell V. Lock V. Richards ■ ■ V. Stephenson Tho mas Howdenpyl v. Vingerhood Howleston v. Smith Hubbard v. Johnstone Hudson V. Revelt V. Robinson Huet V. Le JNIesurier Hughes V. Cornelius V. Gordon V. Watson, Hughes' case Hulke V. Pickering Hull V. Vaughan Hulse V. Eyston Humble V. Hunt Hume V. Rundoll Humphrey v. Knight V. Miller V. Morgan Humphreys v. Boyle Hum V. Andrews V. Hart V. Massey Hunter v. Britts V. Gibbons and Johnson 482 65 140 229. 236. 240 383. 594 187 880 855 524. 536 764, 765, 766 528 527 59 Page 881 893 131 574. 575 384 425 835 858, 859 657 872 400 622 597 115 124 596 532 764 607 438 479 382 602 602 547. 646 586 107 125 169. 172 598 722. 750 481 516 Ingleby v. Smith Inglis V. Spence Ingrum v. Dade V. Lee Inman v. Whormhy Lei and v. Powel Irving V. Greenwood V. JMotley Isack V. Clarke Israel v. Benjamin V. Clark Ivat V. Finch Ives's case Ivey V. Young Page 387 369. 371 87. 150 444. 772 474 259 207 402 478 652 481 315. 325. 413 507. 606 872 Jackson v. Allen 667. V. Fairbank400, 401. 837 V. Hesketh V ivmg V Leathley Huntingdon Peerage Hurd V. Maring Hurst V. Mathius Hutchinson v. Piper Hutchinson's case Hutton V. Warren Huxhatn v. Smett V. Smith Huxley V. Berg 48. 107. 373, 374. 442. I. Iggulden V. May 747 Ilderton v. Atkinson 107 Iles's case .324. 603, 604. 619 lllingworth v. Leigh 628 Incledon v. Burgess 510 Jacob's case Jacob V. Lindsay 353. 450, 895. Jacobs V. Humphrey Jajiffer, case of Ja<>-indo V. Belisario Lingard v. Messiter Lipscombe v. Holmes 50& 371 664 660 602 712 125 755 631 474 738. 768, 769 476 127 393 809 667 102 207 692 837 66a 817 682 782 519^ 610 627 48a 381 836 Lisle Peerage case Lister, q. t. v. Priestley Littler V. Holland Lloyd V. Passingham V. SandiJands V. Willan V. Williams V. Woodall Locke y. Norbonne, Lockhart's case Lolly's case 230. 235. 237 292. 582 37a 855 595 479 405, 406 60 593. 608 412. 517 432 536 lii TABLE OF CASES CITED. Long's case V. Champion Lopez V. Andrews V. De Tastet Lord AiuUcy's case • lialnierino's case Castlemaine's case 21. Cheney's case Chohiiondely v. Lord Clin Page 428 360 475 856 170 862 . 923 712 ton Cochrane's Trial Cromwell's case Falmouth v. George V. JMoss 747 816 709 211 213 910 749 922 761 74. 77 177 Ferrers V Shirley 693, 694. 707 . George Gordon's case 212, 213 Halifax's case 228 Imham v. Child 754 Kilmarnock's case 862 Lonsdovvne's case 746 Lorton v. Gore 338 Lovat's case 21. 149. 884 Melville's case 633. 676. 684 914 Petre v. Blencowe Portmore v. Goring Preston's case 706, Ptussell's Trial 176 Southampton, Trial of Stafford, Trial of Thanet v. Patterson 619, 620 Valentia's case 225 • Vane's case 170 Vv^alpole V. Lord Cholmon- deley 718 Warwick's case 21 V. Wardle 761 Lothian v. Henderson 533 Louisa Demont, case of 929 Lovat Peerage 233 Lovedon v. Lovedon 458 Loveridge v. Botham 390 Lowe V. Lord Huntingtower 722. 733 V. Jolifib 42. 902 Lowry V. Doubleday 785 Lowther v. Lord Radnor 556 V. Raw and others 484 Loyd V. Freshfield 176 Lucas and others v. De la Cour 399 V. Novosilieski 479 Luckett V. Graham 124 Lumley v. Quarle 555 Luttrel V. Lea 612 Luttrel V. Reyuell Lygon V. Strutt Lynch V. Clark M. Macarthy v. Smith Macbridc v. Macbride MacdoAvgal v. Young Mace V. Cadcll V. Kay Page 577.9 4 633, 634. 638 357. 683 Macferson v. Thoytes JNIackally's case M'Guire's case Macnally's case Macpherson v. Thoytes Maddison v. Nuttall 323. V. Shore Maesters v. Abraham JMainwaring v. Giles V. Myttom Male V. Roberts Maloney v. Bartley Maloney v. Gibbons Maltby v. Christie Man V. Cary Manby v. Curtis 331. 351 V. Lodoe Manchester Mills case Manifold v. Pennington Mann v. Baker V. Godbold V. Long V. Owen Manners, q. t. v. Postau Manning v. Clement V. Lechmere Mantstephen v. Brooke Mant V. Manwaring Manton v. Downes Maragora's case March V. Collnett Marchmont's case Markham v. Middleton JMarks v. Lahee Marriage v. Lawrence 321. 525. Marsden v. Stanfield50. 94 Marsh V. Colleat V. Meager V. Robinson Marshall v. Clifi" v. Parker 877 921 617 173. 381 627 698 850, 851 438 622 383 414. 603 645 782 403 474 127 627 914 539 369. 379 639 , 635. 652 314 263. 265 858 593 681 389. 481 555 650 328 312. 314 401. 855 51 674 464 653 231. 642 508 327, 333 289, 290 604, 605 . 136. 138 639 210. 397 597 369. 409 584 TABLE OF CASES CITED. liii Page Marshalsea case 655 Marston v. Downes 185 Martin v. Bell 631. G64 V. Howell 141 V. Nicholls 537 V. Thornton 175 Mary JMead's case 171 ]\Iasli V. Denham 871 V. Smith 53 Mason Y: Mason 469 IMassey v. Johnson 556. 883 Masterman v. Judson 866 Masters v. Drayton 87. 117 V. Masters 731. 740 V. Pollie 473 Matthews v. Haydon 141 V. Port 583 V. Smith 87. 153 Maugham v. Hubbard 450. 894 Maunderra v. Reeves 401 Mawman v. Gillett 121 Mawson V. Hartsink 925 May V. Gwynne 814 V. May 225. 447. 596 Maybank v. Brooks 740 Mayler v. Eyloe 209 Mayor of Carlisle V. Blamire 387 670 Doncaster v. Day 353 Exeter v. Coleman 812 London v. Joliffe 396 V. Mayor of Lynn 605 V. Swinland 806 • T^ynn v. Denton 812 Southampton V. Graves 812 INPBraine v. Fortune 142 M'Carthy v. De Cuix 536 M'Craw V. Gentry 660 M'Gahey v. Alston 412. 453. 469 674. 681 M'Intyre v. Layard 561 MTver v. Humble • 55 IVPKenire v. Eraser 652 M'Neil v. London (Sheriff) 615 M'Queen v. Farquhar 470 M'Quillin v. Cox 848 Mead v. Robinson 42. 131. 598. 639 Mead V. Young 622 Meath, Bishop of V. Winchester, Marquis of 410. 414. 637 V. Bclficld, Lord 257 Mee V. Reid Meekins v. Smith Melun V. Andrews Melville's Lord, Trial Page lo 782 377. 423 410. 467 Mercer v. Wise 371. 380. 385 Pilercers of Shrewsbury v. Hart 641 Mercdeth v. Hodges 384 Meredith v. Gilpin 136, 137 Merle v. More 174. 185 Meres v. Ansel 771 BTewsome v. Coles 381 I\Ieyer v. Sefton 188. 409. 454 Mitchell V. Johnson 661 V. Rabbets 633. 633 Middleton v. Janvers 625. 627 V. Melton 307. 309. 311 313, 314. 329, 330. 412. 441 Mildmay's case 761 Mildrone's case 10 Miles V. She ward 857 Millard's case 494 Miller v. Falconer 100 V. Foster 644 V. Heinrick 625 v. Miller 660 V. Travers 712, 713, 715 719, 720, 721, 722, 723, 724. 726 727, 728, 729, 730. 733. 743 V. Warr 951 Miller's case 594. 898 Mills v. Barber 834, 835 v. Collett 555 V. Oddv 674. 834, 835 Milward v. Forbes 359. 368 V. Temple 409 Milwood V. Walter 878 Minshull v. Lloyd 681 Minton's case 854 Mitchell v. Jenkins 464 — : V. Johnson 622 V. Hunt 109 Mogg's case 493 Mohun's, Lord, case 297 Moilliet v. Powell 866 Moises v. Thornton 372 Molineaux v. Molineaux 750. 75l IMolten, q. t. v. Harris 445 Monke v. Butler 465. 828 Monkton v. Attorney General 224 233. 239. 244. 248, 249. 276. 281 282, 283 Monroe v. Twislcton 168 Montefiori v. Montefiori '^60 liv TABLE OF CASES CITED. Moody V. King V. Thurston Moor V, Adam Moore V. Strong V. Tyrrell Page 55, 5G. 154 526. 553. 806 785 206 180, 181 254 701 Moravia v. Sloper Morevvood v. Wood 253, 268. 271. ]\Torey's case Morgan v. Ambrose V. Brydgcs 381. 631 V. Edwards V. Harris V. Hughes V. Morgad V. Prior Sir C. V. Edwards V. Tyler Morgan's case Morics V. Thornton Morish V. Foote 100, Morres v. Thornton 647 Morris v. Burdett 574 V. Davis 246. 463. 595 V. Miller 377. 463 V. Robinson 507 Morrison v. Kelley 803 V. Lennard 4 Morrow V. Saunders 819 Morley's, Lord, case 5C5. 577 Moseley v. Davies 258. 259. 266 555 266 702 432 382 909 859 879 556 659 89 863 324 10 607 101. 109 V. Hanford Moses V. Macfarlane Mosley's case V. IMassey Moss V. Gallimore Mostyn V. Fabrigas Mott V. Mills Moulen v. Dalison Moyser v. Peacock Mullett V. Hunt Muller V. Moss Mulvany v. Dillon Munn v. Godbold Munro v. De Chemant Murphy's case Murray v. Thornhill V. Wise Mynn v. Joliffe Myttoa v. Harris 5C5 258, 259 283, 284, 285 756 526 299. 301 723 383 555. 627. 795 371 484 563 786 199 563. 575 683 381 39 809 562 180 603 Page N. Nash V. Turner Neal d. Duke of Athol v. Wild- ing v. Irving Neale v. Fry v. Parkin V, Swind V. Wilday V. Wylie Neave v. Moss Nelson V. Whittal 622. Nest's case Neville v. Wilkinson Newburgh v. Newburgh 287. Newby v. Reed Newcastle, Duke of v. Clark V, Hundred ofBroxtowe 268. New College case Newell v. Simpkin Newman v. Raithby Newland's case Newham v. Stretch 209. Newton and the Corporation of Leicester, case of V. Lucas 733. V. Newton Newsam v. Carr Newsorne v. Coles Nicholl V. Williams Nicholls V. Dowding and an- other 399. V. Downes V. Parker, 250. 258. 277. 381 264 405 605 374 821 oc)g 102 383 661 709 760 725 469 473 279 554 806 596 123 324 228 744 228 489 593 883 Nicholson v. Smith Nightingale v. Devisme Nix V. Cutting 103. Nixon V. Mayoh Noble V. Kennoway 483. 738. Nodin V. Murray 456. Norden v. Williamson 51. Norman v. Morrell Norris v. Norris Northam v. Latouche 613. North V. Miles 215. Norton V. Shakespeare Norwood's case Norvell V. Davies Novelli V. Rossi Nute's case 377 283 366 628 121 186 768 671 158 740 468 623 407 88 378 118 538 433 TABLE OF CASES CITED. Iv Page O. Gate's, Titus, case 590 Obichini v. Bligh, 532. 539. 542 O'Coigley and O'Connor, Trial of, 921 O'Connor v. Cook 588 Oddis V. Dornville 2.36 Oddy V. Bovil 535 Odwin V. Forbes 542 Ogden V. Follcott 536 Ogiivie V. Foljanibe 772 Ogle V, Atkinson 384 V. Paleski 149. 561. 885 Olive V. Gwyn 647. 689 Oliver v. Bartlet 199 V. Cooke 751 Olroyd's case 578 Omichund v. Barker, 8. 10. 12. 607, 603 Orr V. Brown 542 V. INIorris 655 Osgathorpe v. Diseworth 530 Oswald V. Leigh 479 Outram v. Morewood 256. 253. 289 320. 323, 324. 345. 412.510,511 513. 515. 517, 518 Oxenden V. Palmer, 94. 137, 138 Oxlade v. Perchard 83 Pacy V. Knollis Page V. Crook V. Faucett V. Mann Pain V. Beeston Palethorp v. Furnish Palmer v. Lord Aylesbury V. Ekins V. Sells Palrnerston's, Lord, case Parkam v. Raynal Parke v. Edge Parker v. Barker v. Hoskins V. Manning V. M'VVilliam v. Palmer v. Potts Parker v. Williams v. Yates 712 60 604 622. 661 927 172 561. 629 382 403 354 400 866. 874 208. 397 659 382 886 856 461 555 179 855. Parkhurst v. Lowton Parkins v. Cobbett V. Hawkshaw Parkin v. Moon Parkinson v. Collier Parry v. Collis V. Fairhurst V. House V. May Parsons v. Bellamy v. Parsons Parteriche v. Powlet Partridge v. Coates Pasmore v. Bousfield Patterson v. Becher v. Black Patrick's Dr., case Patram's case Paul v. Meek Paull v. Brown Payne v. Rogers Paxton v. Popham Peaceable v. Watson 316, 317. 412 370. 380 762, 763 479 654, 655 371 Page 914 630 175. 622 913 769 619 870, 871 382 665 322, 323 714 771 664 364. 453 364 469 554 29 456 118 393, 394 7,58 Peacock v. Harris V. Monk Pearce v. Davis V. Hooper V. Whale Pearcey v. Fleming Pcarcey v. Homing Pearson v. Fletcher V. lies Pearson's case Peckham v. Potter Pederson v. Stoffles Pedlar v. Page Pedley v. Wellesley Pedley's case Petrie's case Pellicot V. Angel Pembroke's Lord, case Pendock v. Mackinder Pendrell v. Pendrell Penn v. Scholey V. Ward Penny v. Porter 80 156 186 786 567 416 122 657 162 898 179 758 297 17, 18 169. 462 198. 207 847 855 714 853 411 Penticost v. Lee Peppin V. Solomon Perchard v. Hamilton Perigal v. Nicholson 322, 323. 885 Perkin v. Warden of the Com- pany of Cutlers 478 Perkins v. Hawkshaw 409 Ivi TABLE OF CASES CITED. Perry v. (jibson Periyman v. Steggel Pettman v. Bridger Peto V. Hague Petton V. Walter Petty V. Anderson Page 903 I 154 474 402, 403 583 408 Pole V. Rogers Pollard V. Bell V. Scott V. Smith Peyton v. Governors of St. Thomas Hospital 402. 405 Pfiel V. Vanbatenburg 479 Phelps's case 464 Philips V. ]?acon 860 V. Shaw 860 Phillips V. Allen 542 V. Buckingham, Duke of 48 V. Bury 554 V. Crawley 545 V. Earner 207. 909 V. Fowler 131 V. Hunter 526. 532 V. Wimburn 446 Phillips's case 494 Phiilipson v. Chace 670 Philp's case 423 Philpots V. Read 242 Phipps V. Parker 660 V. Pitcher 120 V. Sculthorpe 382 Pickford V. Gutch 372 Pickles V. HuUings 113 Pickering v. Noyes 816. 821 Picton's, General, case 592. 606 624, 625, 626 Piercey's case 231. 605 Piercy v. 574 Piesley v. Von Esh 80,81 Pike V. Badnaring 902 V. Street 757 Pinney v. Pinney 543. 645 Pitcher v. Rinter 623 Pitt V. Fairclough 336 V. Green 853 V. Kniijht 612 Pitman v. Maddox 336, 337. 341 343. 351 Pittman v. Foster 401 Pitton V. Walter 618 Platamone v. Staple 761 Plaxton V. Dare 251. 261. 237. 289 315 Plumer's case 604 Plummer v. Woodburne 542 Plunkett V. Cobbett 193.497 Pocock V. Billings . 416 Pomeroy v. Baddeley Pomfret, Lord v. Smith Pond V. Dinnes Pool V. Eousfield V. Court Page 8u0 634 261.288 266 886 287 568 125 855 Poole V. Dicas Pooley V. Goodwin Pope V. Biggs V. INlonk V. Skinner Poplett V. James Porter v. Cooper Porthouse v. Parker Portman v. Goring Potter V. Brown Potts V. Durant Powell V. Edmonds V. Ford V. Hodgetts V. Hord ■ V. Milbank 330. 336. 339, 340 342 683. 690 383 371 848 60 616. 622, 623 383 820 542 602,603,604.634 644, 645 Pratt V. Dixon V. Jackson Priestley's case Prescott V. Flinn Prescott V. Phillips Pressley's case Preston v. Carr V. Merceau Price V. Anderson V. Boultby V. Edmunds V. Fletcher V. Harwood V. HoUis V. Littlewood V. Torrington, V. Neale V. Williams Priddle's case Price's case Prideux v. Collier Prince v. Blackburn V. Sam Pritchard v. Draper V. Symonds Pritchard v. Walker 771, 772 692 215.402 98 465. 823 527 732 630 405 287 566 410 771 597 824 757 858 38 1 . 384 405. 611 254. 259. 606 Lord 336.351 383 865 18 29. 622 207. 402 657. 660 942 400 664 371 TABLE OF CASES CITED. Ivii Pritt V. Faiicloush 333 Proctor V. Lainson Provis. V. Reed Prudhani v. Phillips Pullen V. Seymour Pulley V. Hilton Purcell V. Macnamara Purchase's case Purdock V. Mackinder Purkiiis V. Hawkshaw Putt V. Rawsterne Pje's case Pyke V. Crouch 92.215, 353, Pjtt V. Griffiths Q. Page 471. 682 684 578 946 550 873.875 644 860,861 213 15 661 509 854 342, 343 519,568 660 Queen's case 12. 357, 358. 362. 420 441,442.456.499 Quelch's case 592 R. Radburne's case 562. 570. 573 Radford,^, t. v. Mackintosh 370 553 375 220. 434 901 632 444 647 388. 449 782, 783 358. 362 694 655 20. 42 379 497 816. 819 271 176 426 56,57 510 209, 210 756 647 389 2i7. 447.595 Radnor, Earl of v. Reeve Raggett V. Musgrove Raleigh, Sir W., Trial of, Raniadge v. Ryan Ramsbottom v. Buckhurst V. Tunbridge Ramsbottom's case Rambert v. Cohen Randall v. Gurney Randle v. Blackburn Randolph v. Goode V. Gordon Rands V. Thomas Rankin v. Florner Rastell V. Macquesta Ratcliffe V. Bleasley V. Chapman Ratcli.Te's case Rates's case Raven v. Dunning Rawlins's case Rawson V. Ilaigh ' V. Walker Ray V. Clark Rayner v. Hail Read v. Passer Reading's case Reason, Trial of Reay v. Richardson Reazon v. Ewbank Red ford /. Birley Reed v. Battie V. Denne V. Jackson V. James — — V. Prosser Rees V. Bowen V. Lioyd V. P.Iansell V. Smith Reeve v. Underbill Reeves v. Slater Regg V. Cargenvcn Regina v. Gouche V. Murray Re Hick Reid v, Coleman V. Marjiison Reilly's case Rsmmie v. Hall Remon v. Hay.vard Rennie v. Robinson Rescous V. Williams Rest v. Hobson Reusse v. My^rs Rex V. Abergwelly Acckles Addis Alberton Alison Almon All Saints Page 524 303 773 60 212 444 443 251. 254,255.264 265. 284. 506 89 463 620. 630 473 654 842 836 381 371 471 462 627 819. 824 615 21 358, 359. 362 703 S82 145 470 597 221.227.294 562 598 45. 38 462 463.596 405 248 V. All Saints, Southampton 471 V. Antrobus 251. 256. 309 Appleby Atwood Babb Baldwin Balls Barker Barnard Barnes V. Barr V. Bartlect 377 30. 33. 666 811. 814, 815 520 494 803 33,34 371. C45 474 422. 427 V. Biilhwick, Inhabita.its of 165.648. 652 V. Eeavan 66 Iviii TABLE OF CASES CITED. Re V. Bcdder V. Bedell V. Bell V. Bellamy 616, V. Benson V. Bently V. Bestland V. Bidder V. Bigg V. Bignold V. Bingham V. Bird V. Bishop Auckland ■ V. Bishop of Chester V. Blackman • V. Blaney Page 69 171. 227 447 623. 859 439.621 447.531 470 30 453 844 652 478 941. 37 554 Rex Page Castleton 445, 448.662.678 680,681 68 66 297. 299 565 63, 64.75.520,521 170 V. Bonner V. Bon on V. Boston V. Bowes V. Bowler 583 V. Bramley 173. 225 V. Brampton 643 V. Bray 64. 71 V. Brazier 6 V. Brewer 175 V. Bridgeman, Dr. 812 V. Briscoe 568 ■ V. Britton 368. 424 ■ V, Bromley 247 • V. Bromwich 370 - V. Brooke 909 ■ V. Broughton 64. 521 ■ V. Brown 475.618 787. V. Catesby V. Cator V. Cattorall V. Chadderton V. Chappie V. Charnock V. Cheadle V. Christie V. City of London V. Clapham ■ V. Clarke ■ V. Clear ■ V. Clewes • V. Cliviger ■ V. Cole - V. Colley - V. Coombs ■ V. Commissioners of Land 470 69G 629. 53 1 227. 294 447. 630 31 753 301 396 246. 595 204.216.385. 489 490. 524. 850 814 362.422.430,431 161 68,81. 144.499 886 '465. 828 Tax — V. Cooke — V. Cooper — V. Cope — V. Corden — V. Cornelius — V. Corsham — - V. Cotton — V. Court — V. Coveney — V. Cresswell V. Brownell V. Buckingham V. Budd V. Burbage V. Burchenough V. Burdett ■ V. Burley • V. Bury 788 809 468 783 524 440. 457. 860 29 227. 294 V. Buttery and M'Namara 548 549 V. Cadogan, Earl of 813 V. Carr 357 V. Carlisle 844 V. Carpenter 133.353 V. Cass 424 V. Castle Morton, Inhabit- ants of 442 V. Castell Careinion 601.806 792 432 210 828 813 531 278 426 567 453 V. Crockett 299, 300, 301. 304 305 V. Crossby 17 598 221 64.521 18. 425 34 £90. 600 590. 67 1 354 448 31,. 39 182 170 444 357 864 598 430. 524 30. 34 V. Crossley V. Crowther V. Dalby V. Davis V. Dawbur V. Debenham V. De Berenger V. Deboragh V. Denis V. Despard V. Dixon V. Doherty V. Doran V. Dowlan V. Dowling V. Duins V. Dunn 20 I V. Durham TABLE OF CASES CITED. Rex V. Eardsisland 520 V. Eden 64. 621 V. Edmunds 423. 446 V. Edwards 921 V. Eldershaw 461 V. Eldridge 423 V. Elkins 631 V. Ellicombe 63. 427. 484. 665 V. Ellis 521 V, Embden 524 V. Enoch 424. 429 V. Eriswell 221. 227. 341. 257 562. 565. 570. 577 V. Erith 226 V, Fagent 300. 302 V. Fagg 447 V. Falkner 423 V. Farleigh 675 V. Fearshere 446 V. Ferrers 170 V. Ferry Frystone 220. 227 294. 562 V. Fisher 369. 446 V. Fitzgerald 597 V. Fletcher 29. 70 V. Forbes 561 V. Ford 17.22 V. Forsyth 639 V. Foster 204. 216 294. 447 V. Fraternity of Hosman in Newcast e 811 V. Frederick and another 160 V. Fuller 567 V. Fursey 455 V. Gardner 369. 592 V. Gay 304 V. Gibbs 169 V. Gibbons 176. 429 V. Gibson 444 548, 549 V. Gilham 11. 860 V. Gilson 443 V. Gisburn 150 X. Glossop 863 V. Gordon, Lord George 639 914 V Grant 18. 432 V Gray 115. 449 V. Great Earring don 810 V Great Westowe 809 V Green 426. 428 V. Greenwick 227 V Greepe 22 V Griftin 216. 433 Rex. Page V. Grimes 518 V. Grimwood 598 V. Groombridge 461 V. Grundon 554 V. Gwyn 641 V. Haines 622, 623. 638. 646 V. Hall 446 V. Hammersmith 144 V. Hanson 465 V. Harbonne 465. 468 V. Hardwicke 215. 393. 395 399. 429 V. Hardy 893 V. Hargrave 39 V. Harringworth 649, 650 V. Harris 446. 567. 631 V. Harvey 432 V. Haslingham 627 V. Hastings 35 V. Hatfield 473 V. Haughley 647 V. Hawkins 465 V. Haydon 813 V. Hayman 137 V. Haynes 646 V. Hayward 302 V. Head 478. 641 V. Headcome 384 V. Hebden 517, 518 V. Helling 471 V. Hickman 446 V. Higgins 421 V. Higgins and others 947 V. Hinckley 470 V. Hodge 432 V. Hodgkiss 492 V. Hogdson 49D V. HojTg 577 V. Holland 805 V. Hollister 815 V. Holt 591, 592 V. Holy Trinity 443 V. Hope 447. 630 V. Hopper 506 V. Home 844 V. Hough 494 V. Howard 453. 630 V. Howe 430. 431. 925 V. Hube 445 V. Hucks 504 V. Hughes 598 V. Hulcot 471 V. Hulme 64 Ix TABLE OF CASES CITED. Rex Page V. Hunt 212. 450 498 499 849 V Hutchinson 295 V Jacob 446 V Jamos 386 630 V JeffVic3 611 V. Jenkins 433 V. Johnson G8 132 676 V. Jolifte 354 .461 568 V. Jones 30,31,32.34. 357 358. 427. 433. 453. 795 V. Kea IGO Ctrti V KeniUvorth 531 V. Kerne 370 V. King 639 V Kingston' 430 V Kirby, Stephen 531 V Kirdtbrd 94. 136. 138 V Knaptoft 529 V. Lafone 70 V. Laindon 388 759 V. Lambe 446 V. Lambert and Perrj 1 601 V. Leake 474 V. Lee 813 V. Leefe 859, 860 V. Leicester 810 V. Lewis 424, 425. 446, 919. 447 921 V. Lin gate 430. 432 V. Lisle 518 V. Lhingunnor 759 V. Llo>d 295. 474 V. Locker and others 160, 161 V. Long 494, 495 V. Long Buckby 470 V. Lubbenham 384. 390 V. Lucas 807. 816 V. Luckup 67. 132 V. LufFe 160. 169. 171. 462, 227 463 V. Magill 428 V. Mallinson 828 V. Martin 600 V. P.Iarvlebone 810 V. Mathersell 605 V. Mattingley 758, 759 V. M'Carty 44« V. Mead 170. 2&3, 294, 295 813 V. Mellor 35 V. Menetone 64 V. Merceron 368 Page Rex V. Merchant Tailors Com- pany 314 V, Middlezoy 650. 654 V. Midlam 803 V. Millard 494, 495 V. Mills 427 V. Montague 475 V. Moors 36. 451. 494. 669 670 Morgan 700. 703 Morphew 568 Morris 470. 621 Morton 448. 678, 679, 6C0 Mosley 300, 301 Motherrel 641 Muscol 143 Mutineers of the Bounty 69 Neale 39 Netherthong 636 Netherseal 547 Neville 368 Noakes 38 North Be din 681 North Petherton 246. 595 Northwingiield 759 Nottingham 225. 810 Nuneham Courtney 220 227. 562 63. 116. 521 - V. ■ V. - V. ■ V. ■ V. • V. ■ V. • V. - V. - V. ■ V. • V. ■ V. ■ V, ■ V. ■ V. • V. ■ V. ■ V. ■ V. ■ V. • V. ■ V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Nunez Nute Nuts Nuttey Oldbury Oldroyd Olney Osbourne Owen Padstow Page Paine Parratt Partridge Payne Pearce Pearson Pendleton Perry Phipps Picton Piddlehinton Pie rev Pike " Pippet 430 947 227 531 906 758, 759 746 462 443 445 562 427 427 860 497. 664 421 444 169, 170 140 360 680 296 860 TABLE OF CASES CITED. Ixi Page Rex V. Plumer 374. 45G V. Poutiiey 4'-29 V. Piessly 447 V. Preston, Lord 8 V. Preston, Inhabitants of 947 V. Purefoy 570 V. Ramsdcn 893 V. Rawden, Inhab. of 442, 443 G79 V. Reading 171. 227. 447. 462 V. Reason and Tranter 3)2 447 V. Reebly 643 V. Reed 447. 566 V. Rhodes 503 V. Richards 429. 447. 630 V. Ring 787 V. Ripon, Mayor of 155 V. Rislip 513 V. Rivers 424. 446. 567 V. Roberts 497 V. Rodham 783 V. Rogers 465. 828 V. Rooke 169 V. Rookewood 26 V. Rosier 431, 432 V. Row 424. 428, 429 V. Rowland 2 3. 69 V. Rowley 555 494 V. Rudd 31 161 V. Russell 524 V Ryton 656 V. Salter 2)0 V. Sal way 745 V Sarratt 529 531 V. Savage 577 V Scaite 295 V Scammonden 388 V Scorey 565 V Scott 746 V Sellers 304 V Sergeant 160 161 169 V . Sexton 430 V. Shaftesbury, Earl of 922 V. Shaw 426, 427. 506 V. Shearman and others 69 V. Shene 524 V. Shelley 453. 307. 814 V. Sliepherd 426 V. Sheriff of Chester 805 V. Simons 392. 419 V. Slaughter 430 Pago Rex V-. Smith 182. 221. 466. 495 520. 569. 573. 616. 622. 623. 630 806. 947 V. Smith and Homage 424 V. Smith and another 34. 160 161 V. Smithers 373. 422 V. St. Devereux 447 V. St. Alartin's, Leicester 893 895 V. St. Mary, Lambeth 531 V. St. Maiy's, Nottingham 914 V. St. JNIary Magdalen, Ber- mondsey 49 V. St. Maryiebone 808 V. St. Pancras 265. 512. 514 520. 524 V. St. Peters 173. 225 V. St. Sepulchre 227. 679 V. Sparkes 176, 177 V. Spearpoint 607 V. Spencer 429. 621 V. Spilsbury and others 298 306. 426. 446. 567 V. Staftordshire 806. 810 V. StalTordshire, Justices of 565 V. Stallard 487 V. Stannard 492 V. Steptoe 42l V. Stoke Golding 662. 677 V. Stone 66. 192. 830 V. Stourbridge 674 V. Straiten and others 947 V. Surrv, Justices of 815 V. Satton 8. 590, 591 V. Swallow 33, 34 V. Swatkins 373. 430 V. Tarrant 447 V. Taylor 447. 524. 859 V. Teal 15. 20. 42 V. Teasdale 132 V. Telicote 447 V. Thomas 426, 427. 567 V. Thompson 424. 427 V. Thornton 427. 566 V. Thring 623 V. Thruscross 640 V. Tilley 66 V. Tippet 423 V. Topham 370 V. Tower 816 V. Towns end 520 V. Travers 5 Ixii TABLE OF CASES CITED. Page Rex V. Tubby 425 V. Tucker 6 V. Turner 466. 830 V. Tyler 424. 429 V. Upchurch 429 V. Upper Bodington 175. 185 V. Upton Gray 470 V. Utterby 610 V. Van Butchell 299. 304 V. Vandercomb and Abbott 493 V. Vereslt 453 V. Vincent 543 V. Vyse 607 V. Wade 6 V. Wakefield and others 170 V. Walker 425 V. Walkley 427. 435 V. Walter 446 V. Ward 616. 623 V. Warden of the Fleet 22. 514 V. Wareham 227 V. Washbrook 555 V. Watkins 447 V. Watkinson 187 V. Watson 192. 456. 493. 607 648. 671. 924 V.Webb 35.38.425 V. Welborn .300 V. Wells 36. 38 V. Wheelock 530 V. White 423 V. Whitehead 207 . V. Whiting 64. 492. 521 . V. Whitley, Lower 395 V. Wick, St. Lawrence 530 V. Wickham 759 V. Williams 6, 7. 66. 849 V. Wilkes .36 V. Wilson 427 V. Wilts and Berks Canal Company 814 __ — V. Winkles 819 V. Withers 185, 593 V. Wobourn 395 V. Woburn, Inhabitants of 916 V. Woodcock 302 V. Woodley 185 V. Worsingham 813.821 V. Wrangle 758 V. Wylie 494 V. York, Mayor, of 518 Reyner v. Pearson 404 Rhodes V. Ainsworth Rich V. Jackson V. Topping Richards v. Bassett V. Peake Richardson v. Allan V. Anderson V. Edmonds V. Mellish V. Watson Richey v. Ellis Rickards v. Mumford V. Murdoch Ricketts V. Salwey Rickman's case Ridgway v. Darwin Ridley v. Gyde V. I'aylor Right V. Bucknell Ripon V. Davies Rivers v. Griffiths Roach V. Garvan Roberts v. Allatt V. Barker V. Bradshaw V. Doxen V. Eddington V. Fortune V. Harris and wife v. Herbert V. Karr V. Gresley, Lady 405. 409 V. Malsten 489 Roberston v. French 472. 597. 738 743 Robinson v. Crutchley V. Henshaw . V. Nahon V. Smyth V. Williamson Page 94. 263 771 125 255, 279. 604 846 126. 902 405. 626 735 598 712. 738. 740 818 48a 899, 900 858 466 362 209. 449 125 382 188 849 535. 537 922 766 671. 684 454 607 526. 553 88 847 474 644 364 381 801 252. 266 315. 323. 588 V. Yarrow 383 Robinson's case 398. 493. 497. 509 517 Robson V. Alexander V. Andrade V. Kemp Rolls Roche V. Campbell Roche's case Rocher v, Busher Rodffuer v. Tadmire 368 395 181. 184. 186 209, 210 208 855 636 123 489 TABLE OF CASES CITED, Ixiii Rodwell V. Redge Roe V. Aylmer d. Brune v. Rawlins Roe d. Bushell v. Gore ' V. Davis Bart V. Day V. Ferrars ■ V. Harvey • V. Ireland • V. Jeffery V. Parker — — V. Rawlins 807. Page 465 814 318 241 4.5G 360. 843 357. 362, 363 G67 475. 588 271. 604 250. 261. 284. 604 309. 323. 326. 332 375 307 228 670 409 V. Robson — — d. Thorne v. Lord d. West V. Davis V. Wilkins Rogers V. Allen 254. 286. 289. 290 857 V. Brooks V. Jones V. Pitcher 382 V. Wood Rogers's case Rogerson v. Whittington Rokeby Peerage Roley V. Howard 474 556 383 264. 267 439 142 233 838 615 Rolf V. Dart Rookwood's case 21. 23. 923, 924,925 Roos' Peerage 232 Roscommon Peerage case 234 Rose V. Bartlett 733 V. Bryant 346. 350 Ross V. Hunter 827 Rothero v. Elton 100 Roulston V. Clark 858 Rouse V. Redwood 366. 377 Rowcroft V. Bassett 313 Rowe V. Brenton 454. 472. 485. 561 580. 585. 593. 628, 629. 947 — V. Grenfel ■ V. Hasland V. Howden Rowland v. Ashby Rowntree v. Jacob Rudd's case 27. V. Wright Rudge V. Ferguson v. Freeman Ruding V. Newell v. Smith Rugby Charity, Trustees of", v. Merryweather 5 472 468 816 446 387. 389. 758 115. 123. 131 252. 328 89 90 483 643 Rullock v. Dunn Rumney v. Beale Rundel v. Beaumont Rush V. Smith Rushworth v. Craven ■ v. Pembr tess of v. Wilson Russell V. Rider Russel's case Ruston's case Ryder v. Mallon Ryle V. Haggle Rymer v. Cook Page 400 386 598. 816 908, 909 598 oke, Coun- 519. 573 785 59. 939 236. 479. 503 4. 11 225. 233. 866 207 880. 884 Sacheverell Riots, The 2l2 V. Sacheverell 386 Sadler v. Robins 542 St. George, Parish of, v. St. Margaret 463 St. Katharine's Hospital, case of 605 St. Leger v. Adams 547 St. Paul's, W^arden of, v. Morris 519 Saloucci V Woodmas 534 Sake V. Thomas 328. 598. 639 Saher v. Turner 360. 386. 613. 620 Sampson v. Yardley 219 Samuel v. Evans 610 Sandei"son v. Jackson 752 V. Laforest 208. 397 Sandford v. Kensington 174 V. Raikes 751 Sands v. Ledger 858 Sandwell v. .Sandwell 897 Sangster v. Mazarredo 399, 400 Sapsford v. Fletcher 383 Saruin, Earl of, v. SirB. Spencer, 563 Saunders v. Pitman 801 Sayer's case 39 Sayer v. Garnett 88, 89 v. Kitchen 359. 667 Schamann v. Eatherheart 525 Schinotti v. Bumstead and others 807 168 389 159 397 Scholey v. Goodman • V. Walsby V. Woodman 474 Schooling v. Lee Jxiv TABLE OF CASES CITED. Page Scott V. AUgood 513 -^ V. Clare 365. 445 V. Jones 668 V. Lewis 621. 630. 833. 837 V. Lifford 152 V. Maishall 407. 631 V. Sheai-man 551 Scrimpshire v. Scriinpshire 536 Searle v. Barringtou, Lord 342. 346 348, 349 Seddon v. Tutop 508. 509 Sedgwick v. Watkins 161 Selby V. Harris 632 Sellen v. Norman 479 Sells V. Hoare 1 1 Selwood V. Mildniay 713. 723. 730 Senior v. Armitage 765 Sergeson v. Scaley 582. 584 Settle Mill case 261. 263 Seven Bishops, Trial of 700. 708 Severn v. Olive 785 Sewell V. Corp 607 V. Stubbs 364 Sexton's case 428. 431 Shaftesbury Lord, v. Lord Digby 8 Sharpe v. Scoging 924 Shaw v. Picton 384 Shawe v. Broom 415, 416 Shearwood v. Pearson 443, 444 Sheldon v. Whitakcv 859 Shelton v. Livius 772 Shelley v. Wright 387 Shelling v. Farmer 809 Shendom v. Thompson 316 Shepherd v. Chewther 389 V. Gosnold 746 •' — V. Thorthouse 645 Shepherd's case 464 Sheriffs. Cadell 472 Sherman v. Barnes 101 vShipwith V. Shirley 325 Short V. Lee 307. 312. 321. 323, 324 328, 329, 330, 331. 453. 588. 605 Shortreed v. Check 752 Shott v. Streathfield and another 199 Shumack v. Lock 402, 403. 405 Shutt V. Bovingdon 568 Shuttleworth v. Bravo 90 v Stephens 126 Sidaway v. Hay 542 Sideways v. Dyson 668 Sidney, Algernon, case of 31. 372 Sikes V. Marshall 335. 337. 351 Page Simons v. Smith 153. 396 Simpson v. Henderson 737 v. Pickering 120. 515 V. Smith and another 909 Simpson's case Sims V. Kitchen Sinclair v. Fraser V. Sinclair V. Stephenson V. Stej)henson Singleton v. Barrett Sissons V. Dixon Skaife v. Jackson Skinner v. Lord Bellamont V. Stocks Skipwith V, Shirley Slack V. Buchanan Slade's case Slane Peerage Slaney v. Wade Slater v. Lawson Slomon V. Heme Sloper V. Allen Small V. Allen Smallcombe v. Bruges Smalt V. Whitmill Smart v. Prujean V. Rayner V. Williams 321. 337, 338 343 V. Wolff Smartle v. Williams Smith V. Battens V. Battey 429 666 537 536 664, 665 893 450 465 389 254 121 683 366, 367 509 229 230. 235. 272. 281 388 401 396 857 758 397 782 751 835 341 344 532 351. 6&7, 688 481 208. V. Beadnell V. Blackham' V. Blandy V. Bromley V. Buchanan V. Chester V. Cramer V. Davies V. Dettruitz 358. d. Earl of Jersey v. Doe V. Harris v. Johnson V. Lyon V. Maxwell V. Mercer V. Miller V. Moon 343 368 91 362 394 542 383 209, 210 810 416 734 735 121 508 395 643 383 377 373 TABLE OF CASES CITED. Ixv Smith V. Prager V. Rummens V. Sainsbury V. Smith V. Taylor V. Veale V. Whittingham V. Wilson V. Young Smith's case Snow V. Cutler V. Phillips Snowball v. Goodriche Sodtbrd v. Chambers Solita V. Yarrow Solomon v. Turner Somerset's, Duke of, case Page 75. 117. 5'iO 63. 520 703 412. 632 370. 371. 384 563 312. 412 738. 739. 743 358. 363. 397. 449 665 435. 439. 496. 622 640 391. 557 406 383 699 381 483, 484 Somerset v. France Sowers v. Leggatt Spargo V. Brown 218. 307. 312. Sparin v. Dan Sparke v. Middleton Sparrow v. Farrant Spence v. Stuart Spenceley v. De Willot V. SchuUenberg Spencer v. Billing V. Goldinff 482. 2G3. 483, 484 485. 640 827 392 395 576 175 701 783 910 187 454 141 621 155 830 531 669 357 611 849 857 503 Spencer's case Spicer v. Burgess Spieres v. Parker 481, Spitalfields v. Bromley Spragge's case Sprain v. Drax Spring \. Eve Spybey v. Hide Squire v. Hunt 855, Stafford v. Clark , Marquis of, v. Coyney 474 Stafford Peerage case 229. 243 Staffo)'d's case 578 Stainer v. Droitwich, Burgesses of 605 Stammers v. Dixon 747 Standage v. Creighton 409 Standen v. Standen 173. 245. 723 7.33. 735 Stanley, Sir T. v. White 325. 374 486 V. Ficldcn 360 Stanwix, General, case of Stapleten v. Stapleton Stajjylton v. Stapylton Stead V. Heaton 309. 313. Stearn v. Mills Steel V. Prickett 250, 251. Steglitz V. Egginton Stephen v. Gwenap Stephens v. Crichton V. Pinnev Stevens v. Berwick on Twe V. Moss V. Pinney V. Thatcher V. Whistler Stewart v. Barnes Still V. Halford Stobart v. Dryden 221, Stock V. Booth Stockfleth V. De Tastet Stoddart v. Palmer Stonard v. Dunkin Stone V. Bale V. Blackburn V. Forsyth V. Lennox, Lord G. Stone's case Stork V. Denew Storer v. Hunter Storr V. Scott Stradling v. Morgan Stranger v. Searle Stratford's case Stratton v. Rustal Street v. Brown Strickland v. Ward Strode v. Russell v. Winchester Strong v. Dickenson V. Rule Strother v. Barr V. Willan Stroud V. Willis Strutt v. Bovingdon Stuart v. Greehall V Lovell 353. Studdy V. Sanders Stump V. Ayliffe Summers v. Mosclcy Summerset v. Adamson Sussex, Earl of, v. Temple Page 469 227 225 327. .329 389 271. .374 473 405 351 795 443 ed 809 225. 227 444 405, 406 846 113. 143 627. 6.32 291. 946 474 368 853. 861 384 763 148. 885 645 176 211 561 480 377 748 696, 697 555 388, 389 820 558 740 317. .325 783 855 441. 443 597. 607 382 512. 516 603 489. 497 187. 386 586 908 377 386. 413 414 TABLE OF CASES CITED. Suster V. CowcU 817 Sutteii V. Bishop 20. 131 Sutton V. Buck 47^2 V. Gregory 340 Swain v. Roberts 879 Swallow V. Beaumont 858 Swan and Jet^ereys, case of 840 Swemlen's case l<->9 Swinnerton v. Stafford, Marquis of S3. C38 Swine V. Bell C87 Sybray v. White 406 Sydenham v. Rand 782 Sylvan v. Stradling 382 Sykes v. Dunbar 194 Sylvester v. Hall 843 Symmons v. Knop. 860 Talbot V. Hodgson 660 V. Hodson 470 V. Lewis 269 V. Vilk-boys 810 Tainberlain v, Humphreys 588 Tanner v. Bean 854 ' V. Taylor 893 Tapley v. Wainwright 846 Taplin v. Atty 664 Tarleton v. Tarleton 537. 541 Taverner's case 496 Taylor v. Blacklow 184 V. Briggs 738. 743 V. Cole 231. 391 V, Cook 263 V. Croker 383 V. Duplock 469 V. Foster 175 V. Fox 314 V, Hooman 863 V. .Jones 686 V. Kinloch 397 Page Tcnny v. Jones 475 Terry v. Huntingdon 553. 5dG Thanct, Earl of v. Foster 582, 583 Thatcher v. Waller 565. 570. 577 Thatcher's case 585 The King v. All Saints Worces- ter, Inhabitants of 164, 165, 166 Boston Clivigcr 162. 164, 166, 116 165 167 147 v. Fox V. Paget, Lord, and others 947 v. Luffee 171 V. Prosser 71 in aid of Reed v. Hopper 614. 690 V. Mayor and Com- monality of London Whiting W' oburn Coslinj; 63. Thelluson v Thomas v. Ansley V. David V. d. V. Foyle Jones V. Thomas London, (sheriffs) Newton Thomas 48 116 158 592 445 886. 910 472. 597 718. Thomas's case Thompson v. Austin V. Kinloch Royal Exchange As- surance Company 795 Williuiiis 198. 409, 410 948 Thorne v. Thornton v. Zaniira Teal by v. Gascoyne Teed v. Martin Telicote's case Tellard v. Shebbcare Tempany v. Bernard Tennant v. Strachan 383 631 597. 683 566 257 858, 859 87 1 Thurle v. Maddison 373 619 913 726 566 .357, 358. 363 367 Rlackhurst 527 V. Bridges 397 V. Davenport 377 V. Donaldson 547 V. Lamb 362 V. Lawlev, Lady 734. 740 V. Leach 480 and Uxor v. Trevanion 203 Rolffe 468 V. Jones 856 v. Lyster 862 V. Royal Exchange As- 901 427 508 surance Company ■ Thornton's case I Thorpe v. Cooper I V. Gisburne i Threlfall v. W^ebster I Throgmorton, Sir N., Trial of V. W'alton 693 817 434 468 687 TABLE OF CASES CITED. Ixvii Thurston v. Stafford Thwaites v. Richardson Tickle V. Brown Tilley's case Tilk V. Parsons Tillo V. Greeve Timperley v. Scott Tindal v. Whitrow Tinkler v. Walpole Page 947 400 413 561 207. 448 142 360. 561 413 597 Tinkler's case 294. 296. 299, 300 Tinney v. Tinney Title V. Grevet Todd V. Winchelsea Tomkins v. Ashley V. Attorney General Tong's case Tongue's case Tooker v. Beaufort, Duke of 472 Toosey v. Williams Topham v. Braddick Torrington's, Lord, case Tothill V. Hooper Tounson v. Tickle Tovey V. Lindsay Towers v. Moor Townley's case Townend v. Downing Townsend, Marq. v. Norwich, Bishop of V. Chainpernown Trantor, Trial of Travis v. Chaloner 754 914 353 558 598 434 26. 31 .584 613 682 479 341 138 480 536 740 862 107 94. V. Collins V. Oxter Tremain v. Faith Trevivian v. Lawrence Trelawney v. Coleman V. Thomas 477 477 303 263. 414. 513 518 820 589 785 510 200, 201 86. 123 Trial of the Regicides 8 Trist V, Johnson 665 Trotter v. Harris 472 Trowell V. Castle 470. 619 Trowter's case 304 Truslove v. Buiton 409 Trustees of British Museum v. Furnis Tucker v. Barrow V. Crack lin V. Wilkins Tullock V. Dunn Turner v. Crisp 599 .368 855 602. 606. 644 393 346. 348, 349 Page Turner v. Gethin 809 V. Pearce 148 V. Pearte 885 V. Railton 188. 366 V. Turner 464 Turner's case 423. 434. 520. 524 Turquano v. Knight 180, 181. 185 Turton v. Benson 366 Twemlow v. Oswin 469 Twiselton's claim 247 Tyler v. Leeds, Duke of 405. 632 Tyrwhitt v. Wynne 486 U. Uhde V. Waters Ulrich V. Lichfield Underhill v. JJurham - V. Watts Upton V. Curtis 739. 755 727 585. 587. 628 445 95 V. Vacher v. Cocks 197. 208. Vaillant v. Dodemead 174. 176, Vallance v. Dower 738. Vaughan v. Fitzgerald V. Martin Vaughan's case Vandercomb and Abbott, case of Vandercomb's case Van Nyvel v. Hunter Van Omeson v. Dowick Vant Wort v. Wooley Venafra v. Johnson Venning v. Shuttleworth Vernon's case Vicary's case Vice V. Anson, Lady Villers v. Beaumont Ville V. Varsovie Vincent v. Cole V. Prater 740. 386. 441 Viner's case Viney v. Barrs Vooght V. Winch Vowke's case Vowles V. Miller V. Youni; 475. 510. 493. 242 W. Waddincton v. Cousins 656 177 768 563 898 493 803 524 632 639 410 631 127 762 399 666 762 la 444 199 324 482 512 496 437 243 700 Ixviii TABLE OF CASES CITED. Page WacUcy v. Baylis 747 Wadswoith V. flainshaw 180 Wagstafi'v. Wilson 409 Waithnian v. Weaver 489 Wake V. Lock 101. 110 W^ikeHeld's case 1G9. 782 Wakelicld, Trial of 727 Wakonian v. W' est 288 W^aldcn Peerage 232 Waldridge v. Kennison 366, 367 Waldron v. Combe 542. 607 . V.Ward 174,175 Walker v. Beauchamp 277. 642 . V. Broadstock 317. 413 V. Burnell 371. 379 and others, case of 500 V. Holman 322 V. Kearney 17. 19 V. Wetter 526 V. Whitter 537 ■ V. W^iidnian V. Wingfield Wallace v. Cook V. Small Waller v. Horsfall 241, W^allis V. Delaney W^allis's case Walter v. Green V. Gunner Walter's case W^alters v. Mace V. Pfiel W^alton V. Shelly W^andless v. Cawthorne Ward v. Bourne W^ard's case ■ v. Ellayn v. Haydon V. Man — V. Wells — V. Wilkinson 540 180 596 597 366 683 622.657. 661 850 207 474 466 852. 864 643 41.71.263 151 59 622 527 52, 53, 54. 70 69 578, 657 103. 121. 504 658. 660 854 681 W^ardeM v. Fermor Wardle's case Wargent v. Hollings Warren v. Greenville 313. 325, .326 329 Hastings, Trial of 906 V. W^arren 47 1 Warriner v. Giles 806 Warwickshall's case 419. 432 Waterman v. Soper 473 Watkins v. Morgan 873 v. Vince 405 Watson v. Clark V. King , trial of V. Threlkeld V. Wace 468, 469. 192. 194. 378. Watson's case 39. 210. 376. 450, 466. 479. 921. 923. Watts V. Lawson V. Thorpe Waugh V. Russell Wayman v. Hilliard Waymell v. Read Weall V. King Weaver v. Prentice Webb v. Fox v. Plummer 764. 766, V. Potts V. Smith 398. Wedrington's Dr. case Weeks v. Maillardet V. Sparke 241, 251, 252. 255. 260. 266. 268. Welborne's case 301. Weld V. Hornby Weller v. Governors of Found- ling Hospital 49. Wells V. Fisher V. Fletcher V. Jesus College 253, V, Maccarmick V. Porter Welsh V. Nash — ■ V. Richards V. Seabone West V. Andrews West's case Westbeer's case W^estlake v. Collard Weston V. Ernes V. Vaughton Wharcham v. Routledge Whatley v. Fearnley Whateley v. Manheim Wheatley v. W^illiams Wheeler v. Atkins v, Lowth 28, 914. 588. 359. 512. 358. Wheeling's case Whettuck V. Waters 227. 234. Whiley's case Whitaker v. Bank of England ' W^hitamore v. W^aterhouse W^hitbourne v. Pettifer i Whitbread v. May age 461 598 214 381 380 451 925 366 397 858 366 758 856 607 472 767 253 408 554 858 254 270 304 746 .396 171 173 259 555 737 556 806 479 857 918 576 .366 755 603 668 80 515 188 561 619 423 596 494 197 97 819 717 TABLE OF CASES CITED. \xi% Page Whitcomb V. Whiting 400, White V. Cayler 17*2 ■ V. Driver 468 ' V. Lisle 252, 253. 255. 271 286. 314 ' V. Sayer 764 ' V. Wilson 4€8. 756. 855 White's case 430 Whitehead V. Scott 197. 199.444 668 V. Tattersall 406. 555 V. Tucket 405 Whitehouse v. Atkinson 98 Whitehouse's case 170 Whitelock V. Baker 224. 241. 276 ' V. Musgrove 661 Whitford V. Tuting 443. 664 Whitmore v. Wilks 49, 396 W^hitnash v. George 311. 411 Whipple V. Manley 758 Whitter v. Cazalet 824 Whitwell V. Bennett 855 Wickes V. Clutterbuck 556 W^igglesworth v. Dallison 764, 765 Wightwick V. Banks 613 Wigley V. Jones 805 Wild's case 29. 426 Wildman v. Glossop 855 Wilkins v. Ford 89 V. Wingate 382 Wilkinson v. Adam 745 V. Lutwidge 383 — ■ V. Payne 463 Willaume v. Gorges 479 Williams v. Bartholomew 382 — V. Bridges 396 V. Davies 833. 843 — V. East India Company 439. 463. 828 V. Goodchild 254 — ■ V. Innes 405 V. Johnson 167 V. Jones 771 V. Lord Bagot 527 V. Mundie 178.180 — V. Mannings 674 V. Stevens 90 V. Taylor 353 V. Thomas 839 V. Williams 468. 480. 561 V. Yovmghusband 680 Williams, Trial of 9 Williamson v. Allison 853 Page Williamson v. Thompson 252 Willingham v. Matthews 783 Willis V. Bernard 197. 201. 328 V. Peckham 785 Willis's case 435. 5.36 Wilson V. Bowie 444 V. Clerk 863 q. t. V. Gilbert 862 V. Hirst 152. 154 V. Hodges 468 V. Mitchell 378 V. Rastall 174, 175, 176, 177 178, 179 V. Kogers 806 V. Turner 409 V. Wilson 480 Wilton V. Webster 201 Wiltshire v. Sidford 473 Wiltzie V. Adamson 375 Winch V. Winchester 772 Winkworth's case 494, 496 Winsmore v. Greenback 172 Winter v. Wroot 201 Wishaw V. Barnes 120 Withen v. Law 246. 595 Withers v. Harris 516 Withnell v. Gartham 256. 747 Woltr V. Oxholm 536 Wood V. Braddock 400 V. Dodson 5& V. Drury 657 V. Strickland 66& V. Veal 474 Woodbridge v. Spooner 756 Woodcock's case 170. 295. 297. 299 302, 303, 304. 569 Woodcraft v. Kinaston 612 Woodford v. Ashley 859' Woodley v. Brown 385. 607 Woodnorth v. Lord Cobham 286 323, 324 WoodrufTe v. Williams 632 Woodward v. Cotton 611 V. Larking 387 Woodyer v. Haddon 474 Woolett V. Roberts 390. 557 Wooley V. Birkenshaw 474 V. BrownhiU 253. 315. 474 685 V. Roe 351 Woolway v. Rowe 260. 416. 418 Worrall v. Jones 47. 51, 52. 158 Worsley v. Filisker 950 Ixx TABLE OF CASES CITED. Wnoton V. T?arfon Wright V. JJcckctt V. Court V. Lett lor V. iVctlierwood V. J'auliii V. Pindar . V. Rudd V. Sharpc V. Doe d. Tath 438. 441. Wright's case Wright on the demise V. Littler Wrottesley v. Bendert Wyatt V. Bateman V. Gore V. Wilkinson Page 836, 837 902. 904. 907 "215 221 469 59 949 253 948 am 198. 354 517. 561. 572 428. 899 of Clymer 292 398 659 193 Wyat V. Hertford, Marquis Wych V. Meale Wyndham v. Chetwynd Wynne v. Anderson V. Tyrwhit Yabsley v. Doble Yates V. Carnsew V. Harris V. Leijih Yeates v. Pirn Yewin's case York V. Blott Young V. Bairner V. Lynch V. Smith V. Wright Zouch Peerage case 229. William, pedigree of Pago of, 389 399 144. 151 59 312. 331. 652 407 858 288 331 769 913 124 85. 154 811 394. 396 409. 852 283. 601 229 TREATISE THE LAW OF EVIDENCE. With a view to assist the proceedings of Courts of Justice, Object of on questions of a fact submitted to them for their decision, the Evide^nce" law has laid down certain rules respecting the admissibility and plan of and effect of evidence, and the order in which it should be adduced. These rules constitute the Law of Evidence, and are the subject of the present Treatise ; the object of which will be to ascertain the most convenient and surest means of arriving at truth, upon controverted questions of fact. The evidence adduced before juries upon controverted questions of fact, is of tAvo kinds, viz. 1st, Parol evidence, consisting of the viva voce examination of witnesses ; and 2ndly, Written evidence. In treating of these species of evi- dence, the present volume will be divided into three parts. In the first part, it is proposed to consider the subject of proof by witnesses, and the principal rules of law relative to evi- dence in general ; in the second part, to consider the subject of written evidence ; and in the third part, it is proposed to consider certain branches of the law of evidence, chiefly of a practical nature, such as the means of enforcing the atten- dance of witnesses, the order in which the evidence should be adduced, the mode in which witnesses should be examin- ed, bills of exceptions and demurrers to evidence. n\ *PART THE FIRST CHAPTER I. OF THE EXCLUSION OF EVIDENCE IN CERTAIN CASES, AND OF INCOMPETENCY FROM DEFECT OF UNDERSTANDING. ff'el'idence 'The parties to a suit are not admitted to adduce every de- jn general, scriptioii of evidence which, according to their own notions, may be supposed to elucidate the matter in dispute ; if such a latitude were permitted, evidence might be often brought forward, which would lead rather to error than to truth, the attention of the jury might be diverted by the introduction of irrelevant or immaterial evidence, and the investigation might be extended to a most inconvenient length. In order to guard against these evils, the law interferes, in the first in- stance, by limiting and regulating the admissibility of evi- dence. It is the province of the Judge presiding at the trial, to de- cide all questions on the admissibility of evidence ; it will be for the Judge also to decide any preliminary question of fact, however intricate, the solution of which may be necessary for enabling him to determine the other question of admissibility. Upon this subject, it has been said by Mr. J. Buller, (1) that whether there is any evidence is a question for the Judge, but whether the evidence is sufficient is a question for the jury. Exclusion The law excludes various descriptions of evidence as im- of certain , ii ^ • ■> • i ^ ^ witnesses, proper to be submitted to the jury, and rejects altogether the ofexdusTon^ testimony of certain persons, who are on this account termed incompetent witnesses. The rules affecting the competency [ *3 ] of witnesses, *are chiefly founded on the consideration, that, in the generality of instances, the testimony of those witness- es, whom the law deems incompetent, would mislead juries ; and it is obvious that the propriety of the exclusion in each particular case must be judged of, according to the constitu- tion of the tribunal to which the evidence is submitted, and with reference to the mode of procedure before it. For this (1) Carpenter's Company v. Hay- questions of fact, judges occasionally, ward, Doug. 37.5. N. B. P. 297, in practice, take the opinion of the jury where the admissibility of evidence de- upon them, pends upon the decision of intricate Ch. l.J Of Exclusion of Evidence^ Sj'c. purpose, it is necessary to refer to the difference which exists between judicial investigations and the ordinary transactions of hfe, more especially with regard to the space of time al- lowed for decision, the temptations to deceive, the facilities of deception, and the consequences of deciding incorrectly. It is true, it may happen in some particular instances, that the legal tests of incompetency may affect very slightly, if at all, the credit of a person as a witness, in their application, while there may be other grounds of objection, though not strictly legal, which would cast the strongest suspicion upon his tes- timony. But it Is to be remembered, the established rules for the exclusion of witnesses, do not profess to be infallible tests of credibility ; and further, that the propriety of the rules of evidence must be judged of by their general tendency and their general practical result. The cases, in which a witness is deemed incompetent to give any evidence at all, are fourfold : viz. 1st, When the witness labours under a defect of understanding. 2d, Where he refuses to take an oath, or from defect of religious princi- ple does not acknowledge its sanction. 3rd, Where his char- acter is infamous in consequence of a conviction of certain crimes. And 4thly, Where he is interested in the matter in issue. Every person, not affected by any of these objections, will be competent to give evidence. *' I find no rule less comprehensive than this," said Mr. Justice Lawrence, in the case of Jordaine v. Lashhrooke, " that all persons are admis- sible witnesses, who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest." We shall now proceed to examine separately the several causes of incompetency, which have been mentioned. *First of Incompetency from want of Understanding: [ *4 1 Persons who have not the use of reason are from their in- <^«"erai firmity utterly incapable of giving evidence. It is a rule, also, which we shall have occasion to consider more particu- larly in treating of the second ground of incompetency, that all witnesses must be examined upon oath ; ( 1 ) upon this principle, persons of defective or disordered intellect, not be- ing able to comprehend the nature and obligation of an oath, ought to be excluded ; and even if the form of an oath were administered to them, no reliance could be placed on their (1) Post, Chap. n. Of Exclusion of Evidence [Ch. 1. Nutural de- ficiency. Disordered intellect. [*5] Immaturity of intellect. JChildren. Statements. Such persons are, therefore, exckidcd as incom- petent witnesses. Incompetency from defect of miderstanding may arise, where there is a natural deficiency of the intellect, as in the case of idiots : or Avherc the intellect has become disordered, as in the case of insane persons ; or where the intellect is im- mature, as in the case of children. An idiot is one who, from his nativity, is by a perpetual in- firmity non compos mentis ; (2) such a person is wholly in- capable of giving evidence. But persons born deaf and dumb, (although it has been said that in presumption of law they are to be considered as idiots,) (3) are not on this account incompetent : and if it appear, that they have sufficient un- derstanding and know the nature of an oath, they may give evidence by signs, through the medium of an interpreter ; (4) or if they are able to write, their testimony will be taken in writing, as the more certain mode. (5) Persons whose intellect have become permanently and per- petually deranged, are incompetent ; but lunatics, and other persons who are afflicted with occasional fits of insanity, al- though ^incompetent while under the influence of their mala- dy, may yet be witnesses in their lucid intervals, if it be satisfactorily sheAvn that they have sufficiently recovered the use of their understandings. (!)(«) There is no precise age fixed, at which children are exclu- ded from giving evidence. At one time, indeed, their age was considered as the criterion of their competency, and it was a general rule that none could be admitted under the age of nine years, very few under ten ; (2) which in some ca- ses would operate to deprive them of the protection of law against acts of violence. (3) A more reasonable rule has since been adopted, and the competency of children is now regula- ted, not by their age, but by the degree of understanding which they appear to possess. In Brazier's case, on an in- dictment for assaulting an infant five years old with intent to ravish her, all the judges agreed, that children of any age might be examined upon oath, if they were capable of dis- tinguishing between good and evil, and possessed of sufficient (2) Co. Lit. 247, a. (3) 1 Hale. P. C. 34. (4) Ruston's case, 1 Leach, Cr. Ca. 455. (5) Moriisoa v. Lennard, 3 Car. &. P. 127. (1) Com. Dig. Testmoigne, A. 1. (2) R. V. Travers, 2 Stra. 700, and cases Lri East, P. C. 442. 1 Hale, P. C. 302. 2 Hale, P. C. 278. (3) B. N. P. 293. (a) Idiots, lunatics, and madmen, are not competent witnesses, and this must be shown to the court by proof, like any other charge of incompetency. Living- ston c. Kiersted, 10 .1. R. 362. The defendant's incapacity to contract, may ia general, be given in evidence under the general issue. luslruction. Cli. 1.] from Defect of Understanding. i knowledge of the nature and conseijuences of an oath, but that they could not in any case be examined without oath. (4) (6) This is now the established rule, as well in criminal, as in civil cases, and it applies equally to capital offences as to oflences of an inferior nature. According to this rule the admissibility of children de- Keiii^ious pends not merely upon their possessing a competent degree of understanding, but also, in part, upon their having receiv- ed a certain share of religious instruction. A child whose intellect appears to be in other respects sufficient to enable it to give useful evdience, may, from defect of religious in- struction, be wholly unable to give any account of the na- ture of an oath, or of the consequences of falsehood. (5) In criminal cases, where a child, who is a necessary witness for the prosecution, appears not ^sufficiently to understand the na- [ *6 J ture and obligation of an oath, a judge may, in the exercise of his discretion, and for the purposes of justice, postpone the trial, in order that the child may be in the mean time proper- ly instructed. (1) But an application to postpone the trial up- on this ground ought properly to be made, before the child is examined by the grand jury ; at all events before the trial has commenced ; for if the jury are sworn, and the prisoner is put upon his trial before the incompetency of the witness is discovered, the judge cannot discharge the jury, but should direct an acquittal. (2) When a child from defect of understanding or instruction is unfit to be sworn, it follows as a necessary consequence, that any account, which it may have given to others, of the transaction, ought not to be admitted. On an indictment therefore for a rape on a cliild five years old, where the child was not examined, but an account, of what she had told her mother about three weeks after the transaction, was given in evidence by the mother, and the jury convicted the prisoner, principally as was supposed on that evidence, the judges, in a case reserved for their opinion, thought the evidence clearly (4) 1 Leach, C. C. 199. 1 East, P. Williams, 7 Car. & P. 320. C. 443. B. N. P. 293. 4 Bl. Com. (2) R. v. Wade, 1 Ry. & Mo. C. C. 214. S6. In this case the witness was an (5) Cases of this nature might with adult, possessed of suflicient intellect, propriety be referred to the head of in- but wholly without religious instruction, competency from defect of religious Qi^arf, as to the exercise of the discre- prmciple, which is the subject of the eii- tion of the court in postponing the trial suing chapter. in a case of this nature. (1)1 Leach, 430, n. But see R. v. (6) If an infant appear, on examination of the court, to possess a sufficient sense of the wickedness and danger of false swearing, he may be sworn, al- though of never so tender an ago. Commonwealth v. Ilutchinson, 10 Mas*. 225. I Of Exclusion of Evidence, Even in times of ignorance and barba- rism, they were used in common with a number of other direct appeals to the Deity, which, in consequence of the progress of knowledge and civihzation, have been long since laid aside. In those early times, oaths were in constant use, not only in judicial investigations, but upon every occasion of the least de- gree of importance, and as they were more frequently used, they were more grossly violated. This very lax applica- tion of oaths led to a still further abuse, by the indiscriminate introduction of them into ordinary language. We have at length become sensible of the impro- priety of such unnecessary and profane appeals to the Deity. Official and ex- tra-judicial oaths are almost entirely abolished by recent statutes ; more es- pecially by the late act of the 5 & 6 W. 4, c. 62. Although the judicial oath has, in consequence of these improvements, become more impressive, from its com- parative unfrequency of occurrence, and therefore better adapted to answer the object for which it is administered, yet its propriety and advantages have been of late frequently called in question, and many have considered, that it might be safely dispensed with. On this subject, see Mr. Erskine's remarks on Williams' trial, 26 How. 665. Religious Principle. 9 sider binding on their consciences, Jews have accordingly been sworn in our Courts from a very early period, on the Pentateuch, and they take the oath with the head covered, (1) A Mahometan is sworn upon the Koran. (2) The de- position of a Gentoo has been received, who touched with his hand the foot of a Bramin. (3) A Scotch covenanter, and a member of the Kirk, have been allowed to take the oath, by holding up their hands without kissing the book ; (4) and upon the same principle all persons may be sworn ac- cording to the ceremony which is sanctioned by their partic- ular religion or sect. (5) Whatever be the form, the mean- ing of the oath is the same. It is an appeal to God, calling upon him to witness what we say,and invoking his vengeance, if what we say be false. (6) The same indulgence, that is allowed in the case of diifer- ent religions and sects of religion, has also been extended to the conscientious scruples of individuals, who have objected to be sworn in the manner usually adopted by persons of their own religion or sect. Thus in an old case, where a witness, who was Vice Chancellor of Oxford, refused to be sworn in the usual form by laying his right hand on the book and kiss- ing it, Glin, C. J. ruled, that he might be sworn by having the book laid open before him and holding up his right hand. (7) " In my opinion," said the Chief Justice, ^'he has taken as strong an oath as any other witness." And in a late case, a witness who professed Christianity, but objected to be sworn on the *Gospels, was allowed to be sworn on the f *11 1 Old Testament, on his stating that he considered an oath so administered to be binding on his conscience. (1) A Jew who has made no formal renunciation of Judaism, but pro- fesses himself to be a Christian, may be sworn on the Gos- pels. (2) And in a case where a new trial was moved for, on the ground that a witness, who had been sworn on the Gospels in the usual manner, had since been discovered to be- a Jew, the Court of Common Pleas refused the rule, and were unanimously of opinion, that the oath taken was binding on the witness, both as a moral and religious sanction, (o) (1) 1 Aik. 40, 42. VVille?, 543. f5) Omichund v. Barker, 1 Atk. 21. Cowp. 389. (6) rorinu jusjurandl verbis differt, re (2) Morgan's case, 1 Leacli, C. C. convenit ; liuno cnim scnsum habere de- 61, per field, J., delivering the opinion bet, ut Deus invocelur. Grotius, L. 2. of all liie judges. Cowp. 390. Faclii- c. 1.1, s. 10. na V. Sabine, 2 Stra. 1104. (7) Dulton v. Colt, 2. Sid. G. (3) See Orniehund i). 15arker, 1 Atk. (I) lldmonds u. Howe, Ily. & IMo, 21. In li. V. Alsicy, O. B. Lep. 1S04. N. P. C. 77. Peake's Evid. 138, 5th edit.) a Chinese (2) R. v. Gilhain, 1 Esp. N. P. C. was sworn by da>ihiMg ri saucer on the 285. ground after he had concluded the oath. (3) Sells «. Iloare, 3 Bro. & B. 232. (4) Per Gould, .)., in Mildrono'.s cnse, 1 Leach, C. C. 459. Mee v. Rcid, I Peake, N. P. C. 22. 2 IQ Of Examination from Defect of [Cli. 2. But besides perfonning a ceremony of the importance just described, the law requires, tliat the witness sliould acknowl- edge the efKcacy of such a ceremony as an obhgation to speak the truth. It is therefore necessary, in order that a witness's Religious testimony should be received, that he should believe in the belief. existence of a God, by whom truth is enjoined and falsehood punished. Without such a belief, one sanction, which the ,. . law regards as a material security for the truth of evidence, prmfi'i'ie* that of the fear of Divine punishment invoked by the witness upon himself, is wanting. It is not sufficient, that the wit- ness believes himself bound to speak the truth from a regard to character or to the common interests of society, or from a fear of the punishment which the law inflicts upon persons guilty of perjury. (4) Such motives have indeed their influ- ence, but they are not considered asafiibrding a sufficient safe- guard for the strict observance of truth : our law, in common with the law of most civilized countries, requires the addition- al security afforded by the religious sanction implied by an oath, and, as a necessary consequence, rejects all witnesses who are incapable of giving this security. Atheists, therefore, and such infidels, as possess not any re- ligion that can bind their consciences to speak the truth, are excluded from being witnesses. {5){a) Doubts formerly exis- r #12 1 ted with *respect to Jews, and the inhabitants of countries pro- fessing religions different from Christianity. Lord Coke says generally, that it is an objection to a witness if he be an infi- del, (1) under which denomination he intended to comprise Jews as well as Heathens. (2) And Serjt. Hawkins thought, that a witness who believed in neither the New nor the Old Testament, was incompetent. (3) But Lord Hale was of a different opinion, and strongly points out the unreasonableness of excluding indiscriminately all heathens from giving evi- (4) Ruston'9 case, 1 Leach, C. C. (1) Co. Lit. 6, h. 455. (2) 2 Inst. 506. 8 Inst. 165. 1 (5) Bui. N. P. 292. 1 Atk. 40, 45, Atk. 43. Willes, 541. 48. Gilb. Ev. 129. (3) Hawk. P. C. b. 2, c. 46, s. 143. («) He who openly nnd deliberately avows, that he has no belief in the exist- ence of a (iod, fnrnislies clear and satisfactory evidence again.st himself that he is incjip:il)lu of being bound by any religious tie, to speak the truth, and is un- worthy of credit in a court of justice. 4 N. H. R. 444 ; Per Peck, J. 1 Yerg. R. 224 ; IS J. R. 98 ; 5 Mason, 16. .\ person who denies all punishment after this life, and who believes that men will be punished in this life for their sins, but immediately after death be made happy, is not a competent witness. Alwood tJ.Welton, 7, Conn. N. 66 — I )ae:gott. The doctrine as now established in this country and in England, is, that if a person believes in a God, the avenger of falsehood, in a future state of rewards and punishments, ho may be a witness, and not otherwise, id ; Jackson V. Gridley, 18 J. R. 98 ; Curtis v. Strong, 4 Day 51. In liunscom v. Hunscom, 15 Mass. 184, disbelief in a future state of existence was said to be an objeclion to the credit only and not to the competency of the witness. See also Noble v. The People, 1 Breese's (Illi.) R. 29. Cli. 2.] Religious Principle. 11 (ience. (4) All doubts on this subject have long since been set at rest, and it now may be considered as an established rule, that not only Jews, but infidels of any country, believing in a God who enjoins truth and punishes falsehood, ought to be received as witnesses; (5) and they are to be sworn, as we have already seen, according to the form which is author- ized by their country or religion. The only means of ascertaining the competency of a wit- Mode of as- ness, with reference to religious principle, is by examining reiiscious the party himself. The proper mode of examination for this ''^''*^'^- purpose, it is said, is not to question the witness as to his par- ticular opinions, but to inquire generally, whether he believes in the existence of a God and in a future state. (6) And in a case before Duller, J., where a witness, who had been sworn in the usual way, was asked, whether he believed in the Gos- pels on which he had been sworn, the question is said to have been overruled. But although a witness may not be ques- tioned as to his particular religious opinions, he may be asked, whether he considers the form of administering the oath to be such as will be binding on his conscience. The proper time for putting this question is before the witness has been sworn ; but if the question has been inadvertently omitted, it may be asked afterwards. (7) If, in answer, the witness state, that he considers the oath *binding, he cannot be further asked, [ *V^ ] whether there be any other mode of swearing more binding on his conscience than that which has been used. For the witness, in stating that he considers the oath to be binding on his conscience, affirms, in effect, that in taking that oath he has called God to witness, that what he shall say will be the truth, and that he has imprecated the Divine vengeance on his head, if what he shall afterwards say should be false ; and having done that, it is perfectly irrelevant and unnecessary to ask any further questions. ( 1 ) The evidence of (Quakers, and the members of other sects ,^^f™'^li°" who refused to take a formal oath in any shape, was for along oath— Qua- time held inadmissible. By the stat. of the 7 & S W. 3, c. Moravians. 34, the solemn affirmation of Q,uakers was admitted to have the same effect as an oath in civil cases, but they continued to be excluded from giving evidence in criminal cases, until a very recent period. This disability has now been entirely removed, by stat. 9 Geo. 4, c. 32, by which Q-uakers and Moravians are allowed to give evidence upon their solemn (4) 2 Male, P. f'. 279. does not believe in a future sinte, may (5) Hee Oiriicliund v. Barl, of exclusion. exciuMuu. 14 Incompetennj from Tnfymy of Character, SjW (Cli 3. remarked, that tliere is tho less danger in admitting tliis testi- mony, because the very circumstance of the conviction oper- ates as a safeguard, by forewarning the jury to be cautious in [ *10 ] receiving *the statements of the witness. The distinction be- tween the oflences, tlie conviction for which does, or does not, disc[uahfy a witness, is often purely technical ; whilst the modes, by which the competency of infamous witnesses may be restored, shew that the objection to such witnesses, which is capable of being removed by circumstances wholly immate- rial to their credit, is not of a very substantial nature. It is to be observed that, in practice, witnesses are rarely rejected on the ground of infamy, — in consequence of the diffi- culty of establishing the incompetency by producing formal evidence of the conviction and judgment, especially where there is no previous notice that the particular witness is to be produced ; besides, that there are various modes by which witnesses, who have incurred this disqualification, may be restored to competency. The cross-examination of the wit- ness, as to the fact of his previous conviction, generally pro- duces all the effect of discrediting him, which can properly be desired. In treating of the subject of incompetency from infamy, it is proposed, in the present chapter, to consider what offences incapacitate ; what is the effect and extent of the incapacity ; how incompetency from infamy of character is to be proved ; and how a witness who has incurred this disability, may be restored to competency. The next chapter will treat of the evidence of accomplices, informei's, and self-discrediting wit- nesses, a subject, connected with this branch of the law of evidence, which, from its importance, appears to deserve a separate consideration. [ *17 J *1. What Offences Incapacitate. What ofT.-ii- There are many offences which our law considers such ciiatel ^''* blemishes on the moral character, as to incapacitate the party convicted from giving evidence. Of this kind are treason, '^'d^fT P^oeniunire, and the whole class of offences which come under ■ ■ the denomination of felony. ( 1 ) Petty larceny was formerly an exception to the rule which disqualifies for conviction of felo- ny 5 (2) but the distinction between grand and petty larceny having been abolished, and the latter being made subject to all the incidents of the former, (3) that exception now no lon- ger exists. ( 1 ) Co. Lit. fi, b. Com. Dig. Testm. see 2 II. P. C. 277. Pendock v. Mack- A. 5. 2 II. P. C. 277. Fortesc. Rep. iiider, VVilles, 667. 209. Jones v. Mason, 2 Stra. 833. (3) Stat. 7 & 8 Geo. 4, c. 29, s. 2. Wali. Ford, 2 offences. The adoption of the class of Salk. 690. Pendock, v. Mackinder, offences, falling within the technical de- Willes, 6t)6. 2 Wils. 18. S. C. Fortesc. finition of felony, as one of the criteri- Rep. 209 Priddle's case, 2 Leach, ons of incapacity, may be objected to 496. on the ground, that there are many of- (10) The various criterions of legal fences, of a more serious description, infamy which have been enumerated in falling under the definition of niisdemea- the text, may, perhaps, appear to be not nors, which do not produce incompeten- allogether satisfactory. With respect to cy. In the present day, the distinction perjury, it may be thought by some, between several felonies and misdemea- that a man who, from motives of inter- nors is purely technical. With respect est, has been led to violate an oath in to some of the particular misdemeanors, one instance, is unfit to be trusted, even which produce incompetency, they ap- where he has no assignable motive for pear distinguishable from others which giving false evidence : or rather, that have not the like effect, rather upon the some latent motive ought always to be ground of authority, than on any well suspected, sufficient to counterbalance in defined principle. his mind both the effect of the oath, and (1) 1 Salk. 461. 2 Stra. 1148. (a) Crimen falsi. Conviction of treason, felony, or any species of the crimen falsi, will incapacitate the party convicted from giving evidence while it continues in force, without regard to the punishment. The People v. Whipple, 9 Cowen, 707 ; Commonwealth v. Green, 17 Mass. 515. However, there seems to be a difference in the effect of a conviction, in regard to the competency of a witness, where the conviction was in another coun- try, or in another state. Commonwealth v. Green, supra. The Court in tliis case considered, that there was no difference in this respect between any state in this union and any foreign state ; and that, in neither case, is the witness to be excluded, on account of such conviction. In Slate v. Candler, 3 Hawks' R. .'593, the law was held to be otherwise. In Commonwealth «. Knapp, 9 Pick. 511, a record of conviction for shop- breaking in another state, was admitted to afl'ect the credit of a witness. Ch. 3. J Incompetency from Infamy of Character, Sfc. 17 their affidavits have been received for the purpose of exculpa- ting or defending themselves. (2) Upon the same principle, before Quakers had been made competent witnesses in crimi- nal proceedings, their affirmations were admitted upon a criminal charge against themselves. When a witness becomes incompetent from infamy, the ef- fect is, for some purposes, the same as if he were dead ; and if he has been attesting witness to any written instrument be- fore conviction, proof may be given of his hand-writing. (3) 3. Proof of Incompetency. Incompetency arising from conviction of an infamous crime, judgment, can only be established by proof of the conviction and judg- ment in due course of law. The fact of the party having committed the offence cannot be proved vica voce. (4) nor will even an admission by the witness himself of having been confined in a gaol *for felony, (1) or of his having been guil- r #20 1 ty of perjury, make him incompetent, however it may effect his credit. (2) The rule, most commonly laid down, is that a conviction makes the witness incompetent ; but it is not to be understood, that incompetency arises from the conviction alone, for that may have been quashed, on motion in arrest of judgment. (3) It is necessary to prove the judgment as well as the conviction, and this must be done in the usual way by the record or a copy. (4) (o) The proceedings must appear to be regular, and when they have taken place in another Court, it must appear from the record that it was a Court of competent jurisdiction. A doc- ument, purporting to be an indictment and conviction, is im- perfect as a record without a caption ; since the caption shows by what authority the indictment was found ; and the indict- ment must state all circumstances essential to constitute the offence. (5) (2) Dnvis and Carter's case, 2 Salk. (3) Lee v. Gansell, Cowp. 8. Gilb. 461. Charlesworlh's case, cited by the Evid. 129. Corn. Dig. Testm. A. 5. court in Walker v. Kearney, 2 Stra. Sutten v. Bishop, 4 Bur. 2283. 1148. (4) 8 East, 78. See ;;o»f, Proof of (3) Jones v. Mason, 1 Stra. 833. Judgments. (4) 1 Sid. 51. (5) Cooke v. Maxwell, 2 Stark, N. (1) R. u. Castell Careinion, S East, P. C. 183. 7f). (2) R. V. Teal, 11 East, 309. Rands ». Thomas, 5 M. if S. 244. (a) All the books which treat of this subject, are positive and express in the declaration, that the party objecting must be prepared with the record ; and as some of them express it, come with it in his hand ; or he shall not be heard against the competency of the witness — not only must infamy be proved by record, but the objection shall not be heard without a record. Per Parker, C. J. in Conimonvvealtb t;. Green, 17 Mass. 515. 3 18 Incompetency from Infamy of Character , ^c. [Ch. 3. 4. Competency how restored. A person convicted of an infamous crime, being thus disa- bled from giving evidence, it remains to be considered by wliat means the disabiUty may be removed. The competency of the witness may be restored : — 1st, By reversal of the judgment, or of the other proceedings pro- ducing the disquahfication ; 2ndl3r, By pardon ; and 3dly, By enduring the punishment awarded for the oifence. Is^ Reversal of the Judgment. Due proof of the judgment having been given by the par- ty objecting to the witness, the opposite party may shew that such judgment has been reversed on a writ of error. So, if f *21 1 tlic dis^quaUfication arise from outlawry for treason or felony, the reversal of the outlawry may be shewn in like manner. In a case where it was objected, that the witness had been attainted by a statute, which subjected him to the penalties of an attainder, unless he surrendered before a certain day, (which is a kind of parliamentary outlawry,) the objection was met by shewing, that the witness had surrendered conformably with the act ; and a record of a proceeding, commenced on the part of the crown, and defended on the part of the wit- ness by a plea of surrender, which the Attorney General con- fessed to be true, was allowed to be conclusive proof of the fact of the surrender within the limited time. (1) This how- ever was not evidence in the nature of a reversal of the at- tainder, but its effect was to shew, that the penalties of the act had never been incurred by the witness. Idly. Pardon. The competency of a witness may be restored by a pardon palrdoii°'^ from the crown under the great seal. Whatever doubts were formerly entertained upon the subject, (2) it has long since been settled, that a pardon not only takes off every part of the punishment, but also clears the party from the legal disa- bilities of infamy resulting from his offence. (3) A pardon is said to make the witness a new creature, and to give him a new capacity ; the crime may indeed be urged against him (1) I Old I,ovat's cnse, 9 St. Tr. 632, 82. Rookwood's ease. Rep. temp. G65, fol. ed. S. C. 18 How. St. Tr. Holt, 685. 4 St. Tr. 682, fol. ed. 1004, 1011. 13 Howell's St. Tr. 185. Crosby's (2) See per Lord Coke, Prown v. case, Lord Raym. 3.9. Lord Castle- Crashaw, 2 Rulst. 154. Hy Doddridge, main's case, Sir T. Raym. 379. 2 H. .1., in H;irris v. White, Palm. 412, P. C. 278. Com. Dig. Testm. A. 5. Latch. 81, and other dicta cited 2 Harg. Reilly's case. Leach, .^ilO. Lord War- Jur. Arg. 263. wick'scase, 13 Howell's, St.Tr. 1003.. (3) Cuddingtoti t). Wilkins, Hob. 67, Ch. 3.j Incompetency from Infamy of Character, c^v. 19 as affecting his credit, but his competency is entirely restor- ed, (a) This rule must however, as it seems, be understood subject to one qualification. A pardon will always restore competen- cy, when the disability is a consequence of the judgment, ac- cording to the ordinary rules of law ; but where the disabil- ity is annexed to the conviction of a particular offence by the express words of a statute, it is laid down that a pardon will not in such a case ^restore competency, for the prerogative of [ *22 ] the crown is controlled by the act of the legislature, (1) Thus, if a man be found guilty on an indictment for perjury at com- mon law, a pardon from the crown will make him a good wit- ness ; but if he be convicted of perjury, or subornation of perjury, on the stat. 5 Eliz. c. 9, he will not be rendered com- petent by a pardon, for the statute expressly provides that he shall never be admitted to give evidence in any Court of Re- cord, until the judgment be reversed. In order to prove a pardon, it must be produced under the great seal. And if the pardon is conditional, the performance ''araon"^ of the condition ought to be shewn, (2) for on that depends all its efficacy. Thus, where the pardon is on condition of transportation for a number of years, the witness is not com- petent before the expiration, or other lawful determination, of the term. (3) Where a warrant is granted under the sign manual, coun- tersigned by a principal Secretary of State, for a free or con- Pardon un- ditional pardon of a person convicted of felony, his discharge '^^ *'?° from custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, will have the same effect as a pardon under the great seal, in regard to the felony for which the pardon is granted. (4) The restoration to competency, by means of a pardon, pro- bably proceeded on the ground of a presumption, that the par- don was granted in consequence of the error of the court, which pronounced the conviction ; because as Courts of Jus- tice are not infallible, there may be perfect innocence, not- withstanding a legal conviction of guilt. (.5) Pardons are (U 2 II. p. C. 278. R. r. Hreepp, (3) Ziiti. Burridge's case, .3 P. Wms. 2 SalU. 514. 1 Lord Rrtym. 25(5, W. 485. See Badcock's case, Pmss. & Ry. C. R. c. Ford, 2 Halk. 690. Crosby's Cr. Ca. 248. case, 2 Salk. 689. B. .\. 1'. 292. (4) Stat 7&8G. 4,c. 2S, s. 13. Hawk. h. 2, c. 46, s. 112. R. v. War- (5) See Mr. Il.irgrave's Tract on ilie den of the Fleet, Rep. temp. Holt, 13.'>. efteet nf tlu; King's pardon for Perjury. Jfnort. 3 Salk. 135. 2 U.-ngr. .fur. Arg. and 2 il.ile, 278. (2) IJawk. b. 2, c. 37, s. 45. Crosbys case, 5 Mod. 15. Ca) Comtnonwealth w. Green, 17 Mas'?. 515. .\ nolle prosequi is neither a pardon nor acquittal. Conimonwealili l\ Wlieeler, 2 .XJass. 172. See 7 Pick I'T. 20 Incompetency from Infamy of Chajrtcter, (^'c. [Ch. 3. not unfrequently granted for the purpose of procuring the ev- idence of a witness as to some offence, which might other- wise go unpunished. Thus the crown has the power of sup- plying evidence, or withholding it ; and convicts, in the hope r #23 I of receiving a pardon, *may be tempted to exaggerate and strain their evidence. There is danger, that the course of public justice may thus be interrupted ; and, in point of cred- ibility, such a witness must be regarded in the same light (if not worse), after a pardon as before. (1) It has happened, that, for the purpose of a single prosecution, no less than five convicts have been pardoned, thus escaping the punishment due to their crimes : — whereas, if such evidence could be used without a pardon, it would be more free from suspicion, and the ends of Justice would bO more effectually attained. 3dly. Effect of enduring the Punishment for the Offence. The restoration of competency, by suffering the punish- siaiute 9 mcut awarded for the offence, depends, at the present day, up- Gpo. 4, c. on the provisions of the stat. 9 Geo. 4, c. 32. Before the sz, $. 3. passing of this act, the endurance of the punishment in many cases operated to restore competency, but the law upon this subject was involved in some confusion, in consequence of the recent extensive changes effected in the criminal law of the country. By the 3rd sect, of this statute, after reciting that it was expedient to prevent all doubts respecting the civ- Felonies. jj rights of pcrsons convicted of felonies, not capital, who had undergone the punishment to which they had been adjudged, it is enacted, " that where any offender, hath been, or shall be convicted of any felony, not punishable with death, and hath endured, or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the pun- ishment so endured hath and shall have the like effect and consequences as a pardon under the great seal, as to the felony whereof the offender was so convicted. Provided always, r ^2A 1 that nothing herein contained, nor the enduring of such pun- "- ^ ishment shall ^prevent or mitigate any punishment, to which the offender might otherwise be lawfully sentenced on a sub- sequent conviction for any other felony." We have already seen that a pardon under the great seal operates as a complete restoration of the competency of a wit- (1) This doctrine, of the restoration gard to the evidence of Dangerficld, 7 of a witness's credit by a pardon, ap- 8t. Tr. 296, 1034, 1083. But Lord pears to be of iiioderii origin. Lord Holi, after the Revolution, appears to Coke, 2 Bulstr. 154, is an authority have firmly established the doctrine, against it, and the maxim was " Poena Crosby's case, 12 Howell's St. Tr. r29(j. potest tolli, culpa perennis erit." There It was debated till 16i)6 in Rookwood's is considerable llueluation of opinion case, 1 3 Howell's St. Tr. 183. See 2 upon the subject, in the trials arising out Hale, 278. 2 Salk. 690. Fitzg. 107. of the Popish Plot, particularly with re- 1 Lord Raym. 39. Sir T. Rayai. G39 Ch. 3.] Incompetency from Infamy of Character, S)'c. 21 ness, who has been convicted of a disquaUfying offence. And since the above enactment, the endurance of the punishment awarded will have precisely the same operation in all cases of felonies not capital. A separate provision is introduced in the same statute, rel- Misdemea- ative to misdemeanors, by sect. 4, Avhich is as follows : " And no"- whereas there are certain misdemeanors, which render the parties convicted thereof incompetent witnesses, and it is ex- pedient to restore the competency of such parties, after they have undergone the punishment ; be it therefore enacted, that when any offender hath been or shall be convicted of any such misdemeanor, (except perjury or subornation of perju- ry,) and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, such offender shall not, after the punishment so endur- ed, be deemed to be by reason of such misdemeanor an incom- petent witness in any court or proceeding, civil or criminal." This enactment expressly restores to competency, in all cases, except perjury or subornation of perjury, persons convicted of misdemeanors, after suffering the punishment awarded by their sentence. Questions may sometimes arise, as to what will amount to Endurance, an endurance of the punishment, within the meaning of the statute. In a case of this nature, which arose upon an enactment of a similar description in a statute now repealed, (1) where a witness had been convicted of grand larceny, and sentenced to transportation for seven years, but had been confined for that time in the hulks and then discharged ; it was held, that such confinement under the sentence of transportation restor- ed his compe*tency, and the judges thought that the circum- [ *25 ] stance of his having twice escaped for a few hours each time, made no difference, as he had been brought back and confin- ed for the remainder of the term. (2) (1) Badcock's case, Russ. & Ry. C. ted punishments should operate as a par- C. 248. don, and remove all incapacities. But (2) In ancient times competency was these enactments were confined to cler- resioied after conviction of any otience gyable oHences, and as the privilege of which admitied of benefit of clergy by the clergy, at common law, extended purg:itic»n before the Ordinary. The only to capital felonies, and not to petty Stat. 18 Eliz. c. 7, 9. 3, abolished pur- larcenies or misdemeaimrs, persons con- gation, and enacted, that afier allowance victed of these minor otiences remained o( clergy, and burning in the hand, the incompetent, notwithstanding they might offender should be forthwith delivered have endured the sentence of the law. out of prison : and it was held upon this This inconvenience was in part removed statute that the burning in the hand sub- by the stat. 31 Ceo. 3, c. 35, which slituted lor purgation, produced the same enacted, that no person should become eflect as puigation in restoring compe- incompetent by reason of a convicliua tency. By various subsequent statutes for petty larceny. J5y the 7 & 8 (ieo. 4, other punishments were substituted ia c. 28, s (i, benefit of clergy was abol- lieu of burning in the hand, and it was ished ; and by the 7 &, 8 Geo. 4, c. 29, provided that the suflering such substitu- s. 2, the distinction between grand and 22 Incompetevcij from Lifainy of Character, c^'c. [Ch. 4. CHAPTER IV. OF THE EVIDENCE OF ACCOMPLICES, INFORMERS, AND SELF-DIS- CREDITING WITNESSES. Section I. Of the Admissibility of Accomplices. It has been shewn in the preceding chapter, that a witness is not incompetent from infamy of character, unless a convic- tion and judgment are proved against him, though he may Gonerai himsclf admit that he has been guilty of an infamous rule. crime. And it is also a settled rule of evidence, that a wit- [ *2G ] ness called on a cri*minal prosecution will not be incompe- tent, on the ground that he has been an accomplice with the prisoner at the bar, in the particular crime which forms the subject of the indictment, [a] i^''ivide°i're With rcspcct to auy objection that might be made against oCaccom- the reception of the evidence of accomplices, on the ground p ices. ^£ ^j^g admitted infamy of their character, there appears to be Distinction ^^ distinction between an accomplice, who acknowledges between that he has participated in the commission of the crime with cer3' which the prisoner at bar stands charged, and any other wit- other per- nggg ^y]^Q admits that he has been guilty of a similar crime sonsofinla- -i- rf ■ t^i ■ r ^■ inous char- ou a diiierent occasion. But the testimony oi an accomplice luferiiv a H ^^ usually givcu uudcr an express, or implied promise of par- iaterest. doii : soiuetimes, in the expectation of receiving a reward on the prisoner's conviction ; — and this peculiarity in the situa- tion of an accomplice, undoubtedly, appears to furnish a much stronger ground of objection to his evidence, than exists with petty larceny was abolished, and the lat- the nature of punishment, or on tl)e ter made subject to all the legal inci- ground of a regenerating effect of pun- dents of the former. The alterations Ishment upon the moral feehngs of the introduced by these enactments gave rise offender : in eitlier point of view, the to the Stat. 9 Geo. 4, c. 32, s. 3 and 4, principle is not justified by sound rea- the provisions of which are inserted in soning or by experience. On the gener- the text. rtl subject of the incompetency of wit- It does not seem clear, whether the nesses from infamy, see a Treatise on principle of restoration to competency, the Incompetency of Witnesses by 11. by suffering a sentence, has proceeded ^\^hitcolnbe, Esq., A. D. 1824. on the ground of incompetency being in (a) The People v. Whipple, 9 Cowen, 707 ; Commonwealth v. Knapp, 10 Pick. 492 ; Brown v. Commonwealth, 2 Leigh's R. 769 ; Byrd'scase, 2 Virg. Ca. 490. The evidence of accomplices, has at all times been admitted, either from a principle of public policy, or from judicial necessity, or from both. Per Duer, J. 9 Cow. II. 707. In Byrd's case supra, the court gave a very decided opinion on tiie competency of an accoinplice as a witness, at any time before bis conviction. Sect. 1.] Incompetency from Infamy of Cliaracter^ 6^0. 23 regard to witnesses whose conduct has been equally guilty, but who do not give their evidence from the same interested motives. It has however long since been settled, that an un- convicted accomplice is not an incompetent witness, although he may have had a promise of pardon or reward, on conditioR of giving evidence against the prisoner. (1) The evidence of accomplices has therefore been at all times Accompii- admitted, and its admission has been supported on the ground cescomije- of public policy, and indeed of necessity, on account of its "^"'' being scarcely possible to detect conspiracies, and many of the Avorst crimes, without their information. In Charnock's case (2) Lord Holt, in his address to the jury, says, '' Conspir- acies are deeds of darkness as well as of wickedness, the dis- covery whereof can properly come only from the conspirators themselves ; and the evidence of accomplices has been allow- ed good proof in all ages, and they are the most proper Avit- nesses : for *otherwise, it is hardly possible, if not altogether [ *27 ] impossible, to have full proof of such secret contrivances." In answer to an objection of the prisoner, that '' although an ac- complice was a legal witness, he was not a good one," Lord Holt, adds, " the credit of what he says, as in all other cases, must be left to the jury, who are judges of the matter of fact, and of the credibility of witnesses." The object of admitting the evidence of accomplices, is in objen of order to effect the discovery and punishment of crimes, which admunng Eccompli* cannot be proved against the offenders, without the aid of an ces. accomplice's testimony. In order to prevent this entire failure of justice, recourse is had to the evidence of accomplices, and they are admitted to give evidence for the crown, either un- der an express promise of pardon, offered upon certain condi- tions by special proclamation, in the Gazette, or otherwise ; Express or or, more commonly, under an implied promise of pardon, on '"^p'Seti condition of their making a full and fair confession of the pardon, whole truth. (1) In the former case, accomplices who com- ply with the proposed conditions, are entitled to pardon as a matter of right ; in the latter case, they have an equitable ti- tle to be recommended to mercy, on a strict and ample perfor- mance of the condition, on which they are admitted as wit- nesses, to the satisfaction of the presiding judge. This equi- Equitable table right cannot be pleaded in bar, or be in any manner set pardon°ef- fect of. (1) Tongue's case, Kel. 17. 1 II. in Despard's ease, 28 How. St. Tr. 4S8. \\ C. 303, S. C. Layer's case, 10 St. (1) See Rudd's case, Cowp. 389. Tr. 259. 19 How. St. Tr. 373. S. C. The practice of admitting the evidence Hawk. r. C b. 2, c. 46, s. 135. Wil- of accomplices appears to have arisen les, 423, 425. 3 Esp. 68. 4 East, 180. from the ancient doctrine of approve- Say. 289. R. V. Rookwo«d, 4 St. Tr. rneat which has been long since obso- 681. lete. See as to Approvement, 2 Hale, (2) 4 St. Tr. 594. S. C. 12 How. i». C. 227, c. 29. Cowp. Rep. 3a4. 1454, referred to by Lord Elienboiough 24 Incompetency from Infamy of Character^ ^w [Ch. 4. up as a legal defence to an indictment against them for the same offences with respect to which they have appeared as witnesses against others, though it may be made the ground of a motion for putting off their trial, in order to allow time for an application to the proper quarter. (2) With regard to other otl'cnces with which the prisoner at the bar is not charg- ed, an accomplice can derive no advantage from such equita- ble claim to a pardon : the claim must be considered as limit- ed to the particular offence, for the prosecution of which his testimony is admitted. (3) [ *2S ] *If an accomplice is himself separately indicted for the I'rnciice.as game oflencc, this will not affect his competency before con- to adimiting . i-t\ -\ r • ■ • • accompli- victiou ; (1) and even after conviction he is not incompetent, Separate uiilcss judgment has been passed upon him ; for it is not the imiictmeiit. coiiviction but the judgment, that creates the disability. It is not a matter of course, to admit a person charged with the commission of a crime, as a witness against his associates, not even after he has been allowed to give evidence before the committing magistrate ; but if his evidence is deemed to be absolutely necessary in support of the prosecution, the pro- per course is to apply to the court, for permission to send him as a witness before the grand jury ; and it is in the discretion of the judge, under all the circumstances of the case, wheth- ,. er he will grant or refuse an order. (2) Where it is intended Accomplice . °. t ■ i i • i ■, • ^ jointly in- to make this application, the accomplice ought not to be inclu- dicted. (jg(j jj^ ^j-^g indictment ; but where he has been included with his confederates in a joint indictment, he may still be used as a witness in some cases with the consent of the court. (3) Thus, in a prosecution for a conspiracy, a verdict of acquittal may be taken against some of the defendants before the open- ing of the case ; and the defendants so acquitted may be cal- led as witnesses for the prosecution. (4) And there seems to be no objection to the same course being adopted, with the permission of the court, in cases of felony. So also, if an ac- (2) Rudd's case. Cowp. 339. 118. Bath v. Montagne, cit. Fortsc. (3) Lee's case, Russ. & Ry. Cro. Car. Rep. 247. It was formerly tliouglit, 361. Brunton's case, Rdss, & Ry. 454. from analogy to the ancient doctrine of It is entirely in the discretion of the approvement, that an accomplice sepa- judge in these cases, whether he will re- rately indicted for the same offence, commend the accomplice to mercy. S. could not give evidence against the oth- C. As the accomplice is entitled to no ers, unless he had first pleaded guilty to protection in respect to other offences, he the indictment against him ; Sir P. is not bound to answer questions relative Cresby's case, 1 Hal. P. C. 303. to such offences on his cross-examination; (2) It is usual for the judge to grant West's case, O. B. Sessions, 1821. See the application on the representation of post. Examination of Witnesses. It is the counsel for the prosecution, that the not usual to admit accomplices who are evidence would otherwise be insufficient charged with other felonies. to substantiate the charge. (1) Case of Bilbou and others, 2 H. (3) See infra, competency of parties P. C. 279. 1 II. P. C. 305. Gunston to the suit. and Downs, 2 Rol. Abr. 685, pi. 3. (4) R. v. Rowland, Ry. & Mo. N. P. Hawk. b. 2, c. 46, s. 99. Gilb. Evid. C. 401. Sect. l.J Incompetancy from Infamy of Character, Sj'c. 25 complice, who is jointly indicted with others plead guilty, and is fined by the court, and pays the fine, (in a case where such fine may be imposed by way of punishment, and where the suti'ering *the punishment restores ccmpetency) he may be r ^q.t i called as a witness against the other prisoners. (1) '- If an accomplice, after havina: confessed the crime, and af- ^^reach of '■ ' . , "-' . . ... coniracl. ter havmg been received as a witness against his associates, breaks the condition on whicli he has been admitted, by refus- ing to give full and fair information, the court may direct a bill to be presented forthwith to the grand jury against him ; or if they are discharged, may commit him to prison, and he may be tried and convicted on his own confession. (2) On the trial of a person for a misdemeanor in receiving sto- au^ "jjoces- len goods, under the repealed statute, (22 Geo. 3, c. 58,) which sary. (a) authorized proceedings against the accessary, notwithstanding the principal felon might not have been convicted, or might not be amenable to justice, the party who had committed the theft, but had not been convicted, was held to be a competent witness for the prosecution, (3) and the same doctrine would be applicable to the case of a receiv^er, prosecuted for a sub- stantive felony under the provisions of the statute now in force on this subject. (4) As the infamy of an accomplice's character does not render adm^ssibi'e^ him an incompetent witness for the prosecution, it follows, for prisoner, upon the same principle, that he will be also a competent wit- ness on behalf of the prisoner, notwithstanding he may be himself charged on a separate indictment, unless he has been actually convicted and sentenced. (5) And upon a joint in- dictment against several prisoners, when there is either no evidence whatever, or very slight evidence against one of them, the *court, in the exercise of its discretion, sometimes [ *30 ] will direct a verdict to be given for him, and, upon his acquit- (1) A witness so circiinistanred is also it vvus decidi^d that on hh indict- eoiiipetent for the othyr dereiidiiiits, see iiienl on iIk; «l:it. 4 G. 1 , c. 11, for tnU- R. V. Fletcher, 1 Stra. 683, {■posl,com- iiig a reward to help to the dis(;overv petency of parties to suit,) and the prin- of stolen goods, tlie principal who had ciple is the same in regard to liis corn- not been ronvmted might be called as .1 jifitency for the prosecution. witness ; Wild's case, 2 East, P. C. {■2) K.v. Burley, 2 Stark. Evid. (2 782. See 7 & 8 Geo. 4, c. 29, s. 5S. edit.) 12 n. (r). (4) 7 & S Geo. 4, c. 29, s. 54. (3) llaslarn's case, 1 Leach, (Jr. Ca. (5) 2 Hale, P. C. 280. 2 Roll. Abr. 467. Price's case, ibid. 46K, n. (1). 685. Fortsc. 24G. Palram's case, 2 East, P. C. 782. So (a) In cases of felony, the principal is a conjpetent witness against the accessary, and instances have occurred in New York, in which they h.ivft been admitted. Per Duer, .1. People v. Whipple, 9 Coweii, 707. In Commonwealth i'. Phillips, 16 Mass. 42:-), it was held, that the principal in a capital case, must be convicted before the accessary could be put on trial. In the case of principal and accessary, the acqidttul of the principal it seems is admissible in evidence for the accessary, though not coiiclusivc. 'J'he People V. Buckland, 1.3 Wend. .592. See the case cfMn^bee v. Avery, 18 J. H. 3o2. 20 Iiiruinpelcnci/ from Infamy of Characler, Sf'c. [CIi 4. tal, admit him as a witness for the other prisoners. (1) In such a case, however, the witness stands wholly absolved iVom the charge, and can no longer be considered in the light ol" an accomplice. Section H. Of the Confirmation of Accomplices. Accomplice Since accomplices are competent witnesses, it appears to not corrob- ^ >■ . , . . \ '■ orated. follow as a ncccssary consequence, that it their testimony is believed by the jury, a prisoner may be legally convicted up- on it, though it be unconlirmed by any other evidence. It is the peculiar province of the jury to determine upon the de- gree of credit to be attached to any competent evidence sub- mitted to their consideration ; and it has accordingly been laid down in many cases as a settled ride, that a conviction obtained upon the unsupported testimony of an accomplice is Praciicere sti'ictly legal. (2) quiniiprcor- g^^ great iniustice would result, if it were the practice of roborntion. . . ~ .'' n ■ n r juries to convict upon the unsupported evidence of accompli- ces, whose testimony, though admitiecl from necessity, ought always to be received with great jealousy and caution. For upon their own confession they stand contaminated with guilt ; they admit a participation in the very crime, which they en- deavour by their evidence to fix upon the prisoner ; they are sometimes entitled to reward upon obtaining a conviction, and always expect to earn a pardon. Accomplices are there- fore of tainted character, giving their testimony under the strongest motives to deceive ; and a jury would not in gener- al be justified, in giving to such witnesses credit for a consci- entious regard to the obligation of an oath. Sometimes they may be tempted to accuse a party who is wholly innocent, r ^o-i -1 in order to screen themselves or a guilty associate ; and if the L "^ J *pnsoner has been their participator in crime, they may be chsposed to colour and exaggerate their statement against him, with a view to hide their own infamy, or, by obtaining his conviction, to protect themselves from his vengeance, and se- cure the expected benefit (1). The doctrine, therefore, of a (1) 2 Hawk. p. C. c. 46, s. 98. R. v. Denman, 7 C & P. 152, and per AI- Ridder, 1 Sid. 237. See posf , compe- derson, 7 C. & P. 273. lency of parties to the suit. (1) See Lord Hale's remarks oa (2) R. V. Atwood, Leach, Cr. Ca. Tongues' case, 1 Hale, P. C. 304. In .521. 7 T. R. 609. R. }.. Durham, the earlier state trials the protection and Leach, Cr. Ca. 538. 1 Hale, P. C. countenance afforded by the courts to 303. See per Lord Ellsnborough, R. v. accomplices, spies, and informers was Jones, 2 Campb. 132. 31 Howell's St. often carried to great lengths ; and pris- Tr. 325. 7 T. R. 609, S. P. Per Lord oners were sometimes tauntingly asked, Sect. 2.] Incompetency from Infamy of Character, t^'c. 27 legal convictiou upon the uiisu])ported evidence of an accom- plice, has been greatly modified in substance and effect ; and it has long been considered, as a general rule of practice, that the testimony of an accomplice ought to receive confirma- tion, and that, unless it be corroborated in some material part by unimpeachable evidence, the presiding judge ought to ad- vise the jury to acquit the prisoner. (2) It has been laid down, that the practice, of requiring some Nature and confirmation of an accomplice's evidence, must be considered o°"ihe^p'ra"- in strictness as resting only upon the discretion *of the presi- »'<^e. ding judge. (1) And this, indeed, appears to be the only L ^^ \ mode, in which it can be made reconcilable with the doctrine disc'reiionTf already stated, that a les^al conviction may take place upon J"'^g*''°''^^ the unsupported evidence oi an accomplice. Jiut it may be law. observed, that the practice in question lias obtained so much sanction from legal authority, that a deviation from it on the part of a judge, in any particular case, would, at the present day appear singular and of questionable propriet)^ Although the judge does not in express language, declare, that a case de- pending on the unconfirmed evidence of an accomplice, is in- sufficient in law to warrant a conviction, but merely advises the jury not to place credit on the evidence ; yet, as it is not likely an instance should arise, in which the jury would dis- regard the advice so given, and convict the prisoner, the sub- stantial result appears to be nearly the same, as if the practice had depended upon a rule of law, instead of being the exer- cise of the discretion of the presiding- judge. The only dis- whellier they thought the king would the subJRCt, and tliat the credibility of bribe his wiine.sses ; see Langhorne's an accomplice, whether confirmed or case, 7 St. Tr. 446. The hmguage of unconfirmed, appeals to have been trea- Lord Holt, in the trials for the Assassi- ted as a question for the jury. See nation Plot, may probably be thought, Tongue's case, 6 How. St. Tr. 226, at the present day, too favourable tow- per Sir O. Bridgman. 1 Hale, P. C. ards accomplices ; see particularly Char- 334. See also R. v. Charnock, 12 How. nock's case, 12 How. St. Tr. 14-54. St. Tr. 1454. In this case almost the The exordium of Lord Howard to his only material witnesses were accompli- evidence in Algernon Sidney's case, is a ces. The observations of Lord Holt, as curious specimen of the hypocrisy of an to their competency ha\e been cited in accomplice. the text, ante, p. 27, (and they were (2) See the case.s collected and stated said by Lord Lllenborough, in R. v. in the text, infra, ef seq. On the sub- Despard, to comprise in a few words ject of the Evidence of Accomplices, see the good sense and sound law on the a tract by the present Lord Chief Baron subject.) In It. tj. Iiudd, Cowp. 3'39, of Ireland, published in 1836, which Lord Mansfield .-^ays, " the single testi- conlains an elaborate examination into niony of an accomplice is seldom of the origin and history of this practice, sutiicieiit weight with the jury to con- According to the view of this learned vict the ofiender. The subse(|uent ca- vvriter, the practice of requiring confirm- ses are stated in the text, post. The ation cannot be traced back more than practice of requiring confirmation lias half a century. And he observes, that been staled not to extend to misdemean- ir. the earlier cases which have been re- ors. See per Gihbs, Alt. Gen., 11. v. ferred to as authorities for the practice, Jones, 31 How. St. Tr. 315. nothing can be found which leads to tha (\) See per Lord Lllcnborougli, R. v. inferenca of any general regulation on Jones, 2 f amjib. I 32. 2S J/ironipcti'tiri/ from I/i/aint/ of (J/ui/uiftcr, i^'c. [Sect. Extent of corrobora- tion. Confirma- tion of some material part suffi- cient. [*33 J Confirma- tion as to identity of prisoner. Authorities. tiiiclion appears to bo, tliat if the judge wore to submit a case of this nature to the jury without any such recommendation, and a conviction ensued, — or if a jury were to convict in op- position to the recommendation of the judge, it could not prop- erly be said in either case, consistently with the authorities on the subject, that the conviction would be illegal. From the anomalous nature of the rule of practice requir- ing confirmation, more especially from the circumstance that it is considered in law to rest merely upon the discretion of the presiding judge, and that it appears in fact to have origi- nated in the exercise of such discretion, it might be expected that some difference of opinion would arise as to the na- ture and extent of the necessary confirmation. It is clearly unnecessary that the accomplice shoidd be confirmed in cveri/ circumstance which he details in evidence ; for there would be no occasion to use liim at all as a witness, if his narrative could be completely proved by other evidence free from all suspicion. (2) The *rule upon the subject which has gener- ally been laid down is, that if the jury are satisfied, that he speaks truth in some material part of his testimony, in which they see him confirmed by unimpeachable evidence, this may be a ground for their believing, that he also speaks truth in other parts, as to which there may be no confirmation. (1) So far all the authorities agree ; but the point, upon which a dif- ference of opinion and of practice appears to have prevailed, is as to the particular part or parts of the accomplice's testi- mony, which ought to be confirmed. In some cases it has been considered, that the confirmation ought to be such as affects i\ie person of the prisoner, and connects him directly with the crime ; but in other cases this description of confirmation has been considered unnecessary, and it has been held, that confirmation of the accomplice in other parts of his testimony, which do not affect the identity of the prisoner, may be sufficient to entitle the accomplice to credit, and to warrant the judge in leaving the case to the ju- ry without a recommendation to acquit. In the first case, iu which this question appears to have , been expressly raised, two prisoners had been convicted on the evidence of an accomplice, who was confirmed as 1o the cir- cumstances attending the offence, but not as to the identity of the prisoners, and the judges were unanimously of opinion, that the conviction was good, upon the general ground already mentioned ; namely, that a prisoner may legally be convicted (2) See report of the Trials at York, on Special Commission, 1813, pp. 16, 17, 50, 150, 165, 201, pariiculariy the charges of Thompson, C. B., in R. ». Swallow, and of Le Blanc, J., in R. v. Mel lor. (1) See authorities cited in the pre- ceding note, and Despard's case, 28 How. St. Tr. 4SS. and per Lord Ellen- borough, 31 How. St. Tr. 325. R. v. Barnard, I Car. & P. 88. Sect. 2.] (Jf the Evidence of Accomplices, d^'c. 29 upon the unconfirmed evidence of an accomplice. (2) In a case occurring shortly afterwards, a similar decision took placc^ and, as it appears, on the same ground. At the trial the court observed, that the practice of rejecting an unsupported accom- plice was rather a matter of discretion with the judge, than a rule of law ; and the case having been left to the jury, and the prisoner convicted, *the judges afterwards held the con- [ *34 ] viction good. (1) The same general doctrine was subsequent- ly laid down in the case of R. v. Jones (2) by Lord EUenbo- rough, who there referred to a case, in which the judges were of opinion, that four prisoners had been properly convicted up- on the testimony of an accomplice, whose evidence had been confirmed as to three of the prisoners, but not as to the fourth. And in the report of the York Trials under a special commis- sion, it is laid down by C. B. Thompson, that " confirmation need not be of circumstances which go to prove, that the ac- complice speaks truth with respect to all the prisoners, (when several are tried,) and with respect to the share they have each taken in the transaction ; for if the jury are satisfied, that he speaks truth in those parts in which they see unim- peachable evidence brought to confirm him, that is a ground for them to believe that he speaks also truly with regard to the other prisoners, as to whom there may be no confirma- tion." (3) Again, in a later case, where an accomplice was confirmed as to one of several prisoners jointly indicted, but not as to the others, Bayley, J., told the jury, that if they were satisfied from the confirmation, that the accomplice was a cred- ible witness, they might act on his testimony with respect to the prisoners, as to whom he had not been confirmed, and they were convicted. (4) In Birkett's case, (5) on a case re- served, the judges were of opinion, that an acccomplice did not require confirmation as to the person charged by him, if he Avere confirmed in the other particulars of his statement. And in a very recent case at the Old Bailey, before Lord Den- man, Mr. Justice Park, and Mr. Baron Alderson, when the counsel for the prosecution stated, that he should not be able to confirm an accomplice, who was to be called as a witness, with regard to the persons of the prisoners, but only as *to the [ *35 ] (2; R. V. Auvool!, Le;ic!i, C. C. 521. plicH w;is legal evidence, but thougiit it 7 'i". 11. (j.);), ciied ante too dangerous to suffer a nonvictioii to d) R. «. Duvliani, L(i;icli, C. C. 53-!. Like pl.ico on such testimony, and the II was, however, said in this case that prisoners were acquitted, ihe witness (a receiver) was rather an (2) 2 Campb. X'i'l. 31 How. St. 'l"r. acce!-fl:iry .-ifler the fact tlinii an accoin- .325. piice in ibe fact. In 11. v. Sinitti and (3) R. v. Swallow, IIow. St. 'I'r. another, reported in a note to tlie last 971. ca-e, where the only witness atiectin" (4) R. v. Dawbar, 3 StarU. N. P. ('. tlie prisoners was an accomplice, the 34, and see R. v. IJarnard, I Car. &, 1'. Conrf admitted the rule of law, that the 88. Per lIullocU, li. uncorroborated testimony of an accom- (5) Russell & R., C. C. 252. 30 Of Die Evidence of Accomplices, 4*c. [Ch. 4. general circumstances of the case, liOrdDenman said, he con- sidered, and he beheved his learned brothers concurred with him, that it was altogether for the jury, Vvdio might, if they ])ieased, act on the evidence of the accomplice without con- firmation ; but observed, that a person so situated, would not be likely to receive any great degree of credit. (1) iiesuii of The authorities, above stated, appear to shew, as it has iiuiiicriiics been before observed, that the rule, which requires some con- aj.new- fj^.,^-,.^j,)n Qf r^j^ accomplice to be given, is to be considered not as a strict rule of law, but as a practice depending on the discretion of the presiding judge. And these authorities also shew, that judges, in the exercise of their discretion, have generally, if not always, considered that some confirmation ought to be given, but have not considered evidence, atfecting the identity of the prisoners charged, to be essential for the purpose of confirmation. Recent de- On the Other hand, there are several recent decisions, in which judges, in the exercise of their discretion, have thought that confirmatory evidence of identity ought to be given. Thus in the case of R. v. Addis, (2) an accomplice, who was the principal witness, was corroborated as to collateral facts, none of which tended to connect the prisoner with the accomplice, or with the transaction : Mr. Justice Patteson ob- served, that the corroboration ought to be as to some fact or facts, the truth or falsehood of which would go to prove or disprove the offence charged against the prisoner. And in a subsequent case, (3) where it was proposed on the part of the prosecution, to confirm the accomplice as to the mode, in which the felony was committed, Mr. Justice Williams said, [ *36 ] that something ought to be proved *which would tend to bring the matter home to the prisoners, and that confirming the ac- complice as to the mode, in which the felony had been com- mitted, was not enough to entitle his evidence to credit so as to aftect other persons ; that in fact this would be no confirma- tion at all, since every one would give credit, to a man avow- ing himself a principal felon, for at least knowing how the fel- ony was committed. In a later case, on an indictment against t\vo persons, the same doctrine was laid down by Mr. Baron Alderson, ( 1 ) who pointed out the distinction between confir- mation as to the circumstances of the felony, and confirma- (1) If. r. ITustinj^s, 7 Car. & P. 152. (2) 6 Car. &. P. 388. In this case, ilie evidence for the prose- (3) 6 Car. &. P. 595. R. v. Webb, cution was gone into, alter tlie statement Seethe observation of C. L5. .Toy, on that confirmation could not be given as this and the preceding case. — Preface, p. to the persons of the prisoners : but the iii. prisoners were acquitted, the subsequent (1) R. v. W'lWies, 7 Car. S; P. 272. evidence being contradictory, ratlier than confirmatory of the accomplice. Sect. 2.j Of the Evidence of Accomplices^ ^'c. 31 tion affecting the individuals charged ; the former only proves that the accomplice was present at the commission of the of- fence ; the latter shews that the prisoner was connected with it. In summing up, the Judge observed, that confirmation merely as to the circumstances of the felony, was really no confirmation at all ; that it was true, the jury might legally convict on the evidence of an accomplice only, if they could safely rely on his testimony, but that he always advised ju- ries not to act on the evidence of the accomplice, unless con- firmed as to the particular person charged with the offence. After adverting to the facts of the case, as affecting the two prisoners, the same Judge stated to the jury, that if they thought the accomplice was not sufficiently confirmed as to one, they would acquit that one, and that if they thought he \vas confirmed as to neither, they would acquit both. In another case, (2) where a thief and receiver were jointly indict- ed, the same learned judge expressed his opinion, that con- firmation as to the thief did not advance the case against the receiver. And in a former case of a similar description, where there was a slight confirmation as to the receiver, but none as to the principal felon, Littledale, J., thought the case failed altogether, and that the accomplice ought to be confirm- ed as to the principal, before the jury could be asked to believe the witness's testimony. (3) *From the class of cases which have been last cited, it will ^^esuit of , , . ^ , . , . . Uiese cases. appear, that the recent practice of several judges, m exercis- r #37 ] ing their discretion as to the evidence that ought to be addu- ced, in order to entitle an accomplice to credit, has been to re- quire a confirmation upon some point affecting the person of the prisoner charged : and that when several prisoners are jointly tried, confirmation is to be required as to all of them, before all can be safely convicted. Indeed, it would be diffi- cult to assign a satisfactory ground for requiring confirmation as to the person of a prisoner indicted alone, and dispensing with confirmation as to prisoners jointly indicted : the same reasons, which render confirmation necessary in the former case, appear to require it in the latter ; if a distinction between the two cases were to be allowed, a prisoner's acquittal or con- viction, upon an accomplice's testimony, might depend upon the mere accident, of his being indicted alone, or jointly with others. It will be observed, that it is still laid down by judg- es, even when calling for this personal confirmation, that the jury, if they think proper, may legally convict upon an accom- plice's testimony unsupported ; and that, in the absence of (2) R V. .Alnores, 7 Car. & P. 270. ry to estahli.sh tlie guilt of the principal (3) R. V. Wells, Mood. & Ma. N. W by contiimirig the accomplice as to him, C. 326, the ground of this decision ap- before the qucslioii of the guilt of llie le- pears to have been, that it vvaa nccessa- ceiver could ari;'26. O. B. cor. Lialedale, J., Bollaiid, .1., and Alderson, J. In the work ofC. I» .loy, p. 100, et seq. the learned writer expresses a strong opinion, adverse to the ciiurse pursued in the above case. lie does not, however, refer to the case, but on the contrary states, that the question had not undergone consideration. 11. v. Noakes was decided in 1832, after tlie learned (". Baron's work was written, hut some years before its publication. The (J. Haron refers to the speeches of the J^oliciior General and Mr. Serjeant Best, in 11. V. Despard, 2S How. St. Tr. 428. See on this subject the obser- vations of the writer of tlie anonymous pamphlet upon accomplices before re- i'erred to, as to the trial of the incendia- ries of WJIdgoose Lodge, Dundalk. Spring Ass. 1818, where a house with its inmates was destroyed by fire by up- 5 wards of a Imndred persons, marching m three parties from di>tant points not con- nected with each other, and the accom- plices vvere selected from the different parlies. And, further, on the general .subject, see Sir T. Wiiherington's argu- ment, ■) liow. 176. Discussion in Sa- ver's case, IC How. 158. Sir R. At- kyn's remarks, 9 How. 721, as to the evidence of an indicted accomplice. Murphy's case, 19 How. 702. Sir J. Copley's remarks in Watson's case, 32 How. ,)13. Lord Ellenborough's ciiarge in Watson's case, 32 How. 583. Lord 'I'enterden's ciiarj^e in the cases of the Cato-slreet Conspiracy, 33 How. 6S9. (1) U. «. Neale, 7 Car. & P. 168, per Park,.l. (2) 1!. V. Hargraves, 5 Car. & P. p. 170; and see the cases referred to in sect. 3, aupia. 34 Of the Evidence of Accomplices, &cc. [Ch. 4. and of disclosing them for the benefit of the pubhc. (3) The existence of such original purpose on their part is best evinced by a conduct, which prechides them from wavering or swerv- *40 1 ^"S ^^"°"^ ^*^® *discharge of their duty, if they might otherwise ^ ' be disposed so to do ; as, when the witness voluntarily makes an early disclosure, and thenceforth acts in pursuance of direc- tions given to him, as to the part which he is to bear in the general confederacy. Such a witness is not to be considered in the light of an accomplice, although perhaps, on other grounds, no small degree of prejudice or disfavour may attach to him ; for certainly, no man of honour or right feeling would continue to associate with his companions^ apparently forward- ing the purposes of a conspiracy, with the intention afterwards of betraying, and giving them up to justice. Whatever may be the merit or demerit of this species of conduct on other grounds, such a witness is not, strictly speaking, an accom- plice. (1) In prosecutions under the laws against coining and uttering counterfeit money, the proof of the oflence often rests in a great measure on the testimony of some person, employed by the agents of the mint for the purpose of obtaining the counterfeit coin under feigned pretences. This testimony is usually supported, and very properly, in some material facts, by other unimpeachable evidence. The objection to the competency of informers, on the ground of being entitled to a penalty on the conviction of the offender, against Avhora they give information, will be consid- ered in another part of this work, "ii ^^''"*^his •'^^' J^sti*^^ Lawrence observes, (2) that the constant prac- owir.iis"hon- tice of examining accomplices shews, that the mere circum- *'^'^'" stance of a man's having represented himself as having done things inconsistent with common honesty, is not sufficient to reject his testimony, however it may weaken and impeach it. The maxim of the civil law, nemo allegans suam turpitudi- nem est audiendus, would not admit of such a practice. But this maxim is of a nature so exclusive in its operation, and at the same time so vague and undefined, that our Courts of law have properly rejected it as a rule of evidence. (a) (3) Partofl-ord Elleiiboroujrli's :ul- (1) See 28 Howell's St. Tr. 489. dress to the jury in Despard's ciise, 28 (2) Jordiiiiie v. LashbrooUe, 7 T. R. Howell's St. Tr. 489. 601. (a)In a prosecution for a divorce the paramour may be admitted to prove the adul- tery. Brown u. Brown, 5 Mass. 320 ; Moulton r. Moulioti, 13 Maine, 110. In the first case cited, llie paramour was ollered as a witness to prove the charge, and the Court said he tniglit be sworn ; but if it should a()pear from his testimony that he was the paramour, they shouid recommend to the attorney for the govern- ment, to lay the ca«e before the grand jury, that he niigiit be indicted. If a wit- ness, the court added, they shotild inquire of him with whom the crime was com- mitted. If a witness state a particul::r fact in favor of the respondent, he will be bound, Sect. 3.j Of the Evidence of Accomplices, ^c. 35 *In the case of Walton v. Shelley (1), indeed, which was an J^,'£ni'" action upon a bond, given by the defendant in consideration an insiru" of the plaintiff's dehvering up certain promissory notes, the "p^'.^ -, Court of King's Bench held, that the indorser of one of the lijorser. notes ought not to be allowed to prove the consideration of the note usurious, on a supposed principle of public policy, that no party who has signed a paper or deed, and has, by his signature, given it credit, shall ever be permitted to give testi- mony to invalidate that instrument. This appears to have been the first case in support of such a rule : but the contrary principle seems now to be fully established. In the later case oi Jordaine v. Lashhrooke, (2) this subject was very fully discussed ; and the court there determined, that in an action on a bill of exchange against the acceptor, the payee, who was also indorser, was a competent witness for P^yea. the defendant, to prove that the bill, which was unstamped, and purported to be drawn at Hamburgh, was, in fact, drawn in London, and therefore void for the want of a stamp. Nor is there any distinction with respect to negotiable securities, when the point to be considered is the competency of the witness : for supposing what he has done, in putting such in- struments into circulation, to be ever so great a fraud and ev- er so mischievous, he still is a witness unconvicted of any crime, and without interest, and not more devoid of principle than many who have been mentioned as constantly admit- (1) IT. R. 296. " Testes qui ad- (2) 7 T. R. 601. Ashurst, J. contra. versus fidein suam testationis vacillant, See Jones v. Brooke, 4 Taunt. 464. 1 Hudiendi non sunt," was the maxim of Ves. &. Benm. 208. the civil law. Domat. book 3, tit. 3, sect. 6, art. 12. on his cross examination, lo state ail the circumstances relating to that fact, al- though in 80 doing he may expose himself lo a criminal charge. It is clearly inad- missible to permit a witness to give a partial account of his knowledge of a transac- tion, suppressing all the circumstances, whether the evidence is to be used in favor of, or against the slate. 4 N. H. R. 562. Although a witness cannot be compelled to answer any question which has a tendency to expose him to penalties, or lo any kind of punishment; but if he is willing to make disclosures which involve his own character, and may expose him lo punishment, he is at liberty to do it. In Southard v. Rexford, 6 (,"ovven, 254, which was an action for breach of promise of marriage, the defendant was allowed to agk the witness in general terms, if he over knew of any person having criminal connexion with the plaintiff. The Court said : — " 'l"he witness was not bound to answer the question, so far as the answer would criminate hitnself ; and it was the duty of the court lo iipprise him of hi^ right in ih-il respect." Although the Declaration of Right.s in Ma.ssachusetls provides (I2thart.) that " no subject shall be held lo answer for any crime, &i:. or be compelleil to accuse, or lurnish evidence against himself;" yet in I5ull « Loveland, 10 Pick. 9, the Court decided that a witness may be called and examined in a mailer pertinent to the issue, where his answers will not expose him to a ciiminal prosecution, or tend to subject him to a penally or forfeituie, although they njay otherwise adversely aft'ect his pecuniary interejit. See also 4 G. &, .F. 27:'. ; 4 S. ^ R. 307. A party to a fraud is admitted lo prove the fraud, I Kawle, 141. Subsrribiii witness. 36 Of the Evidence of Accomplices, t^v. [Ch. 4. ted. (3) («.) And this rule up})lies to all cases, civil as well as criminal, in which a witness's character is open to objection from the turpitude or impropriety of his conduct. Thus in an Person hri- ^ictiou uuder the statute 2 Geo. 2, c. 24, for bribery at an elec- I'ed. tioii, a j)erson wlio has received a bribe may be a competent witness against the defendant. (4) And one who has set his name as subscribing *witness to a deed or will, is admissible [ *42 ] to impeach the execution of the instrument ; (1) although his evidence is to be received with all the jealousy necessarily attaching to a witness, who, upon his oath, asserts that to be false, which he has by his solemn act attested as true. (2) Other in- lu au action to recover the price of goods supplied to a ship, stances. against a party whose name appeared on the register as part owner, it was decided, that a witness, upon whose oath the register had been obtained, was competent to prove, that he had inserted the defendant's name therein without his privity or consent ; and the objection, that the witness's evidence was at variance with his oath, only would affect his cred- it. (3) A person, who has joined in an assignment of a ship, is (3) 7 T. R. 611. By this case of was also objected, that he was incompe- Jordaine v. Lashbrooke, the case of Ad- tent from interest, as in case of a con- ams i>. Lingard, 1 Peake, N. P. C. 117. viction he would have been indemnified and some other cases of the same kina under the act. As to this objection, see are overruled. post. (4) Bush i>. Railing, Say. 2S9, cited (1) Lower. JolifTe, 1 Black. Rep. by Lord Mansfield, Cowp. 19f) Mead 365. 7 T. R. 604, 611. 6 East, 19.5. V. Robinson, VVilles, 423, and n. (c) (2) 1 Ves. & Beam. 208. Ibid. 425. Reward v. Shipley, 4 East, (3) Rands v. Thomas, 5 M. & S. 180. Besides the objection arising from 244. the witness's conduct ia these cases, it (a) In this country, the weight of authority seems to be different. Churchill v. Sueter, 4 Mass. 156 ; Fox v. Whitney, 16 id. 118 ; Packard v. Richardson, 17 id. 122. The rule is not confined to actions brought upon the note itself, but to all others, where its validity conies collaterally in question. 4 Greenl. R. 191. But it is confined to negotiable instruments. 9 S. &i R. 236 ; 2 Binn. 165 ; 2 Dall. 1911, and 2 Hawk. R. 235. And it only applies to what occurred bffore the party put his name to the instrument, n»-^^ /"j*-*-- of interest to be urged against the credit of the witness, not against his competency. The reasons in support of the principle of the existing • ■^■^t-o^JO-t rule, may be supposed to be to the following effect. It may be said, common experience shews, that the strict rule of law "' /' is seldom relaxed by allowing persons adversely interested, * especially parties to a suit, to be examined as witnesses, with- 5«^»v~ yx/r^c out manifest .danger of perjury on one side or the other : — that 4^ •} the inconvenience of excluding witnesses, whose interest is of a trifling nature, is a necessary consequence of allowing the objection to prevail in any case ; and that there is no in- consistency in rejecting such witnesses, while others are ad- mitted under the influence of relationship and other similar causes, the reasons for exclusion in the former case, being in- K applicable to ihe latter ; the influence of relationship is va- rious, uncertain and capricious, while that which arises from interest is palpable and universal ; no satisfactory line, there- fore, could *be drawn in the former case, (1) while the lat- [ *45 ] ter admits of a precise and definite rule ; it may be remarked also, that the objection arising from relationship would be ir- r* 1 I removable, while that from interest may, in ordinary cases, ^ m Q v^ be removed by release or payment ; and, further, that a wit- ness biassed only by feeling, gives evidence for another, but one under the bias of his own interest may be considered in some degree as speaking for himself With regard to the ar- y gument, that the objection should be left in every case to the consideration of the jury, who will decide upon the credibili- ty due to a witness, it must be remembered, that a jury is frequently composed of persons unskilled in discriminating between truth and falsehood, ignorant of the real characters Out^*tiA*^ of the witnesses, unable therefore, to judge how far they ■' ^ might be influenced by interested motives, and who have on- ^ ^•'^'^^ ly a very short space of time allowed for deciding upon the (j evidence. The practical inconvenience, it may be said, is by no means so extensive, as might at first be be supposed ; the strictness of the old law having been much relaxed in modern (1) By the civil law relationship, in terest is aholished ; see IVfr. Livings- the ascending or descending line, and ton's Preface, p. 2.55, and Bentham's connection in marriage, are grounds of Rationale of .Judicial Evidence, vol. 1, exclusion. By the recent code of Louis- 139, vol. 5, 34. iana, the exclusion on the ground of in- J v^ 40 Incompetency of Witnesses from Interest. [Cli. 5. o Wa, » Jo f *46 J times : (2) and an interested witness may in general be ren- dered competent by means of a release. Where the interest is trifling, no great hardship can arise from requiring it to be removed, and in proportion as it increases in amount, there is the more reason for rejecting the witness, if his interest be not removed. It will generally happen, that the direct testi- mony of persons excluded for interest, may be supplied by in- ferences from the circumstances of a case : and the practi- cal consequence of the rule often is, that parties come to the trial prepared with unimpeachable evidence of a transaction, when otherwise they would produce witnesses, whose testi- mony might perplex or mislead a jury : so that, upon the whole, evidence is not lost, and its character is improved. *\\\ treating of the incompetency of witnesses from interest, it is proposed to consider the subject in the following order : 1st. Of the rule of incompetency from interest considered with reference to the parties to the suit. 2dly. Of the same rule considered with reference to per- sons, not parties to the suit. odly. Of certain exceptions to the general rule of incompe- tency from interest, — and. Lastly. Of the means by which the competency of an in- terested witness may be restored. CHAPTER VI. OF THE INCOMPETENCY OF THE PARTIES TO THE SUIT. Section I. Of the Rule of Incompetency from Interest considered with Reference to the Parties to the Suit in Civil Proceedings. Principle incom|)o- lency of p^arties. of It has been stated to be the general rule, that all persons, interested in the event of a cause, are to be excluded from giving evidence in favour of that side, to which their interest inclines them. The persons who have the most immediate and obvious interest in the event of a cause, are the parties to that particular cause, and they are therefore in general incom- petent witnesses. In considering this branch of the subject, it will be convenient to treat ; 1st, Of the incompetency of the parties in civil proceedings ; and 2ndly, In criminal pros- ecutions. As we shall presently see, their exclusion in both cases depends on the same general principle. In prosecutions, as well as in actions, the general rule is, that a person inter- (2) A material improvement in llii^ stnlote. See 1> S: 4 W . 4, c. 42, a. 26, respect has been eflected by a recent 21 , post. Sect. 1.] . Rule of IncompeLency from Interest, ^c. 41 ested in the event is not competent. (1) In each case the competency or incompetency of the parties to give evidence depends upon *the question, whether they are, or are not in- [ *47 ] terested in the event. (1) In general , a party to the record, in a civil suit, cannot be a ^*"'^^ '" . . . . Civil suits witness at the trial, for himself or for a joint suiter, against incompe-' the adverse party. (2) (a) '^"'• The incompetency of the parties to the record, to give evi- pf°"n<^ «•* dence in their own behalf, appears to be founded upon the tency. sole ground of their being interested in the event. In deliv- ^"'^^*'*'- ering the judgment of the Court of Common Pleas in a recent case, (3) LordC. J. Tindal says, "No case has been cited, nor can any be found, in which a witness has been refused upon the objection, in the abstract, that he was a party to the suit. On the contrary, many have been brought forward, in which parties to the suit, who suffered judgment by default, have been admitted as witnesses against their own inter- est : and the only inquiry seems to have been in a ma- jority of cases, whether the party called was interested in • .^ the event, or not : the admission or rejection of the witness ^^ t^iJl ' has depended upon this inquiry." So Lord C. B. Gilbert, af- ter stating the general rule, that no man interested in the mat- ter in question can be a witness for himself, observes, that it is a corrollary to be deduced from this rule, " that the plain- tiff or defendant cannot be a witness in his own cause, for these are the persons who have a most immediate interest : and it is not to be expected that a man who complains with- out cause, or defends without justice, should have honesty ^ ^ •— -. . enough to confess it." (4) The parties to the record in civil suits are in general inter- Nature of ested, both in the question at issue in the cause, and in the ^^^ imerest. • (1) J^ee per Cur. 9 B. & C. 5G0. and tlieir incapncity in common with oth- (1) The privilege of pnrties to a suit er interested witnesses, in not being coiupeliable to appear as (2) 1 Vernon, 230. 1 P. Wms. 596. witnesses, is a subject distinct I'rom the Gilb. Evid. 116. present inquiry, and will be considered (3) VVorrali v. Jones, 7 Bing. 398, liereafter. Much confusion lias arisen 399. from inattention to the distinction be- (4) Gilb. Evid. 132, (3d edit.) See iween the privilege of parties to a suit, also per Lord Hardvvicke, 3 Alk. 401. (a) Vinyard v. Brown, 4 M'Cord, 24 ; Commonwealth v. Barton, 10 Pick. 57. And is founded on public policy as well as on the ground of interest. 4 Wend. 457. i^ome exceptions have been admitted ; such as the admission of the party to lay the foundation for the admisision of secondary evidence ; — for example, to prove the death of a subscribing witness to a written instrument. Jackson v. Davis, 5 Cowen, 123 ; 16 J. R. 193 ; 20 id. 144. The affidavit wms admitted to prove the loss of a written instrument. Donelson v. Taylor, 8 Pick. 390 ; 5 id. 26. But the contents of a deed or record cannot be proved by the testimony of a party. Per Wilde, J. 7 Pick. 62. See 1 Aik. 301 and 2 Bail. R. 427, contra. The affidavit of the party is also admissible on a motion for a continuance, even in a capital case. 9 Pick. 497. 6 42 Rule of Inconipcicncij from Interest^ 6fc. [Ch. (s. qucslioii of costs, whicli commonly depends upon the event of the cause. It is not necessary that they should be intei- [ *48 ] estcd *in both these ({uestions : if they are interested in either })oint of view, they will be incompetent witnesses; it seldom, therefore, happens, that they are competent to give evidence. Members of Thc sauic principles, which render parties to the record in- tiou's!'^* competent, when suing in their individual capacities, apply to members of a corporation suing in its corporate name. Thus, in ejectment for lands of a corporation, a member of the cor- poration is an incompetent witness, if he be interested either in the lands sought to be recovered, or in the general funds of the corporation which are liable to the costs of the action. (1) It appears to have been at one time considered, that in cases of this nature, an individual corporator might be admitted, if the interest were of a very trifling nature : thus in the case of the King v. The Mayor and Commonalty of London, (2) and in that of the City of London, concerning water bail- age, (3) it was held, that in a question, concerning the right , of the corporation to tolls, an individual corporator might be ^* II i ^ »' received as a Avitness for the corporation, because, it was said, the tolls would be received for the benefit of the whole cor- porate body, and the interest of any individual must therefore be inconsiderable. But as it has been fully settled by sub- sequent cases, that any interest in the event of the suit, how- ever minute, will render a witness incompetent, the above de- cisions may be considered as overruled. (4) (a) (1) Doe V. Tooth, 3 Y. & J. 19. (4) See Bui. N. P. 290. Burton v. (2) 2 Lev. 231. Hinde, 5 T. R. 174. Doe u. Tooth, 3 (3) 1 Ventr. 351. And see Corpora- Y. &, J. 19. lion of Sutton, Coldfield v. Wilson, 1 Vern. 254. (a) " We constantly find the sovereign both here and in Great Britain, a party in suits in their own courts ; and it was never imagined that all the citizens or sub- jects of the government, were incompetent witnesses in such suits, because the government might be enriched by them." Per .lackson, J. Connecticutt v. Bradisii, 14 Mass. 296. An inhabitant of the State was there admitted in the action in which the State was a party, id. The remote and contingent interest of a corpo- rator of a mere municipal corporation, is not sutScient to exclude him as a witness in behalf ol the corporation And a trustee of such corporation, although an agent of the corporation is admissible. Trustees of the Village of Watertown v. Cowen, 4 Paige's Ch. R. 510. " The rule appears to be, that in questions respecting the rights and immunities of a corporation, the evidence of individuals, who are not individually interested, though members of the corporation, may be received. But where corporators as Buch, have a private interest, they are then incompetent, (Peake's ev. 155.) In the courts of some of the States, it has been adjudged, that the members of an in- corporated society, to whom property was devised for the support of a school, are incompetent to attest the will. Also, where a suit was carried on by a board of cho.sen freeholders, who in their private capacity had advanced money to carry it on, a member of the board was held a competent witness, being interested in his corporate, and not in his private or individual capacity. (Peake's ev. 155, t/i in/tes.'" Per Williams, J. 2 Yerg. R. 167. An inhabitant of a particular place is not admissible to prove a prescriptive right Sect. 1.] I ncompctencij of Parties to the Suit. 43 Where the party to an action lias no interest in the question ^°^"- . in dispute, but is suing as a mere trustee for another person, c"s"" '" he Mill nevertheless, in general, be incompetent, on the ground of liability to costs. (5) (a) A procheinami, or guardian, suing for an infant, is incompetent upon this ground. (6) Persons appointed governors and directors of the poor of a parish, un- der *an act of parliament, which authorizes them to assess [ *49 ] rates on the inhabitants, but, in case of appeal, makes them liable for costs, to be indemnified out of the parochial funds, are not competent witnesses on the trial of such appeal, being individually liable to costs, in the first instance. (1) In a late case, where parochial trustees were empowered by statute to sue in the name of their treasurer, or clerk, and the act con- tained a provision for re-imbursiug such treasurer, or clerk, his costs out of the rates, Lord Tenterden appears to have con- sidered, that, in an action brought in the name of the treasur- er, a trustee was an incompetent witness for the plaintiff, al- though the trustees took no benefit under the statute, and rat- ed parishioners were thereby made competent witnesses.(2) (6) (5) Per Cur. Dowdesvvell v. Nott, 2 Tentenlen's opinion seema to have been, Vern. 317. Davis u. Morgan, 1 Tyrvvh. that the tiustses v.'ere llie substantial 457. 1 C. & J. 87. Bauerman tj. Ra- plaintills ; but qu. whelher tiiey had denius, 7 T. R. 668. Philhps v. Duke any, and what interest in the event :' «f Buckingham, I Vern. 230, and see The witness vv'as admitted, leave being the cases cited l.*? Price, 512. given to move, and a rule nisi for a new (6) Clutterbuck v. Lord Huntingiow- trial appears to have been granted on er, 1 Stra. 50.5. James jj. Hattieid, I tliis, and another point, but tlie final re- Stra. 5^8. Hopkins v. Neal, 2 Stra. suit does not appear. See Fletcher v. 1025. Giib. Evid. 107. Greenwell, 5 Tyw. 31G, where it was (1) R. V. St. Mary Magdalen, Ber- decided, that a parochial director was inondsey, 3 East, 7. competent, under circumstances sinnibr (2) Whitmore v. \Vilk. I'xiiler, scp- araic ver- dict n(.t al- lowed. Separate verdict al- lowed. [ *5S ] ElTect 01 separate verdict, in re^lorin? competency Sec irifra. could not be released. In a snhseqnent case of the same de- scription, before Lord EUenborough, the certificate of the bankrupt was put in, and it was proposed that a verdict should be taken in his favour, and that he should then be called as a witness for the other defendant, but Lord Ellenborough refu- sed to permit this course to be taken, and the witness *was rejected. (1) So in a later case, (2) in which two out of five defendants in an action of assumpsit pleaded bankruptcy, and the plaintitf had proved under their commission, thereby elect- ing to take the benefit thereof, it was held, by the Court of Common Pleas, that these defendants, having substantiated the plea, were not entitled to a separate verdict in their fa- vour, in order that they might be called as witnesses, on be- half of the other defendants who had pleaded the general is- sue. It was contended in this case, that the proposed witnes- ses were disinterested, inasmuch as they were entirely dis- charged from either contribution or costs by the stat. 49 Geo. III. c. 121, and that, having proved their plea, they were en- titled to a verdict ; but the Court held otherwise : Gibbs, C. J. said he knew no law which required a judge to stop in the middle of a cause, to consider separately the case of certain of the defendants, in order that they might be made witness- es for the other defendants. (3) But in a more recent case, at 7iisi pi'ius, where one defend- ant had pleaded bankruptcy, and the other to the merits of the action, and it was proposed, that, on proof of the bank- rupt's certificate, a verdict should be taken for him, in order that he might appear as a witness for his co-defendants, Parke, J. ])crmitted this course to be adopted, and the witness was admitted. (4) The effect of the separate verdict appears to be the same as *that of a nolle prosequi, in putting an end to the proceedings, as far as the bankrupt is concerned, and in depriving him of all immediate interest in the result with regard to the other defendants. It will be seen, presently, that one of several defendants has been frequently made a competent witness for (1) Currie v. Child, 3 Campb. 28.'?. (2) Eminett v. Butler, 7 Taunt. 599. 1 Moore, 332, S. C. (3) 7 Taunt. G06. (4) Hate w. Kussell, Mo. & .Ma. N. P. C. 332. In this ease upon the pre- ceding cases of Raven v. Dunning, Cur- rie XI. Child, and Emmett v. Butler, be- ing cited as authorities against the ad- missibility of the witness, Parke, J. ob- served, that they were no longer in point, in consequence of the altered state of the bankrupt laws, but that he would give no opinion on the cotnpetency of the witness, but would admit him, giving leave to move. No motion was made on the question of competency, and the point appears the same as in Aflalo v. Fourdrinier, 6 Bing. 306, supra 56. It is observable, however, that the cases of (,'urrie v. Child and Emmett v. Butler, both occurred after the 49 Geo. 3, c. 121, (by the operation of which statute it was decided, that the bankrupt be- came competent in Aflalo v. Fourdrin- ier), but these cases seem to have pro- ceeded less upon the ground of incom- tency in the witness, than upon the pro- priety of allowing a separate verdict to be taken in his favour at tlie trial. Sect. 1.] Incompetency nf Parties to the Suit. 53 his co-defendant, by the effect of a separate verdict in an ac- tion of tort, but the case just cited appears to be the first, in which this course has been allowed to be taken in an action on a contract. It would however appear to be difficult to as- sign any good reason for not permitting the practice to be adopted in actions of contract, and it is obvious, that if it were not allowed, it Avould be in the plaintiff's power to deprive the defendant, who had pleaded to the action, of the benefit of the evidence of the bankrupt, by joining issue on the plea of bankruptcy, instead of entering a nolle prosequi, although there might be no pretence for questioning the truth of the plea. We shall now proceed to notice the cases, in which a de- fendant in an action of tort may be rendered a competent wit- ness for his co-defendants, by the effect of a separate verdict at the trial. f 3. As to a Separate Verdict at the Trial. The general principle, which governs the decisions on this aiu'in^/Tr/ subject, is laid down by C. B. Gilbert, as follows : If any per- unnecessa- son, be arbitrarily made a defendant, to prevent his testimony General ' in the cause, the plaintiff shall not prevail by that artifice, principle, but the defendant, against whom nothing is proved, shall not- withstanding be sworn ; for here the defendant does not swear in his own justification, but in justification of another with whom he was unnecessarily joined ; and if this were not al- lowed, the plaintiff might turn all the several witnesses into defendants, and thus might be able to prove what he pleased, without contest. ( 1 ) But this rule must be understood to ap- ply to those cases only, where there is no kind of evidence against such defendant ; for it is laid down, that if there be any evidence against him, though not enough to convict him, in the ^judge's opinion, he cannot be called as a witness, but [ *59 ] his guilt or innocence must await the event of the verdict, the jury being judges of the fact. (1) In order to render a party, so unnecessarily sued, competent Separate to give evidence, the jury are directed to find a separate ver- ken. diet in his favour, and, the cause being then at an end with respect to him, he may be called as a witness on behalf of a co-defendant. Some contrariety of practice has prevailed Practice— .., X ^ .1 -1 f \ t • 1 1 tinieoftak- with respect to the particular stage of the cause, at which the ing verdict, separate verdict may be taken in favour of the party or parties unnecessarily sued. In some cases, the rule laid down has been, that one of several defendants is not entitled to a ver- dict sei)arately from the rest, immediately at the close of the plaintiff's case, but must wait until the whole of the case of (1) r^iilb. Evi.J. 117. Hul.N.P.285. {\)Ibid. 54 Incompetency of Parties to the Suit. [Ch. 6. the other defendants, exclusive of the evidence Vviiich he may- have to give, is entirely finished. (2) But it is now settled, by the unanimous opinion of all the judges, that a defendant against whom the plaintilF has adduced no evidence, is enti- tled to a separate verdict immediately upon the close of the plaintiff's case. (3) [a) (2) Wii>;ht V. Paulin, Ry. & Mo. N. it was not allowed. In the latter case, P. C. 128. Ward v. Bourne, Trin. T. Dallas, J., and P.urrougli, J., distinguish- 1821, MS. IJuxicy u. Berg, 1 Stark, ed the case before the Court fiom the N. P. C. 93. Wynne v. Anderson, 3 cases in actions of tort, on the ground. Car. & P. 596. that in those actions a defendant was (3) Per Parke, .T., 6 Car. & P. 215. allowed to have a separate verdict only Child V. Chamberlain, and see Russell where he could ask it at the close of V. Rider, 6 Car. & P. 416. It has al- the plaintiff's case, in consequence of ready been observed, that the cases, in the absence of any evidence to fix him ; which a separate verdict has been allow- but, in the former case, the plea of the ed to be given for one of several de- defendants could only be established by fendants, in order to enable him to ap- normative evidence offered by them- pear as a witness for the rest have been selves. It is observable that in Emmett for the most part cases of actions of v. Butler, the plea was not the common tort. It is obvious, tiiat the question one of bankruptcy and certificate, but can rarely arise in aclions of contract, that the plaintiffs had proved, and there- except in cases where one of several de- by made their election. Where a plea fendants pleads a pica of personal dis- is special, and involves the consideration charge, such as bankruptcy and certifi- of many facts, it is obvious, that there cate. See artan(i competent for the defendant. (2) Whenever the hus- — liaii'.*^ band of a witness would be incompetent to give evidence on account of his interest in the cause, it necessarily follows that the wife will also be exchided, having an unity of inter- est with her husband ; and the wife of the bail is, therefore, iucomi)etent to give evidence for the party, on whose behalf her husband has become bound. (3) (rt) When a material witness for the defendant has become a bail for him, the court will, on application, allow his name to be struck out, on the defendant adding and justifying another bail instead of the witness. (4) {h) And even at the trial the judge will allow the witness's name to be struck out of the bail piece, if the defendant deposit with the associate,a sufficient sum, as a security for the debt and costs. (5) (c) Of course, immediately the name of the bail has been struck out of the bail piece by competent authority, his liability ceases, and his interest is therefore removed ; but his incompetency will con- tinue, where it does not distinctly appear that his liability has terminated. Thus, where a witness stated on the voire dire that he was bail to the sheriif in the action, and that he did not justify, but that he had not done any thing to get discharg- ed from the liability, which he had contracted by becoming bail; he was rejected as an imcompetent witness. (6) And where an attachment had been granted against the sheriff for (2) Lacon v. Higgins, 3 Stark. N. P. former of these cases, the sum deposited C. 182. was the amount sworn to, together with (3) Cornish v. Pugh, 8 D. & R. 65. a further sum to cover the costs ; in (4) Whalley v. Fearnley, 2 Chit, the latter case double the sum sworn to Rep. 103. Tidd's Pr. (9th Edit) 259. was deposited. (5) Bailiie v. Hole, Mo. &; Ma. N. (6) liawluns v. Inwood, 4 Car. & P. P. C. 289. 3 C. & P. 560. Pearcey 148. V. Flemming, 5 C. & P. 503. In the (a) The rule, which excludes the wife from giving evidence for, or against the hus- band, is founded, in some degree, upon the legal identity of the husband and wife. Per Johnson, J. 2 Bail. R. 575. See Leggett v. Boyd, 3 Wend. 376. (b) See Kimmel v. Schwartz, 1 Breese, 218. In Irwin v. Caryall, 8 J. R. 407, the justice refused to take other security in order to restore the competency of bail to testify; but the supreme court reversed the judgment for that cause. See also 3 Wend. 376. (c) A person who had given his receipt for the property attached upon the original process, was restored by placing in his hands an amount of money equal to the whole amount for which he could, by possibility, be liable on his receipt. Allen v. Hawks, 18 Pick. 79. Such an appropriation of money, does not like a release, extinguish the interest; but the object of the release is, to exempt the mind of the witness from the bias arising from pecuniary interest. " All other interests are overlooked. The member of a corporation, who, perhaps, has been the most effi- cient agent in conducting the controversy, out of which the suit with the corpora- tion has arisen, is yet made competent by the transfer of his stock, or other dis- franchisement, at the moment of the trial, because at the time of testifying, he has no pecuniary interest." id. See Manchciter Co . v. Sweeting 10 Wend. 162 to the same point. i;ii. 7. J Persons not Parties to the Suit. 73 not putting in bail, but which was afterwards set aside on terms, one of *which was, that the attachment should stand [ *81 j as a security, the bail to the sherilf were ruled to be incompe- tent witnesses for the defendant. (1) A surety in a replevin bond is interested in procuring a Surety in verdict for the plaintiff, in the same manner as bail are interes- bond.^'" ted in procuring a verdict for the defendant, and is, therefore, incompetent ; but if his testimony be required, the courts will permit the substitution of a new surety in lieu of the witness in order that the latter may be rendered competent. (2) (a) In the cases which have just been stated, respecting the Persons incompetency of bail and sureties, the situation of the wit- "les'lo'^pi-o- ness was tha,t of a party immediately connected with the pro- ceedings. ceedings in the action, and his interest in procuring a verdict, General in favour of the party for whom he has become bound, is ap- P^'cipies. parent from the proceedings themselves. We shall presently proceed to notice ni detail a variety of other cases, in which witnesses are incompetent by reason of a direct interest in the event of the particular suit, but where it is necessary to look beyond the proceedings for the ground of incompetency. Be- fore doing this, it may be desirable to advert to a few leading principles upon this important and difficult subject. It is a general rule, that a witness will not be incompetent Uncertain on the ground of interest, unless the alleged interest be cer- '"''^'■^^*- tain in its nature ; for if it be a matter of uncertainty, whether the witness will gain or lose by the event of the cause, it cannot be said of him that he is in fact interested, and his tes- timony will therefore be received. (3) It is also a rule, that the interest must be a legal existing Expecta- interest ; if it exist merely in the imagination, or belief, or '""'' expectation of the witness, he will not be incompetent, how- ever * strongly the objection may be urged with respect to [ *82 ] his credibility. (1) In all cases in which an objection is raised to the compe- Competen- tency of a witness on the ground of interest, it lies upon the ^^p*^^""*" (1) Piesley v. Von Escli, 2 Esp. N. (3) R. v. Cole, 1 Esp. 9S. P. C. 605. (l)See cases on this subject, posty (2) Hailey v. Bailey, 1 Bing. 92. 7 sec 2. Moore, 439, S. C. (a) A surety to the sheriff to indemnify him from a levy upon persona! property, will disqualify him from being witness for the sheriff; the indemnity is against the very verdict in that suit, and the interest therefore is direct. Terry v. Belcher 1 Bail. R. 5G8. The securities in an administration bond, in a suit brought by a distributee against the administrator, are incompetent to prove, that the assets of the deceased^'have been consumed in the payment of his debts. Owens v. Collinson, 3 G & J 25 ; 6 Har. & J. 162, 394. By statute an attorney who endorses a writ is made responsible for the costs which the defendant may recover— Held, that such liability excludes him from tes- tifying in the action. Ciiadwickc. Upton, 3 Pick. 442. 10 74 Of tlte Rule of Interest to [Ch. 7. Amount of interest. Interest in costs, (a) Balance of interest. [*83 ] party making the objection to establish its existence and va- lidity. The competency of a witness ought to be presumed, until the contrary be clearly shewn, and in cases of doubt the Courts are always disposed to receive the witness and to let the objection go to his credibility rather than to his compe- tency. If it be made to appear clearly that the witness is directly interested in the event of the particular suit, the exact amount of his interest is immaterial, and it will make the witness in- competent, however small and inconsiderable it may be.(2) A person who loses or gains the smallest sum by the event of a suit, whatever may be his rank, fortune, or character, is as incompetent to give evidence as one who may be interested to the amount of thousands. This is the unavoidable con- sequence of the general rule. If interest be allowed to dis- qualify in any case, it must in all ; as it is impossible by any scale to measure the different effects, which it may have on different minds. The interest may be either in the subject m issue in the action, or in the costs ; for, as we have seen, in treating of the evidence of the parties to the suit, a plaintiff or defendant, who has no actual interest in the action, but merely sues or defends for the benefit of a third party, will be incompetent, if he be liable to be called on for costs. And, of course, the same rule applies to witnesses not being parties to the suit. Where the witness is so situated, that he is interested on both sides, his competency will depend upon the equality or inequality of the adverse interest. If they should be exactly *equal, one will counterbalance the other, and the witness will be competent ; but if there should be any excess of in- terest on either side, the witness will be incompetent to give evidence on the side, where there is a preponderancy of in- terest ; it is obvious, that he is interested, to the amount of the excess, in procuring a verdict on that side. It may be observed, that many of the cases, which might (2) Burton t). Hinde, 5 T. R. 574. Per cur. Dowdeswell v. Nott, 2 Vern. 317. There was formerly some doubt on this subject, see the cases cited as to members of corporations. Ante, p. 48v (a) It is a well settled rule, that an interest in costs will exclude a witness. Bill «. Porter, 9 Conn. R. 29; Owens u. Collinson, 3 G. & J. 34. A principal who has no interest in a controversy between sureties is a competent witness. Thus, in a suit for contribution, the principal cannot be made liable for costs and consequently is admitted to testify. 6 Pick. 419. See 2 id. 240. An attorney is a competent witness when he is fully indemnified against his lia- bility for costs. Chaffee v. Thomas, 7 Cowen, 358. But where the attorney pros- ecuted a suit in the name of a person in England, Held, that he could not testify, although it appeared that he was retained by a person residing here for whose ben- efit the suit was prosecuted. "For aught that appears, said the Court, that person may be insolvent, and the attorney have no security indemnifying him against his liability for the costs. Jones v. Savage, 6 Wend. 658. Ch. 7. J Persons not Parties to the Suit. 7^ be cited in illustration of these general principles, do not be- long to the present subject of inquiry, viz. what interest will produce disqualification, but range themselves under the next head of inquiry, viz. what interest will 7iot produce disquali- fication. However, as both branches of inquiry are intimate- ly connected, and the above division has been adopted merely for the purpose of convenience, it will be of material use to bear in mind the general principles, before laid down, while we enter in detail on the consideration of those decided cases, in which witnesses have been rejected as incompetent on the ground of interest. In some of these cases, the interest of the witness will be found to be perfectly clear and direct ; in others, some nicety will be required in distinguishing between direct interest in the event of the particular suit, and interest in the record as matter of evidence : in other cases again, it will be found difficult to discover, whether the witness has any interest whatever in the event of the suit. The method, we shall in general pursue in examining these cases, will be, to commence with those in which the interest is most obvi- ous and direct, and in which the situation of the witness ap- proaches nearest to that of a party in the proceedings. It has been before observed, that when an action is brought Examples, by or against a person as a trustee for another, the person who is substantially interested in the action, though not nomi- nally a party, is incompetent by reason of a direct interest. Therefore, in an action on a policy of insurance, where the person in- declaration averred, that the policy was made in the names '^J,^f ^'^ '" of the plaintiff's as agents for the sole use and benefit of A. r #8*4 1 and B., who were ^interested in the goods insured, neither of the persons so interested is a competent witness for the plain- tiff's. And even their release to the plaintiff", of all actions for any sum recovered by them on the policy, will not restore their competency ; for it must be presumed, until the contrary be shewn, that, as they are interested in the policy, the action has been brought by their authority, and that they are liable to the attorney for the costs of the action. Nor will the circum- stance of the nominal plaintiff's in the action having received an indemnity from other persons, make any diff'erence, the witness still remaining liable to the attorney in respect of the costs.(l) Consolida- In actions on policies of insurance where there has been a "°" *"" ^' consolidation rule, an underwriter, who is a party to such rule, is of course as directly interested in the event of the particu- lar cause, as if he were a party to the cause itself; and he is, therefore incompetent. So in a case, where the defendant in an action on a policy of insurance called another underwriter as a witness, who stated that he had paid the loss to the plain- Collateral tiff", upon an undertaking that he was to be repaid in the "&''^*^'"*"'- (1) Bell V. Smith, 5 B. & C. 188. 76 Of the Rule of Interest to [Ch 7~ event of this action failing, and that he had since received a letter from the plaintilf, ])romising to return the money on that event, Lord Ellenhorongh, C. J., at the trial rejected the witness. On a motion afterwards for a new trial, the Court sent the case to he re-tried, for the purpose of ascertaining more particularly the time when the undertaking was made to the witness ; hut on that occasion Lord EUenborough said, " If a person, who is under no obligation to become a witness for either of the parties to the suit, choose to pay his debt be- fore hand, upon a condition that it is to be determined by the event of that suit, he becomes as much interested in the event of that suit, as if he were a party to the consolidation rule. (2) Joint inter- *Upon the Same principle, one who is in partnership with Ject'of ac- the defendant is not a competent witness to discharge a debt, lion, ran- to which, as partner, he would be jointly liable. In an ac- cont'ractoTs. tiou for goods sold aud delivered, the plaintiff having proved [ *S5 j the sale of the goods to the defendant and to one J. S. as part- ners in trade, Lord Kenyon held, that J. S. could not be call- ed for the defendant to jn-ove that the goods were sold to him- self, and that the defendant was not concerned in the pur- chase except as his servant, observing, that the witness came to defeat an action against a man proved to be his partner, and that by discharging the defendant he benefited himself, as he would be liable to pay his share of the costs recovered by the plaintiff in that cause. (1) {a) In a similar action, where the plaintiff proved that the goods had been sold and delivered to the defendant, it was held that a partner of the defendant was an incompetent .witness for him, to prove that the goods had been sold to the defendant and to the witness jointly, and had been paid for by them. (2) And in a late (2) Forester v. Pigon, 1 Maule & ness is incompetent. See jiost, where Selvv. 9. 3 Campb. 380, S. C. The these exceptions are noticed, time at which a witness acquires an in- (1) Goodacre v. Breame, Peake N. terest in the event of the suit may, in P. C. 174. certain cases, become material ; and it (2) Evans v. Yeatherd, 2 Bing. 133. sometimes gives rise to an exception to See also Cheyne v. Koops, 4 Esp. 112. the general rule that an interested wit- (ffl) In Churchill v. Bailey, 13 Maine, 64, Held, that though a partner sells the property of the firm in his own name, he is nevertheless a competent witness for the purchaser, if the latter shall execute a proper release. See post^?. 1S4. See 7 Wend, 326; 9 id. 394; 6 id. 397 and 3 Wend. 240. Where two or more persons enter into a joint contract to pay or to do any act, the liability of the party does not rest on the notion of a partnership between them, but results from their express agreement. Per Bronson, J. 15 Wend. 193 : 4 Cow- en, 163. To cor)slitute a partnership in a single concern, or in a particular pur- chase, there must be either a joint undertaking to pay, or an agreement to share in the profifs and loss.'' Per Spencer, J. 9 J. R. 503. A community of inter- est in lands does not make men partners, nor does a mere community of interest in personal property. 15 Wend. 187. And it has been held that the law iT?erchant respecting dormant partners does not extend to speculations in land. Per Parsons, C. J. 4 Mass. 424. Ch. 7.] Persons not Parties to the Suit. ' 7t ease where the action was on a bill of exchange, and the de- fendant called a witness who admitted that he was a co-con- tractor with the defendant, the Court of Common Picas held, that the witness was incompetent, for being liable to contribu- tion for the costs and damages in the action, he had an inter- est to defeat the action, or reduce the damages. (3) So also Plea in where in an action the defendant pleads the non-joinder of a co contractor in abatement, such co-conlractor will be an incom. petent witness for the defendant in support of the plea.(4)(6) abalenienl. (a) (3) Hall». Rex, 6 Bing. 181. Hare u. Munn.Mo. & Ma. N. P. C, 241. (4) Young V. Bairner, 1 Esp. 103. n. (a). (a) One of two defendants cannot plead any matter in abatement of a joint suit, which is applicable to himself alone; for the plea, in such case, does not reach the whole cause of action. The plea must be sulficient to defeat the suit against both defendants; and to accomplish that, the joint defendants must unite in the plea. In De Forest v. Jewett and Parsons, 2 Hall, 137, Parsons plead the service of a process of foreign attachment upon him alone in Connecticut, and set it up by way of defence to the action against himself and Jewett, founded upon a joint promise by both; Held, that such a defence could not avail unless both defendants unite therein: — nothing can abate the suit, which is not pleaded by both. If one man is legally answerable to two or more persons jointly, if he will settle and adjust the controversy with either of them, so that he has no longer an interest in the dispute, this is a severance of the cause of action as to any or all the parlies. Baker u. Jewett, 6 IMass. 460. It makes no difference in this respect, whether the action arises from a contract or from a tort. id. Thus, in an action on the case to recover damages for a fraudulent alhrraalion in respect to the sale of one eighth part of a saw-mill, the defendant pleaded in abatement, the non-joinder of one B, B. The plaintiff" replied that B. 13. sued defendant and recovered his damages as owner of part of said mill; and upon demurrer, the Court held, that the plea was not sufficient. — Parsons, C. J. saying: — "When the defendant permitted B. B. to proceed alone for his damages, and referred his demand to referees, on whose re- port B. B. had judgment, he in law agreed to a severance of the demand for dama- ges, and cannot now take exception to the plaintift"'s writ, because he has sued without joining B. B. who is already satisfied for his damages." If two persons advance money severally for a third, they cannot sue jointly, but each must sue severally. Thus, in Smith v. Sayward and al, 5 Greenl. 504, the defendants, being tenants in common of certain real estate with one A., whose share they wished to purchase, and employed S. to make the purchase in his own name; and defendants also requested plaintiff' to become surety to S. for the pur- chase money : — Held, that such surety having paid the money might sue defend- ants to recover the amount paid. Such a promise is not within the statute of frauda ib. and cases cited. (b) All the partners have the same interest in averting the event of the suit; and though not sued, they are directly interested in the event of the suit. If the debt i« paid by the partners who are sued, they have a right to charge over to the con- cern, both the debt and costs of suit, as an expense to be borne by the firm. Bill V. Porter, 9 Conn. 11. 27. In Spaulding v. Smith, 1 Fairf. R. 363, it was held, that a partner not sued was not admissible to prove the averment in a plea of abate- ment that defendant and witness were co-partners at the time the action was com- menced; because should the plaintiff recover, the costs would be a charge on the joint fund, and the witness would be bound to contribute his proportion of their amount. A dormant partner is likewise inadmissible as a witness for his co-partner, the ostensible partner; and his competency cannot be restored by his release of all his interest in the particular transaction; — it is an interest of liability which neither he, nor his partner, is competent to release. Pickett v. Cloud, 1 Bail. R. 362. See also 9 Wend. 286. See 6N. H. R. 518; 1 M'Cord 552. In Grout v. Shurter, I Wend. 148, a surviving partner was admitted to prove the partnership; the action being against the administrators. The ground of the of bond. 78 Of the Rule of Interest to [Ch. 7. Nauire of It is to be observcd, that in all these cases the proposed inli'ieseTa- witiiess admitted his own liability to the demand, which was ses. the subject of the action, and therefore to a certain extent he appeared to be giving evidence against his own interest. But although he admitted his liability to be sued in another ac- tion, yet the object of his testimony was to defeat the plain- [ *86 J tifl* in the ^particular action then pending ; and hence arose that direct interest in the event of the suit, which rendered him incompetent. For if the plaintiff had succeeded in the action, the Avitness, as partner or co-contractor, would have been liable to contribution not only for the damages recovered, but also for the costs ; whereas by defeating the plaintiff the witness would not only have relieved himself from all liability in respect of the plaintiff's costs, but would also have thrown upon the plaintiff the burthen of the costs incurred by the defendant, and in respect of which the witness might also have been called on to contribute. (1) (a) ro-oMi|jor In an action on a joint and several bond against one of the obligors, who was surety for another, that other obligor, (the principal,) is not competent for the defendant, to prove a pay- ment of money by himself in discharge of the bond : for he has an interest in favour of his surety to the extent of the costs of the action. (2) (6) (1) See the cases in which it has been (2) Townsend v. Downing, 14 East, held, that a partner or co-contractor with 565. See also Trelawney w. Thomas, the defendant, is competent for the plain- 1 II. Bl. 306. And see other cases as to tiff. Post. And see as to the effect of incompetency from liability to costs, a release from one partner to another in Post, restoring competency. Post. decision in this case was, that being a partnership contract, the surviving partner alone could be sued; the legal representative being discharged from all liability — He is not liable in a court of law, id. The only exception to this course is where the contract is made joint and several, id. Held also, that the evidence of a joint contract was admissible under the general issue, id. In assumpsit to recover the avails of sales of cotton goods against two comraissioa merchants, one was defaulted and the other pleaded that he never promised with the other defendant; and on the trial offered the defaulted party as witness, but ha was rejected, 13 Pick. 125. (a) In Sumner v. Tileston, 7 Pick. 190, it was held, that where co-partners di- vide certain goods which have been received on joint account; and subsequent to the division, the goods of one is taken to satisfy execution against the former own- er, the co-partner was not admissible as a witness in support of the title. (6) Canty v. Sample, 2 Bay, 93; Riddle v. Moss, 7 Cranch, 206; See 1 Dana, 430. A co-obligor who is merely a surety cannot be admitted to testify in an action against the principal, Terry v. Belcher, 1 Bail. R. 568; Owens v. Collinson, 3 G. & J. 25. In Lovett v. Adams, 3 Wend. 380, a co-obligor was admitted as a witness in an action against a part of the obligors. The defence was the non-delivery of the bond by the defendants; and the fact was offered to be proved by a co-obligor an to whose execution there was no dispute; but the witness was rejected at the trial. But a new trial was granted by the supreme court, on the ground, that the interest of the witness would prompt him to sustain the bond. " Neither could the verdict in this case, for or against the defendants, benefit the witness in a suit against him- self." Ch. 7.] Persons not Parties to the Suit. 79 In ail action by an executor to recover a debt due to the Residuary testator, a residuary legatee is an incompetent witness for the ASuoTb^ plaintiff'. (3) (a) This incompetency does not arise from the executor, use of the verdict as evidence in any future suit, for the wit- ness could neither be plaintiff nor defendant in an action re- lating to the debt ; the witness is disqualified, because he re- ceives an immediate benefit by a verdict for the plaintiff". (4) The action is in the name of the executor, but the witness is the party substantially interested in the event. And even if the witness release all claim to the debt in question, this will not restore his competency, for he has still an interest in sup- porting the action in order that the costs may not be a charge on the estate. (5) *In an action by an administrator against a debtor of the ^"J,"'^^'''" ' intestate, a person entitled to a distributive share of the estate, administra- will not be a competent witness to support the action. ( 1 ) Y'^ar i And it has also been ruled, that a witness so situated will not ^ -» be competent for the administrator, in an action brought against him in that character. (2) (6) (3) Baker v Tytwhitt, 4 Campb. 27. restore competency, the right of the wit- (4) Per Tindal, C. J., 6 Bing. 394. ness being prospective. The question (5) Baker v. Tyrwhitt, supra. of costs seems not to have been advert- (1) Matthews «. Smith, 2 Y. & J. ed to in this case. See Ingram «. Dade, 426. It was also decided in this case, post. that a release from the witness to the ad- (2) AllingtoH v. Bearcroft, Peake's ministrator of all claims up to the time Add. Ca. 212. of executing the release would not (a) Campbell iJ. Campbell^ 7 Cowen, 64. Here, the witness was offered specifying for whcit purpose he was called, and he was rejected as having a direct interest in the event of the suit. By defeating the plaintiff's action, he would have protected the fund, of which he was one of tiie residuary legatees; and which would of course have been diminished by the plaintiff's recovery. Mr. J. Sutherland in delivering the judgment of the court cited 5 J. R. 258; 1 Mass. 239; 2 Day, 466. If he is a legatee, he is incompetent to testify for the executor, although he has no interest in the residium. Strong v. Finch, 1 Alaba. R. 256. Although he has in fact received the legatey, it matters not so long as the same is subject 16' abatement. But a legatee who has transferred his interest to another, is admissible to prove the will, although the consideration for the transfer was secured by a bond not yeJ payable. M'llroy «. M'Uroy, I Rawie 433. (b) It seems to be a general principle, that a person cannot be a witness, to in- crease or prevent the diminution of a fund, in which he is to participate, and upon this principle the children of an intestate, entitled to a distributive share of the per- sonal estate, are incompetent to testify generally in an action against the administra- tor at the suit of a creditor of the intestate. 5 J. R. 258; 1 Mass. 239; 2 Day, 466. But in Vultee v. Rayner, 2 Hall, 376, the defendant was sued as adminis- tratrix of her husband; she pleaded non-assumpsit and plene administravit, and upon the trial offered Henry Vultee, one of the children as a witness to prove the payment of debts by the defendant, in the due course of administration. He was rejected in the court below, but the superior court reversed the judgment — Oakley, J. saying: — "It is quite apparent, that the witness had no interest in the question, which was proposed to be put to him; for if the plea of plene adminis- travit had teen sustained, the plaintiff below, would have had judgment for assets infuturo. I see, therefore, no objection in principle, to the competency of the witness, to answer the questions proposed to be put to him. 4 Cranch, R. 69; 4 J. R. 293." 80 Of the Rule of Interest to [Gh. 7. Specific legatees, creditors, &c. See post. I?ankriipt. Incoinpe- tciit to in- crease fund, Necessity of certiti- cate. Second commis- sion. [*S8] Incompe- tent 10 sup- port or de- feat fiat. Ill these cases, the natural and immediate effect of a verdict in favour of the executor or administrator would be, to benefit the general fund in which the witness was interested ; but it will be seen hereafter, that the principle of these cases has been held not to a,})])ly to specific legatees, whether paid or un- paid, or to creditors of the testator or intestate. (3) («) The situation of a bankrupt bears some resemblance, in point of interest, to that of a residuary legatee. The bank- rupt is interested in increasing his estate, for his allowance un- der the bankru])t act, depends upon the clear amount of the funds recovered by his assignees, and tlie surplus, if any, after his creditors are satisfied, belongs to himself. This is an in- terest which, in actions by or against his assignees, renders him an incompetent witness on behalf of the assignees, for the purpose of adding to the amount of the fund, or to preserve it from diminution. (4) In order to render the bankrupt com- petent in such cases, he must release his allowance and sur- plus : and it is also necessary, that he should have obtained his certificate, without which his evidence will, in no ease, be admissible on behalf of his assignees. (5) *Where there has been a second commission against the bankrupt, and he has not paid fifteen shillings in the pound, he will not be a competent witness for his assignees, although he has obtained his certificate and released his allowance and surplus ; for his future effects remain liable until payment of fifteen shillings in the pound, and he is therefore interested in increasing the fund, in order to relieve himself from this lia- bility. (1) There is another case, iuAvhich a bankrupt is wholly incom- petent to give evidence in any action by or against his as- signees, notwithstanding he may have obtained his certificate and released his surplus and allowance : this is, where the (3) Post, sect. 2, p. . (4) Ewens v. Gold, B. N. P. 43. Butler V. Cooke, Cowp. 70. Exparte Burl,l 3Iad. Rep. 46. (5) See Dixon ». Purse, Peake's Add. Ca. 187. Masters v. Drayton, 2 T. R. 496. Goodhay v. Hendry, Mo. & Ma. 319. See also Tennant v. Strachan, ib. 378, where Lord Tenterden refused to postpone a trial on the ground that the bankrupt, whose testimony was wanted, would shortly become competent, by the Lord Chancellor allowing his certifi- cate, which had already been signed by a sufficient number of creditors. (1) Kennett v. Greenwoblers, Peake's N. P. C. 3.6 Geo. 4, c. 16, s. 127. The same principle applies to a party who has become bankrupt after having compounded with his creditors. See the words of the section above referred to. But where the composition has not been general, but has been limited to particular creditors only, the objection will not arise. Roberts v. Harris, 2 C. M. & R. 292. See Norton v. Shaks- peare, 15 East, 619. (a) A person who is so situated in relation to the property in controversy, as to be liable to refund the money received by him from the plaintitr for the property sold in case of the failure of title of the plaintiff is not a competent wilness for the plain- tiff. Lowrej v. Summers, 7 Hals. 240. CIi. 7.J Persons not Parties to the Suit. 81 bankrupt is called for the purpose of proving any fact, which is material either to support, or to defeat, the fiat issued against him. (2) The doctrine, that a bankrupt is incompe- Reason "f tent to give evidence in support of his commission, has been sometimes referred to the ground of interest ; it has been said, ii the fiat or commission is not good, the certificate and all other proceedings are void, and the bankrupt will be again lia- ble to his debts. (3) If, however, this were *considered as [ *89 ] the sole foundation of the rule, it would appear to follow, that the same ground which disqualified a bankrupt from giving evidence to support his commission, would render him com- petent to defeat it. But it seems to be pretty clear that in either case the interest of the bankrupt, one way or the other, will depend entirely upon circumstances. A bankrupt has frequently an interest in supporting a commission or fiat, but he has also as frequently an interest in defeating it, where such is his object and desire. (1) The rule in question, there- fore, seems to have been considered as resting not entirely upon the ground of interest, but partly upon considerations of policy and convenience. It would often be exceedingly diffi- cult to discover, when the bankrupt is, and when he is not interested, in supporting or defeating his commission. And if his testimony were generally admitted, he would often be called on to make statements of matters resting in his own knowledge alone, and the proceedings under fiats of bankrupt- cy would be rendered generally insecure. (2) Whatever may have been the foundation for the rule, at all events the prac- tice on the subject has been fully settled, and it is clear, the bankrupt cannot be called either to affirm, or disaffirm his bankruptcy, nor, if called and examined for any other purpose, can he be asked on cross-examination any questions as to facts, which are material to support or defeat the fiat. (3) f2) The followinn; are some of tho In Oxiadc u. Perchard, 1 Esp. 287, principal cases on this point. That a Lord Kenyon had ruled differently, and bankrupt is incompetent to prove his had considered the bankrupt admissible own act of bankruptcy. Field v. Cur- to explain an equivocal act, but in Say- tis, 2 Stra. 828. Ewens t). Gold, B. N. P. er v. Garnett, 7 hing. 104, Park, J., 40. Per Lord Kenyon, Oxlade v. Per- said, that Lord Kenyon afterwards chard, I Esp. 28S. Per. Lord Ellen- changed the opinion he had there expres- horough, HofTman v. Pitt, 5 Esp. 25. sed. Wyatt )). Wilkinson, .5 Esp. 187. That (:)) See by Lord C. J. Ryder, in a bankrupt is incompetent to prove the Flower v. Herbert. 2 17. PI. 279, n. (a), petitioning creditor's debt. Cross v. by Baylcy, J., and Ilolroyd, J., 2 B. & Fox, 2 li. Bl. 299, n. (a). Flower ». C. 18, 19, Herbert, ib. 279, n. (a). Chapman v. (1) Per Tindal, C. J., 7 Bing. 104. Gardner, 2 IL Bl. 279. That a bank- (2) Ibid. rapt is incompetent to disprove the al- (3) Binns r. Tetley, McLel. 397. leged act of bankruptcy, or to explain an Saver «. Garnctl, 7 Bing. 103. The equivocal act. Hoffman d. Pitt, .5 Esp. rule is restricted to evidence affirming or 22. Binns t). Tetley, Mcl^el. &, Y. 404, disathrming the bankruptcy, and will in which case all the auliiorities were re- not be extended to exclude the bankrupt viewed. — Sayer v. Garnett, 7 Bing. 103. from giving evidence of facts, which in 11 82 Of the Rule of Interest to [Ch. 7. d"b°!)7"' '^^^^ objection of a direct interest in increasing the fund of his estate, which, in general, disqualifies a bankrupt from giv- ing evidence in behalf of his assignees, applies also to the case of a person who has taken the benefit of the insolvent act. (4) And as the future ellects of an insolvent arc liable to his cred- l "0 J itors under the judgment, which the act directs to be *enter- ed against him, he will not be rendered a competent witness by releasing his surplus to his assignee. (1) {a) Cre.iitor of lu tlic casc of bankruptcy or insolvency, the interest of the iiTsdvent *" bankrupt or insolvent in the fund is of the nature of a residua- ry interest, being subject to the rights of the creditors, the persons primarily interested in the fund which may be real- ized by the assignees. The amount of the creditors' dividend must depend upon the amount of the fund, and a creditor is an incompetent witness for the purpose of increasing the estate, on account of this direct interest in the event of the suit.(2) (6) themselves are not material to tlie valid- (1) Delafieid v. Freeman, 6 Bing. ily ol" the liat. See Kcud v. James, 1 294. 4 Car. & P. G7, S. C. Rudge v. Stark. N. 1'. C. 134. Morgan u. Prior. Freeman, supra. See stat. 7 G. 4, c. 2 13. k C. 14, jwst. 57, sect. 57. (4) Rudge I'. Ferguson, 1 Car. & P. (2) Shuttleworlh v. Bravo, 1 Stra, 253. Wilkins v. Ford, 2 Car, k P. 507; 344. (o) In Griffin v. Brown, 2 Piok. 304, which was action against the sheriff', for tho escape of a debtor, Held, that the latter was incompetent lo testify for tbesher- iti' ; to show his inability to pay the debt. The debtor being incompetent, his wife was also incompetent to testify, id. However, in a subsequent case against an attorney for not paying over money collected, Held, that the debtor who paid the money was competent to prove that fact. Gilford v. Collin, 5 Pick. 447. In Jackson u. Peck, 4 Wend. 300, a debtor who claimed title to lands by a judgment and execution, is not a competent witness in an action at the suit of a purchaser of the same estate. (6)In general, the creditor ofa deceased person may be a witness, although his tes- timony tends to increase the estate of the deceased. But I think he would not be competent, if it clearly appeared, that payment of his debt depended upon the event of the suit in which he was called to testify. Per Tilghman, C. J. 3 S. & R. 427 ; 14 id. 178. So, if he but acknowledges an expectation that he shall be ben- efited by the fate of the cause. ]M. Veaugh v. Goods, 1 Dall. 62. In Ogier v. Holmes, 1 Bail. R. 473, which was an action on a bond to recover the atnount against the defendant as administrator, the witness offered to disprove the demand, stated on his voire dire, that he was the first of three endorsers ofa promissory note of the intestate on which the bank had recovered judgments against himself and the intestate in his life time; that he believed the estate to be insolvent, the only property which remained being a plantation, which was mortgaged to se- cure the bond now in suit, and that if the plaintiff recovered, there would probably be no assets to pay the judgment of tiio bank; but if the defendant succeeded in this action, the judgment would probably be paid out of the estate; Held, that tho witness was competent, because no liability could be created by the verdict; and as to the insolvency of the estate, no issue could be made to try that fact in this collateral way. "He may never pay the debt, and until he does, he cannot be said to be a creditor. He consequently, was, not answering to increase a fund, out of which he is to be remunerated. Many things may occur to prevent his pay- ing the debt, for which he is liable. It is a mere liability, and very far from that certain, direct, and immediate interest, which excludes a witness." In Hart v. Deamer. 6 Wend. 497, it was held that a creditor of the obligor, where defence was lunacy, was competent to testify. Ch. 7.] Persons not Parties to the Suit. 83 He cannot, therefore, give evidence to deprive the bankrupt of his allowance. (3) The creditor of a bankrupt is also interested in supporting the bankruptcy, for the effect of the bankruptcy is to appropri- ate the whole estate and effects of the bankrupt towards the immediate satisfaction of his creditors. A creditor is, there- fore, an incompetent witness to support the fiat, and it is im- material, whether he has or has not availed himself of the right of proving under the bankruptcy. (4) It is clear that the petitioning creditor is incompetent to prove the fiat regu- larly sued out, for (independently of the objection which ap- plies to other creditors) he gives a bond to the Chancellor, conditioned to establish the fact, upon which the validity of the fiat depends. (5) The interest of other creditors, as we shall hereafter see, may be removed by a release to the as- signees ; and if a creditor has sold his debt, or agreed to sell it, his interest will be extinguished. (6) The cases relative to the competency of a bankrupt, of a creditor to diminish the fund, and of a creditor to reduce the amount of his own debt, or to defeat *the commission, will be stated when we come [ *91 ] to examine, in what particular cases a witness will not be disqualified by interest.(l) The next class of cases which we shall proceed to notice, interest in are those in which witnesses have been rejected on the ground '^°'*" of interest in actions relative to real property. It has been seen, that in an action of ejectment, a tenant Tenant in in possession is incompetent for the defendant, by reason of fn°ejecT°" an immediate interest in the event of the suit ; (2) (6) for the mem. (a) verdict and judgment in the action would have the effect of turning him out of possession immediately. (3) So also, if a (3) S. C. (5) Green v. Jones, 2 Campb. 411. (4) Adams r. Malkin, 3 Campb. 513. {6) See post. And Granger u. Far- €rooke r. Edwards, 2 Stark. 303, over- long, 2 Bl. R. 1273. Heath t). Hall, 4 Toling Williams v. Stevens, 2 Campb. Taunt. 326. 301, and see 1 Rose, 292, n. Ex (1) See post. jiarfe Malkin, 2 Rose, 27. Ex parte (2) ^nfe, p. 78. ■Osbourne, 2 V. & B. 177. (3) 6 Bing. 394. 5 Taunt. 1S3. (a) But it has been held that a tenant in possession is a competent witness in an action involving the title. 12 Wend. 105. (6) In Lodge v. Patterson, 3 Watts 74, which was ejectment, the defendants L. and L. entered on the record the plea of not guilty ; and moreover, that they took defence for four undivided seventli parts of two hundred acres, being the shares of Andrew Patterson and three others, heirs of John Patterson, deceased, who owned and died seized thereof. They ofTercd Nathan Patterson, a son of Andrew Patter- son, as a witness in their behalf. The defendants having set up the title of John Patterson's heirs by way of defence against the plaintifl''3 claim, the question trying in this ejectment was, whether the right of the plaintilF's, who are the heirs of Na- than Patterson, or of the heirs of John Patterson, was better. If the defendants succeeded, the witness's title was found by the verdict, and he could call on the de- fendants to attorn to him, or commence an action to recover possession. In soch action the proceeding here would be evidence for the purpose of proving, that the defendants asserted the defendant's title to be the best. 84 Of the Rule of Interest to [Ch. 7. Remainder man. Agreement plaintifT agree with a witness, that, in case he recovers the or ease. |j^,^jg^ j^g ^\[\ ax^\\\ the witncss a Icasc of them for so many years, this exchidcs his evidence ; for he would have a fixed and certain advantage by the event of the verdict. (4) Upon the same principle, a witness has been rejected, who, if the plaintiff failed in the action, was to repay a sum of money in his hands belonging to the plaintilf, but was not to repay any part of it, if the plaintiff succeeded. (5) In ejectment brought by a tenant in tail to try the validity of a common recovery suffered of the lands in dispute, a re- mainder man, after the tenant in tail, is incompetent to give evidence for the latter ; for by recovering in the ejectment, the tenant in tail would be in as of his former right, and the witness would thereupon acquire a vested interest in the re- mainder in tail. As the effect, therefore, of the verdict would be to revest the remainder in the witness, he has a direct and immediate interest which renders him incompetent. (6) So also in a quare impedit respecting the right of presentation to an advowson, which was claimed by the defendant through his *mother, it was held, that the father of the defendant, who was tenant by the curtesy of the mother's property, was an incompetent witness on the defendant's behalf, on the ground that he had a direct interest in the result of the cause. (l)(a) So also, a devisee, who takes under a will a ves- ted interest in the testator's estate, has been considered incom- petent to support the will in an action of ejectment brought by another devisee against the heir. (2) The ground of these ca- ses does not, however, operate to prevent an executor, taking a pecuniary interest under a will, from giving evidence to sup- port the will in an action of ejectment brought by the heir at law ; for the verdict against the plaintiff would only have the effect of establishing the will as to the real property, and the witness would have no immediate interest in the termination of that suit ; and even before the stat. 3 & 4 W. 4, c. 42, a witness so situated was not disqualified by reason of any indi- rect interest in the record, since the judgment would not be evidence in the Ecclesiastical Court upon a question, whether Tenant by curtesy. [*92] Executor* (4) Gilb. Evid. 108. (5) Fotlieringliam v. Greenwood, 1 Stra. 129. (6) Doe 15 Tyler, 6 Bing. 390. Smith V. Blackham, 1 Salk. 283. And See per Lee, C. J., Commins, v. The Mayor of OaUhampton, Sayer, 45- (1) Gully «. The Bishop of Exeter and another, 5 Bing. 171. (2) See Pyke v. Crouch, 1 Lord Raym. 730, where one of the points resolved was, that a legatee is incom- petent to prove a will. In Helliard v. Jennings, 1 Lord Raym. 505, on an is- sue of devisavit vel non, it was assumed as a clear proposition that a devisee was not competent. (a) In Jackson i\ Brooks, 8 Wend. 426, which was ejectment sued by the heir at law, a tenant by the curtesy was admitted to testify for the plaintiff. And the case of Bennett v. Hethington, 16 S. and R. 193, decides that a tenant is a com- petent witness for his co-tenant in an action of ejectment by the latter. Ch. 7.] Persons not Parties to tJie Suit. 85 the will were good as to the personalty, (3) (a) Upon the same principles, a legatee of personal estate seems also to be f'^g^ce. competent in such a case. An heir apparent is also competent .^ upon any question concerning the lands, for the heirship is no interest, but a mere contingency. (4) {h) It may also be observed here, that a claim to an estate or Party mii- interest in land, on the part of a witness in an action of eject- .jl^we" merit, will not in all cases disqualify. Thus in the recent case of Doe v. Maisey, (5) which was an ejectment brought to recover premises which the defendant claimed as heir at law to his father, the defendant's mother was tendered as a witness for him, and was objected to on the ground, that her evidence would tend to establish for her a title to dower ; but the Court of King's Bench, after time taken to consider, held, that she had *no legal interest in the event of the suit, and [ *93 ] was competent. Lord Tenterden, in delivering the judgment of the Court, said that the judgment in the action would be no evidence of her husband's seisin ; and that if he was seised, she was entitled to dower, whether the premises were in the hands of the lessee of the plaintiff or of the defendant. (1) We have seen, in actions by or against corporations respec- J^orpo"- ting the lands of the corporation, that individual members are est in land, incompetent, when they have an interest as members of the corporation in the lands which are the subject of the action. So also, in an action of trespass brought by the tenant of a corporation, in which a question arose respecting the right of the corporation to inclose the locus in quo, against the defen- (3) Doe V. Teage, 5 B. & C. 335. (1) Ibid. 440. It would seem that (4) See the following section. the widow assisted her case for dower (5) 1 Barn. & Ad. 439. See Gully by her evideuce. «. Bishop of Exeter, and Doe r. Tyler, supra. (See 4 J. R. 230 and 5 id. 158). • (a) In Durand v. Starr, 11 Mass. 527, it was held, that an executor named in the will could not be admitted as a witness to establish the sanity of the testator, al- though a mere trustee having no interest in any devise or legacy. See 7 Mass. 398 and 12 id. 358. {b)Co-h€ir is admissible as a witness; for the estates of tenants in common are sev- eral, and consequently, each recovers his own purpart: — and where not a party to the record, even if his evidence goes to prejudice his in another action, he may be compelled to testify. Gibson, J. in 7 S. & R. 192. But where the co-heir is di- rectly interested in the facts he is called to establish; as where one of the children and co-heirs of the plaintiff was offered to prove the facts in regard to a trust fund which was created for the benefit of all the heirs: — Story, J. observed, "It approaches very near to the case of one devisee on a trial of ejectment brought by another devisee against the heir at law, offered as a witness to prove the testa- tor's sanity; and in such case he has been held to be incompetent, although the verdict would not have been evidence for or against him, for he has a direct and immediate interest in establishing the facts." West v. Randall, 2 Mason, 181. It has been held also that an heir is not admitted to be a witness where the action was sued by the administrator of the ancestor, unless he releases his right t» a share of what may be recovered. Boynton v. Turner, 13 Mass. 391. 86 Of the Rule of Interest to [Ch. 7. dant who claimed aright of common thereon, freemen of the corporation were held incompetent for the i)hiintiff, to prove that there was a snfficicncy of common left, although the rent was nominally reserved to the mayor and bailiffs alone. (2) It was objected in this case, that if any interest existed in the witness, it was too minute to form a ground of incompetency, and it is obvious, that the same objection might be raised in most cases of a similar description, and in many of those which have been before stated in the text ; but the principle was ful- ly settled by that case, and has ever since been adhered to, that if there beany amount of interest, the objection must pre- vail, however small it may be in reality. And in an action against officers of a corporation, members of the corporation have been held not competent witnesses on the part of the de- fendant, in proof of a custom to exclude strangers from tra- ding, part of a penalty, imposed by a bye-law made to enforce such custom, going to the corporation. (3) Charg« nn On the trial of an issue, whether the owners of property '^"'^' within a particular district are liable by immemorial usage to [ *94 ] *the charge of repairing a chapel, an owner of property with- in the district was held incompetent to disprove the liability, (although he neither resided nor was rated in the district,) having leased his property to a tenant who was bound to pay the rent without deduction : the owner was immediately in- terested in removing such a permanent charge, and thus to improve the value of his estate. (1) In a subsequent case_, upon an issue whether a messuage was situated within a chap- elry, it was determined that an occupier of property within Raieabie the district, who was not actually rated, was competent to prove, that it was so situated ; and although the decision pro- ceeded chiefly upon the operation of the statute of the 54 Geo. 3, c. 170, s. 9, in restoring competency in such cases, and which statute will be partially noticed hereafter, yet the Court expressed an opinion that as the witness was not actu- ally rated, but only rateable, he was competent at common ^abUa t"(a\ ^^^" (^) ^ rated inhabitant of a parish is clearly incompe- tent, on the general principle, to give evidence for the defend- ant in an action against the surveyor of the highways, in sup- port of a custom to take materials from the sea beach for the (2) Burton v. Hinde, 5 T. R. 174. Aid. 87. See;?os< C. as to the eflect of (3) Davis u. Morgan, 1 Tyrwh. 457. the rale by statute 54 Geo. 3, c, 170, s. The law respecting customs of exclusive 9, upon questions of this description, trading has since been altered. (See (2) Marsden v. Stanfield, 7 B. & C Boston t). Tiieston, 11 Mass. 468—13 815,818. See Rex r. Kirdford, 2 East, id. 324.) 559. (1) Rhodes v. Ainsworth, 1 B. & (a) 1 J. R. 468; 11 id. 76; 12 id. 285, where it was held, that an inhabitant liable to pay or actually paying taxes was admissible as a witness. See also 1 Bail. R. 35. Ch. 7.] Persons not Parties to the Suit. 87 purpose of repairing the road ; for if such custom were estab- lished, the highways of the parish would be repaired at little expense, and the highway rates be thereby diminished. (3) Nor is the witness rendered competent in such a case by the statute 54 Geo. 3, c. 170, s. 9. (4) So also in an action to recover a sum, alleged to be due to the plaintiff for attending a pauper, against an overseer, who defends on the part of the parish, a rated inhabitant is an incompetent witness for the de- fendant ; (5) for if the plaintiff recover the amount claimed, it would be a charge on the rates ; and the witness is not ren- dered competent by the above mentioned statute, because the question in the action is not " a *matter of rates or cesses of [ *95 ] the parish," within the meaning of the act of parliament. (1) In an action of replevin, a party under whom the defend- Replevin ^1 . '■ . . ^ 1 . .X-. cognizance. ant makes cognizance is, in general, an incompetent witness for the defendant, being the person really interested in the event of the cause, and in truth the substantial defendant. And in a case where there were two cognizances, one under the party beneficially interested, and the other under a trustee for him ; the evidence of the latter was rejected, notwithstand- ing the absence of any beneficial interest on his part in the premises. (2) In the case of Upton v. Curtis, (3) it appears that a party, under whom cognizance was made, was consid- ered incompetent for the defendant, although that particular cognizance had been abandoned. But it has been settled in a very recent case, that where Present distinct cognizances are made under different parties, who do ^^^' not appear to be in any manner connected in interest, if one D'stinci of the cognizances be abandoned at the trial, the party, under ^^1''°'^*"'^' whom it is made, is a competent witness for the defendant.(4) Lord Denman, in delivering the judgment of the Court, after observing there was reason to suppose that the facts of the case of Upton v. Curtis were not reported with perfect accu- racy, said, the Court were of opinion, that the offer to aban- don the issue, joined on the cognizance under the witness, was tantamount to consenting that a verdict should be found for the plaintiff on that issue. (5) (3) Oxenden ?>. Palrner, 2 B. & Ad. the defendant; but no objection seems to 236. Per Lord Tenterden, S. C. p. 242. have been taken, or any question raised (4) S. C. and R. r. Bishop Auckland, as to her competency. Johnson r. Ma- 1 Ad. k. Elk 744. See this statute, jiost, son, 1 Esp. N. P. C. 89. and the cases in which it restores com- (3) I Bing. 210. petcncy. (4) King v. Baker, 2 Ad. & EIJ, 333. (.5) Tothill V. Hooper, 1 Mood. &, t5) 2 Ad. &; Kii. 339, 340. In the Rob. N. I'. C. 392. case of Hart t^. Horn, 2 Campb. 92, it 1) fSee the words of the act, and per was ruled that tiio declarations of a party > Lord Tenterden, 2 Barn, k Ad. 243-4. under whom cognizance had been made, (2) Golding r. Nias, 5 Esp. N. P. C. wore inadmissible in evidence for the 272. In a prior case, it appears that the piainliff. For another e.\amp!e of direct wife of a party under whom cognizance interest, see Bland v. Ansley, 2 N. R. vv»s made, was admitted as a witness for 331. 88 Of the Rule of Interest to [Ch 7. Liability \^ [^ ^qw proposcd to iiotice an important class of cases, in r #Qg 1 * which witnesses have been rejected as incompetent to give evidence in a particular suit, on account of their liability to a subsequent action by one of the parties to that suit. Thus, in the case of actions against a master or prin- cipal, founded on the alleged misconduct of a servant or agent of the defendant, such servant or agent has been generally rejected as an incompetent witness for the de- fendant to disprove his own misconduct. In the numer- ous cases of this nature, which occurred before the pas- sing of the statute 3 & 4 W. 4, c. 42, the rejection of the wit- ness almost always proceeded on the ground of an indirect in- terest in the record with reference to a subsequent suit : for if the servant or agent has been guilty of the misconduct im- })uted to him, he will in general be liable to make good all damages sustaineti by the master or employer in consequence of such misconduct, and may be compelled by the latter, through the medium of an action, to repay any damages and costs recovered by the party injured. And although the rec- ord of the first action would not be evidence in the second for the purpose of establishing the fact of the misconduct of the witness, yet it would be admissible for the purpose of shewing the quantum of damage sustained by the master or employer in consequence of the witness's misconduct, after the fact of such misconduct had been proved by other evi- dence. (1) Now it has been seen, that, before the statute of the 3 & 4 W. 3, c. 42, it was a settled general rule, that a witness was incompetent to give evidence in any suit, where the record of the proceedings in that suit would be evidence for or against himself in a subsequent action against him ; and as it was clear, that in these cases the defendant in the first action might produce the record thereof, as evidence in a sub- sequent action against the servant or agent, the latter when tendered as a witness in the first action, has generally been rejected upon the ground of this indirect interest in the rec- ord. Thus, in the case of Green v. The Neno River Compa- 711/, (2) which was an action to recover damages sustained by the plaintiff, through the alleged misconduct of a servant of the defendants, the servant was held an incompetent witness [ *97 ] for the defendants, to disprove *his own negligence. It was said by the Court, that although a tradesman's servant is per- mitted to prove the delivery of goods on behalf of his master, this is an exception to the general rule, proceeding merely from necessity ; (1) and that this exception would not extend to actions arising from the misconduct of coastmen and sail- ors, in which cases the verdict against the proprietor might be (1) 4 T. R. 589. (1) See post Ch. Exceptions as to (2) 4 T. R. 5S9. the rule of incompetency from interest. Ch. 7.J Persons not Parties to the t^idt. 89 given ill evidence in a subsequent action by the latter against tiie servant, as to the qiiantwm of damages^ thougli not as to the fact of the injury ; and so in the case then before the Court, the verdict might be given in evidence in an action by the defendants against the witness, and therefore he was in- competent without a release. (2) So also in an action aj^ainst a coach proprietor for negligence in the management of the coach, the guard, who appeared to be implicated in the alleg- ed mismanagement, has been considered incompetent, without a release. (3) In an action against the captain and owner of a vessel for an injury occasioned by imputed mismanagement of the vessel, a pilot, who had the control of the vessel at the time, has been also considered incompetent to give evidence for the defendant. (4) Upon the same principle it has been ruled, in an action Broker, against a principal for misconduct in the purchase of certain goods, that a broker, who had been employed by the defend- ant to make the purchase, was incompetent to disprove negli- gence in the transaction. (5) And in an action for an exces- sive distress, the broker, who made the distress, has been con- sidered incompetent to prove that it was not excessive. (6) (a) In like manner, in an action against a sheriff for a false re- ^'l*''"'''''* ' oiTicer. turn, the sheriff's officer, who has given security for the due execution of process, (and is consequently liable over to the sheriff in case of misconduct,) has been adjudged to be an in- (2) 4 T. R. 590. p. ."0.5. (3) Wliitamoro v. Waterliouse, 4 (5) Gevers r. "lainwnrinjr, Holt, 139. Car. & P. 3S3. ' (6) Field v. JHlchell, 6 E.*p. 71. (4) Hawkins t). Finlayson, 3 Car. & (a) See M'Dowell r. Simpson, 3 Watts, 129, where it was held, th-st merely be- cau^e a person had undeitiiken to {;ive a lease as agent for the plaiiitili'ot' the land in question, to the defendants, under which they claimed a right to hold possession of it, was not satlicient to rendor him incompetent. If the agent of the plaintiifis aulhoiised to receive money ; and he gives a re- ceipt ill fdll; such receipt is presumyilive evidence that he had received the money; and the agent is incompetent to testify by reason of interest. If the plainlilF fails in his suit, he would have an immediate action against the witness for money had and received. If the plaintift" should prevail, the defendant would have no iiciion over against the witness, to recover hack the money, without being obliged to show not oaly that he had paid the money according to the terms of the receipt of the mo-n- (!y, but also that tlie witness had been guilty of some breach of trust, towards the parly of whom the money h.id been received, so as to bring the ca'^e within the principle of Fowler v. Shearer, 7 Mass. 23; ^ee also Fuller v. Wlieelock, 10 Pick, 135. In Kuch case, liis direct interest on one side was not balanced by an equal interest on the other. rto, where the agent is strongly interested in the rncovery of the money sued for; as where the goods sold were consigned to him; and he had made advances on ac- count of them, and had directed the suit to be commenced; Held, that he was not admissibie;^ — the consignor being msolvent, 2 Pick. 240. See also 5 J. R 2.58 and 427; I iJall G2; 2 iost. (1) See the cases relative to acconi- (o) Seamen are not admitted as witnesses for each other, if the question be the loss of tlie ship — embezzlement equally allecting the whole crew, negligence, misfeas- ance, or malfeasance, to which all must contribute in damages. 1 Pet. K. 211; 1 Mason, 101. But at common law, seamen are competent witnesses for each other, although they have a common interest in the point in contest. Per Kent, C. J. 3 J. R. 518. In an action against the master for the negligence of the servant, the latter is not 94 Of the Rule of Intcresl to [Ch. 7. oiiipr cases There are several other cases remainina; to be noticed, in iftiiry from which witncsscs havc been rejected as incompetent, on the ovcr'''^ ground of an interest arising from a liability over to one of the ])arties to the suit ; in some of which cases the interest is suf- ficiently clear, but in others its precise nature and extent are not easily discoverable ; neither, indeed, is it very easy to re- concile some of them with the princii)les upon which the courts have acted in deciding others. Saieofiand In au actiou betwccn the vendor and purchaser of an estate, — vendor • i • i i • , , . • with war- in Winch the title to the estate comes in question, a person ranty. (a) ^,jY\o had prcviously sold the estate, and is liable to the ven- dor, if the title should prove defective, is incompetent to give evidence in support of the title. (3) But if the former vendor sold the estate without any covenant for good title or warran- ty, he will be competent; (4) for in this case the witness is under no liability, f ^'*^i tl ^^ ^^^^ been decided, that if the buyer of a horse warranted vendor of rc-scll him with a warrant}'", and upon being sued offers the iiorse vviih defence of the action to the person from whom he bought, warranty. i i • r. i who does not interfere, he may recover against that person the costs of the action, as part of the damage occasioned by the breach of warranty. (5) In the case of Briggs v. Crick, (6) [ *103 ] *indeed, it is said to have been ruled, that a former proprietor of a horse, who had sold with a warranty, was competent to prove the soundness, without a release : and in a later case Lord Tenterden appears to have ruled to the same effect. (1) But in a very recent case at nisi prius, in which the same question arose, and the case of Bi^iggs v. Crick was cited, in support of the witness's competency, Mr. Justice Alderson was of opinion, that as the eflcct of a verdict would be to re- lieve the witness from an action at the suit of the defendant, (3) 2 Roll. Abr. 6S3. (6) 5 Esp. 99. (4) I^ushby v. Greenslade, 1 Stra. (1) Baldwin v, Dixon, 1 Mood. & 445. (Post. p. 120). Rob. 59. (5) Lewis r. Peake, 7 Taunt. 153. in such case, a competent witness witliout a release. 6 Vertn. R. 373. But in a prosecution against the servant, the relation of master and servant is not such an in- terest as will disqualify the master from testifying for tiie servant. Tiie State v. Aaron, 1 South. R. 231. (a) The grantee of land, which had been previously attached in an action against the grantor, conveyed it with warranty ; and lield,l!iat he was not admissible as a wit- ness. Pond V. Hartwell, 17 Pick. 267. But where the grantee has no interest in the immediate result of the case, nor in the record, he is a legal witness. 6 Conn. 494. Although a grantor is excluded where he lias given a warranty ; yet if the warranty be special, as being against the grantor, or those claiming under hitn or against a particular person, he is competent to testify in support of the title against any one not claiming under him. 6 Binn. 500; 2 id. lOS. If a grantee has taken no covenants, and the title fails, he is without a remedy, if the contract be fair and without fraud, 2 Edw. Ch. R. 43. Ch. 7.] Persons not Parties to the ^!^uit. 95 to whom he had sold and warranted the horse, he was in- competent to give evidence on defendant's behalf.(2) (a) In the case of Nix v. Cutting (3) it Avas decided, in an action of trover for a horse alleged to be the plaintiff's proper- ty, that a witness was competent to prove, on the part of the defendant, an agreement between the plaintiff and the witness, that the latter should take the horse as a security for a sum of money due to him from the plaintiff, and should sell it if the money were not repaid on a day certain, and that, on default of payment, the witness sold the horse to the defendant : an objection was taken against the witness, that by selling the horse he had warranted it to the defendant to be his property, to whom he would be liable over if the plaintiff succeeded in the action ; but the court held, that this was not a sufficient objection, and said, that as between the witness and the plain- tiff, and the witness and the defendant, the verdict obtained upon his testimony in the cause would be of no avail. (4) So also in the case of Ward v. Wilkinson, (5) it was decided in Witness to an action of trover for goods in the defendant's possession erTv^n'""''' which were claimed by the plaintiff, that a witness was com- himself, (b) petent to prove that the goods belonged to him, and had been fraudulently obtained from him by the plaintiff; because the verdict could not be evidence for or against the witness in any subsequent action : and the coupt in this case recognized the decision of iVz.r V. Cutting. (6) But it does not appear, that in this case of Ward v. Wilkinson any *question arose as to r *104 1 incompetency, by reason of a liability over to either of the par- ties, for the witness had not sold the goods to the defendant, (as in the former case, ) but was called to prove that they act- ually belonged to himself at the time of the trial. There are several cases, of actions on bills of exchange, in A<-iions on which witnesses have been rejected as incompetent, from change.^*" (2) Biss V. Mountain, 1 Mood. & (5) 4B. &Ald. 410. Rob. 302. (6) See per liolroyd, J., 4 B. & Aid. (3) Taunt. 18. 412, 413. (4) 4 Taunt. 20. (a) A vendor of personal property is in law a warrantor of the title, and conse- quently is not admissible as a competent witness lor tire vendee. Hale v. Hniitli, 6 (jreenl. 416. However, if his interest is balanced, he is admissible. 3 I-'airf. 371. (b) An agent who has sold personal property belonging to his principal is not com- petent to testify for the vendee, that he was not agent, and that the property wag sold on his own account, and thereby to establish the sale. Harwood v. ftlurphy, Hals. 21.5. See 6 J. R. .5. An agent for the plaintilTto sell goods on a del credere commission, is not a competent witness in an action to recover the price of goods sold; and a release would not restore his competency, because he is to establish a bargain made, not only in his own name, but for himself. 11 Mass. (iO. An agent for a corporation who has signed a promissory note as such, cannot bo admitted to testify against the validity of the note in an action by the indorsee. 17 Mass. 122. 96 Of the Rule of Interest to [Ch. 7. being liable over to one of the parties to the suit. The general rule is, that, in actions brought against parties to such negotiable instruments, other ])arties to the bills are com- petent to give evidence, either for the plaintilF or defendant ; and their competency depends upon the principle already ad- verted to, which will be more particularly noticed, in the en- Liahiiity to suing chapter, uauiely, an cqual liability on either side, (a) But commniia- au excoptiou to lliis rule prevails in the case of actions on ac- lioii bills, connnodation bills, in which the party, for whose accommoda- tion the defendant has put his name to the bill, is incompetent to give evidence to defeat the plaintiff, upon the ground that the witness will be liable over to the defendant, not merely for the amount of the bill, but also for the costs of the action. Jones V. Thus lu Jouos V. Bvookc, (1) a leading authority on this sub- DmwJr in- ject, iu an action against a party who had accepted a bill for compeient ^^^ drawer's accommodation, it was held, that the drawer was niodaiion iucompctent, on the part of the defendant, to prove that the acceptor. plaintitF held the bill on an usurious consideration. It was ar- gued in this case, that the drawer was indifferent, as having an equal liability on either side ; for if the defendant succeed- ed, the witness would be liable to the plaintiff (the holder,) and if the plaintiff succeeded, the witness would be liable to the defendant, who had accepted the bill for his benefit. But the Court said, that the witness had an interest to protect the acceptor, to whom he would be liable, not only for the amount of the bill, but also for all damages which the accep- tor, might sustain by being sued for it : the drawer of an ac- commodation bill being bound to indemnify the acceptor against the consequences of an acceptance made for his accom- . modation. So also it has been ruled at nisi prius, that in an (lation en- actioii by the indorsee against an accommodation indorser of r°^''in'' 1 '^ ^^^^' "^ witness who was indebted *to the plaintiff, and for '■ ■' whose accommodation the defendant endorsed the bill as a (1)4 Taunt. 463. Hardwicke v. Blanchard, Gow. 113, S. P. (fl) See note p. 41 ante, and see Lane r. Padelford, 14 IMaine, 94, where it was held, that parties to negotiable paper arc not admitted lo prove it originally void, liut that principle does not extend to an action between the original parties. Fox V. \\ hitney, 16 .Mass. IIS. IVor does it extend to facts happening after its ex- ecution. Thus, in Freeman's Bank i'. Rollins, 13l\!aine, 202, the j)riiicipal was admitted as a witness for the defendant a surety, in an action sued by the payee, to prove subsequent transactions, by which the surety was supposed to have been dis- charged. In Baker v. Arnold, 1 Caines R. 2.5S, which was an action sued by the endorsee against the maker, the endorser was admitted to prove the time of endorsement. The Court say: — " The testimony of the endorser, as to the time of the endorse- ment, does not, therefore, as ofcourse, or by any direct, or necessary cnnicquence, atiect the validity of the note, or violate Iiis pligiUed faith to the world." Although a party to negotiable paper is inadmissible as a witness, to show it void at the time of its execution, but he is competent to testify to facts subsequently arising, if he stands disinterested. 15 J. R. 270; 10 id. 231. Ch. 7.] Persons not Parlies to the Suit. 97 security for the debt, is incompetent to defeat the plaintiff, for he is liable to indemnify the defendant against the costs of the action. (1)(«) So in an action on a bill of exchanare asrainst the drawer, A^eniem- ^ ^ i)l()\'ecl lo where the question was, whether the bill, as the defendant .liscomu maintained, had been delivered by one A. B. to the iilaintiff, •""•(*) to be discounted, or whether it had been delivered in payment for goods bought by A. B. of the witness. Lord Chief Justice Gibbs held, that A. B. . was not a competent witness for the defendant, to prove that the former Avas the case ; for if the witness had received the bill merely to get it discounted, and instead of doing so had pledged it for his own debt, he would l;e liable for the costs of the action, as special damage resulting from his breach of duty. (2) And in a more recent case, where the action Avas brought by the indorser of a bill against the drawer, and a question arose, whether the plaintilf had receiv- ed the bill from the acceptor in discharge of a debt due from him, or v/hether, as the defendant alleged, the bill had been delivered to the acceptor that he might get it discounted, which acceptor had delivered the bill to the plaintilf on con- dition that the latter would get cash for it, but this the plaintiff (1) Coltomly 15. Wilson, 3 Stark. 14S. bankruptcy and certificate. Ashton «• In these cases there 13 a liability on both Longes, Mo. & Ma. N P. C. 127. sides, but the liability on the part of the lias.sett v. Dodgin, 9 Ring. 653. defendant preponderates. The compe- (2) Harman v. Lasbrey, Holt, N. P. lency of the witness will be restored by C. 390. (a) The maker of a promissory note is not a witness for the indorser in an action against him by the holder, when it appears that the note was endorsed for accoin- modaiion of the maker. 7 Cranch. 206; 16 J. 11. 70; 3 M'Cord, 78 note; 1 Uail, 479. A party to an accommodation note who is not interested is not incompetent; 12 Pick. 565: Held, that he was competent to prove that it was an accotntnodation note ; endorsed by defendant for tlio benefit of one L. — the Court saying, that the promissor and endorser stood in tlie relation of principal and surety, and were com- petent witnesses for each other. The maker of a note is not competent to prove that it was an accommodation note endorsed at his request by the del'endant who was the endorser, and that the plaintiff the endorsee received usurious interest. Hartford Bank v. Barry, 17 Mass. 94. (6) The testimony of a person who has an interest in giving it, and whose interest consequently, conflicts with his duty, cannot be received. Thus, defendant pur- chased a quantity of lime of the plaiiiliii through the agency of C. S. The bill was made out by the plaintitl' in the name of C S., as purchaser, for which the latter gave the piaintifl' his draft for value received. The lime was lost by the peril.s of the sea; in action by the seller to recover the price the lime was alleged to have been delivered to one C. S. on the defendant's account; the question being upon the admission of C .S. as a competent witness, to testify that, in making the purchase, he acted as the agent of the defendant : — Held, that he was not admissible; for if the plaintilf do not recover C. S. would be liable as drawer of the bill; he was di- rectly interested to support the action. Hewitt ?'. f.overiiig, 3 Fairf. R. 201. So, in Skiras v. Morris, 8 Cow. R. 60, it was held that the a.ssumed agent of anotlier borrowing money and drawing a bill for the amount on his pretended principal, was not a competent witness for the leader i the bill having been protested for non- acceptance. 13 98 Of the Rule of Interest to [Cli. 7. had neglected to do, it was decided, that the acceptor could not be examined as to these facts on the part of the defendant ; for although he was interested as to the amount of the bill itself (being liable on both sides), yet he was interested fur- ther as to the costs, against which he would have to indemni- fy the defendant, if the plaintiff got a verdict. (3) In the lat- ter of these cases the witness was a party to the bill, and in the former he was not a party, and in neither of them were the circumstances exactly the same as in the before-mention- ed cases of acconniiodation bills ; but the principle upon which [ *106 ] the *witnesswas rejected, appears to be the same in all these cases ; viz. a liability to indemnify the defendant against the costs of an action, to which he had been subjected through the act or default of the witness. Wiinpss to rp^ ^j^jg principle may be referred the late case of Larhales- I)IO\'G|>t)V- -*■ ^ niciit I.) " tier V. Clark, (1) where the defence, set up to an action for \viien com- goods sold aud delivered, was, that a third person had bought pcieiit for the goods of the plaintiff and sold them to the defendant on dcfeiuiant. ^^[^ qwu accouut, and had been paid for them by the defend- Larbaleslier , . ' , -^ , . •' , V. Clark, aut, and such person was tendered as a witness to prove these facts on the defendant's behalf. The Court of King's Bench thought, that under the particular circumstances of the case the witness was competent, as it did not appear that he had acted in the transaction in such a manner as to render him- self liable to the defendant for the costs of the action, in case the plaintiff obtained a verdict ; but they were of opinion, that if the witness had appeared to have acted fraudulently in the matter, so as to incur this liability to costs, he would not have been competent. And Mr. Justice Littledale in giv- ing judgment says, " it is now well established, that a person who has received money due from a defendant to a plaintiff, is not a competent witness for the defendent, to prove that he received the money as agent of the plaintiff, or in his own right, if his conduct has been such that he would be liable, in the event of a verdict for the plaintiff, to pay the defen- dant, not only the money received, but also the costs of that action in which the plaintiff should recover ; since in such a case he has an interest in defeating the action." The learn- ed Judge added, that he regretted that such a rule had been established, because in many cases, it was extremely difficult to ascertain whether a party so situated would be liable to costs. And Mr. Justice Taunton observed, in the same case, that he had understood the rule of evidence as stated by Mr. Justice Littledale to be well established ever since the case of Jones V. Brooke. (2) (3) Edmonds v. Lowe, S B. &. C. (1) 1 Barn. & Ad. 899. 407. (2) lb. 903. Ch. 7.] Persons not Parties to the Suit. 99 In some cases which had occured prior to the case of Jones Cases on m- ■l rompetciicy V. Brooke, it appears to have been considered, that where the from Costs, witness was hable on both sides, his competency was not af- J^^'^^j"^ '° _ fected *by the circumstance of a greater habihty to tlie defen- Brooke. dant in respect of the costsof the action ;(!)(«) bat the contrary [ *107 J appears to be now fuUy estabhshed by the authorities cited in the text ; and we have already seen, that on this very ground of a habihty to costs, a co-obhgor of a bond, who was the principal debtor, was considered incompetent, in an action on the bond against a surety, to give evidence on behalf of the defendant. In the case in which this point was decided, (2) Lord Ellenborough asked, why there should not be an inter- est in costs as well as on any other account? And the gener- al rule, that a liability on the part of a witness either to pay, or contribute to the costs, of a cause will render him incompe- tent, appears to have been recognized in several other cases. Thus, as we have seen, the parties to the suit, who have ^/|j^|,^|-f!^ no beneficial interest, are incompetent, upon the ground of a to costs. liability to costs. (3) In an action by an infant plaintiif, his prochein ami and guardian are not competent witnesses for him, on the ground of a similar liability. (4) So in most ac- tions upon contracts, a co-contractor is incompetent to give evidence for the defendant, being interested to defeat the ac- tion, and thereby to avoid the liability of contribution to the costs. (5) But in a recent case on this subject, where the action was in Liability tort, being for a libel against a person who was secretary to a from iFiegai society, the members of which had agreed to contribute to- *^""""aci. wards all law expenses. Lord Tenterden appears to have con- sidered, that a member of the society was competent for the defendant without a release, on the ground that a contract be- tween parties, for bearing each other harmless in doing wrong, was void, and conseqently, that there was no legal liability to affect the witness. But his Lordship observed, that if the wit- ness would be liable for a share of the expenses in the event of a judgment passing against the defendant, he would be in- competent. (6) (i) (1) Ilderton «. Atkinson, 7 T. R. Evid. 107. Head u. Head, 3 Atlv. 511, 48U. I5irt V. Kershaw, 2 East, 450. 547. (2) Townend v. Downing, 14 East, (5) Sec cases cited ante, p. 85, and 5G5, supra, p. 86. see Erencli v. Backliouse, 4 Burr. 2727. (3) Jlnte. (6) Humpiirey v. Miller, 4 Car. & (4) James t>. Hatfield, 1 Stra. 548. P. 7-12. Hopkins v. Neal, 2 Slra. 1026. Gilb. (rt) Scott V. M. Sellon 2 Greenl. 204. Sec also, 16 .1. R. 70. {b) An agreotrient between several persons lo share in the gain or loss of certain suits, will exclude them from being witnesses for each other, though released, o Whurt. R. 369. 100 Of the Rule of ^Interest to [Ch. 7. EfTeci of *it i^ow only remains to notice the cases, upon the subject &, /w. 4, of incompetency arising from a liability over to one of the par- in cases of jjgg jq ^\^q g^^jt which liave occurred since the statute 3 & 4 W. from a lia 4, c, 42, camc iuto operation ; that it may be seen, what etfect r'*u?^^ ^'^^ provisions of tliis statute have had on this numerous and L ■" -■ ratiier dillicult class of cases. Before we enter on the consid- eration of these cases, it will be convenient to advert to the precise language of the statute. Scciion 26. The 2Gth section of the act is as follows : "And in order to render the rejection of witnesses on the ground of interest less frequent, be it further enacted. That if any witness shall be objected to as incompetent, on the ground that the ver- dict or judgment in the action on which it shall be proposed to examine him, would be admissible in evidence for or against him, such witness shall, nevertheless, be examined, but in that case, a verdict or judgment in that action, in favour of the party in whose behalf he shall have been examined, shall not be admissible in evidence for him, or any one claiming un- der him, nor shall a verdict or judgment against the party on whose behalf he shall have been examined, be admissible in evidence against him or any one claiming under him." Section 27. By the 27th section, it is further enacted, " That the name of every witness objected to as incompetent, on the ground that such verdict or judgment would be admissible in evi- dence for or against him, shall, at the trial, be indorsed on the record or document on which the trial shall be had, together with the name of the party on whose behalf he was examin- ed, by some officer of the Court, at the request of either par- ty, and shall be afterwards entered on the record of the judg- ment ; and such indorsement or entry shall be sufficient evi- dence, that such witness was examined, in any subsequent proceeding, in Avhich the verdict or judgment shall be offered in evidence." As the practice under this recent statute is not completely settled, it is proposed to state the several decisions in order as they have occurred, and afterwards to advert to the different [ *109 ] * views which have been taken, as to the intentions of the legislature. Decisions— In one of the earliest cases since the passing of the statute, liabiTover it is Said to liavc been ruled by Lord Lyndhurst, that in an to the de- action on a guarantee, the party primarily liable, who was jected. tendered as a witness for the defendant, and objected to on the ground of his being liable to indemnify the defendant against the costs, was not rendered competent by the provis- ions of the statute. (1) So also, in an action on a bill of ex- change, accepted by the defendant for the accommo- (1) Braitlnvait v. Coleman, Ilertf. Spring Ass, 1S34. 2 Har. Ind. 1047. Ch. 7.] Persons not Parties to the Suit. 101 dation of the drawer, it is said to have been ruled by the same learned Judge, that the witness was not ren- dered competent by the statute, which he thought was not intended to apply to cases of this nature, (2) And in a subsequent case, in an action for injuring the plaintiff's house by improperly digging a cellar, whereby the plaintiif s wall sunk, the person employed to dig the cellar by the defendant was tendered as a witness on his behalf, but Mr. Justice Pat- terson is reported to have been of opinion, that the witness was not rendered competent by the statute, and that the stat- tute was not intended to apply to such cases. (3) The same learned Judge also seems to have ruled, that a carrier's servant was incompetent to disprove negligence in an action against his master, without a release. (4) In these cases, the witness was tendered on the part of the Wimesses defendant ; and we have seen, that it Avas only when called to ihe plain- by the defendant, that the witness, (before the passing of the I'ff'ejecieci. statute,) was objected to, on the ground of the admissibility of the verdict as evidence against him in a subsequent action. For, in all cases, where witnesses, called by the plaintiff, have been rejected in consequence of a liability over to him, the rejection has always proceeded on the ground of a direct interest in the event of the suit. (5) In a late case before Lord Denman, (6) *where, in an action for an injury alleged to have [ *110 ] been done to the plaintiffs horse by the negligent driving of the defendant's servant, the plaintiff called as a witness on his part a servant, who had the care of the horse at the time of the accident ; the servant was objected to as incompetent without a release ; and Lord Denman said, that it was so de- cided in the case of Wake v. Lock, (1) which he had consid- ered a good deal. And upon the statute 3 & 4 W. 4 c. 42, be- ing relied on as restoring the witnesses' competency. Lord Denman appears to have considered, that the statute did not apply, since it only rendered competent those persons for or against whom the verdict or judgment would be evidence ; but if the witness should state what he was expected to state, and should be believed, there never could be any action against him. In a still later case, a witness called for the plaintiff was rejected by the same learned judge, on the same ground of an immediate interest in the event of the suit, arising from a li- abiUty to the plaintifl", which would be removed by a verdict in the plaintilPs favour. In this case the action was for use (2) Burgess v. Cuthill, 1 Mood. & (5) See Morisli v. Foote, supra, p. Rob. 315. « Car. & P. 282. 100, and other cases. (3j Mitchei w. Hunt, 6 Car. & P. (6) Harding t). Cobley, 6 Car. & P. 351. 664. (4) Harrington v. Ca3well,.6 Car. & (i) Supra, p. 101. 5 Car. & P. P. 352. 454. 102 Of the Rule of Interest to [Ch. 7. Iminndialc inlerest not wiihiii (lie statiUe. [ *111 ] Late case before Parke, B. Drawer of accommo- dalion bill, held com- petent. Observa- tions oil Faith V. Mclnttjre. and occupation, and in order to show that the defendant had occupied the premises, a witness was called, who stated that he had taken the premises of the plaintilF, and had not hccn released from his tenancy, and u])on his being asked whether he had not given up the premises to the defendant, it was ob- jected, that he was interested in fixing the defendant, and up- on the statute being referred to in support of the admissibility of the witness. Lord Denman ruled, that the witness was not competent, on the ground that he had a direct interest in the event of the suit ; lor if the plaintiff succeeded in getting the amount he claimed from the defendant, that would put an end to his claim for rent, for the time for which he sought to recover it in the action. (2) In all these cases it appears to have been considered, that witnesses, objectionable on the ground of a liability *over to either of the parties to the suit, which liability would be re- moved by a favourable verdict, had an immediate interest in the event of the suit, and that such an interest was not remov- ed or affected by the provisions of the statute. (1) But in a very recent case before Mr. Baron Parke, that learned Judge ruled, that the drawer of a bill was a competent witness for the defendant, in an action against a person who had accep- ted it for such drawer's accommodation. It was stated at the trial, that Lord Lyndhurst had ruled, that such a witness was not rendered competent by the 3 & 4 W. 4 c. 42 ; (2) but Mr. Baron Parke said, he thought, that by indorsing the witness's name on the postea, according to the 27th section, the witness would be rendered competent, for he could only be made lia- ble to the costs of that action by means of the verdict or judg- ment, which in consequence of the indorsement of his name could not be used against him ; and to the amount of the bill he was liable at all events. The witness's evidence was ac- cordingly received, and the defendant obtained a verdict. (3) In cases like that which is the subject of the last-mention- ed decision, the liability to costs formed the only ground up- on which the witness was held to be incompetent before the passing of the statute, (4) aind this liability appears to be ef- fectually removed in the manner pointed out by Mr. Baron Parke. By the act of calling the drawer as a witness, the de- fendant precludes himself from using the verdict against him in a subsequent action ; and as the costs can only be recover- ed by means of the record, the result is precisely the same, as (2) Ilodson V. Marshall, 7 Car. & P. 16. (1) Faith V. Mclntyre, 7 Car. & P. 44. (2) Probably, the case of Burgess v. Cuthell, supra, 109. The name of the case was not mentioned. (3) A rule nisi for a new trial was af- terwards obtained, but not as it seems on the ground of the improper admission of the witness, and the rule was afterwards discharged, 7 Car. & P. 48, n. (4) See Jones u. Brooke, supra, 104, and the subsequent cases there cited. oil. 7. J Persons not Parties to ike Suit. 103 if the defendant had released the witness from the costs. It might, however, perhaps be urged against the reception of the witness, that according to many authorities, an interest arising from a liabihty over to one of the parties to the suit, is an im- mediate interest in the event of *the suit : and that the Ian- [ *112 ] guageof the statute only applies to cases "in which any wit- ness shall be objected to as incompetent, on the ground that the verdict or judgment in the action in which' it is proposed to examine him would be admissible in evidence for or against him." If, therefore, the witness was objected to, not on the ground of this indirect interest in the record referred to in the statute, but upon the other ground of a direct interest in the event of the suit, it might be urged, that the case did not fall within the statute, even although it were true that the inter- est might be removed in the manner which the statute pre- scribes. Some difficulties arise from the application of the princi- Distinction pie of the ruling, in Faith v. Mcliiiirc, to other cases of wit- ^hnessls nesses objected to on the ground of a liability over to the par- ''^'''*' °y^:^ ties to the suit or either of them. The ground upon which liff and u. the vdtness was admitted in that case was, as we have seen, ""; '^*''^"''' ' ' ant, that the liability over to the defendant could only be enforced by means of the record, and that the defendant, by calling the witness, precluded himself from using the record against him. That principle, it seems, would apply to all cases of liability over either for damages or costs in the action, Avhen the wit- ness is called for the defendant ; and consequently, in all ca- ses where servants, agents, and other parties liable over, are called on the defendant's part, they would be competent with- out a release. But when such witnesses are called on the part of the plaintiff, the reasoning would not apply, for if the plaintiff should fail in the action, he might enforce his reme- dy over against such witnesses without producing the record, which indeed would not be admissible evidence against the witness for any purpose ; and, therefore, all snch witnesses would be incompetent for the plaintiff without a release. No doubt or difficulty can arise with regard to the applica- tion of the statute to that class of cases, in which witnesses were formerly rejected as incompetent, not from direct inter- est in the event of the suit, or from liability over to either of the parties, consequent upon the event of the suit, but solely on the ground that a verdict for or against some *general right [ *113 ] or custom, would be admissible in evidence for or against the witness, as evidence of the fact decided in the first action. In all such cases, the competency of the witness would be re- stored by the statute, and the question of his competency would in no manner be affected by the accident of his being called for the plaintiff, or for the defendant. There is a ma- 104 Of the Rule of Interest to ^'c. [CIi. 7. tcrial distinction between this class of cases, and the cases of an interest arising from a liability over — inasmuch as here the witness has no interest either in regard to damages or costs, and, Avhicliever way the cause may be determined, he can neither gain nor lose by it ; but, in the latter class of ca- ses, the witness is actually interested in the determination of the very question which forms the subject of the action, and a favourable verdict at once relieves him from a liability over in respect of the identical question at issue between the plain- tiff and the defendant. It is quite clear that the statute was meant to embrace the former class of cases ; but from the con- tradictory opinions expressed with regard to the latter class, considerable doubts appear to have been entertained, whether the statute was intended to apply to them. It may be remark- ed, that the interest arising from a liability over could always be removed by means of a release, whereas the other kind of interest, namely, that arising from the right of using the re- cord as evidence, could not be removed ; and as the latter spe- cies of interest often occasioned the exclusion of an extensive class of persons, who were most likely to have information upon the question at issue, these might appear to be stronger reasons for the interference of the legislature in this case, than with regard to an interest arising from a liability over. (1) [nU] * CHAPTER VIIL WHAT IS NOT SUCH AN INTEREST AS WILL DISq,UALirY. Having endeavoured, in the preceding chapter, to explain the general rules upon the subject of incompetency from in- terest, and to collect and arrange the various cases in which witnesses are liable to be rejected from this cause, it is now proposed, in further illustration of the subject, to notice a va- riety of cases in which witnesses may be so connected with the questions at issue in the particular action, as to give rise to the suspicion that they are interested in the event, but in which there is no legal interest capable of producing incom- petency. (1) .Mlliou'^h doubts have been ex- never been riueslloned, and that tlie pressed on this subject, it is probable statute would be frittered away by a that the more liberal construction will contrary construction : Pickles v. l/ol- ultimately prevail. In two recent cases, lings, 1 Mood Sz. I'ob. 4G8. Creevey v. I\Ir. liaron I'arke, again ruled, that the Bowman, 1 I\Iood. & liob. 496. 'J'he statute applied to the case of witnesses statute, it seems, does not apply to the liable over to the defendants, and, upon case of an issue directed by u Court of the contradictory decisions being refer- Equily : Stewart v. Dames, 1 Mood, k red to, he observed, that he had always Rob. 472. ruled dillerently, and that his ruling had Ch. 8.] Of the Nature of the Interest, ^'c. 105 It is not an objection to the competency of a witness that ^Visiies, or he has wishes or a strong bias on the subject matter of the beaeiiu' suit, or that he hopes to obtain some benefit from the result of the trial. Such circumstances may influence his mind and afl"ect his credibihty, they are therefore always open to obser- vation, and ought to be carefuUy weighed by the jury, who are to determine what dependence they can place on his tes- timony ; but it is clear, from Avhat has been seen in the pre- ceding chapter, that they are insufficient to render him in- competent. A witness who stands in the same situation as the party for witnpss in whom he is called to give evidence, is under a strong bias, i,„n in 'c'^ivil and may have strong wishes on the subject; but unless he will actions. gain or lose by the event of the particular suit, he will not be disqualified. Thus, if there are two actions brought against f"";irespas- two persons for the same assault, in the action against one the other may be a witness, because he is not interested in the event. (1) (a) * So also, in the case of Bent v. Baker, (1) which, as we Und^rwri- have seen in the preceding chapter, is a leading authority on po'iic'v!^'"^ the rule of incompetency from interest, as that rale existed [ *ii5 ] before the statute 3 & 4 W. 4, c. 42, it was decided, after much argument, that in an action against an underwriter on a policy of insurance, another underwriter was a competent witness for the defendant, on the ground that he neither gain- ed nor lost directly by the event of tiie particular suit, nor could the verdict therein be evidence for or against him in any subsequent suit. So also it appears, that in an action in which a question arises concerning the validity of a deed, the attorney who prepared the deed is a competent witness to prove that the deed is valid, notwithstanding that there is another action pending against him, in which he must fail, if the deed be invalid. (2) The same rule prevails in criminal proceedings ; as, when Wimps* m several persons are separately indicted for perjury in swearing u^j'^i'ncn'ml to the same fact, either of them may, before conviction, be a i""' i""- witness for the others. (3) So in Rudd's case, a woman, '^'^^ "'°*' whose husband had been before convicted, was admitted to give evidence against the prisoner, though she expected, in ease of his conviction, that her husband would receive a par- Accompli- don. (4) In treating of the evidence of accomplices, it has «=«=*• (1) By Ashurat, J., 1 T. 11. 301. Rep. 247. Gun.stone v. Downes, 2 Roll. Vjy Abbott, C. .F., 5 B. &, C. 387. Ab. 68.5, Art. 3. S C. ciled 2 JI. P. C. (1)3 T. R. 27. 280, jind in R. r. Gniy, 2 Selw. N. W (2) Hudson V, Revett, 5 Ring. 368. 148. (3) Balh V. Montague, cit. Fortes. (4) 1 Ltacli Cr. Ca. 151. (a) See Marsh v. Berry, 7 Cowen, 344; 8 J. R. 418. 14 106 Of the Nature of the Interest [Ch. 8. been seen, that persons admitting their participation of crime with the prisoner at the bar, but not indicted with him, are competent to give evidence for him as well as for the Crown ; and though separately indicted for the same oifence, they are not incompetent, until rendered infamous by actual convic- tion. (5) Where separate informations of quo loarranto are brought against several members of a corporation, on the trial of one of the informations the other parties are competent wit- nesses on behalf of the defendant. (6) Influence of *A witucss, wlio has uo actual interest in the event of a p^'*^i,y -i suit, is not incompetent on the ground that the verdict may •■ J afterwards come to the knowledge of a jury in an action brought by the witness himself, and so have an influence on their decision, though not adduced as evidence before them. This subject has been touched upon in treating of the com- petency of the prosecutor, or party grieved, to give evidence upon indictments. (1) In the case of the King v. Whit- nei/, (2) indeed Lord Holt, on an indictment for a cheat, in obtaining a person's subscription to a note of 1001. instead of 51., rejected the evidence of the maker of the note, on the ground that the verdict would certainly be heard of in an ac- tion on the note, and would influence the jury ; and this deci- sion was followed by Lord Hardwicke, in a case before him.(3) But in a subsequent case. Lord Hardwicke reviewed his opin- ion and that of Lord Holt, and decided that the objection went only to the credit, and not to the competency of the wit- ness ; and with respect to the possibility that the jury might hear of the verdict, he said that sitting as a Judge he could only hear of it judicially. (4) This doctrine was fully con- firmed in the subsequent case of the Kijig v. Boston, (5) where it was held that a witness was competent to give evi- dence for the prosecution upon an indictment for perjury, al- though a civil action was pending between himself and the party indicted, in which the same question arose as upon the indictment and which was coming on for trial at the same as- sizes. Borrower So ill action for penalties, under the statute of usury, against ■" """" "*^ the lender of the money, the borrower is a competent witness for the plaintiflT ; and whether he has or has not repaid the money lent, does not appear to make any essential difference, so far as his competency is affected, for in neither case does he gain any thing immediately by the event of the suit : nor could any objection be made to his competency on the ground of an indirect interest in the record, even before the passing of (5) Supra, Ch. 3. , (2) 1 Salk. 283. (()) R. V. Gray, 2 Selw. N. P. 1148, (3) R. v. Nunez, 2 Stra. 1043, (6th edit.) (4) Rep. temp. Hard. 572. (1) Jlnte, Ch. 6, p. 64. (5) 4 East, 572. Supra, p. 64. in case of usury Ch. 8.] which disqualifies. 107 the statute *3 & 4 W. 4, c. 42, for the verdict in the action for [ *117 ] penalties could not be used as evidence in a subsequent action for the debt. (1) In the preceding chapter we have seen, that a legal liability ^"gcS^ to be sued in respect of the matters in issue in a particular ac- Uncertain tion, in the event of an unfavourable verdict, will in many ca- '"'^''^s'l") ses exclude witnesses from giving evidence. But the bare possibility of an action being brought against a witness is no objection to his competency. Thus, it has been decided, that in an action against an administrator, one of the bond securi- ties for the defendant's due administration of intestate's effects is a competent witness, on the part of the defendant, to prove a tender, and the Court said in this case, that if a creditor of the administrator had been offered as a witness (which was a stronger case,) there could have been no objection to his evi- dence being received. Mr. J. Buller added, " in order to shew a witness interested, it is necessary to prove that he must de- rive a certain benefit from the determination of the cause one way or the other. In this case, supposmg there were no assets, though the defendant would be answerable for the costs, he would not be liable on his bond to the Ecclesiastical Court. He is only bound to distribute the intestate's effects, and it does not appear in this case how they have been applied." Upon the same principle, a witness is competent to prove a codicil, made subsequently to a second will, and reviving a former will, though he has acted under the first will, and might possibly be subjected to actions brought against him as executor de son tort, if it should be set aside. (2) (1) Abrahams v. Bunn, 4 Bar. 2251. (2) Baillie v. Wilson, cit. 4 Cur. Smith V Prager, 7 T. R. 60. See Mas- 2254, and see Goodtitle v. Wilford, 1 ters r. Drayton, 2 T. R. 496. Doug. 140. (a) The interest of a widow in her husband's estate is remote, and therefore she is considered competent to testify in an action relating to the estate : 5 J. R. 1,58; 4 \\. 230. So, the husband who is tenant by the curtesy is a competent witness for the heir at law in an action of ejectment brought by him. Jackson v. Biooks, 8 Wend. 426. See 5 id. 55. An interest in the question to be decided is nn objection to the credit only, and not to the competency of the witness, 13 Mass. 61. Although it appear if the piainliif prevail, the property in dispute will go to pay a debt due to the witness; yet if it also appear, tiiat if the defendant prevail, the witness will be entitled to the value of the propeity, the witness is competent. In Jackson v. Leek, 12 Wend. 126, llie witness admitted that he preferred that the plaintilf might succepd in ihe action which involved the title to land; because the witness, who was in possession, exfiecied to be able to purchase of the plaintilT better than from the defendant; — Held, that he was nevertheless, a competent witness. So, in Hart v. Deamer, 6 id. 497, it was held, that the witness is not excluded unless it clearly appear that he has a direct and certain interest depending upon the event of the suit. The relation of master and servant, parent and child, debtor and creditor, does not create such an interest as to exclude them from being witnesses for or against each other; although they may bo mutually dependent upon the personal exertions of one aiiDlher for their rights, and for their support. I South. R. 231. These in- terests, however they may weigh upon the human mind, have never been consider.. 10« Of the Nature of the Interest [Ch. 8. Actions by [)_ j^^s l.eeii befoi-e stated, that in actions by or against exec- Sp«^ik ~ ntors or administrators, a residuary legatee, or person entitled legatee. ^^ jjp^t of Icin to a distributive share of the estate, is incompe- tent to increase the fund in which he is so interested, for he has a direct and certain interest in giving evidence to tliis ef- fect. But the principle of these cases does not apply to lega- f *118 J tees of .specific *sums or chattels, for it is a matter altogether uncertain, whether they will or will not derive any benefit from a favourable termination of the suit. Thus, in an action by an executor to recover a debt due to the estate, it was ruled by Lord Tenterden, that a paid legatee was a competent wit- ness for the plaintiff to increase the estate. (1) It was objec- ted to his .competency, that he would be obliged to refund, in case the estate should prove deficient, but his Lordship ob- served, that there was nothing to shew .that the other funds were insuilicient, and although the debt sought to be recover- ed in the action had not been paid, it was not to be assumed that there Avas not some other estate sufficient. (2) In this case, the legatee had been paid his legacy ; but it seems to make no difference with regard to the competency of the wit- ness, whether he has or has not been paid. (3) («) In a very recent case, it v/as decided by the (>ourt of King's Bench, in an action against executors for a debt of the testator, that a per- son entitled to an annuity under the will was a competent witness on the part of the defendants. (4) Upon the same principle, on which witnesses are not dis- qualified in the above mentioned cases, that is to say, because the interest is altogether uncertain, a creditor of the estate is a com.petent witness for an executor or administrator to increase the fund. In the case of Pautl v. Brown^ (5) it was ruled, in an action by an executor to recover a debt due to the estate, that a creditor was a competent witness for the plaintiff; and Annuitant Ainder a Will. Creditor of estate. (1) Clarke 'j. Gannon, Ry. &, Mo. N. P. C. 31. (2) Ry. k Mo. 32. (3) In Johnson v. Baker, 2 Car. & P. 207, an unpaid legatee was admitted in an action against the exectjtor, but it appears that in that case the demand was considered as one which was not recov- erable out of tlie estate. See 5 B. & Ad. 370. by Patteson, .T. (4) Nowell V. l^avies. 5 B. & Ad. 3CS. (5) 6 Esp. S4. cd as direct and positive, going to the competency of witnesses, but rather as col- lateral and remote, going to their credibility only. (a) In Strong v. Finch, 1 Alaba. R. 23tj, it was held that a legatee who had re- ceived his legacy v/as an incompetent witness in an action against the executor of bis ancestor. In Campbell v. Tousey, 7 Cowen, fi4, a residuary legatee was held to be in- competent to testify to protect that fund. But in V'ultee r. Rayner, 2 Hall, 376 where the witness was a child of the in- tesiate and entitled to a distributive share of the estate ; but the administratrix pleaded plene aJniinistravit ; held, that the witness was competent to testify as to the payment of debts by the defendant, for had the pl«a been sustained, tlie plaintitf would have had judgment for assets in futuro. Ch. S.J tvhich disqualifies. 109 Macdonald, C. B., said, the creditor may give evidence for his debtor in his life-time, and is cqiiaUy competent to give evi- dence for his executor after his death. In a case subsequent to that last mentioned (6) it was ruled by *Lord Ellenborough, that a creditor was not competent for [ *119 ] the executor, if it appeared, that the estate was insolvent, al- though it was urged that the interest must necessarily be quite uncertain, for an executor was not bound to distribute equally, but might give a preference to any creditor whom he thought fit to select. But the opinion of Lord Ellenborough on this point was questioned by Parke, J., in a late case before him at nisi prius, (1) in which he ruled that an unsatisfied creditor- was a competent witness for an administrator upon a plea of plene administravit ; and the authority of the case of Paull V, Brown was fully upheld by the Court of King's Bench in the case oi Noioell v. Davis. (2) Crodiiorsof It will be observed, that there is a material difference be- &". assign- tween these cases and the class of cases collected in the pre- '"&• ceding chapter, which decide that the creditor of a bankrupt or insolvent is incompetent to increase the fund : for in the latter cases the assignee is under an obligation to distribute equally amongst all the creditors, to whom, therefore, the fund prima facae belongs, and whatever is either added to, or taken from the fund, must naturally be presumed to be for the ad- vantage or disadvantage of the creditors. But even in these ca- ses, if the creditor has assigned his debt, though only by parol, his competency will be restored, for he is then a mere naked ^j^^^ ,^^g_ trustee, having no beneficial interest whatever. (3) It may, in- tees, &c deed be laid down as a general rule, that mere trustees and ex- ^"'"P^"^"'- ecutors in trust are not rendered incompetent by an interest (6) Craig v. Cundoll, 1 Campb. 3S1. vency or inso]ven€y of the estate, but it (1) Uavies d. Davies, Mo. & Ma. appears difficult to understand how this 345. can aUer the question with respect to (2) See per Lord Dcnman, C. J., 5 the competency of a creditor. See per • B. £i Ad. 371. Ill neither of the last Parke, J., S. C. 5 B. fc Ad. 370. two cases does it appear that any evi- (3) Heath v. Hall, 4 Taunt. 326. dence was given with respect to the sol- Granger v. Furlong, Bl. Hep. 1273. (a) See ante, note (h) p. 43. Executors and administrators and other trustees are competent witnesses for pur- chasers of personal property claiming under their sales ; and if objected lo on the ground of special liability to their vendees, that objection must b? proved by the party objecting, before llie court will reject their evidence. Archer, J. in 1 H. &: G. 176. The rule appears to be well settled that trustees are not jointly liable to the ces- tui que trust, unless they are made so by some joint act ; each is responsible for his own acts and for the money he receives. Kirby v. Turner, 1 IJop. Ch. It, 309 ; Morrell v. Morrell, 5 J. Ch. 11. 2'.)0. See also De Forest v. Parsons and .lewett, 2 Hail, 130. The responsibility of trustees to account for and pay over the trust fund is, in iis nature, separate and distinct. Where executors are made liable to costs by statute, they are not competent wit- nesses. 1 1 Mass. 527 ; 12 id. 358. In Hawley r. Brown, 1 Root, 4!M, the ex- ecutor declined the trust, and his wife was admitted as a witness. See further as to the admission of executors as witneescs in S Conn. 253. 110 Of the Nature of the Interest [Ch. 8. which is, as far as they are concerned, only nominal, (4) If a trustee has a beneficial interest, or is exposed to any immedi- ate liability in respect of costs, that may be another ground of objection, but without such interest or liability, trustees and executors are competent witnesses. (5) In an action by a bankrupt against his assignee, the official assignee is a compe- [ *120 ] tent witness to sustain *the bankruptcy, for his allowance is uncertain, and depends upon the discretion of the commis- sioner. (1) Other px- Jq an action on the case by a reversioner, for an injury done to his inheritance by a stranger, the tenant in possession is a Anions re- Competent witness to prove the injury. (2) In an action be- speciing re- t^v'ecn a vcudor and the purchaser of lands, a former vendor, al property. it- i • who has sold without warranty, is competent to prove the ti- tle. (3) (a) An executor is also competent to prove the sani- (4) See 1 Mod. Rep. 107. Goss v. and cases tliere cited as to the rule in Tracy. 1 P. Wins, 287. Gilb. Evid. equity. 123. 1 Bl. Rep. 366. (1) Giles v. Smith, 1 Mood. & Rob. (5) Goodtitle v. Welford, 1 Doug. 443. 140. Bettison v. Bromley, 12 East, (2) Doddington v. Hudson, 1 Bing. 250. Per Mansfield, C. J., 4 Taunt. 257. 328. PhippsD. Pitcher, 6 Taunt, 220, (3) Busby v. Greenslade, 1 Stra. 445, See 1 Ball and Beatty's Rep. 100, 414, In chajicery it is settled, that defendants on the record may be witnesses. Neil- son V. M'Donald, 6 J. Ch. R. 204 ; and at common law an executor having no interest, era mere trustee may be a witness. 12 Mass. 360. (rt) See Jackson v. Frost, 6. J. R. 135 ; 4 Conn. 482. The grantor in a deed of land, if released, is a pioper witness to prove the plain- tiff's claim in ejectment. 15 Wend. 164. Or, if he has conveyed without war- ranty, he is admissible either in support of, or against the title which he conveyed. 2 Hill's R. 444 ; 2 Binn. 108 ; 6 id. 500 : Doe v. Herbert, 1 Breese, 281 ; 3 Wend. 386 ; Lokerr. Haynes, 11 Mass. 498. Where the witness had given two deeds — the first a warranty deed, and the second a quit-claim, Held, that he was a competent witness for the latter deed ; his interest being rather to su.stain the deed he gave with warranty. Wise v. Tripp, 13 Maine, 9. See 9 Pick. 348. In the case of Twambly v. Henly, 4 Mass, 441, Borland (the witness) claimed to be seized of the land detnanded, on the first day of .lanuary 1776, by his deed of that date, conveyed it to the demandant, with a covenant that he hud full power, good right, and lawlul authority to sell the land, and a further covenant of warranty against all persons claiming under him. Plaintiff counts on his own seizin against Henly, who did not claim under Boland ; and to prove his title, offers Boland as a witness, who is excepted to, as being interested by reason of his covenants. The demandant insisted that he was'"not interested, because he could not be liable on warranty. Although the judge at the trial rejected the witness, the court on mo- tion granted a new trial, saying : — "The witness ought to have been admitted and his credit left to the jury. The two covenants in the deed are perfectly consistent; the first amounting to a covenant that the lands should pass by the conveyance. And this covenant is not broken, if Borland was in fact seized, either by vvrong, or by defeasible title. ' The covenant of warranty,' said Parsons, C. J., ' cannot be broken, but by an eviction or ouster, by some title paramount to the grantor's and this latter covenant does not control the former one.' — ' Whether the covenant was or was not broken cannot depend on the event of this suit ; neither is the verdict in this case, evidence in an action against him by his grantee for the breach of this covenant- If the demandant recover, still if Borland had no right to convey, he is answerable to the demandant in action of covenant broken, and cannot defend Jiim- flelf by this verdict. If the demandant fail, and he sue the witness for the breach Ch. 8.j which disqualifies. Ill ty of the testator in an action of ejectment concerning his real property. (4) In none of these cases does the witness gain or lose directly by the event of the suit, and as the verdict could not have been evidence for or against him in any subsequent action, he was not incompetent upon this ground even before the latter species of disability was removed by the late stat- ute. Upon similar grounds it has been decided, that in an ac- tion for mismanagement of a farm the sub-lessee of the defen- dant is competent to prove its proper cultivation. (5) And in a recent case, where in an action of trespass, the defendant pleaded liberum tenementwn in a third person, and justified under him, and it appeared at the trial that the plaintiff also claimed under a conveyance from the same person, who had subsequently conveyed the land without warranty to the de- fendant, and after that had taken a mortgage of the lands from the defendant, it was decided, that such person was a compe- tent witness for the defendant, for he had no legal interest in the event ; the objection, as to his coming to impeach a for- mer conveyance to the plaintiff', would not effect his compe- tency but only his credit. (6) (a) In an action on a policy of insurance on goods, where the Po''<^y o*" ^ •' . ..-''.. ,, , Insurance. only question was concernmg the orignial destmation of the Captain, ship, the captain had been considered competent to give evi- dence for the plaintiff respecting that fact, though he was a part owner of the ship, and as such, liable to the owners of the goods, in case *the ship had unnecessarily deviated from the [ *121 ] voyage ; but if the question had turned on a deviation, he could not have been examined. (1) So in an action of trover by assignees of a bankrupt, for Assignees goods in the possession of the defendant, who had obtained ofbankrupi. them under a sale from the bankrupt, (the validity of which transaction the plaintiffs disputed,) a third person was held competent for the defendant, to prove that the goods belonged neither to the plamtiffs nor to the defendant, but to himself. (2) (4) Doe V. Teage, 5 B. & C. 335. (2) Ward v. Wilkinson, 4 B. & C. (5) Wishaw v. Barnes, 1 Campb. N. 410, and see Nix v. Cutting, supra, p. P. C. 141. Qm. as to any liability over 103, the same doctrine was applied in in this case. ejectment for tithes. Doe d. Bath v. (6) Simpson v. Pickering, 5 Tyrw. Clarke, 3 Bing. N. C. 429. 143. (1) De gymonds v. De la Cour, 2 N. R. 374. of this covenant, the plaintiff cannot give this verdict in evidence to maintain his action.' {a) In Seymour v. Beach, 4 Verm. 493, which was ejectment by one claiming under levy of an execution against one claiming under a deed from the execution debtor which was prior to the levy, Held, that the debtor was not a competent wit- ness for the plaintilf to prove that the conveyance (o the defendant was fraudulent. But the plainlitr although suing as administrator of the levying creditor may restore the competency of such witness by discharging him from liability on the judgment. 112 Of the Naliirc of lite Interest [Cli. 8. Action on ij jijig y^iyo becii licld, that in an action on a contract, in order coiilract. , y .1 1 /■ • /• , to recover damages lor the loss ol some copies oi a work, whicli loss was alleged to have been occasioned through a breach of the defendant's contract to insnre them from fire, a %vitness who had purchased a number of the copies from the plaintilf, but was not privy to the contract with the defendant, was competent on the part of the plaintiff to prove the con- tract. (3) In an action for infringing a patent, a purchaser of a license to use the patent is a competent witness for the ses. (a)^" plaintilf. (4) And in an action for falsely representing the cir- cumstances of a person who was insolvent, that person is com- petent on the plaintiff's part to prove his insolvency. (5) Witness bp- ^ witness will not be disqualified, because, through a mis- »eiriiiter- takcu vicw, he may believe himsell to have an interest, which csted. Y\e does not possess. It is true, if a witness believes himself to be interested, the impression on his mind, and his bias in favour of the party calling him, may be as strong, as if he were legally incompetent. But the difference is, that in the one cases, the inquiry is more simple and more easily defined; (") RlavviiKin V. Gillctt, 2 Tnant. vvnnnnt tlio infijrence ; l)tU it would o25, n. 'I'his case" has beon sometimes seem that this proposition cannot be sup- cited as deciding, that a dormant partner ported. See ykJHner v. Stocksj 4 B. ii ■of the plaiiitili'iiiay be a witness for him A. 4-7. Against the defendant, where there has (4) Derosne v. Fairlie, 1 fliood. &. been no privity of conimunication rela- Rob. 457. live to the contract on his part, and the (5) Smith v. Harris, 2 St:irk. 2 P. C. language of IVlansfield, C. J., appears to 47. In Edgel! v. Lowell, 4 Verm. 405, it was held, that one wlio issupposedfo have conveyed away his property to defraud creditors, was competent for the purchaser to prove tlie conveyance not fiaudulent. (a) In Ring v. franklin, 2 Hall, I, where the plaintifl's sought to charge the de- fendant as owner of the ship ; after they ofiered /^rj/na /«cJe evidence of that fact, the defendant ollered M., the mortgagor of the ship to prove the nature of the trans- fer to the defendant ; and to prove that although the conveyance was absolute on the face of the deed, it was in truth conditional : — that defendant never had posses- sion of the ship, and never received any of her earnings, and never in any manner interfered with the control of the vessel by IM., until long after the repairs in ques- tion were made : Held, that he was competent to testify. Oakley, J.^ said : — *• His incom()etency, however, is sup|)0sed to consist in this, showing himself to be the mortgagor of the ship, and in the exclusive possession of her, it is contended, that in case of a recovery by the plaintitis, he would be liable to indemnify the de- fendant against the costs of this suit, and that such an interest excludes him as a witness, on the authority of IJubbly r. Brown, 16 J. 11., 72. I cannot perceive how the defendant in this case stands in the relation of surety for !\Jinturn, for the repairs made to the vessel. The del'endant, if liable at all, is so as owner, or mortgagee in possession. If liable in either character, he was bound to pay in the tirst instance, on the ground that the contract for the repairs, in judgment of law, was made directly between him and the plaintitrs. lie could then have no pre- tence to call on M. to indemnify him against costs. He might charge him with the amount paid for repairs, as an expenditure on the vessel, while in his possession, but could not demand the costs of ght be necessary to examine him on a great variety of points, which after all would be more proper for the consid- eration of a jury ; as for example, on the nature of the benefit he expects, the reasons for his expecting it, or the impression which such an expectation might have produced on his mind.- Such an inquiry would in all cases be extremely indefinite, and would lead to great inconvenience. The course, therefore, uniformly taken, is to inquire, not into the state of the wit- ness's belief on the subject, but to ascertain whether or not, as a mattet of fact, he has any existing legal interest in tho event of the suit. Thus it has been held, that a witness who believes himself Honorary under an obligation of honour to indemnify the bail in an ac- " '° tion, is not incompetent, unless he has in fact entered into an engagement to that effect. (1) Such an obligation is in gen-^ era! of a nature so uncertain and variable, that it cannot safely be recognized in courts of justice as a motive of conduct. Be- sides, where the sense of honour is so strong and binding as to influence a witness against his interest, it must be unnecessa-- ry to reject the witness ; as the same principle, which would induce him to pay the costs, would oblige him, in giving his evidence, to speak only the truth ; and, in cases where the sense of honour is less firm and imperative, the ground of the objection fails, since the witness is not bound in point of law, and does not feel himself absolutely bound in point of morals. But, independently of this reasoning, another more general answer is, that the ends of justice are most effectually attain- ed by a full and complete investigation of the subject in dis- pute ; and, unless the objection to the witness is founded on a strictly legal interest, he will be admitted to give evidence. In the case supposed, of a witness who says he thinks himself bound in honour to pay the costs, it might be injurious to the party who calls him, to be deprived of his testimony on ac- count of such a fancied obligation ; more especially, as it is an obligation, which may easily be pretended by the witness, *but which it is scarcely possible for the court justly to appre- [ *123 J ciate, and which, from the nature of the case, the party cannot release nor enforce against the witness ; on the other hand, his testimony may not deserve all the credit due to a witness free from bias, and it ought therefore to be strictly examin- (1) Pederson v. Stoffles, 1 Campb. see Folheringham r. Greenwood, I Str. 145, S. 1*., said to have been ruled cun- 129. tra, in an old case, by Parker, C. J.; 15 (*) 114 Of the Nature of the Interest [Ch. 8. cd and sifted. The witness, then, is to be heard, but his evidence is open to observation. (1) (a) Interest on Cases not unfrequently arise, in which a witness, who has both sides. ^^^ interest inchning him to one of the parties to a suit, has also an interest inchning him to the opposite party. These cases have been adverted to in the last chapter, where it has been shewn, that if the interest on one side be greater than that on the other, the party will be an incompetent witness ibr the side on which his interest preponderates ; but where the liability or interest, on the side on which he is called, is counterbalanced or outweighed by an equal, or greater liability or interest on the other side, he will be competent. Thus, in an action of assumpsit for money paid to the'use of the defendants, who were ship-owners. Lord Kenyon admit- (1) There are several dicta in support P. by Perryn, B., in Newiand's case, I of the position, that a witness is not Leach, Cr. C. 353. And see a case tri- competent, if he believes himself inter- ed before Lord Mansfield, cited by ested, whether he is or is not interested counsel in Rudd^s case, Leach, Cr. C". in strictness of law. By Pratt, C. J., in 154. See also the case of the Amitie, Fotheringhani v. Greenwood, 1 Str. 129, Villeneuve, 5 Robinson, Adm. Rep. 344, cited and approved by Lord Loughbor- n.; and the case of the Galen, 2 Dod- ou"h, C. J., and by Gould J.,- in Tre- son, Adm. Rep. 20. lawney, v. Thomas, 1 H. Bl. 307. S. (a) Although there is high authority in favor of excluding the witness upon the ground of an imaginary or honorary obligation, which he honestly believes he has in the event of the suit ; 4 Mass. 518 ; 1 Conn. 282 ; 2 Mumf. 148 ; 8 J. R. 428; 1 Dall. 62 ; 2 id. 5 ; 4 Bibb. 445 ; 2 J. J. Marsh, 390 :— The weight of authori- ty is very clearly different ; so that the law seems to be well settled, that an hono- rary obligation, without a legal interest does not render a witness incompetent. See3 S. & R. 130 ; Peck, 108; 4 S. & R. 222 ; 3 G. & J. 282 ; 6 Conn. 365 ; 4 Wend. 292 ; 17 id. 101. On the other hand, a witness really interested shall not be received, because he thinks he is not so. 17 VVend. 101— Cowen. See Ry. & Mo. 388 ; 8 J. R. 462 ; 9 id. 219 ; 4 id. 292. (6) See 16 John. R. 72 ; 2 Ilall, 21 ; Rice v. Austin, 17 Mass. 197 ; Mar- shall r. Davis, 1 Wend. 109 ; Frost v. Hill, 3 id. 386 ; 14 id. 593 ; 17 id. 18, to the point that where the interest of the witness is neutralized, so that it is a matter of pecuniary indifference to him which succeeds ; as where he is equally answera- ble, or has an equal remedy, whichever way the result of the suit may be ; the witness can lose nothing, he is competent to testify. In the case cited from the 14 Wendell, it appeared, that the witness though, liable to defendants, the complain- ants were liable over to him, which neutralized his interest. In Lake v. Auborn, 17 Wend. 18, it appeared that the witness would be liable to the costs of the defence if the plaintiff did not recover ; but as it also appeared that he held a bond suffi- cient to indemnify him against such costs, he was held to be a competent witness. A witness who is to gain or lose nothing by the event of the suit, is indiflerent be- tween the parties litigant. 2 Hill, 484 ; 7 Cowen, 358. In an action by the landlord against a third person, the tenant was admitted to testify as to the contract by which the rent was reserved to be paid. Thus, in a proceeding by the landlord against the sheriff, where the latter was sued for not pay- ing over money collected on the sale of the property of the tenant to satisfy a mort- gage : Held, that the tenant was a competent witness, because if the landlord's right to recover was defeated, he still might recover his rent of the witness. It is true, it might, as to a third person, defeat the landlord's right of distress, but this could not benefit the witness. 2 Hill's R. 484. He is, in some sense, said the court, indifi'erent between the parties. He owed them both ; and the discharge of one debt by the sale of the mare, will leave the other unpaid, and to be paid by him. tractors. Oil. 8. J tvhich disqualifies. 115 ted the captain as a witness for the plaintiff, to prove that he had received the money for the defendants' use ; for he stood indifferent between the parties, and, which ever way the ver- dict might go, he was equally answerable. (2) (a) So, in an ac- tion of covenant for rent, where the point in issue was, wheth- er A. B., whose title both the plaintiff and defendant admit- ted, had demised the premises first to the plaintiff or to anoth- er person, A. B. was considered a competent witness for the defendant to prove the fact, the Court saying that it was a matter of indifference to the witness, whether he had one per- son or the other for *his tenant, and though he might feel in- [ *124 ] clined to prefer one tenant to another, this .objection would go to his credit only, and not to his competency, because the ver- dict could not be given in evidence in any action to be brought by or against him. (1) (6) Several cases, relative to the competency of witnesses equal- Joim coa- ly interested on either side, have arisen with regard to co-con- tractors and partners. In an action on a bond against one of several obligors, another of the obligors is competent for the plaintiff to prove the execution of the bond. (2) (c) And in an action on a promissory note against one of several joint makers, a maker of the note who is not sued is competent to prove the defendant's signature. (3) In these cases it has been said, if the plaintiff recover, the witness will be liable to the defen- (2) Evanjj v. Williams, 7 T. R. 481, (t) Bel! v. Harwood, 3 T. R. 308. n. (c.) Rocber v. Busher, 1 Stark. N. (2) Luckett d. Graham, 1 Stra. 35. P. C. 27. (3) York v. Biott, 5 M. & S. 71. (a) The master of a vessel is competent to prove the loan of money abroad for the purpose of the voyage in an action against the charterer. 8 Greenl. 298. So also in a suit by tlie vendor of sliip-stores brought against the owner of tlse ship, the master is competent to testify for tiie plaintiff". Browne's R. 85. (&) Ahhougli a recovery in tlie suit v/ould operate to extinguish the witness' del)t ; yet if he would be liable over for the same amount, he is a competent wit- ness. 4 J, R. 12G. In Benedict v. Ilecox, 18 Wend. 490, two persons were sureties to the maker of a note, and one of such sureties being compelled to pay the note, brought bis action against the principal debtor to recover back the money paid : Held, that the co-surety was competent to testify for the plaintiti'. .And on the other hand, if one surely sues iiis co-surety for contribution, the principal debt- or stands indillerent ; he is not liable to the costs and has no concern in the contro- versies of tiie sureties between themselves, (i Pick. 419. .See also Frost v. Hill, 3 Wend. 386. 15ut the witness must stand entirely indifferent as to the event, so that his interest cannot in any degree be afTected l)y it ; — if in one event, his liability is diminished, be is not a competent witness for that party and to produce that event. Harwood V. Murphy, 4 Hals. 21fi. (c) .See Lovett v. Adams, 3 Wend 380. In United States v. Leffer, 11 I'et. R. 86., which was an action on a joint and several bond ; Held, that the defendant, the principal, was admissible, allhougb it appeared that be had confessed judgment on the bond by a cognovit actionem ; but he bad been discharged from confinement on the execution under the insolvent laws of the United States : — He having also been released by bis co-ol)ligors. But a surety on a bond, given to obtain a release from the sequestration, which the plaintiff had obtained at the commencoment of the suit, cannot be admitted to testify for the defendant. 19 Matt. R. 372. 116 Of the Nature of the Interest [Ch. 8. Partners. dant for contribution ', if the plaintiff fail, he may resort to the witness for the whole, and in that case the witness will be entitled to contribution for the defendant ; so that in eith- er point of view the witness stands indifferent between the parties. So also in assumpsit for goods sold and delivered, a witness, who admitted himself to be a partner of the defend- ant, was held competent on the part of the plaintiff to fix the defendant's liability. (4) And in an action charging the de- fendant as a partner in a trading company, a witness, proved to be himself a share-holder, was held competent on the part of the plaintiff to prove that the defendant was a partner. (5) Upon the same principle, in an action of contract in which the defendant pleads the non-joinder of a partner a co-contrac- tor in abatement, the alleged joint contractor is a competent witness of the plaintiff to negative the plea, (6) for it is in- different to the witness, which way the verdict goes. Indeed, if he be in fact a partner, the verdict in favour of the plaintiff would rather be prejudicial to him, for he would then be lia- ble to contribution, increased by the amount of the costs. In the one way, therefore, the verdict would be indifferent, in the other prejudicial. (7) («) *Prom the case of Ridley v. Taylor, ( 1 ) it appears to have been considered by the court of King's Bench, that in an ac- [ *125 ] tion by the indorsee against the acceptor of a bill drawn in the name of a firm, a member of the firm was a competent wit- ness for the defendant, to prove that the bill had been drawn by one of the partners in fraud of the rest, and indorsed by him to the plamtiff for a separate debt, (b) Partner of drawer of bill (4) Blackett v. Wier, 5 B. & C 385. (3) Hall V. Curzon, 9 B. & C. 646. (6) Hudson v. Robinson, 4 M. & S. 476. Cosham v. Goldnay, 2 Stark. N. P. C. 414. (7) By Lord Ellenborough, 4 M. & S. 479. We have seen in the last chap- ter, that on account of the superior lia- bility for costs, the witness has been held incompetent for the defendant. (I) 13 East, 175. (a) See also Pike v. Blake^ 8 Verm. R. 400 ; M'L,alne v. Batchelor, 8 Green). 324. In Fox V. Whitney, 16 Mass. 118, it was held, that in an action sued by the payee against the maker of a note, the defendant might call a party to the note who was a mere surety to testify for hiin, the surety not being liable to contribution. (b) See ante p. So, note (a.) Ridley v. Tar/lor — In Dpb v. Halsey, 16 J. R. 38, Ch. J. Spencer observes, that the " difference between the decisions of this court and that of the King's Bench, consists in this : We require the separate creditor who has obtained the partnership paper of the firni for the private debt of one of the partners, to sijow the assent of the whole firm to be bound. The rule of the King's Bench throws the burthen of avoiding such security on the firm, by requiring them to prove, that the act was covinous, on the par.t of the partner, for whose private debt the paper of the firm was given, by showing that it was done without the knowledge, and against the consent, of the other partners, and that the fact was known to the sepa- rate creditor when he took the paper of the firm." Sea also 3 Wend. 415 ; H id. 141 ; 5 Pick. 11 ; 11 S. & R. 387. Ch. 8.] which disqualifies. 117 In actions on negotiable securities many instances arise in tenons on , . , . , " . ■' . , hills and which parties to the instrument are competent witnesses, by notes. reason of an equal liability on either side. It has already been mentioned, that in an action ao;ainst one of several ma- Competcn- ' . . o cy of joint kers 01 a note, a joint maker not sued is a competent witness maker of for the plaintiff. And in an action against the acceptor of a "'"^*" bill, the drawer is a competent witness for either party. (2) ^"^^^ °^ Thus, he has been admitted for the plaintiff, to prove the de- fendant's hand-writing to the bill ; (3) (a) and he has also been admitted for the defendant, to prove payment of the bill, (4) and also to impeach the plaintiff's right to recover, on the ground of an usurious consideration. (5) If, however, the bill has been accepted for the drawer's accommodation, the Accommo- drawer is incompetent on behalf of the acceptor, (as we have drawer in- seen in the preceding chapter) on the ground that he is not 'ompeieiit merely liable to the acceptor for the amount of the bill, but is am, also bound to indemnify him for the costs of the action ; (6) in this case, however, the drawer will be rendered competent by bankruptcy and certificate. (7) In an action on a promissory note or bill by an endorsee, Compeien- the indorser is in general a competent witness, either for the ser°'""^°'^' plaintiff *or the defendant. He may be called by the plain- [ *126 ] tiff to prove his own endorsement, (1) and by the defendant to prove that the bill has been paid, (2) or that it is void on the ground of not being properly stamped, having been actu- ally made in London, though dated in a foreign country. (3) In these cases there is no interest to disqualify the witness from giving evidence for the plaintiff, for although the cir- cumstance of the plaintiff succeeding in the action may pre- vent him from suing the witness, it is not certain that it will have this effect ; and whatever part of the bill or note the in- dorser is compelled to pay, he may recover again from the drawer or acceptor ; the witness is also competent for the de- (2) Dickinson u. Prentice, 4 Esp. N. (6) Supra, p. 106. Jones v. Brooke, P. <\ 32. 4 Taunt. 464. (3) Dickinson v. Prentice, 4 Esp. N. (7) Ashton v. Longes, Mo. & Ma. N. P. C. 32, P. C. 127. (4) Humphrey «. Moxon, Peake, N. (1) Richardson v. Allen, 2 Stark. N. P. C. 52. See Pool v. Bousfielcl, 1 P. C. 334. Campb. 55. Le Sage v. Johnson, For- (2) Charrington v. Milner, Peake, N. rest, 23. (9 Mass. 55.) P. C. 6. (5) Rich V. Topping, Peake, N. P. (3) Jordaine v. Lashbrooke, 7 T. R. C. 224. Brard v. Ackertnan, 5 Esp. 601. 119. (a) See 9 Mass. 55 ; 3 N. II. 115. In an action by the endorsee against tlie acceptors, the drawer has been heiil not / to be competent to testify for the ptaintitl" ; for if the plaintitF prevails, he will be li- able to account to the defendants to the amount of the bill only. If the defendants eucceed, he as drawer, will be answerable to the plaintiff, as holder, not only for the amount of the bill, but also for charges, damages, and interest. Sttott v. M'Lellen, 2 Greenl. N. 199. lis Of the Nature of the Interest [Ch. 8. fendant, for if the plaintifl' fail lie is not prevented from suing the witness. (4) [a] (4) See Ba^'ly on Bills, 5tli edit. 536. (a) See 11 J. R. 128 ; 2 N. H. R. 212 ; 6 Cowen, 484. In Barker v. Pren- tiss, 6 Mass. 439, which was an action by the endorsee against the drawer, the en- dorsee was admitted as a witness to prove that iiis endi)rseinent, although not lim- ited in its terms as to its use, was in fact made for the use of the payees, and as such was received by the plaintiff. Parsons, C. J., observes in reference to the ob- jection to the witness, *o control the effect of his endorsement : — " This objection must rest, eillier on the interest of the witness, or on some principle of legal policy, by which lie is excluded As to his interest, if the plaintiff fails in this action, lie cannot have recourse to tiie witness (the endorsement being ivithout recourse,) because iiis endorsement specially guards against such recourse. If he has any in- terest, it is that the plaintiff recover, and his testimony being jigainst the plaintifT, is against his interest. On princi|)les of legal i)olicy, an original party to an usuri- ous or gaming negotiable security, vvhich is void in the hands of an innocent pur- chaser, shall not be a witness against such a purchaser, because his testimony is to establish the original fraud, by enabling a fraudulent party to raise money on such security, and afterwards to protect him from any liability on his endorsement. But a party to such security, when disinterested, may be a witness to prove any subse- quent facts, which admit the legality of the instrument in its original form. So, in Powell v. Waters, 17 J. II. 176 ; 8 Cowen, 669 S. C, a second endor- ser was considered an admissible witness for the first, in an action against him by the second endorsee, his interest being against the parly calling him. An endorser cannot sue his endorsee. On the other hand, he is incompetent to prove notice of non-acceptance where the action is brought by a subsequent endorsee against the first endorser. Talbot v. Clark, 8 Pick. 51. The vexed question in respect to the admissibility of a party to negotiable paper to invalidate it by his own testimony has been adverted to in Ibrmer notes, (see p. 41. n. (a) and p. 104. n. (a)). The earlier decisions in New York, were for ex- cluding the witness who was a party to negotiable paper; 3 J. Cas. 185 ; and in subsequent cases the rule was considered as so well established, that he could not be permitted to prove it usurious, where the holder was apprised of the fact of usu- ry at the time he received the note ; 14 J. R. 273. Still later decisions, however, seem to have gone to the full extent of the doctrine in the text. Tuthill v. Davis, 20 J. R. 285 ; Stafford v. Rice, 5 Cowen, 23 ; It is now laid down, that every person not interested in the event of the suit, not incapacitated by his religious te- nets, nor by the conviction of an infamous crime, is a competent witness. Bank of Utica V. Hilliard, 5 Cowen, 153. In Barretto v. Snowden, 5 Wend. 181, which was an action sued by the endor- see against the maker, the indorser was considered competent to prove that the consideration of the note was not usurious ; it not appearing that he was liable on the note. In Manning v. Wheatland, 10 Mass. R. 502, it was held, that an indorser was not competent to establish usury in the negotiation of the note by him. But the decision in this case has been doubted in Knights v. Putnam, 3 Pick. 184 ; and in Fox et al v. Whitney, 16 Mass. 118, — Wilde, J. says :— " The authority of that case has been questioned, and the objection to the doctrine, as there laid down, was entitled to great consideration. The witness was held to be incompetent, not be- cause lie was interested, but on the ground of legal policy, which will not permit one who has transferred a negotiable security as valid, to invalidate it by his testi- mony ; but in that case, as in this, there was no illegality in the original contract, and no usury except in the transfer, in which the plaintiff himself was the guilty party." In Kent v. Walton, 7 Wend. 256, which was sued by the endorsee against the maker ; and the deposition of the second endorser was offered to prove the declara- tions of the payee that the note was lent to him by the maker, without considera- tion, and that the payee was dead : Held, that the evidence was not admissible. In Van Schaick v. Stafford, 12 J. R. Ch. J. Spencer says : — "The promissorand endorser stood in the relation of principal and surety ; and, one being sued, we think tlie other, being divested of all pecuniary interest by the release, was a com- Ch. 8.] loJiich disqualijies. 119 If a bill has been drawn for the accommodation of the in- Afc"m.mo- , . . r- ^ ^ • ■ m elation 111- dorser, he is a competent witness lor the plamtin, to prove dorsre or that the latter save him value for the bill : (5) for the reason, f'f^^^er— o \ / 7 conipelent upon which an accommodation drawer or indorser has been for piaimiff. held incompetent for the defendant, namely on the ground of a liability to costs, does not apply, when the witness is called on the part of the plaintiff. And in a very recent case, where a bill had been accepted for the accommodation of the drawer, who had misapplied the bill, and the acceptor brought trover to recover it from a third party, it was decided by the Court of Common Pleas, that the drawer was a competent witness for the plaintiff, on the ground that which ever way the ver- dict went, he would be liable to one or other of the parties, and therefore stood indifferent. It was argued in this case, that if the plaintiff failed, the witness would be liable to him for the costs, but the Court said there was no principle, upon which the witness could be held liable to the plaintiff for the costs of an action, which the latter was unable to sup- port. (6) {a) (5) Shuttleworth v. Stephens, 1 (6) Fancourt v. Bull, 1 Bing. N. C. Campb. 408. ' 6SI. petcnt witness to prove that the plaintifl" himself received the security open a cor- rupt and u-jurious contract." See 2 Yerg. 11. 35 — 1 Ilawie, 195 ; 3 Rl'Cord, 71. So, in Hartford Bank v. Barry, 17 Mass. 94, it was laid down generally, that a party to the note if disinterested is competent to prove usury in the transfer. In Knights v. Putnam, 3 Pick. 184, it was ruled, that the indorser could not ho a witness to qualify his endorsement by establishing an interest in himself. But in Adams t'. Carver, C Greenl. 392, it was held, that such indorser was competent to prove the time of the indorsement and facts /jrfor not affecting the original validity of the note. In an action by the endorsee against the maker, the endorser was admitted as a witness for the plaintiff'; he having been released ; — although it appeared that on one of the notes sued in tiie same action, the witness was the maker and the de- fendant endorser ; for he was not thereby interested in the event of the suit. East- man V. Winship, 14 Pick. 44. (a) In i\Iyers v. Palmer, 18 J. R. 167, the defendants indorsed nn accommoda- tion blank note ; and received the promissory note of the maker which they en- dorsed to the plaintiff': Held, that the maker as well as a subsequent endorser was competent to testify that the plaintiff" had improperly procured the blanks to be fill- ed will) a much larger sum than was agreed upon. In the case of the U. S. Bank v. Dunn, 6 Pet. 51, the second indorser was of- fered to prove that Scott, the maker of the note told him, that one VV. had pledged stock to pay the note ; also that one of the ollicers of the bank said that the names of the indorsers were required for i'orin sake only ; and consequently witness pro- cured defendant to indorse the note ; the witness and defendant both being volun- teers and indorsers without consideration. Held, that the witness was incompetent. The rule, that one whose name appears on negotiable paper is to be excluded on the ground of policy is applied only to the case of a witness called to testify against a bnna fide holder of the bill or note. But he may be called to show that after the note had been drawn and indorsed and delivered to a third person for a particu- lar purpose, that a third person fraudulently put the note in circulation ; Woodhull V. Holmes, 10 J. \l. 231 ; or to prove that the present holder of the bill or note is not a bona, fide holder. Povvel v. Waters, 17 .1. R. ; 8 Cowen, 670, S. C. So, where the note or bill is indorsed without recourse, the indorser is a compe- tent witness. Mott V. Hicks, 1 Cowen, 535 ; 15 .1. R. 1. Bat in Herrick v. U hitncy, 15 J. R. 240, where the note was made payable to 120 Of the Nature of the Interest [Ch. 8. Kclmonds v Lowe, ac- ceptor, lia hie lo ill- deniiiilv. Case of #it ^y^as licld ill the case of Buckland v. Tankard, ( 1 ) that in Buck/and . . , ■ i c v.Tavkard. ail actioii by an endorsee aganist the acceptor, the mnorser oi [ *127 j a bill was incompetent lor the defendant to prove that he in- dorsed the bill to the plaintilf, upon trust to enable him to ob- tain payment from the defendant on account of the witness himself, and not for any consideration, or with intent to con- vey any interest on the bill. The reason given for the re- jection of the witness was, that if the plaintitf succeeded, the witness would be put to much greater difficulty in getting back his money than if the plaintiff were defeated ; but the principle of the decision appears doubtful. We have seen, that in the case of Edmonds v. Lowe, (2) which was an ac- tion by an endorsee against the drawer of the bill, the accep- tor was held incompetent for the defendant to prove that the plaintitf had received the bill from him upon condition that he should get it discounted, and that he had not done so ; but this was upon the special ground, that under the circumstan- ces of that case the acceptor would have been liable to in- demnify the defendant against the costs, if the plaintiff ob- tained a verdict. In an action by the indorsee against the indorser of a pro- missory note, the maker is a competent witness for the plain- tiff, for if the plaintiff succeeds the witness will be liable to the defendant, and if the defendant succeeds the witness will still be liable to the plaintiff : and his liability to the one can- not exceed his liability to the other. (3) And the maker is also, on the same ground, a competent witness for the defen- dant ; as, to prove that the date of a note had been alter- ed. (4) («) But it has been ruled, that in an actioii on a bill against the drawer, the acceptor is not competent for the defen- IMaker of fironiissory note. Acceptor o bill. (1) 5T. R. 578. (2) 8 B. & C. 407. Supra, p. 105. (3) Venning v. Shuttleworth, Bayly oil Bills, 4th edit. 536. (4) Levy v. Essex, Chit. Bills, 413, 7th edit. hearer, the payee was considered incoiripetsnt to testify, that he transferred tho note lo a third person wiiliout recourse to him ; the witness would be liable on an implied warranty that the note was genuine. See also 16 J. R. 101. \\ here the endorsee sues the maker, the endorser is not competent lo testify that he pledged the note as collateral security only, although the defence related to ihe amount of damages which the plaintiti" was enliiled to recover ; the indorser hav- ing given a release of his interest. Knights v. Putnam, S I'ick. 184. (a) tjee .Abal v. Rion, 9 Mail. R. 46.5 ; Skelding r. Warren, 15 .T. R. 275 ; Ilubbly V. Brown, 16 id. 70. The case of Pierce v. I5uiler, 14 Mass. 303, is dif- ferent. And in Hartford Bank v. Barry, 17 id. 94, it was held, that the maker was not admissible to testify that the note was indorsed by the defendant at his re- quest ; it being an accommodation note. And see the observations of Daggett, ia 8 Conn. R. 319. A parly to the instrument is competent to prove facts happening after be gave it currency, if not interested. Warren v. ftlerry, 3 Mass. 27. Where the action was against the indorsers, it was held, thai the maker was competent to prove, that the note was given in the name of the firrii by one of the partners for liis own private debt. W'illiatiis r. Walbridge, 3 Wend. 415. Ch. 8. J which disqualifies. 121 daiit to establish a set-ofF, arising upon a bill accepted by the plaintiff and indorsed by the witness to the defendant, on the ground that the witness would be answerable to the drawer only to the amount recovered by the plaintitf. (5) *CHAPTEFx. IX. [ *128 ] OF CEKTAIN EXCEPTIONS TO THE GENERAL RULE ON THE SUBJECT OF INTERENT. It has been stated, as a general rule, that all persons who gaining or losing by the event of a cause are incompetent to give evidence. To this general rule, however, there are sev- eral exceptions, [a] Some of these exceptions depend upon acts of parliament : as, Avhere persons entitled to restitution of stolen goods, in- formers, inhabitants of parishes and other districts, are by ex- (5) Mainwariiig V. I^Iytton, 1 Stark, this vvniilc! be tlie cnse ; but in IMainwnr- 83. In Bayly on Bills, 4tli edit. 540, it iiig v. RIyiton, the set-off arose on a bill is observed on ibis case, "that if the indorsed by the vvitrie?s to the defendant ; drawer be protected against tlie iiolder and if the second bill was indorsed to by a cross demand against the liolder, the defendant, by way of satisfaction or \ qucsre, whether such cross demand, security for the amount of the first, it is when set-oil", is not equivalent to pay- clear, if the defendant ol)tairied the ben- ment ? And will not the drawer be en- efit oi' it by way of set-off in an action titled to call on the acceptor for the fidl on the first bill, i)e could not sue the amount of the bill, as much as if be liad witness, as he might have done, if he paid the full amount in money ?" In had been compelled to pay the fitst bill an ordinary case of set-otr, no doubt, from his own resources. (a) In courts of prize, no person is incon)petent on the ground of interest. 3 Wheat 435. Seamen are admitted to testify for each other, although they have a common interest in the point in contest. 1 Fet. Adin. R. 211. In any case where they have not a direct interest in the event of the suit. 'H J. R. 518. If the ques- tion be the loss of the ship — embezzlement equally affecting the whole crew — neg- ligence, misfeasance, or malfeasance, to which all must contiihule in damages, one of the crew cannot lie admitted to testify for another. 1 I'ot. Ad. R. 211. Sah'ors — Salvage cases constitute one of the class of excepted casej from the ordinary rule of evidence, by which a party is not permitted to testify in his own cause. But the exception arises from the necessity of trusting to that, or of being left without proof ; for in many cases no persons exist, who can testily to facts. A mere I'ormal release would not in substance vary the legal credibility of such testi- iriony, whatever it might do as ta its competency. Salvors, then, are ex iiecexsi- tate admitted as witnesses to all facts, which are deemed peculiarly or exclusively within their knowledge. To other facts they are incompetent. Per Story, 1 Sumn R. 4i>0 ; id. p. 329. A merchant or other person who makes tlie original entries in his books, is per- mitted, according to the practice in most, if not all of the New I'.nglaiid states, to make his supplementary oath respecting the charges. 3 Pick. 101) ; 4 S. & R. 3 ; 4 J.*awlf;, 407. It i- dillerent in New York ; ilierc, the honk is verified by the clerk, or if the parly has no clerk, liy persons with whom |)laiiitiir has hid dfaliiigs who testify that he keeps fair and honest bonks. 11 Wend. .^(iS ; 12 .1 11. 4(Ji. In Vermont, by statute, both parties are admitted to testify in actions on book accounts ; and each has a right to reriuire the testimony of the oiher. 2 Aik. R. 464. 16 122 Of Exceptions to the Rule of Interest. [Ch. 9. press enactment, or by necessary implication, rendered com- petent witnesses in proceedings, in the issue of which they are interested. Other exceptions arise from necessity or a principle of public policy : as, where evidence is received from agents, factors, or servants, — notwithstanding that they may gain or lose by the event of the particular cause, in which their testimony is required. Objections on the ground of interest, proceed upon the sup- position of an undue bias in the mind of the witness, and on the public utility of rejecting partial testimony. The pre- sumption of bias may be taken ofl' by shewing, that the wit- ness has an equal or a greater interest the other way, or that he has given up what interest he had. And the presumption [ *129 ] of public *utility may be answered by shewing, that it would be very inconvenient under the particular circumstances, not to receive such testimony. (1) In the last chapter, we have seen in what cases the bias, which is presumed to arise in the mind of a witness interested on one side of a particular cause, may be removed by shew- ing that such interest is counterbalanced by an equal or a great- er interest on the other side. In the present chapter, it is in- tended to consider the particular cases, in which, on princi- ples of public policy and utility, the admission of interested witnesses is allowed by the provisions of acts of parliament, or by the decision of Courts of Law. One of the most ordinary cases of exception to the general rule of interest arises in the case of the owner of stolen goods prosecuting the offender by conviction. Owner of By the statute 7 & 8 Geo. 4 c. 29, s. 57, it is enacted, that ^!>ods enii- in order to encourage the prosecution of offenders, if any per- tie.itores- SOU suiltv of auv felouy or misdemeanor, mentioned in the titUllOIl tO J J J ' ^ statute, in stealing, taking, obtaining, convertnig, or knowing- ly receiving any property, shall be indicted for such offence by or on behalf of tlie owner of the property, or his executor or administrator, and convicted thereof, the property shall be re- stored to the owner or his representative : and a summary power is given to the Court to award restitution. Under this enactment, the party entitled to restitution has a direct inter- est in procuring a conviction : but notwithstanding this in- terest, he is a competent witness. This exception is found- ed upon the policy and intention of the statute, which gives the right of restitution : for the intention of the act was to facilitate the conviction of criminals by holding out an addi- tional inducement to parties aggrieved to prosecute : and if the Courts were to determine that the right to restitution pro- duced incompetency, the consequence would be, that instead of the conviction of criminals being facilitated, it would be (1) By Lord Mansfield, 1 Burr. 422. Ch. 9.j Of Exceptions to the Rule of Interest. 123 rendered more difficult, from *tlie want of proper evidence. [ *130 ] It is also observable, that the statute 21 H. 8, c. 11, which first gave right of restitution, directs that it shall be awarded in those cases where the felon shall be attainted, " by reason of evidence given by the party robbed, or owner of tlie mon- ey, &c., or by any other by his procurement ;" thereby ex- pressly recognizing the competency of the owner as a wit- ness. (1) And although the modern statute does not contain these words, yet its policy is the same, and the object of the enactment is expressly stated to be "in order to encourage the prosecution of offenders." We have seen, that in the case of an indictment under Restitntion the statutes relative to forcible entries, the right of the tenant and land— to an award of restitution of the lands is an interest which ^"^imcuon. renders him incompetent. (2) The reason for this distinction, between the effect of a right to restitution of land and that of a right to restitution of goods, is that the statutes relative to forcible entries do not contain any provisions which expressly or impliedly recognize the competency of the tenant ; and there is not the same ground of public policy requiring the reception of his evidence. An indictment for a forcible entry may be prosecuted at common law, and upon such an indict- ment, the tenant, not being entitled to restitution, would be a competent witness ; less impediment therefore to the satis- faction of public justice arises from excluding his evidence upon an indictment under the statutes. (3) Upon these grounds it was decided, after consideration, by the Court of King's Bench, in the case i?e:r v. Williams, [A.) that there was no sufficient reason for establishing an exception to the general rules of evidence in the case of a statutable indictment for a forcible entry, and that the tenant, being interested, was therefore an incompetent witness. A variety of statutory rewards were formerly payable, upon Persons en- the conviction of criminals, to persons who had been active in |^'j|^jj, '° ''®' apprehending them and procuring their conviction ; and it was *always held that persons entitled to these rewards were [" *1H1 ] not incompetent witnesses. (1) This was upon the principle that the exclusion of their testimony would be inconsistent with the policy and spirit of the statutes giving the rewards, for (as in the case of restitution of goods before-mentioned) the object of the legislature was to stir up greater vigilance in the apprehension and prosecution of criminals, which in- tention would be defeated, if the expectation of a reward were to disqualify a witness, who would otherwise have been com- (1) Ter Parke, J., 9 B. & C. 550, (4) 9 B. & C. 549. and see p.-r iSayly, .T., ib. 557. (1) v'^ee Rudd's case, Leach, Cr. Ca. (2) ,S'«;)ra, p. 66. 157, 15S, 3.-j3, n. Hawk. P. C. b. 2, (3J See per Bayly, J., 9 B. & C. 560. c. 46, s. 135. 124 Of Exceptions to the Rule of Interest. [Ch. 9. siaiuiory pcteiit. (2) So whcrc, instead of a pecuniary reward, a pardon iJdrioii. is offered i)y the statute to any person guilty of a particular offence in case another person should be convicted upon his evidence, the party expecting the pardon is competent, such being the evident and express intention of the legislature. (3) Trial for Upou the samc ground in actions, or prosecutions for bribery, bribery. ^^ j^ ^^ objcctiou to a wituess that he has been guilty of bri- bery himself, and will be entitled to an indemnity under the discovery clause of the 2 Geo. 2, c. 24, (4) in case of the con- viction of the defendant, against whom he is called as a wit- ness. (5) In these cases, as observed by Lord Ellenborough, the statute gives a parliamentary capacitation to the witness, notwithstanding his interest in the result of the cause ; for it is not probable, the legislature would intend to discharge an offender upon his discovering another so that the latter might be convicted, without intending that the discoverer should be a competent witness. (6) Informers. We have seeu that informers, who are entitled to the whole or any part of a penalty, are in general incompetent witnesses in support of any proceeding instituted for the recovery of [ *132 ] such ^penalty. (1) But in the case of Rex v. Teasdale (2) it was ruled by Lord Kenyon, that in an indictment under the statute 21 Geo. 3, c. 37, s. 1, for exporting machinery, an informer, who was entitled to the penalties imposed by the statute, was a competent witness, although there Avas no ex- press provision in the act for admitting his evidence. In this case the informer appears to have been considered competent upon the same principle as the discoverer in cases of bribery ; namely, by necessary intendment from the statute imposing the penalties, and in order to give effect to its enactments. Where a statute can receive no execution unless a party inter- ested be a witness, there, says C. B. Gilbert, he must be al- lowed, for a statute must not be rendered ineffectual by the impossibility of proof. (3) R. V.John- On a prosecution under the statute 23 Geo. 2, c. 13 s. 1, for son, R. V. seducing artificers to go out of the kingdom, the prosecutor Lucknp. ^^^^ ^^j^ competent, though entitled to a moiety of the pen- alty. (4) And on a prosecution under the statute 9 Ann. c. 14, s. 5. the loser of money at cards was held competent to prove (2) See 9 B. & C. 556. 10 Mod. (5) Section 8. A similar enactment 193. is contained in the Municipal Corpora- (3) Per cur. Rudd's case, 1 Leach, tion Reform Act, 6 VV. 4, c. 76, sect. 134, and see statutes 10 & H W. .3, c. 55. 23, s. 5, and 5 Ann. c. 31, s. 4, (now (6) See 4 East, 183, and by Denni- repealcd). son, J., Sayer, 289. (4) IJusli V. Railing, Sayer, 289. (1) Supra, p. 66. Phillips V. Fowler, cit. tb. 291. How- (2) 3 Esp. N. P. C. 68. ard V. Shipley, 4 East, 180. Mead v. (3) Gilb. Evid. 114. Robinson, Willes, 425. Sutton v. Bish- (4) R. v. Johnson, Willes, 425, n. op Bur. 2283. (c.) Ch. 9. j Of Exceptions to IIlc Rule of Interest. 125 his loss. {5) But it appears tliat these cases are not to he considered as exceptions from the general rule upon interest ; for the penalties imposed by the statutes are not recoverable by force of a conviction, but only by means of a distinct suit, in which the conviction would not be evidence ; and there- fore the witness is wholly free from interest in the event of the prosecution, which will neither advance nor prejudice his right to the penalties. (6) Besides the cases above noticed, in which the evidence of "gjj\*;[,,^^''' interested witnesses is admitted in furtherance of the intention of some act of parliament, there are a variety of other cases in which interested witnesses are made competent *by ex- [ *133 ] press enactment to this effect. Many of these enactments au- thorize the admission of the inhabitants of particular districts as Avitnesses upon trials, in the event of which the general body of the inhabitants of the district are interested. In these cases, the interest of any individual inhabitant (although suf- ficient to exclude him at common law) must be very trifling, and the various statutes alluded to, have been made in order to obviate the great inconvenience, that Avould result from ex- cluding all the inhabitants of the districts. On an indictment for not repairing a public bridge or the inhabuanis ... ,. . . 1 • 1 1 • r -I -of county, highway adjoinmg, the inhabitants of the county, town, ri- &c., non- ding, &c. in which such bridge is situated, are rendered com- f^P?"" "' petent witnesses by the statute 1 Ann. st. 1, c. 18, s. 13. (1) In an action against the hundred on the statute of Winton, """'ifeci. by a party who had been robbed, the inhabitants of the hun- dred were rendered competent witnesses for the defence by the statute 8 Geo. 2, c. 1(3, s. 15. The party robbed was al- ways considered to be a competent witness ex necessitate, (2) for it would be useless to give him the right of action, if he were not admitted as a witness to speak to facts, which in general no person could be expected to speak to but himself. By the modern statute relative to actions against the hundred for injuries arising from riotous assemblies, (3) it is enacted, " That in any action to be brought by virtue of this act against the inhabitants of any hundred or other like district, or against the inhabitants of any county of a city or town, or of any such liberty, franchise, city, town, or place, as is there- in mentioned, no inhabitant shall by reason of any interest arising from such inhabitancy, be exempted or precluded from giving evidence either for the plaintiff or for the defendants." (5) R. V, Luckup, Willes, 425, n. (1) Even before tlie statute siicli evi- (c. ) dence liad hneii thought admissible froni (G) See 9 15. & C Ij-jT, by liayly, necessity. See R. «. (Jurpenler, '2 Shovv- .r., who appears to have considered that er, 47. 1 Venlris, 351. (iilb. Evid. the adtnissihility of tiie witnesses in R. 11.3. r. liuckup and R. )'. .lohnsoit was con- (2) See Bui. N. 1'. 187. lined to cases of iiidiclrnents. (3) 7 l 'i *^^^ actions against churchwardens or overseers of a parish L '^' -I for mispending money collected by them on behalf of the poor, parishioners, who do not receive alms or other gift out of the parochial funds, are made competent witnesses by statute 3Ay. &M. c. 11, s. 12. So also in cases where pecuniary penalties, imposed on any offence, are directed to be applied to the use of the poor, or for the benefit and exoneration of the parish or other place, in- habitants are rendered competent witnesses on the trial of the otiender by statute 27 Geo. 3, c. 29, provided the penalty does Summary ^^^^ excccd 20Z. Aud in the case of summary convictions, convictions under the provisions of the statutes 7 & 8 Geo. 4, c. 29, and ires'm'ider 7' & 8 Goo. 4, c. 30, tlic evidence of the party aggrieved shall 4'^^'9^"^°ci ^^ admitted in proof of the offence, and also the evidence of c.'so." any inhabitant of the county, riding, or division, in which the offence shall have been committed, notwithstanding any pen- alty or forfeiture incurred by the offence may be payable to the general rate of such county, riding, or division. (1) Highways. By the general rule of law, the rated inhabitants of a par- ish, indicted for not repairing a highway, are not competent to give evidence for the parish. (2) But by the recent statute for consolidating the laws relating to highways (not turnpike,) it is enacted, " That no person shall be deemed incompetent to give evidence, or be disqualified from giving testimony or evidence, in any action, suit, prosecution, or other legal pro- ceeding to be brought or had in any Court of Law or Equity, or before any justice or justices of the peace, under or by virt- ue of this act, by reason of being an inhabitant of the par- ish in which any offence shall be committed, or of being a 'treasurer, clerk, surveyor, district surveyor, assistant surveyor, collector, or other officer appointed by virtue of that act." (3) (6) (1) See sect. 64 of the former statute (2) See 15 East, 474, and by Lord and sect. 29 of the latter : Where the Ellenborough, 1 B. & Aid. 66. party aggrieved is admitted as a witness, (3) Stat. 5 & 6 W. 4^ c. 50, s. 100. he is not to receive any portion of the penalty. Sect. 66. & 32. (a) Any inhabitant of a town may be a witness by statute, where a town is a party, or interested in the event of the suit. 3 Pick. 356. Members of parishes and school districts are admitted as witnesses without a re- lease. 6 N. H. R. 164. A committee-man for a school district was admitted to testify as to the contract made by him, and to the fact of the keeping of the school; for, being a public agent, he is not personally liable on the contract. 15 Pick. 35. See also 5 Conn. 426 and 4 Paige's Ch. R. 510. For other cases where the inhabitants of towns, parishes, &c. have been admit- ted as witnesses see ante p. 48, note (a) and p. 49 note (b) and note (a); and p. 50 note (a.) {h) Surveyors of highways, when liable to pay damages arising from highways being out of repair, are incompetent witnesses for the town. 6 Verm. 369. And the Selectmen cannot release their interest, unless authorised so to do by a vote of the town. id. Oh. 9. J Of Exceptions to the Rale of Interest. 127 *By the general Turnpike Act, (1) it is also enacted, That Turnpike the inhabitants of any parish, township or place, in which \ *i25 1 any offence shall be committed contrary to that act, shall not be deemed incompetent witnesses by reason of their being such inhabitants. And by a subsequent statute, (2) it is en- acted, That no person shall be deemed incompetent to give evidence in any action or other proceeding at law or equity, or before any justice under or by virtue of any act for making or maintaining any turnpike road, or under that act or the act of 3 Geo. 4, by reason of being a trustee or commissioner of such road, or a mortgagee or creditor of the tolls thereof, or a former lessee or collector of snch tolls, or a treasurer, or clerk, or surveyor, or other officer under such act. It will be observed, that the provisions respecting the com- petency of inhabitants, which have been hitherto noticed, only apply to a few particular cases, in which questions arise affecting the interests of jDarishes and other districts. But in Qups,io„g order to provide more effectually against the inconvenience of relating to excluding the testimony of the inhabitants at large, upon sel*^'&,"'*' questions of this nature, a more general provision was made by the statute 54 Geo. 3, c. 107. By the 9th section of this statute, it is enacted "that no inhabitant or person rated, or liable to be rated to any rates or cesses of any district, parish, township, or hamlet, or wholly or in part maintained or supported thereby, or executing, or holding any office thereof or therein, shall before any court or person or persons whatsoever be deemed and taken to be by reason thereof an incompetent witness for or against such dis- trict, parish, township, or hamlet, in amj matter relating to such rates or cesses ; or to the boundary between such dis- trict, parish, township, or hamlet ; or to the settlement of any pauper in such district, parish, township, or hamlet ; or touch- ing any bastards chargeable, or likely to become chargeable to such district, &c., or to the recovery of any sum or sums for the charges or maintenance of such bastards ; or the election or appointment *of any officer or officers, or to the allow- r *136 1 ance of the accounts of any officer or officers of any such dis- trict, parish, township, or hamlet ; any law, usage, statute, or custom, to the contrary in anywise notwithstanding." This enactment has given rise to many questions, and the M^rednhv. decisions upon its construction have been rather contradictory, ^'^'p^ One of the earHest cases which arose after the passing of the act, was an action of trespass against the overseers of a town- ship, in which the question was, whether certain lands were vested in the overseers under a local act of jxarliament ; and the Court of Exchequer decided, that a rated inhabitant of the township was not an incompetent witness on the part of (1) 3 Geo, 4, c. 12fi, s. 137. (2) -1 Geo. 4, c. 95, s. S4. om. 12S Of Exceptions to the Rule of Interest. [Ch. 9. the defendants, although tlie lands in question, if vested in the defendants Avonld be vested in trust for the township and in aid of the poor rates. The Court considered that the stat- Marsden v. "^^ should roceive a liberal construction, and that the matter tatansjeid. in issuo related to the rates. (1) In a subsequent case in the King's Bench, it was decided, that upon an issue directed by the Court, for the purpose of trying whether a certaui mes- suage was situated within a chapelry, a person occupying rateable property within the chapelry was competent to prove that it was so situated. The Court said, that the burthen, of making out that a witness was incompetent, lay upon the par- ty objecting to his testimony, and that nothing appeared to shew that the witness would be a gainer, by proving that the messuage was within the chapelry ; and as the witness was oiily stated to be the owner of rateable property, and not ac- tually rated, he was competent at common law, on the author- ity of Ilej: V. Kirclford. (2) They also said the case was plain, according to the true construction of the statute, for the sub- stantial question was, whether the owner of certain property was liable to contribute to the rates of the chapelry ; and that was a question "relating to the rates or ces- ses" of the district. And the question whether certain land was situate within the chapelry, was " a matter relating to the boundary between the district in question, and the adjoin- ing district." (3) Heude- *So also In a latter case at nisi prius, it was ruled by Lord ^Lnutskm Tenterden, that in an action of debt by a surveyor of high- and /;. V. Avays, against his predecessor in office, to recover the penalty r *'i"o'^ I imposed by the highway act for not accounting, inhabitants '- ^ of the parish were competent for the plaintiff, although their evidence would tend to increase the funds in relief of the rates. (1) Jind this case was followed by another, in Avhich Lord Chief Justice Tindal ruled, that such inhabitants Avere rendered competent by the statute, upon an indictment for the nonrepair of abridge and highway within the parish, which it was alleged the defendant was bound to repair ra- tione tenurce. (2) Oxemhn v. Ou the Other hand, it was decided by the Court of King's Palmer. Beuch in the case of O.venden v. Palmer, (3) that in trespass against the surveyor of highways for a parish, who justified under a custom to take shingle from the sea beach, for the repair of the roads, inhabitant rate-payers of the parish Avere incompetent to give evidence for the defendant in support of (1) Meredith v. Gilpin, 6 Price, 146. (::) R. v. Ilayman, M. &• ^^. N. P. (2) 2 East, 55;). C. -!()1. (3) IMarsden v. Stansfield, 7 B. & C. (3) 2 B. &: Ad. 23G. S15. (1) Heudebouick v. Langslon, i\Iood. & ."ilal. N. r. C. 402, n. Cli. 9.j Of Exceptions to tlie Rule of Interest. 129 the Court, said, that they entertained great doubt whether the case oi Meredith v. Gilpin was properly decided, and ob- served that the statute related chiefly to the poor, and that al- though the words of the ninth section, when taken by them- selves, would seem to apply to any rates or cesses, yet that the Court thouglit the matter in question did not strictly and properly relate to rates or cesses of the parish. So also, in a subsequent case, the same Court decided, that the rated inhabitants of a district, indicted for the non-repair ^- \- ^.^^^'■' r 1 • I 1111 i op Auc/c- 01 a highway, were not rendered by tlie statute competent I'md. witnesses for the defence. (4) And it has been also ruled at nisi prius by Lord Uenman, that in an action for medical at- tendance on a pauper, against an overseer who was defending on the part of the parish, and in pursuance of an order of ves- try, that a rated inhabitant, who had signed such order, *was not within the statute, and rejected his testimony which was [ *13S ] oifered on behalf of the defendant. (1) But in a recent ease at nisi prins it was ruled, on the trial of an ejectment by parish officers to recover a parish-house, that an occupier of rateable property within the parish was a competent witness on behalf of the lessors of the plaintifi', Mr. Baron Alderson there observed, that the statute enacted, that the party should not be incompetent in any matter relating to rates or cesses ; and that the only way, in which his interest could be affected, was on the ground that the recovery of the property would diminish the rates or cesses. (2) Upon the same case coming subsequently before the King's Bench, the Court decided that the witness was properly admitted, appar- ently upon the ground that he was competent at common law, independently of the statute. (3) (4) R. V. Bishop Auckland, 1 Ad. & consistency, for the olyecting party ad- Ell. 744. 1 Mood. &. Rob. 28(5, 287, n. inits that tiie question relates to the rates (1) Tothell V. Hooper, 1 Mood. &: and cesses of the pari.-h, for the purpose Rob. 392. of disqualifying the vvjti.ess. In the (2) Doe V. Cockell, 6 Car. & P. 52.5. case of Oxend'en v. Palmer, vvliich is the The case of Oxendeii v. Palmer was ci- leading authority for the limited con- ted in (his case. struction ol' the statute, some reliance (3) 4 Ad. & EH. 478. The witness appears to have been placed upon the in this case being merely rateable, and circumstance, th-it the main object of not actually rated, appears to have been the statute was to provide for Cases re- competent at common law upon the au- specting the poor, but it was admitted, thority of R. v. Kirdford, 2 East, 559, in the judgment of the Court that recognised by Bayly, J., in Marsden r. the language of the ninth section was Stansfield, 7 B. iing. 4G5. arising from tlie subsequent use of the (2) The Court seemed to think that verdict. (h) a commoner is admissible to prove a right of common where the common is claimed by prescription in right of a particular estate ; but in general a common- er is inadmissible to prove a right of common. Jacobson v. Fountain, 2 J. R. 175; Gould v. James, 6 Covven, 369. The inhabitants of towns are incompetent to prove a custom for tiie inhabitants to dig clams in a particular place; 3 Pick. 356; or to prove a way, common, or oth- er easement; 8 id. 518; hut as lias been observed (ante p. 48 note (a)), an inhabi- tant of a state is a compctcut witness in the action in which the state is a party. Cli. 9.J Of Exceptions to the Rule of Interest. 131 *The admission of the evidence of asfents, servants, and Agents, cj / / s. Howell, 1 Stra. 647. 408. Barker «. Macrae, 3 Campb. 144. (a) See mIso 1 .1. Ca. 408; 2 SAX. 189. A gcjneral lien on the proceeds of the sale of goods belonging to the principal, is not sucli an interest in the event ol" the suit, ns ought to disqualify ilie broker. 2 Hall, 176. Here, the factor had a gen- eral lien, for a balance due liim on the property of the plaintilTin his hands, but no specific claim for the payment of that balance on the proceeds of the goods sold to the defendants : Held, that the factor was not disqualified. (6) But see 8 Greenl. 443, where it is said that every person who makes a con- tract for another, is an agent within the meaning of the rule admitting agents lo bo witnesses for their principals. However, in a later c;ise, the court seem to uphold the doctrine in tlie text 3 Fairf. R. 201. (c~) Although a cashier, teller, or other clerk or agent has given a bond for the faithful execution of tire duties of liis othce, or trust, he is competent to testify upon the same principle of necessity which admits an agent, or servant, in the common course of his business; a porter who has delivered goods of his employer; a cartman, who has delivered goods; a common carrier ; a factor or broker, evea where he is to receive a per centage for his commission. United States Bank v. Stearns, 15 Wend. 314. See also 10 J. R. 273. Where defendants had received a sum of money for the pJaintiff, and had paid it to IMTormich, who was called by defendants at the trial to testify that lie was authorized by the plaintilf to receive it : his competency was objected to, but the objection was overruled. P.lack v. Goodman, 1 Bail. R. 201. It was held in au action brought by the bank against a customer lo recover Ch. 9.] Of Exceptions to the Rule of Interest. 133 Ajjents act- out of torn of a manor, a fine was due to the lord durins; his minor- Steward of . . , ^ ~ manor. ity, on tenant's admission, the steward of the manor was al- lowed to give evidence for the lord, though it was objected that he would be entitled to a fee on admission, which he would lose if the tenant were not admitted. (4) But though agents and brokers are competent to prove a Asents in- sale or contract m the ordinary course oi their employment, u, disprove it has been decided, that they are not competent to prove that negligence. a contract has been properly executed, in an action against the principal for misconduct or negligence. Thus, in an ac- tion against an agent for misconduct, in purchasing goods of an inferior quality, Lord Chief Justice Gibbs rejected, as an incompetent witness, the broker of the defendant, who was called to prove that he had purchased goods of the best quali- ty. (5) And where a person has entered into a contract for the purchase of goods in his own name, it has been ruled, that he is not a competent witness in an action for goods sold and delivered, *to prove that he purchased them as the agent [ *142 ] for the defendant. (1) So also, where the act of the servant has been out of the ordinary course of his employment and a mere breach of duty, scope of au the principle does not apply ; and it has been ruled, that in *'^°''"y- (") such a case the servant is incompetent without a release. Thus in an action to recover back money which had been entrusted to the plaintiff for a special purpose, and paid by the servant in illegal insurances, he was considered incompetent. And before the stat. 3 & 4 W. 4, c. 42, it was considered as a set- tled rule, in actions against a master for the negligence of his (4) Champion v. Atkinson, 3 Keb. 317. See the preceding chapter as to 90. Rep. temp. Hard. 360. the effect of the stat. 3 & 4 W. 4, c. 42, (5) Gevers v. Mainwaring, 1 Holt, N. s. 26, on incompetency arising from lia- P. C. 139. bility over. (I) IMcBraine v. Fortune, 3 Cnmpb. money overdrawn, that the clerk wiio made tlie mistake was competent to testify. Union Bank v. Knnpp, 3 Pick-. 9G. (a) A witness called to testify (o facts out of the usual course of business, and to deny and contradict the effect of those acts which lie appears to have done as sucii agent does not come witiiin the exception in regard to agents. 7 ftlass. 23; 10 Pick. 125. But where a person was hired to drive the plaintitT's team; and in his occupa- tion took a load of tlsh into the couniry for sale ; and received of the defendants an order for cotton cloth in payment for the fish sold tlietii ; it was held, that the agent was a competent witness for his principal in a suit on the order, which had been refused acceptance. The suinjr the action was a ratification of the doings of the agent ; and at the same lime a discharge of the witness from all liability lo the principal. Fisher v. Willard, 13 Alass. 379. In the case of the Franklin Bank v. Freeman, 16 Pick. 53.'5, a cashier of the bank had loaned money belonging to the bank upon mem. checks as security con- ir.iry to banking princijiles; yet it was held, that he was competent to testify for the bank, although he had given bond for the faithful discharge of his trust. An agent having made a contract for an unknown principal. Held, that in action sued by the other party to the contract ag;iiiist llie principal, the agent was not competent lo testify for the plaintill'to establish the fact of his agency, without be- ing released by the plaintiff. 1 AFiles, 208. 134 Of Exceptions to the Rule of Interest. [Ch. 9. servant, that the servant was not competent to disprove the fact of liis negligence. The cases on this snbject have ah'eady been fully discussed in treating of incompetency by reason of a liability over, and in considering the effect of the late statute on this class of cases. A few other cases of exceptions, standing upon special grounds, may here be noticed. Issue from Upou issucs scut from Courts of Equity, it is not an unu- Equiiy. sual tiling to direct that the parties to the suit shall be exam- ined at the trial as witnesses. It jjias been said in a case in the Court of Chancery upon this subject, that upon an order of this nature no objection is waived, except that which arises from the party being plaintitf or defendant in the cause. (2) And it has been ruled in a late case at nisi prius, that where a witness is interested in the result of a suit inequity, in con- sequence of the decree in the suit being evidence for or against his own claims on a subsequent occasion, he is not made competent, upon the trial of an issue directed in such [ *143 ] suit by the statute *3 & 4 W. 4, c. 42, s. 26, the language of which, as we have seen, only applies to cases where the ob- jection is " on the ground that the verdict or judgment in the action''^ would be admissible for or against the witness. (1) Action for jt jj^s also been treated as an exception, from necessity, to malicious ^y ^ r ■ f . ^ ' . • V prosecii- the rule of incompetency from interest, that in an action for a denc7rf" J^^J^-licious prosccution, the evidence which the defendant gave prosecutor, before the grand jury, in support of the indictment, is under special circumstances admissible on his behalf at the trial of the action. In Jolmson v. Broioning, the evidence given on that occasion by the defendant's wife, who was the only per- son present at the time of the supposed felony, and who, as the report says, could not herself be a witness, was admitted by Holt, C. J., on the ground, " that otherwise one that should be robbed would be under an intolerable mischief, for if he prosecuted for such robbery, and the party should be acquit- ted, the prosecutor would be liable to an action for a malicious prosecution, without the possibility of making a good defence, though the cause of prosecution were ever so pregnant." (2) Imprest ill An exception, in the case of a person interested in the costs wrVofccrti. of a criminal prosecution, may occur on the trial of an indict- orari. mont wliich the defendant removes by certiorari. In this case, the prosecutor is entitled to costs on the event of the in- dictment being found in his favour, but he is nevertheless, a competent witness, upon the special ground of the policy and (2) See Ro^erson v. Whittinglon, 1 event. But isee per Tind.il, C. J., 7 Swunst. 39. The precise meinin^ of Uing. 39S, ante, Ch. 6. this observation seeina not very clear, (I) Stewitrt v. Barnes, 1 Mood. & hut it iippeius to assume that a party to Rob. 472. a suit is incompetent, qua party, and (2) See also B. N. P. 14, citing Coh' without reference to any inteiest in tlie v. Car. 1746. Ch. 9,] Of Exceptions to the Rule of Interest. 135 intention of the statute ; for the object of the statute was to discourage the removal of indictments ; and if the defendant could disqualify the prosecutor from giving evidence, by re- moving the indictment, such removals would be encouraged and multiplied. (3) Upon an indictment for the non-repair of a road, power was given to the court by the Highway Acts, (4) to award costs against the prosecutor, if the prose- cution appeared to be vexatious ; but this provision does not ^affect the prosecutor's competency ; (1) the evidence of the [ *144 ] prosecutor is receivable according to the general rule, and, be- sides, the interest is uncertain, as the power of awarding costs is in the discretion of the Court. (2) There are yet some other classes of cases, constituting ex- ceptions to the general rule of evidence, founded on the poli- cy of preventing an abuse of the rule. Where a witness offers to surrender or release his interest, Witness of- and thus does all in his power to remove the objection to his surrender, testimony, but the other party refuses to accept the release, it will not be competent to such party to object to the witness's testimony, and his evidence may be received. (3) Or, if the interest may be removed by the release of one of the parties to the cause, and such party offers to remove it, and the wit- ness refuses, he cannot thereby deprive the party of his testi- mony. In the case of Anstey v, Doicsing, (4) indeed, Lee, C. J., Legatee, expressed an opinion, that a legatee was not competent to prove the due execution of the Will, although payment of the leg- acy was tendered to him, which tender he refused. But the ground of this opinion was, that, even if he had accepted ^''^yment. the legacy, he still would have been incompetent, as having been interested at the time of attestation ; — a point, on which, though there has been some difference of opinion, the greatest authorities are in support of the contrary proposition, namely, that the payment of the legacy would restore the competency of the witness. (5) If a witness has acquired an interest in the subject-matter, interest ac- for the mere purpose of depriving the party to the suit of the ?rn'uduient- *benefit of his testimony, this ought not to exclude him from '>'• giving evidence. It was ruled by Lord Holt, in the case of t ^'^^ J Barlow y. Voivel, (1) that if a man be a witness of a wager, (3) R. ■». Muscot, 10 Mod. 19S. proof of wills i.s particularly considered. (4) See Stat. 13 Geo. 3, c. 78, 3. 64. Wyndhatii «. Chetvvynd, 1 Burr. 414. (1) 11. «. llammersmitli, 1 Stark. N. Doe d. llendson v. Keisey, 4 I5urirs P. C. 357. Kcc. Law, 97. It may be doubted (2) See R. v. Cole, 1 Esp. IfiD. wlietlicr llie legatee, though paid, could (3) Goodtitle r. VVelford, Doug. 134. retain the money, if ihe will were set Per Duller, J., 3 T. R. 35. aside. (4) 2 Str. 1253. (I) Skin. 586. See Rescous v. Wil- (5) ride infra, Varl 2, where the liums, 3 Lev. 152, and C'owp. 736. 136 Of Exceptions to the Rule of Interest. [Ch. 9- Wager.(H) aud aflcrwards bet himself, this shall not be a reason to ex- cept against his being sworn to prove the wager. And from analogy to this case, Lord Kenyon and Mr. Justice Ashurst were of opinion in the case of Boit v. Bttkcr^ (2) (where, on the trial of an action on a policy of insurance, the broker had been called as Avitness for the defendant, but rejected, because he had underwritten the policy after the defendant,) that even if it Avere true in general, that one underwriter could not be a witness for another, yet the witness ought to have been ad- mitted in that case, as the defendant had acquired an interest in his testimony before the witness had signed the policy. And they laid down, as a general principle, deducible from the case of Barloic v. Voivel, that where a person makes himself a party in interest after a plaintiff or defendant has an interest in his testimony, he may not by this deprive the plaintiff or defendant of his testimony. Interest ap- Howevcr, it appears to be rather doubtful, whether this pro- liiMseoC position is not expressed in too large and general terms. The uciioii. incompetency of a witness, on account of interest, must de- ])end ratlier on the nature of the interest, than upon the time of acquiring it. The question on the voire dire is, whether he is interested at the time of his examination. If he is di- rectly interested at that time, he is not a competent witness in general without a release, and it seems to be no answer to the objection, to show that he has become interested only since the commencement of the action, or since the time of his being acquainted with the fact which he is called to prove. Thus, before the 3 & 4 W. 4, c. 42, upon a trial on a custom- ary right of common, a witness was incompetent, who admit- ted upon the voire dire, that he was in the occupation of a messuage, and that he claimed a similar right of common as annexed to his tenement ; and it could not be material, wheth- [ *146 ] er he had been in possession for a number of years, *or had the tenement only just before the trial of the cause. In eith- er case, he appeared to be equally incompetent : yet in the latter it might be said, that he had acquired his interest, after the party had become interested in his testimony. The case of Barlow v. Vowel must be considered as having been deter- mined on the ground of fraud : the witness, proposed to be examined, was the original witness of the wager ; it was a (2) 3 T. R. 27. (a) Tlie confession of a witness as to his incompetency to testify in a criminal case, is not admissible. Commonwealth v. Waite, .5 IMass. 261. If the law were not so, any unwilling witness for the Commonwealth, might deprive the same of his testimony by dechiraiioiis of his interest in the presence of the friends of the defend- ant, who by testifying to those declarations might always prevent his being sworn. Ch. 9.] Of Exceptions to the Rule of Interest. 137 fraud, therefore, to deprive the party of the benefit of his tes- timony. (1) (a) In the subsequent case of Forester y. Pigou, (2) where the Undervvri- defendant, in an action on a pohcy of insurance, called anoth- ,,7id!*^'"° er underwriter to prove the policy void on account of a mis- representation of the nature of the risk, and upon the voire dire the witness stated, " that he had paid the loss to the plaintiff, upon an understanding that he was to be repaid in the event of this action failing, and that he had since receiv- ed a letter from the plaintiff, promising to return the money in that event," an objection was taken to his competency, on the ground of his being interested in the event ; the point was argued on the other side upon the authority of Barlow v. Voivel, and it Avas said, the witness had not become interest- ed until after the commencement of the action, and that the plaintiff ought not to be allowed to defeat, by his own act, the interest which the defendant had in the Avitness's testi- mony ; but the witness was considered to be incompetent and rejected : for although he would not be disqualified by any agreement fraudulently entered into between him and the plaintiff for the purpose of taking olf his testimony, yet on the other hand the pendency of a suit could not prevent third persons from transacting business bo7ia fide with one of the parties ; and if an interest in the event of the suit is there- by acquired, the general consequence of law must follow, (1) By Lord Ellenborough in Fores- (2) 3 Campb. 380. 1 Maule & Selw. ter r. Pigou, 1 Maule & Selvv. 9, in 9, S. C. wiiich this case was much cited. (a) But in Burgess v. Lane, 3 Greenl. 165, the court considered, that neither former decisions nor the spirit of the rule required its restriction to cases of fraud only ; — in all cases, where tlie parly objeclinj^ to the witness, is himself a party to the agreement by which his interest is acquired, or had any agency in causing him to become interested, subsequently to iiis knowledge of the facts which lie is brought to prove, his testimony is to be received notwithstanding such interest. In Jackson v. llumsy, 3 J. Ca. 237, Kent, C. J. says, that the interest to exclude a witness must not have arisen after the fact to which he is Cdlled to testify happen- ed. Ld. Ellenborough, however, in the case of l*orester v. Figou, cited (infra) in tile text, limits the applicability of this principle to cases where the witness was originally relied upon, by both parties, to testify in the transaction, and wlien the agreement had been fraudulently entered into between the witness and the party objecting ; and he intimates an opinion that if the witness was not relied upon orig- inally and becomes bona fide interested, he must be rejected. In VVinship v. Bank of the U. S. 5 Pet. o'29, the court were divided as to the admissibility of a witness who beconies interested after he has vvitnessed an iiis>iru- rrient. in Eastman tJ. VVinship, 14 Pick. 44, it was held, that such a witness was incompetent ; but if there is management on the part of tlie party to deprive his adversary of the testifiiony of the witness, it shall not dis(]ualify. A creditor shall not be permitted to take security of a witness ivith a vieio to exclude him. 10 Wend. 1«2. 18 138 Of Exceptions to the Rule of Interest. [Ch. 9. that tho person so interested cannot be examined as a witness lor that party, from whose success he will necessarily derive ail advantage. A motion was alter wards made for a new tri- al on account of the rejection of this witness, as well as of another also, who was similarly situated ; and a new trial was [ *147 ] *granted for the purpose of ascertaining more ])articularly the precise time, when the understanding was made to the wit- nesses ; but the Coiu't added, that, if a ])erson, \vho is nnder no obligation to become a witness for either of the parties to a suit, choose to pay his debt before-hand, upon a condition that is to be determined by the event of the suit, he becomes as much interested in the event, as if he were a party to a consolidation rule. In a more recent case in the Common Pleas, where the plaintiff" in an action on a charter party had communicated to the attesting witness an interest in the profits, which were ex- pected to arise from the adventiu'e, the witness who refused to release his interest was rejected, as incompetent at the tri- al ; and the Court held, that his evidence was inadmissible, upon the ground that he had derived his interest immediately from the plaintiff, who proposed to call him, and that the plaintiff' could not justly complain that his witness Avas dis- qualified, when he himself was the cause of liis disqualifica- tion. (1) (a) Wager on Lord Raymond, in the case of the Kitig v. Fox, (2) admit- ted the prosecutor to be a witness, although he had laid a wa- ger, that he should convict the defendant : and the true rea- son seems to be, not because the witness had made the wager at a time when public justice became interested in his testi- mony, but because it would be against public policy to allow a witness, by any such gratuitous act, to exclude himself from giving evidence. In addition to this, it may be observ- ed, that the wager would now probably be considered abso- lutely void, on a principle of public policy, as tending to pro- duce an improper bias on the mind of the witness, and there- fore as directly prejudicial to the administration of justice. (J) Hovill V. Sleplicnson, 5 Bing. attesting witness, subsequently lo the e.\- 493. I5est, C. J., in delivering llie ecuiion of the insltunieiit, becomes in- judgment of tlie Court, said, the ca ■■ • (a) See 9 Tick. 322. But in Ten Eyck v. Bill, 5 Wend. 55 ; the witnes.s had the promise of an order for the amount in di.«putc ; Held, that he was notwithstand- ing a competent witness. See also Seaver v. Bradley, 6 Greenl. 60. .An assignment made with a fraudulent intent to render the witness incompetent, shall not avail. 9 Wend. 394. conviction. Ch. lO.j Of restoring the Competency, ^<\ 139 *CHAPTER X. [ *148 ] OF THE MODE OF OBJECTING TO THE COMPETENCy OF AN INTER- ESTED WITNESS, AND OF THE MEANS OF RESTORING COMPETENCY. It is proposed to consider, in the present chapter, what is the regular mode of objecting to the competency of a witness, on the ground of interest, and what are the means of restor- ing his competency. The rule formerly was, that the objection ought to be made objection on the voire dire, and that if made after the examination in chief, it would not have the effect of excluding the witness. But the strictness of the rule on this subject has been relaxed, and now, if it be discovered during any part of the witness's examination, or even after his cross-examination, that he is interested, the objection may be taken, and his evidence will be struck out. (1) («) It has, indeed, been laid down, that the objection may be taken at any stage of the cause ; (2) but it was ruled at nisi priiis, in a case before Gibbs, C. .!., where the examination of a witness had been completed, and he had left the box, but was recalled by the judge for the purpose of asking him a question, that it was too late then to object to his competency. (3) At oil events, it is clear that the objec- tion should be made during the trial, and that a new trial will not be granted, on the ground of the objection to the com- petency of a witness being discovered after the trial was con- cluded. (4) (6) (1) See Turner v. Pearce, 1 T. U. ness's incompetency by the opening 720. Stone D. Blackburn, 1 Esp. 37. speech of c.ounse!, or tlie examination in By Lord Elienborough, 2 Campb. 14. chief of the witness, doubts have been (2) Per Lord Kenyon, 1 Esp. 37. entertained at nisi prius, whether an ob- (3) Beechirig r. Gower, Holt, N. P. jection to tiie coinpetency of a witness C. 314. And where a party has been can be postponed. folly apprized of the grounds of a wit- (4) Turner v. Pearce, 1 T. R. 720. (a) A party, in consequence of rather modern practice, is not bound to establish the interest of a witness, in order to exclude him upon a preliminary enquiry before he is sworn in chief; and if his interest appears in the course of his examination, the objection may be taken. 6 J. R. .538 ; 7 Wend. 180. But this relaxation of the practice lakes along with it the right of the opposite party whenever the excep- tion is taken to remove it by a release, id. The release, however, should be executed before the examination is completed. See Doty v. Wilson, 14 J. R. 378 ; Mann v. Mann, id. 1 ; Heyl v. Burling, 1 Caines R. 14. (h) The rule both in civil and criminal cases, is, that objections to the witness whether founded on interest or infamy on conviction for crime, must be made at the trial, and when the witness is offered to be sworn. Accordingly, it was held that where the objection was not thus made, a new trial cannot be demanded as a right. 17 Mass. .'jSS. The rule now established is, that if a witness be discovered to be interested dur- ing any part of the trial, his testimony is to be disregarded. Butler V. Tufts, 13 Maine, R. 302 ; Stout ?>. Wood, 1 Blackf. R. 72. Though the party against whom the witness is produced has made previous attempts to exclude him. Schil- ling V. M'Cann. G Greenl. 3G8. ed 140 Of restoring the Competency [Ch. 10. [ *140 J *It seems also, that when witnesses have been examined on interrogatories, which are afterwards read on the trial of a cause, it is too late to ohj(X't to their coinpetency on the ground that thc^y ap})car, from the depositions, to be interested ; and that the objection ought to have been taken at the time of exami- nation, or upon application to the Court to suppress the depo- sitions before their production at the trial. (1) (a) How mis The party, against whom a witness is called, may examine him respecting his interest on the voire dire, or may call another witness, and produce other evidence, in support of the objection. If the fact of interest is satisfactorily proved by other evidence, the witness will be rejected, though he may liave ventured to deny it on the voire dire. (2) (6) (1) Ogle w. Paleski, Holt, N. P. C. on the voire dire, and denied that be 485. Anun. 2 Tidd's Prac. 812, 9lh was interested, could not be contradict- edit. ed. See by Lord HardwicUe, in Lord (2) The old rule appears to have Lovat's case, 9 St. Tr. 647, fo. ed. 10 been that the statement of a witness, How. St. Tr. 596. who had been examined as to the fact If a witness on his cross-examination says that he is not interested ; Held, that the party may nevertheless prove his interest by other testimony. Stoot v. Wood, 1 Blackf. R. 72. But proof of contrary statements goes only to the credit. Lamb V. Stewart. 2 Ohio, 230 ; 1 Blackf. 87. In C'halfield v. Lothrop, 6 Pick. 417, the witness on voire dire denied being in- terested ; and it afterwards appearing that this testimony was not true, the court granted a new trial. But in a subsequent case, where the attorney bad testi- fied for the plaintitl" as to the loss of the note m (juesiion ; Held, that it was too late to take exception to his competency after he had testified ; especially as it ap- peared that defendant knew of the ground of his exception before the '.vitness had testified. 8 id. .390. (a) And in Chancery, where the nature of the interest is such that it can be re- leased, it is too late to object to the competency of the witnesses at the hearing. 2 Paige's Ch. R. 54 ; 3 id. 546. {b) In Williams v. Matthews, 3 Cowen, 252, it was held, that if the witness answer generally that he is interested, he must be rejected, unless the party by further examination of the witness shows that his interest is not a legal interest. The statements made on the voire dire by the witness, that he considered him- self fully inden)nified against his covenants, is not sufficient to restore his compe- tency ; the farthest extent to which courts have gone is this, that where a certain sum of money can be so placed either with the witness himself or with the court and its olWcers under the rule of the court, the interest creating the disability may be thus extinguished, so as to restore the competency. 17 Pick. 269 ; 16 id. 264. A general release to a witness shown to be interested " excepting a certain judg- ment in the releasor's favor" is sufficient to restore the competency of the witness, unless it appears that the judgment referred to relates to the matter in question. Berton, R. 133. In the case of Chance v. Hine, 6 Conn. 29, the court state the general rule of evidence thus : — When a witness is offered in a cause, and an objection is raised against him, it is incumbent on the party wishing to exclude the witness, before he testifies, to show his incompetency. This may be established by calling witnesses to show the fact upon which the objection rests ; or, the witness may be himself examined on the voire dire. But when an election has been made it is a waiver of every other mode of proving the fact : — unless indeed, as is sometimes practis- ed, the party, in an early stage, suggests to the court, that the witness has an inter- est, which his testimony will develope, to render him incompetent ; in which he claims, that although he permit him to be sworn in chief, he shall reserve the right Ch. lO.J of an interested Witness. 141 Where the interest of the witness arises from some written Examma- . tiononuoirc instrument, which is not produced, he may be exammed as to dire. the contents of it, on the voire dire. The general rule, which requires the production of the instrument itself, or that a no- tice to produce it shall be given before a witness can be ex- amined as to its contents, does not apply to such a case ; for the objecting party may be ignorant of its existence before the examination of the witness, and he cannot be supposed to know that a particular witness would be called on the other side. If, however, the witness himself produces the instru- ment, it ought, of course, to be read as the best evidence of the witness's situation. (3) When the obiection arises from a witness's answer on the Objection . ,., ., 1 1 .,. remored on voue dire, it may likewise be removed on the vwre aire, wire dire. Thus, ill an action brought by a chartered company, where a witness for the plaintiff admitted, on the voire dire, that he had been a fr-eeman of the company, but added, that he was then disfranchised, *Lord Kenyon ruled, that it was not ne- [ *150 ] cessary to prove the disfranchisement by the regular entry in the company's books, and that the witness was competent.(l) In a case where a witness, examined on a settlement question, stated on the voire dire, that he occupied a cottage in the ap- pellant's township, but that ke was not rated, nor did he pay any public rate, the Court of King's Bench held, that there was no ground for objecting to his competency, and that it was iTOt necessary for the appellant, who called him, to pro- -duce the rate as the best proof of his not being rated. (2) So, in an action by an administrator, where a witness, called for the plaintiff, admitted that he was next of kin, and was ob- jected to on this ground, but answered- on re-examination, that he had released all his interest, this was held by Lord Ellenborough to remove the objection. (3) It is here necessary to mention two cases which have re- Objection •cently been decided at nisi prius. In an action by a bank- ed rupt's assignees, where the bankrupt, being called as a witness ^^''^ not rcmov- on voire (3) Butler v. Carver, 2 Stark. N. P. (2) R. v. Gistnirn, 15 East, 57. €. 434. (3) Ingram v. Dade, Lond. Sitt. after (1) Butcher's Company v. Jones, 1 Mich. T. 1817. Esp. N. P. C. 162. Botham v. Swing- ler, Peake, N. P. C. 218, 1 Esp. 164, S. C. of moving the court, that the testimony of such witness be disregarded, and hold- «n as though it had not been given in the case. When a party has proof of the witness' interest, which, for tlie moment, he thinks proper to suppre. 107, note (h) where an agreement made between several per- sons to share in the gain or loss of certain suits, was held to exclude them from tea- lifyiog for each other, though released. 3 V\ hart. R. 369. But see Ransom v. Keyes, 9 Covven, 128, where a release executed to a witness who was liable to contribution, was held to render tin? witness coiiipolciil. Where two are jointly liable to pay, and where contribution might be enforced, if the creditor brings his action against one, the defendant may make his joint promissor competent to testify for him by releasing him from his liability to contri- bution. Bdyley v. Osborn, 2 Wend. 527 ; Robertson v. Smith, IS J. R. -159. See also 6 N. H. R. 518. Cli. 10.] of an interested Witness. 145 lease, make his partner a competent witness for Inm: (6) and in an earlier case, (7) Lord Alvanley is said to have expressed an opinion, that a partner of the defendant could not be made a competent witness for him by means of a release, on the ground, that, if the defendant died or became insolvent, the plaintid" wonld have ariglit, by a bill in equity, to compel all the partners to contribute. But in a late case in the Court of King's Bench, this doctrine appears to have been overruled. It was there decided, that in an action against two partners, to recover the balance of a banking account extending over several years, a witness called for the *defendants,Avho admit- [ *154 ] ted that he had been a partner with the defendants during a part of the time over which the account extended, was ren- dered competent by the effect of general releases from the wit- ness to the defendants, and from the defendants to the wit- ness. (1) («) In the recent case oi Jones v. Pritchard, (2) it was held, in. Part-own- an action for work done to a vessel, brought against one part- ^"" owner, that another part owner is a comj^etent witness for the defendant, after a release ; a release from the witness was not considered necessary. A residuary legatee is not rendered a competent witness, in R«''^«ary (6) Simons v. Smith, Ry. & Mo. N. release, and was a necessary and com- P. C. 29. The reason for this decision mon hai)ility, and that, therefore, the is not mentioned. rule in Lanipet's case, 10 Rep. 50G, was (7) Cheyne v. Koops, 4 Esp. N. P. satisfied. C. 112. (2) 2 M. & Wei. 199, see Young v. (1) Wilson c. Hirst, 4 B. & Ad. 760. Bairner, 1 Esp. 103 ; Goodacre v. It was considered that the I'uture rijjht Breame, Peake, 174; Jennings ti. Grif- which was released, had a foundation fitfis, R. & M. 42 ; Moody v. King, 2 and original inception at the time of the B. & C. 5.58. (a) Robertson v. Smith, IS J. R. 4.59 ; Bayley v. Osborn, 2 Wend. 527. In Black v. Marvin, 2 Penn. 138, it was held, that the interest of a co-partner could not be extinguished by a release. See also 5 Yerg. R. 3Sl. A dormant piirlner has an interest of liability, which neither he, nor his partner, the plaintiff, is competent to release. 1 Bail. R. 3(j2. The defendnnt and the witness were partners, as carriers, and the court said, that the joint funds would be decreased by an execution against either ; the witness had an inleresl paramount to the release. The direct and certain liability of the partner for the costs of the suit, if judgment pass against the pluititilf was considered conclusive against his ud- !iiissibilit\ . But in Anderson v. Brock, 3 Greenl. 249, Weston, J., says — " The interest of the witnesses tnust be considert.'d as legally extinguished by the triutual releases, so as lo restore their competency, if they were before incocnpelent. Jt is didicull to conceive any interest which may not be thus released." In (iibbs 1'. Bryani, 1 Pick. I IS, the plaintiff and the witness gave their note for money loaned lo witness and defendant ; and plaintiff having paid the money sued defendant alone to recover the money paid ; aiid the defendant executed a release to the witness : Held, that he was competent to testify for him. iSee also 2 x\. II. R. 11.5; .5 id. 199 ; G N. H. R. 518. In Ward V. I.ee, 13 Wend. 41, where an aclion vv;is sued in the name of one of the partner's allornies U) recover the costs of an action carried on also in the name of one as the attorney of record. Held, that the co-partner was compeicnt to testify on the trial of the former action on releasing to the plaintilV his interest. 19 146 Of restoring the Coiwpctcncy [Gil. 10. Stamp of release. [*155 Undertak- ing to re- lease. Member of corpora- tion, (b) an action by an executor to recover a debt due to the testator, by releasing all claim to the debt in question ; for if the plain- tiff fail in the suit, although he would not be liable for costs to the opposite side, he must pay costs to his own attorney j and the executor would be entitled to the allowance of these costs out of the estate, the action being brought bona fide ; thus independently of the debt to be recovered, the residue would be diminished. The witness, therefore, has still an in- terest to support the action, and can only be rendered compe- tent by releasing the residue, or by a release of the costs of the action from the attorney. (3) Where the defendant in an action executed a release to a witness, but before it was given to the witness it was handed to the ijlaiiitiiPs counsel, who objected to the form, on which, *it was altered and re-executed, the release was held sufficient, and that anew stamp was unnecessary. (1) And in a late case, in which the defendant in an action executed a release to one of the witnesses before the trial, and gave it to his at- torney, and at the trial it appeared that another witness would require to be released, and his name was accordingly inserted, and the release re-executed before it had been delivered out of the attorney's possession, it was held by the Court of Exche- quer, that the instrument was still in fiei'i at the time of re- execution, and did not therefore require a fresh stamp. (2) Where the defendant has sutfered an incompetent witness to be examined, on the undertaking of the plaintiff's attorney to execute a release to him after the trial, and the plaintiff has obtained a verdict, a new trial will not be granted, on the ground that the release has not been given, but the witness will have a remedy on the undertaking. (3) (a) When a witness is objected to as a member of a corporation, whose interests are in question, his competency may be restor- (3) Baker v. Tyrwliitt, 4 Campb. 27; (1) Alton r. Farren, 5 Car. & P. 513. and see Carter v. Abbot, 1 B. & C. 144. (2) Spicer v. Burgess, 1 C. M. & R. Ferryman v. Sieggel, 8 Bing. 369, as to 129. 4 Tyr. 59S. Qu. as to tbe suffi- its being necessary for the bankrupt to release his surplus to his assignees, or to obtain releases from his creditors, besides being released by the party who calls on him. In Carter v. Abl)Ot three re- leases were given. In Perrynian v. Steg- gel, the general release was held insuffi- cient. ciency of a single stamp on a release to two witnesses. See per Lord Lyndhurst, 4 Tyr fi05. (3) lieming v. English, 1 C. M. & 11, 568. 5 Tywr, 185. («) A party executed a release to a witness in order to extinguish his interest in the suit, and the witness at the same time executed Hnd delivered his note to the party in satisfaction of that interest, the validity of which was to depend on the event of the suit : Held, that there was a sufficient delivery of the release, al- though it did not come into the possession of the witness, but was immediately de- stroyed by the parly on the rejection of the witness. 4 Verm. R. 523. {&) A Stockliolder m a banking, manufacturing, or other corporation, may trans- fer his interest in the corporation for the purpobo of restoring his competency to Ch. 10.] of an interested Witness. 147 ed either by his resignation, (which will be effectual even by parol, provided it has been accepted, and another person elect- ed in his place,) (4), or by disfranchisement. The method of disfranchisement is said to be by an information in the nature of a quo warranto against the member, who then confesses the information, and upon that there is judgment of disfranchise- ment. (5) This judgment must be such as cannot be avoid- ed ; for if it appear that the witness can avoid the judgment for irregularity, (as he may, if he has never been summoned, and knew nothing of his disfranchisement,) he is not compe- tent. (6) It has been seen that the competency of a witness who is Ba"'- *the defendant's bail, may be restored by applying to the [ *156 ] Court to strike out his name from the bail piece, or by depos- iting a sum of money in Court at the trial of the cause as a security for the debt and costs. (1) So, a witness called for Obligor for a plaintiff who is liable to the defendant upon a bond for the costs of an action, will be allowed to deposit the amount of the penalty of the bond with the officer of the Court, and his evidence will then be received. (2) (a) It has also iDcen no- J^^''^^^® ^^' ticed, that if a witness offers to release or surrender his in- terest, and executes a release accordingly, his competency is restored, though the party refuses to accept the release. (4) R. V. Mayor, &c. of Ripon, 2 (1) Baillie v. Hole, Mo. & Ma. N. P. Salk. 432. Com. Dig. tit. Franchise C. 290, and see Pearcey v. Heming, 5 (F. 30.) Car. & P. 503. (5) The case of Mayor, &c. of Col- (2) Lees v. Smelt, 1 M. & Ro. 329, Chester, 1 P. Wms. 595, n. (6) Brown u. Corp. of London, 11 Mod. 225. testify for the corporation. Gilbert v. Manchester Iron Man. Co., 11 Wend. (527. And he is competent although the transfer is not in conformity to liie bye-laws of the corporation, id. A witness in court after he was called to testify transferred his stock in a hank and was then admitted to testify. 2 Cowen, 770 A stockholder who sells his stock is a competent witness for either parly, wit hout reference to the time or the reasons for which such sale was made, unless he has reserved to himself upon the sale a legal or equitable right to compel a re-transfer of the stock, or some interest therein, or is liable to make good to the purchaser any diminution in value the stock may sustain by a verdict adverse to the interests of the corporation. Stall v. Cattskill Bank, IS Wend. 466. In Cates v. Wacter's heirs, 2 Hill's R. 442, the witness who drew the will in question was otFered to prove its contents, and the correctness of the copy (the original having been lost), so as to entitle it lo probate; it was objected that he was incompetent on the ground of interest, he being entitled to a legacy under the will, whereupon he immediately conveyed his interest in the legacy to P. in Court, without any actual consideralioti and witiiout warranty, for the purpose of restor- ing his competency : Held, that the assignment was equivalent to a release. (a) Kimmel w. Schwartz, 1 i'.reese, 218. An attorney fully indemnified against his liability for costs is a competent witness. Chatl'ee v. Thomas, 7 Cowen, 35S ; 15 Pick. 46S. And a witness who iiad given ;i receipt for property attached, was held to be restored by placing in iiis hands an amount in ujoney ca\wa\ to what he could by possibility be liable on iiis receipt. A guarantor of a debt may be made comjietent to testify by a delivery of the written guaranty to the witness. 6 Wend. 4 13. 148 Privilege of Parties to the Suit. [Ch. 11. CHAPTER XI. PRIVILEGE OF WITHHOLDING EVIDENCE, AND INCOMPETENCY OV WITNESSES TO GIVE EVIDENCE UPON PARTICULAR SUBJECTS. Ill the preceding chapters, we have considered the grounds of incompetency of witnesses, arising from want of under- standing, defect of rehgious principle, infamy of character, and interest in the event of the suit. The objection to witnesses from these causes depends upon one principle, the want of personal credit attaching to the testimony of the witnesses. We proceed now to treat of certain other grounds for the ex- clusion of evidence, depending on various principles. These will be treated of in the following order : — 1. The privilege of the parties to a suit from being exam- ined. 2. The incompetency of the husband or wife of parties to the suit. 3. The exclusion of matters of evidence disclosed in pro- fessional confidence. [ *157 ] *4. The exclusion of matters of evidence the disclosure of which would be prejudicial to public interests. Analogous to these grounds for the exclusion of evidence are various others established for the protection of witnesses, as upon questions relative to their previous life and character, or tending to criminate themselves, or to subject themselves to forfeitures, or occasioning a disclosure of their title to prop- erty ; these will be more properly considered in the chapter which treats of the examination of witnesses. Section 1. Of the privilege of Parties to the Suit from being Examined. A party to the suit is never compelled, on trials before a ju- ry, to give evidence for the opposite party against himself. Inconvenience from the exclusion of evidence of this descrip- tion is not extensively felt in practice ; as, notwithstanding the ordinary tests to which the testimony of witnesses is subjected, parties would perhaps rarely venture to avail themselves of the testimony of their adversaries. It would seem, howev- I'ut an executor who is a party of record is not restored to competency by an in- demnity as to costs. 13 Picli. 368. See also 12 Wend. 404. tie^i punt, p. 157, note, as to restoring competency of a co-plaintiff Sect. l.J Privilege of Parties to the Suit. 149 er, that the rule in question originated from some apprehen- sion of the vexation and inconvenience which might ensue, if a person were bound to prejudice or accuse himself: nemo tenetur seipsum prodere. It may be doubted, whether this maxim is altogether consistent with the strict administration of impartial severe justice. Thus much may be said for the rule, that it shuts out opportunities of false swearing and per- jury ; and in criminal trials, saves the judges from the necessi- ty of questioning prisoners to their conviction, — a practice, which in some instances might be ill employed, and would generally give offence to public feeling. (1) (a) *0n a question of settlement, it has been determined in the K.ated in- case of the King v. Woburn, (1) that the rated inhabitants of r *i^q ] either parish, being in reality parties to the proceedings, can not be compelled to give evidence against their own parish. So, in an action of ejectment, on the several demises of two lessors, one of them is not compellable to give evidence for the defendant, though no title has been proved under his de- mise. (2) The lessors of the plaintiff, said Lord Ellenbo- rough, are substantially the parties on the record ; all are jointly liable ; that lessor, upon whose title the recovery pro- ceeds, is generally the trustee of the other ; and there are the same reasons for protecting them from being examined, which have produced the general rule of law, that the parties on the record cannot be compelled to give evidence against them- selves, and are not permitted to swear in their own favour. In the case of several plaintiffs or defendants, the privilege Co-piaintiff is personal to each plaintiff and defendant. Where one of ag'a"inst several co-plaintiffs comes forward voluntarily to disprove the auoiher. (1) The practice of interrogating the is frequently departed from in our juris- prisoner by the Court was very common prudence. in the early state trials, and was not (1) 10 East, 403. This case was abandoned at the Revolution. It seems decided before the statute 54 Geo. 3, to have been required on the part of eh. 170, s 9. It does not appear to be magistrates, previous to committing pris- determined, whether, since that statute, oners, though this power is not usually parishioners are compellable to give evi- exercised. See post. Depositions and dence, or are merely rendered compe- Examinations. On the suliject of the tent. The same question arises upon the exclusion of tiie testimony of parties to various other statutes making rated in- sults, see Bentham, Rationale of Judicial habitants competent witnesses. Evidence, book ix. ch. 3, 4, 5, where (2) Fenn dem. Pewtress v. Granger, the proceeding is not before a jury, the 3 Campb. N. P. C. 178. maxim nemo tenetur seipsum prodere (a) The plaintiff on the record cannot be compelled to give testimony. 7 Cow- en, 177; 5 Gill and J. 135. One of two plaintiUs in assumpsit suing as indorsees of a promissory note after having assigned upon the trial all his interest and right therein to the other, who had paid into Court all ilie costs of the suit, wa^f held to be admissible for the plainlifl' to whom ho had assigned. JIart v. fleilner, 3 Ravvie, 407. The payee plaintilf on the record, was held to be competent to testify in action against the maker of the note : the action being sued for the benefit of the assignee. Johnsou V. Blackman, 1 1 Conn. R. 342. See 4 Watts, I); 5 id. 80. 150 Privilege of Parties to the /Suit. [Ch. 11. defendant's liability to the demand made upon him, it has been lield, that, with the consent of tlie adverse party, he may be admitted, though at the same time he defeats the claim of those, who jointly sue with him (3) : for, if the plain- tiff were to make a declaration against his interest out of court, evidence of that declaration would be admissible ; and how is the proof less credible, said C. J. Mansfield, if, with the consent of the defendant, who waives all objection to his testimony, he declares the same thing upon oath at the time of trial. [*]59] *SectionIL Incompetency of Husband or Wife of parties to the Suit. a^d* w^ife ^^ seems to follow, as a consequence, from the principle on not coinpe- which wituesscs are excluded on account of their interest in each^°oiher ^^^ event of a suit, that wherever the testimony of a person is inadmissible upon this ground, that of the wife or husband of such person should be rejected, in consequence of the iden- tity of interest created by the relation of marriage. In civil ca- In an action, brought Iby the executrix of a surviving trus- *^*- tee under a marriage settlement, to recover back the value of certain goods which had been sold by the defendant, as sher- iff, under an execution against the husband of the cestui que trust, the husband was not admitted to prove, on the part of the plaintiff, that the goods had been conveyed in trust to the plaintiff for the separate use of his (the witness's) wife ; for the wife was substantially the plaintiff in the suit. (1) (a) A hus- band is incompetent to give evidence in support of the inter- est of his wife, who takes a reversion in fee in the property in dispute. (2) So it has been held, that as the bail of the defendant cannot give evidence in his favour, the wife of the bail is likewise incompetent. (3) And the wife of a bankrupt cannot be examined to prove his bankruptcy. (4) (3) Norden and anotlier v. William- parties to a suit, are privileged from son, 1 Taunt. 378, by Mansfield, C. .T., giving evidence. and Chambre, J., who were the only (1) Davis w. Dinwoody, 4 T. R. 678, judges present. And see Worrall v. and see Anslay v. Donney, 2 Str. 1253. Jones, 7 Bing. 395, ante. It does not (2) Hatfield v. Thorp, 5 B. & A. 91. appear to have been considered, wheth- (3) Cornish v. Pugh, 8 D. & R. 65. er persons whose admissions are evidence (4) Ex parte James, 1 P. Wms. against parlies to a suit, on the ground of 611. The declarations of a wife, even their being the real, though not nominal, when living separate from her husband, (a) In Richardson v. Learned, 10 Pick. 261, the action was sued by the trustee of the wife's property; and held, that the husband was a competent witness. In Burrage v. Smith, 16 Pick. 56, P. T. Vose, who with his wife conveyed the premises with warranty, was admitted to prove the ouster; for he had no interest. The husband and wife conveyed. Held, that the husband being dead, the wife was competent to repel the allegation of fraud in the conveyance. 5 Watts, 442. Sect. 2.] Incompetency of Husband or Wife, (^'c. 151 On a prosecution of several persons for a conspiracy, Lord t^rjmuiai EUenborough, C J., refused to admit the wife of one of the defendants to be a witness for the others ; a joint oflence be- ing ^charged, and an acquittal of all the other defendants be- [ *160 ] ing a ground of discharge for the husband. (1) On the trial of an indictment against two prisoners for bur- glary, in which each of them set up the defence of a distinct alibi, it was proposed, on the part of one of the prisoners, in proof of his alibi, to call the wife of the other prisoner ; but her evidence was rejected, on the ground of tending to shew that the witness for the prosecution was mistaken as to one of the prisoners, which would weaken the effect of that wit- ness's testimony, as to the other prisoner, her husband. It was decided, by a majority of the Judges, that the witness had been properly rejected. (2) But this case must be understood as having been decided on its own peculiar circumstances, and not as warranting the conclusion, that where prisoners set up a separate and distinct defence, the wife of one prisoner cannot in any case be a witness for another prisoner. There are certain excepted cases, in which the evidence of Exceptions, husband or wife is admissible against the other, — which will be presently considered. It is a general rule, in such cases, that if the evidence of husband or wife is admissible against the other, it is likewise admissible in the other's favour. (3) It has been deemed expedient, as a principle of public pol- Husband icy, to exclude the testimony of a husband or a wife against ||"t 7ompe- the other. It has been resolved, says Lord Coke, (4) *that a te«' against wife cannot be produced against her husband, as it might be r^*i°(3\ '] the means of implacable discord and dissension between them. The risk of an occasional failure of justice has been regarded as outweighed by the necessity of protecting the confidence of domestic life. This rule holds c(iually both in civil and in criminal cases. have been held not to be admissible for who identified either of the prisoners, him in an action fornecessaiies. Ilodg- was the person whom the wife of one kinson v. Fletcher, 4 Campb. 70. The of the prisoners was called to prove mis- Court of Common Pleas, liovvever, taken as to the identity of the other pris- doubted as to the admissibility of her oner. confessions as to adultery for him in an (3) Per Lord Tenterden, in R. r. action by her trustee. Hchoiey v. Wood- Sergeant, II. eV: M. 354, citing R. v. man, 1 JSing. 349. Berry. (1) R. v. Locker and others, 5 Esp. (4) CoI.it. 6, and see per Lord El- 107. R. V. Frederick and another, 2 lenborough in R. v. I.ulle, H Ea>t, 202, Str. 1004, S. P., where innlerin! evi- " in any matter aOecting the husband's dence had been given against the bus- interest or character." The Law of band, and it wa.s impossible to separate .Scotland, 18 Howell's St. Tr. 580, n. the cases of two joint trespassers. Alison's Prac. Cr. L. 463, and that of (2) Pu;x V. Smith and another. Moo- America, Kent's Commentaries, vol. 2, dy's Cr. Ca. 289. It should be remark- p. 149, do not allow a husband or wife ed, though it is not staled in the report, to be vvilnesscs for or against each other. the only witness lor the prosecution, ,152 Incompetency of Husband or Wife [Ch. 11,. Civil cases. 1,^ ^^ actioii broiiglit by a woman as fc77ie sole, the defend- ant cannot call the plaintiff's husband to prove her married, and thereby to nonsuit her. (1) Criminni rpj^e husbaud and wife are not, in general, allowed to be iiiss.*^*^' Avitnesses against each other, in criminal proceedings. Tn a prosecution for bigamy, the first husband cannot be admitted to ])rove the former marriage against the wife. (2) («) Such evidence would directly criminate, and therefore is not admis- sible. On a prosecution against a woman and others for a conspiracy in procuring a marriage between her and her hus- band, the husband is not allowed to be a witness in support of the prosecution. (3) It seems to be the better opinion, that a Avife is not compellable to give evidence against her husbaud upon a charge of high treason. (4) Extent of j,i cases where the husband or wife are directly interested r *162 1 ^'^ ^'^^ event of the proceeding, the principle of the rule for the exclusion of their testimony is carried to its full extent. Tbus, it has been held that a wife is an incompetent witness against her husband, although the marriage took place after the wife was served with the subpoena to give evidence in the suit. (1) Consent of Whether the rule of exclusion is to be relaxed, where a husband, husband consents to his wife being examined as a witness against him, is left somewhat in doubt by the authorities. In. a case before Lord Hardwicke, C. J., he would not suffer a woman to be a witness, though her husband consented. (2) In the case of Pedley v. Wellesley, (3) Chief Justice Best ex- (1) Bentley v. Cook, cited in R. v this passage, Lord Ellenborough, 6 M. Cliviger, 2 T. R. 265, 269. See Col- & S. 194, observes, that admitting the vin V. Fraser, 2 Hagg. Eccl. Ca. 277, n. authority of the passage, it assuinea Jourdaine v. Lefevre, 1 Esp. 66. Dale that the husband was nnder the criminal V. Johnson, Str. 568. Per Lord Eldon, charge, that he was included in the si- 15 Ves. 165. mul cum aliit,. See the case of R. v. (2) Grigg's case. Sir T. Raym. 1. Smith and another, ««fe. That a mere Sedgwick v. Watkins, 1 V^es. Jun. 49. expectation of benefiting the husband, It may, perhaps, be thought that the ev- as, by giving evidence against an accom- idence of a first wife might not improp- plice, does not exclude, see R. v. Rudd, erly fall williin the principle of the ex- Leach, 133. ceptions hereafter noticed. (4) Tlie great authority of Lord Halo (3) R. V. Sergeant and others, Ry. & is in favour of the wife not being com- Mo. 352, befori! Lord Tenlerden, upon pellable to give evidence, Hale's P. C. the authority, principally, of the con- 301 ; see also Brownl. 47. Dictum in verse case of R. v. Locker, 5 Esp. 107, Grigg's case. Sir T. Raym. cited Gilb. ante. It is laid down in Hale, P. C. Ev. 19, and B. N. P. 289, contra. 301, that a woman is not bound to be (1) Pedley v. Wellesley, 3 Car. & P. sworn, nor to give evidence against an- 558. other in case of theft, if her husband be (2) Basker u. Sir W. Dixie, Rep. concerned, though her evidence be ma- temp. Hard. 264. terial against another, and not directly (3) 3 C. & P. 558. against her husband. Ln adverting to («) On the trial of an indictment against the husband and others for a conspir- acy in enticing avv'ay from her parent and piocuriiig the marriage, the wife was held to be competent to testify. 2 Yealcs U. 114. Sect. 2.] of the Parly. X53 pressed his willingness to receive the evidence of the defend- ant's wife, if the defendant had consented, but the defendant refused his consent. Where a party consents that his wife shall be examined as a witness against himself, there can be no violation of confidence, which is a principal ground of the rule of exclusion, but the probability, tlrat if such evidence were generally admitted, family dissensions might be increas- ed, is not altogether obviated by the circumstance of consent. Although the husband and wife are not allowed to be wit- Ex»«?nt of nesses against each other, where either is interested in the Coi!a"erai event of a proceeding whether civil or criminal, it seems to be prweed- the better opinion, that, in collateral proceedings, not inmiedi- " ' ately affecting their mutual interests, their evidence is receiva- ble, notwithstanding it may tend to criminate each other, and notwithstanding the testimony of the one contradicts that of the other, or subjects the other to a legal demand. Accordins, indeed, to the rule laid down in the case of the f-viHenrc '-^ ^ ' , , tending \Q King against the Inhabitants of Cliviger, (4) a husband or criminate, wife ought not to be permitted to give any evidence that may even tend to crimi?iate each other. In that case, on an appeal against an order of removal of a pauper and also of a woman *as his wife, the respondents having proved the marriage, the [ *163 ] appellants called the pauper, for the purpose of proving his former marriage with another woman, but he swore directly the reverse ; they then called the woman to prove the alleged former marriage. The Court of Quarter sessions rejected the witness ; and the Court of King's Bench determined, that she was not competent to give such evidence. Both Mr. Jus- tice Ashurst and Mr. Justice Grose, the only judges present in Court, were of opinion, that a husband and wife are not per- mitted, from a principle of public policy, to give any evidence that may even tend to criminate each other ; that the objec- tion is not confined merely to cases, where they are directly accused of a crime ; but, even in collateral cases, if their evi- dence tends that way, it shall not be admitted ; for although the evidence of the one could not be used against the other on a subsequent trial for the offence, yet it might lead to a crim- inal charge, and cause the other to be apprehended. The authorities relied upon, in support of this decision, are a i^assage from Lord Hale's Pleas of the Crown (1) and the case of Broughton v. Harpur. (2) But the former authority goes no farther than this, that the wife is not compellable to ^ive any evidence charging the husband with an offence ; the f>assage is '■'■ a woman is not bound to be sworn, or to give evi- dence agaijist another in case of theft, &c., if her husband be concerned, though it be material against another, and not di- (4) 2 T. R. 263. (2) 2 Lord Ruym. 752. (1) 2 II. P. C. 301. 20 154 Incompetency of Husband or Wife [Ch. 11. rectly against her husband. "In the case of Broughton v. Harpnr, where the plaintiff made title to lands as son and heir of A. B. and (J. D. his wife, in right of C. D., and the defendant's case was, that A. B. was married to a former wife then living, Gould J., admitted the woman, to whom A. B. was supposed to be married, to prove the former marriage ; but afterwards, as the report states, the same cause being tried upon the same title between the same parties, Lord Holt, C. J., refused to admit the former wife, as witness to prove that fact. The note of the case is very short ; and it is not sta- ted for what reason the wife was considered incompetent on [ *164 ] the second *trial. The objection against her competency on the first trial was on the ground of interest ; and, although at that time this cause of incompetency was not accurately defined, it is now clearly settled, that such an objection could not be supported, and that it was properly overruled on the first trial. These authorities, therefore, it is evident, do not support the case of the King v. Inhabitants of Cliviger, to the extent to which that case has gone ; they certainly do not lead to the conclusion, that husbands and wives are not permitted to give any evidence, in collateral cases, that has a tendency to criminate each other. The rule laid down in the case of the King v. Cliviger was much discussed in a late case, the case of the King v. I71- habitants of All Saints in Worcester (1), in which the Court of King's Bench was of opinion, that it had been expressed in terms much too general and undefined. Tliat case was as follows : On an appeal against the removal of Esther New- man, otherwise Esther Willis, to the parish of All Saints, as to her maiden settlement, the respondents called a woman of the name of Ann Willis, for the purpose of proving this fact, namely, that at a certain time she married one G. Willis. The appellants objected to her competency, alleging that they were prepared to prove his marriage with the pauper at a sub- sequent time. The quarter sessions admitted the evidence ©f the witness, who proved her marriage with G. W. about fourteen years ago ; and cohabitation between this witness and G. W., as man and wife, was proved by other evidence. The respondents then proved, that the pauper gained a settle- ment in her own right in the appellant parish, and that she had about three years ago married G. W. ; and this marriage Avas proved as well by the pauper herself, as by a witness present at the time of the marriage. Tlic counsel for the ap- pellants contended, that the evidence of Ann Willis ought to be struck out. But. the court of quarter sessions overruled the objection, and stated the case for the opinion of tlie Court of Tlie one competent to contra- dict the other in collateral cases. (1) Easter Term, 1817, May 4, MS. G M. i. S. 194, S.C. Sect. 2.] Of the Party. 155 King's Bench. In the course of the argument, which took place on *sho\ving cause against the rule for setting aside the [ *165 ] judgment of the court below, the case of the King v. Clivi- ger was brought into discussion. And after much argument the Court of King's Bench was of opinion, in the first place, that the case cited (admitting it to its utmost extent) did not show the evidence to be inadmissible at the time that it was otiered ; for the wife, did. not contradict the husband, as he had not been examined, — she did not by her evidence direct- ly criminate him, as the proceeding related to other matters, and not to any criminal charge against him, — and her evi- dence covdd never be used against him, nor be made the groundwork of any future criminal proceeding ; the evidence therefore, was unobjectionable when received, and could not properly be expunged. The Court were further of opinion, that the rule, laid down in the case of the King v. Cliviger, was too large and general ; that the former wife would have been competent to prove her marriage, though the second mar- riage had been first proved by the respondents ; and that even if the second marriage had been proved by the appellants, still she would be competent, and the respondents in reply might have called her to prove the former marriage ; for her evidence did not directly criminate the husband and never could be used against him, nor could he ever be aflTected by the judgment of the Court founded upon such evidence. The cases of the King v. Cliviger, and the Ki7ig v. All Rrx v. faints, were commented on very fully by Lord Tenterden ^'^^'"'^^'^^• in the recent case of Rex v. Bathivick. {!) In this case, which arose upon a parochial settlement, the respondents cal- led a witness of the name of Cook, to prove that he was mar- ried to the pauper on a particular day. A witness named Ma- ry Byrne, was then called to prove her own marriage with Cook on a previous day. Lord Tenterden's observations tend so much to the elucidation of the point of the law of evidence under consideration, that it is important to extract them at length as far as they regard the matter in question. *" The question arose on the settlement of another woman, r *166 ] considered to be the wife of Cook. Cook was examined, and proved liis marriage with this woman ; but he was not asked, and did not say, that he had not been previously married to the witness Mary. The witness, Mary, Avas afterwards called to prove her previous marriage with this person. In deposing to this marriage, she did not contradict any tbing that he had said. I notice this fact ; but we do not mean to say, that, if she had been called to contradict what he had sworn, she would not, in a case like this, have been a competent witness (1) 2 Barn. & Ad. GS9. Seo also Ilenman v. Dickinson, .'j Bing. 183, 156 Incompetency of Husband or Wife (Ch. It. to do so. It is not necessary to decide that question at prcs- enit ; but it may well be doubted, whether the competency of a witness can depend upon the marshalling of the evidence, or the particular stage of the cause at which the witness may be called. In the present case, however, the witness not hav- ing been called to contradict her husband, and her testimony not being inconsistent with the fact to which he had deposed, her incompetence, if it can be established, can be so only up- on the authority of the case of the King v. The Inhabitants of Clivigcr.{\) The authority of that case was much shaken by the decision of the case of the King v. The Inhabitants of All Saints, Worcester, (2) in which Lord Ellenborough said, ' The objection rests only on the language of the King V. Cliviger, that it may tend to criminate him ; for it has not an immediate tendency, inasmuch as what she stated could not be used in evidence against him. The passage from Lord Hale (P. C. 301,) has been pressed upon us, where it is said the wife is not bound to give evidence against another, in a case of theft, if her husband be concerned, though her evidence be material against another, and not directly against her husband. Admitting the authority of that passage, it as- sumes that the husband was under the criminal charge ; that he was included in the simul cum aliis. But if we were to determine, without regard to the form of proceeding, whether the husband was implicated in it or not, that the wife is an in- competent witness as to every fact which may possibly have [ *167 ] a tendency to criminate *her husband, or which, connected with other facts, may perha^^s go to form a link in a compli- cated chain of evidence against him, such a decision, as I think, would go beyond all bounds ; and there is not any authority to sustain it ; unless, indeed, what has been laid down, as it seems to me, somewhat too largely, in the King v. Cliviger may be supposed to do so.' The decision in the case of the King V. Cliviger appears to have been founded on a supposed legal maxim of policy, viz. that a wife cannot be a witness to give testimony in any degree to criminate her husband. This will undoubtedly be true in the case of a direct charge and proceeding against him for any offence ; but in such a case she cannot be a witness to prove his innocence of the charge. The present case is not a direct charge or proceeding against the husband. It is true, that if the testimony given by both be considered as true, the husband, Cook, has been guilty of the crime of bigamy ; but nothing that was said by the wife in this case, nor any decision of the court of sesision, founded upon her testimony, can hereafter be received in evidence to support an indictment against him for that crime. This is al- together res inter alios acta ; neither the husband nor the wife (1) 2 T. R. 263. (2) 6 M. & S. 194. Sect. 2.j Of the Party. 157 has any interest in the decision of the question, and the inter- est of the parish of Pancras required that the illegahty of the second marriage should be established, if it was in fact ille- gal." {a) A wife may be a witness, in an action between third persons ^^'cTihird not immediately affecting the interest of the husband, though persons, her evidence may possibly expose him to a legal demand : as, in an action between third persons for goods sold and deliver- ed, to prove that the goods had been sold not on the credit of the defendant, but on her husband's credit. (1) (6) This ev- idence, it may be said, was in some measure against the hus- band, though he was not a party in the suit. On the other hand, it is to be observed, that a person is compellable to give evidence though it subject himself to a legal demand, and that to reject her evidence in such a case would be a hard- ship on the defendant, who may have no other means of de- fending himself %gainst an unjust demand : and though, ui> [ *168 ] on her testimony the defendant might have a verdict, and an action might afterwards in consequence be brought against the husband, she would not then be admitted as a witness, nor could her evidence in the first suit be produced against him. It would seem, indeed, that the principle of the rule was not infringed upon by requiring a wife, when called as a wit- ness in a suit, in the event of which her husband is not inter- ested, to answer all questions which might be demanded of her husband ; but that some violation was done to the prin- ■ciple of the rule of exclusion, when the wife is compelled to prove facts upon which the husband might have declined (I) Williams v. Johnson, by King, C. J., 1 Str. 204. Bull. N. P. 287. S. C. (a) In Redman v. The State, 1 Blackf. 430, which was a prosecution for know- ingly receiving etolen goods; the wife of another who stood charged with stealing tthe same goods, was held competent to testify in favor of the prosecution. In an action between two towns regardir>g the settlement of the wife, she was admitted to testify in reference to the marriage. Raynham v. Canton, 3 Pick. 293. (&) The wife is admissible where the liability of the husband is contingent, and ■not necessarily established by the trial. Fitch v. Hill, 11 Mass. 286; Williams v. Johnson, 2 Str. 504. In Jackson r. Heath, Bail. R. 355, which was against the defendant as maker of a promissory note, the plaintiff who claimed the note offered the wife of a legatee to whom the payee of the note in question had by his will bequeathed all his notes, &c.; and Held, that she was competent, to prov€ that plaintiff's possession of the •note was bona fide, and that he was entitled to sue for them. The court say: — Her husband "was not a party to this suit, and if he had any interest, it was to de- feat the plaintiff's claim. He was certainly a competent witness to testify against his interest, and his wife must be equally so, unless he himself interposed an objec- tion." In an action brought by the plaintiff to recover of the executor certain property .of the testator which the former claimed by a parol gift from the latter. Held, that if he widow was competent to testify in regard to the gift ;— to establish the gift. 2 Bail. R. 57J. Sec 3 Binn. 3(iC. 158 Incompetency of Husband or Wife [Cii. 1 1 . Conver- saiions be- tween hus- band and wife, how (ar privi- leged. Non-access, [ *169 ] Exceptions. giving evidence, in consequence of their tendency to criminate himself. It is to be observed, however, that the privilege given to the husband in such a case, is partly, though not en- tirely, on the ground, that what he says woidd be admissible evidence against himself, whereas the evidence of his wife could not be used against him. With respect to the evidence of conversations between hus- band and wife, it has been decided, that where a man or wife are divorced by act of parliament, a wife is not competent to prove a contract made by her husband jircvious to the divorce, on the ground that the confidence between man and wife should be kept forever inviolable. (1) There have been con- trary decisions at nisiprius as to the point, whether the wid- ow of a deceased person is a competent witness for a defend- ant, to prove an admission by her husband in an action brought by her husband's executors. (2) *It is settled, that a wife is incompetent, as well after as before the death of her husband, to prove the fact of non-ac- cess, that is to say, of the absence of the fact or the opportu- nity of sexual intercourse with her husband, in whatever form the legal proceeding may be, and whoever may be parties to it. This rule is established, independently of any possible motives of interest in the particular case, upon principles of public policy. (1) There are several exceptions to the general rule upon this subject, where, from the nature of the inquiry, the informa- tion to be expected is peculiarly within the knowledge of the husband or wife, and where to exclude such evidence (1) IMonroe v. Twisleton, by Lord Alvanley, PeaUe's Add. Ca. 219, and per Lord Ellenborougli in Aveson v. Lord Kinnaird, 6 East, 192. In Sclio- ley V. Goodman, 1 B. 349. The Court of Coinmon Pleas appear to have doubt- ed, whether the declarations of a wife, having a separate maintenance, were ad- missible to show that she was living in adultery; see IJodgkiuson v. Fletciier, ante, 4 Cainpb. 70. (2) Li Docker v. Ilasler, Pv.y. & I\Io. 198, by Best, C. J., the evidence was rejected; and sec per Lord Ellenborougli in the course of the argument in Aveson V- Lord Kinnaird, (i East, 192. \n Bev- eridge v. iMinter, 1 C. & P. 364, by Lord Teiiterden, C. .T., tlie evidence was received. A distinction may, perhaps, be drawn between cases, where the wife is called to prove a conversation to which herself and her husband were the only parties, and other cases in which her evidence might be material against her husband's executors. See also Hum- phreys V. Boyle, 2 M. &. 1\L 140, where a wife's declarations during cov- erture, were received in a suit brought by her administratrix against the hus- band. (1) R. V. Rooke, 1 Wils. 340. R. V. Kea, 11 East, 132. R. v. Luffe, 8 East, 203. In Goodright v. Moss, Cow- per, 590, Lord Mansfield says, that it is a rule founded in decency, n)orality, and policy, that husband and wife shall not be allowed to say, after marriage, that they have had no conne.\ion, and there- fore, that the offspring is spurious, more especially the mother, who is the offend- ing party. The incompetency of mar- ried people to prove non-access, has oc- casionally been rested on the grounds of necessity or of interest, which grounds, however, will not support all the author- ities. The wife seems to be competent to prove access, where no question ol interest is involved; and it would seem, that in such a case, her statements as to non-access might be used to contradict her. See Peadrell v. Pendrell, Str. 925, B. N. P, 287. Sect. 2.] of the Parly, 159 would occasion insecurity to that relation of society, which it is the object of the rule to protect. It has been before ob- served, that the authorities for admitting the wife's evidence, in such excepted cases, in favour of her husband, are equally authorities for receiving it, where it operates against him. (2) A wife is a competent witness against her husband on any charge which affects her liberty or person, (as, a forcible mar- riage,) although she has voluntarily cohabited with him. (3) A *wife may be a witness on the prosecution of her husband for a rape committed on her person. (1) On an indictment against a man for beating his wife. Lord Raymond suffered her to give evidence. (2) On the trial of an indictment against a man for shooting at his wife, the evidence of the wife was ruled to be admis- sible against the husband; but Holroyd, J., thought that the wife could only be permitted to prove such facts as could not be proved by any other witness. (3) A wife is permitted to exhibit articles of the peace against her husband : (4) and the Court will not receive affidavits on the part of the defendant, to contradict the truth of the ar- ticles exhibited against him, and prevent his giving surety. (5) Forcil)le Slarriag^r-. (See Note ante, page 161.) Rape. [ *i70 J Assault. Malicious shooting. Articles of peace. (2) Per Lord Tenterden, C. J., in R. V. Sergeant, Ry. & Mo. 354, by Gibbs, C. J., in R. V. Perry, cited ib. (3) Per Hulloclv, B., Wakefield's case, 2 Russ, 606. Swenden's case, 4 Howell's St. Tr. 575. R. v. Perry, 1794. Hawk. P. C. b. l,ch. 4l,s. 13. The wife was there called for her hus- band; see this case mentioned by Lord Tenterden, C. J., in R. v. Sergeant, Ry. & Wo. 354. Fulwood's case, 1 Hale, P. C. 302- 1 Com. 444. The author- ities are somewhat contradictory as to the competency of the wife after a vol- untary cohabitation. Hawkins says, that it was ruled in R. v. Perry, that the wife was a competent witness for or against her husband on a trial of au in- dictment for a forcible tiiarriage, al- though she had cohabited with him from the day of the marriage; and in R. v. Wakefield and others, Lancaster Spr. Ass. 1827, cited 2 Russell on Crimes, 706, for a conspiracy, in unlawfully tak- ing Ellen Turner, and procuring her to be married, Hullock, B., received the evidence of the wife, as being admissi- ble on the ground of necessity, even sup- posing tliat the iuarri;ige was valid, and also on the ground that the defendant could not take advantage of his own wrong. There was a second count charging force, which was not supported by the evidence; Hullock, H., observed, that he had seen a report of 11. v. Perry, from which it appeared, that tlic wife was held to be a competent witness, though no force was used in the abduc- tion. As to the effect of force in such cases, see further, 1 Comm. 444. 1 Hale, P. C. 302. 4 Mod. 3. Str. 633. Cro. Car. 488. Ventr. 243. 2 Hawk. 0. 46. (1) Lord Audley's case, 1 St. Tr. 393. 3 Howell's St. Tr. 413. Hutton, 116. 1 Hale, P. C. 301. Hawk. b. 2, c. 46, s. 77. Proliyn, J., in Rep. temp. Hard. S3, B N. P. 2S7. 1 Bl. Comm. 443. See Grigg's case, Sir T. Rayui. 1 Gilb. Ev. 120. 2 Kel. 403. Ca. temp. Hard. S3. (2) Ayre's case, 1 Str. 633. Lady Lawley's case, B. N. P. 287. Jagger's case, 1 East, P. C. 454. The exception extends to dying declarations, Wood- cock's case, 2 Leach, Cr. C. 563. John's case, 1 East, P. C. 357. (3) Whitehouse's case, by Garrow, B. and Holroyd, J., 2 Russell on Crimes, 606. Mr. J. Holroyd cited the case of Jagger, 1 East, P. (J. 454, where a wife was allowed to prove the fact of a pois- oned cake having been given her by her liusband. See J{. v. Ferrers, 1 Buri-. 635. R. V. iMe.id, 1 Burr. 542. R. r. Bowes, J T. R. 698. (4) Bull. N. P. 287. (5) Lord Vane's case, 2 Str. 1202, more fully stated from Mr. Ford's MS. in 13 East, 171, ii. («.); U. o. Uoherty, ib. S. P. IGO Incompetency of Husband or Wife [Ch. 11. So, an aflidavit of a married woman has been admitted to be [ *171 ] read, on *an application to the Court of King's Bench for an information against her husband, for an attempt to take her away by force after articles of separation : (1) and it would be strange, says Mr. Justice liuller, to })crmit her to be a witness to ground a prosecution, and not afterwards to be a witness at the trial. (2) [a) Secret Upou an appeal against an order of bastardy in the case of "^'*' ^ ' a married woman, Lord Hardwicke and the other judges held, that she was a competent witness to prove her criminal con- nection with the defendant, though her husband was interest- ed both in the question and the event of the appeal ; because such a fact, so secret in its nature, can scarce ever be proved by other evidence. (3) And, by a parity of reason, said Lord Ellenborough, in the case of the King v. Luffe^ (4) it should seem, if she be admitted as a witness of necessity, to speak to the fact of the adulterous' intercourse, it might also, perhaps, be competent for her to prove, that the adulterer alone had that sort of intercourse with her, by which a child might be produced within the limits of time which nature allows for par- turition. But this is only from the necessity of the thing. {^){c) (1) Lady Lawlcy's case, Bttll. N, P, maFtciaus prosecution, the evidence of a 287. Mary Mead's case, 1 Burr. 543. wife given on the trial of the indictment (2) Bull. N. P. 287. In the case of has been received from necessity; that Annesley ». Lord AngTesea, 17 Howell, of ber husband, though he was the de- 1276, the Court were of opinion, that a fendant, being received on the same wife might give evidence as to her hus- ground. Johnson v. Browning, B. N. band's credibility upon oath. See 13 P. 15. In the Court of Justiciary in Howell's St. T. 581, as to the words or Scotland, a wife was admitted as a wil- nclions of a wife being evidence against ness for her husband on a trial for mur- her husband under the circumstances of der, to prove that at the time of the blow SirT. Fenwick's case. given, the deceased was in the act of (3) R. V. Reading, Rep. temp. Hard, adultery with her. 82. See Cope v. Cope, M. & R. 276. (6) la Cope w. Cope, M. & R. 276, R. r. Bedell. Andr. 8. Gilb. Ev. 189. Mr. J. Alderson directed the jury, that if R. v>. Luffe, 8 East, 203, Infra, chap- they were not satisfied that the husband ter on Presumptions. In R. «. Read- did not avail himself of the opportunity ing, it was considered that the wife of intercourse, the presumption of legiti- could not establish the whole case, but macy was not to be rebutted, by its be- that additional evidence must be produc- ing shown that other men had also sex- ed of the absence of the husband. ual intercourse with the woman. Vide (4) 8 East, 203, In an action on a infra. Presumptive Evidence. («) In Soule's case, 5 Greenl. R. 407, where the prosecution was for an assault und battery : Held, that the wife was competent to testify for the government. It is common learning, that a wife may exhibit articles of the peace against her husband on oath and obtain security for his keeping the peace. She may also be admitted to prove the fact of the violence committed by the husband, id. ih) In a prosecution against the husband for the murder of liis wife, the deposi- tion of the latter taken in writing was admitted. Addis. R. 381. The President of the court observed " I have been generally oppressed with an opinion, that in cases of secret personal injury, a wife may, on her own testimony, obtain protec- tion against her husband, and be a witness, to procure his punishment. (c) In a libel for a divorce, the confession of cither party, unsupported by other evidence, is not sulficienl to ground a divorce upon. 2 Mass. 154; 5 N. H. IDS. And in libels for divorce a vinculo for adultery, the court will not receive the tun- Sect. 2.j o/ if^^ Parly. 161 *The rule in (luestiou has no application to cases where the Declara. %viie, wlio IS not produced as a witness, has acted tor the hus- letters. band in his business and by his authority and consent, and [ *172 ] where, by adopting her acts, he is bound by any admission or acknowledgment made by her respecting that business. Ca- ses of thi.s description belong to the doctrine of admissions. (1) To the same doctrine also belong the various cases in which it has been determined, that the letters or declarations of a wife are not admissible either for or against her husband, even where her acts are the cause of the suit, or when she is liv- ing sejxirately from him, or when the husband is suing iw her right as executrix. (2) The distinctions as to the cases in which the letters or declarations of a wife are prop- erly to be considered in the nature of facts not depending on her credit, Will be more properly considered in the chapter treating of hearsay evidence. The evidence of a husband "s demeanor, upon hearing statements made by his wife, and which are proved by a tliird person, also belongs to the same branch of evidence, (3) (a) With respect to the question, who is to be considered a wife wife of so as to be rendered an incompetent Avitness by the rule under ^^"^'^ ' consideration, it is settled, that upon an indictment for bigamy after the proof of the first marriage, the woman subsequently married is a com|>etent witness agi\inst the prisoner, although the legality of the first marriage cannot be said to be determin- ed *before the prisoner's conviction. (1) On. an appeal against [ *173 ] (1) Emerson ». Bfonden, 1 Esp. 142. more u. (Greenback, Willes, 577. Al- 1 t!U. 527. B.N. P. 287. Anderson tan i' I5iichell, 6 T. R 680. Barron V. Saunderson. 1 Holt, N. P. C. 5.')!. v. Grillard, 3 V. & B. I(J5. Baker o. White V Cayler, 6 T. R 176. Clif- Morle, B. N. P. 28. Jbrd r. Burton, 1 Bing 199. Gregory (3) Where a wife detailed 1o a sur- 15. Parker, 1 Campb 394. Palethorp «. geon, in the presence of her husband, rurnish, 2 Esp 511, n. 15 Ves. 159. the circumstances under wiiich her hus- IlnlJ V. Hall, 2 Sir. 1094, apparently band had inurdered her child, the evi- overruled. Gary r. Adkins, 4 Cainpb dence was rejected by (jarrow, B , in a '.'■■i. Where a wife's declaration as to case tried upon the ^Midland <;ircuit. But »«oney of which she had ihe exclusive such a case obviously was not ail'ecied custody was received See Aveson v. by ihe principle of e.^clusion discu.ssed ia Eoid Kinnaird, 6 East, 188 Hum- the present ciiapter; the effect of ihe ev- phreys o Boyle, I M & Rob. 140, as idence depended on the fact of the bus- to declarations of wife concerning a debt band's demeanor, upon hearinif such a du« to her dum sola. statement by whotnsoever made. (2) Uunn ,-. White, 7 T. R. 112. (1) 1 Hale P. C. 393. B. N. P. 287. Kelley c Sniall, 2 Esp. 716. Hodgkin- 1 East, P. C. 439, and see Standen ». son p. tletclior, 4 Campb. 70. VVins- Standen, Peako, 33. fession of the party, whether of record or otherwise, unaccompanied by other cor- roborating circumstances, us conclusive evidence of the facts in the libel, 3 (Jreenl. \l. 398. («) Where husband and wife were indicted jointly and tried jointly for receiving Stolen goods, the court admitted the declarations of the wife ; that evidence bein;; necessary to prove the guilt of the wife. Upon a motion for a new trial, the court said : — " The jury must be presumed to have understood that tlicy were not to let it operate against the husband ;" and a uew trial was refused for tiiat cause. 5 rick. 429. 21 162 Incompetency of Husband or Wife, ^'c. [Ch. 11 the removal of a woman, as the widow of A. B. deceased, prima facie evidence of the marriage having been produced on the part of the respondents, the Court of King's Bench de- termined, that the woman was a competent witness, on the part of the appellants, to disprove the marriage. (2) Where a witness, produced by the defendant, had lived with the plaintilf as lier husband during the time of the transactions, to which he was called to speak, but had ceased to live with her, when her former husband, who had been absent from Eng- land upwards of thirty years and was supposed to be dead, re- turned to England, it was held that there was no objection to her evidence. (3) Though a person has always held out a woman to the world as his wife, it has been decided, that she is not there- fore incompetent to give evidence in any legal proceeding, in the event of which that person is interested. (4) Section III. THE EXCLUSION OF MATTERS DISCLOSED IN PROFESSIONAL CON- FIDENCE. General Communications made on the faith of that professional con- ''"'*^- fidence which a client reposes in his counsel, attorney, or so- [ *174 ] licitor, *are not allowed to be revealed in a court of justice to Principle, the prejudice of the client. The expediency of this rule must depend, not on the impropriety of violating the confidence re- posed, but on a consideration that the collateral inconvenience which would ensue, if no such confidence were reposed, would preponderate over the direct mischief produced by the chance of misdccision or failure of justice resulting from the want of evidence. If in the cases within the operation of the rule, the «nly confidence reposed was a confession of guilt or dis- honesty, the rule would be obviously detrimental to the interests of justice : but it is conceived, that in a multitude of instances, a person possessed of just rights would be materially impeded in vindicating them, if every communication made to his profes- (2) R. «. Briimley, 6 T. R. 330. R. and I-ord Kenyon ruled, that a prisoner, V. St. Peters, Burr. Sett. Ca. 25. S. P., vvlio liad called a woman as liis wife, and see Wells v. Fisher, supra. during a trial, was estopped from calling (3) Wells V. Fisher, 1 i\Io. & Ro. 99. her as a witness upon the same trial. nam. Wells v. Fletcher, 5 C. & P. 12. Ches. Cir. 1782, cited by Chief Baron Tiie case appears to have been decided Richards, in Campbell v. Noconlow, uhi on the ground of absence of bias, which supra. See Adey's case. Leach, 243. is not the principle on which the objec- IMace v. (^adell, Cowp. 233. Lord lion turns. But where there is not a le- Kenyon's decision is approved of by gal marriage there appears to be no au- Park, .1., in Batlhevvs «. Galir!do. It ibority for excluding the evidence. would seem, however, improper to ex- (4) Batlhews «. Galindo, 4 Bing. 610. elude competent testimony in conse- Tlie point was considered doubtful in quence of the misrepresentation of a Campbell v. Twemlow, 1 Price, 81, parly. Sect. 3.] Exclusion of Matters disclosed^ Sfc. 163 sional adviser might bo used against him ; if such were the law, it would be necessary, in self-defence, to accompany all com- munications made to a professional adviser, with a statement of the several circumstances and explanations, which, howev- er unnecessary for the purpose of the communication, would be requisite to prevent it from being unfairly used. And it is to be observed that, the evidence in question, being generally a species of hearsay evidence, is open to much objection upon that ground, especially as it would generally be delivered eith- er by a very favourable or a very hostile witness. The privilege is that of the client and not of the profession- ^'ature of al adviser ; an attorney will not be allowed, against his client's ''"^' ^^^' will, to disclose matters of professional confidence, though himself willing to do so. (1) (a) The client may waive his privilege. (2) But he is not to be considered as waiving it, by calling his attorney as a witness. (3) With respect to the character and situation of the persons Communi *receivmg the communications, it is to be observed, that this professional privilege extends to the three cases of counsel, at- torney, and solicitor. (1) A person who acts as interpreter (2) or agent, (3) as the organ of communication between an attorney and his client, stands precisely in the same situation as the attorney himself; he is considered as the organ of the attorney, and is under the same conditions of secresy. An attorney's clerk (4) cannot be called to prove a confidential communication. A barrister's clerk cannot be called to prove the date of his master's re- tainer. (5) cations to what per- sons uriv). legged. [ *175 ] (1) B. N. P. 284. Wilson ». Ras- t.-ill, 4 T. R. 753. Saiuiford v. Kensing- ton, 2 Yes. Jun. 189. (2) Merle v. IMore, R. & M. 390. In this case the person waiving the priv- ilege was no't a party to the suit. (.3) Waldron v. Ward, Styl. 449. Vaillant v. Dodemead, 2 Atk. .524. The case decides that lie cannot be ex- ninined as to coniidential ooinrnunica- lions unconnected with tlie suhject of the 'juesiions in chief. (J) Wilson V. Rastall, 4 T. R. 759. Waldron v. Ward, IStyl. 449. In l. ,«i R. 732. (5) Poole V. Hay lie, R. i; M. 1G5. (a) See Scott v. Van Alstyne, 9 .1, R. 21(5. 164 Exclusion of Matters disclosed [CIi. IL But a person, though by profession an attorney, if he be not employed in the particular business which is the subject of inquiry, as wliere he is undersheriff at the time, is not precki- ded from giving evidence, though he may have been consult- ed confidentially. (G) And it had been ruled, that a person who consulted confidentially, on the supjiosition of his being an at- torney, when, in fact, he was not one, is compellable to an- swer. (7) [ *176 ] *The professional privilege is confined to the cases which have been enumerated. (1) There are, indeed, cases, said Mr. Justice Buller, in the case of Wilson v. Rastall, to which it is much to be lamented that the law of privilege is not ex- tended ; those in which medical persons are obliged to declare the information which they have acquired by attending in nietiifaiad- their professional characters. (2) This point was much con- ^'****' sidercd in the Duchess of Kingston's case, where Sir C. Hawkins, who had attended the duchess as a medical man, was compelled to disclose what had been committed to him in confidence. (3) Lord Kenyon, in the same case of Wilson V. Rastall J observed, if a friend could not reveal what was imparted to him in confidence, what is to become of many Frienrfs. cascs cveu aflectiug life, for instance Dr. Ratcliff^s case : (4) and if the privilege claimed extended to all cases and persons. Lord W. Russell died by the hands of an assassin and not by the hands of the law ; for his friend. Lord Howard, was per- mitted to give evidence of confidential conversations between them. (5) Bankers. The bankers of one of the parties in a cause are bound to answer as to the amount of the balance of such party on a siewariis. particular day. (6) And a steward is not, like the legal adviser (6) Wil^nn r. Rnstiill, 4 T. R. 753. See Rex v. Brewer, 6 C. & P. 363, Hill V. Elliot, .5 C. & P. 43G. (7) Fountain V. Young, 6 Esp. 113. Sir D. Eviins, in his edition of I^othier, suggests that it follosvs from Wilson r. Rustall, that communications to a con- veyancer are not privileged, when made to him in tiiat capacity, though he may happen to be a counsel or attorney. But in Farquano v. Knight, 2 M. & Wei. 100, it was said by Lord Abinger, C. B., that it was no objection to an at- torney's privilege that a document was brought lo him in the character of a scrivener, for that Lord Nottingham had laid it down, that he would not compel a scrivener to disclose communications made to him, Harvey v. Clayton, 2 Swanst. 221, n. Anon. Skinn. 404. In the same case, Parke, B., observed, that it would he difficult to say that a li- censed coQveyancer was privileged as such. (1) 4 T. R. 7oS. Vaillant r. Dode- mead, 2 Atk, 524. 2 Swanst. 221. Stone V. Lord G. Lennox, Lord Chan- cellor's Cond. AVest ,Nov. 4, 1836. It was formerly thought that a trustee was privileged, B. N. P. 184. (2) 4 T. R. 759. See also R. v. Gibbons, 1 C. & P. 97. R. v. Sparkes, cited in Peake's N. P. C. 77, Du Barre v. Levette. \N hether the extension of professional confidence to tnedical prac- titioners would be expedient, may admit of considerable question. (3) 20 Howell's St. Tr. 613, 614. (4) 18 Howell's St. Tr. 42S, (5) 9 Howell's St. Tr. 599. It may, with great reason, be questioned, wheth- er, taking into consideration all the cir- cumstances of Lord Russell's trial, it is not too r\iucli to affirm that he died by the hands of the law. (6) Loyd V. Freshfield, 2 C. & P. 329. Sect. 3.] in Professional Confidence. 165 of a party, protected by his relative situation, from the disclo- sure of his knowledge of the affairs of his employer, and of the existence and contents of instruments, with which he has become acquainted *in consequence of his employment. (1) A [ *\77 J confession to a clergyman is not privileged. (2) (a) ciergymdu. In a case at nisi prius, where a clerk to the commissioners c-'ierk lo of the property-tax was called to prove the defendant a col- sioners. lector, and refused to give evidence, on the ground of his hav- ing taken an oath of office not to disclose what he should learn as clerk respecting the property-tax, except with the consent of the commissioners or by force of an act of parliament, the Court held, that this oath would not exempt the witness, oath of of- and that it must be construed, as containing an implied fice. exception of the evidence which he might be called to give in courts of justice in obedience to the writ of subpce- na. (3) In an early case, (4) indeed, where the defendant pleaded, to an action of debt on a bond, the statute against buying and selling of offices, and called a witness to show on what occasion the bond was given, Lord Holt is said to have refused his evidence, because it appeared, that he was private- ly intrusted to make the bargain, and to keep it secret. But the principle and authority of this case seem to have been over- ruled by that of Wilsoji v. Rastall, and the later decisions on this subject. With respect to the nature of the communications which What com- are ^privileged, it maybe observed, that the cases maybe di- pHvj'ietcd"^ vided into those which have reference to some suit, and those [ *]78 J in which no suit was in contemplation. It was observed, by Lord Ellenborough, in Gainsford v. Where a suit expeci- ed. (1 ) Lord Falmouth v. I\Ioss, 1 1 Price, it had been decided in Giliiain's case, R. 455. The question related to the points, & M. Cr. Cas. 194, that the privilege whether a steward could l)e allowed to did not extend to clergymen, but that he say, that an ancestor of his employer would never compel a clergyman to dis- granted a certain lease, and whether that close communications made to him by a ancestor, under deeds in his employer's prisoner; but if he chose to disclose them, possession, took an estate for life. The he should receive them in evidence. Court guarded ihenaselves from deciding He also observed, that the confidence, in whether a steward could be asked gener- the case of attornies, was a great anom- al questions as to his employer's title and aly in the law. A confession to a Po- ;is to deeds in his possession. That stew- pish priest has been held not to be privi- ards are not privileged, see Vaillant v. leged. Ilutlcr «. INIoore, Macnally, 253. Dodemead, 2 Atk. 524. Per Buller, J., In Du IJarre ». Livette, Peake, 108, 4 T. II. 756. Lord Kenyon apparently dissents from (2) R. 15. Sparkes, cited in Du Barre the decision in R. v. Sparkes. A peer is V. Livette, Peake, 77, the confession was not privileged, 11 St. Tr. 246. /nade by a Papist. In Broad v. Pitt, 3 (3) Lee q. t. v. Birrel, 3 Canipb, 337. C. & P. 519, Lord Wynford said, that (4) Bull. N. P. 284. (a) By statute, 2 R. S. 406 s. 72, it is provided that "no mini.ster of the gospel, or priest of any denomination, shall be allowed to disclose any confessions made to him in his jjrofessional char.icter in the course of discipline enjoined by the rules or practice of such denomination." The People v. (iarrit (iates, 13 Wend. 31 1. The admissions must be made to the clergyman in his professional cliaracter ; otherwise llicy are not privileged, id. 166 Exclusion of Matters disclosed [Cli. 11. Grammar^ (1) that it had boon cstabhshcd hi Cohdcn v. Kcn- drick{2) and Wilson v. Rastall. (3) that communications by a ])arty to a witness, whether prior or subsequent to the relation of cHcnt and attorney subsisting between them, were not priv- ileged, but that this relation might be formed before the com- mencement of any suit. For an attorney may be retained and confided in as such, before the commencement of any suit, and in such a case, he is not bound to disclose whatever has been re- vealed to him previous to tlie suing out of the writ. 1\\ Clark v. Clark, (4) Lord Tenterden observed, " suppose a party to consult his attorney Avhether or no he should bring or resist an action, it could not be doubted that such a communication would be privileged though no suit was pending at the time :" and he held, that where a matter was in dispute and contro- versy, although no cause was in existence with respect to it, the communication was privileged. Communi- But, although a suit be pending or recently terminated, cations col- communications made to a counsel or attorney by his client lateral to . , i -r- i i , ■ i • suit. are not privileged, it they are not made to the person in his capacity of counsel or attorney, or for the purposes of the suit. Thus, in the great case of Aiinesly v. Lordj Ang-lcsea, the at- torney of a prosecutor of an indictment was allowed to state what his client had observed to him, pending the proceedings on the indictment, viz. that he would give a large sum of money to have the prisoner hanged. (.5) [ *179 ] *Where a person (who had brought an action on a promis- sory note, which was afterwards compromised by the defend- ant,) had informed the attorney, after the compromise, and in the interval between the time when a warrant of attorney was given, and that at which the money was to become due, that there never had been any consideration for the note, the Court of King's Bench held, that the attorney was compella- ble to disclose that circumstance, in an action brought to re- cover back the money. " The communication," said Lord Kenyon, " was not here made in contemplation of a suit : on the contrary, the purpose in view had been already obtained ; and what was said by the client was from exultation, in hav- ing before deceived his attorney as well as his adversary."(l) But where confidential communications have been made to an attorney with reference to a suit, the attorney will not be at liberty to divulge them when the suit is determined ; his (1) 2 Camplj. 10. in Williams u. Mundie, R. & M. 34, (2) t T. R. 431. was too narrow, and it would seem that (3) Ibid. 753, and see Cuts v. Pick- a formal retainer is not essential, ering, 1 Ventr. 197, as to matters com- (o) Annesiy v. Lord Anglesea, 17 inunicated before the retainer. Howell's St. Tr. 1221, where the suh- (4) 1 M. & Ro. 5. In this case, ject of the privilege is very fully discuss- Lord Tenterden says, that the doctrine ed. reported to have been laid down by him (I) Cobden v. Kenrick, 4 T. R. 432. Suit closed. tSccl. 3.] in Professional Confidence. 167 mouth is closed forever.(2) And the confidence conliuues, A'lf'ney IT r 1 changed. though the attorney has ceased to act for the party, and an- other attorney conducts the suit. (3) The privilep;e of professional confidence is not limited to Where no . , . , .^ . . , . .„, . . .^ suit expect- cases, ni which a suit is in contemplation. 1 his is manliest ed. from the authorities which will he presently noticed, in which the attornies of strangers to a suit, upon the trial of which they are called as witnesses, have not been allowed to reveal matters, of which they have acquired knowledge through the professional confidence of their clients. But, as between the parties to a suit, it is only lately that the law has been reliev- ed from much perplexity, where professional confidence has existed but has been unconnected with the immediate suit. Upon a consultation on the express subject between the Lord Chancellor, the two Lord Chief Justices, and the Lord Chief Baron, they considered that the privilege was not confined to cases *where the communication related to the bringing or [ *1S0 ] defending an action.(l) It should seem that the privilege extends to all cases where a communication is made to an attorney or other legal adviser in his professional capacity ;(2) and that the rule is correlative with that which governs the summary jurisdiction of the Courts over attornies.(3) That rule has been thus laid down : " Where an attorney is employed in a matter wholly uncon- nected with his professional character, the Court will not in- terfere in a summary way to compel him to execute faithfully the trust reposed in him. But when the employment is so connected with his professional character, as to atford a pre- sumption that his character formed the ground of his employ- ment by the client, there the Court will exercise this juris- diction. "(4) It has been held, that communications made between a cli- Sale of es- ent and his attorney respecting the sale and purchase of es- ^^'^" tates are privileged, although no suit be either exisisting or (2) Per TJuller, J., in V/ilson v. Has- B. & Ad. 870. Deed. Shellard v. Uar- tall, 4 T. R. 753. ris, 5 C. & P. 594. iSoe 2 Swaiiyl. (:)) Parker «. Vates, 12 Moore, 520. liJIt, n. l^etrie's case, cited 4 T. R. 75(), and (2) See Doe v. Harris, 5 C & P. the cases infra, when the clients were 59o. Walker v. Wildnian, (j l\huld. strangers to the suit. 47, and cases cited iti the last note. (1) Ex relatione Parke, .T., in Doe d. Peter tj. Vv'atkins, 3 Bing. P. C Rloore V. Terrel, 4 B. & Ad. 870, and 421. in Doe v. Harris, 5 C. & P. 5!)3. The (3) Turquano v. Knight, 2 M. & authorities for restricting the privilege Wei. 101. Per Alderson, .1., the Court were Williains u. IMundie, R. Sc M. 3 1. adverted to the case of Greenough v. Broad v. Vetct, M. & M. 233. Dullin (iaskell, 1 IMyl. & K. 'JS, as one in «. Smith, Peake, 108. \\ adsworth u. which all the authorities had been re- ]lanish!iw, 2 i5r. & B. 5, n. The au- viewed. ihorities for the more extensive privilege (4) Ex parte AMmw, 4 B. &, Aid. arc GIreeniiough v. Oaskell, ."Myhie i^i; 4!). Kx i)artc Yeuttuan, 4 Dowl. P. Keen, 98. liilton n. (Corporation of C. IJUy. Liverpool, ib. 88. JMoorc v. 'J yrrell, 4 108 Exclusion of Matters disclosed [Ch. li. Instructions expected (5) And whore instructions had been given to an for frauclu- ^ r i ■ i i ■ • . i .■ , lent deed, attorney lor arawnig a deed which tlie attorney refused to draw, and the deed was drawn by another person ; the valid- ity of the deed being afterwards questioned on the ground of fraud, in an action against the slicrilf, in which the attorney first apjjhed to was not employed, the Court of Common [ *1S1 j IMeas, *rel"used a rule itisi for a new trial, on the ground that the evidence of the attorney, as to the instructions he had re- ptnver'5 ccivcd for drawing the deed, had been rejected.(l) An at- torney will not be allowed to make a statement, derived from a knowledge of his client's title, tliat his client has no power to grant freehold leases. (2) In an action of trover for a lease, brought by the assignees of a bankrupt, it was pleaded, that before the bankruptcy the bankrupt deposited the lease with ''("Tr?^""" ^^^^ defendant as a collateral security ; at the trial the plain- tiii's endeavoured to show that the lease was deposited after an act of bankruptcy, and they pro])osed to ask a witness, who had been the attorney for the baidcrupt after the act of bank- ruptcy, and who had been applied to by him to raise the mon- ey, whether the bankrupt had not the lease in his possession at that time, and whether he had not brought it to him for the purpose of raising money on it. It was held, that the witness could not be allowed to answer the question.(3) A communication made to a solicitor, if confidential, is privileged, in whatever form made. If it would be privi- leged, when communicated in words, spoken or written, it vv^ill be privileged equally when conveyed by means of sight instead of words. Thus, an attorney cannot give evidence as to the fact of the destruction of an instrument, Avhich he has been admitted in confidence to see destroyed.(4) ProdiK-iimi The principle of protection, afforded to professional confi- dence in regard to communications made by a client, must obviously preclude an attorney from producing or disclosing the contents of deeds or other papers deposited with him con- fidentially in his professional character. "The names, times, or dates contained in a written instrument," said Lord EUen- [ *183 J borough, *" though not known from the communication of the client, yet they come to the knowledge of the attorney from (5) Mynn v. Jolill'e, 1 M. & Ror!27. criuity upon tliis sulijeot, and as to tho See also a c.nse cited to. U'\v.d before piO(Juctii)n of cases subtriilted to counsel, Piirke, J., and per Richardson, .r., in and their opinions upon sucli cases, see Coitnucli V. Ileathcote, 2 13r. & 0. 6. Hare on Discovery, Chap. III. (1) CorniacU v. Ileathcote. 2 Br. & (2) Moore v. Terrel, 4 B. & Ad. S7S. B. 4, and see Doedem. Shellard v. liar- (3) Turijuano (). Knight, 2 ftl. & W'el. ris, 5 U. & P. 594. The witness can- 98. It was stated to be no ol)jeotii>n l(^ not be interrogated, wliether llie advice tlie privilege, tiiat the lease was brought was asked for a lawful or unlawful pur- to the attorney in the ciiaracler of a scri- pose, ib. Sec Anon. Hkinn. 404, Vin. vener. Ab. (B. a.) pi. 10. For the decisions in (4) Kobson v. Kernp. 5 Esp. 54. Sect. 3.] i?i Professional Confidence. 1G9 the delivery of the instrument by his chent." (1) If a deed dejDOsited confidentially with an attorney has been obtained out of his hands for the purpose of being produced in evi- dence by another witness, it cannot be received. Thus, in a case tried before Mr. Justice Bayley, the plaintiffs counsel having proved a certain deed in the possession of the defend- ant, and the defendant refusing to produce it, though he ad- mitted having received notice, the counsel for the plaintiff of- fered in evidence a copy of the deed, which had been obtain- ed from one who many years ago acted as attorney for the person under whom the defendant claimed, and Avho had been entrusted by him with the original deed in his professional character. The counsel, on the part of the defendant, object- ed that this evidence ought not to be received, as the origi- nal deed had been deposited confidentially with the attorney, and Mr. Justice Bayley refused to admit it. He said, "the attorney could not give parol evidence of the contents of the deed Avhich had been entrusted to him ; so neither could he furnish a copy. He ought not to have communicated to oth- ers what was deposited with him in confidence, v^^hether it was a written or verbal communication. It is the privilege of his client and continues from first to last. "(2) The obligation of secresy has been enforced, between at- Rule in tornev and client, even in a case where the interests of crimi- P'""*^*"- . •' ' . lions. nal justice were concerned.(3) In a prosecution for the for- gery of a promissory note, an attorney, who had the note in his possession, refused to produce it before the clerk of ar- raigns, who required it for the purpose of setting it out in the indictment : upon *which he was summoned to appear before [ *183 1 the judge, and show cause why he should not produce the note. He accordingly attended, together with counsel for the prosecution, and counsel for the prisoner. Mr. Justice Holroyd inquired minutely into the circumstances, by which he had the note in his possession ; when it appeared, on the statement of the attorney, that he had been consulted by the jjrisoncr on the note in question, and that by his direction he had commenced an actibn, to recover the amount of the note, against the person in whose name it was now supposed to be (1) Ikand U. Ackertnan, 5 Ksp. 119. and pnpcrs mii^lit liavt; lieeii seized, if And see Bath v. Kinsey, 1 Cr. M. &, It. they luid heen delivered hack by the at- •12. tornev to the client, the cases are di*tin- (2) Fisher v. Ileming, Leic. Lent guishahio IVoiii ihotie in whicfi confes- Ass. 1809. See Hottoiidy v. Ushorno, sions are made to professional advisers. I'eaUe's Add. Ca. 101, after a notice to In the case in the text, and in R. v. |iroduce. CooU v. Hcarn, 1 M. &. ilo. Dixon, a greater privilege was given to 201, custody of a rulo' of ('ourt. the atlornoy than would have heIonifections. structions, as of a bankrupt ordering himself to be denied to creditors, are in their nature original evidence. (5) The same is to be said *of communications of various kinds, where the [ *199 ] object of giving them in evidence is not that their truth may be inferred solely from the fact of the communication having been made, and from the credit of the person making it. ( 1 ) In many cases, the expressions of persons are the very mat- Subject of •' ^ . \ ^ . . ^, expres- ter ni issue : as where the controversy is respecting the ques- »ions iu tion, whether they have been used or not. The proof, there- i^^"^- fore, of their having been used, is in its nature original evi- dence. Thus, upon an inquirv respecting reputed ownership R^cpu'e^' 1 1 1 T 1 , ■ -, f 1 • ■ L- ownership. under the bankrupt laws, hearsay evidence ot the opinion oi neighbours is admissible, either to prove or disprove the reputed ownership of the bankrupt. In one case, Gibbs, C. J., ob- serves, " What is reputed ownership? it is made up of the opinions of a man's neighbors ; it is a number of voices con- curring upon one or other of two facts. (2)" The existence (4) Attorney General v. Good, v. Boucher, 10 Barn. & Cress. 710. M'Clel. & Y. 286; information for cus- Vincent v. Prater, 4 Taunt. (i03, where lom-house penalties. The husband was the direction «liewcd tliat tiiere was no denied by the wife, immediately after intention to delay creditors, uncustomed goods were discovered on (1) Shott d. Streathfield and Another, the husband's premises. In Key, as- 2 M. & IM. 9. In this case A. went out signee of Sherwin v. Shaw, 8 Bing. of partnership, and introduced B. (a de- 320. Upon a creditor calling, the bank- fendant) to the witness as his successor; rupt was seen peeping over his wife's the witness was asked whether, (in liie shoulder in a retired part of the shop, absence of the defendants) he reported and immediately afterwards she came in- this conversation to the plaintiffs. In to the front part, and said, " My hus- Whitehead v. Scott, 2 M. & M. 2, it band is not at home." See also Char- was held that a party to a suit has a ington V. Brown, 1 B. Moore, 341 ; right to have a letter read making a do- the answer of a wife to a creditor. mand, though the counsel for the other (5) .lameson v. Earner, 1 Esp. 281. party otVers to admit the demand. Gillingham V. Laing, 6 Taunt, 532; di- (2) Grove d. Rutlen, Holt's N. P. C. ' reclions by a bankrupt to a friend, to say 327. Oliver v. Bartlet, 1 Br. & B. 269. that he was not upon exchange. Fisher 2 B. Moore, 592, S. C, in which case and they maybe enquired of generally as to the judgment they formed of the Boundness of the testator's mind at the time of exccutitig the will ; but other wit- nesses may not testily merely their opinion or judgment. 3 id. 330, 336. The presumption is in favor of the sanity of the testator ; hut after a mental alienation has been proved the devisee must show a lucid interval, or the sanity of the testator when he executed the will. See 2 .J. \i. 31 ; Ty id. 144. The (|uestion in regard to the capacity of the testator relates exclusively to the time when the will was made ;and though evidence before and after is admitted, it is received only to show his state of mind at that time. Kinnc u. Kinuc, 9 Conn. It. 86. (See further jtost p. 200, note, and see 7 S. £i R. 85.) 184 Hearsay Evidence. [Ch. 12. Uumor. Cliaracter. [ *2U0 ] General Intention of tesialor. Expres- sions ac- coiiipany- in>f mental feelings. of .1 public rumour has been allowed to be proved in the same way (3). Aud tills is the nature of the evidence respcctiug general character, which, it will be seen in the course of this work, is relevant to various inquiries. (4) *ln like manner, in an action for destroying a picture, where the subject of inquiry was as to the impression produ- ced by the picture on the minds of the public, the declarations of spectators in looking at it were admitted in evidtjiice ; (1) what was said by the spectators was the effect produced by the picture ; it was not received as evidence of the painter's design, upon credit given to assertions of persons not before the Court. The declarations of a testator have been held to be receivable in evidence, to show his intentions, when his will is inqjugned on the grounds of either fraud, circumven- tion, or forgery, (2) or to shew the state of his mind. (3) («) In cases where it is material to inquire into the demeanor, the conduct, and mental feelings of an individual at a partic- ular period, the expressions used by the individual at the peri- tlie court sail] that they did not decide whether reputation alone without facts, would sulfice. And see the cases as to notoriety of transfer upon assignnienis of property. Muller v. ftJ(7ss, 1 ftl. & S. o35. (3) Jones v. Perry, 2 Esp. 4S2; ac- tion for keeping a malicious dog, l)y which the plaintifPs child was hilten. liOrd Kenyoii allowed a vvitness to be iidked respecting a report in the neigh- bourhood, that the dog had been bitten by another dog. (4) See infra, respecting relevancy of proofs. Foulkcs v. Gellway, 3 Esp. 23(j, is a strong example of this kind of evidence. It was an action for breach of promise of mariiagc, where the de- fence was, that the plaintitf was a wo- man of bad character; and a witness, who had gone to the jjlace where tiie plaintilF lived, was allowed to give evi- dence of what he there iieard. Lord Holt, npon an information, against a de- fendant for being a cheat and itnposter, allowed declarations of persons as to having been deceived by iiim to be given in evidence, IJaihaway's case; a decision which could not be supported in the present day. (1) Du l5ost V. Teresford, 2 Campb. 512. The defence was, th:it the pict- ure (of IJeauty and the I>east) was a li- bel, inasmuch as the public generally understood who the individuals meant to be portrayed were, by looking at the picture. (2) Ellis «». Hardy, 1 M. & Ro. ryir-,. (3) Doe dem. Reed v. Harris, 7 C. & P. 350. A testator's declaration may be in the nature of original evidence, wheie they are adduced for the purpose of designating the object of his bounty, or the subject of a beijuest, as distin- guished from evidence of his intentions. («) The declarations of a testator in his last sickness are admissible as presnmp- tive evidence that tiie will had been destroyed by him. G Wend. 173 ; 9 Cow. U. 308. Washington, J., says (4 Wash. 0. C. R. 265) that the declarations of the testa- tor, whether previous or subser[uent to the execution of the will, are but hearsay ev- idence. They are not admissible, unless they are a part of the res gesta. 2 J. K. 31. In ComstocU v. Hadlyme, 8 Conn. R. 418, where the question arose whetiier the declarations of the testatrix, made about the time of executing the will, were admissible ; and the Court said to be admissible they must be part of the res gesta at the time. In Atkins v. Sanger, 1 Pick. 192, the declarations of the executor who was also Jegalee, were admitted for the parties objecting to the will, to prove what took place at the making of the will. Sect. IJ Original and Hearsay. 185 od ill question are, in their nature, original evidence. For they arc the thing itself wliich is inquired into, as far as out- ward hehaviour is important ; and as evidence of inward sen- timents, they are unhitc a statement of past occurrences ; for they derive their credit from being usually identified with, and naturally resulting from, particular corresponding feelings. Accordingly, in actions for criminal conversation, where it is Leitersof material to inquire into the terms, upon which the husband and wife lived together before the connection of the wife with the defendant, it is usual to give evidence of what the hus- band and wife have said to each other, in order to shew their demeanour and conduct, and whether they were living upon better or worse terms. (4) With the same object, evidence has been given of *the anxiety expressed by the wife about [ *201 her husband, and of her mode of speaking of him in his ab- sence. (1) On the other hand it is admissible to give general evidence in reduction of damages, that the wife had complain- ed of her husband's treatment. (2) The letters of the wife to the husband, (3) or, as it has been recently decided, the letters of the wife to a third person with reference to her hus- band, are evidence to shew what her feelings were towards him. (4) In such cases the jury do not substitute the knowl- edge of an absent person for their own, but they reason as from an elfect to a cause, (a) (4) Per Lord Ellenborough, C. .T. iti Trelawney v. ('olemnn, 1 B. & A. 90. Per Holroyd, J., 2 Sliirk. C. 192, stated to be so ruled by Lord Keiiyon, 4 Esp. 39. In Jones w.Tbompson, fi C. & P. 415, the witness was asked, wliclher the wife kept a journ.il, and for what purpose. The evidence, it lias been thought, ought to be general, see Winter V. Wroot, I AL & l{o. 404. (1) Trelawney v. Coleman, 2 Stark. C. 191. ll was held in this case, that the judgment which the witness had formed from llie wife's anxiety, was ad- missible. (2) Winter v. Wroot, 1 ?.L ii Uo. 404. (.3) Trelawney v. ('oleman, 1 15. Sc Aid. 90, where liiere was no direct evi- dence given of the cause of the parties living separate. Edwards v. Ciook, 4 Esp C. 39. (4) Willis D. Bernard, S Bing. 376, where it was said, that the letter was no less open to exception than if written to tiie liu.sband. The letter shewed the wife's allection, and also that she was not dissatislied at being left abroad 'I'he letter also contained a statement of facts, as to which, though the whole letter was read, it was not evidence Letters written to the defendant, before the crim- ir)al facts are proved to have been com- mitted, are receivable Elsam v I'au- celt, 2 Esp .5fi2 That the letters of the wife are not in general evidence for the defendant, see B. JN. P. 2S. (a) The declarations of a party are not admissible in his behalf, unless they ac- company acts. In nn action for breach of protfiise of marriage, the declaration of the plainlitV, that she had promised to marry the defendant, made long before tht; suit brought, was held to be good evidence for the plaintUr, to show the mulunlity of the contract. 1 Hals. R. ;584 .So, where the question was, whether it was proper to admit the declarations of the |)laintiH' in an action of trover to recover for bank notes lost, the court said it was ; and that in all eases where the ai-lsof a per- son can be given in evidence for him, his declarations in nilaiion to such arts, miK^t necessarily be admitted, as in the case of a claim, demand, or lender. I'or in tlio first two cases, it is tho declaration which conslitules the act, and in the latter, they form part of it. 2 N. Car. K. 432. 24 186 Hearsay Evidence. [Ch. 13. Absence of jt jg^ however, always required, that proof should be given that the declarations or letters of a wife, purporting to express her feelings, were of a time antecedent to the date of any facts calculated to raise suspicion of a criminal intercourse, and when there existed no ground for imputing collusion (5). It has been held, that the letters of the wife are inadmissible, if written after an attempt to commit adultery by the defend- ant. (6) Expressions The expressions of a person afflicted with bodily pain *or iiyh??"bodi- illness, relative to his health and sensations, have been consid- )y feelings, ered to be in their nature original evidence ; such expressions r #00',^ 1 '-' ^ . 1 '^^'-' J being ordinarily the natural consequence, and the outward in- dication of co-existing sufferings. The representations of a pa- tient to his medical attendant, who has an opportunity of ob- serving whether they correspond with the symptoms to which they refer, appear to be entitled to greater weight, than if made to an inexperienced person, and to afford a stronger pre- sumption that they are genuine (1). But although not made to a medical man, they appear to be admissible evidence. (2) Relation of When a patient enters into a history of his complaint, and sympt'oms. Tclatos some earlier symptoms, experienced at a former period, he is giving a narrative from memory, rather than yielding to the impressions forced upon him by his situation ; and it would seem upon principle, that what he says ought not to be received in evidence. The case of Aveson v. Lord Kin- 7iaird, (3) as to this point, appears to have been decided on its peculiar circumstances. That was an action upon a policy of insurance, by which the plaintiff had insured the life of his wife. The plaintiff produced a surgeon as a witness, who had given a certificate upon which the policy had been effec- ted, that the wife was in good health on a particular day ; and he swore at the trial to his belief of the fact. On cross-ex- amination, he stated, that his opinion was formed principally from her answers given at the time. The defendant, in or- der to meet this evidence, produced a witness who had been an intimate friend of the wife, and had called accidentally up- on her within a week after the day to which the certificate (5) Edwards v. Crook, 4 Esp. 39, (1) See tlie observations of the At- where the letters were refused on this torney (ieneral (Copley) in tiie Gardiner ground. Trelawney v. Coletnan, 1 B. Peerage case, p. 79. & Aid. 90. Houliston v. Smith, 2 C. (2) Aveson v. Lord Kinnaird, 6 East, & P. 24, where it was held that liie 188, where the representations were dates of llie letters were not sulficient made to an intimate friend. And evidence of the time when they were the rule is there laid down by Lord El- written. In Trelawney v. Coleman, 2 lenhorough, with regard to patients. Stark. 191, the period at which the let- without (lualification. The representa- ter in question was written, was proved lions admitted in that case were opposed by a person to whom the wife read the to other representations made by the contents. In other cases, the postmark same individual to a surgeon, has afforded the requisite proof. (3) 6 East, 18S. (6) Wilton V. Webster, 7 C. & P. 198. Sect. 1.] Original and Hearsay. 187 related, and found her in bed with the appearance of being ill : and the wife related to this witness that she had not been well from a time which included the day specified in the certificate. This evidence of the defendant's witness was al- lowed ; first, on the ground that *it was the declaration of a [ *203 | patient on the subject of her own health at the time ; and secondly, that it was a species of cross-examination of the surgeon produced by the plaintiff, and who had formed his opinion principally in consequence of the wife's answers. It is to be observed, however, that the part of the wife's con- versation with the defendant's witness, which was material to the case did not relate to her contemporary sensations, but to the state of her health at a previous time ; an objection which does not appear to have applied to the answers given to the surgeon. In the Gardiner Peerage case, where the inquiry turned up- on the ordinary period of gestation, the medical witnesses were not allowed to state what they had been told by women, whom they had attended in their confinement, as to the date of their conception. It was held to be an objection to the evidence tendered, that it related to a circumstance which took place before the medical men were consulted. ( 1 ) Although it is now settled, that what a patient says to a Cause of medical man about his suff"erings is receivable in evidence, (2) '"J"''^" it might seem that a statement by him respecting the particu- lar cause of his sufterings, (as, for example, the circumstances of an assault wliich he had received,) would be open to great- er objection. It was, however held in the case of Thompson and Uxor v. Trevanion, (3) that what the wife said imme- diately on receiving an injury, and before she had time to de- vise any thing for her own advantage, was evidence. From the report of the case, *which is very short and loose, it may [ *204 ] perhaps be presumed, that the wife had related the particulars of the assault : and in R. v. Foster, (1) it was held by Gur- ney, B., and Park, J., that what a deceased person had said immediately upon receiving a fatal injury, as to the cause of (1) Ciardiner Peerage ca«e, p. 79, lo shew wliat lio ciiflered b)' reason of 136, 170, several of the women were an assault. afterwards produced as witnesses, and (:{) SUinner, 402, riled l)y r,ord EI- their evidence shewed in a stril. said of himself to his surgeon, is evidence 188 Hearsay Evidence. [Ch. 12. Complaint iu rape. Declara- tions ac- company' iiig posses- sion. [ *205 ] the injury, was admissible evidence. It may be observed, that these difter from those which have been decided respect- ing the statement of a patient's complaint ; for statements of the latter description would not, it is conceived, depend, for their admissibility, ujwn the time when the injury was re- ceived. In prosecutions for rape, though it has been regarded as ad- missible evidence, on the part of the prosecution, and is gen- erally considered essential, to show that the prosecutrix made a complaint recently after the commission of the alleged crime ; (2) yet it has been held, that the particulars of the complaint are not evidence of the truth of the statement. (3) It is now the general practice to exclude any mention of the details of the complaint. In case of the death of the party injured, or in case of lier absence for any cause, the particu- lars of her complaint, stated in the absence of the prisoner, could, uaderno circumstances, be received ; which shows that such statements are not regarded as part of the res gestcn. (4) This further appears from the consideration, that what is deemed a recent complaint depends on various circumstances, and especially on the opportunity of communicating with fe- male relations. Declarations of persons in possession of property have, in *some cases, been received as original evidence, explanatory of the nature of their possession. Thus, the declaration of a widow, in possession of certain premises, that she held them for life, and that after her death they would go to the heirs of the husband, have been held admissible, to negative the fact of her haying had twenty years' adverse possession ; but it seems to be now considered, that such declarations are not ev- idence, unless they are against the interest of the person ma- king them. (1) (a) (2) The peint is rather assumed than expressly decided in^ Brazier's case, 1 East's P.. C 444. Out it is tiie common practice to give evidence of this nature; and the absence of recent complaint, un- less explained by particular circumstan- ces, is generally fatal to the prosecution, see 1 Leach, 199. 1 Russel on Crimes, 565. According to the old law respec- ting rape, it was required that the wo- man should have gone to the next town, immediately after the olfence was com- «iiiteed, cum clamor e et hutesio, 1 Hale's P. C. 632. Barrington notices that certain periods, within which com- plaint was to be made, were limited by the laws of several countries. Observa- tions on the Statutes, p. 12.5. (3) U. V. Clarke, 2 Stark. C. 242. (4) It seems formerly to have been considered, tliMt the narrative of an in- fant presently alter the wrong done, was receivable in evidence. See the au- thorities in I East's P. C. 441. (1) Doer. Pettet, 5 B. & A. 224. Doe. V. Uicharly, 5 Esp. 4, was a caso decided apparently on the principle men- tioned in the text. There the declara.- («) See 1 J. R. 159; 4 Mass. 702; 3 .1. R. 536; 6 id. 267; 10 id. 66. The declarations of a person in the possession of land, are admissible to show tiie <;haracter and intent of such possession, notwithstanding the statute of frauds. Per Mellen, C. J. 2 Greenl. 243. The d«claraliojis of a person in possession of land, as to the true boundary line Sect. 1.] Original and Hearsay. 1S9 On a question of legitimacy, the declaration of a lady, J|',"^!^R.d'°" whose marriage was in question, that a certain box contained iVom decia- her marriage certificate, was, after objection, received both by """"• Chief Justice Dallas and Lord Tenterden, C. J., as evidence, that she was then in possession of a document of a particular description. (2) Here the fact of possession was inferred from the declaration, which was not merely explanatory of a known possession, {a) The original evidence of verbal or written matters, which Or'-inai.ie- has been here considered, is often said to be admissible, as .lotpanof constituting a part of i\\Q res gestoi. In several of the exam- JJ'^^^^f pies above given, the words or writings are in themselves in- dependent transactions, yet in some, they are the ultimate facts of inquiry, not necessarily connected with any act done ; in others, they are receivable as the natural and immediate result of particular situations, impulses, or feelings. (3) tions of a person, found in possession of of the decision. There is another nu- premises, that he rented them, were held morons cliit^s of cases, where decl:traiions to be evidence of an underletting. The of persons are received on liie ground case is opposed by a conflicting aecision, that a pai ty to the suit is identified in in- Doe V. Payne, 1 Starl<. C. 86. See 4 lerest with the declarant. Tauut. 766. Doe v. Williams, 6 15. & (2) Bere v. Ward, printed report of C. 41. Doe d. Sweelland v. Webber, trial on first issue ; and on second issue, 1 Ad. & Ell. 738. It is difficult to dis- p. 164. The evidence was otiered for tinguish the class of cases under consid- the purpose of connecting a cerlilicato eration, from a numerous class of cases produced in evidence, with a docunient in which declarations of deceased per- in her custody. sons against interest are adtnissible. (3) The nature of those words or wri- Carne v. Nicoll, 1 Bing. N. C. 430. tings which nre facts in themselves, will And it may perhaps be thought, that the be further illustrated in the section whicli case in the text belongs to this class, treats of admissions, though such is not stated to be the ground between him, and the land of another, are admissible in evidence. 10 .T. B. 387. The declarations of a former Isolder of the adjoining lands, as to the boundary of the land in question, was admitted; it not appearing that he had any interest in tho facts to be established. 2 Har. &: J. 121. It is in general true that the declarations of a person who is a competent witness cannot be given in evidence; but a party is not compelled to call a. party in inter- est, merely because he may do so; and if he did call him, such a party in interest could not be competent to testify, 7 Cowen, 174; Jackson v. Myers, 11 Wend. 533. The declarations of a parly in possession of the premises in dispute, if made when in possession of the premises, are admissible; and are admissible as good evi- dence against him and all those claiming under him. .Jackson v. Bard, 4 J. U. 230. In ejectment, defendants claimed title to the land in question under a deed from one iM. to their ancestors; and it appeared that AI. derived his title from one A. J\l.: Held, that the declarations of M. were admissible to show that the conveyance to him by A. M. was fraudulent. 7 Conn. 319; 1 J. R. 159. See 4 N. II. R. 213; 15 J. R. 234; 2 N. H. R. 369; id. 387; 14 Mass. 245. But see 5 Binn. R. 109, where it was held, that declarations by the grantor, at the time of executing a deed, that he only did it for a sham, so that people could not come at it, are not evidence, if made in the absence of the grantee, unless ground is previously laid, by showing a trust in the grantee, or his participation in the fraud. (a) The declarations of a parly, made before an adverse possession was taken, as to his intention in removing from the premises, were admitted in evidence in his favor, on a traverse of an inquisition of forcible entry. 5 Lill N. 5. The declarations of a co-heir are admissible to show his intention upon entering into lands for the puipose of proving him to be an abator. Shumway v. Ilolbrook, J I'ick. 114. 190 Hearsay Evidence. [Ch. 12. ^I'"^'",f !.'°' * Words and writings appear, perhaps, more properly to be part' of the admissible as part of the res gestce, when they accompany r"^Jm' 1 ^^^"^^ ^^^' *^^^ natnrc and object or motives of which are the L '^ J subject of inquiry. In such cases, words are receivable as origi- nal evidence, on the ground tliat what is said at the time af- fords legitimate, if not the best, means of ascertaining the character of such equivocal acts as admit of explanation, from those indications of the mind, which language affords. For where words or writings accompany an act, as well as in the instances before considered where they indicate the state of a person's feelings or bodily sufferings, they derive their credit from the surrounding circumstances, and not from the bare ex- pressions of the declarant. And the language of persons at or about the time of their doing a particular act, in the same manner as their demeanour or gesture, is more likely to be a true disclosure of what was really passing in their minds, than their subsequent statements as to their .intentions, even if such statements would not be excluded on other grounds, (a) (a) See Marty n v. Simpson, 4 M'Cord, 262. Tlie declarations of an agent when pait of the res gestep, are admitted in evi- dence. 3 Litt. 127; 4 I'ick. 379. A fact admitted or stated by an agent, in re- lation to a transaction in wiiich he is liien engaged, and whilst it is in progress forms a part of the transaction, 4 Wash. 492. So, tlie declarations of an agent and supercargo in the course of his business, as such agent, are clearly competent. 2 Hall, 482. The declarations of an agent, so far as they constitute the res gestfs, or in other words, such as are made by him at the lime he is engaged in making a contract oa the part of the principal, and having reference to the subject matter of the contract, may be given in evidence to adect his principal. ,They are admitted as the repre- sentations of the principal himself, whom the agent represents while engaged in the particular transaction to which the declaration refers. Per Parris, J. 7 (Jrecnl. II. 421. The difficulty is in laying down any rule as to what will constitute the rei> gestce. In Pool V. Bridges, 4 Pick. 378, the plaintiff came to enquire about some wool ' which he had previously delivered to a manufacturer, when the latter pointed out certain portions of it as his property; and the court decided that this declaration ac- companying the act might be proved in an action against an Ofiicer claiming to hold the property by process of law. So, the correspondence between the parties; — between the principal and agent, written at or about the time, are admissible as part of the transaction. The com- munication of facts which coming to the knowledge of the principal may be used as construing his subsequent acts. 8 Pick. 56. The court said the situation of the parties, the subject matter of their transactions and the whole language of their in- struments, should have operation in settling the legal etfect of their contract. Articles of agreement between two persons are admissible as admissions to show the nature of the connection between the parties. But the admission of one can- not affect the other, except the party representing himself to be a partner does so with the knowledge of the other. 2 Hall, 351. See ISMass. 38. If a husband allows his wife to transact business for him, he must be bound by her acts. Thus, where the wife of the plaintiff' was entrusted by him with certain moneys, and directed to deposite them in some bank, she opened an account in her own name with the defendants, and made deposites from time to time. She gave directions as to the manner in which the money standing to her credit was to be drawn out on her checks, and various checks were accordingly drawn by her for the whole amount. The defendants had no knowledge that she was a married woman until after they had paid all the checks and closed her account. The hus- band then sougiit to recover, on the ground that the payment to the wife was im- Sect. 1.] Original and Hearsay. 191 Thus, in an action on the case for fraudulently represent- J;raucinient ing the solvency of a person, whereby the pkiintitis trusted uiion. him with goods, their declarations at the time they were ap- plied to for the goods, are admissible, to show tliat they gave trust in consequence of the representation. (1) A letter be- Envelope, ing the envelope of a promissory note, has been admitted to show for what purpose it was sent. (2) In an action for crim- Dcciara- inal conversation, where the defence was, that the plaintiff '".'"^ ^' , . Wife. had connived at his wife's elopement, evidence was received on the part of the plaintiff of the wife's declarations as to her intentions and purposes in going. (3) And in Aveson *v. Loi'd [ *207 ] Kinnaird. (l)Lord EUenborough observed, that if a wife, up- on quitting her husband's home, declared at the time that she fled from immediate terror of personal violence, he should ad- mit the evidence: though not, if it were [a collateral declara- tion of some matter which happened at another time, (a) In F^urUiieut J- J. \ / convey an action against a sheriff" lor a false return, where the defence ance. (1) Fellovves u. Williamson, 1 JM. & lion being, vvhelher it vvaa in ;i I)ani. Hurley, 1 Stark. 24. Green, 1 C. & P. G21. Confession by The plaintiff's own letter was admitted a wife of adultery iminedialely previous for liimself, to show that the note had to being turned out of doois; and letters been sent to procure payment, the ques- found in her writing desk. authorized. The judge submitted the fact to the jury, whether the wife was author- ized as the agent of her husband to do what she had done, or whether he had sub- sequently ratified lier acts. The jury found a verdict for the defendants ; and on a motion for a new trial, the court aftirmed the verdict and denied the motion. Dacy T. The N. York, Chem. Manuf. Co. 2 Hall, 550. In the absence of any circum- stances to charge the bank with notice that siie was a married woman, iliey had a right to open an account with her as a feme sole, and to pay the checks drawii upon the deposites made by herself. If slie act by his permission, or is constituted his agent or attorney, or her decla- rations are referred to by him, as a test of a fact, then what she declares is good ev- idence against the husband, not by reason of her being his wife, but becanse she acts in pursuance of authority delegated by him, or is- made a witness by his con- sent. Turners. Coe, 5 Conn. 93; JO J. li. 38. (a) See the observations of Hosmer in 5 Conn. 93. Where declarations of an individual arc so connected witli his acts a.s to derive a degree of credit from such connection, independently of the declaration, the de- claration becomes part of the transaction, and is admissible in evidence. Thus, in lladley v. Carter, 8 N. H. R. 40, in an action by the master against defen- dant for enticing away ids servant, the declarations of the latter were admitted to show the motives which governed him in leaving; it is part of the transaction, and may be given in evidence in the same manner as any oilier fact. In an action against a voluntary bailee, for the loss of goods by careless and gross negligence, the defendant may give in evidence his own acts and declarations immediately before and after the loss, to repel the allegation that the loss was oc- casioned by his own neglect, carelessness, and mismanagement. 'J'ompkins w. Sailmarsh, 14 S. & R. 275. See also Pool v. Bridges, 4 Pick. 37b. ^elliii" 192 Hearsay Evidence. |Cli. 12. was a fraudulent bill of sale, declarations by the party execut- ing the bill of sale, made by him at the time of execution, were held to bo admissible, but not those made at another time. (2) Where a trader, being in embarrassed circumstances, executed an assignment for the benefit of his creditors, it was lield, in an action after his death against the assignee, treating him as executor de son tort, that a list of credit- ors made out ;diout the time of the execution of the assign- ment, by the direction of the assignor, was evidence as part of the transaction for the purpose of disproving fraud. (3) (a) naiikrupi- Upon qucstious of bankruptcy, where the intentions of the p'^ong 1 ^alleged bankrupt are often material to be inquired into, it is usual to give evidence of declarations, as furnishing an ex- ])laiiation of transactions in their nature equivocal. (1) (6) r.tiyino; and Thus it lias been held, that a declaration accompany- ing a purchase of goods is admissible evidence, to show whether a person sought his living by buying and selling. (2) (2) l'l\ilips V. Cnmer, 1 Esp. 3.")7. is-;ory note, cotileinporaneoiis with tlic For other examples of the res f;cstij. lii'oun. '■) li. &, C. 938. Per I>'ord Ten- (2) I'ost^r on Treasons, 200. 2G 202 Hearsay Evidence. [Ch. 12. party who would have lo encounter such evidence, in regard also, to the consumption of pubHc time which its production would occasion, ought to be weighed against its advantages. Besides, the exclusion of such testimony may have some ben- eficial effect in many instances, by obliging parties to come furnished with evidence from other less exceptionable sources, from which evidence it would be more easy to draw a safe conclusion. In estimating the validity of these reasons, we [ *219 ] must take into consideration the motives for ^falsifying judi- cial evidence, and the limited means of detecting such false- hood by that tribunal to which the constitution entrusts the determination of questions of fact ; regard must also be had to the persons of which that tribunal is composed, and to the shortness of the time afforded for estimating evidence which tends to an indefinite extent, which produces so many collat- eral questions, and which requires very nice discrimination in those who are to decide upon it. It will probably be thought, by persons acquainted with ju- dicial proceedings, that juries do not, in general, properly dis- criminate between hearsay and original evidence. An oppor- tunity of noticing this frequently occurs, in cases relating to the various exceptions to the rule of exclusion ; and, more par- ticularly, where hearsay evidence is introduced collaterally ; as, where it is a part of a confession of one prisoner affecting another prisoner, or where it is contained in a letter which is introduced for a different object, or where it consists of a statement of hearsay matters made in the presence of a party to the suit. In such cases, the hearsay evidence gen- erally has mucVi too strong an effect upon the jury, however the Judge may caution them not to give weight to the evi- dence as proving the truth of the facts therein stated. History of The rule of exclusion under consideration is not of great '"^' antiquity ; so late as the year 1790, it does not appear to have been settled with regard to depositions taken before magis- trates, whether upon criminal charges or upon other occa- sions ; and, as will appear from the following pages, several of the exceptions to the rule of exclusion have been much narrowed within very modern times. (1) Throughout the state-trials before the time of the Com- monwealth, the worst species of hearsay was constantly re- ceived, consisting of the examinations of persons who might have been produced as witnesses, of others convicted of capi- [ *220 ] tal offences, *and of others who had signed confessions in the presence only of the officers of government and under the tortures of the rack. Kaipiffii. On the trial of Sir Walter Raleigh, for example, the only Stafford, pjece of evidence directly affecting Raleigh, was a paper, pur- (1) One of the earliest cases in which Yardly Pascli. 10 Car. & Keb. 223, the rule was acted upon is Sampson v, p!. 71, Sect. 2.] Exclusion of Hearsay Evidence. 203 porting to be a statement by a third person, of the effect and result of Lord Cobham's examination, and signed by him un- der threats of the Chief Justice, This was admitted, as the Chief Justice observed, lest there should be "a gap opened for the destruction of the King," though Sir W. Raleigh ur- ged, " that he might see his accuser face to face ; and if, be- ing charged on his soul, Lord Cobham affirmed the matter of the examination, he consented to be taken to be guilty." Tn like manner, on Sir R. Throgmorton's trial the principal de- position had been taken from a man, who had been convicted of treason, but whose execution had been respited several times, in order to induce him to accuse the prisoner. Even during the reign of Charles the Second, though the Popish plot, practice of reading the depositions of persons, who might have been produced as witnesses, was discontinued, yet hear- say evidence was allowed in many cases, in which it would now be rejected. On the trials for the Popish plot, the evi- dence consisted principally of a narrative of the transactions of the supposed conspirators in various countries, collected du- ring a long period of time from a multitude of letters, the contents of which were given from recollection ; the witnes- ses not having taken a note of any part of the letters at the time of reading, not having read them for a great number of years, nor being required in reading to notice their contents, and not producing one of the letters, nor a copy, nor even an extract. This rule applies, although the account has been given up- Extent of on oath, and in the course of a judicial proceeding ; as, where "^'■"^• a pauper has been examined upon oath (unless under particu- lar statutes,) by magistrates, respecting his parochial settle- ment ; (1) *or where a deposition has been taken by magis- r #221 ] trates upon a criminal charge, in the absence of a priso- ner. (1) The rule applies also, notwithstanding that no better evi- dence is to be found, and though it be certain that if the ac- count is rejected, no^other can possibly be obtained : as, where the evidence purports to be the narrative of an eye-witness of a transaction, and that witness the only one, and he since dead. Doubts were formerly entertained, whether declarations by nedaraium ■^ .,, , . . , -^ ol aiicsUiig an attestmg witness to a will or other instrument might not witness. be given in evidence after his death, to show that he had forged or fraudulently altered the instrument. It was (1) R. r. Nuneharii Courtnny, 1 East, R. &, R. Cr. (;. 3:39, iW^ infra, Whnre 373. R. V. I'erry I'rystont;, 2 ICast, r>l. deposilioiH before iiinglstiaie.-;, and ilie R. 1). Abetgwclly, il). (>3. See R. v. decisions respectiin; (lej)o>ilioiis liefore a Eriswell, 3'!'. R. 72.5. coiontir, taken in lliR ab>i;noe of a piis- (l) Hee R. »). Crovvther, 1 T. R. 12.'5. oner, are more particuliirly considered. R. V. SiHith, 2 Stark. 2'J8. Holt, G14. 204 Hearsay Evidence. [Ch. 12, suggested, that as the one party used the declaration of the subscribing witness, evidenced by his signature, to prove the execution, the defendant might use any declaration of the same witness to disprove it ; and fnrther, that the declaration was a substitute for the loss of the benefit of cross-examina- tion, which might have been had, if the witness had been alive and examined. But in the case of Stohart v. Dry- den, (2) it was held that such declarations were admissible in evidence. The observations of the Court upon the inconve- nience, which would attend the adopting of an exception in such a case, illustrate the general expediency of the rule. It was said, that " the rights of parties under wills would be li- able to be affected at remote periods by loose declarations of attesting witnesses, which these parties would have no oppor- tunity of contradicting, or explaining by the evidence of the witnesses themselves." The party impeaching the validity of the instruments would, it is true, have an equivalent for the loss of his power of cross-examining the living witness : but the party supporting it, would have none for the loss of his power of re-examination." [ #222 ] *CHAPTER XIII. EXCEPTIONS TO THE RULE EXCLUDING HEARSAY EVIDENCE. RE- LAXATION IN THE CASE OF PARTICULAR SUBJECTS OF INQ,UIRY. It is obvious that the objections to hearsay evidence do not apply with the same force to every species of it ; and that the inconvenience of rejecting it must be greater in some kinds of inquiry than in others. Hence the Courts have es- tablished various exceptions to the rule which excludes hear- say evidence. The expediency of this rule of exclusion can- not indeed be satisfactorily judged of, without taking a view of such exceptions. For, on the one hand, the exceptions may be thought to obviate many objections which would ex- ist, if the rule were unlimited in its operation, whilst, on the other, they have occasioned a substantive mischief in the mass of legal decisions arising out of them, — decisions, which present many subtle distinctions, and not unfrequently con- flicting opinions of the Courts. It will also probably be thought that, in some instances, the rule of exclusion has been injudiciously relaxed, and in others, that it has been un- necessarily maintained in its full strictness. It is proposed to treat in the present chapter of the excep- (2) 1 M. S: W. f)23. In which case hatioti by Lord Ellenborough and Mr. J. the Jiulhority of Wright v. Lettler, and a Bay Icy, are examined, vide infra, Dy- nisi Julius decision, cited, with appro- ing Declarations. Sect. 1.] Matters of Pedigree. 9M tions to hearsay, which have been made in regard to particu- lar subjects of inquiry. The first section will treat of hear- say evidence in matters of pedigree, and the second of hear- say evidence in matters of pubhc right or pubhc interest. *Section 1. [ *223 ] Relaxation, in tlw case of Pedigree, of the Rule which ex- cludes Hearsay Evidence. Hearsay statements of deceased persons are allowed to be Hearsny received in matters of pedigree, subject, however to various ""^ qualifications. This exception appears to be founded on the consideration, that the facts which are the subject of inquiry are frequently of an ancient date, and that the knowledge of them is usually confined to a few individuals. By limiting the exception to the statements of deceased persons, a resort to this kind of evidence is precluded, where the hearsay ten- dered indicates the existence of more satisfactory proof, and is only admitted on failure of the ordinary channels of infor- mation. According to the qualifications under which evidence of pedigree is received, provision is made that the statement should be derived from a person who would be likely to be well informed upon the subject on which he was speaking, and who should have no apparent motive for perverting the facts. The exception in question is framed upon general princi- ples adapted to circumstances of frequent occurrence. It may happen, that these principles will fail of application in many instances to which the exception might seem to extend. The exception is not confined to ancient facts, but extends also to matters of pedigree which have recently transpired ; and the hearsay of deceased witnesses is admitted as to facts, which occurred in the presence of many living witnesses. *' It would be impossible," says Lord Erskine, "to prove descents according to the strict rules, by which contracts are established, and rights of property regulated, requiring the facts from the mouth of the witness who had the knowledge of *them."(l) " On inquiring into the truth of facts which [ *224 ] happened a long time ago," says Mr. Justice Le Blanc, (2) " the Courts have varied from the strict rule of evidence appli- cable to facts of the same description happening in modern times, because of the difficulty or impossibility, by lapse of time, of proving those facts in the ordinary way by living witnesses." On this ground hearsay and reputation (which (1) 1.3Ves. 143. And see by Best, (2) 10 East, 119. C. J., 9 B. Moore, 188. 206 Hearsay Evidence. [Ch. 13. latter is no other than the hearsay of those who may be sup- posed to be acquainted with the fact handed down from one to another) have been admitted as evidence in particular ca- ses. On that ])rinciple stands the evidence in cases of pedi- gree, of declarations of the family who are dead, and of mon- umental inscriptions, or of entries made by them in family Bibles. Such evidence, observes Lord Eldon, in Whitelock V. Baker, (3) is admitted on the principle, that it is the nat- ural etfusion of a ])arty who must know the truth, and who speaks upon an occasion where he stands in an even position, without any temptation to exceed or fall short of the truth, (a) It will be convenient, in the present section, to consider in order, 1. What are matters of Pedigree. 2. The different forms of Hearsay Evidence in cases of Pedigree. 3. The qualifications under which Hearsay Evidence is received in cases of Pedigree. Pedigree, First, Pediarrce, with reference to the subject under con- Ill&tttTS Ol. / O ? o ^ sideration, consists of general evidence of descent or relation- ship, of evidence of particular facts, as births, marriages, and deaths, and of the time when such events occurred, either absolutely or relatively to each other. (4) {b) (3) 13Ves. 514. These observations (4) In Alonkton r. Attorney General are adopted by tlie Lord Chancellor in 2 Russ. (Si Myhie, 161. The Lord Ciian- JNIonkton v. Attorney General, 2 Russ. cellor describes as matters of pedigree & Mylne, 162. And see upon the sub- such points as these, — "who was related ject af hearsay and relaxations of the to whom ; by what links the relation- old rules of evidence, Burke's Works, ship was made out ; whether it was a vol.14. Report from Committee ap- relationship of consanguinity, or of atfin- pointed to inspect the Lords' Journals. ity only ; when the parties died, or (a) It is well known that in cases of pedigree, the rules of law have been relax- ed ill respect to evidence, to an extent far beyond what has been applied lo other cases. This relaxation is founded upon pul')lic convenience and necessity. ]'er Story, J. 2 Pet. 621. See also 5 Cowen, 237, 8 J. R. 131. But care should bo taken not to go beyond the necessity of the case and admit the most vague hear- says; or extend it to cases where it is apparent that it is not the best evidence which exists in the case. Thus, a report that the body of a particular individual was found, and buried at a particular time and place, carries on the face of it an admis- sion, that if well founded, it is not the best evidence which exists in the case, for the body must have been lound and buried by human agents, who are presumed to be' competent and capable of testifying to the facts, especially if they did not occur at a very remote period. Jackson v. Ltz, 5 Cowen, 314. (b) Hearsay is admissible in questions of pedigree. 3 Hals. R. 250. The de- clarations of deceased members of a family as to marriages, as well as births and deaths, are admissible. But the evidence of the marriage is but incidental to the proof of pedigree, id. Where the witnesses are not connected with the family, have no personal knowledge of the fads of which they speak, and speak generally of what they have heard and understood, their evidence is not admissible. 1 J. R. 87. Hearsay is evidence in cases of pedigree only where the fact sought to be es- tablished is ancient, and no better evidence can be obtained. 3 Marsh. R. 326. See also 5 Cowen, 237; 2 Leigh's R. 665; 4 G. & J. 416. Absence of a person seven years, without being heard from, is presumptive evi- dence «f his death. 10 Pick. 516. Sect. 1.] Matters of Pedigree. 207 *Thiis, upon questions whether a testator at the time of ma- king his will was of full age, a written memorandum by a deceased parent, stating the time of his birth, has been ad- mitted to be good evidence. (1) In like manner, the declara- tions of parents are admissible to prove, that a birth took place before marriage, as well as to disprove the fact of mar- riage entirely. (2) In an issue out of Chancery to try wheth- er A. B. was the eldest son born out of wedlock, the declara- tions of his elder brother that he himself was a bastard, were received. (3) On a question, which of three children, all born at a birth, was heir, evidence was admitted, on one side, of declarations by the father stating which was the *eldest son, and that he called them Stephanus, Fortunatus and Achai- cus, (according to the order of names from St. Paul's Epistle,) for the purpose of distinguishing their seniority ; on the other side, the Court received declarations by a relative, who was present at the birth, and who, upon the birth of the second and third child, took a string and tied it round their arms, to know them from the eldest. (1) A variety of illustrations of what is deemed in law matter of pedigree, will be found un- der the subsequent heads of this subject. The exception in favor of admitting hearsay testimony in matters of pedigree has been limited to cases, in which the Time of liirlh. [ *225 ] ^=226 ] Place of birth. wliether they are actually dead." In Kidney v. Cockburn, 2 Russ. &, Mylne, 167, it is reported, tliat Tiiidal, C. J., at nisijirius, rejected the evidence ot" inscriptions on a tombstone and monu- mental tablet, and also of declarations, and of a letter stating the ages of indi- viduals ; on the ground, that atUiougli relationship in general might be proved by hearsay, particular facts, such as tlie ages of paities, could not. The Lord Chancellor, however, expressed a con- trary opinion, as also Mr. J. Park, and Mr. .1. Littledale, to whom the point was submitted. The Lord Chancellor, notwithstanding, granted a case for the opinion of the Court of K. B. But the cause was compromised. The case of Herbert v. Tucknal, T. Raym. 84, is a precise authority for admitting hearsay as to dales ; and the admissibility of such evidence is to be collected from Lord Mansfield's words in Goodright v. Moss, Covvp. 501, and from general practice. It was received by Littledale, J., in Ryder v. Malbon, cited 2 Russ. & Mylne, 16!). (1) Herbert w. Tuckal. Tr. at Bar. Sir T. Raym. 84, cited 7 East, 290. And see Johnston v. Parker, 3 Phill. 42. Per Lord Mansfield, in Goodright v. Moss, Cowp. .593. (2) Steveus v- Moss, Cowp. 5!}o, Stapyllon v. Stapylton, and Lord Va- lencia's case, cited ib. Rex v. St. Pe- ter, Burr. Sett. Cases, 25. Rex v- Bramley, fi T. R. 330. May «. May, 1762, Tr. at I'ar. B. N. P. 112. Cooke V. Lloyd, I'eake's Ev. App. 78. (3) Cooke V. Lloyd, Peake's Fv. App. 78. Tiie evidence was deemed admissible, as the representation of one of the family respecting the degree of relationship which he bore to it. In the same case, evidence was given of the declarations of the parents, as to the date of their marriage ; of opprobrious epithets applied by the father to the chil- dren, alleged to be born before the Mar- riage, and to the wife ; and of declara- tions of the father on his death-bed hav- ing pointed to a younger son as his heir. The declaration of the elder brother was after he had conveyed away the estate. And see Rex v. Nottingham, 13 East, 57, n., that a person is competent to give evidence of his own illegitimacy, as by statements touching acknowledgmfint and reputation. Concerning declarations of legitimacy, see Berkeley case, 4 Camp. 401. (1) Vin. Ab. Ev. T. b. 91. Referred to by Lawrence, J. in the Berkeley case, 4 Camp. 101. The second (juestion to the .fudgcH in the Berkeley tase, 4 Camp. 403, 418. 208 Hearsay Evidence. [Ch. 13. facts arc peculiarly within the knowledge of relations, on the ground, that in those cases only exists the necessity for relax- ing the general rules of evidence. Thus it has been held, that the declarations of a deceased parent, though they are good proof of the time of a child's birth, yet that they are not admissible as evidence of the place oi the birth. (2) («) " The ])oint in dispute," said Lord EUenborough, in a case where the admissibility of such evidence was discussed, "turns on a single fact involving only a question of locality, and, therefore, not falling within the principle of the rules applicable to ca- ses of pedigree." (3) It may be observed, however, that this fact is seldom proveable, except by the evidence of rela- tions. (4) Non-access. Jt has bccn Stated as a ground for rejecting the evidence of a father or mother as proof of want of access, (to bastardize a child born during wedlock,) that the want of access, im- plying the continued separation of the parties, must be noto- rious to the whole neighbourhood where they resided, and is, [ *227 ] *therefore, capable of more satisfactory proof; (1) and this objection would apply to their declarations, provided by the term non-access is meant want of opportunity for sexual in- tercourse. If, by the term is meant the fact of sexual inter- course, it should seem that the declarations could only be re- jected on the ground of interest or public policy. The ad- missibility of declarations of the wife as to incontinence with other persons, and particularly as to that sort of inter- course whereby a child might be produced, and to which she might be examined, if living, does not appear to have been decided. Both the Avife's and the husband's declara- tions as to facts in general tending to the proof of illegitimacy have been rejected. (2) (2) Rex V. Erith, S East, 542. Mod. ISO, ride supra, the chapters on (3) lb. incoiii[)elency of witnesses to givt- evi- (4) Ii is seldom that the fiict of birth dence ujion particular subjects ; and j«- can be proved, except by relations and u fra, cliapter on Presumptive Evi- few other persons, since it lias been deiice. iXotvvithstanding the observa- held that the baptismal register, is not, tiona of Lord EUenborough in Rex v. per se, evidence of the place of birth ; Lutfe, as to the wile's proof, " that the nor of the fact of a person having been adulterer alone had that sort of inter- known to be in a parish at an early course with her, by which a child might a<»e. be produced within the ordinary period," (1) B. N. P. 113, citing Rex v. it appears to have been considered, that Reading, and Rep. temp. Hardw. ib. 79. a wife cannot, by her solo testimony, (2) Koe V. Iveading, Rep. temp, bastardize her issue ; but, as it would Hard. 79, as to the ground of intere.st. seem, that the fact of non-access must Staplelon v. Stapleton, ib. 277. Ste- also be proved, and that by other vvit- vens V. Moss, Cowp. 593, as to the nesses. R. v. LufTe, 8 East, 203. R. ground of policy. Rex v. Lufl'e, 8 r. Reading, Rep. temp. Hard. 82. R. East. 203. Rex v. Kea, 11 East, 133. v. Bcdall, 2 Sir. 941, 1076. And upon 1 Wils. 340. Durr. Sett. Cases, 25. 8 these authorities, Aldcrson, J., rejected («) JacUsonr. EtiJ, 5Covvcn, 314; 320; ]5 J. R. 226; 18 id. 39; 4 Mass- 702. Sect. 1.] Matters of Pedigree. Formerly, it was the practice to admit the declarations of deceased persons as to particulars concerning their settle- ments. (3) But it is now settled that all such evidence is in- admissible. (4) *General kindred, as that a person was heir to another, be- ing his cousin or relation, is matter of pedigree, and declara- tions to that effect are, it would seem, receivable in evidence, though the point Avas formerly considered to be doubtful, at least so far as regarded proof of title in an ejectment. (1) The nature of matters of pedigree, as defined by legal au- thorities, having been considered, it is proposed, in the next place, to notice the variety of forms, in which evidence of this description has been received in courts of justice. The hearsay evidence, which is admissible in matters of pedigree, may be conveyed under various forms. One class of proofs seems to rest principally on the credit due to the authors of the statements, such as, entries in family Bibles or other family books, family correspondence, descriptions in wills, recitals in deeds, statements in bills, or answers in Chancery. There is another class, apparently resting not so much upon the credit due to the authors of the statements, as upon the adoption of others, such as, inscriptions on tomb- stones or on coffin plates, engravings on rings, pedigrees hung up in a family mansion, or the like. The authorities however, admit of being arranged with much precision, according to these classifications. The distinction is here noticed, because it will afterwards become important to advert to the examples about to be detailed, according to this view of them. *An entry in a family Bible derives some credit from the circumstance, of its being entered in a book, which is kept as 209 Upon seltle- int'iiis. General kindred. [ *22S J Forms of heaisay in pedigree. ^4j V 4 ^' Entries in r.ihles. [ *229 1 the declarations of a deceased wife, tending to show that her son was not lie- gotten by her husband, but by another man. The precise nature of the decla- rations does not appear in the report. The declarations of the liusband were also rejected, as being more objectiona- ble, on tiie ground of interest. It may 1)6 questioned, however, wiiether the de- clarations of the wife were not, in that case, admissible, for the purpose of shewing the fact of an adulterous con- nection; as to which, Mr. .1. Alderson observes, that he did not know th:it her declarations, even to that e.\tent, had ever been received. (3) R. V. Greenvvick, Burr. Sett. Ca- ses, 243. Rex v. Nutty, ib. 701. R. V. W'arehatn, Cald. 141. Rex v. Bury, ib. 48ti. Re,\ v. St. Sepulchre, ib. .547. (4) Rc.K V. Eriswell, :J T. R. 707. Rex V. Chadderton, 2 East, 29. Rex I. Nunehaiii Courtney, 1 Ivist, U73. 27 Rex V. Ferry Frystone, 2 East, 55. Rex V. Abergwelly, 2 East, 63. la Whilluck V. Waters, 4 Carr. & P. 37(j, it would seem, that hearsay evi- dence of pedigree had been rejected, on the ground ihnt the suit did not relate to a matter of pedigree. But there appears to be no foundation for a distinction be- twoen cases, where a matter of pedigree is the direct subject of the suit, and oth- er cases where it occurs incidentally. (1) Doe d. Futter v. Randall, 2 Bf. & P. 24, a declaration by a deceased person, that A. B. was to have his es- tate, and see per Eurrough, J. ib. p. 26. By Lord Erskine, 13 Ves. 147. By Lord Chancellor, 2 Russell in 3Ivhie, 15S. In l, it was much discn.ssed, wheth- er a strict deduction of descent was nec- essary in e|ecimenl, as from a coinmon ancestor, or at least (roni brothers atiij siBters, which was allowed to be an iui- / 210 Hearsay Evidence. [Chap. 13. Famliy cor- respond- euce. Recitals in deeds. the ordinary register of famihes. (1) But memoranda inser- ted in other books, as an ahnanack, (2) a missal, (3) a prayer- book, (4) and in other documents or papers, (5) have been admitted in evidence. Correspondence between members of the family, addressing each other as relatives, and making statements of pedigree, have been admitted in several claims of peerage. (6) Recitals in family deeds, as marriage settlements and the like, have been admitted, on the footing of declarations of relatives. (7) Mr. Baron Perrott is said to have rejected a slip of parchment, found in a shoemaker's shop, and marked Mr. A. B.'s measure, which purported to be two lines of a deed, and contained a recital of descent, but the Court of King's Bench granted a new trial, on the ground that the ev- idence ought to have been admitted. (8) In an early case, [ *230 ] where *viva voce evidence was offered on the part of the plain- till", that on a former trial in ejectment against the same de- fendant, a deed had been produced on the part of the defend- ant, having a clause in it relating to a pedigree, the Court held such proof to be admissible, on the ground that the defendant had the deed in his custody, and might disprove the witness if he swore falsely. (1) But in two recent cases in the Court of Chancery, it has been considered, that recitals in deeds were not evidence of pedigree against persons who were stran- (2) It may be observed, that recitals are gers to the deeds. mediate descent. See Newton v. New- ton, cited ib. And a case of Newton and the Corporation of Leicester, and the Attorney General was cited, where there was no deduction of pedigree, but the lessor of the plaintilT obtained a ver- dict, because it was proved that the de- ceased used to call him cousin. (1) By Lord Ellenborough, 4 Campb. 421; and see Johnston v. Parker, 3 Phillimore, 82. By Lord ftLinsfield in Goodright v. Moss, Cowper, 594. Lord Erskine, 13 Yes. 514. Le Blanc, 10 East, 120. 2 Russell & Mylne, 162. But the Lord Chancellor, considered en- tries in family Bibles, as standing on the ground of family acknowledgments, and admissible on account of their publicity, without proof that the entries were made by a member of the family. (2) Herbert v. Tuckal, Sir T. Rayra. 84. (3) Slane Peerage, 1S30, printed minutes, part 2, p. 49. (4) Leigh peerage, 1829, printed minutes, p. 310. (5) See the answers of the Judges to the second qutcry in the Berkeley case, 4 Campb. 401. Vin. Ab. Evidence, b. 87, pi. 5, an old book out of Lord Ox- ford's Library, mentioning the pedigree of William Zouch, signed by himself. The entry is not the less admissible, though it expressly purport to be made for the purpose of perpetuating evidence of legitimacy, Berkeley case, 3d query. B. N. P. 233. By Lord Mansfield, de- clarations for the purpose of preventing family disputes, in Goodright v. RIoss, Cowper, 591. 2 Russell & .Mylne, 164. (6) Berner's peerage, Collins on Bar- onies, 355, 356, 361. Leigh peerage, printed minutes, part 2, p. 140. Hunt- ingdon peerage, Attorney General's re- port, p. 357. (7) Bull. N. P. 233. Carth. 79. Nealc V. Wilday, 2 Str. 1151. Chandos peerage, printed minutes, p. 27. Staf- ford peerage, printed minutes, p. 110. Zouch of Hurgugworth peerage, printed minutes, 1804, p. 275; and see Doe d. Johnson v. Pembroke, 11 East, 505. 13 Ves. 514. Lisle peerage case, pp. 116, 127. Banbury peerage case, pp. 6, 117. Devon earldom, by Nicholas, 1832, App. pp. 44, 46. (8) Cited by Thomson, B., 2 Peake, N. P. C. 204. (1) Eccleston v. Petty, Carth. 79. (2) Fort V. Clarke, i Uuss. 604. Sect. 1.] Matters of Pedigree. 211 frequently in the nature of conventional admissions between the parties to a deed, by which they agree to be bound with- out reference to the real state of facts. A description in the will of a member of the family is also DescHp- admissible on the same ground, and this even though the will w'iiis" is found cancelled, and not known to have been proved or act- ed upon, if it appears to have been treated as a ])aper relating to the family. (3) In the Lisle peerage case, (4) a descrip- tion in a will, of certain individuals being the next " heirs in blood," was relied upon as showing that a particular person was illegitimate, (a) It may be observed, that upon principles applicable to the proof of documentary evidence, a probate would not be evi- dence, even of the fact of relationship, in an action for the re- covery of real estate ; though it would be otherwise with res- pect to the ledger book of the Ecclesiastical Court or a copy of it. (5) *In the cases respecting the admissibility of wills, answers, Bills, &.c. and depositions in Chancery, as evidence of pedigree, some ry. confusion occurs, attributable chiefly to a difficulty in deter- [ *231 ] mining, in what particular cases these sources of evidence are Slaney v. Wade, 1 Mylne & Craig, 338, where the recUal stated that A. 13. wag the child of the marriage of the persons named in the deed, and the question was that of A. B.'s legitimacy. On the etlect in general of recitals, see infra. Chapter on Jldmissioii!, ; and Doe d. I'ritchard v. Dodd, 2 Nev. & Mann. 45. Bowman v. Taylor, 2 Add. & Ell. 27S. (3) Doe d. Johnson v. Earl of Pem- broke, 11 East, .504. See 7 East, 27S). (4) Nicholas's Lisle peerage, 51, 53. (5) Not even to prove the relationsliip of father and son by the father's will. Roll. Abr. 678. 15. N. P. 246. Doe d Weld V. Ormerod, 1 H. & Ro. 466. DiUe V. Polhill, Lord Raym. 744. As to the ledgerbooU, see Hull. N. P. 246. In claims of peerage, however, the orig- inal wills are generally required to bo pro/Iuced. But a question arose in the late claim to the barony of Dc Lisle, whether, in support of the claimant's pedigree, the will of Ambrose Dudley, Earl of Warwick, dated in 1589, could be read from the register, upon proof that it was the custom of the Prerogative Oliice, at the time when the will was proved, in nine cases out of ten, to de- liver the originals back to the executors, after the wills had been proved and reart of the church belonging to the parish where the family had long been landed proprietors ; and in the same Rokeby, printed minutes, p. 4. Lovat, printed minutes p. 77. (1) Mr. Serjeant Hill's Collections in I. inc. Inn Library, vol. 26, p. 173. (2)Whitluck V. Waters, 4 Carr. & P. 376. There does not appear to be any ground for the Judge's doubts upon this subject ; as the admissibility of the inscription depends on a totally diti'erent principle from that of the admissibility of registers. (3) In the Roscommon and Leigh Pec- rage cases. The latter case turned whol- ly on the existence of a monument, al- leged to have been surreptitiously re- moved from Stonely Church. Numer- ous witnesses were examined for and against its existence. See the printed evidence, 1S29. (4) Collins on P>aronies, 363, and rote. There are several well known instances of similar mistakes. In the epitaph upon Spencer's monument in Westminster Abbey, there is a mis-state- ment as to tile time of his birth of no less than forty years, and as to that of his death of three years ; see Piog. Jjrit. nom. Spencer. The time of death is er- roneously stated on the monument of Sterne; see Biograpiiy, prefixed to works, ed. 1816 ; and the time of birth on that of Goldsmith, see Boswell's .lohnson, vol. 3, p. 69, Oxford ed. 1826. In the Lisle case (Nicolas's Lisle peerage case, 89), a monumental inscription was pro- duced in these terms, " To the memory of tlu! late Lady Katharine, late wife of Sir Ilicliard Leveson, one of the daugh- ters and co-heirs of Sir R Dudley, Knight, son to Robert, Earl of Leicester, by Alicia, his wife, daughter to Sir T. Leigii, of Stoneleigii, Knight and Baron- et," which, it was observed, was an in- genious device to represent to the curso- Sect. 1.] Matters of Pedigree. 215 case, it was held, that although the inscription had been de- faced twenty-four years ago, its contents might be proved by copies taken when the inscription was entire. The evidence was said to be admissible, as well upon the authority of the cases respecting tombstones, as of that respecting a pedigree hung up in a family mansion. ( 1 ) Coat armour has sometimes been relied on in questions of Coat ai- pedigree. Lord Coke speaks of its use to the bearers in "manifesting of what families they be ;" (2) and Siderfin says, " arms serve to distinguish family from family, and to prevent branches of the same family interfering with one another." (3) Whilst the Heralds possessed and exercised the power of punishing usurpations, some credit may have been due to this evidence, probably on the ground, that, by the assumption of a particular bearing, the party must have meant to affirm, that he was connected in that manner with the family to which it belonged. The claim of Sir Michael Blount to the Barony of Mountjoy, in the time of Queen Eliz- abeth, turned almost wholly on the arms in a window at Iver, in Buckinghamshire, set up in the reign of Henry the Seventh ; and elaborate arguments of the Heralds have been preserved, (4) as to the credit due to this evidence, in sup- port of the claim of Sir Michael, as heir male of the body of Walter, first Lord Mountjoy, in contradiction *to the books in [ *236 j the Herald's Oflice, which deduced his descent from Thomas, a brother of this Walter. In the modern case of the Barony of Chandos, where the claimant alleged, that he was descend- ed from the third son of the first Lord Chandos, he was allow- ed to give in evidence the arms of his family in Herald's Vis- neraid's itation Books, and upon seals to deeds, delineations on parch- books. ment, and other family papers ; which arms a Herald proved were those of the Chandos family, with the mark of the third branch. (1) An achievement with the same arms was likewise produced, which the mother of the claimant proved was hung up in the family mansion when she first married, and that she had heard her husband say, it had belonged to his grandfa- ther. (2) In the Huntingdon Peerage case the Attorney Gen- eral admitted in evidence an armorial shield, carved upon oak, which had been given by the late Earl of Huntingdon to the father of the petitioner. On this shield, which was produced shield, from a family chest, were the arms of Stanley and Hastings quartered, in consequence, as it was supposed, of the marriage in the reign of James the First of Henry the Fifth, Earl of ry reader, that Sir R. Dudley was a le- (2) Co. Litt. 27, a. gitimate son of llio Ilarl of Leicester. (li) J Sid. ;554. (1) Klaiiey v. Wade, 1 Rlylno & (1) llarl, MSS. 1886, (Jill. Craig. :i:{S. It would seem thai the CO- (!) Chandos peerage, piinted iiiin • pies could oidy be evidence by way of ule.«, pp. <), 21, 37, 40, 41). refreshing the memory of tlie witnesses. (2) Ibid, pp, 10, 49. 210 Hearsay Evidence, [Cli. 13. Huntingdon, with the daughter of Fcrdinando Stanley, Earl of Derby. (3) So in support of the presumption of a mar- riage, evidence has been adduced that the husband impaled Carria<'e ^^^ wife's amis With liis own on his plate, seals, and car- arms, riage. (4) It is observable, however, that the value, if not the admissibility of this evidence, de])ends upon its antiquity, and the Attorney General, therefore, in the Chandos Peerage case cross-examined the Herald, to show that at the time, when it was proved that the achievement before mentioned was in the family of the claimant (about 1090,) there was no authority in existence to correct usurpation. The year of the last Herald's Visitation (lOSO), seems to have been thought the time when this authority, or at least the exercise of it, ceased. (5) Coiiduct, *j^ j^jr^y -[^^ convenient to mention, in treating of the sub- cquivaioiii jcct of ])cdigree, (though it more properly belongs to the head ationT'^*^' of presumptive evidence), that the conduct of parties to each r *237 1 other, the disposition of property, the devolution of property and title, and similar circumstances, are frequently received in questions of pedigree, on the footing of declarations. They are properly facts, from wliicli an inference as to the opinion and belief of families is drawn ; and, therefore, they ulti- mately rest upon the same basis as hearsay evidence of fami- ly tradition. Chief Justice Mansfield, speaking of a father bringing up a son as legitimate, " this," he said, "amounts to a daily assertion that the son is legitimate." (1) And in Good- right V. *S'aiy I,ord Kenyon, and Mr. .1. lilood : Stair Inst, lib, 4, t. 42, s. IG. Bnller, in Rex u. ICriswell, 3 'i'. R. 71f>. And in the disput<;d election of Scotch Mr. .1. f'ulh^r cites an authority for ad- I'eers, 1790, the House of I.ords admit- milling declarations of persons not of the ted evidence, that is was the gciuiral he- fatnily. In VVeijks v. Sparke, I M. & lief of the country, that a claimant was S. (i7!*, Ee I'lanc says, that evidenci! of lineal descendant and lawful heir male, persons connected with the family is re- and that lie was " liahitc and repute as ceived. 13Vos. 514. such." r'rinted minuted of evidence, p (5) IS Ves. 446, 136. 220 Hearsay Evidence. [Ch. 13. cnssioii, expressing at the same time an opinion against their admissibility. (6) Limitation q^jjQ question remained thus undecided, when it came be- lo relatives. ^ , ^ /• , , i-wi ■ , r t i lore the Court oi Gonnnon Pleas, ni the case ol Jo/mson v. Lawso7i, (7) upon a motion for a new trial, on account of the rejection by Mr. Baron Graham, of the declarations of a de- ceased housekeeper, that a certain person, under whom the plaintifl' claimed, was the heir of her master. The Court [ *242 ] were unanimous in ^thinking the evidence properly rejected. Chief Justice Best in delivering judgment observed, that the admission of hearsay evidence in these questions must be sub- jected to some limits, otherwise great uncertainty would en- sue. The limitation to the declarations of relatives or mem-r bers of the family connected by blood or affinity, afforded a certain and intelligible rule ; and if that were passed, it might be necessary, on every occasion, to enter into a long and al- most endless inquiry as to the degree of intimacy or confi- dence which subsisted between the family and the party who had made the declaration. (1) In Doc d. Stittoji v. Ridgway, the dying declaration of a servant of a family, upon matter of the ftm^ily pedigree, was rejected. (2) And in Crease v. Bar- ret, (3) it was said by the Court, that in cases of pedigree, the hearsay must be derived from relatives by blood, or from the husband with respect to his wife's relationship, and that it was not admissible if it proceeded from servants or friends. The case of Johnson v. Lawson was referred to as having esr tablished a clear and definite rule upon the subject, {a) Principle of The principle upon which the declarations of relatives only are to be received, was pointed out in the case of Voiules v. (6) Printed report of trial, second is- for life was raised by the testimony of a sue, pp. ISi), 192, cited y D. Moore, living witness, vylio resided near the 188. property, and who spoke to liis continij- (7) 2 Bing. Sf). 9 B. Moore, 183, ed absence from it. This witness was S. C, and see VVhitelocke v. BaUer, 13 not a member of the family. But he Ves. 514. Gopdright v. ftloss, Cowper, pnly proved facts vvithin his own obser- 594. vation, and no c|uestion arose as to ihp (I) 9 B. Moore, 18S, The case of admissibility of his deciarationd. Doe V. Deakin. 4 Barn. & Aid. 433, (2) 4 B. & Aid. 53. does not impugn the doctrine in the text. (3) 1 Cr. M. & R. 928. A presumption of the death of a tenant (n) Limitation tn relatives. Hearsay is admitted in cases of pedigree upon the ground of necessity, or the great diliiculty, and sometimes the impossibility of proving remote facts of this sort by living witnesses. But in these cases it is on- ly adtnitted when the tradition comes from persons intimately cormected, or in close relation with the family, or from sources of kindred nature, which, in a getieral sense, may be said to import verity. Per Story, J. in Ellicott i'. Pearl, 10 Pet. R. 412. Where the witnesses are not connected \yith the family, have no perspnal knowl- edge of the facts of which they speak, and have not derived their information from persons connected or particularly acquainted with the family, but speak generally of what they have heard or understood, such evidence is insutiicient for that purpose. 1 J. R. 37. Sect. 1.] Matters of Pedigree. 221 Young, (4) Lord Erskiiie said, " the law resorts to the hear- say of relatives upon the principle of interest in the person from whom the descent is made out. The declaration is ev- idence from the interest of the person in knowing the connec- tions of the family. Therefore the opinion of the neighbour- hood of what passed among acquaintances will not do." (5) It must be observed, that the interest here spoken of is only an interest to acquire knowledge, and is clearly distinguisha- ble from an interest to make any particular statement respect- ing the facts. *It seems to be chiefly upon this ground, that the declara- ^^l^^^"^' tions of a deceased husband as to the legitimacy or descent husband of his wife, are admissible, though he is not related to her by ^ ^q^q^ blood ; (1) for, it was remarked, the husband has an interest ^ ' in the succession of his wife to real property, because of it he might become tenant by the curtesy, as well as to personal property, to which he would be wholly entitled. (2) An ob- jection is said to have been taken in one case, that the hus- band's declarations were inadmissible, because made after the death of the wife, when he was no longer connected with her family, but it was overruled upon the ground that his knowl- edge must have been acquired whilst he was married to her. (3) Besides, however, the declarations of particular members of General a family, the general reputation of the family is sometimes ad- of Uiefami- mitted upon questions of pedigree. Thus, in Doe d. Ban- ^y- ning V. Griffin, (4) in order to prove a person to have died unmarried, a relative was allowed to state, that according to tJie repute of thefainily, he had died in the West Indies, and that she never heard, in the family, of his being married. It has been considered, that an instrument of pedigree, Acknowi- which from the publicity given to it, must be presumed to orfa"miiy. , (") (4) 13 Ves. 140. dall, 2 M. &. P. 20. Doe d. Northey (.5) 13 Ves. 147. v. Harvey, R. & M. 297. That a per- (1) Vovvles «. Young, 13 Ves. 140. son need not be connected with both Doe d. Northey v Harvey, 1 Ry. & the branches of the family, touching Moody, 297. Doe d. Futter u. Randall which his declaration is tendered ; see 2 2 Moore & Payne, 20. Russell & Mylne, 156. (2) 18 Veg. 147. (4) 15 East, 294 ; and see B. N. P. (3) Vowles V. Young. This does not 295. StalTord peerage case, printed ev- appear in the report in Vesey, but was idence, p. 145. It may be questioned, staled by Burrough, .1., who was counsel whether this general repute of the faiiii- in the cause, 9 15. Moore, 194. That ly could be proved by others than mein- the declarations of a party connected by bers of it. B. N. P. 295. marriage are receivable ; Doe u. Ran- (d) See .Tackson v. Cooley, 8 J. R. 128. In the case of .Jackson w. Boneham, 15 .1. R. 226, a sworn copy of the records of Stonington ((."onnt.) which contain- ed the date of the marriage of the parents of the lessors, and the time of the birth of the children, was admitted. Thompson, J., says, — " We do not perceive any ob- jection to the admission of a sworn copy of the records as evidence of the family." See also the case of Jackson v. King, 5 Cowen, 237, where the Court admitted a 222 Hearsay Evidence. |Ch. 13. liave been adopted by the Ihmily, need not be traced to any particular member of it. Thus it has been observed, that an engraving upon a ring worn pnbhcly, an entry in a Rible open to the family, an inscription n])on a tombstone erected or supposed to be erected by the family and open to all man- [ *244 ] kind, a ])edigrec *hung up publicly in a family mansion, are all admissible in evidence, without knowing who may have been the authors of them. But in the absence of such pub- licity, they must be shown to have been made by some par- ticular member of the family. (1) Derinraiion ^\iq authority of the casc of Hifrhani v. Ridffioay is open cheuror to much observation. It was decided by that case, that an midwife. entry made by an accoucheur in his book of having delivered a woman of a child on a certain day, the charge for which was marked "paid" was admissible as evidence of the birth of the child on that day, on the trial of an issue as to his age at the time of his afterward suffering a recovery. (2) («) And an opinion was mentioned, in the course of the judgment, that an entry, or the declaration of a midwife as to the time of birth, might be admissible, on the ground of having been made of a matter peculiarly within the knowledge of the declarant. (3) But the ground of the judgment seems to have been that the declaration was admissible, because the entry was against the interest of the accoucheur (4) It is to be observed, that the rule which limits hearsay evidence in matters of ped- igree to the declarations of relatives was not, at the time of the decision in question, established, nor had the principle of it been much considered. Neither was it brought before the notice of the Court that such evidence had been rejected in the Irish case oi Annesly v. the Earl of Anglesea, ; in which case, the question was, whether the plaintiff was Lord Al- tham's legitimate son, and it became material to inquire whether Lady Altham ever had a child. To prove this, the [ *245 ] declaration of a *midwife that she had delivered Lady Altham (1) Monkton r. Attorney General, 2 in Iligliam v. Ridgvvay, stated by 11. Rassell & Mylne, 162. In the Berke- Bayley, in 1 Cr. & J. 458. Lord l.ynd- ley case of the family Bible, 4 Campb. hurst, V,. B., in 1 Cr. & J. 4.56, observes, 401, the handwriting was proved. Vi- that none of the Judges in IJighain r. de supra. Ridj;way, put that case on the ground of (2) Higham v. Ridgway, 10 East, pedigree. 'J"he case may also, perhaps, 109. be supported, as an entry in the ordina- (3) By Le Blanc, J., 10 East, 120. ry course of professional business, vide (4) Vide infra, where the subject of infra. The case of Higham v. Ridg- declarations against interest is consider- way, is explained by Bayley, B., in ed; and see the principle of the decision Glendow v. Atkin, 1 Cr. & M. 428. sworn copy of certain entries of baptisms and marriages in the records of the Re- formed Protestant Dutch Church in the city of New York, to prove tlie pedigree of the lessois of the plaintiff. (a) See the case of Crouch v. Evelith, 15 Mass. 305. The place of birth can- not be proved by hearsay evidence. 4 Pick. 174. Sect. l.J Mailers of Pedigree. 223 of a child, was offered in evidence, but was held inadmissi- ble. (1) In the same case of Annesly v. tlie Earl of Anglesea, the [^,g/"''""'" declaration of a deceased lady, that she had stood godmother to the child of Lord Altham, was also after argument reject- ed. (2) On a question of legitimacy depending upon the validity of ^.^*''|g"""" a marriage, Lord Kenyon admitted evidence of a declaration man as to by the clergyman, that a friend of the wife had forbidden the "'^'fage- banns ; but the evidence seems to have been received, on the ground of its being a confession by the clergyman, that he had married the parties without the banns having been duly published. (3) And a clergyman's declaration as to the fact of marriage, when it was not against his interest, has been held inadmissible. This was in the case of the Berkeley peerage, where it being proposed to give in evidence declara- tions of a deceased clergyman, who was the domestic chap- lain of the Earl of Berkeley Avhen the claimant was born, that he had married the Earl of Berkeley and the claimant's mother in the parish church, of which he (the clergyman) was vicar, and also his declaration that the claimant was legitimate, the opinion of the Judges was taken on the admissibility of such evidence on the trial of an ejectment in the Courts below, and all the Judges present agreed that the evidence could not be admitted. (4) *Parish registers are not evidence of the time or place of |5 ""■.•'*' '" ~ . ^ Re<;isler. birth. For as it is not the duty of the minister to register r *246 ] these matters, the register is not admissible, upon the princi- ple hereafter to be considered, of being a public document, and, as private hearsay upon a matter of pedigree, it does not purport to be derived from the statements of relations. (1) (1) 17 How. St. Tr. 1157. parish church of which such chaplain (2) 17 How. St. Tr. 1160. was vicar, and declarations that A. B. (3) Sianden v. Standen, 1 Peake, N. was the legitimate son of his reputed P. C. 34. father. According to the practice of the (4) Printed IMinute.s of Evidence, Courts helow, would such declarations 1811, p. 655. Sir S. Roniilly proposed as to the legitimacy of A. B., or the fact to call Mrs. Tucker, to prove declara- of marriage he received in evidence?" tions made by the late Mr. llupsman. The Lord Chief Baron delivered the fir5t with re.spect to the legitimacy of the unanimous opinion of the judges present, claicnant; and secondly, as to his having that such declarations as to the legitima- performed the ceremony of a marriage cy of A. B., or the fact of marriage between the late F.arl and the Countess would not be received in evidence. of Berkeley. Counsel being heard ^)ro (1) It would seem that proof would and con, the following question was put be reciuircd, that the statement of the to the judges : " Upon the trial of an minister was made by the direction of ejectment, in which it became necessary relatives; but, with this proof, that the to prove the legitimacy of A. B., the evidence would be sufficient. It is also plaitiiifl' ofiered to give in evidence the to be observed, that the evidence of bap- declarations of a deceased clergyman, lisrri, connected with other evidence, who was the domestic chaplain of A. may raise a presumption as to the lime B.'s reputed father at the time of A. H.'s of birth. .Sec VVithen w. Law, 3 St. birth, that he had married the reputed Ca. 63. Rex v. (^lapham, 4 C & P. father and the mother of A. B. in the 29. Kcx r. North Pclherlon, 5 B. it C, 224 Hearsay Evidence. [CIi. 13. It appear then that in the cases, the authority of which has not been overruled, where the hearsay of strangers has been admitted, the declarations possessed some distinct ground of admissibility ; and if the decision in Johnson v. Laioson is to be considered conclusive, it seems settled, that, on the foot- ing of hearsay in questions of pedigree, the declarations of persons not relations are inadmissible, even though made res- pecting tacts peculiarly within their knowledge, or under the most solemn circumstances. (2) RtT^u»«tion It )ias been thought, that notwithstanding the rule laid as "to '^wer- doMHi for excludiug declarations not made by relatives, the ni rd4ik)n- cvideucc of Strangers as to general reputation is receivable in ^ ''*' matters of pedigree ; but that the evidence must be of a gen- eral nature, as, tliat A; was conmionly reputed to be the son of B., or the father of C. ; the same latitude not being allow- [ *247 ] ed as in the *case of family declarations. There does not appear, however, to be any sufficient reason or authority for excepting such evidence, from the rule under consideration, (unless, indeed, the evidence frequently given of marriages be thought to be of this nature.) It is frequently said, that gen- eral reputation and the common opinion of the world are ad- missible in ordinary cases, to prove the fact of parties being married. But the evidence, usually produced in such cases, cannot be properly called hearsay evidence, as it consists of original evidence of facts or circumstances, as, evidence of the parties being received into society as man and wife, of respectable families in the neighbourhood having visited them, of tile woman being churched after childbirth ; all Avhich cir- cumstances show, that the parties demeaned themselves as if they were married, and were not living in a state of concubin- age. Thus the ground of a presumption is afforded, that the parties were actually married. (1) 508. It has been held, that a baptismal 285. See also the case of I\Ir. Twislelon register, in which a party is described as claiming the barony of Say and Sele, the illegiliinute son of his mother, is ad- where, in proof of the n)arri:ige of his missible evidence on the trial of an issue faiiier and niotiier, he relied on the fact as to his illegitimacy. Cope v. Cope, 1 of llieir having been visited by C. J. Rl. & Ro. 269. IMorris v. Davies, 3 C. Willes, and several families of respecta- & P. 215, 427, which decisions seem bility. Mr. Serjeant Hill's collection, ndt to be governed by the principle vol. 26, p. 169. l{ead v. Passer, 1 Esp. addpted in respect of an official statement 213. Leader w Barry, 1 Esp. 353. 1 in registers as to the time of birth. The I'oUg. 174. Uervey u. Hervey, 2 W. time of marriage is an official statement. Bl. 877. Ke.K v. Bromley, 6 T. R. 330. Doe V. Barnes, 1 IM. i. Browniiiii. 1 IM'CIel. 317. (2) Per Lord Lyndhiii-st in Wright jj. In Bullen v. Mitchell, 4 Dow. P. C, 'Rudd, ubi supra. But liis Jjordship which related to a farm modus, much stated that he was willing to hear the documentary evidence was adduced, ([uestion argued. In Wells w. Jesus Col- and was treated as evidence of reputa- lege, 7 C. & P. 284, reputation concern- tion; but most of the documents were ing a farm modus appears to have been of a public nature. In Eagle on Tillies, rejected. It is to be observed, that an vol. 2, p. 439, there is a learned argu- exemption from the iiability to which ment, to prove that evidence of repula- thc rest of the parish was sui)ject, would lion is admissible upon questions of farm •be likely to create general observation moduses. and remark. (4) 14 East, 327. Lord Kenyon, (3) Webb V. Potts, Noy. 44. In C. J., and Ashurst, .1., against the evi- White V. Lisle, 4 Madd. 214, this case dence ; Buller, J., and Grose, J., for it. was said to stand alone, and to be too It did not appear whether the prescrip- loose to be relied on. The Vice Chan- live right claimed was in derogalio!i of cellor added, that there was no necessi- the rights of common in the copyhold- ty to resort to evidenc| of reputation in ers ; in which case it would seem that the case of a farm modus, because proof evidence of reputation was admissible, of a fixed payment for a long period was Weeks v. Sparke, I Maule & Selw. 679. evidence of a modus. The same argu- (1) Bull N. P. 295, citing Skinner v. ment would, however, apply to parochi- Lord Bellamont, Worcester, 1744. al moduses, and other customary pay- And see the opinions of Buller, J., and ments, where reputation is clearly admis- Grose, J., in Morewood r. Wood, 14 sible. In Doninson v. Elsley, 3 Lag. & East, 330. n. ; also Grose, J., 3 T. R. Y., lithe cases, 1396, n., evidence of 709. In Price w. Littlewood, 3 Camp, reputation in the case of a farm modus 2S8, Lord Ellenborough admitted proof was read de bene esse, and similar ovi- of entries in a parish book, as evidenco ^unce appears to have been received in of the reputation of the parish respecting 230 Hearsay Evidence. [Ch. 13. Private pre- jj^jj tliere are many ercat authorities on the other side, (2) lighis. *It IS to be observed, that the receiving of hearsay evidence [ *255 ] is founded on a principle of necessity, in consequence of the anti(juity frequently belonging to particular inquiries, and that, although a custom must necessarily be immemorial, it is as- suming the question in dispute, to say that a private right of way, or common, and the like, is prescriptive and immemori- al. Even supposing a private right to have necessarily origina- ted, if at all, before the reign of Richard I., yet it may reasona- bly be expected, that in the instance of any private right, the case should be sufhciently established by modern use without recourse to evidence of reputation ; whereas a greater latitude may be allowed in the instance of public rights, which it is the private right of pew. But he also .•is>;iifiied as a reason for adfniltin. J'arker, 14 iidiiiiitcd to prove whatever concerned East, 331, n. Cooke i'. Banks, 2 C. & the s. iv. tit. fi, a. 30. The three questions Berkeley case, 4 Camp. 416. are m;atly brought together by Terence. (3) llarwood r Sims, I Wightw. 112. Cn. "Principio earn dicoesse /iberain.'^ Per Macdonald, C. B., " the essence of Tint. " IJem .*" Ch. " Civem atti- reputntion i^, that if you prove a fact, an cam." Thk " Ilui .'" Ch. " !\ic- for instance, payment of a sum of mon- am sororern." 'J"hr. " Os durum I" ey, it must be accom|):inic(l with this, Eunuch. IV. 7, v. 35. th;it it was sn paid in consequence of a (1; Per Gro.se, J , 3 T. R. 709. Per reputation, ff evidence is confined to Lord Kenyon, C. J., 5 T. R. 123. Per the fact of payment, it is inadmissible. Wood, Baron, Moseley i'. Davies, 11 unless the tradition thai came with i, 30 234 Hearsay Evidence. [Ch. 13. [ *259 ] *thougli hearsay of a custom to make particular payments is evidence, hearsay that certain lands were formerly given to the vicar in lieu of tithes is not admissible ; (1) this being ev- idence of a particular fact, and being confined to a particular occasion. Again, though reputation is good evidence of the " boundaries of a town, it is not admissible to prove that hous- es once stood where now there are none. (2) Upon a question whether a part of Lincoln's Inn was part of the parish of St. Andrew Holborn, an ancient book of an- tiquities, relative to the parish and collected by a churchwar- den, was produced, and several entries were tendered in evi- dence concerning the repairs of pews, and the glazing of win- dows. But Lord Tenterden refused to receive this evidence, as it related only to particular facts. (3) Perambulations, although they consist of particular acts done, as the making of an ambit, digging turves, and putting down posts at particular places, and although they give rise to much hearsay evidence, are, properly speaking, only the ex- ercise of a right. It is, however, usual and perfectly consis- tent with principle, to admit what old persons, deceased, who accompanied the perambulations, were heard to say on such [ *260 ] occasions ; ^though there does not appear to be any authority for admitting hearsay as to particular facts conducive to the proof of the boundary, even though it be delivered on the occasion of a perambulation. Lord Ellenborough observes upon the subject of perambulations, that they are in the nature of hear- say evidence not of particular acts done, as that such a turf was dug, or such a post put down in a particular spot ; for that would amount to evidence of ownership ; but they are evi- dence of the ambit of any particular plan or parish, and of what the persons accompanying the survey have been heard to say and seen to do on such occasions. (1) And Le Blanc, was a reputation that that had always matter was not of public interest. As been the case." And see Wood, B., in Doe «. Thomas, 14 East, 323, where in Mosely v. Davies, 11 Pr. 162, that the the reputation was, that the land had be- evidence should always be general, longed to I. S. and was oF A. B. And see Wells v. Jesus College, Oxford (3) Cooke v. Banks, 2 Carr. & P. 7 C. & P. 284, statement of an occu- 481. Lord Tenterden stated that evi- pier as to the fact of payment of a ino- dence of particular facts was not recciv- dus. able, unless the party charged himself; (1) Chatfield v. Fryer, 1 Pr. 253. the question of the book being a public And see Leathes v. Newel, 4 Pr. 355, 8 book or not does not appear to liave Pr. 562; evidence of reputation of cer- been much considered. In Price v. Lit- tain lands having been inclosed, in pur- tiewood, 3 Camp. 289, similar entries suance of an agreement, rejected. In appear to have been admitted ; but, the Crease v. Barrett, 1 Cr. M. & R. 919, is question related to a right of pew ; and another example of hearsay evidence of the nature of the book was assigned as a particular fact being rejected. one of the grounds of it's admission. (2) Ireland r. Powell, Peake's Ev. (1) In Weeks v. Sparke, 1 Maule & 14, cited 1 Pr. 256. The circumstance Selw. 687, 689. It is to be observed, that the reputation related, to particular that perambulations are actually atlend- facts was an objection to it's admissibili- ed by a great number of strangers, as tj', in addition to the olijection that the well as by official persons, commonly Sect. 2.] Matters of General Interest. 235 J., observes, in the same case, that the evidence of perambu- lations might be considered, in a certain degree, as evidence of the exercise of a right, yet that it had been usual to go further, and admit the evidence of what old persons, who are deceased, have been heard to say on those occasions. In a late case, perambulations by a lord, of what he considered to be his manor, made in the absence of the party affected by them, were received, as shewing a claim of right and act of ownership, though slight in its efiect ; (2) a principle obvi- ously distinct from that at present under consideration. In the next place, according to the course adopted in treat- fy^ck^^j ing of pedigree, it is proposed to consider the different forms in which evidence of reputation, upon matters of public or general interest, is usually presented to the Courts. Reputation respecting public rights may be shewn by old Documents, deeds or other documents, as well as by the oral declarations of deceased individuals. (3) Thus, where the question was, whether certain land was in the parish of A., or in that of *B., the land in the latter being tithe-free, ancient leases grant- r ^oc i i ed by the ancestors of the plaintiff's landlord, in which the ^ ~ -• land was described as being in parish B., were held admissi- ble as evidence of reputation, notwithstanding that such an- cestor had a direct interest in describing the land to be situate in that parish. (1) In the case of the Cambridge Tolls, a composition deed be- J^°"^°^' tween the Corporation of Cambridge and the University, reg- ulating the amount of payment of tolls, was received as evi- dence of reputation of the existence of the tolls. (2) So de- positions in ancient suits have frequently been produced to prove reputation. (3) A customary of a manor delivered down with the Court Manorial Rolls, from steward to steward, and purporting to be ex as- sensu omnium tenentium, although not signed by any person, has beeri held to be good evidence to prove the course of de- called the spadesmen. Perhaps in giv- 486. Coombs v. Coethier, 1 Moo. & ing evidence of the declaration of per- Mai. 398." ambulators, it would be presumed that (2) Brett v. Beales, 1 Mo. & Mai. they were made by persons conversant 416. It appeared that the deed had not with the boundary in queslion. And been exactly followed in practice; but it the occasion of the declaration might be was held that this objection did not ap- considered as giving them weight. ply to it's admissibility. (2; Wooiway v. Rowe, 1 A.. & E. (S) Freeman v. Phillipps, 4 Maule & lis. Selw. 493, and the cases of the Settle (3) This subject will receive further and Leeds Mills cited by Lord Ellenbo- illustration in the part of the work which rough, ib. In Pollard v. Scott, Peake, treats of public documents. 18, upon a question of highway, Lord (1) Pliixton V. Dare, 10 Barn. & Kenyon rejected the evidence of a cop- CresB. 17. For other instances of simi- perplate map, purporting to have been lar evidence being received, Arundell v. taken by the churchwardens at the time. Lord Falmouth, 2 .Maule .Si. Selw. 443. But there does not appear to be any val- Freeman v. Phillips, 4 .Maule & Selw. id objection to such evidence. 23G Hearsay Evidence. [Ch. 13. sceat within a manor. (4) So the presentment of a cus- tom of a manor by the homage, entered on the rolls of the manor, is receivable. (5) In Crease v. Barrett, ancient [ *262 ] answers of *conventionary tenants of a manor, stating the rights of the lord of the manor, and made to interrogatories put to them by commissioners, but to which interrogatories were lost, were received in evidence. (1) So in an action by a copyholder against a freeholder of the manor for the disturbance of the plaintiff's right of common, by reason of the defendant purchasing the common, (the plaintilf setting up a restricted right), parchment writings produced on the part of the defendant from amongst the muniments of the manor, purporting to be signed by many persons copyhold- ers, and stating an unlimited right of common in the common- ers, which having been found inconvenient, they had agreed to stock it in a restricted manner, were held admissible as evidence of reputation as to the general right at that period, and in disproof that the restricted right originated in prescrip- tion ; there being no evidence that the plaintitf's tenement belonged to any of those who had signed the writings, so as to render them admissible against him on that ground. (2) It would seem that maps, stating the boundaries, of manors Maps. or parishes, would be receivable in evidence to prove such boundaries, provided it appeared that they had been made by persons having adequate knowledge. In the cases, however, where maps have been admitted in evidence, their admissibil- ity has depended on the ground of their being public docu- ments, or of their being in the nature of admissions. Where they relate merely to the boundaries of private property, there is no ground for receiving them, however ancient. (3) (a) (4) Denn v. Spray, 1 T. R. 466. ing a place as a manor was given in evi- When the instrument containing evi- dance. In Barnes v. Mawson, 1 IVIaule ilence of reputation is found among tlie & Selw. "79, leases of the lord of a ma- inuniments of a manor, the reputation nor, and entries of payments and con- may perhaps be considered as deriving veyances in the Court Rolls, were re- some additional force in the nature of ceived As to leases, vide Clarkson «. an admission, in consequence of the privi- Woodliouse, 5 T. R. 412, n. .3 Doug, ty of copyholders, and their access to 189. In Bullen v. Rlichel, 4 Dow. 1'. the instrument in question. C. 297, leases are spoken of as evidence (5) In Roe v. Parker, 5 T. R. 26; and of reputation, see ib. Lord Kenyon's remarks as to (I) ^ Cr. M. & R. 92.3. the credit due to such presentments. In (2) Chapman v. Cowlan, 13 East, 8. Arundell v. Lord Falmouth, 2 Maule & (3) Pollard v. Smith, Peake, 18, such Selw. 441, presentments by the homage evidence appears to have been rejected were given in evidence. In Curzon v. upon a question of highway. With re- Lomax, 5 Esp. 60, an old deed describ- spect to private maps, see Doe v. Laken (a) Ancient reputation and possession as to the boundaries of streets, are entitled to more respect in deciding upon the boundaries of lots, than any experimental sur- vey that may be afterwards made. 3 Rand. 284. Where an ancient corporation of proprietors was extinct and iheir records lost, the Court admitted a plan, taken by order of the proprietors, in which the premises were described as a town landing. This evidence, together with the fact that it was before and since known and used as such, brings it within the protection of die Jaw. Sevey's case, 6 Greenl. R. 118. Sect. 2.] Matters of General Interest. 237 *It has been held, upon, a question of public or general in- terest, that a verdict is receivable evidence of reputation. As in the case of Reed v. Jackson, (1) where in an action of tres- pass, issue was joined on a plea of public right of way, the plaintiff was allowed to give in evidence a verdict found in his favour against a different defendant, upon an issue joined as to the existence of the same right of way. And in an ear- lier case, where the question discussed was concerning the right of the City of London to take certain tolls npon malt brought to London by west country barges, it was held, that verdicts against certain owners of barges, were admissible in evidence against other owners who were neither parties nor privies to the former records. (2) The like evidence has been received upon a question respecting the right of electing churchwardens. (3) And the admissibility of verdicts, in ca- ses where evidence of reputation is receivable, seems to be fully established by the authorities relating to the competency of witnesses to give evidence in proof of customs, from the estab- lishment of which they might themselves derive a benefit. (4) *In the case oi Reed v. Jackson before cited, (1) Lawrence J., says, " reputation would have been evidence of the right Verdicts. [*263 Principle on which verdicts admitted. 7 C. & P. 481, Sir J.Bridgemanu. Jen- nings, 1 Lord Raym. 734. Donaldson V. Elslev, 2 Eagle & Y. 1.39G, n. infra <;h. on Admissions. In Alcock v. Cook, before Tindal, C. J., at Guildliall, maps of the duchy of Lancaster were reueiv- -ed as public documents. (1) 1 East, 356. (2) City of London v. Clerke, Carth. 181. B. N. P. 233, where it is said, that custom or toll is lex loci, and in such cases it is not material whether tl.e verdicts be recent or ancient. For oth- er cases see Cost c. Birkbeck, 1 Doug. 218, case of Settle Mills, where a ver- dict and a decree were given in evi- ■dence. And the case of the Manchester Mills, 1 Doug. 221, n., where a decree was given in evidence. Duke ef Som- erset V. France, 1 Str. 659. In Clark- son V. Woodhouse, 5 T. R. 412, a de- cree, it would seem, was left to the jury upon a matter of reputation. In Travis V. Chaloner, 2 Eag. & Y. tithe cases, it was held, that upon a question of modus, a verdict between the parson and anoth- er occupier was admissible evidence. In Biddulph v. Ather, 2 Wils. 23, on a (juestion of prescriptive right of wreck, a judgment and allowances in Eyre were proved. (n) Beny r. Banner, Peake, 157, [ *2G4 ] (4) B. N. P. 283, and see ib., a dis- tinction in this respect between customs and prescriptions. Per Lord Kenyon, C. .T., in Bent v. Baker, 3 T. R. 33, where the like distinction is noticed. Per As- hurst, J., in Walton r. Shelley, 1 T. R. 302. Company of Carpenters v. Hay- ward, 1 Doug. 374. Hockley v. Lamb, 1 Lord Raym. 731. Lord Falmouth v. George, 5 Bing. 291. Rhodes v. Ains- vvorth, 1 B. &, Aid. 87. In Lancam v. Lovell 9 Bing 467, the same principle was recognised, only the witness was ad- mitted ex necessitate, as the right af- fected the whole public. And see the cases cited, ib. Upon questions of mo- duses, the occupiers of lands within the parish or district, for which the modus is claimed have been considered before the statute, as incompetent witnesses. Lord Clanrickard v. Denton, 1 Eag. & Y. 306. Cart v. Hodgkin, 2 Swanst. 160, n. Taylor r. Cook, 8 Pr 650. Jones V. Carringlon, 3 Eag. & Y. 1131. Ans- combe v. Shore, 1 Taunt. 261. Flem- ing o. Simpson, 2 !\1. & R. 169. As lo the eliect of the recent statute in such ca- ses, vide supra " Interest of Witnes- ses." (1) Supra, p. 263. A plan taken ex parte can never be used but as a chalk, unless by consent. Where a plan is taken under a rule of the Court, or agreed upon by tiie parties, the surveyor appointed by the Court, and sworn to the faithful execution of his trust, Bhould give notice lo the parties, and also mark on the plan any monuments ■or lines, which either of the parties shall request. 4 I\Iass. 40S. "238 Hearsay Evidence. [Cli. 13. of way in question ; a fo?i.iori, therefore, the finding of twelve men upon their oaths." (2) But it is to he observed, that the statements, upon Avhich tlie opinion of the former jury was founded, were all made post litem motam, and the witnesses, who might be still living, were brought forward by litigating parties, and, further, tliat their cross-examination by stran- gers could never be considered as entitling their evidence to any additional weight. In Ncal d. Duke of Athol v. Wild- ing, (3) the majority of the Judges would not allow a special verdict to be given in evidence to prove a pedigree, on the ground that it was res ittter alias acta, and because the same evidence, for any thing they knew to the contrary, might be ready to be laid before the second as before the first jury. In a recent case, upon a question respecting the jurisdiction of the Court of Session of the County of Chester, an order and decree upon the subject, by the Lord High Treasurer and certain other public functionaries of the kingdom (not forming any Court known to the laws), was held to be admissible as ev- idence of reputation, because (as was said by Lord Tenterden) declarations are only evidence of reputation, when made by those who have a personal knowledge of the fact ; whereas in the case in question, the persons acting as judges had no knowledge of the fact, except what was derived in the course of the proceeding. (4) Lord Holt, in the case of the City of London v. Gierke, (5) which has been before cited, rested the admissibility of the verdicts, which were received in evi- [ *265 ] dence, on the ground, that as payment of *the duties by stran- gers would have been admissible in evidence, so a recovery against a stranger ought to be received. Effect of With respect to the etfect of the evidence supplied by a ver ict. verdict. Lord Kenyon observed, in Reed v. Jackson, ( 1 ) that perhaps it was not entitled to much weight, and certainly was not conclusive. It was held, in the same case, that the effect of the verdict, whatever it might be, could not be obviated by any evidence adduced to shew, that the finding of the jury had been indorsed by mistake on the postea, and that in fact no evidence had been offered, at the former trial, under the is- sue, the finding as to which was relied on. -* (2) Lord Kenyon argues for the ad- ler's observations on the case of Clargea missibility of the verdict, on the ground v. Sherwin, relied on by the Court in that the defendants both stood in the the Duke of Athol's case. same relative situation, and compares the (4) Rogers v. Wood, 2 Barn. & Adol. case to that of commoners. This notion 245. of verdicts being evidence for or against (5) Carth. 181. Supra, p. 263. copyholders by reason of privity, is (1) 1 East, 355. Lord Mansfield's adopted by the Court in Freeman v. observation in the case of the Manches- Phillips, 4 Maule & Selw. 491. ter Mills, 1 Doug. 221, n. that the decree (3) 2 Str. 1 151, Mr. J. Wright con- in that case incontrovertibly bound all tra. It is said in Bull. N. P. 233, thai persons answering the description of in- Mr. J. Wright's opinion was generally habitants of Manchester, seems to be un- approved of. And see ib. Mr. J. Bui- tenable. la Berry v. Banner, Pealie, Caution necessary. Sect, 2.J Matters of General Jnlcrest. 239 It has been held, that hearsay evidence negativnig a public ^>gai'^'e- right is admissible no less than that which asserts it. Accord- ingly, upon an issue whether a certain place situate on the bank of a river was a public landing place, evidence was re- ceived of reputation, that it was not a public landing place. (2) Mr. Justice Coleridge observed, that there could be no dis- Reputation, tinction between the evidence of reputation to establish a pub- lic right, and such as must be admitted to shew that the pub- lic have not that right. A rule for a new trial in this case was afterwards discharged. According to the same course which was followed in treat- Qof'ifi"- O tions under mg of pedigree, it is, in the next place, proposed to consider which hear- the qualifications, under which evidence of reputation is re- si[^[e7n mat- ceivable upon matters of public and general interest. lersof Upon this it may be useful to observe, that judges have ^"neTarin- differed in opinion, concerning the weight to be given to ev- ipfpst idence *of reputation. There are several judicial remarks of a very strong nature to be met with, which shew, at least, [ *266 ] that such evidence is open to much observation calculated to weaken its effect. Lord EUenborough, in Weeks v. Sparke{\) observes '* Reputation is, in general, weak evidence ; and when it is admitted, it is the duty of the Judge to impress on the minds of the jury how little conclusive it ought to be, lest it should have more weight with them than it ought to have." And Mr. J. Grose observes, that this kind of evi- dence ought to be very cautiously admitted. (2) (a) 1 57, Lord Kenyon said, that the verdict Pr. 136, expressly dissents from Lord EI- was very nearly conclusive, if not quite lenboroiigh's opinion; and says that up- so. As against a parish, indeed, a re- on questions of moduses reputation wag cord of conviction for not repairing a entitled to great weight ; and Richards, liighway is, it seems, conclusive. Rex C. D., in INloseley v. Davies, 11 Fr. 162, V. St. Pancras, Peake, 220. It has not speaks of reputation as having great Ijeen considered an objection to verdicts weight and etiect. ♦ as evidence of reputation that they were (2) In Morevvood v. Wood, 14 East, post litem tnotam. 330. Lord EUenborough, in Weeks v. (2) Drinkvvater v. Porter, 7 C. & P. Sparke, 1 Maule & Selw. 680, professes 181. And see Reed r. Jackson, sMjiror, himself at a loss to understand, why, p. 263. even in matters of public right, reputa- (1) 1 Rlaule & Selw. 686. Baron tion was ever deenied admissible evi- Wood, in Robinson v. Williamson, 9 dence. (a) Hearsay evidence is not admissible unless the party shew that his case con- stitute an exception according to an acknowledged rule of law. or some judicial de- cision, or at least that it is entirely within the reason and spirit of an acknowledged exception. Medley v. Williams, 7 G. & J. 61. The danger of admitting hearsay evidence, is suilicient to admonish courts of jus- tice against yielding to the introduction of fresh exceptions to an old and well es- tablished rule. I'er Marshall, Ch. .1. 7 Cranch. 290. To authorize the admission of hearsay evidence, (except in cases of pedigree) three things must concur : first, that the fact to which the reputation or tradition applies, must be of a public nature : secondly, if the reputation or tradition relato to the exercise of a right or privilege, it must be supported by acts of enjoyment or ])rivilege within the period of living memory : thirdly, that it tnust not be reputa- tion or traditionary declarations to a particular fact. Per Story, J., in Ellicolt r.. Pearl, 10 Pet. R. 112, 137. 240 Hcaisay Evidence. [Ch. 13. rompeteiit ^Y\\e fii'st (lualificatioii to be noticed, with respect to receiv- knowlediro . ■ ^ r c ^\• i in iiecia-" Hig cvidoucc 01 reputation upon matters oi public and geiicr- *■"'"• al interest, is the same, which, as before shewn, apphes to the admission of hearsay evidence in matters of pedigree ; viz. that the statements should have been made by persons hkely to possess a competent knowledge of the facts, to which their statements relate. It has been supposed, that this qual- ilication nmst necessarily be satisfied, where the matter is of public interest, because, as Lord Kenyon observes, " all man- kind being interested therein, it is natural to suppose that they may be conversant with the subject, and that they should dis- course together about it, having all the same means of infor- mation." (3) And Lord Ellcuborough, in Weeks v. Sparke, states it as being the general understanding, upon which the decisions of the Courts proceeded ; " that upon questions of public right all are interested, and must be presumed conver- sant with them." (4) [ *267 ] *In the case of Crease v. Barrett, (1) the Court observed, it was clear that hearsay evidence upon some subjects could not be received, unless with a qualification, that it came from persons who had a special interest to inquire ; that in cases of pedigree the line was clearly defined ; and that in cases of rights or customs, which are not, properly speaking, public, but of a general nature, and concern a multitude of persons, (as questions with respect to boundaries and customs of particular districts,) though the rule is not so clearly laid down it seems that hearsay evidence is not admissible, unless it is derived from persons conversant with the neighbourhood. The Court further observed, that where the right is really public, (a claim of highway for instance, in which all the king's subjects are interested,) it seems difficult to say, that there ought to be any such limitation, and the Court were not aware, that there was any case in which it had been laid down, that such a limitation existed ; that in a matter ir^ which all were concerned, reputation from any one appeared to be receivable ; but of course it would be almost worthless, unless it came from persons who were shewn to have some means of knowledge, as by living in the neighbourhood, or frequently using the road in dispute. And in the particular case, which related to a custom in which all the king's sub- jects had not an interest, but only such as chose to become adventurers in mines within a particular district, it was said that hearsay from persons wholly unconnected with the place (3) Per Lord Kenyon in Morewood is tlius dropped in conversation upon 1). Wood, 14 E.ist, 329, n. and, in ihe sucli subjects may be presunjed to be Beriing. 8(), mpra,\t. 2G4. v. Wooil, II K;isi, :J2!», n. Lord Ken- (1) I iVliiulc & Selw. ()S8, 68f). yon a|)plics lliis oli.surv;iiioii also hi (2) 4 15. & Ad. 273. The ordurs piiviilt; cuatoiiis. l>ord Klliiiilntioiijjli, in which contained a statement that Not- VVucks v. Spaike, 1 ftlaulo & ydw. tingham Castle vva« within tho hundred, ()S(», observe.;, " It is said, that upon were received as evidence of reputation, questions of public right all are interested, not as orders upon matters of which the and must ho presumed conversant vviih magistrates had jurisdiction. them ; and that is the disiinclion taken, (3) I'ci- Lord Kenyon, in Morewood between puhlic and private rights." 31 242 Hearsay Evidence. [Ch. 13. correct, iLaii where, as in matters of general interest, it is sup- posed to be addressed to persons conversant with the subject, [ *26C J * or having an interest to inquire into it, with the means of investigation in their power. (1) In Talbot v. Lcicis (2) the answer of tenants of a manor to a commission issued by the lord of the manor, in which it was stated that the lord was entitled to wreck, was rejected, on the ground that the right was a private right, of which the };arties making the declara- tions possessed no jieculiar means of knowledge. Proof aii- jt -would sccm, whcrc proceedings in an ancient suit are capnchy. produccd as evidence of reputation upon matters of public or general interest, it may be presumed that the parties to the suit and the witnesses were actually in the respective capaci- ties which they purport to have been, without proving this by evidence dehors the proceedings themselves. (3) Thus, ill Freeman v. Fh'ill'i;i)ps,{A) an action by a copyholder against the lord of a manor, in which the defendant gave in evidence the proceedings in a suit in Equity in the time of King William III., brought by another copyholder of the same manor against the then lord, it was held that no evidence ali- unde was requisite to make the proceedings admissible. Mr. J. Bayley says, " We must assume at this time of day that the bill was not a mere fabrication, but was really filed by such a copyholder against the lord, and that the trial was had, and the depositions made between such parties, as were really litigating their rights in the characters claimed and disclosed on the record." And, afterwards, with respect to the deposi- tions, the same Judge observes, " These I do not look upon merely as the declarations of persons unconnected with the subject, but as the dcqfositions of persons, made by them in the character of witnesses brought forward by the copyholder, whose interest it was to put foremost such wntnesses as were best able to depose the matter in dispute. Why am I to as- r #270 1 si^iiT^G that *the copyholder brought forward witnesses who were ignorant ? I do not agree that it was necessary to prove the witnesses to have been copyholders, in order to let in their testimony. The plaintiff's witnesses in the last trial do not all appear to be copyholders, yet as they were present at the holding of Courts, and, therefore, knew what passed, they were com])etcnt to speak to that. So in the former suit, I cannot infer that they were incompetent to have a knowledge (1) It will be seen, afterwards, that Sect. 1. Banbury and Berkeley peerage no olijection arises from the circum- cases. The same point occurs in regard stance of tiic declarant being in pari to declarations against interest, infra, jure, with the person afterwards using Davies v. Morgan, 1 Cr. & I. 591. the declaration. See Adamthwaite v. Synge, 1 St. C. (2) 1 Cr. M. &: R. 497. 189. It would seem that a uniform prin- (3) A stricter rule lias been laid down ciple ought to prevail in all these cases, in some pedigree cases, vide supra, (1) Maule &i Selw. 495. Sect. 2.] Matters of Genrral Interest. 243 of the tacts they deposed to : on the contrary, it is to be pre- sumed they had a competent knowledge, being brought for- ward as witnesses by a copylioldor." (1) Lord Ellenl)orough, in the same case, observes, " Considering the depositions as made in a suit, which may now be said to be lost in remote antiquity, we should give tliis record but very little effect, if we did not attribute to it verity in many of the particular matters which it contains ; such as that the parties litigant were clothed with the rights in which they profess to stand, and were agitating the claim put forward on the record." (2) Another qualification, or cautionary rule, in receiving hoar- Proof of say evidence in matters of pubhc or general interest, has been joymeui. supposed to be, at least where the nature of the case admits, that a foundation for it should be laid by ])roving acts of mod- ern enjoyment. Mr. Justice Lo Blanc, in speaking of the manner in wliich matters of this nature are to be proved, says, (3) " First, they are to be proved by acts of enjoyment within the period of living memory ; and when that founda- tion is laid, then inasmuch as there cannot be any witnesses to speak to acts of ^enjoyment beyond the time of living [ *271 ] memory, evidence is to be admitted from old persons of what they have heard other persons of the same neighbourhood, since deceased, say respecting the right." Again, " after a . foundation is once laid for the right by proving acts of owner- ship the evidence of reputation becomes admissible." And Mr. Justice Buller observes, in Moreioood v. Wood, (1) " Thus far I agree with Lord Kenyon and Mr. Justice Ashurst, that in no case ought evidence of reputation to be received, except a foundation be laid, by other evidence, of the right." But in the late case of Crease v. Barrett (2) in answer to an observation, that all evidence of reputation was inadmissi- ble, unless confirmed by proof of facts, it was said that such proof was not an essential condition of it's reception ; but (1) The rule is laid down in the judg- character of iha piirtie.s does not appear ment cited in tlie text vvitii great latitude, to be a good lexson for giving such cred- For, it is presumed, that the declarants it. In DglIW v. Spray, 1 T. \l, il'->, a were persons whose hearsay was adniis- case relating to a copyhold custom, crcd- sihle, from the circumstance that they it was given to the purport ol a docu- were witnesses, and professed lo iiava ment, professing to be ex usben.sii om- knowlcdge of the facts. Mr. .lustice ninm tcncntiuni. liayley, in another part of his judgment, (:J) In Weeks v. Sparko, 1 Maule & a[)pear3 to have considered the plainlill's Selw. CHS. in the two suits as identilied in interest, (I) 11 East, 330, n., and see Rat- as much as if tin; plainlill" in ijio latter clill" v. Chapman, 4 Leon. 212, corn- suit had derived title from the plainlill'iii inentod on in 5 T. II. 32. In White v. the former. And he speaks of the pro- Lisle, 1 Madd. 2 1-1, the Vice Chancellor ceedings being inter eosdein aclu. l»ut says, that evidence of reputation was it would seem that the proceedings were only admitted in confirmation of actual admitted on the footing of reputation, enjoyment, and not against it. and not of a. re.H jndirata. (2) 1 Cr. M. & 11. There was, how- (2) That little efiect would ho given ever, sulllcient proof of cnjoynnint giv- lo the record without giving credit to the en ni the case. 244 Hearsay Evidence. [Ch. 13. that it was only material as aftected it's value when received. Where the subject matter of the question does not, from it's nature, admit of acts of enjoyment, as in a question of paro- chiality, proof of rei)utation, unaccompanied by evidence of acts done, is admissible. On a question respecting the cus- tom of descent within a manor, it has been held, that repu- tation is admissible, without shewing any instances of it's having been put in use. (3) For were it otherwise, if no in- stances were to happen within the memory of man, and the old Court Rolls were to be lost, the custom itself would be entirely destroyed; (4) and in Steele v. Prickett, Lord Ten- terden intimated an opinion, that the existence of a manor [ *272 ] *raight be proved by reputation alone, without evidence of the exercise of any manorial rights. ( 1 ) The next qualification, in receiving hearsay evidence of matters of public or general interest, is one which equally ap- plies to hearsay evidence in matters of pedigree : the consid- eration of it has consequently been postponed, until it could be illustrated by examples drawn from both subjects. (2) This qualification is commonly expressed by saying that declara- tionsjto be receivable, must have been made atite litem motem. The phrase is borrowed from the civil law, the commenta- tors upon which had made the declarations in question the subject of learned remarks, long before they became a matter of attention to English lawyers. The first case, in which the precise time of making the declarations became the subject of particular inquiry and con- sideration, was the Berkeley peerage case. (3) This case came before the House of Lords A. D. 1811 : the only mat- ter of controversy depended on the reality of the first mar- riage alleged to have taken place between the parents of the claimant. A question was, on that occasion, proposed to the Judges, in the following terms: (4) "Upon the trial of an Declara- tions ante litem mo- tam. Berkeley peerage case. (3) Beebee v. Parker, 5 T. R. 26, 31. Doe d. Foster v. Sisson, 12 East, 62. In this case, however, some par- ticular instances of a more confined cus- tom were proved : which Lord Ellenbor- ough described as branching out of the same root. (4) Per Grose, J., 5 T. R. 32. For this reason a single instance is allowed to be evidence of a custom. Roe v. Jef- frey, 2 Maale & Selw. 92. Doe v. Ma- son, 3 Wils. 63. In Godb. 55, it is said, that in the prescription of Gavel- kind, it must be shewn that the land is partible and has been parted, but this is denied to be law, unless it be confined to such lands of this nature as lie out of the county of Kent, Robins, on Gravel- kind, 49. (1) 2 Stark. C. 466. This was ruled by Lord Kenyon in Curzoa v. Lemon, 5 Esp. 60. (2) Vide supra, sect. 1. (3) 4 Camp. 491. The earlier cases on the subject were contradictory. I'ut the question cannot be considered as having been maturely discussed before the Berkeley peerage case. The au- thorities prior to that case were Vin. Abr. T. b. 91. Haywood v. Firmin, Sitt. af- ter Trin. Term, 1766, cited by Law- rence, J., in the Berkeley peerage case. Goodright v. Moss, Cowp. 594, Lord Camden had ruled for receiving the evi- dence. Chief Baron Reynolds and Mr. Justice Eyre for rejecting it. See Sla- ney v. Wade, 1 Myl. & Cr. 338, su- pra, as to copies j'ost litem motam of an ancient monumental inscription. (4) May 2, 1811, MS. . Sect. 2.] Matters of General Interest. 245 ejectment respecting Black Acre between A., and B. (in which it was necessary for A. to prove that he was the legiti- mate son of J. S.) A., after proving by other evidence that J. S. was his reputed fatlier, otfered to give in evidence a deposi- tion made by J. S. in a cause in Chancery, instituted by A. against C. D., in order to perpetuate testimony to the alleged fact (disputed by C. D. ) *that he was the legitimate son of [ *273 ] J. S., in which character he claimed an estate in remainder in White Acre, which was also claimed in remainder by C. D., B., the defendant, in the ejectment did not claim Black Acre under either A. or C. D., the plaintiff and defendant in the Chancery suit. According to law, could the deposition of J. S. be received in evidence upon the trial of such eject- ment against B., as evidence of declarations of J. S. the alleg- ed father, in matters of pedigree ?" The Judges who were present afterwards stated their opinions at length, and with only one dissentient voice, agreed in considering the deposi- tion of J. S. to be inadmissible. Mr. Justice Lawrence deliv- ered his opinion in the following terms : (1) " The declara- tions of members of the family, in matters of pedigree, are generally admitted, from the necessity of the case; but the administration of justice would be perverted, if such declara- tions could be admitted, which have not a presumption in their favour, that they are consistent with truth. Where the relator had no interest to serve, and there is no ground for supposing that his mind stood otherwise than even upon the subject (which may be fairly inferred before any dispute upon it has arisen), we may reasonably suppose, that he neither stops short, nor goes beyond the limits of truth, in his sponta- neous declarations respecting his relations and the state of his family. The receiving of these declarations, therefore, though made without the sanction of an oath, and without any op- portunity of cross-examination, may not be attended with such mischief as the rejection of such evidence, which in matters of pedigree would often be the rejection of all the evidence that could be offered. But mischievous indeed would be the consequence of receiving an ex parte statement of a deceas- ed witness, although upon oath, procured by the party who would take advantage of it, and delivered under that bias which may naturally operate on the mind in the course of a controversy upon the subject. Notwithstanding Avhat is said in the case of Stevens v. Moss, I cannot think that Lord Mans- field would have held, that declarations in matters of pedigree made after the controversy *had arisen, ought to be submitted [ *274 ] to the jury. They stand precisely on the same footing as declarations on questions of rights of way, rights of common, and other matters depending upon usage ; and although I (1) 4 Campb. 409. 246 Ilcarsrnj Evidence. [('li. 13. cannot call to mind llie ruling of any j^articular Judge upon the subject, yet I know that according to my experience of tlui l)ractice (an experience of nearly forty years), whenever a witness has admitted, that what he was going to state he had heard after the beginning of a controversy, his testimony has been uniformly rejected. If the danger of fabrication and falsehood be a reason for rejecting such evidence in the cases of prescription, that willc(|ually apply in cases of pedi- gree, where the stake is generally of much greater value." Then, after referring to the decided cases, the learned Judge added, — •' The authorities being thus balanced, I thiidc the point must be considered as without any decision, and we must resort to principle and the uniform practice, which has obtained in rpiestions of prescription. Hardships may arise in rejecting declarations made between the cammencement of the suit and the time of trial ; but such hardships are not confined to the case of pedigree. In other cases, if witnesses die before the trial of the cause, the party, who relied upon their testimony, must sustain the loss. For avoiding uncer- tainty in judicial proceedings, general rules must be laid down and adhered to, without regard to our feelings or our wishes on particular occasions. Besides, the hardship, may general- ly be avoided by a bill to perpetuate testimony. Although the exclusion of declarations made in the course of the con- troversy may prejudice some individuals, it is better to submit to this inconvenience than expose courts of justice to the frauds which would be practised upon them if a contrary rule were to prevail. That this is not an imaginary apprehension, will appear from what happened in the J^ouglas and Angle- sea causes : in the first of which, fabricated letters were giv- en in evidence ; and in the second, false declarations. Not- withstanding the danger of incurring the penalties of the crime of perjury, there is scarce an assize or sittings in which witnesses are not produced, who swear in direct contradiction, the one to the other : and it may be feared, that persons, who [ *275 ] have as little *regard to truth, may be induced to make false de- clarations, when they run no risk of punishment in this world, as no use can be made of their evidence till after their death. We know that passion, prejudice, party, and even good-will, tempt many who preserve a fair character with the world, to deviate from the truth, in the laxity of conversation. Can it be presumed that a man stands perfectly indifferent, upon an existing dispute respecting his kindred ? His declaration post litem viotam, not merely after the commencement of the law- suit, but afte)^ the dispute has arisen (that is the primary meaning of the Avord lis,) are evidently more likely to mislead the jury than to direct them to aright conclusion, and, therefore, ought not to be received in evidence. I am likewise of opin- Sect. 2.] Mailers of General Inlerest. 247 ion, that no deposition can Ijc received in evidence as a de- claration, to prove a fact which it was tlie object of that de- position to estabhsh. A deposition is the answer of the wit- ness to such interrogatories as it is thought expedient to put to him to estabhsh certain facts wliich the plaintiff alleges, and on which the case depends. Consequently, a deposition is considered a partial representation of facts, as to all persons who have no opportunity of bringing out the whole truth by cross-examination ; and on that account all admit, that, against a stranger, it cannot be received in evidence as a deposition. How then shall it be received as a declaration ? In that case, the circumstances of it's being upon oath cannot be regarded. To consider it a declaration on oath would be to receive it as deposition. As a declaration, it is still subject to the same vice and infirmity, of being an answer to particular questions art- fully ])ut, with an interested view, by one party behind the back of another. All the objections by which it is allowed that this document cannot be received as a declaration, apply, with at least equal strength to receiving it as a deposition. The summary of the doctrine is given by Lord Eldon, in a pedigree case, where he says, that " the admissibility.of tra- ditionary evidence is founded upon the presumption, that the words given in evidence are the natural effusion of the party, *upon an occasion when his mind stands even, without bias, [ *276 ] to exceed the truth or to fall short of it." (1) With respect to the particular meaning of the term lis mo- jjs mota la, it has been seen that Mr. Justice Lawrence says, that "de- 'i*^^'"'^^- clarations j^;os^ litem motcvm, not merely after the commence- ment of the lawsuit but after the dispute has arisen, (that is the primary meaning of the word lis) ought not to be re- ceived in evidence." And in the case of Monkton v. The At- torney General,{1) also a case of pedigree, the Lord Chancel- lor says, " shew me that the pedigree in question was prepar- ed with a view of profiting the maker of it, or those in whom he is interested ; bring it within the rule either of Wliitclocke V. Baker or the Berkeley peerage case ; prove that it was madcjjos^ litem motam — not meaning thereby a suit actually ])ending, but a controversy existing — and that the person ma- king or concocting the declaration took part in the controver- sy ; shew me even that there was a contemplation of legal proceedings, with a view to which the pedigree was manufac- (l) Whitelock V. Baker, 13 Ves. .511. drawing evidence from perfectly nnpol- In Freeman v. riiillipps,!Vlr. Justice Bay- luted sources. The Lord Clinncellor, in ley says, " wliere there is a lis mota, Moncktori v. Atty. G'en., 2 Russ. & • you cannot bo Hure, tli.it in admitting tlie Myl. 161, says, lliat in the Berkeley depositions of witnesses selected and peerage case, Mr. .Justice Lawrence brought forward on a particular side of adopts almost tlie very language of Lord the fjuestion, who embark to a cerlaiu Eldon in VVhitelocke c. Baker, degree with the feelings and prejudices (2) 2 Kuss. & Myl. liii. belonging to tliat particular bide, you arc 24S Hearsay Evidence. [Chap. 13. tared, and I shall then hold, that it comes within the rule which rejects evidence fabricated for a purpose, by a man who has an interest of his own to serve. The question, then, al- ways will be, was the evidence in the particular circumstan- ces manufactured, or was it sjxintancous and natural?" Where a person died possessed of property, which many years afterwards another person commenced a suit to recover, and, in the year after the first person's death, a relation of the second person made a declaration, the etfect of which was to [ *277 ] *prove tiiat he was the heir and next of kin of the hrst person, it was held that the second person could not avail himself of such a declaration in evidence. It was argued, that if the existence of a controversy were essential to the exclusion of the evidence, a party might lie by and make no controversy, tiU he had got a suflicicnt body of such evidence. The evi- dence was rejected by Alderson, B., on the principle that the commencement of the controversy must be taken to be the arising of that state of facts on which the claim is founded without any tiling more. (1) Kiio\vio(i-c Cliicf Justice Mansfield, in his iudgment in the Berkeley i>y tiecia- peerage case, after giving the same definition of lis mota, '^^"'' saying, that the line of distinction was the origin of the con- troversy and not the commencement of the suit^ expressed his opinion that all declarations are to be excluded after the con- troversy has originated, whether it was or was not knoion to the witness ; he said, if an inquiry were to be instituted in each instance, whether the existence of the controversy was known at the time of the declaration, much time would be wasted and great confusion produced. (2) Lis mota. In ouc casc, (3) upon a question of boundary between two General (1) Walker ». Beauchamp, 6 C. & son for it are thus mentioned : " Isttid P. 652. aiUein quod dixiinus, debere testes de- (2) 4 Campb. 417. Per Alderson, horiere ante litem motuin, sic est accipi- B.,in WalUer v. Beauchamp, 6 C. & P. oiidum ut verum sit, si il)ideni, ubi res (iGi). Among the civilians tiie following agitur, audierit : at si alibi in loco qui ciisiinctioa prevailed upon this subject, longissiiiie distaret sic intellexeiit, etiam 'The goucial rule was, as with us, that post litem motam, testes do audim ad- liearsiiy po>,t litem motam, was inad- niiltuntur. Loiigiiicjuitas enini loci in inissible in questions of consanguinity, as causa est ut oiiiiiis suspicio abesse videa- well as of boundary; but if the witness tur, qua; quidem suspicio adesse potest, proved that he heard the fact in a place quando testis de auditu post litem mo- very far distant from that ubi res agi- tam, ibidem, ubi res agilur, deponit. tur even ihaagh post litem motam, iiis Mascardiis Conclus. 410, n. 5." evidence was to be admitted. In Mas- (3) Nicholls v. Parker, Exeter gum- carilux de Probationihus (which is in mer Assizes, 1805, 14 East, 331, n. all likelihood the same book as that to Le Blanc, J., in this case says, "that which Chief Justice Mansfield refers, (4 there was no dispute at the time respect- Campb. 417,) as being a treatise of ing the right of the old persons making great learning, entitled De Probationi- the declarations, at least no litigation bus,) in which the distinction between pending ; so that tliese persons could not ante litem motam and post litem mo- bo considered as having it in view to iam is taken, after a statement of the make evidence for themselves at the general rule, this exception and thu rea- time." So that the principle was ad- rin-lit5. Sect. 2.] Matters of General Interest, 24S^ *parishes and manors, declarations were admitted, although [ *278 ] the boundary had been long in dispute between the respec- tive parishes and manors, and intersecting perambulations had been made both before and after the declarations, there beins; no litigation actually pending at the time. The rule respect- ing lis mota does not, however, appear to have been then set- tled, and it may be doubted whether such evidence would now be admitted. In a case at ?im jjrfws, where the question was, whether the occupier of a particular farm was liable to the repair of a public road, and to prove the affirmative an award was produc-' cd, which had been made some years before, when the same question was tlie subject of dispute between a former occupi- er and the township Avhere the lands were situated, the evi- dence was rejected as inadmissible. " The very submission," Mr. Justice Dampier observed, " shews, that the question was then agitated between the township and the occupier ;" and as the account, which deceased witnesses might have given to the arbitrator on that occasion, could not have been receiv- ed, because the declarations were made pos^ litem Jiioiam, so tlie opinion of the arbitrator formed upon such testimony could be entitled to no more credit. ( 1 ) In a case, where an ancient presentment of a homage was produced, according to which the jurors purported on their oaths to have considered and negatived the claim of a freehold^ er of the manor, after hearing the evidence produced by him, the presentment was held to be inadmissible, on the *ground, [ *279 ] that it appeared upon it's face to have been made post litem, moiam. ( 1 ) It would seem that the admissibility of hearsay evidence Lis mota upon a different controversy, will depend on the circumstance, "{j^f p^,( whether the point as to which the evidence is material was "<" oinro- in litigation, or whether the truth of it was assented to or as- ^"*^' sumed by both the contending parties. In the case of Freeman v. Phillipps^{2) an action was Subject of derlaralion: brought by a copyholder against the lord of a manor, in nou' which the copyholder relied upon a custom, that the lord '•^'^• could not assess a fine upon filling up lives, upon copyholds held for life without the intervention of the homage. The niifted ;' though doubts may be entertain- ters of reputation, notwithstanding they ed ds to it's having been properly ap- necessarily occur post litem motam. plied. (1) Richards v. Liassett, 10 Barn. & (1) Rex e. Cotton, 3 Catnpb. 444. Cress. 6.57. In the first trial of the Cambridge toil (2) 4 Maule & Selw. 493. It would case, an award was rejected as evidence "seem to have been assumed in this case of the reputation ol tolls ; and also an- that where there is a lis mota, duclara- oiher award was rejected on the siicond tions will be ina(!inissible, thouj^'li adduc- trial. liut a composition deed, reciting ed against a [lerson standing in pari the award, was received : IJrett v. jure with the declarant, (there being n« Beales, 1 Mo. k. M. 4 IS. It lias been privity betwoeu them.) Been, that verdicts are evidence in inal- 32 itijta- 250 Hearsay Evidence. [Ch. 13. lord gave in evidence tlic proceedings in an ancient snit brought by a copyholder against the then lord, in which the copyholder insisted on a particular custom relative to the fil- ling up of lives, not being that which was in dispute in the latter snit, and throughout the former suit no mention was made of the approbation of the homage being necessary. The Court held, that there was no valid objection to the proceed- ings being given in evidence, because the lis iJiota was not on the very same point, and that the proceedings were not evi- dence of any thing atlirmed by the witnesses, but were mate- rial on account of what the witnesses omitted to declare, that is to say, that where a dispute existed concerning the copy- holder's right to renew, on some terms, it was never made a term that the fine should be assessed by the homage. In the case of the Duke of Newcastle v. The Hundred of Brox- lowe, (3) orders of magistrates at sessions were received as evidence, of reputation concerning the point whether Not- tingham Castle v/as situated within the hundred ; for although they were made upon controverted matters, there was no con- troversy upon that particular question. Sui.ject of *j^ ^ \r^^Q claim of peerage, a private pedigree, which had litigated, been compiled by the father of the claimant with a view to [ *280 J su})port a claim to certain estates, and laid before counsel for that purpose, was held inadmissible by the House of Lords, as not being a spontaneous effusion, but made for a particular object, and in contemplation of litigation. (]) The peerage in this case was claimed through the mother of the claimant, and not only were the controversies therefore different, but the father, who compiled the pedigree, never could have had an interest in the present claim. It also appeared, that when (S) 4 B. & Ad. 279. could be received only de bene esse the (1) Slane peerage, printed minutes, matter requiring further consideration ; 1830, part 2, p. 3.5, and part 3, p. 6. A tliat it must be made clear ttiat tiie parly private pedigree found among tiie papers was at the time perfectly independent as of liie claiiriant's family, was oflered in to any other matter which iiiight be de- evidence, but it appeared that it had cided by it. It afterwards, however, been compiled by tiie fatiier of tlie claim- was proved tliat this pedigree was ant, with a view to support a claim to drawn up in order to lay claim to prop- certain estates. The counsel were in- erty, and had been laid before the coun- formed that a pedigree, to be receivable, sel ; and although it was stated that the must be a spontaneous efl'usion ; that if descent was taken for granted on both made for a particular object in contem- sides, counsel were informed by their plation of litigation, it was not receiva- Lordships, that, if a person sat down, ble in evidence. It was stated, that the when in the prospect of a contest for lather of the claimant who made out the property to propose such a paper, it had pedigree, could have had no interest in never been received ; that the parties this question, as he never could have agreeing in the statement did not make made this claim, because the claimant any difference as it might be equally for claimed through his mother, and that the interest of each party to admit a there had not then been any proceedings particular fact though contrary to truth, instituted of which they had any knoL 81. 1 Lord question. In Prescot v. Philips, briefly llaym. 734. The case as stated in noticed in 2 Evans's Pothier, 292, tlie (lilbert is involved in considerable ob- Court of King's Bench appear to have scurity- See Doe v. Laken, 7 C. & P. rejected evidence of the description of 4S1. vVakeman v. West, 7 C. & P. lands contained in an old deed. Sir D. 479, Evans argued, apparently with reason, (2) Jlnon. 1 Str. 95. Bridgman v. Jen- (a) The declarations of the surveyor who fixed the boundary have been consid- ered to be proper, if made at the imie the survey was made. 6 Pet. R. 469. Ch. 14.] Ancient Possession. 257 Evidence of the nature under consideration, can only be re- ^^°^^ "'". , T r T 1 r ^ acting With ceived subject to several quahncations. In the iirst place, respect to some acting with reference to the documents, is required to ||jg„'|°'^"" be shewn, if the nature of the case admits of it. In the case of Clarkson v. Woodhouse, (3) the trial took place A. D. 1793, and the three leases, which were produced, were re- spectively of the dates A. D. 1670, 1702, 1730. As to the two oldest of them, the Court ruled that their antiquity rendered it unnecessary *because it was not likely to be practicable to [ *289 ] prove possession under them. The most recent lease was re- jected at the trial. In Rogers v. Alle7i, (1) leases were pro- duced, which bore date from the year 1661, downwards to the end of the seventeenth century, and the cause was tried A. D. 1808. Heath, J., ruled that it was not necessary to prove payment under the licenses, as they were of such an • ' ancient date, it could not reasonably be supposed that evi- dence of such jjayments was still preserved. (2) nings, 1 Lord Raym. 734. B. N. P. 283. distinction between evidence of enjoy- Pollard V. Scott, Peake, 18, by Lord ment under leases by the lessees, and ev- Kenyon. See Wakeman v. West, 7 C. idence of payment of rent. This dis- & P. 479. Doe v. Laken, 7 C. & P. tinction is sometimes very important, 481. Doe t). Seaton, I N. & M. 81. where subsequent inquiries are made re- Dennison v. Eisley, 2 Eag. &, Y., tithe specting tlie parcels of the lease. Thus, cases., 1396, n. evidence derived from a where leases of rectories include tithes map rejected, 12 Vin. Abr. 90, pi. 12. claimed by the vicar, it seems to make Survey books of a manor, which are an- an important difference, whether the les- cient, unless signed by the tenants, or see has enjoyed the tithes claimed by the unless they appear to be made at a Court vicar, or whether he has only paid rent of Survey, are only private memorials, generally on his lease. For it would be Maps are sometimes admissible as public the interest of the lessee, as well as of documentary evidence, or in the nature the lessor to have the parcels stated as of admissions by parties, who are privies amply as possible; and where the rights to the makers, or upon the ground of are often so intermingled as those of rec- their relating to matters of public interest, tor and vicar, the leases of the rectory (3) 3 Doug. 5 T. R. 413, n. supra, may often, in general terms, include vi- p. 287. carial tithes, without any imputation of (1) 1 Campb. 311. fraud, especially where common forms (2) There appears to be a material and precedents are often followed, as in They are, however, not admissible to contradict his ofEcial return even after his death. Where a deputy surveyor had made a survey for the proprietors, the declarations of the surveyor were rejected although he had deceased, and his otiicial papers were destroyed by fire; and although the warrant of acceptance recited that the survey had been made by such proprietors. 3 Binn. 175. The court also rejected the de- clarations of the surveyor general as to the return of a survey. 2 Yeates R. 87. The authority under which surveys are made is generally to be found in the books of the land office, or at least some entry thereof. Where diligent search has been made, and no official copy of such paper or entry can be procured, after proving that such paper did once exist, an unofficial copy will be received in evidence ; and where there is no copy, the contents of the warrant, order, or written direction may be shewn by parol testimony. I'er Yeates, J., G Binn. 180. Where the given distances are exceeded in a grant of land by the Common- wealth, which is described by courses and distances, without referring to monu- ments, evidence may be received of long occupation under it to prove the bounda- ries. 9 Pick. 520, and cases cited. 33 258 Hearsay Evidence. [Ch. 14. But where unexceptionable evidence, of enjoyment rcforri- ble to the document, may reasonably be expected to be found; it is required to be shewn. (3) And proof of acting with re- spect to the documents, which are produced as evidence of acts of ownership, is always scrupulously required, even in [ *290 ] cases where traditionary ^evidence is receivable, if the docu- ments purport to have been made post litem inotam. Thus, upon a question concerning the right of the corporation of Cambridge to receive toll, an award, whereby the freemen of Northampton Avere discharged of toll at Cambridge, in con- sideration of an annual payment by the corporation of North- ampton to the corporation of Cambridge, was considered as inadmissible in evidence, on the ground that payment of the composition had not been proved. (1) But where it cannot be expected, that proof of acting with reference to the documents should be afforded, it is required that some acts in modern times with reference to similar doc- uments, should be proved, or that modern possession or user should be corroborative of the ancient documents. In the case of Clarkson y. Woodhouse (2) before mentioned, other evidence of title was given besides the leases. And in Rog~ crs V. Allc?i, above stated, (3) Heath, J., observed, that to give any weight to the licenses produced in that case, it must be shown that, in later times, payments had been made under Proof of modern en jo^ment. leases of crown rectories. In tithe suits, however, ancient leases of rectories have frequently been admitted as evidence of the parcels, merely upon proof, of rent being received, appearing by the minis- ter's accounts. Collins v. Gresley, by Park, J., Derby Sum. Ass. 1833. Per Lyndhurst, C. B., on motion for a new trial. (3) In Alcock v. Cook, tried before Tinda!, C. J., at Guildhall, it was sought to prove a particular district parcel of a certain manor, and evidence was given fram the rates of certain persons within that district having been tined and pre- sented. But the Chief Justice rejected the evidence, because it Was not proved by the steward's entry, that the fines had been paid. In Plaxton v. Dare, 10 Barn. & Cress. 19, where, in order to prove parochiality, certain rates were given in evidence. Lord Tenterden ob- served, " assuming that it was necessa- ry to prove payment of the rates, there was evidence of such payment." In the case of private leases, evidence of the receipt of rent, shewn by the entries of the lessor, appears to be excluded by the case of Ootram v. Morewood, 5 T. R. 121. And it would seem, that entries of payments by a corporation in their own books, are equally excluded, Mar- riage V. Lawrence, 3 B. & A. 142; en- tries that certain persons had been fined, and had paid their fines. On the first trial of the Cambridge toll case, an an- cient schedule, produced from among the muniments of the Corporation of Cambridge, was held to be inadmissible, because it was not properly connected w'nh the actual collection of the tolls. This defect was supplied upon the second trial. Brett v. Beales, 1 M. & M. 419. (1) Brett V. Beales, 1 M. & M. 418. On the production of the corporation books, it appeared that the treasurer of the corporation had not charged himself with the receipt of the money, but had only returned it in arrear. On a previous trial of the same case, an award was re- jected, because it had not been acted on. 1 M. & M. p. 416. (2) Vide supra, p. 288. (3) Vide supra, p. 289, payment of rent under leases for the last forty years was proved in this case. And see as to the point that entries in ancient corpora- tion books are not generally evidence against strangers, Atty. Gen. v. Corpo- ration of Warwick, 4 Russ. 222. Lan- cum V. Lovell, 6 C. & P. 441. Mar- riage V. Lawrence, S B. & A. 142. Hill Ch. 14.] Ancient Possession. 259 licenses of the same kind, or that the lords of the manor had exercised other acts of ownership over the fishery, which had been acquiesced in. Another quahfication, to which the admissibility of this species of e\ridence is subject, relates to the custody of the documents. But this will be more properly considered in the part of the Work, which relates to the proof of written in- struments. (4) *CHAPTER XV. [ *291 j OF DYING DECLARATIONS. The rule which excludes hearsay evidence has been relax- ed, in certain cases, where the information has been given by a deceased person under the immediate apprehension of death. It seems formerly to have been considered, that such evidence was admissible on the ground, that the circumstances, under which the information was imparted, were a guarantee of its truth, sufficient to make it safe for juries to derive their con- clusions from such a source. It is obvious that this principle would apply, though perhaps with unequal force, whatever were the subject matter of the declaration ; but according to later authorities, it is now established, that dying declarations are receivable only upon some particular subjects of inquiry. The admissibility therefore, of the evidence depends, in some measure, on grounds similar to those which have been already considered ; and, in some degree, on the peculiar solemnity attending the communications. In a recent case in the Court of Exchequer, which has been in civil ca- before noticed, (1) and in which it was held that evidence ^^^•^'^i could not be given of the declarations of a subscribing witness to a deed, tending to show that he had forged or fraudulently V. Manchester W. W. 5 B. & Ad. S75. (4) Post, part 2. Clarkson v. Wood- And see as to persons manufacturing ev- house, 5 T. R. 412, n. 3 Doug. 189. idence in their own favor, II. r. Deben- (1) Vide supra, p. 22. Stobart v. ham, 2 B. & Ad. 186. Glynn v. Bank Dryden, 1 M. & Wei. 615. of England, 2 Ves. 43. (a) In Wilson v. Boerem, 15 J. R. 286, it was held, that the dying declara- rations of one competent to testify cannot be admitted in a civil action. Mr. J. Thompson in speaking for the Court says : — " That the question is still open with us, appears from the case of .lackson v. Vredenbergh, 1 J. R. 163, where it is said, that it will be unnecessary to determine whether, under any and what circum- stances, the declarations of a competent witness, in articulo mortis, can be intro- duced as legal evidence in a civil cause." After citing 2 J. R. 35, he adds — " la Capron ?■. .Austin, 7 J. R. 96, it is said, that the law requires the sanctity of an oath to all parol testimony. It never gives credit to the bare assertion of any one, however high his rank, or pure his morals ; and it is fairly to be inferred from this case, tliat the court meant to say, that declarations in extremis were inadmissiblo evideace, except in the simple case of homicide." 260 Hearsay Evidence. [Ch. 15. altered the deed, the authorities for admitting dying declara- tions were much considered. These authorities are two only in number, and although they had been spoken of by Judges occasionally with approbation, they do not appear to be sup- ported by the deliberate judgment of any Court. Upon a re- view of the circumstances and grounds of those decisions, as pointed out in the judgment of the Court of Exchequer, and f *292 1 having regard to the manner in which their *authority is im- pugned by that judgment, it may be considered at least very doubtful whether dying declarations would at the present day be receivable in any civil case. Upon what Previously to this case, it had been the leaning of the Courts «u jecis. -^ j^^g times, to pay regard to the subject matter of dying jv cases, declarations, and to conline the admissibility of dying declar- ations to the narrowest principles, upon which the two author- ities, referred to, could be rested. In one of these cases the declaration of a subscribing witness to a bond, who in his dy- ing moments begged pardon of Heaven for having been con- cerned in forging the bond, was admitted by Mr. Justice Heath (1) as evidence of the forgery, on the authority of Wright on the demise of Clymer v. Littler, (2) where simi- lar evidence of a dying confession by a subscribing witness to a will had been received by Chief Justice Willes, and after- wards approved of by the Court of King's Bench. But in an action of ejectment, it was determined that the dying decla- rations of a person as to the relationship between the lessor of the plaintiff and the person last seized of the premises in question, (the deceased not being a relation of the parties,) could not be received in evidence. (3) [ *293 1 *^I^'- Ji^stice Heath is said to have admitted the evidence in (1) Cited by Lord Ellenborough, in John Brown v. the Widow of Aveson v. Lord Kinnaird, 6 East, 195. James Lord Say. (2) 3 Burr. 1244, 1 W. Black, 346, Calendars of Proceedings in Chancery, S. C, See 4 Barn. & Aid. 54. Tiie vol. 1, p. 47, state of mind of tiie deceased as to his Bill to set aside a release of lands hopes of recovery was not much inquir- made by duress of imprisonment to ed into; the declaration was made three the Lord Say, who, just before he weeks before his death. was put to death by Jack Cade, (3) Doe d. Sutton v. Ridgway, 4 confessed the wrong he had done Barn. & Aid. 53. In tlie reign of Hen- the plaintiff, and desired his con- ry VL the dying declaration of Lord Saj fessor to urge his wife to make res- before being put to death by Jack Cade, titulion. that he had obtained a release of certain And aftward the same lord Say lands by duress, and stating his desire knowyng hymself to be putte to to his confessor that he should urge his deth by that horrible and crewell wife to make restitution to the party tretour Jakke Cade opunly knowl- ■vvronged, was afterwards made the echid among other extorcions this foundation of a suit in Chancery against matter : requiring and charchying a the widow for the purpose of setting chapeleyn called Thomas Oldhall aside the release. The bill is printed in thenne beyng his confessour that he the Calendar of Chancery Proceedings, shuld do his feithfull labour to his published by the Record Conamission, wife of the said lord Say that your vol, L p. 47. said besecher spaly myght have re- Ch. 15.] Dying Declarations. 261 the first mentioned of the above cases on the ground that " if the subscribing witness could have been produced on the trial to prove his hand-writing to the bond, he might have been cross-examined as to the fact ; so his declaration as to the fact might also be proved in contradiction to a presumption of the due execution of the bond from the proof of his hand- writing as a subscribing witness." (1) And Lord Mansfield, in Clijmer v. Littler, observed, that the fact came out of the defendants' own examination, to dis- credit their own evidence, arising from the proof of the de- ceased's handwriting, and that they made no objection to it at the trial. But that even though it had been upon the ex- amination by the plaintiff (especially as the instrument was all written and witnessed by him, and it gave the premises in question to his wife ), as the account was a confession of great iniquity, and as he could be under no temptation to say it, but to do justice and ease his conscience, the evidence was proper to he left to the jury. Abbott, C. J.; in commenting upon these two decisions, observed, that the declarations amounted to a confession by the party himself of a very hein- ous offence which he had committed, and drew a distinction between it and the case before him, {Rex v. Mead) when the dying declaration of the prosecutor was for the purpose, not of accusing, but of clearing himself. (2) And Mr. Justice Bayley in commenting *npon the same decisions, observed, [ *294 J " that the admissibility of the evidence in those cases seemed to be founded on the circumstance, that the deceased must have been called as a witness if he had been alive, and it would then have been competent to prove, by cross-examina- tion, his declarations ; and that the party ought not, by the death of the witness, to be deprived of obtaining the advan- tage of such evidence." (1) stitucion and reformacion of the (1) 6 East, 195. said wrongis and oppressions in this (2) 2 Barn.& Cress. 607. In a criminal matter to hym done. case, where the declaration related to the declarant's own death, it has been There is another instance in the same received, though its tendency was to ex- reign of a dying declaration forming the culpaie the deceased from a crime, ground of an application to Chancery for Tinkler's case, 1 East's P. C. 356. For- the restitution of plale, ibid, p. ,50. It merly the dying declaration of a pauper is worthy of remark, that by the Statu- respecting his settlement (though a ques- tum Wallise, 12 Ed. 1, it is expressed to tion involving law as well as fact) waa be part of the duty of the coroner to held admissible by the King's IJench, come to see not only one slain by felony, but at that period general declarations or by accident, but also a person severe- as to this fact seem to have been allow- ly wounded, whose life was despaired of, ed. Ilex ». Bury, Cald. 486. Appo- and to cause a jury to be summoned on tun v. Danswell, 2 liott. 80. The rule both those occasions. Mr. Barrington is now established that such declarations observes, that the attendance of the jury are inadmissible. Rex v. Ferry Frystone, in the latter case was to ■prevent the dy- 2 East, 54. Rex r. Chadderton, ib, 27. jng words of the wounded person from Rex v. Abergwilly, ib. 63, being evidence. Observations on tlic (1) In Doo «. Ridgway, 1 Ram. & Statutes, p. 169. Aid. 55, and see per Bayley, B., in 262 Hearsay Evidence. [Chap. \5, !ib>cS"'' ^^ ^^^^ years, the Courts have shown a disposition to re- Criininai ^^rict the admissibiHty of dying declarations even in criminal cases. cases ; and a principle appears to have been gradually estab- lished, which is apparently founded on the necessity of resort- ing to this species of evidence, where the injury inflicted on a party occasions his death ; it being commonly found, that in such cases there is little other available evidence to be discov- ered. A rule has been accordingly laid down, that dying de- clarations are admissible only where the death of the person, who made the declaration, is the subject of the charge, and where the circumstances of the death are the subject of the dying declaration. (2) It may be observed that, independent- ly of the solemnity of the occasion upon which the communi- cation is made, the subject, in such cases, is one upon which the declarant has peculiar means of knowledge, and the de- claration in many instances is similar in it's nature to those verbal statements which are admissible as original evi- dence. (3) [ *295 J *Where a prosecution was for administering drugs to a wo- man pregnant but not quick with child, with intent to pro- cure abortion, her dying declarations were held inadmissi- ble. (1) So in trials for robbery the dying declarations of the party robbed have been rejected. (2) And in an indictment for perjury, it was held that the dying declarations of the pros- ecutor could not be used, in showing cause against a motion for a new trial, nor could they have been received in evidence b! ^^ ^^^® ^''^^^" (^^ to' prisoner. It would Seem that the declaration of a deceased, in favour of a party charged with his death, are admissible equally as where they operate against him. (4) But it would appear, from the authorities, that it was not so much the subject of the declaration as the peculiar solem- Chambers v. Bernasconi, 1 Cr. & J. er, has only been settled of late years. 457. In Drummond's case, 1 Leach, 378, (2) By Lord Tenterden, in Rex v. the prisoner was charged with robbery. Mead, 2 Barn. & Cress. 607. If a par- and it does not seem to have been ty accused himself by his dying declara- thought that the declaration was inad- tion that declaration would, perhaps, be missible on tiiis account, as it formed no evidence in criminal or even civil pro- part of the ground of rejection; the de- ceedings. See per Lord Tenterden, ib. claration, however, of the convict, went Bayley, J., remarks, that in Tinkler's to accuse himself, vide supra, p. 294, case, infra, p. 296, the dying declara- n. 2. In Scotland, on a charge of abduc- tions were those of the party who had tion, the dying declaration of the woman received poison. 4 Barn & Aid. 55. as to the otrender, was admitted both (3) See R. J). Foster, 6 C. & P. 325. on his trial and afterwards on that of (1) By Bayley, J., Rex v. Hutchin- his accomplice. Hume's Commenta- son, 2 Barn & Cress. 608, n. (a.) ries, vol. 2, p. 228, et seq. extracts (2) By Bayley J., on the Northern from which are given in 16 Howell's Spring Circuit, 1822. By Best, C. J., St. Tr. 27, n. on the Midland Spring Circuit, 1822, (3) Rex v. Mead, 2 Barn & Cress. and by Bolland B., Rex v. Lloyd, 4 605. Carr. & Payne, 333. The rule howev- (4) Rex v. Scaife, 1 M. & Ro.551. CIi. 15.] Dying Declarations. 263 nity under which it was delivered, that, originally at least, occasioned the relaxation of the rule which excludes hearsay. Such declarations, says Lord Chief Justice Evre, are made in Absenre of extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to false- hood is silenced, and the mind is induced hy the most power- ful considerations to speak the truth ; a situation so solemn, J^fi^"fj'",f and so awful, lie observed, is considered by the law as creat- ing an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. (5) ^Although it appear that the deceased contemplated the J^'ea of fu- prospect of inevitable and almost immediate death, yet if it r *296 l also appear that he had not an idea of a future state, his de- clarations will be inadmissible ; for a principal ground of the admissibility of such evidence is the supposed deep impression of having shortly to render up an account to his Maker. (1) Accordingly the dying declaration of a child, aged four years, was rejected, because it was considered that however preco- cious her mind, she could not possibly have any idea of a fu- ture state. (2) Upon the same principle, it would seem to be sense o^"fu. allowable to show, that the deceased was not ot a character lure stale, likely to be impressed by a religious sense of approaching death. Upon the ground that dying declarations are said to be re- Equivalent ceivable, because from the circumstances under which they lesiiniolfv. are delivered they are equivalent to the evidence of a living Auaimed witness upon oath, the dying declarations of an attainted con- "^"^ " vict have been rejected, as he could not have been admitted to give evidence, if he had been living. (3) But as the evidence of an accomplice is admissible against Accom- a person indicted for the crime in which he has participated, ^ "^*^' the dying declaration of a person, who may have been farti- ceps criminis in an act which occasioned her own death, were received in evidence, upon an indictment for the murder of herself against a person as principal, and also as accessary be- fore the fact. (4) (5) In Woodcock's case, 1 Leacli, Vide infra, chap. iv. Disqualijica- 502, and the Court in Drummond's case, Hon from Infamy. And yet a par- 1 Leach, 337, say, that " the principle don will render the convict a competent on which this species of evidence is re- witness, even in those cases where con- ceived is, that the mind, impressed with viction disqualities a man from being a the awful idea of approaching dissolu- witness. tion, acts under a sanction equally pow- (4) Tinkler's case, 1 East's P. C. erful with that which it is presumed to 354. The death of the deceased was oc- feel by a solemn appeal to God upon casioned by instruments inserted into oath." her womb in order to procure abortion. (1) Per Park, J., in Rex v. Pike, 3 There was a difference of opinion among Carr. & P. 598. the judges as to the point whether the (2) Rex V. Pike, 3 Carr. & P. 598, declarations required confirmation ; as by Park, J., and Parke, J. to which, note infra, chap. iv. Evi- (3) Drummond's case, I Leach, 337. dence of Accomplices. Nares, J., at the 264 Hearsay Evidence. [Ch. 15. [ *297 ] *Tlie preliminary inquiry, to be made before dying decla- rations can be received in evidence, is '' whether the deceased apprehended, that he was in such a state of mortality as would inevitably oblige him soon to answer before his Maker for the Apparciit truth or falsehood of his assertions." (1) In arrivino; atacon- couditiori of . , • • • , 1 • -1 -1 i> 1 deceased, clusiou upou this luquny as to the admissibility ot tlie pro- ])osed evidence, it is not necessary that the deceased should have explained by any expressions, whether he thought him- self likely to live or die. In Woodcock^s case, it was deemed sufficient to give credit to the declarations, that the deceased had been mortally wounded, and was in a condition which rendered almost immediate death inevitable ; and that she was thought by every person about her to be dying. For it was considered a proper inference from such circumstances, that she must have felt the hand of death, and must have consider- ed herself as a dying woman. (2) The same doctrine was held in Johii's case, (3) the Court being of opinion, that if it was reasonably to be inferred from the wound or state of ill- ness of a dying person, that he was sensible of his danger, his declaration would be good evidence. And in Rex v. Bon- ner^ (4) Patteson, J., says, that it is not necessary to prove ex- pressions of apprehension of immediate danger. [ *29S ] *In the case of Rex v. Spilsbunj and others, (1) it was proposed to give in evidence the dying declaration of a de- ceased person, and it was proved that, about the time of mak- ing the declaration, the deceased was asked, if he thought he should recover, and how he was ; to which he answered, that he thought he should not recover, as he was so very ill. He had been previously insensible, but remained sensible trial thought that the objection of the de- not to have been very strictly pursued ceased hemg^. particeps criminis did not in the earlier criminal trials. See Lord hold as to the count, in which the priso- Pen)broke's case, 6 Howell, 1325. ner was charged as principal, and ex- Lord Mohun's case, 12 Howell, 967. pressed himself with some doubt ps to Bambridge's case, 14 Howell, 417. 12 its validity, as it related to the proof of Vin. Abr. the count, in which the prisoner was (2) Ibid, The deceased died in for- charged as accessary. The prisoner ty-eight hours after making a formal was convicted upon that count. But declaration to a magistrate; but she re- the .Judges overruled the objection as to peated the substance of it till the time the prisoner being particepf, criminis of her death. And the surgeons, from on the ground stated in the text. la the first moment of their being called fact, the question, whether the prisoner in, thought il impossible that she could was principal or accessary, chiefly de- live. She, however, retained her sea- pended on the declarations, and the ten- ses till the last tnoment. dency of the declarations was to excul- (3) 1 East's P. C. 357. In this case, pate the deceased from any criminal however, the majority of the Judges participation. In the early state trials, thought, there was no foundation for it was very common to give in evidence supposing, that the deceased considered the confessions of convicted traitors herself in any danger. See also Ding- against a prisoner. See Foster's Crown ler's case 1 Leach, 504, n.J Law, p. 234. (4) 6 C. & P. 886. (1) Per Eyre, Ch. B., in Woodcock's (1) 7 C. & P. 187. case, 1 Leach, 503. This inquiry seems CIi. 15.] Dying Declarations. 205 for an hour, and died the next day. The evidence was rejected, on the ground that the Judge did not feel fully convinced, that the deceased had no hope of recovering. The learned Judge observed, that people very often use expressions, to the effect that they shall not recover, who have no convic- tion that their death is near approaching ; and that if the de- ceased had felt, that his end was drawing very near, he should have expected him to say something of his affairs or of those who were to have his property, or to give some directions as to his funeral, or that he would have used some other expressions, showing a feeling or conviction, that his death was at hand. This decision must, it is conceived, be considered only with reference to the peculiar circumstances of the individual case ; but it may properly be regarded as an authority to this extent, that in general the conduct of the deceased, and not merely what he says respecting his condition, must be considered, for the purpose of determining whether it is proper to receive his declarations. With respect to the interval of time, which may have elaps- Prospect of ed between the uttering of dying declarations and the mo- d^aiill "'° ment of death, there appears to be no rule founded on this cir- cumstance alone : nor is it consistent with the principle, up- on which dying declarations are received in evidence, (which, as we have seen, depends upon the state of the declarant's mind,) that such declarations should be excluded, if not made within any precise limits of time. It seems, however, that it ought to appear that the deceased believed his dissolution to be impending. And unquestionably the length of time may be a material ^consideration, in forming an inference as to the [ *299 ] state of mind of the deceased with respect to his expectation of death, at the time of making a declaration, especially if the deceased has not expressed his sense of his own situation. In Woodcock's case, (1) Chief Baron Eyre lays stress on the circumstance, that the deceased was in a situation which ren- dered almost immediate death inevitable. And in Rex v. Van Biichell, (2) Hullock, B., rejected a declaration made on the 10th of May, the deceased having died on the 17th of May, and having stated, before making the declaration in question, that he felt satisfied he should never recover. Baron Hullock is reported to have said, that "the principle, on which declarations in articulo viortis are admitted in evidence, is, that they arc under an impression, of almost immediate dissolution. A man may receive an injury, from which h(! may think he shall ultimately never recover, but still that (1) Woodcock's Ciise, 1 Leacli, 502, sion " almost immediate," is used by and vide supra, p. 295. Dosariquet, J , in Rex v. Crockett, 4 (2) 3 Car. & I'. 631. The exprcs- Car. k. P. 514. 34 266 Hearsay Evidence. [Ch. 15. Expressions of deceas- ed. would not be sufficient to dispense with an oath." (3) But in Rex v. Bonner^ (4) dying declarations of a person were received, which were made on a particular day, when the de- ceased thought he might have died, and it was said, that the circumstance of his having lived three days longer, did not alter the state of things on the day when the statement was made. However, upon an inquiry as to the admissibility of a dying declaration, it is necessary to hear all that the deceased has [ *300 ] *said relative to his situation, in order to ascertain whether he had that impression upon his mind, which will make his dec- larations admissible in evidence. (1) In Rex v. Crockett, (2) notwithstanding a surgeon told the deceased that there was no chance of her recovery, yet as she said, that she hoped the surgeon would do what he could for her for the sake of her family, the Judge rejected the declarations of the deceased, saying, that her expressions showed a degree of hope in her mind. In Rex v. Fagetit, (3) it appeared that the deceased had expressed an opinion that she should not recover, and af- ter that she made a declaration, but subsequently on the same day, she asked her nephew if he thought she would " rise again." And it was considered that the declaration was not receivable, because the subsequent question showed, that she entertained hopes of recovery. Representations made to the deceased, are often of impor- tance, in inquiring as to the opinions he entertained of his own danger. Upon the trial of Henry Welborn for the mur- der of Elizabeth Page, by inducing her to take poison, the dec- laration of the deceased was made to an apothecary within an hour of her death, in consequence of the apothecary telling her, that he must know what she had done, and that she would not live twenty-four hours unless proper relief was afforded. The majority of the Judges were of opinion that the declara- tion was inadmissible, because the deceased was given to im- Represen- tations to deceased. Rex V. Wdborn. (3) In this case the surgeon at the tiitie the deceased expressed his belief that he should never recover, did not himself think that there was danger of death, and endeavoured to encourage the deceased. In Woodcock's case, 1 Leach, 503, the deceased died in forty- eight hours after making the declaration before the magistrate which was receiv- ed iu evidence. In Clymer v. Littler, 3 Burr. 1247, the declaration was in the last illness of the deceased, but three weeks before his death. In Tinckler's case, 1 Leach, 354, some of the dec- larations were made on the 12th of Ju- ly, and the deceased lingered till the 23d, and at one time during t^s period the deceased thought herself better. In IMosley's case, IMoody's Cr. C. 97, de- clarations were received in evidence which had been made eleven days be- fore the death of the deceased. (4) 6 C. & P. 386. (1) Per Hullock, B., 3 Car. & P. 631. And see the expressions used in Tink- ler's case, 1 East's P. C. 354. And Rex V. Mosley, 1 R. & M. C, C. 97. (2) 4 Carr. & P. 544. The cir- cumstance of a deceased having sent for more medicine after making a declara- tion, may be considered material, with reference to the enquiry concerning his hopes and apprehensions. (3) 7 C. & P. 238. C'h. 15.] Dying Declarations. 2G7 derstand, that if she told what was the matter with her, she ^"■.^■. might have rehef, and recover. (4) So in *the case of Rex v. r *3oi 1 Christie, where the deceased asked his surgeon, if the wound was necessarily" mortal, and was told in answer, that persons had recovered under like circumstances, but that the case was one of extreme danger : a statement made immediately after this conversation was rejected by Chief Justice Abbott and Parke, J., on the ground, that the language of the sur- geon was calculated to keep up in the mind of the deceased some expectation of recovery. (1) In the case of Rex v. Mosley and another, the deceased re- ^j^^i^' ceivcd the injury, of which he died, on the evening of the 30th of September, and died on the evening of the ]Oth of October following. On the first evening, and every day un- til his death, he complained to the nurse who attended him, that he should never get better. But during his illness he never expressed any opinion either of hope or apprehension to his surgeon. The surgeon informed him that his case was hopeless for the first time, on the morning of the 10th of Octo- ber. The surgeon did not himself consider the case quite hope- less till that day, and had always previously told the deceased, that there was danger, but that there were hopes of his being better. The Judges were unanimously of opinion, that the declarations of the deceased made by him after he was brought home the first evening, after he had said that he should not get better, and also at different times during his illness, and previous to the surgeon's communication to him of his hope- less state, were properly received in evidence. (2) It is to be observed, that this is distinguishable from the two preceding cases, on the ground, that there was positive evidence that the conviction of the deceased, as to his own impending death had not been altered by the representations of the surgeon. *In the case of Rex v. Haywaj^d, (1) after a surgeon had [ *302 ] examined the wound of the deceased, the deceased inquired whether he was in danger ; to Vv^hich the surgeon answered, that he was, and that the only chance of his living was keop- (4) 1 East's P. C. 358. The .Judges CI) See a brief report of this point in thought the apothecary's examination of 2 Russei on Crimes, p. fi85. no importance wherein he stated, that (2) Mosley's case, IMoody's C. C. 97, at tht! time the declaration was made, vide ib. the particulars of the exarnina- he believed that the deceased thought tions which run to a considerable length, she was getting well, from being so free vide supra, p 300. Rex v. Croclielt, from pain, in consequence of rnortifica- where the deceased appeared to have tion; this being, it was said "mere entertained liopes, notwithstanding the opinion, unwarranted by fact." It may surgeon's representations. The surgeon's be observed, that although the e.xpecta- own opinion does not appear of much tion of an actual recovery was unwar- consequence in such cases, vide supra, ranted by fact, yet that the opinion of Welborne's case, p. :iOO, n. (4) the apothecary as to the deceased's (1 ) 6 C. & P. IGO. state of mind, was probably well found- ed. 268 Hearsay Evidence. [Ch. 15, ing himself quiet ; upon which it was contended, that the de- clarations, made by the deceased, were not made at a time Avhcn every hope in this world was gone, and when the par- ty was aware, that he must inevitably answer soon for the truth or falsehood of his statement ; but that, upon the sur- geon's statement, he must be taken to have had some hope of recovery. On this the Lord Chief Justice observed, that any hope of recovery, however slight, existing in the mind of the deceased at the time of making the declarations, would un- doubtedly render the proof of such declarations, inadmissible. But upon the further examination of the surgeon, it appeared that, before the declarations were made on the following even- ing, the deceased knew that he must die, and that the magis- trate, previous to the receiving of his declarations, desired him as a dying man, to tell the truth ; and that the deceased re- plied, he would. Upon this further evidence the declarations of the deceased were held to be admissible, and were laid be- fore the jury. Manner of With regard to tlic manner, in which a dying declaration ciarations. Hiay bccouie the subject of legal evidence, it may be observ- ed, that in Woodcock^ s case, (2) an examination taken on oath by a magistrate, and signed by the deceased and by the mag- istrate, was received in evidence as of the same effect, in point of admissibility, with her declarations not made with the same solemnity. It is no objection in point of law to a dying declaration, that it was made in answer to questions. (3) Dying declarations have been admitted in evidence although *it appeared that the deceased made a subsequent statement Deciara- wliicli had been taken in writing before a magistrate, but edio writ-' which written examination was not ready to be produced at »ng- ^ the trial. This point was much discussed on the trial of I '^Oo J Hcason and Trantor^ under the following circumstances. (1) The deceased stated the particulars of the inquiry, which oc- casioned his death, at three several times in the course of the same day, with an interval of about an hour between each ; the first and last account had not been written, the second was reduced into writing in the presence of a magistrate by the same person, to whom the former account had been given ; this written statement Avas retained by the magistrate, but as he had removed to a distant part of the country, and it was not known to what place, the original was not produced, and (2) 1 Leach, 500. from Rex v. Reason and Trantor, 1 Sir. (3) Rex V. Fagent, 7 C. & P. 238. 499. But such solicitations must natu- It apneais from the case of Rex v. rally weaken the etl'ect of the evidence. Woodcock, tiiat the declaration may be (1) 6 St. Tr. 202, 205, S. C. 16 admissible, though obtained by pressing, Howell, St. Tr. 31. 1 Stra. 499, S. 0. and by questions. The same appears Ch. 15.] Dying Declarations. 269 an examined copy was rejected. An argument then ensued with respect to the admissibihty of the first and third state- ments of the deceased. The Chief Justice, Sir John Pratt, was of opinion, that evidence of the first and third statements ought not to be received, considering all of them as state- ments to the same effect and forming one entire narration, of which the written examination was the best proof. Bat the other Judges, (2) were of a difterent opinion ; they held that the three accounts given by the deceased were distinct facts, and that there was no reason to exclude the evidence as to the first and third declarations, because the prosecutor was disa- bled from giving an account of the second. The Avitness was therefore directed to repeat his evidence, leaving the ex- amination before the Justices *out of the case ; and the first [ *304 ] as well as the third statement was admitted. When the declaration has been taken down in writing and signed by the deceased ; it has been held, that neither a copy of the writing nor parol evidence of it can be received. (1) The statement made by the deceased must be such as ^"p^,^fo',°° would be receivable, if he were alive and could be examined as a witness ; any declaration therefore upon matters of opin- ion, as distinguished from facts, would not be receivable. (2) It has been laid down, that when a declaration has been ,^.^™dec|a'. made by a party in articulo mortis, the question, Avhether, un- rations, der all the circumstances of the case, the declaration is ad- ^"faw!" missible in evidence, is a question exclusively for the consider- ation of the Court. (3) The question whether any particular piece of evidence be admissible is upon principle always to be determined by the Judge. But in the case under consideration, that question depends on a difficult preliminary investigation of fact, much more within the ordinary province of juries (2) 1 Stra. 500. The reporter was (1) Rex. v. Gay, 7 C. & P. 230, ai>d one of the counsel for the prosecution, see Trowter's case, 12 Vin. Ab. 118, From the report in the state trials it East's P. C. The correctness of these would appear that the Chief Justice and decisions will be belter examined after Mr. Justice Powis were against receiving a consideration of the authorities in the the evidence, and Mr. Justice Eyre and chapter upon Secondary Evidence, to Mr. Justice Fortescue for receiving it. which they more properly belong. The evidence, however, according to (2) Rex. v. Sellers, Carr. Cr. L. 233. that report was at last received. At the (3) By Lord Elienborough, in Rex v. time of this trial it does not appear to Ilucks, 1 Stark. C. 523. Lord Ellen- have been settled that an examination borough said, that this point had been by .lustices of the Peace in liie absence considered by the judges, on a question of the prisoner was extra-judicial, see proposed to them by the judges of Ire- Woodcock's case, 1 Leach, 502. Asa land; and such was their unanimous consequence of the examination being opinion, liy all the judges in John's case, extra-judicial, it would follow that it 1 East's P. C. 357, and in VVclborn's would not be admissible itself in evidence case, 1 East's P. C. 36(). And see Rex at least unless it were signed by the de- v. Van liutchell, 3 Carr. & P. 631. ceased. Whether the written examina- Rex u. Crocket, 4 Carr. & P. 544, and tion, if signed by the deceased, would all the more modern cases, have precluded [larol evidence, vide in- fra, p. 304. 270 Hearsay Evidence. [Ch. 15. than of Judges ; and where the evidence is admitted, it is scarcely to be expected, that juries will pay implicit obe- dience to the decision of the Judge, founded as it is on a con- clusion of fact, a subject upon which the constitution regards them as peculiarly competent to form a right opinion. (4) H^ii^\"ec- *With respect to the eflect of dying declarations, it is to be laratfons. obscrved, that although there may have been an utter aban- [ *305 ] donment of all hope of recovery, it will often happen, the particulars of the violence, to which the deceased has spoken, were likely to have occurred under circumstances of confu- sion and surprise calculated to prevent their being accurately observed. The consequences also of the violence may occa- sion an injury to the mind, and an indistinctness of memory as to the particular transaction. The deceased may have stated his inferences from facts, concerning which he may have drawn a wrong conclusion, or he may have omitted im- portant particulars, from not having his attention called to them. Such evidence therefore is liable to be very incom- plete. He may naturally also be disposed to give a partial account of the occurrence, although possibly not influenced by animosity or ill-will. But, it cannot be concealed, ani- mosity and resentment are not unlikely to be felt in such a situation. The passion of anger once excited, may not have been entirely extinguished, even when all hope of life is lost. (1) If these observations are founded upon the common experience of human nature, it is necessary to be cautious in receiving impressions from accounts given by persons in a dy- r *306 1 ing state ; especially when it is considered *that they cannot (4) The matter has been spoken of as red. Second, Whether the deceased an extremely painful one for the Judge did make the declarations alleged against to decide upon ; per Coleridge, J., in 7 the accused. Third, Whether the de- C. Si. P. 190. The question was left to clarations are to be admitted as sincere the jury by Chief Baron Eyre, in Wood- and accurate. It may be observed, that cock's case, 1 Leach, 502. But the the first of these inquiries is, abstractedly Judge so far decided the point of adinis- considered, peculiaily proper for a jury; sibility, as to receive the evidence, di- but that it would be dangerous to leave recting the jury to reject it if they came to juries the consideration of the two lat- to a particular conclusion respecting cer- ter inquiries, upon a contingency to tain facts. It may be observed, howev- which it is probable that they would, in er, that the general competency and dis- many instances, pay no regard. It may position of juries to discard any piece of be observed, that this is not the only in- evidence from their minds which has been stance where it is the province of the once brought before them, may be ques- Judge to decide complicated questions of tioned. tiir D. Evans, 2 Pothier, 293, fact, as preliminary to the adtnission of contends for the propriety of leaving the evidence. It is said in 1 Tyrw. 806, whole question of the admissibility and that the Judge, in such cases, is not to effect of dying declarations to the jury, stop the cause for the purpose of having He says, " that the inquiries connected the preliminary question of fact decided with the evidence of dying declarations, by the jury. The question in that case are first, whether the deceased were re- was one of identity, ally under such circumstances, or used (1) In Rex u. Crockett, 4 C. & P. such expressions from which the ap- 544. The declaration was ♦« that damn- prehension in question is correctly infer- ed man has poisoned tne." CIi. 15. J Dying Declarations. 271 be subjected to the power of cross-examination, — a power, quite as necessary, for securing the truth, as the rehgious ob- hgation of an oath can be. The security also, which courts of justice have in ordinary cases, for enforcing truth, by the terms of punishment and the penalties of perjury, cannot ex- ist in this case. (1) The remark before made, on verbal state- ments, which have been heard and reported by witnesses, apr plies equally to dying declarations, namely, that they are lia- ble to be misunderstood, and misreported, from inattention, from misunderstanding, or from infirmity of memory. In one of the latest cases upon the subject, this species of proof is spoken of as an anomaly, and contrary to all the general rules of evidence, yet as having, where it is received, the greatest weight with juries. (2) (a) (1) Richard Coleman, a. d. 1749, See ]\Ir. Fox's observations in his histo- was executed for the rape and murder of ry of the reign of James II., upon the Anne Green. The conviction proceed- dying declaration of Ruujbold in 16S5, ed on the dying declaration of the pros- that he had not been concerned in any ecutrix. But Coleman's innocence was project for assassinating the King or established two years afterwards, when DuUe of York in the Rye House Plot, another person was executed for the (2) Per Coleridge, J., in Rex «. Spils- same oflence upon the clearest evidence, bury, 7 C. & P. 196. (a) Dying persons' declarations should be confined to cases of great crime, where frequently the party injured is the only witness: — in civil cases they should never be admitted; or, if admitted at all, not to avoid a will regularly executed. Per Livingston, J. 2 J. R. 32. The declarations of a testator are admissible only to explain a latent ambiguity, or to rebut an equity. 3 Rand 90. In Comstock v. Hadlyme, 8 Conn. 255, the declarations of the testatrix were held to be admissible only to sliow the state of her mind. In the case of Vass v. The Commonwealth, 3 Leigh's R. 7S6, Lomax, J. in de- livering the judgment of the court, says: — " To make dying declarations receivable as evidence in any case, it has been laid down, that it must appear that the deceas- ed was conscious of his being in a dying state at the time he made them. Tliis in- quiry into the consciousness of the deceased is collateral to the evidence of the dy- ing declarations themselves, and the judgment to be pronounced upon it depends upon proofs which may be wholly distinct from and unconnected with the declara- tions. The judge who tried the cause was of opinion that the deceased was con- scious of liis approaching death, at the time the questions were put to him and the answers thereto were given, and that he was in his right mind and understood the questions. This Court has no warrant to pronounce that opinion incorrect." He observes again — " If facts be stated, which are obviously designed by the party who stales them, to be connected with other facts, which he is about to disclose, to be qualified by them, so that the narrative should form one entire and complete his- tory of the whole transaction; and before the purposed disclosure is made it be in- terrupted, and the narrative remains unfinished, such partial declaration would not be admissible in evidence." See also Finn's case, 5 Rand. 701. " liut if the declaration states facts distinctly, and as far as the declaration goes, it does not necessarily appear that the facts thus stated were designed to be connect- ed with some other facts, which may be supposed to form a part of the full and complete account of the transaction, it would be going too far to reject altogether the matter thus disclosed, upon any presumption of law, that the narrator was pre- cluded by his situation (he being sound in his mind) from giving a full and complete account of the transaction; or upon any presumption of fact that the court could form, that what was disclosed was only a part of the truth, and not the wliole truth of the case." Per Lomax, J. 3 Leigh, 78(). " If his situation was such as to disable him, from any other cause, independent of the state of his reason, from giving a full and complete account of the transac- 27'2 Hearsay Evidence. [Cli. 16. CHAPTER XVI. DECLARATIONS AND ENTRIES BY DECEASED PERSONS. An exception to tlic rule excluding hearsay evidence has been established in modern times, in the case of declarations and entries made by persons since deceased. This exception applies to a description of facts, the evidence of which, being nsually confined to the knowledge of a few persons, would frequently be lost, if tlie strict rule, which excludes hearsay evidence, were enforced. And it will be seen, that by the qualifications, under which this kind of evidence is admitted, many of the general objections to hearsay evidence are ob- [ *307 ] viated. *This subject will be'conveniently discussed, by con- sidering, first, those declarations and entries, which are re- ceivable on the ground of their operating against the interest of the persons making them, and, secondly, those which are receivable on the ground of their being contemporary entries, in the ordinary course of duty or employment. The two di- visions, however, are intimately connected with each other. Section 1. Declarations and Entries against the Interest of the Persons making them. General It is a rule of evidcuce clearly established, that declarations of persons since deceased (under which term of declarations all written statements and entries are intended to be compre- Iiended,) are admissible, where those persons are to be pre- sumed conusant of the subject matter of the declarations, and where the declarations apparently operate against their own adniissioii°^ interest. (1) It is presumed where declarations are made im- (1) By tlie Master of the Rolls, in that the declarations should be connected Short V. Lee, 2 Jac. & ^V. 464. By with the facts to which tiiey relate, — <\.s Bajley, J., in Roe v. Rohson, 15 East, the possession of land, or some course of 34. By Parke, J. in ftliddieton w. Mel- business, or the performance of some or- ton, 10 Barn, ^c Ciess. 32S. The t/tc/a dinary duty; though these circumstances of the Judges do not seem to require /)«- are generally to be found in the cases. culiar means of knowledge in the de- Nor does it seem requisite, that the de- clarants; nor to point out a necessity, clarations should have been made by per- tion, and from telling the whole truth, not merely a part of the truth, that was a matter for the decision of the jury, and not of the Court." id. The law has no-where defined what shall amount to dying declarations, or the form in which they shall be uttered. It might be unsafe that it should do so. Whether the dying declarations be sucii as to entitle them to be regarded as such to be offered in evidence, must depend upon the temper of ihe deceased when he made them, and upon the circumstances under which they were made. id. The declarations of the deceased before the stroke which occasioned his death, were held iuadmissible. 2 Maryland, 120. Sect. J.j Declai'ations against Interest. 273 der these circumstances, that they are entitled to credit, be- cause the regard which men pay to their own interests, may safely be considered as a sufficient guarantee against their pre- judicing themselves by any erroneous statement, and the as- sumed tendency of the declarations precludes the possibility of any fraudulent statement. Indeed the apprehension of fraud in such cases is in a great measure removed without ref- erence to the *fact of the declarations being against interest, [ *308 ] when it is considered that declarations are not receivable dur- ing the life-time of the authors of them ; and that it is always competent for the party, against whom they are produced, to point out any sinister motive for making them. It is true, the great tests of the fidelity, accuracy, and completeness of judi- cial evidence, are here wanting. But the inconveniences which would result from the extinction of evidence are consid- ered as outweighing, in the generality of cases, the inconveni- ence of admitting such hearsay declarations, luider the limita- tions and securities above mentioned. It will perhaps be thought, in many of the decisions respect- ing the rule under consideration, that the interest of the party was so slight as to produce little, if any effect. And it would seem that the Judges, from an apprehension of extinguishing the truth by rejecting evidence, have, in many instances, been contented with very unsatisfactory presumptions, as to the fact of the party's interest being opposed to his declaration. In some cases, the Courts appear to have considered declar- ations to be admissible, without proof that the party making them had any actually existing interest, which could be les- sened or endangered. (1) Hence, a declaration, accompanied by an admission apparently against interest, would be receiva- ble, although, in point of fact, the author of the declaration did not compromise his interest at all, but only made an ad- mission apparently against interest, and without any real trans- action to which it could relate, in order to render his declara- sons in (he course of any business or cm- th.it the pntry wns proved liy extrinsic ploymerit; and it seems that deRJaralion-i evidence to have heen made against iii- against interest need not be con'.empora- terest. 'I'lius, in llingharii r. ilidiway, neous with the Tacts to which they re- 10 East, 109, ],ord Eiienboruugh ob- late. By Parke, .1., in Doe v. Turford, serves, that the midwife iiad an interest 3 Barn. 8f Ad. 890. By the Masier of not to discharjre a claim, which it «[>- the Rolls, in Short ». Lee, 2 Jac. Sf W. fwars from other evidcnre, he was en- 464, where it was said that it is not ne- titled to. And in Doe v Vowles, 1 Mo. cessary, m the case of collectors' hooks, 4" llob. Litlledale, .1., rejected a irades- to produce the very paper they collected man's receipt apparently on the ground by. 'I'hat the declaration of a living that it did not appear aliunde, that Im person against interest cannot lie rerciv- was entitled to make a fliar;re. In Trea^e ed. Spnif;o v. Brown, 9 B. 4- C. 9;;.j. v. Barrett, J (.'r. I\l. i,- K. 919, it was (1) rfee ihe cases collected in Barker considered necessary to prove a person V. Hay, 2 Russ. ()7, n. In a few cases, in possession of land, before his declara- where the facts adinitt'-r) of it, the .ludg- tion could be used as being agninst th* ea have laid stres.s on tho circumstance, interest of the occupier. 274 Hearsay Evidence. [Ch. 16. tion receivable. In several of the cases decided upon this sub- [ *309 ] ject, *the inference, of the declarations being against interest, appears to have been on the unwarrantable assumption of the existence of real facts as a foundation for the statement ; and the accuracy of the declarations has been inferred from a sup- position, that the persons making an entry must have been particularly cautious in the statement of all it's details, as pre- cluding themselves from afterwards attempting to set up an unrighteous demand. The Courts have in numerous instances been satisfied that declarations were against interest, where they have been made in private books retained within the custody of their owners, and not, as in the case of receiver's accounts, subjected to the inspection of others. (1) In such cases, the declarations could only have been available against interest in the event of acci- dent or mistake, or possibly in case of receiving notice to pro- duce books on a trial. (2) Under such circumstances, a re- gard to self-interest appears to be not a sufficient guarantee against fraud, and a very inadequate one against negligence or mistake. It is to be observed, that, without knowing what proofs ex- isted of a particular fact, it is impossible to estimate properly the value of an admission. A declaration may, on the lace of it, appear to be more adverse in one respect than beneficial in another, yet this may not be really in a case, where the ad- mission apparently adverse is of a matter which was notorious. [ *310 ] *It is, for example, often capable of the strictest proof, that a particular payment has been made ; but the ground of the pay- ment may be matter of controversy, which the party acknowl- edging may have an interest to attribute to one ground rather than to another. Although it is true, that a person is not allowed to avail himself of his own declarations in evidence, and that the ca- ses may be few and peculiar in which they can be available for his representatives ; yet there may be a strong suspicion of bias, at least, when the entries may be made available for par- ties standing in pari jure with the declarant. And where no (1) As in Hingham i>. Ridgwdv, 10 accounted. Nor to the accounts of pub- East, 109, infra., p. .326. In ftliddle- lie olRcers, as ciiurciiwardens, Stead v. Ion t). Melton, 10 Barn. ^ Cress. 328, Heaton, in/ra, p. 327. in/ra, p. 311, the collector collected by (2) In Roe m. Rawlins, 7 East, 290, the book in question, from which it Lord Ellenborough says, "If this paper might have become notorious that he had had ever met the eye, it might have Boch a book; but this circumstance was been used adversely." It may be ob- not noticed by the Court. The remark served on the other hand, that the prob- in the text does not apply to the books ability of a private book meeting the eye, or accounts of receivers and stewards might operate to induce a person to give which are ordinarily submitted for the a colour to the circumstances connected inspection of their employers, according with a receipt, where the receipt could to the interest in which they engage to not be denied, account, and frequently appear to have Sect. 1.] Declaratio7is against Interest. 275 motive of interest can be suggested, yet the declarations may be influenced by feelings equally likely to occasion misrepre- sentation. The circumstance, that the declarations are against a person's own interest, aftbrds a very insufficient guarantee of fidelity and accuracy, unless it clearly appear not only that a particular fact stated in the declaration, but the whole declar- ation, in every view of it, is prejudicial to the interest of the maker ,• and unless it appear, further, that the means will be afforded to others of using the declaration against him, and that others will probably have occasion so to use it. The doctrine concerning declarations against interest ap- pears to have been extended somewhat beyond the reason up- on which it is founded, in those cases where the person mak- ing the declaration could not have promised himself any ad- vantage, either by omitting to make it, or by stating it in a different way. It will appear, in many of the cases, that no sacrifice of interest was incurred by making the declaration, but the prejudice to the maker consisted merely in affording the possible, but very improbable means, of confuting an un- just claim, which it must be supposed highly improbable would ever be set up. It may be observed, that, whether the circumstance, of a declaration being against interest, be a fit criterion or not for it's admissibility, the credit and weight due to such a declaration will materially depend on it's hav- ing been made in the course of business, and under the cir- cumstances which form *the subject of consideration under [ *311 ] the next section of this chapter. It is, however, clearly estab- lished, that declarations of persons, contrary to their interest, at whatever time made, are, after their deaths, receivable in evidence, (i) {a) The occasion, upon which the exception to the rule for Receipt of the exclusion of hearsay testimony, has been most commonly "'°"^^' applied, is where the evidence consists of entries of the re- ceipt of money, whereby the deceased person has charged himself as being accountable for the money received. En- CD In many of the authorities another by living witnesses or other evidence. It qualification is introduced, that the per- is sometimes said that declarations must son, whose declarations are received, not only be against interest, but that the must have had peculiar means of knowl- declarant mu3t have no interest to mis- edge. The rule as expressed in the text represent the fact. But it would seem, supposes them to have had a personal that if upon the whole the declaration interest in the transaction, and it will be was against the interest of the declarant, seen that it is not essential that the sub- it would be receivable, ject of the declaration cannot be proved (a) All the cases in which the declarations of a party, are said to be evidence against him, show that ho had, at the time of making such declarations, an existing interest. 3 Rand. R. 399. The reasonable presumption, is, that no person will make any declarations against his interest, unless it be founded in truth. If the de- clarations, therefore, were made before he had any interest, they are not adniis»w ble. id. 270 Hearsay Evidence. [Ch. 16. Stewards' books. [*312] tries, so made, are evidence of the fact of the receipt of such money. Thus, where an entry was made by a deceased col- lector of taxes, though in a private book kept by him for his own convenience, whereby he charged himself with the re- ceipt of sums of money, the entry was held to be admissible evidence to prove the fact of the receipt of the money in an action between third persons, agreeably to the general rule above stated. (2) *The acknowledgments by deceased stewards, reeves, and bailiffs in their books, of the receipt of money for which they have been accountable, are very frequently adduced in evi- dence by their employers, or those claiming under them, or by strangers. (1 ) [a] (2) IMiddleton v. Melton, 10 Barn. & Cresi. 317, referred to by Bayley, 15., 1 Cr. & J, 456. The action was brought against ifie surety of the collector, on a bond conditioned for the due payment i)f taxes by tlie collector. But tlie Court decided the case on the ground of the general rule in the text, disregarding all reference to the circumstance of any privity between the deceased and the defendant. In Goss v. Watlington, S Barn & Cress. 550. Whitnash v. George 3 Brod. & Bing. 132, the judgments proceeded on the ground, that entries had been made in a book, which it was the duty of the principal to keep, and for the performance of which duty the defendant hud become surely; and the decisions in those cases were founded principally on that circumstance. In .Midleton y. Melton, the entries were in a private book kept for tho collector's own convenience. And the Court, in the latter case, observed, that they thougiit the two former decisions might be supported on the more general prin- ciple. In Middleton f. Melton, the act was incomplete from there being no en- try in the public book, whereas in tlie other cases upon this subject, the entries were all that was intended to be done by the parties making them. But tliia circumstance, it was considered, did not affect the principle, on which the entries were admitted. By Littledale, J., 10 Barn & Cress. 326. The entries of the names of persons and sums assessed in the private book were copied from a du- plicate assessment; and it was the collec- tor's practice to collect by that private book, and to mark with ticks all the sums lie received ; he then entered receipts into the duplicate assessment; but the receipt of the sums, for which the action was brought, though noticed in the private book, had not been entered in the dupli- cate assessment. Tha evidence is not receivable on the ground of it's being an admission, and therefore it would not be evidence, except in the case of the death of the person making the entry. Smith V. Whitiingham, 6 C. & P. 78. Spargo V Brown, 9 B. & C. 935. ( 1 ) See the case of Barry v. Bebbing- ton, 4 T. R. 514, stated infra. Ed- wards V. Rees, 7 C. & P. 340. Man- ning V. Lechmero, 1 Atk. 453. Entries by bailiffs or stewards often acquire ad- ditional credit from the circumstance, that such entries would, in the ordinary course of business, be expected to be kept, and that the fact recorded is in some measure to be presumed from the existence of the entry. And the accounts of stewards seem to be of greater credit than entries in private books, inasmuch as they are usually subjected to inspec- tion, and are the foundation of transac- tions between the steward and his em- ployer. That this is a usual mode of proving payments under old leases and licenses, see 1 Camp. 310, respecting re- (a) See the following cases which uphold the principle that the original entries of a deceased agent when made in the usual course of business, of acts, which his duty in such business, required him to do for others, are admissible in evidence of the acts so done. Nicholls v. Webb, 8 Wheat. 332; Merrill v. Ithaca & Oswego, R. R. Co., 16 Wend. 586; 12 S. & R. 49. And it seems to be considered in some cases that the evidence is admissible, although the clerk who made the entries is not dead, but out of the state. Elms v. Chevis, 2 M'Cord, 349. See 15 Mass. 384; 12 S. & R. 49. But the late case from Wendell expressly decides that ab- genco from the slate is no ground for tho admission of the evidence. Sect. 1.] Declarations against Interest. '277 But it ought clearly to appear, that the effect of the entries was to charge the bailiff or steward. In an action for copy- hold fines, the book of a deceased steward of a manor was tendered in evidence, containing entries of assessments of , fines, as well those which had been paid as those which had not ; and it appeared, that the steward made a book at the end of each year, in which book he put down the fines that had been actually paid. The former book was rejected, on the *ground that it did not appear to contain any evidence that the [ *313 ] steward had charged himself. (1) Accounts of this nature are commonly produced from the muniments of the persons to whom the accounts were render- ed, and when this is the case, they amount to proof, that the person rendering them has actually put it into the power of his employer to use them against him, as evidence of money had and received to the employer's use. This circumstance appears to entitle them to much greater credit than is due to entries in private books, which have never passed into the custody of persons interested to make use of them against the makers of the entries. (2) Such a test of the authenticity and accuracy of the entries is, however, not essential to their being admitted in evidence, as appears by the preceding cases, and others which will be presently cited. As far indeed, as regards the entries to be found in the books of some particu- lar classes of persons, for example, the books of attornies, (3) they may derive some additional weight from the circum- stance, that the parties would be expected to keep books, and to produce them upon notice. (Conformably with this rule, receipts for the payment of Receipt*, money, given to the person making the payment, appear to be admissible, after the death of the receiver of the money, ceipts of tithe collectors. Wynne v. decott, 7 Bing. 434. It would seem Tjrwhit, 4 Barn. & Aid. 376. Manning probable that the steward, by entering V. Lechmere, 1 Atk. 453. By Lord El- an assessment of a fine, without stating lenborough, in Hingham v. Ridgway, 10 it to be paid, prejudiced his interest by East, 116. Harper u. Hrooke, 3 Wood- supplying evidence of an obligation on eson's Lect. 332. Vin. Ab. Ev, A. b. himself to collect the fine. But then the 1.5. Bullen r. Michel, 2 Pr. 413, in entry would merely prove the fact of as- which case the accounts were the ac- sessment, which wouli] not be material, counts of the reeve of an abbey, and unless tl>e fine were paid. in Brett v. Chief .Justice Gibbs observed, that the Beales, 1 M. & M. 418, where the Ireas- chdrgiiig side was against the interest of urer of a corporation had returned money the bailifr. He seems also to have in arrear, the entries were rejected, be- thought, that the discharging side could cause he had not charged himself witii also have been evidence as part of the the receipt of the money, the same account. In Finch t). Messing, (2) The like observations apply to the cited in Short D.Leigh, 2 Jac. & W. cases of the accounts o! public ofiicers, 464, the accounts of a sequestrator were as churchwardens. Stead v. Ilutton, 4 given in evidence, which contained a T. R. 669. charge and discharge. Bree v. Beck, 1 (3) See Warren v. Greenville and Younge's Ex. C'a. 225, 239. Doe v. Doe v. Robson, infra. Rowcroft v. Tyler, 6 Bing. 562. Bassett, Peake's Add. Gases, 199. (1) Dean and Chapter of Ely v. Cal- Gale v. Packington, M'CI. k. Y. 357. 278 Hearsay Evidence. [Chap. 16. to prove the fact of it's having been received, though there ex- ist no privity between the deceased and the party against whom the evidence is tendered. In the case of Middleton v. [ *314 ] *Melton, (1) the Judges of the King's Bench were of this opinion, though the decision in that case was rested upon other grounds. In a previous case, however, of Goss v. Wat- lington, (2) the Court of Common Pleas appear to have been of a different opinion upon this point, under similar circum- stances. In tithe suits, the receipts of collectors of former in- cumbents are considered very strong evidence of the facts they record. (3) Ratebooks. *The occupation of premises by a particular individual at a [ *315 ] certain period has been allowed to be proved by entries in a land-tax-collector's book, stating that individual to have been rated for the premises in question, and to have paid the rates, on the ground, that the entry of payment was made (1) 10 Barn. & Cress. 321. In H.ir- rison v. Blades, 3 Gamp. 45S, Lord El- Icnborough said, that a tax-gatlierer's receipts would be evidence after his death to prove who was the occupier of certain premises. It is said, by Scarlett, arg. in IJarker v. Ray, 2 Russ. 70, that the cqnstijnt practice of Nisi Prius, shews that receipts by persons wlio are dead are not evidence as between third par- ties, that money was paid. And see an argument in Chambers v. Bernasconi, 1 Cr. & J. 456, that receipts of deceased persons are only evidence, where those persons were accountable for what they received. In Harrison v. Blades, 3 Camp. 458, where a tax-gatherer's re- ceipts were rejected, because he was not dead, but only ill ; Lord Ellenborough appears to have entertained no doubt, but that they would have been evidence to prove occupation, after the tax-gath- erer's dealii, see Manning v. Lechniere, 1 A'.k. 453. In Doe v. Vowles, 1 Mo. & Rob. 161, Littledale, J., rejected a deceased tradesman's bill, for repairs, with a receipt thereon; the question be- ing one of adverse possession between mortgagor and mortgagee, and the re- ceipt came from the papers of the mort- gagee. Littledale, J., said that the ca- ses had gone quite far enough. Receipts appear to be much less objectionable tes- timonies than entries in private books, from the circumstance of their having been given to persons interested to pre- serve them as evidence against the mak- ers. (2) 3 Br. & B. 138. This point, however, was not very material in the case in the text, as the Court decided that the collector's books were receiva- ble. The Court appear to have direct- ed their attention solely to the grounds on which the declarations of agents are receivable or not against their principals. This decision as to the receipts was ad- verted to in Middleton v. Mellon, 10 Barn. & Cress. 328, and the propriety of it doubted. (3) These receipts, on account of the want of privity, cannot perhaps bo strict- ly considered as in the nature of admis- sions ; though they are very analagous to some cases, in which jugdments or ad- missions are admissible, on account of a privity of estate, especially as a judg- ment against a rector or vicar would be admissible against his successor, vide infra, part 2. The receipts are made by persons in eodemjure. The principal cases respecting tithe receipts are Lake v. Skinner, Gw. 1931. 3 E. & Y. 976. .Tones v. Carriiigton, 1 Carr. 327, 497. Ekins V. Dormer, 3 Atk. 534. Chap- man V. Smith, 2 Ves. 511, in which two latter cases. Lord Hardvvicke re- marks as to practice of parsons ab- staining from the use of the term modug in their receipts; and the like observa- tions on the language and effect of re- ceipts will be found in Manby r. Lodge, 9Pr. 231. White v. Lisle, 4 Madd. 214. Dutlield v. Orrel, 6 Pr. 324. Deacle v. Hancock, M'Clel. 85. Tay- lor V. Fox, 4 Wood, 322. Chapman v. Smith, 2 E. & Y. 141. On discrepan- cies between early and late receipts, Manby v. Lodge, 9 Pr. 231; receipts of churchwardens for a tributary modus, Atkins u. Drake, 1 M'Clel. & Y. 217. It is said by Baron Wood, in Robinson «. Williamson, 9 Pr. 136, that receipts are stronger evidence than vicar's books, 1 Younge's Ex. Ca. 165. The absence of receipts is not a circumstance of great weight against the existence of a modus, see Wooley v. Brownhill, M'Clel. 335, Sect. l.J Declarations ao'ainst Interest. 279 against the interest of the collector. (1) In Plaxton v. Dare, (2) upon a question whether premises were situate in a particular parish, the accounts of deceased overseers, in which there were crosses made against the names for which the tenants of the premises had been assessed, were held to be evidence of actual payment of the rates. Not only declarations of the receipt of money, but declara- tions of a variety of descriptions, made against interest, have been received in evidence. (3) Thus, upon an issue whether A. B. died possessed of certain farming stock ; it has been held, that evidence might be given of a conversation in which A. B. stated that she had retired from business, and had giv- en up her farming stock to her son-in-law. (4) [a) A bill of Right to property. (1) Doe d. Smith v. Cartwright, R. & M. 62. It would seem from this case, that the rate alone (though of tlie nature of public documentary evidence,) WPS not evidence of occupation; and see Harrison v. Blades, 3 Camp. 458, tax- gatherer's receipts. (2) 10 Barn. & Cress. 19, vide ib., as to the necessity of proving payment in such a case. It was said, that the making of crosses was a common mode of denoting payment. (.3) See tlie cases collected in the note to Barker i-. Ray, 2 Russ. 67. See also the next section for cases respecting in- dorsements of payment of interest upon bonds and notes. (4) Ivatr. Finch, 1 Taunt. 142. On a motion for a new trial, it appeared that the Judge at nisri prius, had reject- ed the evidence, on the ground that the declaration was not accompanied by any act relative to the manageinent of the farm. It would seem that although dec- larations accompanying acts may be ex- planatory of the acts, they do not de- rive additional credit from that circum- stance as to matters totally unconnected with the acts which they accompany, except so far as they may be thought more deliberate. Perhaps the case may in some measure be considered as resting on the doctrine of admissions on account of the privity between the lord of the manor, and his tenant. Chief Justice Mansfield, after stating that the admis- sion was against interest, concludes his judgment by saying, " It ought, arret, 1 Cr. M. & R. the coals, from the person whose book 931. Slight evidence, as of felling tinrj- was produced, ber, has been held sufficient. 3 C. & P. (a) The adnnissions in the recital contained in a deed of one of the lessors, is evi- dence in the cause against all of them; for he could not be called as a witness, and thev have a community of interest. See Jackson v. M'Vey, 18 J. R. 330; Brandt V. Klein, 17 id. 335. The declarations of a possessor of land that his possossion is not adverse to the demandant's title who doe.s not claim under him, are not admissible; being merely hearsay evidence. Allen v. Horton, 20 Pick. 458. 284 Hearsay Evidence. [Cli. 10. Court of King's Bench. It may be observed, even supposing according to the authorities that there was reasonable proba- bihty of the entry being used against the maker, for the pur- pose of proving the payment, still if it could be used by the representative of the maker to prove title to the land, the en- try might, upon the whole, be in favour of the maker's inter- est. (4) r *321 1 *But entries of receipt of rent, made by a deceased execu- tor, who had an interest in land which was claimed, have been held admissible evidence for a person claiming the land under him, where the rent has been received and accounted for by the deceased in his capacity of executor, the entries not having been made by him in his character of landlord. (1) Where certain entries of receipt of money, made by proc- tors, who were members of an ecclesiastical corporation, were adduced in evidence by that corporation, in a suit commenced by them for tithes, it was held that the proctors were interest- ed against the entries, because they charged themselves with the whole amount, whereas as members of the corporation they had only an interest in a proportionate share of the mon- ies receivable. (2) j'^.^f"^/"'' It frequently happens that an entry purports, in the first " ' place, to charge a deceased person, and afterwards to discharge him. In such a case the entry cannot be used against the [ *322 ] maker of it, unless the whole is read in evidence. *But still if the whole were read, the jury would most probably attrib- (4) The Court does not appear to have peeled of wrongly setting down what treated this case as one of a balance of ihey had not received, in order that ihey interest, though in fact it was so, ac- might, by charging themselves with 24/. cording to the numerous authorities, in receive 1/. back again?" It may be which private memoranda, containing re- observed, however, that the eU'ect of ceipts of money, have been received in the evidence was to make the 24/ paya- evidence. Nor does the Court appear ble annually in perjjetuum. And it to have considered, whether the evidence would be the interest of the corporation could be received as a contemporary en- to connive at one of their body fabrica- try in the course of business, nor wheth- ting such entries; in which case, lie er the book would have been admissible, would receive no real prejudice, but if produced by a p^rty not claiming un- periiaps an actual benefit, and the perma- der the person making the entries. The nent interests of the body would be pro- case is certainly distinguishable from moted. But the entries could not be most of the former decisions, on the used during the life of the proctor mak- ground, that the entries 7?ji^A/ have pro- ing them, and his personal representa- moted the interest of persons claiming tives would have no interest after his under the makers of them, though, in death. Fiee, (5) the Master of the Rolls was of opinion, that entries in the books of an ecclesiastical corporation entitled to a rec- tory were admissible evidence for the corporation in suits for tithes brought by them. *ln the cases which have been decided, it will have been ye^'-.a' <^ec- ,,,,,. . . . laralmus noticed, that the declarations have m most instances consisted ol memoranda or entries ; but from several of the examples it may be collected, that verbal declarations are admissible, though unaccompanied by any writing or by any act done. (I) Where, indeed, declarations against interest accompany acts, they are frequently admissible without reference to the cir- . cumstance of their being contrary to interest. (2) It is a question of considerable importance, how far declar- ^^'^^ "'"'""- ations against interest are receivable in respect of matters form- ceciing i'n- ing a part of the declarations, but not in themselves aflecting ^'^'■"^• the interest of the declarant. Where declarations of deceas- ed persons acknowledging the receipt of money have been admitted, it appears that they have often been admitted as ev- idence, not merely of the fact of the deceased having receiv- ed the money, but also of the circumstances stated as the oc- casion of the payment. (3) In Warren v. G}-ee7iviUc, (4) has been suggested, ib. that the cases in of forbearance. The declarations in Buiubury and Viner relate to the same Davies v. Pierce, 2 T. R. 53, supra, p. tjuil, viz. the case in Bumb. is the re- 316, might appear to be admissible as port of the trial at nisi priiis, and the part of the res geatcB. case in Viner is a note of the hearing in (3) See the cases collected in the note the Exchequer. to Barker v. Ray, 2 Russ. 67. (4) They fall precisely within the (4) 2 Str 1129. Independent of rule laid down in Outram v. Morewood, the credit due to the collateral statement, supra, p. 320. there was a presumption that the surren- (5) 2 Jac. & W. 464. The Master der must have been made before the of the Rolls expressed himself strongly money was paid. See observations on in favor of another ground, which was this case by Lord Ellenborough, in sufficient for the admission of the evi- Ilingham v. Ridgway, 10 East, 117. dence, vide supra, p. 321. In Doe v. Robson, 15 East, 32, on a (1) See cases collected in the note to question whelhether a lease had really Barker i'. Hay, 2 Russ. 67. Doe r. been granted in possession, and not in Williams, (^owp. 621. Hollowny v. reversion, entry of Charges in an attor- Raikes, 2 T. R. 55. Ivat v. Finch, ney's book, sliewing the time, when a 1 Taunt. 141. Doe v. Jones, 1 Camp, certain lease was prepared, and which 367. Doe v. Pettet, 5 Barn. & Aid. charges were shewn (as it would seem 220. Davies v. Pierce, 2 T. R. 53. by the sanje book) to iiave been paid. Strode r. Winchester, 1 Dick. 397. were held to be evidence after the atlor- Verbal declarations may, however, be ney'« death, that the lease was prepared thought of inferior weight to those writ- subsequently to the time when it bore ten, as being more carelessly made, and date, and at a period wlien it would being often unfaithfully reported ; they have been a lease in possession. It has are besides more seldom connected with been observed, that in such cases of en- any course of business. tries in the books of deceased attorneys, (2) Stanly w. White, 14 East, 399, the entries do not deservfi much addition- where the declarations accompanied acts al credit from the circumstances of the 288 Hearsay Evidence. [Ch. 16. [ *32G ] *upou a quesiion whether a surrender to a recovery could be presumed, the book of a deceased attorney was produced, which contained a charge of a sum for suffering a recovery, two items of which related to the drawing of a surrender, and it appeared by the book that the bill was paid. The Court held that the entries were admissible evidence, and material upon the inquiry into the reasonableness of presuming a sur- render. In Barry v, Behhingion^ before cited, (1) upon a question of the soil and freehold of the defendant, entries by a deceased steward of a person, under whom the plaintiff claim- ed, acknowledging the receipt of monies on account of tres- passes committed on the place in dispute, were held to be ad- missible evidence to disprove the defendant's title, and to es- tablish that of the plaintiff. In Higham v. Ridgway, (2) upon a question respecting the age of a person suffering a re- covery, an entry made by a deceased accoucheur in his book of having delivered a woman of a child on a certain day, re- ferring to his ledger, in which he had made a charge for his attendance, which was marked as paid, was held admissible evidence of the time of the child's birth. And Lord Kenyon, in speaking of the evidence of stewards' books, observes, that "such books may be read, not only to charge the steward with the amount, but to show on behalf of the tenants, that . rents have been received, and also to show, in cases where it might become a question, what kind of rents were payable out of particular estates." (3) [ *327 J *The principle of the admissibility of declarations against interest, for the purpose of proving every thing contained in them, was carried still further in the case of Stead v. Hca~ ion. (1) In that case, which respected the existence of a fact of p;iyment being added. For it paid only sliouid be admitted in evj- would not be probable, that fictitious in- dence, vvilliout the context which ex- utructions would, without an assignable plains to what it refers. We must, motive be inserted in the attorney's bonU; therefore, look to the rest of iho entry, or if such a motive existed, the adding to see what the demand was, which he of the fact of payment would not re- thereby admitted to have discharged. — move the suspicion attached to the entrv. By the reference to the ledger, the entiy In Shipwith v. iShirley, 11 Yes. 65, there is virtually ijicorporaled with, and where an attorney's book was adduced made a part of the other entry, of which along with other evidence in proof of it is explanatory." i'or other instances, the lost deed, it does not appear that the see Roe v. Rawlins, 7 East, 291, receipt charges were entered as paid. Blaike- of rent in account book of tenant for ler V. Crofts, Comb. 348. 12 Vin. Ab. life, to show the amount of ancient rent. 85. See observations in the case of Doe d. Powell v. Hill, cited by Taun- Warren v. Greenville, by Lord iMans- ton, J., in Chambers v. Bernasconi, 1 field, in Goodtitle v. Dulve of Chandos, Cr. M. & R. where Richards, B., said 2 Burr. 1071, and remarks of Lord El- that he could not divide the entry into lenborough, upon these observations in two. Higham v. Ridgway, 10 East, 117. (3) In Calvert v. Archbishop of Can- (1) 4 T. R. 514. In this case the terbury, 2 Esp. 646. eteward's accounts were in his handwrit- (1) 4 T. R. 669. Further concern- ing, but not signed by him. ing entries in churchwardens' books, (2) 10 East, 109. Lord Ellenhoi- Cook v. Bankes, 2 C. & P. p. 481, ough, said " it was idle that the word supra, p. 259. Sect, l.j Declarations aga'uist Interest. 289 customary payment for the reparation of a parish churcli, churchwardens' accounts were produced, in which were the following entries, — " Received of Haworth, who this year dis- puted this our ancient custom, but after we had sued him, paid it accordingly, 8/. and 1/. costs ;" And, at the head of the same page was written, '' It is an ancient custom thus to proportion church-lay : 1st. The chapelry of Haworth pay one-fifth, Bradford a third of the remainder, and the rest to be legally divided according to the churchwardens of the several other townships in the parish." The Court were of opinion, that the entry of payment was clearly admissible, because the officers thereby charged themselves with the receijn ; and that the other entry was admissible, because immediately re- ferred to, and that both of them, being written on the same page and on the same subject, must be taken into considera- tion together ; that they were both parts of one and the same transaction, each explaining the other. In the case of Marks v. Laliee, (2) an entry of tender and refusal of money, made by a deceased clerk of an attorney, in a day-book kept for the purpose of entering his daily trans- actions, was held to be admissible evidence to prove the ten- der ; it's admissibility was rested on the ground that it was . ' evidence, that the clerk had received the money and had not disposed of it according to his instructions, so that it rendered him subject to a pecuniary demand. But it may be thouaht that there is a distinction between Collateral cases, where the admission agamst mterest is part or one en- tire transaction with the rest of the declaration, (as in the in- stance of stewards' entries, where the entry might mean noth- ing unless the whole of it were read,) and cases where de- clarations embrace ^matters perfectly collateral. (1) This [ *32S J point was discussed in the case of Chainhers v. Bernasco- ni, (2) where one of the questions was, whether the certificate of a capture by a sherifi's officer stating the place of arrest, was evidence that the plaintiff had been arrested at the place stated. Mr. Baron Bayley expressed an opinion, that suppos- ing the certificate was admissible for any piu-pose (as be- vjciiivc^ ill iini ntj\j \ Kj v^iui^.T i\it VlliCil ijui— t' j'lii^. t/i^-x- »-'i«iv^ t.'. J iiuiiiti^if poses, than ihose for which the entry ."<: I'ul. 188, where a prison-book w.is was originally made, on ihe ground tiiat held admissible to prove the oeriod of the statements received were part of the cooimitment and discharge of the pris- res grsfip, with the payment or other oner, but not the cause of the coiTiiiiit- iriatter a;;aiiist interest. It may often how- inetit. ever, happen that an ent»re siaieuient (2^ 1 Cr. Si J. 156, liJe infra, p. must be read, though the jury be di- 313. reeled not In consider part ol it at* evi- 37 290 Hearsay Evidence. [Ch. 16. ing a declaration against interest, or rather as made in the course of official duty,) it was not admissible to prove the place of arrest. (3) In the case of Rndd v. Wright^ (4) a survey was tendered [ *329 ] *in evidence, which had been made for the use of Trinity Col- lege, Cambridge, who were impropriators of a living of which the plaintiff was vicar, and in this survey certain closes were stated as being titheable to the vicar. Lord Lyndhurst ob- served, that although this document would be evidence against the college in a suit between them and the vicar, it would admit of some consideration, whether it was admissible in ev- idence against a third person ; but that it was unnecessary to decide that question, because the object of producing the sur- vey in evidence arose out of a marginal note to the survey. His Lordship thought that the marginal note could not be re- ceived in evidence, inasmuch as it was in the nature of a col- lateral and incidental observation made by the person who framed the survey ; and that it did not follow, because a doc- ument is received in evidence in which there are entries against the interest of a party, that therefore collateral and indepen- dent matter, which is not a necessary part of such entries, ought to be received. The case of Stead v. Heaton, (1) his Lordship observed, did not by any means go to that extent. In order to render declarations against interest available, it is not essential that the deceased person, who made the en- Maker of entry not competent (3) Mr. Baron Bayley seems to have treated the question as being clear, that the declaration was not against interest, and he considered that it appeared from the facts of the case, that it was not a necessary part of the officer's duty to state the particular place of arrest. The case involved two other questions besides that noticed in the text ; viz. whether the declaration was against interest ; and whether it was receivable at ail, as be- ing made in the course of official duty. The Court of Exchequer thought the ad- missibility of the evidence a question of so much importance, that they wished the parlies to have an opportunity of putting it on the record. And see the decision on the same case in the Court of Error, infra, p. 344. (4) Before Lord Lyndhurst, Exch. 11 July, 1832. The marginal note stated that the closes, which had been specified as titheable to the vicar, formed part of a certain close mentioned in the terriers ; and if so, they broke in upon the inlirety of a district, for which the modus was claimed. It is to be observed, that al- though the interests of the rector and vicar were opposed to each other, yet the college having the patronage of the vircarage, it was to their interest that whatever tithes were clearly payable to the vicar and not to them, should be payable in kind and not by a modus. And if it was clear by other evidence, that they had no right to the tithes of a particular close in any shape, they would not be prejudicing, but promoting their interest, by admitting this acknowledged fact, and inserting as part of the same entry a declaration tending to show that the tithes were payable in kind. In this case also, it would have been very ques- tionable whether an entry on the part of the corporation could be received in ev- idence against strangers, on the ground of its being against interest. The case of Short V. Lee, supra, p. 331, is no authority for this position, as the person whose interest was affected by the entry was deceased. The death of the person making the survey had nothing to do with the question of its admissibility in the present case. It was not argued that the evidence was against his interest, or was admissible on the ground of reputa- tion. The evidence was rejected by Littledale, J., at the trial. (1) Supra p. 327. Sect. l.J Declarations against Interest. 291 tries, should have been a competent witness whilst living, to prove the facts contained in the declaration. (2) This lias been expressly *ruled in the case of Short v. Lee, where the [ *330 ] entries of a deceased member of an ecclesiastical corporation were admitted on behalf of that corporation in a suit brought by them for tithes. (I) * The declaration of deceased persons against their own in- ^"}P\^^', 11 1 • -1 1 • -1 1 1 milled, oth- terest are not the less admissible in evidence, because the er living facts, to which the declarations relate, may be proved by evi- testimony, deuce of another kind, as, for instance, by a living witness. This rule may be founded, partly on the great credit due to declarations against interest, and partly in the inconvenience of proving, in every case, the failure of other evidence. (2) It was held, in MiddletonY. Melton, (3) that the entry made by a deceased collector was proof of the fact of the money having been paid, without calling the persons who paid it, or showing tliat they were dead. And it appears from the facts of earlier cases, that the same understanding of the Courts as to this point is to be implied from them. (4) In order to make entries against interest evidence, it has Proof of de- Till- 1 1 1 >. i- clarani s been held in some cases to be necessary to snow, by testimony siiuaiioii. dehors the entries, that the person making the entry was in the situation, in which he purports to be. The character of the evidence, it has been said, must be established, before the entry is read. (5) Thus, in the case of De Rutzen v. Farr, (6) it was held, that accounts of rent, signed by a person styling himself *clerk to a steward, but not shewn to have [ *331 ] (2) Though such a qualification of that case the declarant would have been the rule is slated by Mr. Justice Bayley, incompetent, on the ground of being a in Highamc. Ridgvvay, 10 East, 109, yet party to the suit, to have been examin- none of the other Judges advert to it. ed in favour of the corporation. But he And Mr. Justice Bayley lays down the might have been examined if he had rule in more unqualified terms, in Doe v. raised no objection against the corpora- Robson, 15 East. See the observations tion to prove the fact for which his en- of the Master of the Roils, as the obser- try was used, viz. payment, vations of Mr. Justice Bayley, in Short (2) It will be seen, infra, that the V. Lee, 2 Jac. & W. 464. See an ar- admission of the evidence does not im- gument relative to this point in BarUert). pugn the principle on which secondary Ray, 2 Russ. 71. In Warren v. Green- evidence of facts is excluded, vill, 2 Str. 1129, SM^^ra, p. 325, it was (3) 10 Barn. & Cress. 3 17, and ride in- said by the Court, as a reason for receiv- fra, p. 340. Pool v. Dicas. ing an attorney's books, that he might (4) See observations of I'arke, J., in have been examined if living, and his Middleton ?•. Aielton, 10 Barn. & Cress, books were, after his decease, the best 32S. In case of Barry v. Bebbinglon, evidence. In Gleadoii v. Atkin, 1 Cr. 4 T. R. 514, which was tried in 1791, & M. 420. Bayley B., repudiates the one of the memoranda was a receipt of doctrine, that declarations cannot be re- a sum of money in 1785. ceived, except where the declarant might (5) See per Lord Lyndhurst, and Bay- have been examined in his life-time, and ley, B., in Davics v. Morgan, 1 Cr. & refers to Middleton «. Melton, 10 B. i; J. 590. It does not appear in that case C. 326. Doe v. Hobson, 15 East, 32. whether the entries purported to be made Bosworth V. Cotchett, infra, p. 348, as by corporators or by strangers. showing that no such qualification exists. (6) 4 Ad. ^ E. 53. The accoHnta (1) 2 Jac. & W. 564. The rule is were found among the family muniments, there laid down in general terms. In which might seem to afford a reasonable 292 Hearsaij Evidence. [Ch. IG. been employed by such steward, otherwise than by the ac- counts themselves, were not evidence to prove that the rent has been received. Where the entries are produced in evidence, as being those of receivers of private individuals, it has been ruled, that it should appear by evidence aliunde, that the persons making the entries filled that character at the time when the entries were made. Thus, in the case of Short v. Lee, (1) where the accounts of a tithe collector were produced in evidence, it was held to be necessary to prove aliunde, that the person whose book was produced was authorised to collect the tithes. (2) But in the same case, account-books in the possession of a corporation, entitled to an impropriate rectory, purporting to be accounts of their collector of tithes, were received, without proof aliimde, that the accounting party was really the collec- tor ; on the ground, that, by the charter of the corporation, it was their duty to appoint proctors to receive the tithes, and a corporation could have received the tithes themselves. The point was said to be not dissimilar to that decided in regard to collectors of incumbents in general, they being persons whose character depends on the pleasure of a private individual, who might or might not appoint. It seems, that the situation of the declarant may sometimes be established by the internal evidence of the books contain- ing his entries. In Doe v. Lord George Thynne, (3) upon a [ *332 ] question ^whether certain ancient books, which were produ- ced from the archives of the Dean and chapter of Exeter, were the books of receivers debiting themselves with the re- ceipt of money, and on that account admissible in evidence, it was held, that the similitude which the entries bore to the books of receivers of the same body in modern times, was not a safe and adequate ground for presuming that the ancient presumption of their being genuine. — 141. See Manby u. Curtis, 1 Pr. 225, And see Short v. Lee, 2 Jac. ^ VV. 464, contra. The accounts in Short v. Leigh, 467. were of the dates 1752, 175.3, 1754, (1) 2 Jac. & W. 464. Manby i5. and the cause was heard in 1821. See Curtis, 1 Pr. 225, where proof of agen- Jones v. Carrington, .3 E. .^ Y. 1181, cy was required in the case of a receipt proof of tithe receipts by a lessee, with- for tithes fifty years old. out producing the lease. Yates r. Leigh, (2) It is to be observed, that it would Gvvill. 861. 2 E. <^ Y. 151, where re- be very difficult to prove the appoint- ceipts purporting to be signed by a re- inent of reeves or bailiffs, whose ac- ceiver, but appearing to have been in counts are of great antiquity, and they fact signed by his deputy, were rejected. have certainly in practice been often (3) 10 East, 208. It would seem admitted without such proof, when pro- that the similitude between the ancient daced from the proper custody. The and modern books was a safe and ade- internal evidence in such cases leaves no quate mode of inferring the nature of the reasonable ground for doubt. The hand- former. That it is sulfioient if the en- writing of a deceased steward, need not tries are signed by a deceased agent, be proved after thirty years, ?zrfe in/Va. without their being in his handwriting, Wynne u. Trywhit, 4 B. ,^ A. 376. see Doe r. Stacy, 6 C. 4- P. 139. Jones V. Waller, GwiU 847. 2 E. §• Y. Sect. 1.] Declarations against Interest. 293 books were kept by persons of the same character and des- cription, and accounted upon as such. But, on it's appearing that some of the entries in the ancient books (not relating to the matter in question) imported that A. B. was therein ac- counting to the Dean and chapter for money paid to himself, with the receipt of which he therein debited himself in such forms as solvit 7nihi, solvit per tnc, the Court thought that this was strong internal evidence, that the books were actually re- ceivers' books. Section II. Declarations and Entries made in the course of Duty or Employment. According to the observations of several Judges on different occasions, it might seem that where there was a competency of knowledge, or at least peculiar means of knowledge in an individual making a declaration, and a total absence of inter- est to pervert the facts to which he has spoken, his declara- tions would be admissible evidence after his death, even though the declarations did not operate against his interest. (1) But these ^observations are too loose, and perhaps too contra- [ *333 ] dictory to the principle of the cases which have been just con- sidered, to be regarded as establishing any rule less rigid than that above laid down, which requires the declaration to be against the interest of the person making it, before it can be received in evidence. There appears, however, more reason for considering that a General rule exists, which allows of declarations of deceased persons being received in evidence, even though not made against their interest, provided that in addition to a peculiar knowledge of the facts, and the absence of all interest to pervert them, the declarations appear also to have been made in the ordinary course of official, professional, or other business or duty, and been immediately connected Avith the transacting or discharg- ing of it, and contemporaneous, or nearly so, with the trans- action to which they relate. (1) (1) See statement by Bayley, B., of ca?e in 1 Cr. .VJ- 458. By Le Blanc, the principle of the case of Roe v. Raw- in Iligham «. Ridgway, 10 East. (But lins, in Gleadon v. Atkin, I Cr. Sf M. subsequent authorities have treated the 420. The declaration of a person hav- case of lligham «. Ridgway as decided, ing peculiar means of knowing a fact, on the ground of interest.) By Little- and no interest in misrepresenting it, is dale and Park, J., 10 Barn. Sf Cress, admissible to prove the fact, a fortiori, .326,327. By Lord Lyndhurst, C B., if it were against his interest, by Lord Bayley, B., 1 Cr. Sf .1. 456, 457. By Ellenborough, in speaking of vicars' Bayley, B., in Glendon v. Atkin, 1 Cr. books, in Roe v. Rawlins, 7 East, 290, fy U. 420. By Lord Ellenborough, in Doe v. Rob- (•) In speaking of the cases upon this son, 15 East, 34. But see by Bayley, subject, it has been frequently said that J., ihid.y and when speaking of that they have gone far enough, or too far. 294 Hearsay Evidence. [Ch. 16. Principle of It appears to be a legitimate ground for admitting such de- admissioii. gij^i.^tions in evidence, that it would be contrary to the expe- rience of mankind, if, in the generality of instances at least, they were not exempt from the suspicion of fraud or careless- ness. By the conditions on which such evidence is proposed, it is assumed that no temptation to deceive can be suggested ; and it is no unimportant guarantee against fraud, that the de- clarations cannot be available for the author of them during his life-time. By requiring that the declarations should have been made in the course of ordinary business, and not only connected with the transactions to which they relate, but al- [ *334 ] so contemporaneous *with them, a reasonable ground is laid for presuming that they are accurate. Another ground for the admissibility of such evidence is, that the weight attached to it is not founded merely on the presumption of the credit due, under the circumstances, to the authors of the declarations, but also on the presumption, that in the ordinary course of business such declarations would have been made, if the principal fact to be proved had really taken place. The case is analogous to that in which, it has been seen, declarations are received as evidence of co- existing motives and feelings, (1) — only it is not necessary, that the same intimate connection should exist between the thing proved, and the evidence of it ; nor is the thing to be proved of a nature of a secret. It is enough, if the fact and the declaration are ordinarily and usually connected with each other. (2) It may also be worthy of remark, that as the transactions of business are frequently confined to the knowledge of a few per- sons, there is some reason on the ground of necessity, arising out of the subject matter of the declarations, which may be thought to warrant, under proper safeguards, some relaxation of the strict rules of evidence. (3) It is to be observed, however, that there are authorities, which deny the existence of the rule now under consideration, as distinguished from that which requires it to be shewn, that declarations of deceased persons, to be admissible in evidence, were made against interest. (4) And, doubtless, many of the and that the principle of them ought not to treat this as the true principle of the to be extended, see per Tindal, Ch. J., rule, vide infra, p. 336. in Marks v. Lahee, 3 Bing. N. C. 418, (3) It has heen seen that similar. Per Litiiedale, J., in Doe v. Vowles, 1 though more cogent reasons of necessi- M. & Ro. 262. Per Holland, B., in ty, are the foundation of the admissibili- Chambers v. Bernasconi, 1 Cr. Sf J. p. ty of hearsay in the cases of pedigree 456. These observations have apparent- and matters of general interest, and also, ly been intended to include several of in some measure, of dying declarations, the cases stated in the last section. (4) In Calvert v. Archbishop of Can- (1) Vide Supra, p. 200, et seq. terbury, 2 Esp. 646. Lord Kenyon, (2) See by Parke, J., in Doe v. Tur- says, "The cases in which an entry made ford, 3 Barn. & Ad. 896, who appears by a servant, in the books of his master, Sect. 2.J Declarations of Duty. 295 cases *which have been before enumerated, as decided on the [ *335 ] ground that the declarations received in evidence were ad- verse to the interest of the makers of them, might and proba- bly would have been decided on the more general principle, (namely, that the declarations were made in the course of business,) if the Courts had felt no hesitation in recognising such a principle. The rule now under consideration, must be admitted to have been principally founded on authorities of an early date, when much precision is not to be found in the decisions of our Courts on the subject of evidence. (1) But a recent de- cision by the Court oif King's Bench, appears to have estab- lished it on a surer footing. (2) *ln Doe d. PattesJiall v. Turford, Parke, J., recognises the [ *3o6 ] terms of the rule, for the admission of an entry, not against interest, to be applicable to a case, " where the entry is one of a chain or combination of facts, and the proof of one raises a presumption that another has taken place : that, where an entry is against interest, proof of the handwriting of the par- ' " ty and his death is enough to authorize the reception ; at have been received in evidence, are where by such entry, the servant charges him- self and discharges another person." And in the action against the Archbish- op, Lord Kenyon rejected the evidence of an agreement entered in the plaintiti'a book by a deceased clerk, stating a con- tract for the hire of horses. It is ob- served of thi;! case, however, that it did not appear whether, from the course of business or otherwise, it was to be as- sumed that the agreement was made by the servant himself, or only taken down from his master's hearsay. In Sikes v. Marshall, 2 Esp. 705, Lord Kenyon rejected entries of payments in the hand- writing of a deceased clerk. In Cham- bers V. Bernasconi, 1 Cr. §• J. 451. 1 Tyr. 335. Infra, p. 344. The Court of Exchequer appear to have thought, and Mr. liaron liayley ejtpressly states his opinion, that a certificate of a sher- iff's officer of the fact of a caption, which he was required to make by the course of his office, was not admissijjle ev- idence, because not against Jiis interest, it amounting to a declaration that the otiicer had done his duty. In the decision upon the case of Chambers v. Bernasconi, in er- ror, 1 Cr. M. k R. 466, the Court speak doublingly as to the certificate being ev- idence of the caption, as being an entry in the course of duty. In Barker v. Ray, 2 Rusg. 76, Lord Eldon intimated an opinion that declarations would not be receivable in cases where the interest of the declarants was not concerned. In Cook «. Banks, 2 C. & P. 478, Lord Tenterden appears to have ruled several points, on the supposition that entries of particular facts could only be evidence when against interest. (1) In the reports of Lord Raymond, Salkeld and Strange, from which a greal part of the law upon this subject is de- rived, the rulings are to be read with much caution, as the law of evidence according to which the determinations of the Coaits are at present governed, has been almost entirely created since the time of those reporters. (2) Doe d. Paltershall v. Turford, 3 Barn. & Ad. 896, vide infra, p. 339. It is there said by Mr. Justice Taunton, that though most of the prior authorities in support of the rule were JVtsi Prius decisions, yet that Evans v. Lake, infra, p. 338. B. N. P. 282, was a trial at bar. Mr. Justice Taunton, however, left the rule somewhat indefinite, for besides requiring that the declaration should be made by a deceased person, in the ordi- nary course of business, and at the time when the fact it records took place, says, it is necessary that it should be corroborated Ity otiier circumstances, rendering it probable that the fact occur- red. 'I'he previous authorities were, however, relied on, in some of which the probability of the facts having occur- red or not, independently of the entries, appears to have been equal. 296 Hearsay Evidence. [Chap. 16. v/hatever time it was made it is admissible ; but in order to make entries in the course of business admissible, it is essen- tial to prove that they were made at the time they purport to bear date ; they must be contemporaneous entries." He ob- serves further, " that a necessary and invariable connection of facts is not required ; it is enough if one fact is ordinarily and usually connected with the other." And Mr. Justice Taunton, in the same case observes, " that a minute in wri- ting, made at the time when the fact which it records took place, by a person since deceased, in the ordinary course of his business, when corroborated by other circumstances, which must be proved, is admissible in evidence." (1) In Poolev. Dicas, (2) the same principles were recognised, by the Court of Common Pleas. And it was held, that an entry made at the time of a transaction, in the usual course and routine of business, by a person who had no interest to mistake what had occurred, was receivable. In the case of Price v. Lord Torrington, (3) (a) the plaintiff [ *337 ] *who was a brewer, brought an action against Lord Torring- ton for beer sold and delivered ; and the evidence given to charge the defendant was, that, according to the usual course of the plaintiff's dealing, the draymen came every night to the clerk of the brewhouse, and gave him an account of the beer they had delivered out, which he set down in a book kept for (1) 3 Barn. & Ad. 890. It was said that this was the "round upon which the cases of Lord Torrington, Fiit v. Fairclough, Hagedorn v. Reed, Champ- neys v. Peck, Pitman v. Maddox and others of the same nature had been de- cided. (2) 1 Bing. N. C. 652. (3) Salk. 2S5. 2 Lord Kaym. 873, Holt, 300, S. C. B. J\. P. 282. The report says, " Otherwise of the shop- book singly, without more." It may be observed, on this case, that supposing the drayman had not delivered the beer according to his orders, it is true that his signature to the entry would not have been admissible evidence for him, yet lie cnight very probably have signed the entry in order to prevent immediate de- tection ; or to avoid his being precluded from insisting that he had delivered the beer. He charges, indeed, himself with having received the beer ; but it is easy to believe that he would have experi- enced at least equal difficulty in denying the receipt of the beer, as in denying the delivery of it, supposing it, in fact, re- ceived, but not delivered. Supposing him dishonest, he had an interest in de- nying the receipt, but if there was little (loul)t of that, it was his interest to state that the goods had been delivered. If he had omitted to state the fact of deliv- ery, it must have led to immediate in- quiry. It is observable, that in the case of Calvert v. Archbishop of Can- terbury, 2 Esp. 645, where this case was cited, Lord Kenyon appears to have considered, that it was decided on the ground that the entry was against inte- rest. In Sikes r. Marshall, 2 Esp. 705, Lord Kenyon rejected evidence of pay- ments in the handwriting of a deceased clerk, though, it might be said, that they impliedly admitted the receipt of the money paid. (a) Price v. Torrington is upheld in 15 Mass. 386, where the entries made by a deceased clerk were admitted to verify a tradesman's books. In Elms V. Chevis, 2 M'Cord, 349, where the clerk who made the entries was out of the jurisdiction of the court, it was held sufficient to prove his handwriting. But this we liave seen Cante p. 312 no.) has been questioned in a late casein iVew York where the cases are reviewed. tSee also post p. 33S, note. Sect. 2.j Declarations of Duty. 297 that purpose, to which the draymen signed their names, and the drayman whose name appeared to be signed to an entry, stating the deUvery of the beer in question, was dead. It was ruled, that this was good evidence of a dehvery. In Pitman v. Maddox, (1) in an action on a tradesman's bill, a shop-book was admitted by Chief Justice Holt, as evi- dence, to prove the delivery of goods, it being proved that the servant who kept the book was dead, that the entries were in his handwriting, and that he was accustomed to make the en- tries. In the case of Smartle v. Williams, where the question was, whether mortgage-money had been really paid, the book of accounts of a deceased scrivener was held to be good evi- ' dence of payment ; (2) in this case it does not appear, that the scrivener charged himself by the entry. *In the case of Evans v. Lake, upon an issue out of Chan- [ *338 ] eery to try, whether eight parcels of Hudson's Bay stock, bought in the name of Lake, were in trust lor Sir Stephen Evans, Sir Stephen Evans' assignees (the plaintiffs) shewed, first, that there was no entry in the books of Lake relating to the transaction : Secondly, six of the receipts were in the hands of Sir Stephen Evans, and there was a reference on the back of them, by a deceased book-keeper of Sir Stephen Elvans, to the book marked B. B. belonging to his master. The question, upon a trial at bar, was, whether entries of the pay- ment of the money, contained in the book referred to, should be read. The Court of King's Bench admitted entries from the book in question to be read, as well such as related to the above mentioned six receipts, as also some which related to two other receipts in the possession of the son of Lake. (1) [a) (1) 2 Salk. 690. Lord Raym. 732. bursar's book of a college for evidence. S. C. B. N. P. 282. Lord Holt added Per Holt, Comb. 249, Smart v. Wil- that the evidence of delivery was asgood liams. In Lord Raym. Rep. 745, as the proof of a witness's hand to an Anon, the Court say, that the shop obligation. It may be observed, tliat if book is not evidence for a tradesman, but the bookkeeper had not delivered the it is good evidence against him, or for goods, the absence of an entry of deiiv- a strans^er. The same law of a scriv- ery would have been strong evidence ener'a book for maney paid by him, against him in an action brought by his or received to the use of a stianger, or employer, and it would have excited an the book of a bursar of a college. 12 immediate inquiry. Vin. 91, pi. 25. See Lord Lorton r. (2) H. N. 1^. 283. The case appears Gore, I Dow. n. 5, where a case sub- to be the same as that of Smart v. VVil- mitled to counsel was received as secon- liams. Comb. 247, of which the follow- dary evidence of marri.ige nriicles, it a|>- ing note is given in 12 Vin. Abr. 88. A. pearing that the case had been charged b. 15. Scrivener's book to prove a for, and entered as paid, by the family consideration paid ("as a tradesman's attorney. book) is no evidence for himself, but f)r (1) F,vans v. Lakfi, B. N. P. 282. any other it is. We have allowed a Lord Hardwicke in Glynn v. Bank of (a) Original entries made in the usual course of business are admisnible, where the person who made them is dead ; Halliday v. Martinet, 20 J. R. 168 ; 3S 293 Hearsay Evidence. [Ch. 16. In Cliampneys v. Peck, (2) upon a question whether an [ *339 ] ^attorney's bill had been delivered within a month before the commencement of the action, an indorsement upon the bill, in the handwriting of a deceased clerk, was received in evi- dence. The indorsement was in these terms : " March 4th, 1815, delivered a copy to Mr. Peck." Upon this endorsement being produced, and evidence being given that it was the du- ty of the particular clerk to deliver the bill, and that such an indorsement was usually made in the common course of busi- ness upon the copy kept, Lord Ellenborongh ruled, that the indorsement was prima facie evidence of the delivery of the bill. In the case of Doc d. Patterskall v. Turford, (1) it was proved to be the usual course of practice in an attorney's of- fice, on serving notices to quit on tenants, to indorse on the duplicates of such notices the fact and the time of the notice. It was held, that, after the attorney's death, an indorsement England, 2 Ves. 43, says, that this case a particular person, was held to be evi- vvent a great way, and was a new case, dence of that fact, upon proof of the See by Lord Hardwicke in Lefebure v. course of business followed by the clerks Warden, 2 Ves. 54. It is referred to in the office. The case of Digby v. by Taunton, J., in Doe v. Turford, in- Sieadtnan, 1 Esp. 327, is sometimes fra, p. 339, as being a trial at bar, and considered as belonging to this class of therefore entitled to great weight. cases: whore, in an action of trover, (2) 1 Stark. C. 404. The cause was the plaintift''s shopman, who proved the undefended. In Pritt v. Fairclough, 3 delivery, was allowed by Lord Kenyon Camp. 307, Lord Ellenborough, allud- to produce the shop-book, containing an ing to cases of this description, says, the entry of the delivery in the hand-writ- rules of evidence must expand, accord- ing of his master, but seen by himself jug to the exigencies of society. In that within a short time after it was made, case, an entry by a deceased clerk, in a It would seem, that, in the present day, letter-book, prol'essing to be the copy of a question of this kind could only arise, a letter of the same dale, made accord- upon a point as to the means by which ing to the course of business, was re- a witness might refresh his memory. In ceived in evidence. The case also of Cooper «. Marsden, 1 Esp. 1, the same Hagedorn v. Reid,3 Camp, 379, direct- notion appears to have prevailed, of en- ly confirms the case in the text. There tries in banker's books by a clerk pro- a memorandum of a deceased clerk, duced as a witness, being substantive ev- written on a copy of a license, stat- idence. ing that the original had been sent to (1) 3 Bar. & Ad. 890. Welsh V. Barrett, 15 Mass. 380 ; Nichols v. Goldsmith, 7 Wend. 160 ; 1 Wash. R. 76 ; 6 Mart. R. 351. See also 2 II. Sf J. 77 and 7 id. 467. But the notary, messenger, cashier, clerk or other person who made the entry must be dead ; oth- erwise the evidence is inadmissible. 6 Cowen. 162 ; 16 Wend. 586. Mere ab- sence beyond the jurisdiction of the Court will not excuse the production of the witness. In the case cited from Wendell, the plaintiff offered the check rolls or accounts of the number of days works performed by men in his employ, without the oath of the person making the entries, held that they were not admissible : — 1. because the plaintiff kept clerks and other witnesses of the labor. (12 J. R. 461 ; Hayw. 458 ; 2 id. 24 ; 1 Binn. 234.); — 2. They were not the books of daily account of the plaintiff; and there was no trust implied that they keep these accounts for the defendants, 12 J. R. 461 ; 1 Bay. 33 ; 4 Mass. 455; 4Rawle, 291; 1 Hals. 94; 13 S. !f R. 126 ; 2 Hals. 59 ; 4 S. & R. 5 ; 1 Binn. 237 :— 3, It was not a simple charge for servioes rendered and cannot be thu« proved. See d Conn. 844, and 1 Day. 104. Sect, 2.] Declarations of Duty. 299 made by him on the duphcate of a notice, stating the original to have been deUvered to a tenant, was evidence of the fact, that the original notice was dehvered. It appeared that the entries were contemporaneous, from the circumstance, that, on the particular day when the attorney was supposed to have given the notice to quit, he left home, and on iiis return in the evening delivered to his partner the duplicate indorsed by him, which was produced at the trial. (2) *In Poole V. Dicas, (1) it was held, that an entry of a dis- [ *340 ] honor of a bill of exchange, made in the usual course of busi- ness at the time of the dishonor, in the book of a notary by his clerk, who presented the bill, might be given in evidence in an action on the bill, upon proof of the death of the clerk who made the entry. It was observed by the Court, that it was the duty of the notary's clerk to present bills for payment on the evening of the day, when payment was demandable. After going oat with the bill for the purpose of presentment, he returns and makes an entry in the margin of the book, in which a copy of the bill had been made upon it's being left at the notary's for the purpose of presentment. This was all in the ordinary course of business. And the clerk had no interest to make a false entry. Again, the book in which the entry was made, was open to all the clerks of the office, so that an entry, if false, would be exposed to speedy discovery. The entry being thus j^Wma/acie consistent with truth, there were many accompanying circumstances which tended to confirm it's correctness, (a) (2) It appeared that it was not the Chambers v, Bemasconi, 1 Cr. M. & R. habit of the attorney to serve notices p. 367, the Chief Justice intimates that himself. But it was said, that the attor- such an entry made by a clerk would fa- iiey must be presumed to do what he vour his interest, asking, if the clerk had required his clerks to do. Tlie proba- not an interest in saying tiiat he had bility of the notice having been deliver- done his duty. ed, was confirmed by other circumstan- (1) 1 Bing, N. C. 662. The circuin- ces which were relied on by the stance of the entry having been made at Judges, but (with the exception of Mr. the time was considered by the Court to J. Taunton) they do not appear lo have be very material. It is lo be observed, expressed an opinion, that those circum- that the Court appear to have sought for stances were essential to the admissibili- confirmatory circumstances in corrobor- ty of the indorsement. This case is ap- ation of the general principle. As to en- proved of in Poole v. Dicas, 1 Bing. N. tries by a notary's clerk, see Sutton ». C. 652, though in the argument of Gregory, Peake's Add. Ca. 150. (a) Book of jVotary. The case of Nichols v. Webb, 8 Wheat, 326, has been doubted, so far as it is considered an authority to establish the point that the entry on the record of a deceased notary's book "that due notice ■was given to the indorser" is to be taken as proof that legal notice was given. By Clayton, C. J., 1 Har. &- Del. R. 10. "The book I would liold as evidence of all the facts it gives as to the time, manner, &c. of notice, by reason of his death. If we go further, wo make the notary the judge of what is legal notice to fix the indorser. Now what is legal notice, is a question of law for the court, and not for the notary. lie should note tlie facts ; when he gave the notice ; to whom ; the mode, &c. These are facts, 300 Hearsay Evidence. [Gh. 16, Eutries re- jt jg not «ssential to the reception of evidence of this er available description that no other evidence can be given, ex- lesiimoiiy. (j^pj- ji^^^t which is offcrcd. Tlius it was observed by Tindal C. J., in Poole v. Dicas, (2) that in Doe v. Turford, (3) there might have been persons present when the notice was served, and that in the principal case it would operate as a great hardship to require the testimony of the persons who might have been present. The clerk who presented the bill could scarcely, at the distance of two years, point out who it was that answered his application, and if it were necessary to call all the persons who resided at the place of presentment, the expense and inconvenience Avould be enormous. [ *341 ] *In all the above examples, it will be observed, the decla- rations were made with reference to transactions, the knowl- edge of which would, from the nature of them, usually be confined to a few persons, and the declarants might be said to have had a peculiar acquaintance with the facts to which they spoke ; further, the declarations were connected with acts done at or about the time when they were made by the persons making them, so that they might be regarded rather as the ordinary incidents of the transactions to which they relate, than as narratives of them. Contempo- The necessity, indeed, of the declarations being contempo- uier"* ^"' raneous, or nearly so, with the transaction to which they re- late, appears to be more plainly shewn by some negative ex- amples. Thus, where the plaintiff, in order to prove the de- livery of some wine, produced a book which belonged to his cooper, who was dead, but whose name was set to several ar- ticles as wine delivered to the defendant, Lord Raymond would not allow the evidence, saying that it differed from Lord Tor- rington's case, because there the witness saw the drayman sign (2) 1 Bing. N. C. 654, and vide su- (3) Supra, p. 339. ]pra, declarations against interest. and his record -would be sufficient to prove them ; but the conclusion of the law, whether it is due notice or not, is for us to decide, and not him. If the case in Wheaton goes as far as it appears it did go, it has not my appro- bation as sound law." id. In Welsh v. Barrett, 15 Mass. 380, the messenger of a bank made minutes of demands made on the makers of notes, and notices given to indorsers ; and he being dead, these were admitted in evidence. See also 20 J. R, ]68 ; and the later case in 16 Wend. 10, where the subject was much con- sidered. Entries made by the notary's clerk, who is alive at the trial, though he is out of the jurisdiction of the court, and cannot be found on diligent inquiry, are not admissible. 6 Cowen, 162. When the books of a notary have been admitted in evidence after his death, the entries were made by himself; but when they are made by his clerk, the notary does not attest them ; and in that case, the evidence of the clerk is higher. And indeed the book, un- accompanied by his testimony, would prove nothing. 20 J. R. 172 — 3^ Sect. 2.j Declarations of Duty. -^Ol the book every night.(l) In Cliampneys v, Peck,{2) mention- ed in a former page, Lord Ellenborough was not satisfied with the evidence of the indorsement of a deceased clerk to prove the time of the delivery of an attorney's bill, until it had been shewn by extrinsic evidence, that the indorsement existed at the time, when according to it's purport the bill had been delivered. And in the case of Doe d. Pattershall v. Tarford, (3) it is observed by one of the Judges to the effect, that, in the case of declarations against interest, the time of making the declaration is immaterial, but that with respect to the declarations in question *it is essential that they should [ *342 ] be contemporaneous. (1) In Poole v. Dicas, (2) the circum- stance of the entry having been made at the time of the traas- action was considered very material. But there appears to have formerly existed some doubt con- Course of DUSIIICSS* eerning the question, whether declarations, apparently made in connection with transactions of which the declarant has pe- culiar knowledge, but not in the ordinary course of any busi- ness or employment, or which it is not the declarant's ordina- ry practice or duty to make, were receivable in evidence. In Pykev. Crouch, (3) indeed, on a trial at bar, it was re- solved, that if the duplicate of a will be written by the direc- tion of a testator, and be sent by him to a stranger to keep it safely, and the stranger sends back a letter to the testator, in which he makes mention that he has received the will, after the death of the stranger, such letter may be read as circum- stantial evidence, to prove that such a duplicate of a will was sent by the testator to the stranger. But it will have been observed, that in most of the above cases, great stress appears to have been laid upon the circum- (1) Clerk V. Bedford, B. N. P. 282. case can be supported as to this point, it The reasoning of the Lord Chief Justice would only be allowed as a precedent supports the doctrine of the admissibility for cases where the circumstances were of contemporary memoranda in the precisely similar. course of business. (2) 1 Bing. N. C. 653. (2) 1 Stark. C. 404, supra, p. 33S. (3) Lord Raym. 730. It was before In some of the earlier cases this qualifi- considered, whether the letter could be cation of the rule does not appear to regarded as part of the res gesta. It have been strictly attended to. See would seem that tlie letter was in a Pitman v. Maddox, and Smart v. Wil- slight degree an adn)ission against inter- liams, supra p. 337. est, as it admitted a bailment. But the (3) 3 Barn. & Ad. 898. evidence appears to have been received (1) The Judges said, that the entry simply as a statement made in the course ought to be proved to have been made of a transaction, the knowledge of which at the lime that it purported to bear date, was confined to a few persons, and as a and when, in the ordinary course of bus- letter which would most probably have incss, ^uch an entry would be made, if been written if the will had really been the principal fact to be proved had re- sent to the stranger. The answer wa8 ally taken place. The case of Searie u. probably consideied as the natural re- Lord Barringlon, infra, p. 346, appears suit of the fact to be proved, and not at variance with the rule, that requires merely a narrative of it unconnected proof of an entry being contemporane- with the transaction. OQs. But it is conceived that if that 302 Hearsay Evidence. [Ch. 16. stance, that the entries admitted were such as were customari- [ *343 J ly *made ; and this perhaps is to be imphed in all the cases ah-eady noticed, except that of Pike v. Crouch, (1) which was decided at a time before the principle of this class of ca- ses had been much considered. («) In the case of Chambers v. Bcrnascojii, (2) on a question whether the plaintiff had committed an act of bankruptcy, the case mainly turned on the place where the plaintiff had been arrested. To prove the place of arrest a certificate was pro- duced, signed by the sheriff's officer who made the arrest, and who was since dead, in the following terms: " 9t!i No- vember, 1S25, arrested A. H. Chambers, in South Molton Street, at the suit of William Brereton." (signed) " Thomas Wright." It appeared that the sheriff's officers were always required, immediately after any capture, to give in a certificate of it. This evidence was received, but upon a motion for a new trial, the Court of Exchequer thought the question of the admissibility of the evidence of such importance, that they wished the parties to have an opportunity of putting it on the record. The question of the admissibility of the evi- dence involved several points which have been before noticed. But in reference to the point under consideration, Mr. Baron Bayley expressed his opinion, that supposing the entry admis- sible at all, on the ground that it was the duty of the sheriff's officer to make the return ; still that the return was not evi- dence as to the place of arrest ; it not being, (at least at the time when the arrest was made) a necessary part of the offi- cer's duty to state the place of arrest. From which it may be, perhaps, inferred to have been the learned Judge's opinion, r *344 ] that if no part of the *entry had been in the course of official duty, though it had related to a matter transacted at the time, (1) See particularly by Lord Holt, in agent usually employed in such business. Pitman v. IMaddox, 2 SalU. 690. Clerk was entrusted to make such entries by V. Bedford, B. N. P. 308. 3 Campb. his master, and that it was the course of 308, n. supra, p. 341; and by Holt, C. trade." J., in Smart v. Williams, Comb. 24!^. (2) 1 Cr. & J. 451 1 Tyr. 335. 12 Vin. Ab. A. b 15. "The book of a From the report in Crompton & Jervis, man that keeps re^w/ar entries might be p. 452, it appears, that the practice of evidence for him." By Lord liardwicke, requiring the officer to make a return of in Lefebure v. Warden, 2 Ves. 54, "if the place of arrest had not been adopt- there be proof that he was the servant or ed in 1825. (a) The letters of a deceased agent were admitted to prove a demand made upon a debtor of his principal in a foreign country where there was no regu- lar civil government, and where there were no magistrates or notaries to take and certify affidavits, or regularly to authenticate testimony in any manner. Greenwood v. Curtis, 6 Mass. 358. There seems to be a com- mercial necessity to admit evidence of this nature under these circum- stances, to enforce contracts made abroad in barbarous or uncivilized coun- tries. Sect. 2.] Declarations of Duty. 303 and of which the officer had peculiar knowledge, it must, without question, have been rejected. In the decision upon the same case in the Court of Er- ror, (]) the Court observed, that the ground upon which the argument was first rested, viz., that the certificate was an ad- mission against the interest of the party making it, because it made him liable for the body arrested, was not much relied on. But recourse Avas had to a much broader principle, viz., that an entry written by a person deceased in the course of • his duty, where he had no interest in stating an untruth, is to be received as evidence of the fact stated in the entry, and of every circumstance therein described, which would naturally accompany the fact itself. Now admitting, for the sake of argument, that the entry tendered was evidence of the fact, and even of the day when the arrest was made (both which facts it might be necessary for the officer to make known to his principal, (still it was not receivable to prove in what par- ticular spot within his bailiwick the capture took place, that circumstance being merely collateral to the duty done. And the Court were of the opinion, that whatever effect may be due to an entry made in the course of any office reporting facts necessary to the performance of any duty, the statement of other circumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circumstances. It would seem, that, in general, declarations of the nature Admissible T -1 • 1? 1 1 • -1 1 /• • • • for whom. under consideration would not be admissible tor parties in pri- vity with the persons making them. (2) («) For although (1) Chambers u. Bernasconi, 1 Cr. M. Hardwicke, in Lefebure r. Warden, 2 & R. 367. It may be thought, from Ves. 54. In most of the cases relating the report of the case, that the Court ap- to written entries, the entries have been pear to have spoken with hesitation con- made by shopmen or agents, and in cerning the principle of the class of ca- Glynn v. Bank of England, 2 Ves. 43, ses under consideration. Lord Hardwicke doubis whether, in Sir (2) In Lord Raym. 745. Anon, 12 S. Evans's case, supra, p. 338, the en- Vin. 91. A. b. 25, Lord Holt says, that tries would have been admissible if shop-books are not evidence for trades- made by himself. And see by Lord men, but good evidence against them, or Hardwicke in Lefebure v. Warden, 2 for a strnnget ; aud see 12 Vin. Ab. 88, Ves. 54. In Doe v. Turford, supra, p. A. b. 15. Per Holt, Camb. 249, in 339, 3 Barn. & Ado!. 89(), the person Smart v. Williams. Lord Hardwicke, whose indorsement was admitted, acted in Glynn u. Bank of England, 2 Ves. 43, as agent. But it would seem that the adverting to the cases of tradesmen and circumstance of an entry being made by shop-books, says, there is no instance a shopman or agent is not a necessary where entries, in a man'.s own hand, qualification of the rule by which declara- have been admitted after any length of tions of the nature in question are admit- time as evidence. And see by Lord ted. (a) Parlies in privily. There are four kinds of privity ; privity in blood, as between heir and ancestor ; privity in representation, as between testator and executor, or the intestate and his administrators ; privity in law, as be- tween the Commonwealth by escheat, and the person dyinrr last seized with- out blood or privity of estate ; and privity in estate as between the donor 304 Hearsay Evidence. [Ch. 16. [ *345 ] the ^principle, on which such declarations are received, does not depend on the future use of the declaration, still the actu- al event of it's being made available for persons in privity witli the maker, would, it is conceived, in general, be regarded as proof of such an existing motive of interest, as according to the terms of the rule would exclude the evidence. It has been seen, in the case of Outrani v. Morewood, that entries, admitting a fact adverse to the interest of the person making them, were not allowed to be used for the benefit of persons claiming under the maker. Although no general rule has been laid down by the Courts on the subject, even as regards declarations against interest, and although the admissibility of that species of evidence rests on a different kind of presumption from the evidence under consideration, yet, it is conceived, that, in both instances the declarations can, in general, only be made use of by strangers in interest, (a) Indorse- There are, however, two remarkable decisions respecting boiid.**'" indorsements of interest, in which it appears to have been held, that a person's own declarations in the course of busi- ness were admissible for a party claiming under him, or suc- ceeding to his representative title, though it did not appear by negative evidence, but that the declarations were made at a time when they might have been made, and when, if made, they would have promoted the interest of the representatives of the maker. It is proper to observe, however, that the in- [ *346 1 dorsements in these cases, have by great authorities, *becn rep- resented simply as declarations against interest. In an action on a bond, (1) brought by the plaintiff as ad- (1) Seatle v. Lord Barrington, 2 Str. obtained in July, 172.3; the first action S26. 8 Mod. 279, S. C. 2 Lord Raym. was tried iiefore Pratt, C. J., in 1724; 1370, S. C o Brown, P. C. 535, S. C the second action, before Raymond, C. 3 P. Wrns. 397. 2 Eq. Ca. Ab. 414. n. .T., in 1726. Tho writ of error in the to Ca. 16, 12 Vin. Ab. p. 85. With Exclieqiier Chamber was in 1729; and reference to this case, the reader is re- the judi^ment of the Exchequer Chamber ferred to Glynn v. Bank of England, 2 was alHrmed on appeal to the House of Ves. 42. Turner v. Crisp, 2 Str. 827. Lords in 1730. (8ee the Reports in Rose V. Bryant, 2 Cambp. 323. Bos- Strange and Brown.) The time of the worth V. Cotchett. Gieadon v. Atkin, obligee's death is not stated in any of infra. The dates will be found to be as the reports; but it appears that adminis- follow: — The bond was dated in June, tration of his etfeots was sued out in 1697; the obligor died in 1710; the 1723, which was about twenty-six years plaintiff's letters of administration were after tiie date of the bond. and the donee, lessor and lessee, vendor and vendee, assignor and assignee, &c. Per Kennedy, J., in Gibblehouse v. Strong, o Rawle, 437. (a) Declarations of a party in his own favor may be given only in those cases in which from the nature of the thing, it is impossible to furnish any other evidence of the fact. 2 Nott & M'C. 596. For instance if it should be- come a question, whether a party knew the multiplication table, it could only be established by hearing him repeat it ; what he has said, therefore, must be resorted to, to prove that he knew it. The declarations of a party, made before an adverse possession was taken, as to his intention in removing Sect. 2.] Declarations of Duty. 305 ministratrix of her deceased husband (the obligee) against the defendant as administrator of the obHgor, the defendant insist- ed on the length of time that had elapsed between the date of the bond and the commencement of the action, which was about twenty-seven years, as raising a presumption, that the money had been paid : in answer to this, the plaintiff offered in evidence two indorsements on the bond, (2) in the hand- writing of the obligee, one dated in December, 1699, the oth- er in March, 1707, purporting, that the whole of the interest had been paid up to the time of these dates. The Chief Jus- tice Pratt, before whom the action was first tried, rejected the evidence, (3) on account of the inconvenience which would arise from allowing the obligee, in whose custody the bond always remains, to make such indorsements, whenever he might think proper. The plaintiff was accordingly nonsuit- ed. But after an argument in the Court of King's Bench ou a case stated for the opinion of that Court, the other three Judges held, (4) that the indorsements in question ought to have been left to the consideration ol the jury ; "for the jury (as the report in Strange states) niii^ht have reason to believe, that it was *done with the privity of the obligor ; and the con- r #347 1 stant practice is for the obligee to indorse the payment of in- terest, and that for the sake of the obligor, who is safer by such an indorsement than by taking a loose receipt." And the report in the 8th Mod. is full and strong to the same effect. " It is the daily practice (says that report) to make such in- dorsements on bonds, and generally at the request of the obligor ; and this is the best and surest evidence of the pay- ment of the money, because acquittances and notes may be lost, whereas indorsements will continue as so many brands on the bond, into whose hands soever it falls, as long as the original, which creates the charge, shall continue." The nonsuit was not set aside, because at that time there was a ])revailing notion, that as the plaintiff had been put out of Court by the nonsuit, the Court could not order a new trial. (2) Sec 3 Brown, P. C. 593, and 2 Mod. Lord Ilaytn. 1370. (4) See Report in Strange. (3) See the Reports in Strange, and 8 from llie premises may be given in evidence in his favor, on the traverse of un inquisition of forcible entry, o Litt. R. .5. The declarations of a person in possession of land, are- admissible to show the cliaracter and interest of such possession, notwithstanding the statute of frauds. 2 Greenl. II. 524.3. Whore the acts of a person can be given in evidence for him, his declara- tions in relation to such acts, must necessarily be admitted, as in tiie case of ■A claim, demand, or tender. 2 N. Ca. 4.'{"2. So, any act or declaration of eitiier party connected witli the transaction, whether prior or subsecjiient thereto, may be given in evidence, in order to show whiit that a^recmcut was. 1 Wend. 1!)!. 39 306 Hearsay Evidence. [Chap. 16. The plaintiff afterwards brought a new action, which was tried before Lord Raymond ; and the same indorsements were again offered in evidence, to repel the presumption of payment of the principal. The counsel for the defendant objected to the evidence, (1) on the ground, that it did not appear when those indorsements were made, otherwise than by the indorse- ments themselves. But Lord Raymond was of opinion, that the indorsements were evidence to be left to the considera- tion of the jury, and therefore allowed them to be read ; and, (as one report states) otJicr circumstantial evidence being giv- en to induce the jury to believe, that the bond had not been satisfied, (2) the plaintiff had a verdict. The defendant's counsel tendered a bill of exceptions, which was sealed by the Chief Justice ; and a writ of error was brought in the Exchequer Chamber. The errors were twice argued in the Exchequer Chamber, and the judgment of the Court of King's Bench was affirmed. (3) A writ of error was then brought in the House of Lords ; and after counsel had been heard on this writ of error, and the Judges had delivered their opinions [ *348 ] seriatim, the House of Lords *affirmed the judgment of the Exchequer Chamber. The grounds of the decision in the Ex- chequer Chamber, and in the House of Lords, do not appear inany of the reports. (1) [n) (1) See Report in Brown. (2) See tjiown's Report. (3) According to the Report in Strange, five judges tlionght the evidence admissible, — two were ol tlie contrary opinion. The Report in Brown iitates, tliat the judgment was aflirriied by the opinion of all the judges. (1) Upon the argument in the case of Bosvvorth v. Cotchett, Lord Eldon directed the record in Searle ;■. Lord Barrington to be examined, and it ap- peared that there was no mention of any circumsiances to shew, that ihe indorse- ments were made before the presumption of payment could have arisen. 'l"he time of the death of the obligee does not ap- pear to have been proved. It appearsfrom a note in Brown's re|)orts, that !Mr. B. Comyns was for revising the judgment; and that Loid Raymond, Ch. >T. Mr. Jus- tice Eyre, and Mr. Justice Probyn were absent. The observation of the Court, that the jury might have reason to be- lieve that the indorsement was made with tiie privity of the obligor, shows the loose ideas on the subject of evi- dence which prevailed at the period of the decision. In Glynn v. Bank of Eng- land, 2 Ves. 43, Lord I fardvvicUe states, that he considers, that in Searle v. Lord Barrington, the indorsements were made within the twenty years. Some credit appears to have been given to a presump- tion that the indorsements were within time, from tlie fact of their appearing to be so by their date, vide by Lord HardwicUe, ib., and Turner v. Crisp, 2 Str. 827. But if there had been no date at all, the probabiliiy of a person fabricating the entry would not have been stronger than that of a per- son fabricating a date. Lord Ilard- wicUe, 2 Ves. 43, seems to have consid- ered that the declarations of an individ- ual might be available for his representa- tives, when they were originally against his interest; and when it is only by the consequential use of them, that his prop- erty is benetiied. But this assumes a pos- itive sacrifice of interest to be proved in the lirst instance, and in the next place an absence of any contemplation of a greater future benefit. Lord Ilardwicke, however, lays it down as a fundamental rule, that a man shall not be permitted to make evidence for himself; and on this ground, that a list of bank notes, in the testator's handwriting, was inad- missible for his representatives, to prove the fact of his having been formerly in possession of the notes. (a) In Rosebroom v. Billington, 17 J. R. 182, it was decided, that an endorse- ment on a bond or note, made by the obligee or promisee, without the privity Sect. 2.] Declarations of Duty. 307 The case of Searle v. Lord Barrins'ton, has been followed i'>o'o"e- ~ niciit 'on by that of Bosworth and Parr v. Cotchett, determined in the note. House of Lords. (2) In that case the payee of a promissory note had written indorsements of the half-yearly payment *of [ *349 ] interest, from the time of making the note till his death (which happened within six years of the date of the note) and the like indorsements had been written by his executor (who died before the commencement of the action) ; and it was adjudged, that these indorsements were admissible in evidence in answer to a plea of the statute of limitations ; though there was no extrinsic evidence oifered of the time when the in- dorsments were made, and though more than six years had elapsed between the death of the maker of the note, and that of the executor. In the case of GleadonY. Atkin^ (1) it was held that an in- dorsement upon a bond in the handwriting of the obligee, which appeared to have been made at or about the time when the bond was executed, but which was not proved to have been ever seen by the obligor, stating that the bond was giv- en to the obligee in trust for a third person, was admissible in evidence to connect the payments of interest with the bond, the bond being upwards of twenty years old, but interest hav- ing been paid within twenty years by the obligor to the third person. The authorities of Searle v. Lord Barrington^ and Bosioorth and Cotchett, were relied on in the decision of the Court, and Bayley B., observed, that he had discovered by (2) Tried at LeicesterSum. ASS. 1819, respecting the privity of the obligator, before Richards, Ch. B. Judgment in the the ground of the decisions appears to House of Lords, dh May, 1824. By have been the inference to be drawn the Stat. 9 Geo. 4, c. 14, it is enacted, from the ordinary course of business, that " no indorsement or memorandum The usual course of business, indeed, of payment, written or made, by or on proves, that ivhen interest is paid, such behalf of the party to whom such piiy- is the usual way of receipting it, and ment should be made, shall be deemed that is all. In the absence of all evi- sutEcient proof of such payment, so as dence to the contrary, an indorsement to take the case out of the statute of on a promissory note, adniitting the re- limitations." In this case and in that of ceipt of interest, will be presumed to Searle v. Lord Barrington, (the principle have been made at the time it bears of which appears to be condemned by date, see Smith v. Baltey, 1 JNL & Ro. the Slat, of 9 Geo. 4, c. 14,) notwith- 341. standing what is said in the latter case, (1) Cr. S: M. 410. of the debtor, cannot be admitted as evidence of payment in favor of the party makinjr such endorsement, unless it be shown that it was made at a time when its operation woukl bo against tlie interest of the party rnakinnf it If such proof be given, it would bn good evidence for the consideration of the jury. See tlie observations of Ch. J. Spencer; and see also tiie caso of Clap V. IngersoU, 2 Fairf. R. 83, whicli upholds the same j)rinciple. Where a receipt of money is endorsed on a bond by the jilaintifl', it can- not be made the ground of inferring an acknowledgment by the defendant of the existing validity of the bond, and a promise to pay it, without clear proof that the payment was made by the authority or at the request of tho defendant. Tooker v. Doanc, 2 Hail, 532. 308 Hearsay Evidence. [Ch. 16. his own research, that in Stearic v. Lo7-d Barrington, evi- dence was given of the time when the indorsements were made, though it is not stated in the reports. The Court ap- pears to liave considered these two decisions as well as the case before them to fall within the principle, treated of in the first section of this chapter, that the declarations of a person liaving peculiar means of knowledge, having no interest to misrepresent and making a declaration against his interest are admissible in evidence after his death. It has been held, that where indorsements of receipts of part of a bond were proved to have been made after the pre- sumption of jiayment had taken place, they were inadmissi- [ *350 ] ble. (2) *And further, it has been held, that if a defendant pro- duces direct evidence of payment of a principal sum and in- terest at a certain time within twenty years, the plaintiff can- not be allowed to encounter that evidence by an indorsement in the handwriting of the obligee, purporting that interest and part of the principal Avere paid at a subsequent time; on the ground, that supposing the fact to be true, that the bond had been satisfied by payment it would obviously be to the advan- tage of the obligee to make such an indorsement which might afterwards be used as evidence in an action on the bond. (1) Lord EUenborough, in this case observed, that he was at a loss to see the principle on which such receipts in the hand- writing of a creditor had sometimes been admitted as evidence against the debtor, and that he was of opinion, that they could not properly be admitted, unless they were proved to have been written at a time when the effect of them was clearly in contradiction to the writer's interest. (2) The statute 7 Jac. 1, c. 12, enacts, that the shop-book of a tradesman shall not be evidence in any action for wares de- livered, or work done, above one year after the bringing of the action, except the tradesman or executor shall have ob- tained a bill of debt or obligation of the debtor for the said debt, or shall have brought against him some action, within a year next after the delivery of the wares or work done. And the second section provides that nothing in the act shall extend to the mutual trading and merchandize between trades- man and tradesman. At the time of making that act of par- liament, there was an opinion growing up, that after a cer- (2) Turner ». Crisp, 2 Str. 827. (2) Lord EUenborough appears to The Chief Justice saying, that it differ- have considered that sucn endorsenients ed from the case of Searle r. Lord I5ar- were oniy evidence as declarations rington, where the indorsennents appear against interest. Tlie limitation of to have been made before they could be actions on bonds is now provided for by thought necessary to be made use of to stat. 3 & 4 W. 4, ch. 42. The cases encounter the presumption. And see by in the text refer to the presumption of Lord Hardwici evidence of a debt by way of admission. (2) Where a com- (4) Scott V. Clare, 3 Campb. 623. clear. It is generally considered that (5) In this instance there might ap- an admission made without prejudice, is pear to be some reason for dispensing not receivable on the ground of policy vviih the proof of conviction, as the pro- in protecting such confidential overtures, duction of the witness may often be a But it would appear that an offer to get surprise or the opposite party. rid of an action has sometimes been (1) Wallace r. Small, 1 M. & M. held inadmissible on the ground of ir- 449, where Lord Tenterden said, that relevancy, as not anjounting to an ac- an offer to compromise might be very knowledgment of right Thus, in B. well made, without any restriction as to N. P. 236, it is said, " If A. sue B. for confidence. And see VVatts v. Lawson, 100/., and B. offer to pay him 20/., it ib. 447, n. Nicholson v. Smith, 3 St. Ca. shall not be received in evidence, for 129, where the defendant offered a sum this neither admits nor ascertains any of money to settle the action. debt, and is no more than saying, he (2) Cory t>. Bretton, 4 C. ^ P. 462. would get rid of the action." In Rouse By Lord Kenyon, in Gregory v. How- v. Redwood, 1 Esp. 155. Lord Ken- ard, 3 Esp. 113. See by Lord Kenyon, yon rejecied an admission, as being made in Waldridge w. Kennison, 1 Esp. 143, to a baililf on the party being arrested, and in Turner v. Railton, 2 Esp. 474. Hill r. Elliot, 5 C. & P. 426. On the B. N. P. 236. Harman r. Vanhatton, distinction between an offer to purchase 2 Vern. 717, Turton u. Benson, 1 P. peace, and an account stated. Wayman Wms. 497, The ground for the rejec- v. Ilillard, 7 Bing. 101. tion of the evidence does not seem very (a) In Jenner v. Joliffe, 6 J. R. 9, there was an attempt to prove the exist- ence of legal proceedings in Quebec, by the confession of the party. Thomp- son, J., says, " The confessions of a party have never been considered com- petent evidence of the execution of a specialty, and much less ought they to be admitted as proof of matters of record." The admissions of a party are competent evidence against himself only in cases where parol evidence would be admitted to establish the same facts, or where there is not in the judgment of the law higher and better evidence to be produced, 8 Wend. 480. Plaintiffs suing as a corporation must prove themselves duly incorporated by competent authority, on the plea of the general issue. 19 J. R, 300 ; 1 Wend. ryr^^. And this they must establisli by the proper evidence. 8 J. R. 378; 8 Wend. 480. In the latter case cited, it was contended that the de- fendant, by his contracts with the plaintitTs (a corporation) had admitted that they are a body corporate, duly constituted by law ; but the court over- ruled the position and said the existence of the corporation was not to be inferred from the contract with it by its corporate name. 324 Hearsay Evidence. [Ch. 18. miinication, without prejudice, liad taken place between the attornies of the plaintiff and defendant, and the plaintiff's at- torney three months afterwards called on the defendant to explain, why an earlier answer was not given to a proposition made in the course of the prior communication, it was held, that the evidence of what passed on the second occasion was inadmissible. (3) The rule under consideration does not apply, where admis- sions are made without it's being stated, that they are without prejudice^ (4) (a) or where an agreement, though purporting to be a compromise, has been finally concluded, (as, where it has been signed by the parties and executed,) (5) or where the admissions were made before an arbitrator. Jn this last case, though the proceedings are said to be before a domestic forum, yet the parties were at the time adversely contesting their rights. (6) The fact of a person having made an offer to [ *367 ] compromise a suit, is admissible *in evidence, and may be material, although it is improper to inquire into the terms of- fered. (1) Afimission A distinction also is to be made, on this subject, between facts during 3-'^ 'i-di'nission of some fact connected with the merits of the treaty. cause, and an admission of an indifferent fact, as of the hand- writing of a party. Thus on the trial of an action, which had been once withdrawn under a treaty between the parties, (3) Collins' Ex. t). Wright, Midi. Thompson v. Austen, 2 D. 8( R. 358, Spr. Cir. 1837. Per Lord Abinger. an offer to refer, where it was siiid by (4) VValliice «. Small, 1 U. k. M. 446. Mr. .lustice Bayley, that the essence of (5) Jrognell v. I^vvelyn, 9 Pr. 123, an offer of Compromise is, that the par- 128. ty making that offer is willing to submit (6) Westlake v. Collard, B. N. P. to a sacrifice, and make a concession. 236. 1 P. Wms. 497. Slack v. Bucli- Lord Kenyon said, that he should re- «nan, Peake, 5. See B. N. P. 236. ceive all such admissions before an arbi- Harman u. Van Hatton, 2 Vern. 717. trator, which a party would be compell- 1 P. Wms. 497. Waldridge v. Kenne- ed to make by a bill of discovery. — son, 1 Esp. 143. Doer. Evans, 3 C. Slack v. Buclianan, Peake, 5. Gre- & P, 220, where it is said that matters gory v. Howard, 3 Esp. 113. come as adversely before an arbitrator (1) Harding ?'. Jones, IT. G. 135, as before any other tribunal. The ad- where the fact of a person having called missions may be proved by an arbitra- for the purpose of compromising, was tor. Gregory r. Howard, 3 Esp. 113. material on a question of disputed hand- Tho evidence was of facts admitted, writing. (a) Wallace v. Small. The principle of this case has been denied, (11 Conn. R. 514); and it is said to be opposed to previous and subsequent de- cisions on this point. The court added, that they could not yield to its au- thority. " The rule is, that when the admission goes to the very point of the claim against him who makes it, and which, from the nature of the thing, or from the circumstances attending the case, cannot apparently be learned any other way, and is made during a negotiation, it can never be proved." Per Reeve, J., in Mitchell v. Preston, 5 Day, 100. In Williams v. Thorp, 8 Cowen, 201, Woodworth, J., says, that conces- sions or admissions made during the pendency of a treaty for compromising & suit, are not admissible in evidence against the party making them. Sect. 1.] Of Admissions. 325 Lord Kenyon allowed proof of the defendant's having admit- ted his acceptance on a bill of exchange, though the admission had been made during the treaty (2) ; he held, that any ad- mission by the party, respecting the subject matter of the ac- tion, pending a treaty on the faith of which it was made, could not be received to his prejudice : but added, that such a fact as that of the party's handwriting, not being coimected with the micrits of the cause, and capable of being easily proved, stood on difierent grounds, and that an admission of this fact might be received, (a) With respect to the question, whether the legal nature of aJ,'„""'f„'^, an admission requires it to be voluntary, there appears to be a distinction between civil and criminal cases. It has been con- sidered, that on the trial of civil actions, admissions are re- , ceivable in evidence, provided the compulsion, under which they are given, be legal, and the party was not impos- ed upon or under duress. (3) Thus, it has been held, that an examination before *commissioners of bankrupt was evi- [ *368 ] (2) Waldridge v. Kennison, 1 Esp. lion of witnesses to answer questions N. P. C. 143. Bayley on Wills, 379, subjecting them to civil actions. The 4lh edit. statute, which compels them to answer, (3) See per Lord Ellenborough, in appears to presume, that the answer of Slack V. Buchanan, Peake, 5. Collet wiinesses, though compulsory, may be ' t). Keith, 4 Esp. 21 12, where the witness used against them as admissions. In was examined on a trial, and was stop- another statute 7 .^ 8 G. 4, c. 29, com- ped before he had concluded his testi- pulsory exatninations are rendered inad- mony. Stockfleth v. De Tastet, 4 missible upon indictments for the ofien- Campb. 10. Vide infra, on the obliga- ces thereby created. (a) See 8 Pick. 254. In Hyde v. Stone, 7 Wend. 354, which was an ac- tion of trover, a demand was made of the defendant for the property, when he admitted that most of the prooerty had been sold or destroyed ; the re- maining articles then produced by him were proved to be of little value. Held, that such an admission did not come within the principle of admis- sions made with a view to a compromise. The admission of particular items of an account, or the admission of par- ticular facts, independent of an offer to pay, are not of the same character as an offer to pay money, by way of compromise, to get rid of an action. 2 Pick. 285 ; 4 id. 374 ; 5 Muinf. 507. But the offers of sums, prices, or pay- ments, made during an attempt to coinpromise, if not accepted, are not ad- missible against the party making them, either for the purpose of proving his liability, or fixing the amount; but the admission of facts ponding a ne- gotiation for settling the suit are of a different character; the latter are good evidence against him. 5 Mon. R. 3G3. In a conversation about the settlement of a controversy in respect to the construction of the draw of a bridge, the admission of one of the defend- ants was admitted to show that the draw was not complete ; Hosmer, C. J., saying; — "It is never the intendment of the law to shut out the truth ; but to repel any inference, which may arise irom a proposition made, not de- signed to admit the existence of a fact, but to buy one's peace. If an ad- mission, however, is made, because it is a fact, the evidence to prove it is competent, whatever motive may have prompted to the declaration." Hart- ford Bridge Co. v. Granger, 4 Conn. 142. 320 Hearsay Evidence. [Ch. 18, dence against the party making it. (1 ) And this, notwith- standing the party miglit have demurred to the questions, as exposing him to penaUies. With regard to criminal trials, it has indeed been ruled, that an examination before a committee of the House of Commons, Avas evidence in the trial of a misdemeanor ; (2) though it was objected, that the party, against whom the admission was used, could not have refused to answer the question, with- out being punished for a contempt of the House. But in a late case, it was held, that the balance sheet of a bankrupt, given on oath under his commission, was not admissible against him upon a criminal charge for concealing his ef- fects. (3) Indirect There is a species of admissions, wherein the existence and truth of the lact to be proved is assumed in the expressions, which are given in evidence. The expressions, in such ca- ses, are received as admissions of the fact, though they were used for a different purpose from that of acknowledging it ; and, as admissions they are allowed to supersede the necessity of producing more direct evidence. Thus, where in an action against the acceptor of a bill, his attorney gave notice to produce " all papers relating to a bill," [ *369 1 ^(described as in the declaration) "accepted by the defendant." This notice to produce was held to furnish prima facie evi- dence of the acceptance of the bill. (1) Where an auctioneer advertised for sale the property of J. S. a bankrupt, this was held to be evidence of the title of the assignees in an action against the auctioneer. (2) An undertaking by an attorney on the record to appear for two persons, described in the under- taking as joint owners of a ship, is evidence of joint ov/ner- ship. (3) (1) Stockfloth ». De Taste, 4 Camb. appears to be foanded. A bond with a 10. Robson V. Alexander, 1 B. St P. penalty given by a defendant, alleging 4-18. Smithi^. Be-ddnell, I Camp. 30. himself to be guilty of a nuisance, is ev- jMilward V. Forbes, 4 Esp. 172. It idence upon a trial for the misdemeanor, would seem that such an examination Re.x v. Neville, Peake, 91. could not be used as evidence of an ac- (1) Hill r. Squire, R. 8f M. 282. count stated, Tucker v Barrow, 7 B. & (2) Maltby v. Christie, 1 Esp. 340, C. 624. See Smith B.Beadnal, 1 Camp, commented on 16 East, 193, the evi- 50. dence was said to be conclusive, on the (2) Rex V. Merceron,2 Stark. C. 366. ground that it imported an authority from The evidence was admitted upon an in- the assignees ; for the bankruptcy would dictment for a misdemeanor. The de- have put an end to every authority, fendant had been compelled to appear which the bankrupt might have given to before the committee. The doctrine of Bell the goods. confessions does not appear to have been (3) Marshall u. Cliff, 4 Camp. 133. adverted to. To state upon an appeal that those (3) Re.\ V. Brilton, 1 M. & Ro. 297, against whose acts the complaint is made by Patterson J., and Alderson, J. Vide are Justices, is an admission of their infra, the doctrine of Confessions, upon jurisdiction : Rex v. Fisher, Cald. 135. the principles of which the distinction Sect. 1.] Of Admissions. 327 There is another species of implied admission, where a par- l"jj^ji^'^ ty has assumed a particular character, or where by his con- sions. (a) duct or language in the transaction in question, or in previous transactions of a similar nature, he has assumed the existence of the title upon which the opposite party relies. In speak- ing of cases of this latter description, Lord EUenborough ob- serves, in Dickenson v. Coward, (4) "I take it to be quite clear that any recognition of a person standing in a given re- lation to others, is prima facie evidence against the person making such recognition, that such relation exists." On an information against a military officer for making false returns, it is sufficient to prove that he acted in the char- acter alleged in the charge, without adducing direct evidence of his appointment. (5) In an action for penalties against a collector of taxes, proof of his collecting the taxes is sufficient ^evidence of his being collector, though his appointment is [ *370 ] by warrant under an act of parliament. (I) In an action against a clergyman for non-residence, the acts of the defend- ant as parson, and his receipt of the emoluments of the church, have been considered good evidence against him of his being parson, without formal proof of his title. (2) Upon an indict- " ment for embezzlement against a letter-carrier, proof that he (4) 1 B. 4- A. 679, recognised by (2) By Chambre, J., 1 N. R. 210. Lord Lyndhurst, in Inglis v. Spence, 1 Bevan, q t. v. Williams, 3 T. R. 635, Cr. M. ^ R. 436. It lias been said that n. (a). The evidence is spniien of by payment of money is evidence against Lord Kenyon as decisive. See Rex v. the payer of the title of the party recei- Kerne, 2 St. Tr. 964. Rex v. Brom- ving it, but is not evidence against the wich, 2 St. Tr. 966, proof of officia- receiver that the payer was the party ting as a Romish priest, held evidence bound to pay it. James v. Birn, 2 Sim. of taking orders. And see Rex v. Top- ^- Stu. 606. ham, 4 T. R. 126. Proof that A. B., (5) Rex V. Gardner, 2 Camp. 513. as the proprietor of a newspaper, had The fact of acting appeared from the given security for the payment of duties returns themselves, in which the defend- on advertisements, and had from time ant described himself as Major-Com- to lime applied to the stamp office, con- mandant. cerning duties on the paper, was licid to (I) Lister, q. t. t). Priestly, Whitew. be evidence of his being the publisher. 67. In several of the cases under this W here a lessee covenanted, that a lease bead, the evidence would be receivable should be avoided, on a bankruptcy, indep(!ndently of the doctrine of adniis- proof of submissson to a commission was sionis in consequence of the rule, that held to be evidence of bankruptcy, Doe acting in a particular capacity is presump- v. Hodgson, per Lord 'I'cnterden, Sitt. tive evidence of a due appointment. after Easter Term, 1823, 2 St. Ev. 20. [a] Although an agent acts contrary to his duty and his instructions, the principal shall not be permitted to impeach his conduct, if he with a knowl- edge of all the facts adopts his acts. lie must dissent and give notice in a reasonable time, or his assent to what has been done shall be presumed. Cod wise V. Hacker, 1 Caines R. .539; 1 J. Cas. 110; 12 J. R. 300. Where the defendant draws the plaintiff in to perform labor, on a fraudu- lent representation that he had title to the land on which a mill was to be erected and could communicate a right to the plaintiff; held, that the plain- tiff was entitled to recover pay for such labor on an implied promise on the common count Richard v. Stanton, 1(> Wend. 19. 328 Hearsay Evidence. [Ch. 18. acted as such, was held sufficient without shewing his ap- pointment. (3) In an action for penalties under the post-horse act, brought by the plain tifi' as I'arnier-gencral, proof of his appointment was dispensed with, because the defendant had previously ac- counted with him as farmer-general. (4) In an action for sub- traction of tithes, proof of the defendant's former acknowledg- ment of the plaintilf's title to the tithes, was thought to be sufficient evidence as against the defendant, a wrong doer. (5) In an action by the clerk of the trustees of a turnpike road, [ *371 ] *brought against one of the trustees, the fact that the plain- tiff had acted as clerk, and that the defendant had acknowl- edged him as such, is evidence of the plaintiff's appoint- ment. (1) (a) In an action by the assignee of a bankrupt, proof that the defendant had attended a meeting of the commission- ers, and exhibited an account between him and the bankrupt, claiming certain deductions, and afterwards made the plaintiff a part payment, this was held to be prima facie evidence of the plaintiff's title to sue as assignee ; but the Court ob- served, that it Avas certainly not conclusive. (2) (3) Barrett's case, 6 C. & P. 1 24. T. R. 366. Chapman v. Beard, 3 Anslr. (4) Radford, q. t. v. Mackinlosli, 3 492. T. R. 632. And see Cross I). Kaye, 6 (1) Pritchard u. Walker, 3 C. & P. T. R. 663, and 1 N. R. 205, 211. Pea- 212. cocU V. Harris, 10 East, 105. In Sriiilh (2) Dickenson v. Coward, IB. & A. t). Taylor, 1 N. R. 211. Chambre J., 679. Inglis u. Spence, 1 Cr. M. & R. appears to have considered the case of 432, admission of title in letters to so- Radford u. Mackintosh, as deciding that licitor of commission, see Crofton v. the evidence was an estoppel, for he says, Poole, 1 B. .^ Ad. 56S. Rex r. Barnes, that he thought the principle was pushed 1 St. 243 Clarke v. Clarke, 6 Esp. 61. too far in that decision; and that it would I>eke v. Howe, 6 Esp. 20. Mercer v. have been just, if the evidence had been Wise, 3 Esp. 219. Havelock v. Cook, decided as enough to put the defendant 5 T. R. 655. Pope v. Monk, 2 C. i^- P. upon proof of a negative." As to the ef- 112. Walker v. Burnell, Doug. 303. feet of admissions, whether they are con- Molt t). Mills, 3 C. & P. 197, on the elusive by way of estoppel, or only efleot of 6 Geo. 4, c. 16, as to bankrupt prima facie evidence, vide infra, p. petitioning for his discharge. Further 378 on the effect of admissions in bankruptcy, (5)IN. R. 210. 3 T. R. 635. 4 infra, Z'l^, n- [a] Proof that he acted as such is admissible to prove, that peace officers, justices of the peace, and other public officers acted in those characters, without producincf their appointments. Potter v. Luther, 3 J. R. 431 ; Reed V. Gillet, 12 id. 296; 6 N. H. R. 352. General reputation that a tax collector acted as such, was held to be prima facie proof that he was duly authorized to act in that capacity. El- dred v. Sexton, 5 Ohio, 216. See also 10 Wend. 2.54 and 3 Conn. 475. So, general reputation that a man acted as an assistant to a former deputy sur- veyor, or proof that many drafts or field notes remaining in the office are in the hand writing of a particular man, are evidence that he was an assistant. See7S. &R. 317; 1 Penn. R. 1. To prove a general allegation that a party holds a particular office, it is sufficient to show that he acts in that capacity ; such assumed character is sufficient against the party, as it operates by way of admission. Dean w. Gridley, 10 Wend. 254. There are cases where this would not be suffi- Sect. 1.] Of Admissions. 329 111 an action against the defendant for slander, for charging the plaintiff with being a swindler, and threatening that he would have him struck off the roll of attornies, the Court was of opinion, that the defendant's threat amounted to a distinct acknowledgment that the plaintiff was an attorney, and dis- pensed with further proof. (3) Upon the principle of the above mentioned cases, two of the Judges of the Court of Common Pleas were of opinion, that the plaintiff was entitled to recover in the case of Smith V. Taylor. (4) That was an action for defamation, in which ^J°^^f^ ""' the plaintiff averred, that he was a physician, and exercised qJaiidca- *the profession, and that the words were spoken concerning r°*o'ro i him as a physician. It appeared, that the words did not im- '■ -' pute want of qualification by degree, but only want of skill in practice ; and that the defendant called the plaintiff " Dr. *S*.'" when he spoke the words: and, further, the defendant, as an apothecary, had followed the directions of the plaintiff as a physician, in the business out of which the cause of ac- tion arose. These circumstances were considered by two of the Judges, against the opinion of the other two, as sufficient prima facie evidence of the plaintiff's qualification. On the sl'impiy"' other hand, if the words imply a charge, that the plaintiff ing. was not qualified to act in the particular character which he assumed, it has been held that the qualification ought to be proved, and that it will not be sufficient to show his acting in that capacity. ( I) (3) Ferryman v. Wise, 4 T. R. 366, (4) 1 New Rep. 196, hy Mansfield, recognised in I'earce i'. \Vh ile, 5 B. & C. J., nnd Heath, J ; but Rook, J., and C. 39, thereby superseding the necessity Chambre, .T., were of opinion, that the of proving tiie admission as an attorney, words did not admit the qualification, or a copy of the Roil. In an action (1) See the judgnieiil of Mansfield, for bribing one who had a vote at an C. .T., in I New Rep. 20 t, 207. Pick- election, the very offer to bribe is ovi- ford v. Gutch, 8 T. II. 3.')5,n. (a); Moi- dence against the defendant, that the ses v. Thornton, 8 T. 11. 303, where iho party solicited had a right to vote, words imply mere negligence or igno- Combe v. Pilt, Burr. 1586. Regg v. ranee, without admitling the plaintilf to Cargenven, 2 Wils. 395. In both the be qualified, and the plainlilF avers that cases the person bribed was admitted to he is rjualified, lie vviil be bound to vote. But Lord Mansfield and the rest prove his qualification, I N. K. 204, 207. of the Court held, that a man wlio hnd And see Collins v. Carnngie, 1 Ad. ^ E, given money to another for his vote, 703, where it is said that a [)erson, corn- should not be admitted to say that he plaining of .Slander upon him in a par- had no vote. .As to the conclusive ef- licular character, iiiu>t ])rove that he feet of the admission, vide in/ra, p. possesses that character, when the slan- 384, n. der does not admit it. cient: for iastance, had the (leforulant booti prosecuted f.ir refusing to ac- cept the office, then the hijjhest evidence must he pnuhtced. id. In that case, defendant was sued as overseer of nn liiy con uc . j^g^^^^j.^ ^^ aduiissious, when it is inconsistent with the claims asserted by them, although it be not, as in the cases before no- [ *377 ] ticed, in the nature of acquiescence in the acts of another ^per- son. Thus, in an action of debt, evidence that the plaintiff has taken the benefit of the insolvent act, and has not insert- ed the debt in question in his schedule, is an admission of it's not being due. (1) Where a tradesman makes out an account for goods sold, in the name of a particular person, it must be taken that they Avere furnished upon the credit of such per- son, unless it he shewn, by unequivocal evidence, that the credit was in fact given to another. (2) But the deposition of a witness, taken in a criminal proceed- Admission j^g before a magistrate, in the presence of the party charged, not imp le . .^ ^^^^ admissible in another proceeding against that party : in investigations of this nature, the person charged has not the (1) Dean and Chapter of Ely r. (4) Chambers u. Bernasconi, I Cr. Caldecott, 7 Bing. 433. An ancient M. 8f R. 347. A feoffment having an steward's booii of assessment of fines, indorsement of living seisin is not evi- not admitted in an action by the lord, for dence of the fact against the person pro- copyhold fines. ducing the deed from his custody : Doe (2) Vide infra, as \o admissions of d. Wilkins u. Lord Cleveland, 9 B. & persons, in pari jure. See Gilb. L. Ev. C. 870. 235. 4 T. R. 670. 5 T, R. 26. 2 (5) Hill v. Manchester W. W., 5 R. M. & S. 92. 13 East, 10. 3 Wils. 63. 4- Ad. 875. 3 T. R. 162. 1 T. R. 466. (1) Nichols v. Downes, 1 M. ^ Ra. (3) See Home Tooke's case, 25 13. Howell, 120. Watson's case, 2 St. 140. (2) Storr «. Scott, 6 C. & P. 241, Sect. 1.] Of Adniissions. 335 same facility of interposing, as he would have in a common conversation ; and therefore, the same inferences cannot be drawn from his silence or his conduct. (3) Where admissions involve matters of law as well as matters A'!'ni>.sioii of fact, they are obviously, in many instances, entitled to very little weight, and in some cases they have been altogether rejected. Thus, it has been held, that the discharge of a de- fendant by a Court of Quarter Sessions, under an insolvent act, could not be established by proof of an acknowledgment of the discharge by the plaintitf himself; for the discharge might have been irregular and v^oid, or might have been mis- taken by the plaintitf. (4) (a) *Vyith respect to the effect to be attributed to admissions, it ^-^^rt of is to be observed, that proof of a party to the suit having conducive made representations of facts, for particular purposes, and on admissions. particular occasions, may preclude him from relying on a case [ *378 ] which is inconsistent with those representations; thus operat- Thompson v. Uavenport, 9 B. 4- C. 2 Wils. 399, it was said. " that a de- 86, fendant saying in jest or in a loose rainb- (3) Melun t). Andrews. 1 M. §- M. ling talk, that he had lain with liie piain- 3.37. 2 C. 4- P. 193. Rex t'. Apple- tiff 's wife, would not be sufficient alone b}', 3 St. Ca. 33. See Finden v. West- to convict him in the action ; but if the lake, 1 -M. & M. 461. defendant had seriously and solemnly re- (4) Scalt r. Clare, 3 Camp. 236. cognised, that he knew the woman he Summerset v. Adamson, 1 Bing. 73, to had lain with was the plaintiff's wife, the like effect. An admission by a de- we thmk it would be evidence proper to fendant, on being arrested, and when he be left to the jury, wiihout proving the was ignorant whether he was bound by marriage." See Freeman's case. East's law to make the payment or not, was J'. C. 470. In Norwood's case. East's held admissible, by Lord Kenyon, Rouse P. C. 470, confession.! and cohahitita- V. Redwood, 1 Esp. 155. It seems to tion were admiited to prove the relaliori have been considered in Morris v. Miller, of husband and wife in a case of peiit Burr. 2057, see Dr. Smith r. Miller, ci- treason. In a case mentioned in 2 Stark, ted 2 Wils. 399, that in an aciion for Ev. 654, a prisoner was convicted of criminal conversation, an acknowledg- bigamy on proof of his deliberate admis- rnent that the defendant had committed sion of both marriages, in the presence adultery with the wife of the plaintiff of his first wife, before a magistrate, was not sufficient, wiihout proof of a However, in ^V'ilson v. Mitchell, 3 Camp, marriage in fact. In a subsequent case, 393, Lord Ellenborougli held, tha! an [a] In assumpsit for goods sold, &c. to a plea of the defendant's discharoo under the insolvent act in New York, the plaintiff replied, that after it was obtained, the defendant assented to, ratified, renewed, and confirmed the said judfrrnent and demand of the plaintiff: Held, that the action was pro- perly brought on the original promise. The court say, that the discharge does not make the original contract void, but suspends every remedy upon it; and that the new promi.se merely removes the bar interposed by the plea. And there is no distinction whether the action is founded on a judgment or simple contract ; for the judgment as evidence of a personal contract be- tween the parties, is certainly as capable of being set up and renewed by a new promise as any ordinary assumpsit, llildreth v. Shillabee, 2 Hall, 2.1l ; 8 Mass 127. See 7 J. R. 87 ; J4 id. 178 ; 3 Wend. 344 ; 4 id. 420 ; 4 Rawle 4.'')2. An acknowledgment by a principal a.s to the legal effect of a bond — to wit— that the agency continued after a particular time, is not admissible. 2 Pick. 223. 336 Hearsay Evidence. [Ch. IS. iiig as an estoppel. The kind of representations which have been held to have this eftect, seems for the most part to be, where on the faith of them a court of justice has been indu- ced to adopt a particular course of ])roceeding, or where other ]!ersons have on the faith of the representations been led to alter their condition. In some of tlie cases, the Courts appear ficknowleflgment by a plaintiff that she of coverture without evidence of an ac- u'Ms married to a particular individual tual marriage, (a) was not suliicient to support a defence [a] Except in prosecutions for bigamy and criminal conversation, a marriage may be proved, from cohabitation, reputation, acknowledgment of the par- lies, reception in the family, and other circumstances. Fenton v. Reed, 4 J. R. 52. The confession of the defendant charged with bigamy before a magis- trate, was hold not to be sufficient proof of the marriage. People i\ Ilum- ])hrey, 7 J. M. 314. So, in a prosecution for lascivious cohabitation, one being married, it was hold necessary to prove the marriage by witnesses who were present at (he ceremony, or by the record of the person authorized to solen)nize the marriage. 1.5 Mass. 1G3. A distinction is taken, between the nature of the proof of marriage, requi- site in ordinary cases of a civil nature,— such as those in which it is at- tempted to subject a man to the debts of his wife, — and in criminal prose- cutions, and the action for criminal conversation, which is "a sort of crimi- nal action." See the observations of Daggett, J. 6 Conn. 44G. However, in Cayford's case, 7 Greenl. ,57, which was an indictment for lascivious and lewd coliabitation, the defendant's confession was considered competent proof of a marriage in another state, to be submitted to the jury. Mellon, C. J. in delivering the judgment of the court, observes: — "Nothing is more clear than that proof of the voluntary confession of a man on trial for adultery or lascivious cohabitation, that he is guilty of the crime charged, is legal evidence ; and, in the absence of controlling evidence, is abundant- ly sufficient ; and the reason why his confession that he was a married inan at the time of committing the offence charged, should not be good also, is not very apparent. In several books, however, there seems to have been sonie distinction, though not a very clear one. Neither do we perceive why, in the case of a libel ibr divorce, the marriage of the libellant and lihellee may be proved by a regular certificate ; and yet a second marriage of the libellee with the person with whom the alleged crime of adultery was com- mitted, must be proved by the oath of some person present when the mar- riage was solemnized; as was required in the case of Ellis v. Ellis, 11 Mass. 92." In Farray v. Hallacher, 8 S. »fc R. 159, it was decided in a case of crim. con. that the declaration of the defendant that he knew the woman was married to the plaintiff, and that with this knowledge he seduced her, might be given in evidence in proof of the marriage. To this point see also, Rigg V. Curgenven, 2 VVils. 395. In Cayford's case, the proof of the defendant's confession was on oath; and he stated that he was married in England. Held, that the court were bound to presume that he was legally married, in the absence of all proof of an opposing character; especially after a cohabitation of ten or more years, and the birth of several children. The court say — " And if any thing more is necessary to show the legality of the marriage, there is proof of his having received property inherited by her, which he could not have obtained unless he had been lawfully married to her. Cases of foreign marriages stand on different ground from domestic. The latter may generally be proved with ease by record evidence, or by the oath of some person or persons who were present at the solemnization ; they being within the reach of the court's process; not so in case of marriages in a foreign country, or even in another state in the Union." Sect, l.j Of Admissions. 337 to have considered, that the general rule respecting the quali- ties of estoppels did not apply to representations of the nature in question. In others, the representations have been treated, for some purposes at least, as a branch of estoppels properly so called, and it has been held that, as being estoppels, they were not receivable in evidence except between parties and privies. But with regard to the rule of pleading estoppels specially, it seems that this rule does not apply to the repre- sentations in question, at least where they arise by matter of evidence. (1) {a) In Heme v. Rogers, (2) the rule upon the subject was laid (1) See per Lord Tenterden, in Wat- prol)ably be granted toties quolles. son r. Wace, oB. & C. 155, Per IJay- (2) 9 B. &, C. 5S6, by Bayley J. ley, J., in Heine u. Rogers, 9 B. & C. Tbe case determined that a bankrupt 5S6. Acnording lo tbe old law there was not estopped from bringing an ac- inight be an estoppel by matter in pais, tion against his assignees, by having giv- Coin. Dig'. Estoppel. There does not en up his lease to his lessors, on the' appear to be any instance of the repre- ground that the assignees were not par- sentations under consideration having lies or privies loiilie transaction. The been specially pleaded as estoppels. But doctrine of estoppels, Co. Litt. 352 a. in case of jury not giving such an efTect Com. D\g. E-^toppel, C, was referred to the representations. Erne w trial would to. W^ith respect to the estoppels in (a) An estoppel does not apply to the case of a parol contract. 7 Greenl. 16'i. In replevin for a horse, defendant pleaded property in G. ; the plaintiff in his replication stated that if G. had any property in the horse, he derived his title troin defendant by a sale to him, and the plaintiff being- ignorant of the sale to G. purchased the horse of defendant for value paid. Upon de- murrer, the court said — " The only doubt is whether the principles of es- toppels are applicable in the present case. Estoppels are not favored, as their object and tendency is to exclude the truth by closing the door of in- vestigation. We have not been able to find any decisions in which an es- toppel has been applied in case of a parol contract. On the facts disclosed by the pleadings the defendant passed no right to the plaintiff by the sale of the horse, becaitse he had none to convey, id. In the case of Jones v. Sasser, 1 Dev. & B ., Mr. Justice Gaston discusses the dottrine of legal and equitable estoppels. He considers, that no man is estopped by any" oral admission, or even any written admission not of record or under seal. All estoppels whether estoppels at common law, or equitable estoppels; are yo«Jirfcc/ upon the great principles of morality and public policy. 'I'heir purpose is to prevent that which deals in duplicity and inconsistency, and to establish some evidence as so conclusive a lest of truth, that it shall not be gainsaid. But estoppels are not to be favored by construction; — they are not favored ; for no man is to be precluded from showing the truth of his claim or defence, unless it be forbidden by a posi- tive rule of law. A person who has title to a slave, will not be estopped, by reason of any concealment or misrepresentation of that title, from setting- it up against one who claims as volunteer. An estoppel cannot be set up to defeat the law. Estoppels in pais cannot be j)lcaded, but arc given in evidence to the court and jury, and may operate as effectually as a technical esto[)pel under tbe direction of the court. ]!i J. li. 490; 8 Wend. 4^0. In Gould V. Chace, 1(5 J. R. 22(j, the defendant having- executed a promis- sory note, afterwards promised the assignee of the note to pay it : Held, that in an action on the note by the assignee, in the name of the payee, lie could not set off" de.mands which he had against the nominal plaiiitiif, prior to the making of the note. 43 338 Hearsay Evidence. [Chap. 18. [ *379 ] *down in these terms: — "The express admissions of a party to the suit, or admissions implied from his conduct, are evi- dence, and strong evidence against him ; but he is at liberty to prove, that such admissions were mistaken or were untrue, and he is not estopped or conchided by them, unless another person has been induced by them to alter his condition ; in such a case a party is estopped from disputing their truth, with respect to that person and those claiming under him ; but as to third persons he is not bound." (a) In an action of trespass, commenced in order to try the va- lidity of a commission of bankruptcy issued against the plain- tiff, where it was proved by the defendants, that the commis- sion issued against the plaintiff, in custody at the suit of the petitioning creditor, Avho was one of the defendants, and that the plaintiff had afterwards applied to the Court of King's Bench under the 49 Geo. 3, c. 121, s. 14, on the ground that he had become bankrupt, and that his detaining creditor had proved under the commission, it was held, that the plaintiff could not dispute the validity of the commission. Lord Ten- [ *380 ] terden *said, that "the estoppel arose by matter of evidence, and the question was, whether a party having availed himself of the commission for one purpose, can afterwards be allowed to assert to the same Judges, before whom he took the benefit of the commission, that the commission was invalid. Lord EUenborough (1) gave his opinion to the contrary, and that has never since been questioned." (2) matters of banliruptcy, in Clarke ?•. though evidence against the person mak- Ciarke, 6 Esp. 61, a bankrupt was es- ing it, and those claiming under him, is topped by acting in the sale of his effects, not conclusive evidence, except as to the In Lake v. Howe, 6 Esp. 20, a bank- person who may have been induced by rupt was estopped from questioning the it to alter his condition. In that case title of persons, whom he, by his con- parol evidence was admitted, to show duct, had procured to become assignees, why a receipt, indorsed on a bill or note. See Flower v. Herbert, 2 Ves. 326. that was so indorsed, and by whom the nion- a surrender by a bankrupt to commiss- ey therein mentioned was paid. The ioners is no estoppel. Rankin v. Hor- nonsuit, which was set aside by the ner, 16 East, 191, proof of debt not an Court, proceeds on the ground that the admission. It had been before consider- receipt was conclusive evidence, that the ed an estoppel, per Lord Mansfield, VVal- bill had been paid ^y the acceptor, ker V. Burnell, cited 3 'r. 11. 322. The (1) In Goldie v. Gunston, 4 Camp- admission in Mallby v. Christie, 1 Esp. 381. 340, cited 16 East, 193, and sujira, p. (2) Watson v. Wace, 5 B. & C 153, 364, was treated by Lord Kenyon as the plaintiff was nonsuited. It was con- conclusive. Further on admissions in tended, on the part of the plaintiff", that bankruptcy, s2/pj^a, 371, n In Graves the estoppel was not mutual, and had V. Key, 3 B. & Ad. 318, the Court lay not been pleaded, and was inferential down a general rule, that an admission and not direct. But Lord Tenterden (a) See post p. 597 n. where it is settled, that a mortgajree of a vessel may declare himself the legal owner, for the purpose of the registry acts, without in any manner altering the existing relations between him and the mortgagor. 1 Mason, 318. The object of the registry being merely to show her national character, and is op«n to explanation, in the same manner m the bill of sale. 2 Hall, 1 ; 18 J. R. 169. See also 8 Pick. 86. Sect. 1.] Of Admissions. 339 A petitioning creditor, who had sued out a commission of bankruptcy, upon an affidavit, stating the fact of bank- ruptcy, has been hold to be afterwards estopped from quesiioning that fact. And it was said by the Court, that those who had treated a parly as a bankrupt, should not af- terwards be allowed to gainsay their own assertions. (3) In an action for tolls, where a delendant had accounted with the plaintiff, and received credit from him as collector of ceriam turnpike tolls, but who had not been legally appointed, it Avas held that, after such an admission of the plaintiff being a person to be accounted Avith for the tolls, the defendant should not be permitted to dispute his title to recover the bal- ance of the account. (4) (a) *A person who had described himself as a physician can- [ not afterwards maintain an action for fees. (1) A vendee of goods, who has given to the vendor a bill of exchange in pay- ment, cannot afterwards dispute the reasonableness of the charge. (2) (6) And if a man hold out a woman as said, that tliis was not the case of an estoppel, strictly and technically so call- ed, and that it arose by matter of evi- dence. In Hearne v. Rogers, 9 B. 4- C. 577. Supra, p. 387, where represen- tations of the nature in question were considered as being governed by the strict doctrine of estoppels, it was sug- gested that it was a fact material to the decision of Watson v. Wace, that one of the defendants was the person from whose suit the plaintiff had been dis- charged. See Goldie r. Gunston, 4 Camp. 3S1. Mercer v. Wise, 2 Esp. 219. (3) Ledbetter v. Salt, 4 Bing. 62G. The action was brought by the assignee under the second commission. There does not appear to have been any mutu- ality in the estoppel, nor was it pleaded. And see Groves v. Western Canal Com- pany, 5 M. ^ S. 76. llarmar v. Davis, 7 Taunt. 577, estoppels of petitioning creditors. In Dovvden v. iowle, 4 Camp. 78, an admission of a petitioning creditor, who was also assignee of a bankrupt, was used against himself and his co-assignees, though it was contrary to his affidavit. (4) Peacock v. Harris, 10 East, 106, the action was by the administratrix of the collector. The case was compared by Lord Ellenborough to that a of tenant disputing his landlord's title. The col- lector having sent his bill to the defend- ant, the defendant sent back 5/., with a message that the remainder should be paid it! the next week. In Dickenson v. Coward, 1 B. 4- A. 679, the Court ap- pear to have considered, that accounting and paying to a person in a particular capacity was only prima facie evidence of his title, (1) Chorley v. Bolcott, 4 T. R. 317. Dip-combe ). Holmes, 2 Camp. 441. (2) Nash V. Turner, 1 Esp. 217. Sol- oinon r. Turner, 1 St. 51. Knox v. Wal- loy, 1 Esp. 159. •=381] (a) See 14 J. R. 338 ; 1 Hall 191, where it, was held, that where the defend- ant undertakes to enter into a contract with the plaintiff in tlioir corporate name, he thereby admits them to be duly constituted a body politic and cor- porate under such nBine. A later decision, however, seems to consider this doctrine in reference to a corporation as unsound. See 8 Wend. 480 ; and see post. p. ?>'J~). n. Where tiie plaintiffs had acted as trustees of a religious corporation ; and hroui^ht a suit colon', officii, the defendant cannot sustain an objection to tiioir ritfjit of recovery, on tiio ground that they ;ue not trustees, witluml showiufj that proceedings have been instituted aguiiist them by the . VVingate, 6 T. R. Lord Raym. 1552. Atkinson «. Pr«rre- 62. Parkeru. Planning, 7 T. R. 537. point, Esp. Dig. 30. Phipps v. Scul- Blake v. Foster, 8 T. R. 487, that the tliorpe, 1 B. S,- A. 50. Parry v. House, lessor had an equitable estate. Cook r. Holt. C. 489. the original writ was not the property of the debtor, was frood evidence. Fuller V. Holden, 4 Mass. 498. The court said : — "Tf it had been ur^f^ed for the plaintiff, tiiat he has not alleged the property of the cows to be in Porter (debtor), and therefore the property of them was not in issue, it might have been answered, that the plaintiff lias suffered no damage whatever by the defendant's conduct, if the cows were not the property of Porter, and that the evidence could not injure him." (a) In the case of De Bertram v. Smith, 1 Esp. R. 29, Lord Kenyon said, " that though in point of fact, parties are not partners in trade, yet if one so represents himself, and by thnt means gets credit for goods for tiie otiier, that botli shall be liable." But tliis principle is denied in Mitolieli v. Roul- stone, et al, 2 Ilall, ;i")(), 7 by Oakley, J., who says: — " If the party repre- senting himself to be a partner, does so witli the knowledge of the other, or if the party obtaining the goods, knows tliat they are delivered on the faith of a representation by another, tiiat lie is a partner, tlie law may well raise a joltiI assumpsit against botli, tliough no partnership in fact exists. But I apprehend, that n joint assumpsit against two defendants, can never bo supported without evidence, express or implied, that both liave assented to the contract." See Whitney v. Sterling, 14 J. R. 215, wliere it was held, that it was com- petent to prove a partnership by general reputation. But see Bernard v. Torrance, r, G. &. J. 383. {b) See Carver v. Jarture from her landing port, is estopped against the assignee of such bill from claiming freight on the arrival of the vessel at her port of destination, Howard v. Tucker, 1 B. .^ Ad. 712. (2) Gosling V Birnie, 7 Bing. 345. The rule is laid down with the limitatioa in the text by Alderson, J. But the oth- er .Judges lay it down in a more unqual- ified way, See Stonard v. Dunkin, 2 Camp. 344. Hawes v. Watson, 2 B. rima/a- cie evidence of assets actually come to the hands of the executors, though it might be of future assets, unless, per- haps, where there had been long acqui- escence. (7) Bacon v. Chesney, 1 St. 193. The mistake was in the time of credit allowed for payment. (a) The payment of a less sum than the whole debt, without a release, is no satisfaction of the plaintiff's claim. Cumber i?. Wain, 1 str. 42(5 ; Har- rison V. Close, 2 J. R. 44'J ; Fitch v. Sutton, 5 East, 232 ; Seymour v. Min- turn, 17 J. R. 169. But where a beneficial interest is acquired, and a valu- able consideration received by the plaintiffs, when they agreed to accept less than the whole demand, it is different. Thus, where the defendant pro- cures other persons to endorse his note na further secnrltij, v/h'ich the creditor accepts in full satisfaction and discharge of the whole debt, held, that it is a discharjre, on the ground of an accord and satisfaction, 20 J. R. 7(5; (> Cranch, 253. 352 Hearsay Evidence. [Ch. 18. deii'vercd ^ ^'^^ delivered by an attorney to his client, for business done during a certain period, is strong presumptive evidence against any additional item within the same period ; but the bill is not like a deed to operate as an estoppel, and the party will be at liberty to prove the fact of having transacted other business for the defendant. (1) in<=crip- ^Yhe inscription on a stage coach, of the name of the party licensed to use it, is evidence against him of ownership, as well in an action as on summary proceedings. (2) It has been held that where a defendant signed an admission of a debt, to enable an attorney to prove it under a commission of bank- ruptcy then subsisting against him, it was not an admission of the delivery of a signed bill, and did not dispense with the necessity of proof of the delivery of such a bill, in an action subsequently brought for the same claim ; (3) because the bill Ceriificate. might have been proved under the commission without being delivered. A parish certificate is conclusive upon the parish granting it, with respect to that parish to which it is granted, and jonma/aae evidence with respect to other parishes. (4) Signature. ^\^ paper Written by a party is evidence against him by way of admission, although it is signed by another person. (5) Bill in *jt ^yg^s j,jj(j down bv Lord Kenyon, that a bill in Chancery Chancer}'. . r ' i* J > r *391 1 ^^ ^°^ evidence of any fact contained in it, but it was to be taken merely as the suggestion of counsel. (1) In the Banbury Peerage case a question was proposed to the Judges, " wheth- er any bill in Chancery can ever be received as evidence in a Court of Ijaw, to prove any facts either alleged or denied in such bill as filed in Chancery :" to which the Judges answer- ed that, " generally speaking, a bill in Chancery cannot be re- ceived as evidence in a Court of Law, to prove any fact eith- d) Loveridge t". Botham, 1 Bos. ^- (4) Rex «. Lnbbenham, 4 T. R. 251 . Pul. 49. It is there stated that an atlor- A certificate has been said to be mighty iiey's bill furnishes conclusive evidence evidence as to other piirishes ; see by ;igainst an increase of charge on any of Builer, J., citing the words of Lord Holt, the items contained in it. But there ib. does not appear to be any ground for (5) Alexander p. Brown, 1 C. & P. this distinction, except, perhaps, that 2SS. As to the effect of a signature as possibly the client might not be supposed evidence of a notice of the contents of aware of the omission of an item, but a written instrument, Harding v. Crelh- would naturally act in confidence, that em, Esp. 57. Vide infra, as to signa- the charges, of which he miaht not be an tures by prisoners of their examinations, adequate judge, were correct. On the (I) Uoe d. liowerman v. Sybourn, 7 effect of a bill delivered by the plaintiff T. R. 3. The bill was offered in evi- in support df a plea of abatement for dence by the lessor of the plaintiff, to non-joinder of parties, see 1 Stark. Ca. prove an admission by the defendant ; 296. the allegations in the bill, which was (2) Barford v. Nelson, 1 B. & Ad. filed by the defendant and another per- 571, whatever is written by a party may son, being inconsistent with the fact of be used as an admission against him, a legal estate being in the person, in though it be not signed by him, 1 C. i^- whom the defendant contended that it P. 288. was vested. (3) Eicke v. Nokes, 1 M, & M. 303. Sect. 1.] Of Admissions. 353 er alleged or denied in such bill as filed. But whether any- possible case may be put, which would form an exception to such general rule, they cannot undertake to say." (2) It will be observed, that the answer of the Judges does not pointed- ly negative the admissibility of a bill in Chancery when pro- duced by way of admission ; and there are authorities in fa- vour of such evidence being received. (3) It would seem, that the investigation of truth Avould be best promoted by receiv- ing the evidence, subject to such observations as might be called for, in regard to the usual manner in which bills of Chancery are prepared. With respect to verbal admissions, it may be observed, that ^f'^aiad- 11 -i-i lie • missions. they ought to be received with a great deal oi caution. It may *be a correct principle that the statement of a person to [ *392 ] the prejudice of his own interest, when used against himself, is entitled to credit without the tests of the party being sworn or cross-examined. Still the repetition of oral statements is always subject to great imperfections. The party from whom they proceed may probably not have correctly expressed his meaning : this meaning, if correctly expressed, may have been misunderstood : a slight alteration of the words, without any design of intentional misrepresentation, may entirely vary the effect of his statement. (1) Admissions must in all cases be brought home to the party Admissions in a suit, against whom they are used, or to some person who „fade.°'" is identified in interest with him ; and it is not a sufficient ground for receiving the admission, that it might have been used to the prejudice of the person from whom it proceeds. Thus, in an action of trover brought to recover the value of goods distrained on the ground that the defendant was not the plaintiff's landlord, the plaintiff's case Avas, that he had paid rent to another person, and it was held, that the statement (2) Le Marchanl's Gardiner peerage, ed, how far tlie question, of a bill in App. 413. 2 Selw. iV. P. 714. And Chancery being evidence by way of au see Ferrers v. Shirley, Fitzg. 197. 1 admission, was under the consideration Wighiw. .325. Wooilelt v. Roberts, 1 of the .ludges, in the answer stated in Ch, Ca. 64. Two other questions were the text. p3(). Per .Al- igrce, and that the statements in the bill, derson, B., Rex v. Simmons, (i ('. & 1*. or depositions could not be evidence 540. Oti the edect of admissions in the against a person not being party or pri- Ecclesiastical Courts, per Lord Stowell, vy to the proceedings ; it may bo doubt- 1 Hagg. 301. 45 354 llearsmj Evidence. [Gh. 18. of that person respecting the receipt of rent "Was not evidence without calling him. (2) Admissions. Aduiissions are clearly evidence against a party to the rec- bv DEriy X •' ord who has made them. But some questions have arisen as to what persons arc to be deemed parties ; the circumstance giving rise to these (picstions being, when one person is named a party on the record, who is only nominally a party, while an- other is the person really interested. On this subject,it has been held, that admissions are evidence in favour of the other side, whether made by a nominal party on the record, who sues as a trustee for the benefit of another, (3) or whether made by [ *393 1 the party *who is really interested in the suit, though not named on the record. ( 1 ) The following examples will illus- trate the several parts of this rule. Bypartj In the case of Bauerman and another v. Radenius (2) benlfrit°of which was an action by the shippers of goods against the cap- another. tain of a ship, for not delivering the goods in proper condition, a letter written by the plaintiffs was given in evidence on the part of the defendant, in which they entirely exculpated the defendant from all misconduct ; and it appeared also from the letter, that the goods were shipped on the risk of third per- sons, and that the plaintiffs were not really interested in the suit : the counsel on the other side contended, that the parties really interested ought not to be concluded by the admission of the plaintiffs, who were merely nominal parties in the ac- tion : Lord Kenyon was of a different opinion, and the plain- tiffs were nonsuited. The Court of King's Bench afterwards affirmed the nonsuit. Mr. Justice Lawrence, on that occa- sion said, "Van Dyck and Co., the persons on whose risk the goods were shipped, are in this difficulty ; the present plain- tiffs either have or have not an interest ; but it must be con- sidered that they have an interest, in order to support the ac- tion ; and if they have, an admission made by them, that they have no cause of action, is admissible evidence. I have look- ed into the books, to see if I could find any case in which it (2) Spargo v. Brown, 9 B. Sf C. 935. release, the Courts will sometimes or- See Bernasconi v. Farebrother, 3 B. Sf der it to be delivered up. Payne v. Ad. 372, and by Holroyd, J., in Barough Rogers, Doug. 291. 1 Chitt. 390. Tidd. V. White, 4 li. Sf C. 325. And vide (J77. infra. Secondary Evidence. (1) Rex 7-. Ilardwiclc, 11 East, 578, (3) Bauerman r. Radenius, 7 T. R. 589. An attorney conducting a case in 664. Craib v. D'Aeth, ib. 670, n., ad- Court may be called as a witness by the mission by obligee of an assigned bond, opposite side, and be asked who em- And this, notwithstanding the absence of ploys him, in order to shew the real par- any beneficial interest appearing, as in ty, and so let in his declarations, Levy Bauerman v. Radenius, from the adcnis- v. Pope, 1 ]M. Sf M. 440. sion itself. B. N. P. 237, conira. Salk. (2) 7 T. R. 664. 260. Where a nominal party gives a Sect, l.j Of Admissions. 355 has been holden, tliat an admission of a plaintiff on the rec- ord was not evidence, but have found none." (3) (a.) *In Abler v. George, (1) it was held, that a receipt in full, [ *394 ] given by the plaintiff on the record, could not be invalidated, by shewing that the plaintiff had assigned all his interest, and (3) In Davis »'. Ridge, 3 Esp. 101, ing creditor, and tiie admission related in an action against trustees for trust- to his debt, see Young v. Smith, 1 Esp. money received. Lord Eldon refused to 121. allow evidence of the admission of one (1) Camp. 392. See Gibson v. Win- of the trustees, of the receipt of trust- ter, 5 B. i^ Ad. 9(3. The proper remedy money. In Tullock i'. Duim, R. & M. is by appliciition to the equitable juris- 416, it was held, that a promise by one diction of the Court. By Lord Ellen- of the several executors is not sufficient borough, ih. Leigh v. Leigh, 1 B. ^ P. to take a case out of the statute of limi- 447. Payne v. Rogers, Doug. 407. tations. And see Atkins u. Tredgold, 2 It seems questionable, whether the re- B. & C. 28, that a payment by one of ceipt migiit not have been disputed on several alieno jure, does not raise an anotiier principle of analogy to the cases assumpsit ia all. In Dowden v. Fowle, in which it lias been held, tliat a security 4 Camp. 38, an admission by one of sev- given in fraud of third persons shall not eral assignees of a bankrupt was receiv- be available even as between the parlies ed, in an action in which the assignees iheniselves, Cockshot r. Bennet, 2 T. were the real parties. But the person R. 763. Smith v. Bromley. Uoug. 671. making the admission was also petition- (a) The admissions of persons in aider droit, such as an e.xecutor, is not admissible as evidence in a suit for a debt due from the testator, against his co-executors to establish the original demand. 4 Cowen, 493. But see Hill V. Buckminster, 5 Pick. 391. Where an e.xecutor of a will, was also a legatee and party to the record, it "was held, that his declarations were admissible to show wjiat occurred when the will was made. Atkins v. Sanger, 1 Pick. 192. In Baxter v. Penniman, 8 Mass. 134. it ^vas held, that an admission made to an executor or administrator, was sufficient to take a case out of the statute. In Emerson i'. Thompson, IG Mass. 429, the new promise to pay was made by an executor; and the court cite Baxter v. Penniman. In Pock V. Botsford, 7 Conn. 180, the will contained the clause " after my just debts and funeral charges are paid ;" and the executor acknowledged that some- thing was due; and afterwards reckoned with the plaintifl" and agreed that $65,(j(> was due to him: but the court decided, that neither the clause in the will, nor the acknowledgment of the executor would take the case out of the statute of limitations. See also the case of Scott v. Hancock, 13 Mass, 1G2; 3 Pick. 365; 5 Greenl. I in. The acts or admissions of executors are not evidence against heirs or devisees. 3 Cowen, 612; 1 id. 263, But the declarations of executors and devisees are admissible upon the issue devisavit vet non ; for such issue is in the nature of a suit, and the executors and devisees are regularly parties. 2 Murphy, 317. Peck V. Botsford, 7 Conn. R. 172, decides that an acknowledgment by an executor, that a demand against his testator, barred by the statute of limita- tions, is duo, is not sufficient to remove the statute as a bar. Martin v. Wil- liams, 7 J. R. 330 goes to the point only^ that, in an action by an executor, an acknowledgment of the debt by the debtor within six years, is evidence to support a new promise, and to remove the bar created by the statute. Ch. J. Marshall 12 Wh. R. . ')(!.'), says: — "Declarations against him (the personal roDre.sentativc) liave never been held to take the promise of the testator ov intestate out of the act. Indeed the contrary has been held." 356 Hearsay Evidence. [Ch. 18. By person inlerested, though not parly to the record. Cestui que trust of bond. Inlerflsted in policy. Interested in freight. [ *395 ] was a mere trustee, and that the receipt was fraudulently given. (a) In an action of debt upon a bond conditioned to pay money to L. D., for whose benefit the action was brought, the defend- ant proved that L. D. had said, in a conversation respecting this bond, that the defendant owed nothing ; upon which the jury found for the defendant. On a motion for a new trial, it was argued, that the declarations of L. D., who was not a par- ty to the action, ought not to affect the plaintiff; but the Court said, that the case was to be considered as if L. D. was the plaintiff", the action being for L. D.'s benefit. (2) An action upon a policy may be brought in the name of the person who effected it, though he be not the person in- terested ; yet the persons interested are so far looked upon as parties to the suit, that the declarations of any of them are ad- missible in evidence against the plaintiff. (3) In an action by the master of a ship for freight, the declar- ations* of the owner of the ship are admissible against the plaintiff, as the action is brought for the owner's benefit. (1) (2) Hanson v. Parker, 1 Wils. 527. Kemble v. Farren, 3 C. & P. 623, where it appeared that the agreement which was llie subject of the suit, was made on behalf of the plaintiff and the other proprietors of a theatre, the dec- larations of the other proprietors were received. See Davis v. Dinvvoody, 4 T. R. 678, where the Court looked into the relation of trustee and cestui que trust, for the purpose of disqualifying a witness on the ground of interest. (3) By Lord Ellenborough, in Bell v. Ansley, 16 East, 143. See also the case of Duke v. Aldridge, cited by Counsel in Bauerman v. Kadenius, 7 T. R. 665, and Bell v. Smith, 5 B. 4- C. 188. (1) Smith V. Lyon, 3 Camp. 465. See Robson v. Andrade, 1 St. Ca. 372. Harrison v. Vallance, 1 Bing 45, where the defendant had admitted that he had detained the deed for the detention of which the action was brought, at the request of the person whose declarations were received, and who was substanti- ally interested in the detention of it. Mr. Justice Bayley, in Spargo t;. Brown, 9 B. & C. 938, says, that the parties in Harrison v. Vallance, were identified. — The case of Hart v. Horn, 2 Camp. 92, seems opposed to the preceding cases, where, in replevin, the declarations of the person under whom the defendant made cognizance were held not to be admissible for the plaintiff. It did not appear that the person making cog- nizance was indemnified. But in Han- cock V. Welsh, 1 St. Ca. 347, in an ac- tion of assumpsit, by A. B., against the assignees of a bankrupt for rent due from them as tenants, a verdict against the assignees in a replevin suit brought by the assignees against the plaintiff of A. B., and in which the bailiff made cognisance, was held to be admissible for A. B. in the action of assumpsit ; the issue found upon the cognizance being that the assignees were tenants of A. B. Vide Supra, p. 95, as to the in- competency of witnessess on the ground of being substantially parties. — Por other cases see 1 Wils. 257. 11 East, 578. 1 Bing. 45. 1 Stark. 372. Lord Raym. 190. 4 Camp. 38. 6 Esp. 121. 16 East, 143. 1 Esp. 390. 11 East, 584, n. Duke v. Aldridge, cited 7 T. R. 665. 1 Ventr. 350. 1 Esp. 395. (a) The contrary seems to haTC been decided in Frear v. Evertson, 20 J. 142. Here, the plaintiff on the record in an action of assumpsit to recover for goods sold and delivered had assigned his interest in the chose in action, of which the defendant had notice ; held, that evidence of admissions made Sect, 1.] Of Admissions. 357 With respect to admissions by rated parishioners, it seems rf.''^dpar- isliioncr* that upon an appeal against an order of removal, the declara- tions of a rated inhabitant of the appellant parish are evidence against that parish, without calling the inhabitant, and shew- ing that he refused to be examined. (2) (a) *A creditor who has indemnified a sheriff, for making a seiz- ^^^'3'. j"; , ■ r • ■ -Ti i~-ii (lemi)ifvilie'. ure under a writ oi execution, is considered as substantially r #39(3 1 (2) Rex V. Whiiiey, Lower, 1 M. on the same ground that the admissions & S. 636. In Rex v. JIaidwicU, of rated parishioners were received. In 11 East, 578, the party had refused to a previous case of the Corporation of be examined. Rex v. Wobourn, 10 London v. Long, 1 Camp. 22, wiiere East, 395, 402. Before tlie 54 Geo. 3, the question related to the powers of a e. 170, the admissions of rated parish- city officer, Lord Ellenborough held, that loners were received on account of their the declaraiions of an inditTerent individ- being parties to the suit, and it would ual of the Corporation were not admis- seeni that the statute wiiich renders par- sible, l)ut that lie would admit what the ishioners competent witnesses, does not otiicer himself had been iieard to say interfere with the rule of evidence res- upon the subject. Mayor of London v. pecting admissions. The power of call- Jolifle, 2 Keb. 295. Lord Dorset v. ing the inhabitant, even if he be com- Carter, 3 Keb. 300. Rex v. City of pellable to become a witness, may often London, 1 Ventr. '351. 2 Lev. 231. no! compensate for the loss of his admis- 2 Vern. 351. 11 East, 584, n. 7 T. sion. With respect to admissions by in- R. 665. Vide Supra, 94, on the in- dividual members of a corporation ; in competency of rated parishioners as wil- an action by the Trustees of Ancient nesses on the ground of their being par- Britons V. Spurrier, Sitt. after Easter ties. Weller v. Governors of l-'ound. Term, 1822, KB. In an action of as- Hosp. Peake, 163. 2 Lev. 231. 1 sumpsit for money had and received ; Vern. 254. B. N. P. 290. 5 T. R. defendant was employed to fetch a sum 174, competency of freemen of corpo- from the bank of the society — 10/. of it ration. Doe v. Tooth, 3 Y. ^ J. 19. was missing, a witness was allowed to Simons v. Smith, R. & M. 29, co-part- state what a member of the society had ner. VVhitmore v. Wilks, 1 \\. &, M. said the night afterwards; though the soci- 214, trustee suing by treasurer. Fenn v. ety consisted of six hundred members; and Granger, 3 Camp. 178, one or two less- the evidence was stated to be admitted ors iti ejectment. by him subsequently could not be admitted to impair the interest of the as- signee. The court added: — "As to his being a witness, that he was a party to the record was enough to exclude liim, unless by corisent of tlie real parties in interest." (a) But see the case of Osgood V.Manhattan Co., 3 Cowen, 623, where it is said that the case of King v. Hardwick, 11 East., 578, was directly over- ruled in Hartford Bank v. Hart, 5 Day, 493. The overseers of the poor for a town, which they represent, have no au- thority by their mere acts and declarations to cliange the settlement of a pauper from one town to another, and confess away the rights of tiieir cor- poration, and subject it to liabilities and burdens by any of their arrange- ments. 1 Fairf 18.5. Tlio admissions of one corporator cannot affect the corporation. 14 Maine, 141. Neither can the declarations of an agent when not acting in tiiat character affect tlie corporation. 7 Grecnl. R. 421. The late case of the Welland Canal v. Hatheway, 8 Wend. 480, decides that although defendant had entered into contracts with the plaintiffs, it did not dispense with proof on the part of the plaintiffs showing tiiat they are a corporation. The existence of the corporation was not to be inferred from the contract with it by its corporate name. 8ee also Jackson v. Plumb, 8 J. R. 378 ; 14 id. 41G. Plaintiffs suing as a corporation are bound to prove as part of their title, on the plea of the general issue, that they were incorpo- rated by competent authority. 19 J. 11. 300; 1 Wend. 555. But see 14 J. R. 238 ; 1 Hall 191 ; Cowen, 23. 358 Hearsay Evidence. [Ch. 18. IVlilii oil. Issue on lhii)iliiy n straiistL-r. [*39- tlic defendant, in an action brought against the sheriff on ac- count of the seizure ; (1) on the ground, that the sheriff, by his conduct, substitutes himself for the original defendant. (2) IJut in a late case it was held, that the declarations of a de- ceased petitioning creditor, made after the commission, are not evidence against the assignees, in an issue to try whether the commission was concerted between the petitioning credit- or, the bankrupt, and the attorney : (3) the petitioning credit- or, it was said, could not be taken to be the real party inter- ested in the cause ; and the result of the trial, if the verdict were for the plaintiff, would not necessarily be the supersed- ing of the commission, the issue being merely a proceeding to satisfy the Chancellor's conscience. Evidence of admissions, made by strangers to a suit, are sometimes received in evidence, where the question in the suit is, whether a particular claim might have been enforced as against those strangers. Thus it has been held, that on a ] plea in abatement for the non-joinder of A. B. as a *defendant, his declarations before action brought were evidence in sup- port of the plea; (1) on the ground, that whatever would be evidence in an action brought against him to prove him liable, might be received to prove his liability on this issue. Appar- ently, on the same principle, the admissions of bankrupts, or entries in their books, made before the act of bankruptcy, are receivable in evidence, to prove the petitioning creditors' debt. (2) And the admission of a petitioning creditor, made (1) Dyke v. Aldridge. cited 7 T. R. 665, see Dowden v. Fovvle, 4 Camp. 33. Youn? V. Smith, 6 Esp. 121. (2) Per Richard-'on, J., 3 B. & B. 13(). The circumstance that a person indemnifies a party to the record, does not seem in all cases sufficient to let in his admissions, Drake v. Sykes, 7 T. R. 117. That an admission which would be evidence against tlie party is evidence against the sheriff. Gibbon v. Coggan, 2 Camp. ISS. Slomon v. Heme, 2 Esp. 695. Williams ». Bridges, 2 St. 42. (3) Harwood v. Keys, 1 M. Sf R. 204. It was suggested by Patteson, J , that in Young v. Smith, 6 Esp. 121, which was loosely reported, the declara- tions must have been made before the commission, and that in Dowden v. Fowle, 4 Camp. 38, the fact of the pe- titioning creditor having indemnified the sheriff was the principle of the decision. The assignees gave the instructions for the defence. (1) Clay u. Langslow, 1 M. & M. 45. (2) Walts V. Thrope, 1 Camp. 376, entry in books. Hoare v. Coryton, 4 'Taunt. 560, a signed account. Taylor v. Kinloch, 1 St. 176. Ewer v. Preston, Rep. Temp. Hard. 378, see Evans v. Lake, B. N. P. 282. In Parker v. Bar- ker, 1 Br. (^ B. 9, a bankrupt's admis- sions that he was in partnership with a trader, were received as proof of the trading. But the propriety of this de- cision was doubted in Bromley v. King, R. Sf M. 22S. It may be observed, that in an action by assignees, the question as to the petitioning creditor's debt is, whether it could liave been enforced against the bankrupt, which point the admission clearly establishes. The bank- rupt's declarations before the act of bankruptcy may be used against the as- signees to shew a collusion as p:irt of the res gestcE. Thompson v. bridges, 8 Taunt. 336. After the bankruptcy, though before the commission or fiat, the admissions of the bankrupt are, it seems, not receivable. Smallcomb v. Bruges, 13 Pr. 136. Taylor u. Kinloch, 1 St. 176. Sanderson v. Laforest, 1 C, 4" P- 46. Though a bankrupt's declaration, that a bill would not be paid, has been admiiled to supply proof of notice, where the admission was made after bankruptcy and before the issuing of the Sect. 1.] Of Admissions. 359 before the commission, as to the amount of his debt^ is, on a similar ground, receivable in evidence against the assignees of a bankrupt. (3) In cases of this description the issue ap- pears to be, what were the mutual rights of two persons, (one or both being strangers to the suit,) at a particular period ; which inquiry would seem to let in such evidence as *would [ *393 ] have been receivable between those persons. In the last ex- ample, however, it is not clear, that the decision did not turn on the point, that the assignees were liable to be atfectcd by admissions of the petitioning creditor, because he was a privy in estate. An admission may have been made by a party to a record, j^!'"^,';^^J'^''" when in a different capacity from that in which he is concern- in (iirterent ed as regards the suit ; and it seems to have been considered, <^''i''"^'0- in such a case, that his former admission ought not to be ev- idence against him. For the change which has taken place in his interest, his means of knowledge, and his powers of acting, shew that his former admission is not a safe criterion of the truth of the claim or defence , which he is at present setting up. And the injustice of allowing his former admis- sion to be used against him may appear to be the greater, where by the change of his situation he has become the rep- resentative of the interest of others, with whom in his former situation he had no privity. Thus it has been held, that the declarations of a person, made before he became assignee of a bankrupt, are not evi- dence against him, when suing as such assignee. (1) And the declarations of a prodiein ami, made before action brought, are not admissible for the defendant. (2) It appears to be a general principle, that, in a civil suit by ^v other or against several persons, who are proved to have a joint in- The suit, terest in the decision, a declaration made by one of those per- com mission. Brett v. Levett, 13 E. that he could nut but ttiink that the dec- 213, cited in Taylor v. Kinlocli, 1 Stark, larations must have been made before the Ca. 176. But at the period of that de- conimis^sion. cision, as it would seem from the case (1) Fenvvick w. Tiiornton, 1 M. & M. of Dowlon V. Cross, 1 Esp. 168, there 51. cited, a bankrupt's declarations, were (2) Webb v. Smith, R- &. M. 106. admitted to prove the petitioning credi- This rule is illustrated by the doctrine of tor's debt, if made at any time before estoppels. Thus, a woman is not estop- the commission issued. See Schooling ped, after coverture, by an admission up- M. Lee, 3 St. 151. Marsh v. Meager, 3 on record by her husijand and herself St. 353. Bernasconi v. Farebrotber, 3 during coverture. An heir claiming as B. Sf Ad. 372. An admission made af- heir of his father is not estopped by an ter an act of bankruptcy, is evidence e.stot)pel upon him as heir to his mother, against the bankrupt himself in an action A party suing as executor, in an action brought by him against an assignee, to of debt upon a bond, is not estopped, by try the validity of the commission. Jar- having been barred by an action on the rut I,'. Leonard, 2 M. &. S. 265. same bond when he sued as administra- (3) Smith V. Young, 6 Esp. 121. Of tor. Robinson's ca.so, 5 Co. 32 b. this case, Mr. Justice Pattesoii, in liar- Com. Dig. Estoppel, C. VVrottesly )'. wood y. Keys, 1 M. k Rob. 205, ob- Bendert, 3 P. W. 237. Baron v. GrcU served, that it vvaa loosely stated, and lard, 3 V. &. B. 166. 360 Hearsay Evidence. [Chap. 18. sons, concerning a material fact within his knowledge, is evi- dence against him, and against all wlio are parties with him [ *399 ] in the *suit. (1) (a) In an action of covenant against two de- fendants, tlie aflidavit of one of them was held to be evi- dence against both. (2) But unless there be a joint interest in the decii^ion, the admission of one defendant will not be re- ceivable against a co-defendant. (3) In actions of tort, the ad- mission of one co-defendant will not affect another co-defend- ant. (4) The rule is clear against the reception of such evi- dence, in the case of persons jointly indicted. (5) In an action against persons as partners, the j)artnership be- ing first proved, an admission by one of the defendants is ad- Bvpariner missiblc agaiust all. (G) (i) Thus, in an action by several suit. partners against the defendant for the non-performance of an agreement, a declaration by one of the partners suing, that the goods to which the agreement related, were his separate prop- erty, is evidence against all the plaintiffs suing as npon a joint contract. (7) An admission by one defendant, of his partner- ship with the co-defendants, who were sued with him as ac- ceptors of a bill of exchange, and who had been outlawed, (1) 11 East, 589. Tindal, in Daniells v. Potter, 1 M. & M. (2) Vicary's case, Gilb. Ev. 51. 502. Vide supra, p. 215. (3) This has been lield with respect (5) By Lord Kenyon, in Grant v. to the answers of co-defendants, on the ,Taci. In an action between partners to settle and adjust the partnership con- cerns inter se, each partner has necessarily an interest adverse to the others, and the answer of one cannot be given in evidence to increase the liability of another; as he would thereby diminish his own liability, or increase his claim on the common fund. Per Wilde, .f. 1 1 Pick. 338. In tliat case, the bill was against three partners ; one of whom denied in his answer that he was a partner; and held, that his answer was not admissible to charge him: — The second admitted that he was a partner, but denied owing the firm a balance ; and the court held, that the answer of a partner was not admissi- ble to prove the indebtedness of co-partner. "The principle would not ap- ply if the plaintiff was interested in one third of the partnership property, and the three defendants were jointly interested in tlie other two thirds, as charged in the bill. But all the defendants deny that such were the terms of the partnership. The plaintiff therefore is bound to prove his bill by- other evidence than that of the admission of one of the defendants. Such an admission would not bind the otiier defendants. See Woodcock v. Ben- nett, 1 Cowen, 743. {!)) See Ilackley v. Patrick, .3 ,T. R. 356, which was decided in the same year with Wood v. Braddick in the C. B. in England ; and also Waiden v. Sherburne, 15 id. 40!), where it is held, that one partner cannot bind his co- partner by admitting an account after a dissolution of the partnership. Other cases arc to the same effect. See!) Cowcii, 57 ; 7 id. ().50. Owings v. Low, 5G. iSi.I. 134—5; Shelton ?;. Cocke, 3 JVIiimf. lill ; (i id. I'Jl. Although the acknowledgment alter a dissolution is not admissible to create a debt ; yet the acknowledgment of one partner will bind his co-partner from avail- Part-owner instrument. 362 Hearsay Evidence. [Ch. 18. admitted into partnership subsequently to the transaction in question, is clearly not admissible in evidence as to such an- tecedent transaction. (2) An admission by a part owner of a ship, upon a subject of co-partnership, is not evidence against another part owner. (3) Parties to In }Vhitcomb V. Whitmgj (A) which was an action on a joint and several promissory note, given by the defendant and others, to which action the defendant pleaded the general is- sue and the statute of the limitations, the Court of King's Bench determined, that proof of payment of interest and part of the principal within six years, by one of the others, who was not sued, would take the case out of the statute. Lord Mansfield said, " payment by one is payment by all, the one acting virtually as agent for the rest ; and in the same manner an admission by one is an admission by all." Ditferent opin- ions have been expressed respecting the propriety of the deci- sion in this case : but the doctrine contained in it appears to be now clearly established, though it is only an authority for cases, where the admissions are made by a party originally li- able upon the instrument. (5) (a) (2) Catt V. Howard, 3 Stark. C. 5. Brandratn v. Wharton, IB. & A. 470, Pritchard V. Draper, 1 Russ. & Myl. where the acknowledgcnent was not ex- 191, admission after the dissolution of press, and where Jaci• N. H. R. 119, it was decided, tliat a payment by one joint debtor, docs not take a case out of the statute of limitations as to another. 364 HcarsuT/ Evidence. [Ch. 18. Authority to admit, not infer- red from ag-eney alone. and ill order to prove what was said, it cannot be necessary, that the agent himself should be called, (a) But where an agent has said or written any thing relative to a transaction which is past and completed, the question of the admissibility of the agent's declaration, without calling the agent, depends on the point whether the making of such a statement v/as within the scope of the agent's authority. (1) (b) Notwithstanding some vacillation of the law upon this sub- ject, (2) it appears to be now settled, that an authority to make an admission is not necessarily to be implied from an authority previously given in respect of the matter, to which (1) See the judgment of Sir W. Grant, Master of the Rolls, in Fairlie v. Hast- ings, 10 Ves. 127. Kahl v. Johnson, 4 Taunt. 565. Langhorn v. Alinut, 4 Taunt. 511. Helyarr. Hawke, 5 Esp. 74. Betham v. 13onson Gow, 45. Al- exander V. Gibson, 2 Camp. 555. Irv- ing V. Motley, 7 Bing. 553. Peyton v. Governors of St. Thomas's Hospital, 9 B. & r. 725. Prideaux v. Collier, 2 Stark. C. 57. Drake v. Marryat, 1 B. & C. 473. Peto V. Hague, 5 Esp. 134. Shumack v. Lock, 10 B. Moore, 39. Powell r. Hodgetts, 2 C. & P. 432. Declarations of an agent employed to imprison another. Peyton v. Gover- nors of St. Thomas's Hospital, admis- sion by surveyor of corporation, 3 C. & P. 363. Irving v. Motley, 7 lling. 550. Hazard v. Treadwell, 1 Str. 506. Shu- mack V. Lock, 10 B. Moore, 39. In Coates V. Bainbridge, 5 Bing. 58, the letters of the agent were received, be- cause adopted by the answers of the prin- cipal. (2) See Biggs v. Lawrence, S T. R. 454, where it was held, that if A. order- ed goods of B. to be delivered to C, an acknowledgtnent of the receipt by 0. was evidence against A. ; it was so held at 7iisi prills, by Buller, J. The case was afterwards decided upon a dilFerent ground, the illegality of the contract. The marginal note in 3 T. R. is incor- rect, for the agent was not employed to buy goods. As to which, see observa- tions of counsel in Bauerman v. Radeni- us, 7 T. R. 665, and by Lord Kenyon, quoted in 10 Ves. 12S. Doug. 751. Ev- ans V. Bealtie, 5 Esp. 26. Bacon v. Chesney, 1 St. C. 192. (ff) Whatever an agent says, does or writes, in the rnakinrr of a contract, is admissible in evidence against the principal. For example, the declara- tion of a servant employed to sell a horse, is evidence to charge the master with warranty, if made at the time of sale. Hough v. Doyle, 4 Rawle, 291 ; 6 Cowen, 90 ; 7 id. 752. It must clearly appear that it was said, done or ivritten at the time. An agent is authorized to act; therefore his acts, ex- plained by his declarations during the time of action, are obligatory on his principal, but he has no authority to inake confessions after he has acted, and therefore his principal is not bound by such confessions. 4 S.& E. 321 ; 10.LR. 225; 2 Wh. R. 380. [h) The rule that facts are to be proved on oath, extends to agents, as well as to other persons. Therefore, representations made by one witliout au- thority to act, and to a person also with whom his principal has authorized no contract to be made, are not admissible. 7 S. & R. 106. So. if the agent exceeds his authority, his principal is not bound. Gibson v. Colt, 7 J. R. 3!)0 ; 5 id. 58 ; 9 Mass. 272 ; 7 id. 23 ; 1 Blackf 213. A receipt of the premium by an agent of an insurance company will bind the latter, although no policy has been executed ; and the power of the agent may be inferred from hid own acts as Avell as from those of the prin- cipal. 4 Cowen, 645. See the case of Wyman v. Hallowell & Aug. Bank, 14 Mass. 62; id. 180 ; 17 id. 97; id. 29; id. 505, as to the authority of the agents and officers of banking companies to bind their principals. The case of VVilliams v. Mitch- ell, 17 Mass. 98, decides that tiie principal is holden for the payment of goods obtained by a general agent by means of a forged order. Sect. 1.] 0/ Admissions. 365 the admission *relates. Thus, in Fairlie v. Hastings. ( 1 ) [ *403 ] where the fact sought to be estabhshed was, that a bond had been executed by the defendant to the plaintiff, which the defendant had got possession of, the Master of the Rolls refused to admit, as evidence of tliis fact, the declaration of the defendant's agent, who had been employed to keep the bond for the plaintiff's benefit, and who, on it's being demanded by the plaintiff, informed him that it had been delivered to the defendant. The declar- ation of a servant employed to sell a horse is evidence to charge the master with a warranty, if made at the time of sale ; but the servant's admission of a warranty, made at any other time, is not receivable. (2) {a) In Garth v. Howard^ (3) it was held that under the cir- cumstances of the case, the declarations of a pawnbroker's shopman were not admissible against his employer. It was said by Chief Justice Tindal, that if the transaction, out of which the suit arose, had been one in the ordinary trade or business of the pawnbroker, a declaration of the shopman, that his master had received goods, might probably have been evidence against the master, as it might be held within the scope of such agent's authority to give an answer to such an inquiry, made by any person interested in the goods dcpos- (1) 10 Ves. 128. This is referred to rule with respect to admissions tliat they by Tindal, C. J., in Garth v. Howard, are only receivable when there is ;in au- 8 Bing. 452, as being the leading case on thority t» make them. Garth v. IIow- the subject. The Master of the Rolls ard, 8 Bing. 452. Maesters v. Abra- there lays down the rule respecting the ham, 1 Esp. 375. Helynr t-. Ilawke, 5 statements of agents to be, that they are Esp. 74. inadmissible, unless made by them eith- (2) Ilelyer i'. HawUe, 5 Esp. 72. See er at the time of their making an agree- Peto v. Hague, 5 Esp. 1.^4, ment about which they are employed, or (3) 8 Bing. 451, see Shuntiack v. in acting within the scope tf their author- Lock, 10 B. Moore, 39. ity. But it seems to be a more simple (a) Haven v. Brown, 7 Greenl. 421 ; 4 Wash. C C. R. 500 ; 2 Wheat. 380. Where the plaintiff in his declaration admits one to be his agent in a cer- tain transaction, he is bound by his admission. Brown v. Babcock, 3 Mass. 31. Ratification of an agent's acts is equivalent to previous authority. 13 id. 381 ; id. 3G3. When the principal appears to have given unlimited authority to an agent to contract for him, by signing bills of exchange or other commercial paper, he shall be bound in a particular contract which is made on the faith of au- thority so given. 14 Mass. G2. In that case, a new bank was incorporated by the same name of the old ; and the name being the same and the officers the same, they put into circulation notes of the old bank, saying there was no difference. Held, that the new corporation were not holden for the pay- ment of such notes. A minister of the law to execute the orders of the court, such as a mar- shall, cannot charge the owner of the property sold, so as to render him personally liable, while he acts witliin the scope of his authority; and tho rule mvcal emptor, applies generally, from the nature of the transaction, to all judicial sales. 9 Wlicat. GIG. 26ij Hearsay Evidence. [Ch. 18. ited with tlic pawnbroker. But the transaction appeared to have been a transaction unconnected with the business of the shop, and tlicre was no evidence to shew the agency of the shopman in such transactions. In the case of Maestcrs v. Jlhrahani, (4) Lord Kenyon, C. [ *401 J J., refused to admit an agent's letter as evidence of an Agree- ment against the principal, holding, that the agent himself ought to be examined. "If the agreement," said the Master of the Rolls, (1) adverting to this case, "was contained in the letter, I should have thought it suthcient to prove that the letter was written by the agent : but if the letter was offered as proof of the contents of a pre-existing agreement, then it was properly rejected." And the Court of Common Pleas has determined, after much argument, in the cases of KaJd v. Janson. (2) and Langhorn v. Allnut, (3) that the letters of an agent abroad to his principal, containing a narrative of the traiisaction in which he had been employed, were not admis- sible in evidence against the principal, as the mere representa- tion of the agent. The general rule on the subject was there fully recognised and confirmed. " When it is proved," said Mr. Justice Gibbs, that A. is agent to B., whatever A. does or says, or writes, in the making of a contract as agent of B., is admissible in evidence, because it is part of the contract, which he makes for B., and which therefore binds him, but it is not admissible as the agent's account of what passed." (4) When the declarations of an agent are admitted in evidence, they are received not for the purpose of establishing the truth of the fact stated, but as representations, by which the princi- pal is as much bound as if he had made them himself, and which are equally binding whether the fact stated be true or false. Express But an agent's admission will be binding on his principal, ed autilori. whcrc the making of the admission is within the scope of the 'y- agent's authority ; and the authority of an agent to make ad- mission may be either express, or implied from circum- stances. (5) (a) (4) 1 Eisp.'N. P. C. 375. would seem that the letters were con- (1) 10 Ves. 127. necled with and necessary to tlie explan- (2) 4 Taunt. 565. ation ot the defendant's own letters. (3) 4 Taunt. 511. Reyner v. Pearson, (5) Many of the cases respecting what 4 Taunt. 663. S. P. is sufficient proof of agency, whether (4) 4 Taunt. 519, where an agent's they be cases of express delegation, the letters were adopted and acted on by his recognition of former acts, course of bus- principal, that circumstance was consid- iness, or relative situation of the parties, ered as shewing that the letters were acts will be found useful upon the question within the scope of the agent's authority, what is sufficient authority in an agent to Coates V. Bainbridge, 5 Bing. 62. It make admissions. See particulnrly the (a) A person found in a store or merchant's counting-house, and appearing: to be entrusted with the business there, is authorized to receive payment Sect. ].] Of Admissions. 367 *Thus if one party refers another on a disputed fact to a third person as authorized to answer for him, ( 1 ) or employs an agent to make certain propositions respecting a transaction between himself and another, (2) he is bound by what his agent says or does within the scope of his authority, as much as if it had been done or said by himself. For example, in an action for goods sold and delivered, where it appeared at the trial, that in a conversation between the plaintiff and de- fendant, the former asserted that he had delivered the goods by one C, and the defendant replied, " If C will say, he did deliver the goods, I will pay for them," the plaintiff was al- lowed to give in evidence C.'s answer respecting the matter referred to him. (3) {a) In the case of Fahrigas v. Mosttjn, a point arose, which may serve as another example to illustrate the rule Express autlicrii V. [ *405 ] cases respecting proof of a general au- thority, inferred rroni recognition of an agent's acts in former instances. Neai v. Irving, 1 Esp. 61. Watkins v. Vince, 2 St. C. 368. Prescottr. Fiinn, 9 Bing 19. Paley on Principal and Agent, 201. Courleen v. Touse, 1 Catnp. 43, n. Whitehead v. Tucket, 15 East, 400. Doe V. E. L. W. W. Co., ."M. & M. 149, Tyler v. Duke of Leeds, 2 St. C. 218. Fenn v. Harrison, 3 T. R. 75. Betham v. Benson, Gow. 45. Coates v. Bainbridge, 5 Bing. 58. Evans v. Beattie, 5 Esp. 26. Bacon v. Chesney, 1 St. 192. Shu- mack V. Locke, 10 B. Moore, 39. Garth V. Howard, 5 C. ^ P. 346. Stevens v. Thatcher, peake, 187. 1 D. & R. 48. Cooke V. Maxwell, 2 St. 186. Hard- ing V. Carter, Park, Insur. 4. Rc.x. v. Almon, 5 Burr, 2686. Hazard v Tread- well, 1 Str. 506. Johnson v. Ward, 6 Esp. 48. Watkins v. Vince, 2 St. 368. As to proof of a written power, see John- son V. Mason, 1 Esp. 38. Coore v. Call- away, ib. 115. StPglitz V. Eggington, Holt, 141. Houghton v. Ewbanl<, 4 C. 88. A person once proved to be an agent is presumed to continue in that ca- pacity, Roberts v. Lady Gresley, 3 C. & Interpreter. P. 381. Particular examples of admis- sions by agents ; Richardson v. Ander- son, 1 Camp. 43, n., an agent who lia.s authority to subscribe a policy, has au- thority to sign an adjustment. Peyton v. Governor of St. Thomas's Hospital, liie admission of a surveyor to a corporation. Foote V. Hayne, 1 C. & P. 547, the plaintitr knew that her father was mak- ing representations to the defendant con- cerning her; it was held that his letters were evidence against her, though she was not answerable for particular expres- sions, (1) Daniel j). Pitt, 1 Camp. 366 Lloyd T. Willan, 1 Esp. N. P. C. 178. (2) Gainsford v. Grammar, 2 Camp. 9. (3) Daniel v. Pitt, 1 Camp. 366.— 6 Esp. N. P- C. 74. S. C. Williams v. Innes, 1 Camp. 364. Price v. Hollis, 1 M. & S.105. Brock v. Kent, ib. n. 366, Burt v. Palmer, 5 Esp. N. P. C, 145. Garnet v. Ball, 3 Siark. N. P. C. 160. Bretton r. Prettiman, Sir T. Raynr). 153. Brayne r. ^'eale, 3 Lev. 241. Hood V. Reeve, C. & P. 284, Godb. 291. 21 H. 6. fol. 31, pi. 17. 3 Camp. 366. 1 Esp. 178. and payment to him is evidence of payment to the merchant, althongli it turns out that he was not employed by him. 2 C. & M. '304. And where the question was as to the renewal of a note, the court held, that tiie trusting a clerk with the note made liim an agent, and tiicrefore his sayings and doings wore matters of fact to be laid before the jury. Tlie trusting him with tiie note, was of itself sutficicnt proof of his authority to act for them so far as concerned that note. 2 S. &. R. 197. (a) See Turner v. Coo, .5 Conn. \)3 ; Fenner v. Lewis, 10 J. R. 38, where it was held, that where tlie declarations of the wife arc referred to by tiie husband, as a test of a fact, then what she declares is good evidence against the husband, because she is made a witness by his consent. 368 Hearsay Evidence. [Oh. 18. f *406 1 ^^^"^^ laid *down. (1) There a witness, who had been em- ployed by the defendant to convey certain proposals to the j)]aintifi', explained them to him by an interpreter, from whom also he received the answer : the question was, whether the words of the interpreter could be given in evidence by the witness, as the answer of the plaintiff": or whether the inter- ];reter himself ouglit to be called, as the witness understood neither the questions put to the plaintiff", nor the answer made by him. But Mr. Justice Gould ruled, that the evidence of the witness was clearly admissible, and sufficient. Here the interpreter was the accredited agent of the parties, acting within the scope of his authority, and in the execution of his agency. J"fy- In a case where it was proved, that the defendant had said that if another jury were called, and they should find a par- ticular fact, he would pay a sum of money, it was held that this finding of the jury, coupled with the declaration, was evidence against the defendant, upon the principle of the au- thorities which make the declarations of persons referred to equivalent to their own admissions ; for the jury were to be considered in the nature of accredited agents, (2) Implied au- The admissious of an under-sheriff are not admissible in thonty. evidence against the sheriff, unless they tend to charge him- self where he is the real party in the cause ; as, in an action for an escape. In an action against the sheriff" for taking il- legal poundage, declarations of the under-sheriff', after he was out of office, were held not to be admissible to prove, that the bailiff", charged Avith having committed the extortion, Avas the sheriff's authorized agent. (3) Where, indeed, the dec- [ *407 ] larations of the *under-sheriff accompany official acts, they are in the nature of original evidence ; (1) though the admis- sions of a bailiff or sheriff's officer, where the authority is limited to the particular duties specified in his warrant, are not evidence against the sheriff". (2) What a bailiff" says (1) 11 St. Tr. 171. geneal doctrine of Lord Kenyon ia (2) Syhray v. White, 1 M. 8f Wei. Drake r. t*yli, it has been recently held suliicient to prove an examined copy of the writ on which the baililF's name was endorsed, and that a poison of that name actually executed the writ, and tl>at tlie course' of the slwriff's office was, that the name of the bailiff to whom the warrant was granted, was usu- ally indorsed on the writ. iScott v. Marshall, 2 Cr. & .T. 2.58. (4) Jacobs V Humphrey, 2 Cr. 4- M. 413. 4 Tyr. 272. (5) Alban v. Pritchett, « T. R. 680, wife's receipt for wages earned by her, not receivable. Hill r. Hill,2Slr. 1094. See Amin. 1 Str. 527. KerslaUe v. Shepherd, Esp. Dig. iN. P. 741. Denn V. While, 7 Esp. 112. Wile's admi:<- sion of a trespass, 3 P. Wms. 238; Salk. 350 ; Vern. 60, 109, 110. Answer of wife in equity. (1) 1 Camp. 395. It seems lo be a strong decision, that the wife had an au- thority to make an admission years after the time when the goods were furnish- ed. (2) 2 Esp. 511, n. And see Clifford V. Hurton, I liing. 199. 8 H. Moore. S. (J., where the wife offered to settle a demand for goods delivered at her husband's shop in which she served, and (a) See 2 N. & M'Cord, 374 : The husband has an intoroKt in the cause, and cannot be prejudiced, by an an act or declaration of the wife ; wlietlier his right be or be not ;it?'c uxoris^ By Hosmcr, C. J. 5 Conn. !K3. See -i Fairf. If)?. 47 370 Hearsay Evidence. [Ch. 18. Guardians. where it was proved that the wife managed her husband's business, and generally gave orders and paid for goods, (a) The declarations of a guardian are not admissible in evi- dence against a minor who sues by his guardian. (3) And the infant's answer in Chancery by his guardian cannot be read in evidence against the infant ; for the guardian is sworn and not the infant, and the guardian has not authority to prejudice the infant by his admissions. (4) I *A(\c\ 1 *Wilh respect to admissions made by attorneys, they are l -I considered as having an implied authority to make any ad- mission for the purpose of obviating the necessity of proving any fact upon a trial : as where an attorney gives a formal ad- mission of the execution of a deed, or of a dishonour of a bill, or where he makes propositions on behalf of his client. But whatever an attorney may happen to state in the course of conversation is not evidence in the cause. (1) With res- AKomies. the business of which she was in the liiibit of conducting. In Emerson t>. Blonden, 1 Esp. 141, the wife agreed for apartments which were occupied by herself and her husband, and Lord Ken- yon received the wife's acknowledg- ments as to the amount of rent due. — ■ It would seem, that it could not be infer- red from the wife having authority to make the agreement, that she liad au- thority to make the admission. In these cases respecting a wife's agency, the Courts appear to iiave been led away from defining the limits of her agency, by considering the point whether she could be an agent or not. See further Anderson v. Sanderson, 2 St. C. 204, Holt, 591. S. C, Sir. 527. Admission relating to agreement for suckling a child. Willes, 577; 7T. R. 112; 6 T. R. 176; 4 Campb. 70, 92 ; 5 Esp. 145 ; Str. .35. Petty r. Anderson, .3 Bing. 170. Barlow v. Bishop, 1 East, 432. Cotes v. Davis, 1 Camp. 485. Barker v. VVray, 2 Russ. Ch. C. 70. B. N. P. 28. As to facts from which the wife's agency may be inferred, see Palmer v. Sells, 3 l\ev. & M. 422. (3) Cowling r. Ely, 2 Stark. C. 366. Webb r. Smith, R. 8f M. 106, declara- tions of a prochem amy before action brought. Eggleston v. Speke, 3 Mod. 258. See James r. Hatfield, 1 Str. 548. (4) Eccleston v. Petty, Garth. 79. Gilb. Ev. 44. 3 P. Wms. 237, n. E. An answer, purporting to be the answer of a minor by his mother and guardian, may be read against the molher in an- other cause, in which she is defendant in her own capacity. Beasley, v. Magralh, 2 Sch. & Lef. 34. (1) Young r. Wright, 1 Campb. 141. Griffith r. Williams, 1 T. R. 610. 1 East, 568. Truslove v. Burton, 9 B. Rloore, 64. Goldie r. Shuttleworlh, 1 Campb. 70, where it was held that the admission by the attorney, of the execu- tion of a deed, did not preclude an ob- jection on the ground of variance. — Milward v. Temple, 1 Camp. 375, where it was held that the admission of the handwriting of a person attesting a deed, was tantamount to an admission of the execution by the defendant. — Marshall c. Clilt, 4 Campb. 133. Holt V. Squire, R. Sf M. 282. That an at- torney has an implied authority to make (rt) When making such declarations she was acting as his agent, or her declarations are referred to by him, as a test of a fact, then what she declares is good evidence against the husband, not by reason of her being his wife, but because she acts in pursuance of authority delegated by him, is made a witness by his consent. Fenner v. Lewis, 10 J. R. 38 ; 5 Conn. 93 ; 3 Fairf. 157. In Lawrence v. Hunt, 10 Wend. 80, where the wife hired out her hus- band's horse when he was from home, held, that the husband was not en- titled to maintain trover. The court observe, that the wife may rightfully exert the usual control over the property of the husband in his absence. Sect. l.J Of Admissions. 371 pect to the point who is such an attorney in the cause as may bind a party by his admission, it is, in general, enough to prove that the person making the admission is the attorney upon the record ; (2) yet it has been held, that a letter writ- ten to a plaintitfs attorney before action brought, by the attor- ney who afterwards appears in the cause for the defendant, is not evidence of a fact admitted therein without further proof, that the defendant authorized the communication. (3) *An [ *410 ] admission for the purpose of the trial of a cause may be used upon a new trial. (1) (a) With respect to admissions by counsel, it has been held, ^^' counsel, a special case, signed by the counsel on both sides, for the opinion of the Court above, and stating facts proved at the trial of the cause is admissible as evidence of those facts on a new trial. (2) Whether admissions, made by the defendant's propositions, either before or after the commencement of a suit, see Gains- ford V. Grammar, 2 Campb. 9. See Roe V. Wilkins, 3 Bing. N. C. 86, admission by attorney that his client claimed under a particular deed, by way of statement. In Young v. Wiight, 1 Campb. 141, Lord Ellenborough says, " it is clear, that whatever the attorney says in the course of conversation, is not evidence in the cause ; the witness had been ask- ed, whether he had not been told by the attorney for the plaintitT, that the bill, ■which was the subject of the action, was an accommodation bill. Wilson r. Turner, 1 Taunt. 30. In Perkins v. Hawkshaw, 2 St. 240, Holroyd J., held, that matter of conversation with an at- torney could not be evidence against his client ; the conversation in question amounted to an admission of the signa- ture of the deed. (2) Marshall t>. Cliff, 4 Campb. 133, as to admissions by clerks of atlornies, which may be given in evidence. Stand- age V. Creighton, 5 C. & P. 406. Per Lord Tenterden, in Taylor u. Williams, 2 B. & Ad. 656. By agents of attor- nies, Truslove v. Burton, 9 B. Moore, 64. See Meyer r. Sefton, 2 St. 274, letter of attorney with client's signature. (3) Wagstafi" r. Wilson, 4 B. 4- Ad. 339. And see Burghart v. Angerstein, 6 C. & P. 693. In Marshall v. ClilT, 4 Campb. 133, the attorney's letter reli- ed upon to prove the joint-ownership, contained an undertaking to appear for them, which was a step in the cause. — In Roberts v. Lady Gresley, 3 C. & P. 380, the party whose letter was produc- ed had already acted as agent for the defendant. If an attorney leaves the conduct of a cause to his clerk, what the latter does therein binds the parly. — Per Lord Tenterden, in Taylor r. \V' ill- ianis, 2 B. §• Ad. 856. (1) Elton V. Larkins, 1 M. & Ro. 196. Langley v. Earl of Oxford, 1 M. Sr W el. 508, where there had been an alteration in the pleadings. Doe d. Wetherell r. Bird, 7 C. & P. 6. A summons may be taken out to withdraw the admissions. (2) Vant WVl V. WoUey. R. & M. 4. In equity a party has been obliged to produce cases submitted for the opin- ion of counsel, but not the opinions. — Preston v. Carr, I Y. &. J. 175. See Bolton V. Corporation of Liverpool, 1 P. Coop. 22. That a statement prepared by an attorney for the opinion of coun- sel, is evidence against a party, or those identified in interest with him. See Bishop Meath v. Marquis of Winchester, 3 Bins. N. C. 211. (a) See 2 Hall, 54.5, where the court say — To a certain extent, the rio^lits of a party may be concluded by the acts of liis attorney. See 13 Mass. 'SlU; 1 Pick. 347; id 4r)L And in some cases, contrary to the express direction or his client; such as consenting to have a default stricken off. ] Wond. 108. If an attorney of record acquiesces in a proceedings, it binds tlie party. 1 Ohio, 270. See 1 Blackf. 327. And when the defendant's attorney on the record had admitted the execution of the note in suit, licld, that he could not afterwards be permitted to withdraw the admission, and require proof of the note. Daniel v. Ray, 1 Hill's R. 32. 372 Hearsay Evidence. [Chap. 18. counsel on a former trial can be received as evidence against the client on a new trial, even supposing the client to liave been present and within hearing, is a question upon which Autiioritv. doubts have been entertained. Such evidence has been re- Criminal . , . • • • /o\ case. jected \\\ one case at ntst prius. (o) Evidence of facts, by the admissions of agents, is receiva- ble in criminal as well as in civil cases. Thus, on the im- peachment of Lord Melville, (4) the House of Lords decided that a receipt given in the regular and official form by Mr. Douglas, (who, as it was proved, had been appointed by Lord Melville to be his attorney, to transact the business of his office of treasurer of the navy, and to receive all necessa- ry sums of money, and sign receipts for the same) was admis- sible as evidence against Lord Melville, to establish this sin- gle fact, that a person appointed by him, as his paymaster, did receive from the Exchequer a certain sum of money, in the ordinary course of business. "The first step in the proof of the charge," said the Lord Chancellor, " must advance by ev- idence applicable alike to civil and to criminal cases ; for a fact must be established by the same evidence, whether it is to be [ *411 ] followed *by a civil or criminal consequence, but it is to- tally a different question, in the consideration of criminal jus- tice, as distinguished from civil, how the noble person, now on trial, may be affected by the fact, when so established. The receipt by the paymaster would, in itself, involve him civilly, but could, by no possibility, convict him of a crime." Surety. It would sccm that a surety cannot, in general, be affected by evidence of an admission made by his principal. Thus, in an action upon a guarantee to pay for goods sold and deliv- ered to a third person, what such person has admitted respect- ing the delivery of the goods is not evidence to charge the person giving the guarantee. (1) In an action for contribution (3) See CpIIedge v. Horn, 3 Bing. the master upon a bond of indemnity. 119. The case of Perchard «. Hamilton was (4) 29 Howell's St. Tr. 746, cited, but was thought by Bayley, B., 763. not to apply. It vyould seem, however, (1) Evans v. Beattie, 5 Esp. 26. In to be in pomt. In Goss v, Watlington, Perchard u. Hamilton, 1 Esp. 394, ati 3 B. ^ B. 136. VVhitnash r. George, 8 action by a sheriff upon a bond to indeni- B. <|- C. 556, vide supra. The entries nify him against defaults of his bailiff, of deceased principals were received on A written admission b)i the bailiff of hav- the ground that they were made in ac- ing received levy-money, was held by counts which the sureties had contracted Lord Kenyon to be admissible against that they should faithfully keep. In Cut- the defendant, on the ground that the ler v. Newling, Manning's Di<^ Privies bailiff was in fact the defendant in the 137, on the execution of a writ of inqui- action. It does not appear that there ry on an indemnity bond, an admission was any evidence to shew that the de- by the principal of the amount of damni- fendant was indemnified by the bailiff, fication was considered by Holroyd, J., But in a trial at Warwick, Bayley, B,, inadmissible. See Bacon v. Chesney, 1 held that a written admission of sums re- St. 192, that the subsequent declarations ceived by a clerk was not evidence of a principal are not admissible to prove ,9^ainst a siirety in an action brought by the termsof the original contract. Sect. 1.] Of Admissions. 373 brought by one surety against a co-surety, where a defence was set up, that the party for whom they had become sureties had discharged the bond, for the due payment of which they were responsible, the declarations of the obligee, as to the ac- count upon which he received the money, and proof of the way in which he applied it, were held to be inadmissible, it not appearing that such declarations were made at the time of payment. (2) Where a party had become surety, by a bond for the faithful conduct of a clerk, it was held, in an action upon such bond, that an admission by the clerk, made after he was *discharged, of various sums which he had embezzled, [ *412 ] was not receivable in evidence against the surety. (1) Admissions are not only receivable against the parties, who ^''^'^y^^ make or authorize them, but also agamst persons identified in interest with those parties. The rules for the admissibility of such evidence are analogous to those which are found in the doctrine of estoppels, and which govern the admissibility of verdicts, judgments, and depositions. The reader is therefore referred to the second part of this Work, which treats of writ- ten evidence, for considerable illustration of the present sub- ject. It has, indeed, been necessary to anticipate some por- tion of what would properly belong to the second part of the Work, particularly as regards answers in Chancery, for the elucidation of the points which belong to the present Chap- ter. Thus, with regard to privies in blood and privies in law, tiood!"" the declarations of a deceased occupier of land, that he rent- ed it under a certain person, are evidence of that person's se- isin against a party claiming as the heir at law of such occu- pier, to explain the nature of the occupation, and to shew that it was not adverse. (2) The declarations of an intestate inlaw, are evidence against his administrator. (3) (2) Dunn v. Slee, Holt, 401. Such a session, or as a decltiration against inter- declaration made at the time of payment, est. See Peaceable v. Watson, 4 would seen) to be admissible as part of Tannt. 16. Doe r. Jones, 1 Campb. the res gestw, ib. 367. These points are illustrated by the (1) Smith V. W'hittingham, 6 C. ^ P. doctrine concerning the admissibilily of 78. See McGahey v. Alston, 2 M. i^ verdicts against privies in law and in Wei. 213. Goss v. Watlington, 3 Br. blood, infra, part two. Locke v. Nor- & B. 132. Middieton v. Melton, 16 B. bonne, 3 Mod. 141. See Outram v. 4- C. 317. Morewood, 3 Kast, 346. Co. Litt. 352, (2) Doe d. Human v. Pettett, 3 B. d^ a. Pol. 61, 66. Com. Dig. Estoppel, B., A. 223. If this case is to be treated as 3 T. K, 365. a case of admissions, it would seem im- (3) Smith v. Smith, 3 Bing. N. C. 32. material, that the declarant was deceas- The plaintilf was regarded as claitning ed. But the evidence may be consideiad under the intestate, though, in fact, he also as a declaration explanatory of pes- need not have done so. (a) In an action on the case against the sheriff, for the default of his dep- uty, the letters and confessions of i\\s deputy are competent. Tyler v. Ul- rner, 13 Mass. 498. 374 Hearsay Evidence. [Ch. 18. In estate. With rcspect to admissions made by persons who have been privies in estate to the parties, against whom the admis- sions are used, the evidence, when the parties are deceased, is [ *413 ] generally* admissible on a ditferent principle, as a declaration against interest. (1) And when the parties are alive, the evi- dence may frequently seem admissible, as explanatory of acts done or forborne, or of the fact of possession. (2) But without reference to either of these principles, it would seem that an admission by a proprietor or occupier possessing any interest, would be evidence as to the nature and extent of that inter- est, against a party who was in privity of estate with him. (3) The receipts for a modus, given by a vicar's lessee, are evi- dence against the vicar, by reason of the privity of estate. (4) An answer in Chancery is admissible in evidence against a privy in estate. (5) (a) A statement in a lease by a landlord has (1) Vide supra. (4) Jones «. Carrington, 1 C. & P. (2) Vide supra. 329. So although the party giving the (3) Doe d. IManton v. Thrupp, 9 Bing. receipts be entitled only un(ler an agree- 41. Walker r. Bradstock, 1 Esp. 4.51S. menl for a lease, ib. It would seem Davis V. Pierce, 2 T. R. 53. Baggaley that tiie receipts were admissible on a V. Jones, 1 Campb. 367. Doe v. Pellet, more general ground, as being declara- 5 f). ^ A. 223. Doe v. Rickerby, 5 tions against interest by deceased per- Esp, 4, bupra. 12 Vin. Ab. A. b. 38, sons. pi 10. Tindal r. Whitrow, 1 C. . Stong, .3 Rawle, 437. Mr. .Tustice Parris in Hatch v. I) emus, svpr a, concludes by saying: — " Upon a careful c.\';uiiiiiation of all the cases bear- ing upon tliis question including that of Whitakcr />. Brown, 8 Wend. 490, we think the weight of authority is in favor of admitting the declarations of the payee, when made under such circumstances as thi.s." VVhere the payee had guaranteed the payment of the nolo, it was held that his admissions were not admissible in an action against the maker, the court saying that he was a competent witness ihr defendant but not for the plaintiff. Dri.'^tol v. Dann, 12 Wend. J-J2. Uut sue post p. 418 note. {b) The declarations of the payee after he has parted with the note ara not admissible. 5 Watts, 4^2. 48 378 Hearsay Evidence. [Ch. 18. not those of a person who held the negotiable security under the same circumstances as the party to the action. In BeaucJiamp v. Vassey, it was held, that as the indorsee of a promissory note does not claim by the title of the indorser, but has a title of his own as indorsee, he ought not to be af- fected by any declarations of the indorser and payee, the note not being taken without consideration, or after it was due, notwithstanding the declarations were made whilst the payee and indorser were in the possession of the note. (2) rVat'^de- *But as a person cannot be regarded a privy in estate with termincd. a subscqueut posscssor of the estate, except during the time [ *417 ] when the estate was in his own possession, it has been held, that an answer in Chancery respecting the title to an advow- son, filed by one who had been formerly seised of the advow- son, but who had conveyed it away twenty years before the answer, was not admissible against a person claiming the ad- vowson, through him. (1) And admissions by a mortgagor, made after he had parted with his interest by a settlement, have been held not to be admissible on behalf of a mortga- gee, to shew that the money had actually been advanced on the mortgage, the mortgagee seeking to avoid the settlement as being voluntary. (2) An admission made by a person who takes a bankrupt's goods in execution, that he knew an act of bankruptcy had been committed, is not evidence against a per- son who takes the goods by assignment from the sheriff, where the admission is subsequent to the assignment. (3) It has been held, that the declaration by a prior owner of proper- ty whilst in possession, as to the person who was to be enti- tled to his property after his death, was not receivable against a subsequent owner of the same property ; though we have sssn that upon more than one ground, a declaration of such prior owner, to the effect that he had only a life estate, is admissible. (4) Author of Admissions respecting the subject matter of a cause, by a not called, person who at the time of making them had the same interest in such matter rts one of the parties to the cause, are admissi- (2) I Vt. Sf Ad. 91. An exception is tions or not. Some confusion is howev- there made as to declarations contempo- er introduced into the case by Lord El- raneous with the making of an instru- lenborough stating, that evidence of an nient, and the case of Kent v. Lowen act done was adinissibie against persons wag referred to, where letters from the claiming under those who did the act, payee to the maker were admitted, whereas the admissibility of the evidence which stated an usurious consideration does not appear to depend on the privity for the note. It was said, that if the de- of the parties. clarations had been made, as in the case (1) Gully v. Bishop of Exeter, 5 Bing. of Kent r. Lowen, at the time of the 17 L contract, the case might be different. (2) Doe d. Sweetland v. Webber, It is to be observed, that in Kent v. Low- 1 Ad. & El. 733. en, the letters were the usurious contract (3) Deady v. Harrison, 1 St. 60. itself, and it can make no difference (4) Harrison and wife v. Moore, whether an act consist of oral declara- Nott. Spr. Ass. 1837, per Littledale J. Sect. 1.] Of Admissions. 379 ble *in evidence against that party, though the person who [ *418 ] made the admissions is alive and might be called as a wit- ness. (1) (a) The same rules seem to apply to such admis- sions of agents as are receivable. There is perhaps some rea- son for the distinction between the rule which prevails in such cases, and that which governs declarations against inter- est, inasmuch as in the latter case, the party to the suit is to be affected by the declaration of a person with whom he has no community of interest, and for whose assertions he is not responsible. There are several other doctrines applicable to the subject of admissions, for which the reader must be referred to the sec- ond part of the Work : the pri:iciples alluded to having been established and elucidated in cases arising upon the admissi- bility of verdicts and depositions. And it may be observed, that the doctrines, which have been treated of in the present chapter, derive considerable illustration from that branch of the law of evidence. Besides the admissions, which have been more particularly the subject of consideration in the present chapter, there is another class consisting of admissions made in the course of the pleadings of a cause and particularly where there is a pay- ment of money into Court. The rules which govern admis- sions of this description are altogether technical, and more properly belong to that branch of law which treats of the prac- tice adopted by Courts, for ascertaining previously to a trial the material facts in dispute between the litigating parties, (b) (1) Woolway v. Rowe, 1 Ad, & El. 114. (ffl) See Jackson v. Bard, 4 J. R. 230 ; Jackson v. Myers, 11 Wend. 533 ; 12 id. 142 ; 7 Conn. 319 ; Gibblehouse v. Stong', 3 Rawle, 437. In this case, the declarations of one holding the legal title were admitted to show that he was merely a trustee for another who paid the purchase money, against those claiming under him, although he was at the time such declarations were offered in evidence, within the reach of the process of the court, and capa- ble of being examined as a witness. The application of this principle was recognized in 2 M'Cord 241, and in 2 Fairf. 249. But see 10 Conn. 8, where the declarations of one who was living and competent to testify, were held not to be admissible, although such declarations were against his in- terest at the time they were made. {/j) The plea of tender and payment of money into court is such an ad- mission as precludes objection to the form of the action. 6 Watts, 74. And if paid generally, and there are several counts, it admits the contract set out in each count. CI Pick. 340. Thus, where an agent of a corporation was to have such compensation as the board of directors should consider "reason- able"; and the corporation paid the money voted into court: Held, that plaintiff was notwithstanding entitled to recover a reasonable compensation ficcording to his declaration, id. 340. 380 Hearsay Evidence. [CIi. 18. [ *419 ] ^Section 11. Confessions. The confessions of prisoners are received in evidence upon the same principle upon which admissions in civil suits are received, viz. the presumption that a person will not make an untrue statement militating against his own interest. In criminal cases, a confession in civil suits, carries with it a greater probability of truth than a coufession, the consequen- ces being more serious and highly penal : " haheonus optimum testem, confitentem, reum.^^ (1) But it is to be observed, there may not unfrequently be motives of hope and fear inducing a person to make an untrue confession, which seldom operate in the case of admissions. (2) And, further, in consequence of the universal eagerness and zeal which prevail, for the de- tection of guilt, when offences occur of an aggravated char- acter, in consequence also of the necessity of using testimo- ny of suspicious witnesses for the discovery of secret crimes, the evidence of confessions is subject, in a very remarkable degree, to the imperfections attaching generally to hearsay evidence. (3) For these reasons, the statements of prisoners are often excluded *from being given in evidence, in cases L '*'^'-' J where they would be unobjectionable as the admissions of a party to a civil suit. i^oiTs™'"^' Confessions of prisoners are often made in the course of their examination before magistrates. These examinations are taken in the course of a judicial proceeding, and accord- ing to prescribed forms; consequently the evidence of confes- sions contained in them is obviously free from many of the (1) Confessions have been treated as (3) Foster's Disc. 243, where it is the highest and most satisfactory evi- oberved, that words in criminal cases dence of guilt. Grose, J., delivering the are often misreported through ignorance, opinion of the judges in Lambe's case, inattention, or malice, and extremely li- 2 Leach, 554, Gift). Ev. 137, VVarick- able to misconstruction, and that the evi- shall's case, 1 Leach, 263. dence cannot be disproved by negative (2) Foster's Discourses, 243; 4 Bl, evidence, in the same manner as facts. Comm. 357. Instances have occurred. Speech of Mr. Adam, in Crossfield's tri- of persons confessing themselves guit'y a1 for High Treason 26 Howell, 57, of crimes of which they were innocent, where it is observed, that the person re- and of their acting, whilst under the im- lating the confession is generally reliev- putation of crimes, in a manner afford- ed from the apprehension of punishment, ing strong presumption of guilt. See and that what people have said upon a cases of iVir. Harrison, cited 1 Leach, subject shocking or otherwise exciting, is 264, n. A case mentioned by Lord usually repeated with exaggeration. — Hale, in his PI. Cr. See also the con- And see per Alderson, B., in Rex v. fessions of Witches, 2 Howell, 1049; 4 Simons, 6 C. & P. 540, where a prison- Howell, 817; 6 Howell, 647. TheSuf- er's conversation with his wife was re- folk Witches tried by Lord Hale, 8 peated differently by the witnesses, Howell, 1017. tions. Sect. 2.] Confessions. 381 objections incident to various other species of hearsay evi- dence. As the principles apphcable to confessions in general apply to such as are contained in examinations before magistrates, it has not been thought expedient to treat of examinations apart from the general subject. A more particular account of such examinations, and the mode of proving them, will be found in the second part of the Work, which however, is un- avoidably anticipated in some measure in the present section. Various points also as to the verbal proof of confessions made in the presence of magistrates will be considered in the chap- ter on SecoTidarij Evidence. As we have had occasion to observe in treating of admis- fJsg"o,^.*'°"' sions, it is necessary that the whole of what a prisoner has said, on the occasion of making a confession, should be rela- ted entire. This rule did not prevail in early times, when it was usual, in state trials, to select arbitrarily from a prisoner's examination any part that might be prejudicial to him, though the whole examination, if taken together, might have had a different effect. (1) We have seen that the rule laid down in the Queen^s case, (2) respecting admissions and confessions, requires not only that those parts of a conversation *should [ *421 ] be received which explain or qualify the language of a con- fession, but such also as are not connected with the confession, provided they relate to the subject matter of the charge. Thoua:h it may, in strictness, be doubted, whether there is EfToct of rY. ■ r i--,i .X ^ ■ parts favor- sufiicient reason for admittmg the statements of a prisoner, kbie lo pris- for the purpose of proving facts in his favour, without refer- °"<^''*- ence to their effect in explaining or qualifying his confession, yet in practice such statements are commonly received for that purpose, (a) It has been held, that the reading of prisoner's statement, at the end of depositions taken before a magistrate, does not (1) See, amongst many other instan- Jardine's Criminal trials, vol. ii, p. 357. ces, the declaration of Garnet, in his (2) 2 Br. & B. 298. The ground handwriting, read upon h'la trial for the assigned hy Lord Tenterden, that it Gunpowder Plot. In the original con- would not be just to take part of a con- fession, in the State Paper Otlico, there versation as evidence against a party, are letters in Sir E. Coke's handwriting, without giving to the party, at the sanio pointing out to the officer of the Court time, the benefit of the eptire residue, what he was to read, and which pro- seems open to exception, i)it/esMj>ra,Oj» duce quite a diil'erent effect from that of admissions. the whole declaration taken together. (a) A corresponflonce rloposited by order of court cannot bo read in part, if the defendant shall rerpiiro the whole to bo read. 17 Wend. .'591 ; Jl .F. R. 2G0. But where an answer is put in witliout oath, the complainant may use one part of the answer without being' bound by the statements and allega- tions in other parts of the same answer. 4 Paige 507. SSee 3 Mon. R, 249 ; 11 Conn. 460, and ante p. 357, n. 383 Hearsay Evidence. [Ch. 18. In general give the prisoner a right to consider the depositions as given in evidence on the part of the prosecution, unless the (Statement specifically applies to and is essentially connected with any of the previous depositions. (1) With respect to the effect of what the prisoner may have paid favourable to himself, at the time of making a confes- sion, it is conceived that the same rule prevails as in the case of admissions, and that a jury may believe one part of the I)risoner's statements and disbelieve another. Thus, where a jn-isoner was indicted for stealing a piece of cloth, and it was proved that he sold it very soon after it was lost, at a place distant from the residence of the prosecutor, and the prisoner's examination wag given in evidence, in which he stated that the cloth was honestly bought and paid for, Mr. Justice Parke observed, " that in consequence of the prosecutor using what the prisoner had said as part of his evidence, it became evi- dence for the prisoner as well as against him, but still it was like all evidence given in any case, and it was for the jury to say, whether they believed it." (2j [ *422 ] *Jt has been supposed, that where a prosecutor uses a priso- ner's statement, he gives to the pafts favourable to tiie priso- ner more weight than would properly belong to a party's as- sertion of his own innocence, and that the facts contained in such favourable part of the prisoner's statement, are to be con- sidered as established until disproved. (1) It rnay be doubts ed however, whether these opinions are well founded, when it is considered that the original object of introducing the whole of a prisoner's statement is merely to guard against any misapprehension of the prisoner's meaning, in the terms which he has used to confess himself guilty of a crime. It is clearly competent for the prosecutor to contradict the parts of a prisoner's statement which are favourable to him. (2) Demean- Aualogous to similar cases of admissions, a confession may be collected or inferred from the conduct and demeanour of a prisoner on hearing a statement aJB^'ecting himself. (3) As (1) Rex r. Pearson, 7 C. & P. 671. ced. See Rex v. Clewes, 4 C. ^ P, An example is put of specific reference, 226. 33 where a prisoner states, that what a (1) In Jones's case, 2 C. & P. 629. particular witness has deposed to is true. It is said, that if there is not evidence in (2) Rex t). .Higgins, 3 C. & P. 604. the case, independently of the prisoner's The prisoner was found guilty. The statement, which is incompatible with statement might have been adduced by the parts of it favorable to the prisoner, the prosecutor for the purpose of identi- these must be taken to be true. See ib. fying the prisoner, as the person selling a case before Garrow, B. A similar the cloth; see Rex i'. Steptoe, ■i C Sf opinion appears to have been expressed P. 397. The point may not unfrequent- by Litlledale J., iu Rex v. Clevves, 4 C. ly arise, where a prisoner admits killing & P. 226. a man, but, at the same time, states facts, (2) Per Bosanquet. Jones's case, 2 which, if true, would reduce the crime to C. Sf P. 629. manslaughter, and, in such a case, dif- (3) Such evidence is admissible, ferent questions will arise, according as though the statement be made in the there is, oris not other evidence produ- presence of the prisoner by his wife, or. Sect. 2.] Confessions. 383 such statements frequently contain much hearsay and other objectionable evidence, and as the demeanour of a person up- on hearing a criminal charge against himself is liable to great misconstruction, evidence of this description ought to be re- garded with much caution. It has been decided, that the de- position of a witness, or the examination of another prisoner, taken in a criminal case before a magistrate, is not admissible in evidence merely because the party affected by it was pres- ent, or might have had an opportunity of cross-examining or of commenting on the evidence. The party is prevented from interposing at his will and pleasure, and, therefore, the same inference ought not to be drawn from his silence *or his [ *423 j demeanour, as is frequently done in the case of conversa- tions. (1) A prisoner's confession is sufficient ground to warrant a con- J;^f,p8,"o„. viction, although there is no other proof of his having com- mitted the offence with which he is charged. And it appears, from several cases, that his confession may, in some instances, even supply the absence of all proof as to the fact of the com- mission of the offence charged. (2) («) But a confession is obviously not conclusive evidence against a prisoner, and when it involves matter of law is to be received with more than usual caution. (3) (b) and whether he makes answer or not. pcafance. In Rex v- White, R. Si' R. Rex t). Barlleet, 7 C. & P. 832. Rex Cr. Ca. 508. Rex u. Tippe^ ifcW. 509, V. Smithies, 5 C. & P. 332. no person could swear that the property (1) Appleby's case, 3 St. 33. Mel- (which was oats) had been actually slo- en V. Andrews, M. & M. 386. Turner's len, though ihere was strong contirmato- case, I Mo. Cr. C. 347. The case of ry evidence making the theft probable. — Rex V. Edmunds, 6 C. 4- P. 164, seems The report states that most of the Judg- of doubtful authority. There, Tindal, es were of opinion, that without the Ch. J., received a statement upon oalh, confirmatory evidence, the jury might made on the occasion of a summary con- have convicted on the prisoner's confes- viction in the presence of a prisoner. sion. In Wheeling's case. Leach 311, (2) In Rex v. Eldridge, R. ^ R. Cr. Ca, n. a., it is stated to have been detcrmin- 440, the Court thought there was sufii- ed by Lord Kenyon, that a prisoner cient evidence to confirm the confession, might be convicted on his own confes- In Rex V. Falkner, R. & R. Cr. Ca. sion, thoogh totally uncorroborated by 481, the only other evidence was, that any other evidence, the prisoner had sent a message to the (3) Vide supra. Admissions of mat- parly alleged to have been robbed, and ters of law. Philips' case, 1 Rio. Cr^ who did not appear, to prevent his ap- C. 271, where a prisoner's statement, as (a) Efftd of confession. In State v. Guild, 5 Hals. R. 1G3, the conrt say: — " A prisoner may be convicted on his own confession, when proved by lejfal testimony, although it is uncorroborated by any other evidence, pro- vided the corpus delicti be proved." A naked confession, nnattended with circumstances, is not sufficient, lllayiv. 4.55. In State t?. Guild, S7/;;m, a^ boy under 13 years, was convicted on liis own confessions, of tiie crime of murder, and executed. So in the case of the State v. Dillon, 4 Dall. 11 H, a boy was convicted of arson on his own voluntary confession, slightly cor- roborated by two witnesses. (6) A party's confession is to be received with great cantion; it is the weakest kind of testimony. 4 Mon. R. 239 ; G id. 13G. Sec 9 Pick, 497 and 384 Hearsay Evidence. [Ch. 18. Voluntary Jt has been considered necessary in all cases, previous to receiving a confession in evidence, to inquire whetlier it has been voluntary. The usual questions are whether the pris- oner has been told, that it would be better for him to confess, or worse for him if he did not confess, or whether any lan- guage to that eftect has been used. The presumption of the truth of the statement is supposed to cease, when there is ground to apprebend that it may have been wrung from, a tim- id and apprehensive mind, deluded by promises of safety, or subdued by threats of violence or punishment. (4) This, as r *424 1 was before observed, is a supposition *not wholly unconfirm- ed by experience. . But, perhaps, the cases are rare, in which such unfounded self-accusations occur, or, at least, where a juiy would be misled by them : and certainly the rule occa- sions, in a multitude of instances, the escape of the guilty. There is a general feeling, w^hich seems to be well founded, that the rule has been extended nmch too far, and been ap- plied in some cases, where there could be no reasonable ground for supposing that the inducement offered to the prisoner was sufficient to overcome the strong and universal motive of self- preservation. The doctrine has also been attended with much inconvenience, in consequeuce of the nice distinctions, and numerous, and sometimes contradictory decisions, to which it has given rise. (1) Confession jf ^ jn'isoner's examination before a magistrate be taken admissive, upou Oath, it caunot be received in evidence as a judicial ex- amination : (2) and it seems, in such a case evidence could to the ownership of a vessel, was nega- says, that the slightest hopes oT mercy lived by liie ship registracy Act. So al- lield out, would invalidate a confession, so as to the confession of a valid mar- On the other hand, it has been said by riage. IMr. Justice Parke, that the doctrine of (4) The rule extends to all statements inducements has been carried to the by a prisoner, which may affect him verge of common sense. On this sub- criminally, though in terms they charge jecl, see Bentham's Rationale of Judici- another person. Rex v. Enoch, 5 C. i^ al Evidence, Jurist, No. 7, vol. xl. Ed. P. 540, or purport to be a refusal to con- Rev. p. 166, 169. fess, Rex V. Tyler, 1 C, §• P. 129, n. (2) Rex v. Smith and Homage, I (1) In Rex I'. Row, R. & R. Cr. St. 242. Rex v. Rivers, 7 C. 4- P. Ca. 153. Lawrence J., stated, that he 176. Upon the principles applicable to had reserved several points on the sub- the law of secondary evidence, proof ject of confessions, in consequence of was in these cases refused, for tiio pur- ihe ohacuriti/ and discoidancy^ of pose of shewing that the witness was the authorities. In Rex rn Thompson, not sworn. 15. N. P. 242. Hawk. P. Leach, 292, the Court say, that it is al- C, b, 2, c. 46, s. 37. Kelynge, 2 — most impossible to be too careful upon 7 Geo. 4, c. 64, .s. 2. It may be doubt- this subject, and that too great nicety ed how far the circumstance of a pris- could not be preserved upon it; and in oner being sworn is calculated to induce Rex V. Cass, Leach 293, 11., Gould J., him to make an untrue confession. 10 id. 477. Not satisfactory unless corroborated by the circumstances in the case. Malin v. Malin, 1 VVeiid. 625: Law v. Merrills, G Wend. 277. Sect. 2.] Confessions. 385 not be given, as at common law, of the confession. (3) If has been held, that the examination of a bankrupt upon oath ta- ken before commissioners was not receivable in evidence. (4) Where a prisoner, among other persons, was *summoned be- [ *425 ] fore a committing magistrate upon an investigation in a mat- ter of felony, (no person being specifically charged with the cllence,) and the prisoner was sworn and made a statement, and at the conclusion of the examination was committed for trial, this statement was not received against the prisoner, on the ground of its having been made at the same time as all the other depositions and on the same day upon which he was committed. (1) And where one of several persons was examined by the committing magistrate as a witness against the others, upon a charge of felony, and, after being examined by him, committed to take his trial, it was held, that what he said as a witness could not be used against him upon the crim- inal charge. (2) The principle, however, of these decisions Admissi- appears qn.estionable, as the prisoner in his capacity of a wit- ness might have refused to answer any questions having a tendency to expose him to a criminal charge. Accordingly, where a prisoner had been examined upon oath on a charge against another person, Parke, B., received the evidence of the examination as a confession. (3) And it would seem, that generally a statement upon oath by a person not being a pris- oner at the time, and the statement not being compulsory, might be used in evidence against him on a criminal charge. (4) Where a prisoner before the committing magis- trate was sworn by mistake, being supposed to be a witness, but his deposition was afterwards destroyed, and he was cau- tioned, a subsequent statement which he made was held re- ceivable. (5) An afiidavit by a prisoner made in a suit in Doctors' Commons, has been read against him. (6) It is not necessary to the admissibility of a confession, that ^'•';'>""<' "f" it should be spontaneous, it will be received notwithstanding it has been elicited by means of spiritual exhortations by a ■'^pin'"^' i"- *clergyman, (1) (a) or by a person not a clergyman, and ad- r *42(3 i (3) See Rex t). Lewis, 6 C. & P. 162. deeds, not being evidence. 7 & 8 Geo. Tiie point belongs to the doctrine of 4, c. 29, s. 22, 23, 24. secondary evidence. (3) Uowarth's case, Greenw. Col. (4) Rex I'. liritton, 1 M. 8,- Ro. 297. 138, n. F'lrfe SM/jra, in Hex u. Merceron, 2 St. (4) Rex r. Tut)by, .'J C. 4^ R- -''SO, 366, a compulsory examination before a referred to in Rex w. Lewis, 6 C. iV I*. Committee of the House of Commons 162. was received on trial for a misdemeanor. (.5) Rex r. AVeljh, 4 C. 8f V. .564. (1) Rex V. Lewis 6 C. 4- i'. 162. (6) IJex v. Walker, cited by Gurney, (2) Rex f. fJavis, 6 C. .^ P. 177; P., 6 C &,- P. 162. and see as to the examinations of per- (1) Gilliam's case, 1 I*.In. Cr. V,. sons indicted for stealing a will or title- 186. (o) If a member of a church makes a voluntary confession to Jiis brethren, such confession may be given in evidence against him on tiic trial of lui lu- 49 386 Hearsay Evidence. [Ch. 18. Inloxica- liou. Deception used. dressed to a prisoner of tender years. (2) It seems that exhor- tations, simply to speak the truth, will not invalidate a con- fession, but that in such cases, where the motives suggested to the prisoner are not shewn to have been of a spiritual nat- ure, slight proof of temporal inducements will avoid it. (3) Even where a constable gave liquor to a prisoner for the pur- pose of obtaining a confession, and the prisoner confessed whilst under the effects of intoxication, it was held that the confession was receivable, however little it might weigh with a jury. (4) A promise by a constable to a prisoner, that if he would confess, he should see his wife, has been held not to render inadmissible a confession made in consequence of such promise, )io hope of favour being held out as to the charge upon which the prisoner was in custody. (5) The circumstance that some deception has been practised, in order to obtain a prisoner's confession, will not render it the less receivable in evidence : as where a person promised a prisoner, that what he had to say should go no further ; (6) and where one took an oath to that effect : (7) so where a prisoner asked the turnkey, if he would put a letter in the post, and upon his promising that he would do so, gave him the letter which was detained by the turnkey, and given in evidence as a confession : (8) So where artifice was used to induce a prisoner to suppose that some of his accomplices [ *427 1 were in custody, under which ^mistaken supposition he made a confession. (1) Where a constable, in order to extract a confession, assumed the prisoner's guilt, asking her how she came to poison her uncle, the confession in answer was re- ceived. (2) In these cases, there was no reason to suppose, (which is the main point to be considered,) that the induce- ment held out was calculated to make the confession an un- true one. (2) Wild's case, 1 Mo. Cr. C. 455. The Court disapproved of the manner in which the confession had been ob- tained. See Rate's case, Chetw. Burn, tit. Confession. 2 Russ. 648. The ques- tion, whether the inducement was of a temporal nature or not, which is some- times a nice question of fact, is for the decision of the judge, ib. (3) Rex V. Court, 7 C. ^ P. 486, where the magistrate said, " be sure to tell the truth," the statement was admit- ted. Rex V. Shepherd, 7 C. ^ P. 579, where the constable said " you had bet- ter not add a lie to the crime of theft," the statement was rejected. (4) Rex V. Spilsbory, 1 C. SfV. J 87. (5) Rex V. Thomas, 6 C. ^ P. 353. In Rex r. Green, 6 C. ^ P. 656, the prisoner's statement was received, after his saying, that, " if iiis handcuff's were taken oil' he would tell." Taun- ton, J., observed, that he believed that no man ever makes a confession volun- tarily, without proposing to himself some advantage to be derived from it. (6) Rex V. Thomas, 7 C. ^ P. 345. (7) Rex V. Shaw, 6 C. .^ P. 373. (S) Donington's case 2 C. If P. 418. (1) Burley's case, East 7, 1818. (2) PerLittledale, J., Warwick, Ass. dictment for tlie offence confessed. Commonwealth v. Drake, 15 Mass. 1 61 Here, the confession was made to tiic church, of wliich defendant was a member, and when none but church members were present. Sect. 2.] Confessions. 387 A confession, obtained without threat or promise, has been received, notwithstanding it was elicited by questions put by a police officer. (3) In like manner the examination of a pris- oner before a magistrate, consisting of answers to questions put by the magistrate is receivable. (4) It was ruled in one case, by Holroyd, J., that the fact of a confession having been made by a person whilst in unlawful custody rendered it unavailing, but this doctrine cannot be considered as satisfactorily established. (5) *It does not appear necessary, in order to render the exam- ination of a prisoner admissible in evidence against him, that he should be cautioned by the magistrate, not to expect any tavour from making a confession, or, if any one has told him it will be better for him to confess, or worse for him if he does not, that he must pay no attention to it, and that any thing said by him against himself will be used against him at his trial. (1) It has, indeed, been frequently said, that it is the duty of the magistrate to use such cautions ; but the propriety and expediency of such a course may be open to considerable question. It is at all events improper in the Confes- sion oh- taiiied by questions. Confession during ille- gal cuslo- dy. Caution by niajjisirate. [ *428 ] (3) Rex r. Thornton, 1 Mo. Cr. Ca. 27. The Prisoner was a boy, 14 years old, and the confession was made after he had been without food for nearly a wh^le day. Tlie constable frequently told him that there N.as no doubt of his being guilty, and repeatedly asked him who was concerned wilh him. Rex v. Shaw, 6 C. & P. 373, questions by a fellow prisoner. (4) Rex t-. Ellis, R. & M. 432 — Rex V. W'ilson, Holt, 597, contra, which, together with a case decided by Holroyd J., were referred to. Rex v. Bartle'lt, 7 C. & P. S32. (5) Ackroyd & Warburton's case, Lewin, 49. See Thornton's case, Lewin, 49. 1 INIo. Cr. Ca. 27, where the legality of the detention was consid- ered doubtful, by Bayley, J. The fol- lowing inducements have been held to invalidate confessions: Prosecutor sta- ting, " that he only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased." ]tex u. Jones, R. & R. Cr. Ca. 152. A threat of committal to prison. Rex i'. Parratt, 5 C. & P. 570. Prosecutor saying, " Unless you will give ine a more satisfactory account, I will tako you before a magistrate " Rex v. Thompson, I>each, 292. " I should be oI)li''ed to you if you would tell us what you know about it, if you will not, we, of course can do nothing." Rfx v. Partridge, 7 C. & P. 551," You had bet- ter eplit, and not sud'er for all of them." Rex r. Thomas, 6 C. 4- P. 353. " It would have been better, if you had told at first." Rex v. Walkley, 6 C. & P. 175. " It is of no use for you to deny it, for there is the man and boy who will swear they saw you do it." Rex ». Mills, 6 C. & P. 146. Where a pris- oner desired another person to apply to a justice to admit him a witness for the crown, and at the same lime states facts. Hall's case, Leach 559, n. " Unless you give me a more satisfactory account, I will take you before a magistrate." Thompson's case. Leach 292. Prisoner saying, " If you will give me a glass of gin, 1 will tell you all about it;" the of- fer coming from the prisoner. Sexton's case, Chetw. Burn. The following inducements have been held, not to invalidate a confession: Where a magistrate told a prisoner that his wife had confessed, and that there was quite case enough against him to send a bill before a gr^itid jury. Wright's case, Lewin 4S. Where a prisoner charged with arson was told that there was a very serious oath laid against her, by a person who saw her set lire to the rick. Long's case, 6 C. k P. 179. It seems that the confession of a person, admitted as King's evidence, may be re- ceived against linn, if he refuse lo give evidence on the trial of his accomplices. Burloy's case. Slark. Lv. part iv. (1) Rex V. Mngill, Macn. .'JS, that the evidence is receivable, though no caution has been "iven. 388 Hearsay Evidence. [Ch. 18. magistrate to dissuade a prisoner from making a voluntary confession. (2) Induce- Some rulcs may be collected from decisions of a recent pe- ni6ut bv • • whom. riod, with regard to the admissibility of confessions, where in- ducements of hope or fear have been offered to the prisoner by the prosecutor, by persoiLs in authority, or by strangers. The principle of some of the decisions upon this subject ap- pears to be that an inducement, held out by a person having no authority, would not be likely to induce a prisoner to make an unfonnded confession to such person, before whom he would be particularly cautious as to what he stated to his own disadvantage. Thns in Rex v. Row, (3) where some of the prisoner's neighbours, who had nothing to do with his apprehension, prosecution or examination, had admonished the prisoner to tell the truth and consider his family, it was held, that a confession was receivable, on the ground that the ad- [ *429 ] vice to confess *was not given or sanctioned by any person who had any concern in the business. It is to be observed, that the advice was given to the prisoner when he was in the custody of a constable, who made no observation upon it, nor did the prisoner answer at the time, but he confessed to the constable in about an hour afterwards : and this case has been followed by other decisions to the like effect, (1) But where there is ground to suppose that the constable appeared to the prisoner to sanction, though tacitly, an inducement made in his presence, it appears to have been doubted, whether the evidence ought to be received. In the recent case of Rex v. Pountnei/, (2) a prisoner being in the custody of a constable upon a charge of felony, was taken by the constable to an inn, where innkeeper, in the hearing of the constable, held out an inducement to confess, whereupon the prisoner confessed in the constable's hearing. Mr. Baron Alderson received the ev- idence, observing, that he did so in deference to authorities, but that he entertained a strong opinion against it's admissi- bility, and that, if it had been neces.sary, he would have re- served the point for the opinion of the Judges. And from a very recent case, it seems also to be matter of doubt, wheth- (2) See per Gurney, B., in Rex v. escaping, is a person in authority for Green, 5 C. & P. 312. thi..^ purpose. Rex v. Enoch, 5 C. ^ P. (3) R ^ R. Cr. Ca. 153. 539. (1) Gibbons, 1 Rex v. Gibson, 1 C. (2) 7 C, &P. 303. It is to be ob- & P. 97. The confession was some- served, that the confession was made to time after the inducement. Rex v. the person who held out the inducement, Hardwick, cited ib. 9S, n., where the and that the confession was not, as in inducement was held out by the consta- Rex v. Row, made to the constable, at ble's wife. Rex v. Tyler, 1 C. & P. an interval after the inducement, and in 129. In Rex v. Richards, 5 C. <^ P. the absence oftlie party who held it out, 31 S, the inducement was at an end, consequently there do not appear to be when the prisoner was delivered to the any autlioriiies requiring the reception constable. A woman placed with a of the evidence, prisoner, by a constable, lo prevent her Sect. 2.] Confessions. 389 er a confession is receivable in evidence, if it has been made to a person, in consequence of threats or promises held out by him, although he may have nothing to do with the apprehen- sion, the prosecution, or the examination of the prisoner. (3) *For the purpose of introducina; a confession in evidence, Ne^rativing . . '■ '■ . , Y 1 • liiducemeiU It IS unnecessary, ni general, to do more than negative any by other promise or inducement held by the person to whom the con- 'r'^^''.o:-j n fession was made. (1) However, if there be any probable t ^ J ground to suspect collusion in obtaining the confession, such a suspicion ought in the first instance, to be removed. Where a constable, who had a prisoner in custody, left the room in which the prisoner was detained, and, upon another constable entering the room, the prisoner at once made a statement with- out any caution being given him, it was held necessary for the prosecutor to call the first constable, for the purpose of disproving any collusion. (2) Where an inducement has been held out by a prosecutor, induce- , . ... ,, •!! nieiit by or by a person in authority, it would seem, in general, that a person m subsequent confession to such persons, would not be receiva- au'i'f'i'.v- ble. (^o) caution. Althongh an inducement has been held out by a prosecutor, constable, or other person, if the prisoner is afterwards taken before a magistrate, who forewarns him that what he says against himself, will be given in evidence against him, a confession made to the magistrate, after such caution, will be receivable. (4) *In a case, tried before Mr. Justice Bayley, (5) where it [ *431 ] appeared that the prisoner, on being taken into custody, had been told by a person who came to assist the constable, that it would be better for him to confess, but that, on his being examined before the committing magistrate on the following (3) in Rex v. Spencer, 7 C. 4' P- to call the person with whom the pris- 776, Parke, B., said, that he would re- oner had previously conversed, who ceive such evidence, but would reserve was a clergyman and man'tstrate. the point, as there was a ditlerence of (2) Rex v Swatluns, 4 C. & P. .'jSO. opinion aii.ong llie Judges upon the sub- It was afterwards shewn that the pris- ject. Simpson's case, 1 Mo. Cr. C. 412. oner was not under any ciiargo at the The threats and promises were olFered time, but that the first constable was dc- by, and the confessions made to, the taining hiai as an unwilling witness, and mother of the wife of the prosecutor: the evidence was received. Rex V. Upchurch, 1 Mo. Cr. Ca. 465, (3) Hee Rex v. Nute, Chetw. Burn. The promises were ofTered by, and the confession, 2 Russ. 648. Rex v. Sex- confession made to, the wile, of the ton, ib. 2 East's P. C. 658. White's prosecutor. Rex v. Dunn, 4 C. §• P. case, M. T. 1800. 543. Rex v. Kingston, 4 C. P. 387, (4) Rex v. Howes, 6 C. & P. 404. where the confession was made to a sur- It does not appear whether generally a geon. Rex v. Slaughter, 4 C. 4" P. caution by a person will make ii con- 544, n. It may happen under paiticu- fession to him admissible, iiotwithslaiid- lar circumstances that a second confession ing a previous inducement by himself or to the same per-ion, may be voluntary, by a jierson of the same or inferior au- though the first was not so. thority. (1) Hex r. Clewes, 4 C. & P. 223. (5) Rex u. Lingate, Derby, Lent Ass, It was said, to be fair in iho prosecutor 1815. 390 Hearsay Evidence. [Ch. 18. day, lie was frequently cautioned by the magistrate to say nothing against himself, a confession under these circumstt.n- ccs before the magistrate v;as Jielu to be clearly admissible. In another case it appeared that a constable told tlie prisoner, he miglit do himself some good by confessing ; the prisoner afterwards asked the magistrate, if it wonld be any benefit to him to confess ; on which the magistrate said, he could not say it wonld, and the prisoner then declined confessing ; but aftsrwards, in his way to prison, he made a confession to anc:;h- er constable, and he confessed again in prison to another mag- istrate ; the Judges were unanimous in holding, that the con- fessions were admissible in evidence, on the ground that the magistrate's answer was sufiicient to efface any expectation which the constable might have raised. (1) It is no objection to a confession before a magistrate, that the prosecutor, who was present, first suggested to the jiriso- ner that he had better speak out, when the magistrate, or his clerk, immediately checked the prosecutor, desiring the priso- ner not to regard him, but to say what was proper, (2) It has been held, that a caution by a magistrate was suffi- cient to render a confession receivable in evidence, notwith- standing there may have been some inducement before held out, to which the magistrate did not advert, and of which he may have been ignorant. (3) [ *432 ] *If a person of superior authority, as a magistrate, holds out an inducement to confess, a confession afterwards to a person of an inferior authority, as a turnkey, seems not to be admissible. Such a confession hr.s been held not to be re- ceivable, in a case where the inferior officer had not cautioned the prisoner. (1) fouTd "^'"^ Though a confession may have been obtained by means of undue inducement, yet if in consequence of the information ob- tained from the prisoner, property stolen is (]iscovered,it is com- petent to give in evidence the fact that the property has been discovered conformably with the prisoner's information. The statement as to his knowledge of the place where the property (1) Rex 'B. Rosier, Easter Term, made, read it over before the mngistrate, 1821, MS. Rex v. Clewes, 4 C, & P. who cautioned the prisoner. And the pris- 225, where the inducement was by a oner said that it was the truth and signed magistrate and clergyman, the caution the paper. See the preceding cases of by a coroner, and there was a letter Rex v. Lingate, and Rex v. Rosier, from the Secretary of State refusing (1) Rex v. Cooper .5 C. &. P. 53.5. — mercy. This decision follows a fortiori from (2) Edward's case, East. Term, the cases, according to which examina- 1802. tions befere magistrates have been inva- (3) Rex V. Howes, 6 C. i^ P. 404. lidated in consequence of previous in- The magistrate knew of the former con- ducements. It would seem that a con- fessions, did not tell the prisoner that it fession, after caution by a person of would have no effect, but cautioned equal authority with the person holding him generally. Sexton's case, Chetw. out the inducement, would be receivable. Burn. tit. Confession was obtained by but this has not been expressly determin- ^givinggin. The officer, to whom it was ed. Sect. 2.] Confessions. 391 is to be found, being confirmed by the fact, is thus proved to be true, and not to have been fabricated in consequence of any inducement. It is competent therefore to inquire whether the prisoner stated that the property would be found by searching a particular place or person, and to prove that it was found ac- cordingly ; but it would not be competent to inquire, wheth- er the prisoner acknowledged that he had concealed the prop- erty. (2) Where inducements to confess have been held out, and the f.ispovery r • 11- 1 t * .1 ol property. prisoner has, m consequence, delivered property to the prose- Comempo- cutor, it appears somewhat doubtful, whether the declarations ^^"''°y^ e-^- . .^ } ^ . ,11- /• .1 pressioiis. 01 the prisoner accompanying the delivery oi the property, and tending to identify it as belonging to the prosecutor, are receivable in evidence. It may be thought, that the only ground upon which such declarations can be received is, *that [ *433 ] they are explanatory of the act of delivery, and not a narra- tive of a past transaction. In Rex v. Griffin., (1) a prisoner was charged with stealing a guinea and two promissory notes : after inducements to confess, it was held that the prosecutor might prove, not only that the prisoner brought him a guinea and a note, but that he also gave them up, as the guinea and one of the notes that had been stolen from him. But in Rex v. Jones, (2) when the prosecutor asked the prisoner for the money which the prisoner had taken out of his pack, and at the same time held out inducements to confess, whereupon the prisoner produced a sum of money, stating, that it was all he had left of it, it was held that this evidence ought not to have been received. If a confession is improperly obtained, it is a ground not Acts done only for excluding evidence of the confession, but also of any '" consc- ■'-, . ° ., . IT • (lueiice of act done in consequence by the prisoner towards discovering i„ciuce- the property, the property not having been actually discover- "'*-'"^' ed thereby ; for, as was observed by the Court, the influence which might produce a groundless confession, might also pro- duce groundless conduct. Thus, where a prisoner was induc- ed by a promise from a prosecutor to confess his guilt, and af- ter that confession he carried the officer to a particular house, as and for the house where he had disposed of the property, and pointed out the person to whom he had delivered it ; the person denied knowing any thing about it, and the property was never found : it was held, that the evidence of what (2) Butcher's case, Leach, 265, n. formerly to have been thought, that no 2 East's V. C. (158. Warvvickshall's part of tho corifi;ssioii could lie jjiveii in case, Leach, 298, 300. Lockhart's evidence, but only the actual discovery case. Leach 38(). Morey's case, of the property. Leach, 2fi.5, n. Rex u. Harvey, 2 East's (1) II. & II. Cr. Ca. 1.51. P. C. 638. Jtexw. (irant, and Hex v. (2) R. Sf R. Cr. Cu. 152. Ilodge, 2 East's V. C 058. It Beeiiis 392 Hearsay Evidence. [Ch. 18. passed between the prisoner and the officer ought not have been received. (3) (a) lini'lT With respect to the prisoner's liability to be affected by the anoiiicr. (b) confessioiis of othcrs, a marked distinction exists between the branch of law now under consideration, and that which has been considered in treating of admissions. Where two per- [ *434 ] sons were indicted together, one for stealing and another *for receiving, in which the principal pleaded guilty, and the re- ceiver pleaded not guilty. Baron Wood refused to allow the plea of guilty to establish the fact of the stealing by the prin- cipal as against the receiver. (1) And in a recent case, the confession of tlie principal felon before a magistrate was held to be inadmissible against the receiver. (2) Upon trials for treasonable and other conspiracies, several nice questions have arisen respecting the admissibility of statements made by co-conspirators. These have been ad- verted to in treating of the distinction between original and hearsay evidence. Such statements are receivable, when they are in the nature of, or when they accompany, acts for which all the parties concerned in the conspiracy are respon- (3) Rex U.Jenkins. R.,^R, Cr.Ca.492. (2) Turner's case, IMo. Cr. Ca. A confession, made in consequence of a 348j Tiie principal was alive, but the previous confession to another person, decision does not appear to have been made under inducement, held not admis- founded on this circumstance. The sible in Nate's case 2 Russ. 64S. point had not been previously settled. — (1) Cited in Turner's case, 1 Mo. Cr. Black's case, 4 C, ^ P. 377, Ca. 348. (a) The rule is, that when a confe.s?ion has been improperly obtained, all subsequent confessions are inadmissible ; altliough they may have been made at different times, and to different persons; for the presumption is that they were made under the same influence, or in consequence of the former confession. Seethe observations of the judges in Pick. 497 and 10 id. 477. These were the cases of tlie two Knapps indicted for the murder of White, and the material facts are, that Joseph had concluded to confess, and that he wished to procure the prisoner's consent, which Phippen (another brother) advised him to yield ; encouragino; him with the hope of a pardon, if he should be convicted. Held, that after such encouragement, the con- sent of the prisoner to this arrangement cannot be given in evidence against him. id. A verbal confession of guilt, made by a person accused of a crime, if in- duced by a delusive hope of impunity excited in his mind, Avill not be re- ceived in evidence. 5 Hals. 163. Altliough an original confession may have been obtained by improper means, subsequent confessions of the same, or like facts, may be admitted, if the court believe, from the length of time intervening, from proper warning, or from other circumstances, that the de- lusive hopes, or fears, under the influence of which, the original confession was obtained, were entirely expelled, id. [b) In a prosecution against husband and wife for receiving stolen goods, the declarations of the wife were admitted, although they were tried jointly. The court said, that it " was not to operate against the husband." 5 Pick. 429. Sect. 2.] Confessions. 393 sible ; but they are not receivable, when they are in the na- ture of narratives, descriptions, or confessions. (3) In former times it was usual to admit the confessions of prisoners, even of such as liad afterwards been executed, as evidence against others, and this at a period when torture was not unfrequently applied in order to obtain confessions ; as for example, upon the trials of Sir N. Thrograorton, the Earl of Essex, and Sir W. Raleigh, and npon the trials for the Gunpowder Plot. (4) One of the earliest reported instances of the change of practice occurs in the resolution of the Judg- es in Tongas case. (5) It apj^ars to be settled by late authorities, that where a confession, ^whether oral or in writing, by one prisoner ira- [ *435 ] plicates other prisoners by name, the confession must be prov- ed according to the manner in which it was made, and the names of the prisoners implicated must be mentioned. On such occasions, it is the duty of the Judge to inform tlie jury, that the confession ought not to affect any one but the person who made it ; a caution which, it may be feared, is too often unavailing. (I) The statute of the 7 W. 3, c. 3, s. 2, enacts, " that no per- P°"''^'''i^'J." son sliall be indicted, tried, or attainted, for high treason or treason, misprison of high treason, but upon the oaths and testimony of tw'o witnesses, either both of them to the same overt act, or one of them to one, and the other of them to another overt act of the same treason, unless the party indicted and arraign- ed shall willingly without violence in open Court confess the same." Mr. Justice Foster seems to have been of opinion, (2) that the legislature intended by this section to require two witnesses to the overt act in all cases, except where the pris- oner confessed the treason upon his arraignment in open Court, and that to warrant a conviction there must be jiroof of the overt acts upon oath not merely proof of the confession of the overt acts. " But," he adds, (3) " perhaps it may now be too late to controvert the authority of the opinion in 17 IG, in (.3) Vide Supra, Hardy's trial, 24 (5) Kel. 18, res. 5, tern. Car. 2. 6 Howell, 452, 475, where Tlieiwaira Howell, 227. Hevey's case, Leacli, letter was considered to be a narra- 235. live merely. (I) Hearne's case, 4 C i"}- P. 215. (4) See also Abingdon's case, 2 How- Ciewes' case, W 225. Fletcher's case, ell, l(). Sir M. Foster's Discourses, I^ewin, 107. Hall's case, I.ewin, 110. 234, where the practice is gei)erally stig- I'oster's case, ib. Ilex v. W'alkley, (i rnatized. With regard to torture, see C. ^- P. 175. 'J'he practice has varied notes nn fortesfjue, de laudibus legunt in this respect. Bee l''letclier's case, I Au'^line- Jardiiie on tfie use of tenure C. i^ P. 250. 'J'he more modern [trac- in llii^land. Prisoners were told that tice has not Iieen always afiprovcd of. the trial per frent-i de hiir condi- Ijarstow's case, I/ewiti, 110. tion, meant confessions of accnmpliceg. (2) See l'o. Maslaer, 5 Esp. 92. So where 167, that a copy oi a copy is not the the foundation of the action is a written best secondary evidence, security, but the immediate demand is (a) Sec the case of Smith v. Wells, J. R. 28fi, where it. was Iicld, tliat the service of a copy of any plcadin^r upon the oDpositc party, was conclu- sive evidence as to jiiin that tlic orijrinal had boon filed aij-fccablc to the rule- which required tiie original to be filed with the clerk before the copy should, be served. 404 ^ecojidary Evidence. [PA\. 19. Justice of particular transactions, the oflicial entry excludes all independent evidence of the transaction. Thus, parol evi- dence was held not admissible to prove the taking of oaths required by the Toleration Act, as the fact would be recorded in the Court where the oaths were taken. (3) (a) In like man- ner, parol evidence is not admissible of the day on which a cause came on to be tried, as it is capable of proof by matter of record, (l) Upon a (juestion whether the Abbey de Senti- bus was an inferior abbey, or not, Dugdale's Monasticon was refused, because the original record was to be found in the Augmentation Office. (5) And it has been seen that even an admission of a party does not supersede direct proof of matter of record, by which it is sought to affect him. (6) Where an official memorandum, not strictly of record, is re- quired by law to be made, of the particulars of any statement, all evidence, in substitution of such memorandum, is, in gen- eral to be excluded. (7) Thus, no parol evidence can be *giv- en of a prisoner's confession before a magistrate, whilst he is I 446 J under a charge of felony or misdemeanour, unless it be first proved, that the confession was not taken down in writing, pursuant to the provisions of the statute 7 Geo. 4, c. 64. (1) It will be presumed, until the contrary is shewn, that the pris- oner's examination has been taken down in writing, in con- formity with the Statute. (2) It has been thought, in some cases, that after the production of the prisoner's examination in writing, it is competent to prove by parol any thing which the prisoner may have said before the magistrate, in addition to what appears in the written examination, on the ground, apparently, that such evidence is not in substitution of any thing which is in writing. (3) But as such parol statements Official inenioran- dum. Prisoner's ex a ill in a- lion. (3) Rex V. Ilube, Peake, 131. The same doctrine applies to the proceedings of Courts which are not of Record, and apparently to the proceedings of inferior Courts, of which written memorials are preserved, vide infra, part 2, (4) Thomas v. Ashley, 6 E,>p. 80. Rex r. Page, iTj. S3; and see Phillips's case, R. & R. 369. (5) Saik. 281. (6) Vide Supra, Scott v. Clare, 3 Camp. 236. (7) The rule in the cases about to be noticed seems more rigid than in regard to tlie proceedings of Courts before men- tioned, which are allowed to be proved by eiamined copies. (1) Rex V. Hall cited in Rex v. T^anibe, Leach, 635. 1 Hale, 284 Rex V. Lewis, 6 C. 4- P. 161. The rule does not apply to examinations be- fore tiiagistrates on summary convictions, which are not required to be taken down in writing. Rex v. Edmunds, 6 C. & P. 164. (2) Rex V. Jacobs, Leach, 349. Rex i>. Hickman, ib. Rex v. Fisher, j'6.Rex V. Hall, ib. Rex v. learshere, ib. 15. N. P. 298. Hawk. c. 46, s. 43. Phil- lips V. Wimburn, 4 C. 8r V. 27.3. (3) Rex V. Harris, Mo. Cr. Ca. 338. See Rowland v. .^shby, R. <^ M. 231. In Hex V. Spilsbury, 7 C. & P. 188, pa- rol evidence was given of what the pris- (a) See Adams v. Betz, 1 Watts, 448. But in an action on a policy of insurance, the plaintiff' may show the seizure of the ship by an armed sol- diery in a foreinfn port, Avithout producing the record of condemnation, al- though he has the record in his possession. 8 Pick. 232. Ch. 19.] Secondary Evidence. 405 may imterially affect the written examination, and as they are hable to considerable suspicion, from the circumstance of their not having been taken down by the magistrate, they ought to be received with the greatest caution. (4) A written examination will not exclude a parol confession, m^ade previ- ously to the prosecutor or other person than the magistrate. (5) Where the confession of a prisoner before a magistrate has '"'""'■"lai 1 ill ■ • • 1 1 • ^ . . . Pxainiiia- been taken clown in writmg, but the written examination is lion. informal, in consequence of not being signed, or being signed before the evidence was concluded, or not being properly headed, or from some other cause of informality, there is no longer any *ground for excluding parol evidence ; for the par- [ *447 ] ol evidence is in such cases adduced, not in substitution of the official document, but according to it's effect at common law. (1) The informal examination may, like any other con- temporaneous document, not of an official character, be used to refresh the memory of a witness who was present. (2) This subject will be more particularly considered in the sec- ond part of tlie Work, in which the proof of examinations is treated of in conjunction with the proof of other written evi- dence. Although a parish register is required by law to be made Fact of of all marriages, the fact of a marriage may be proved by the ""^"'^se- testimony of the persons who were present at it, or by general oner said while the witnesses were under examination, and which was not taken down, not being part of his defence. (4) In Rex v. Lewis, 6 C. & P. 162, in which Rex v. Harris was cited, Gur- ney, B., refused to receive similar evi- dence. In Rex V. Rivers, 7 C. ^ P. 177, parol evidence was refused, but the examination purported to have been sworn, and the magistrate's signature was held to be conclusive of this fact. In Rex u. Walter, 7 C. & P. 267, the magistrate returned that the prisoner said, " I decline to say any thing." After which, Lord Abinger refused to hear pa- rol evidence of a confession made before the magistrate. (5) Rex V. M'Carty, Macn. 4.5. (1) Vide in/ra, part 2, Proof of Ex- aminations. Examinations not signed, Rex V. Telicote, 2 St. 483. Foster's case, Lewin, 46. Hirst's case, ifi. Rex V. Pressly, 6 C. & P. 183. Not signed, but acknowledged to be true, Lambe's case, 2 Leach, G25. Not read over, signed with a niark, or not signed, and not proved to have been read over by the magi.straie, or by his clerk. Rex v. Chapjtel, .\1. & Ro. :5!t.5. Rex v. Rich- ards, and Mux v. Hope, ib. 396, n. 7 C. &, P. 136. Rex V. Taylor, ib. 138, n. Rex V. Foster, 7 C. 8,- P. 148. Rex v, Reading, 7 C. ^ P. 649. 2 Hale, ch. 38, ch. 7, p. 52, Informal heading. Rex V. Bentiy. 6 C. S,- P. 148. Rex v. Tar- rant, 6 C. &P. 182. (2) Layer's case, 16 Howell, 214. Rex V. Tarrant, 6 C. ^ P. 182. Rex V. Pressly, 6 C. S,- P. 183. Hirst's case, Lewin, 46. Jones's case, Carr. 13. Devvherst's .case, Lewin, 47. Rex r. Bell, 5 C. & P. 163, where Rex v. Flagg, 4 C. .V P- 566, was overruled. A case before Lord Lyndhurst, cited 5 C. &. P. 164, n. Rex r. Reason and Tranter, 1 Str. 499. Rex v. Watkins, 4 C. ^ P. 550, n. Rex v. Reed, I iM. & I\I. 163. See Rex v. Lewis, 6 C. S)- P. 163. A confession written by a constable, and signed with the prisoner's mark, was read by the officer of the Court, 4 C. &. P. 548. It would seem that in Lambe's case, 2 Leach, 623, the examination, which was rend over ■ to the prisoner and acknowledged by iiiin to be true, but was not signed, and was afterwards allowed to be rend by the olllcer of the Court, was not received on the ground of it's being an oliicial document. It has, however, been fre- quently 80 considered. See Thomas'* case, ib. 406 Secondary Evidence. [Ch. 19. ropresentatioii. (3) [a] It will be seen, in the second part of tliis Work, that various public documents arc of a nature to [ *44S ] *exclude independent evidence, whilst others do not produce this effect. Living per- ^[\q substitution of the hearsay of a person, not produced, >ion not pio- . n ■, ■ ■ /• 11 1 • 1 duced. as a witness, ni the ])lace oi his testimony, lalls obviously within the princijjle of the rule under consideration. It has been seen, that even in cases where hearsay evidence is ad- missible, it is required, in deference to the rule which ex- cludes secondary evidence, that it should be shewn that the person whose hearsay is adduced, is deceased. In like man- ner, it will be seen tliat depositions are not receivable, whilst the parties who made them are alive, or at least producible for the purpose of giving evidence. (1) [h) by Hvin""^ The evidence of the admissions of living persons may be persons. Considered, in many instances, rather as not falling within the rule, than as exceptions to it. In many cases, in which it would be competent to call as witnesses the persons making admissions as witnesses, and where, though they have the op- tion to give evidence or not, no objection might be made by them, the evidence of the admission would generally not be superseded in it's effect, by the testimony of the person who made it. The admissibility of a parol admission of the con- (3) Evans v. Morgan, 2 Cr. Sf J. 45.3. (1) See infra, part 3, Examination B, N, P, 247. Allison's case, R. &. R. of Witnesses, as to the necessity of in- Burt r. Barlow, Doug. 172. Rex v. terrogating a witness, as to his acts and St. Devereux, 1 Bl. 367. Reed v. Pas- declarations previously to calling other ser, Peake, 305. Nor is the evidence witnesses to discredit him. As to the of the attesting witnesses required to causes of absence, which are equivalent prove the handwriting of the parlies in to the death of witnesses for the present the register, Doug. 174. But an entry purpose, vide infra, part 2. To prove of a marriage in a day-book is not damage in discontinuing trade, the cus- admissible in evidence, if the entry has tomers must be called to give evidence been afterwards made in the register, of their motives. Telk r. Parsons, 2 C. May V. May, Str. 1073, and see Doe d. & P. 201. With respect to answers Warren v. Bray, 8 B. & C. 813. The made to inquiries, see Rex v Denis, 7 register is not of a judicial nature, and B. & C. 621. Rex v. Morton, 4 M. ^ relates to a fact, and not to expressions S. 48. Rex v. Castleton, 6 T. R. merely. 236. [a) The record of the marriage seems to be the proper evidence ; 7 Mass. 48 — except in criminal prosecutions where tlie testimony of persons present is required. 9 Mass. 4. As to the proof of foreign marriages ; see 10 S. «Si R. 383. [b) Although depositions regularly taken upon a bill and answer in chan-^ eery, may be used as evidence in a trial between the same parties, provided it be proved that the witnesses are dead, or by reason of sickness are unable to attend, or that they cannot be found, or are absent from the country, or are otherwise not amenable to the process of the court; yet they can be used only under the circumstances mentioned. 2 Leigh's R. 474. CIi. 19.] Secondary Evidence. 407 tents of a written docnment stands upon a different footingj and cannot be considered as completely settled by the author- ities. (2) In other cases, the admissions, though in the na- ture of substitutionary evidence, appear receivable on the ground that a person's own expressions and actions ought to be allowed, as against himself, to raise d>. prima facie presump- tion of the truth of facts which those expressions and actions imply. *The rule applies not only to the evidence produced in a J^fi'">'esiiinjr , , , . / . ^ meiiiorv. cause, but also to such writmgs as a witness may use to re- r *449 1 fresh his memory ; and thereibre, where a contemporaneous entry has been made, it seems that a copy of such entry made at a subsequent period is not admissible for the purpose of re- freshing a witness's memory. (1) It is an established rule, that where there are duplicate orig- inals, all the originals must be accounted for, before secondary evidence can be given of any one. (2) Where a writing is not the fact itself to be proved, and not Wriiinirnot made an appropriate instrument of evidence by private com- oryeJil" pact, nor required by law, there is no ground for it's excluding deuce, oral or other evidence. It often happens that an oral commu- nication is accompanied by one in writing to the same effect yet the oral communication may be received, provided it be not adduced to prove the contents of the writing and in sub- stitution of it, but as independent evidence. Thus, the pay- ment of money may be proved by oral evidence, though a re- ceipt be taken. (3) Where there is both a verbal and written notice to deliver up property, it is not necessary that the writ- ten notice should be produced. (4) Where a written statement cannot be received on the ground of it's being in the nature of hearsay evidence, or for want of a stamp, there is still less reason for prohibiting the substance of it from being proved by independent testimony. Thus, it has *been seen, an informal examination taken before [ *450 ] a magistrate will not exclude oral evidence of what a prisoner (2) Vide supra " Admissions. ^' — if he chose. Ridley «. Guyde 1 INI. & As to the adtiii'siiin of tnarriuge super- llo. 197. As to dying declarations tal^* seding the direct proof of it. lb. en down in writing, II. r. (iray, 7 C. & (1) Per I'atteson, .f., in Burton v. V.2'dl, vide infra, that u confession Piummer, 2 A. & K. 344. .loncs r. taken down by a constal)le, and signed. Stroud, 2 C. & P. 196. Doe u. Perkins, by a prisoner, is to he read hy liie olii- 3 T. R. 749. cer of the (Jourt, not so an iniformal ex- (2) Per Parke, 15., in Alwin v. Furni- atniiidlion before a rniigistrate thougii val, I Cr. .M. ^' 11. 292. signed. W'iiere a writing is signed liy (3) Kanibert «. Coiien, 4 Esp. 213. tiio party to be allected by it, ii would (4) Smith r. Young, 1 Camp. 439. seem that ahlniugh the writing was a It has been held, tiial a witness, on thing itself lo be proved, and not merely cross-examination, may admit not hav- evidence, yet that a previous or contein- ing mentioned a fact in cxaminatton be- poraneous oral declaration would not fore commissioners of bankrupt, but that necessarily be excluded, whore it is not he might ask for the written exumiiiulion in bubslitutioii of the vvriticu evidence. 408 Secondary Evidence. [Ch. 19. Rosolu- tioiis at a meelhiff. Pnper de- li veretl by p/risoiier. has stafed. For although the witness is allowed to refresh his memory by reading the examination, he is supposed, in notion of law at least, to speak from his memory independ- ently of the written paper. Where a witness read over to the defendant an account in writing, which was signed by the defendant, but which could not be used in evidence for want of a receipt stamp, the witness was allowed to refresh his memory by the inspection of the account, and to prove that he called over the items to the defendant, and that the defendant admitted them to be correct. ( 1 ) In the same man- ner, what a party says admitting a debt is evidence, notwith- standing the promise to pay is reduced into writing. (2) In the prosecution of Hunt for a conspiracy, (3) the Court of King's Bench determined, that a paper, which had been delivered by the defendant to a person present at a meeting, as a copy of certain resolutions about to be proposed and read, and which was proved to correspond with the resolutions af- terwards proposed, was properly received at the trial as evi- dence of those resolutions ; without proof of any previous no- tice to the defendant to produce the paper from which the resolutions were supposed to be read. This paper was con- sidered, as against the party himself to whom it applied, to be fully as good evidence as any that could be produced. In the same case, (4) the Court of King's Bench held, that inscrip- tions on flags and banners, which had been exhibited to pub- lic view, might be proved by eye-witnesses, speaking to what they had seen on the occasion ; and though it appeared that the flags had been seized and taken away by police ofllcers, (so that they might have been produced,) the evidence was not considered on this account to be less competent ; such in- [ *45i ] scriptions *are, as the Lord Chief Justice observed, the public expressions of the sentiments of those who bear them and have rather the character of speeches than of writings. It may be observed that the oral testimony was in this case ad- duced for the express purpose of re))resenting accurately the contents of the writing, and therefore might seem to fall directly within the principle which excludes secondary evi- dence. Whether resolutions, which have been proposed at public meetings, may be primarily proved by the parol evidence of witnesses, when the person proposing the resolutions appeared to read them from a written paper, was a point much discus-* Inscrip- tions. Resolutions 7-ead, prov- ed by parol. (1) Jacob ?'. Lendsay, 1 East, 461; nnd see Dalisoii v. Stark, 4 Esp. 163. In Maugham v. Hubbard, 8 B. Sf C. 14, a witness called to prove the pay- ment of money was allowed to refresh his memory by an unstamped receipt signed by himself. (2) Singleton v. Barret, 2 C. & J. 369. (3) Rex V. Hunt, 3 Barn. 8f Aid. 568, 572. See also Watson's case, 32 How- ell's St. Tr. 68 83, 256, 257. (4) Re.\ r. Hunt, 3 Barn. ^ Aid. 574. Ch. 19.] Secondary Evidence. 409 sed ill the prosecution of Dr. Sheridan and Kirwan, in Ire- land, (1) who were tried for an offence againt the Irish Con- vention Act. The indictment began with averring that di- vers persons had assembled together, and intending to procure the appointment of a committee of persons, (of a particular description, and for a specific object,) entered into certain resolutions respecting such committee, the purport and effect of which resolutions were set out at length ; the indictment then proceeded to charge Dr. Sheridan with certain acts done by him for the purpose of assisting in forming such commit- tee, and for carrying into etlect the resolutions before-men- tioned. To prove the first averment, the counsel for the prosecution called a witness, who stated that at a general meeting (at which it was admitted the defendants were not present.) the secretary of the meeting proposed a resolution, and read it from a paper. The proposition was seconded ; the secretary then handed the paper to the chairman, and the chairman read it. The witness was then asked, " What was the resolution ?" This question was objected to, on the ground, that the absence of the writing itself should be ac- counted for, before any parol evidence of its contents could be received. After a very full argument, a majority of the Court were of opinion, that this was not a case to which the dis- tinction between primary and secondary evidence *vvas strict- [ *452 1 }y applicable. That the proposed evidence was intended to show, not what the paper contained, but what one person pro- posed and what the meeting adopted ; in short to prove the transaction and the general conduct of the assembly ; and that such evidence could not be rejected, because some person pres- ent took notes of what passed. The form in which the argument was presented by the Solicitor General, was more striking : — " A number of persons," he said •' assemble and confer togeth- er — they agree to a certain resolution. If it be necessary to prove such a transaction in a criminal trial, would the prose- cutor be bound to produce the resolution in vv^riting ? Would the prosecutor be bound by the manner in which it was taken down by one of the confederates? If the paper, supposed to contain the resolution, were produced, would that preclude the prosecutor from giving evidence of other matters which took place ? Or suppose, further, that the matter were reduced to writing in such a way as to avoid a criminal impu- tation, although every sentence of the debate or conversation v/ere criminal, would the prosecutor be bound bv the former, and precluded from giving evidence of the latter?" (1) 1811. 31 Howell's St.Tr. 672, idence .igainst a person wlio .loopt^ iliu and see Rex v. Moors, 6 Eiist, 420, n. printing by taking nway cupiuH, W'liU In the OHne of printed docuiiKjnIs, all son's case, 2 St. 130. the impressions are originalfl, and are ev- 52 410 Secondary Evidence. [Ch. 19. Excep- tions. Records. Entry in public books. Proof of public officer. [ *453 ] 2. Proof of j)ublic officer. Keveniie officer. Surrogate. Under- sheriff. Some exceptions to the rule excluding secondary evidence require to be noticed. Where it is necessary to prove the contents of any record, or of proceedings of a Court of Jus- lice, or of entries in Court Rolls, or in public books or regis- ters, it is sufficient to produce an examined copy. (1) This is on a principle of general convenience, and because it is ap- parent, that if the contents were misrepresented, there would be obvious means of exposing the fraud or error. (2) It is not, in general, necessary to prove the Avritten appoint- ments of public officers ; for this would be attended with general inconvenience, and a strong presumption arises from the ^exercise of a public office, that the appointment to it is valid. (1) The cases upon this subject sometimes appear to be governed by the doctrine of admissions, but it will be seen by the examples, that the exception is of a more extensive nature. In the case of all peace-officers, justices of the peace, constables, &c. it is sufficient to prove, that they acted in these characters, without producing their appointments. (2) And in the case of officers of any branch of the revenue, where the question is whether they are such, proof of being reputed to be so, or of having exercised the office, is good ev- idence of the fact, on any indictment, information, action, or prosecution. (3) On an indictment for perjury, committed by the defendant before a surrogate in an Ecclesiastical Court, proof that the person, who administered the oath, acted as surrogate, has been held to be sufhcient prima facie evidence of his appointment and authority. (4) On a like indictment, an affidavit, purporting to be sworn before a public commis- sioner, was held admissible, without proof of the commission, on the ground that a commissioner for taking affidavits was a person acting as a public officer. (5) And proof of a person's acting as under-sheriff is sufficient proof of his authority to do any act necessary in the course of the office ; as, for in- (1) Vide infra, part 2. This doc- trine would seem not to apply to the case of every official niemorandurn, and perhaps not to every species of pub- lic record; but it appears to embrace the proceedings of all Courts, whether supe- rior or inferior, and whether of record or not. It will be seen that the like doc- uments may sometimes be proved by office copy, or copy by authorized offi- cer. (2) Vide, part 2, proof of judicial and other public documents. (1) The rule has been held, in Equi- ty, not to apply to the tithe collector, as acting under a private authority. Short V. Lee, 2 Jac. Sf W. 468. !Nor to as- signees of a bankrupt, Pasmore v. Bromsfield, 1 Stark. Ca. 296. As to the agency of a person signing notes for the Bank, Rex v. Bigg, 3 P. Wms. 427. In Rex V. Jones, 2 Camp. 131. A let- ter purporting to come from the Lords of the Treasury was read, the only evi- dence of their acting being the letter in question. (2) By Bulier J., in Berryman v. Wise, 4 T. R. 366. By the opinion of all the .Judges in the case of the Gor- dons, tried for murder in 1789, Leach's Cr. C. 585. Rex v. Shelly, 381, n, (3) St. 26 Geo. iii. c. 77, s. 13, St. 26 Geo. in. c. 82, s. 6; and see St. 11 Geo. I. c. 30, 8. 32. (4) Rex V. Verelst, 3 Camp. 432. Rex «. Creswell, Lond. Sitt. after Mich. 1816, S. P. (5) Rex V. Howard, 1 M. 8f Ro. 187 Ch. 19.] Secondary Evidence. 41t stance, to make an assignment of a lease, under an execution, in the name of the sheritf. (6) (a) The hke proof was held sufficient on the part of a plaintiff of his being vestry-clerk ; ^'^siry- and the rule was said to extend to all public officers. (7) *The rule of exclusion has been relaxed in some cases Voinmiuoiis where the evidence is the result of voluminous facts, or of f'^^Y'/i l the inspection of many books or papers, the examination of '^ '^ -^ which could not conveniently take place in Court. Thus a witness may be asked as to a practice of accepting bills drawn in a particular manner, without producing the bills. (1) In this case Lord Ellenborough observed, that parol evidence might be received of one unvaried mode of dealing between parties by means of bills of exchange ; but that if the mode of dealing varied, the bills must be produced. So a witness may give evidence of a general balance of accounts. (2) A witness may be interrogated as to his examination of old rec- ords, and may state that they correspond in substance with a particular record which has been read, without going through the whole in detail, subject however to a full cross-examina- tion. (3) Where the question is as to the solvency of a party at a particular time, a witness may speak to the general result of his inquiries, as derived by the accounts rendered by a bankrupt of his affairs. (4) It has been already noticed, that the rule is not in general yoiredire. enforced upon examination on the voire dire owing to the pe- culiar circumstances under which those examinations take place : but that it prevails where an inquiry is made for the purpose of disqualifying a witness on the ground of infamy, in consequence of a previous conviction,which is capable of be- ing proved by matter of record. Notices of the dishonor of Notices, bills, notices to quit, and attorney's bills of charge delivered under the statute, may be proved by secondary evidence, (6) Doe dem. James v. Brawn, 5 (2) Roberts r. Doxen, Peake, S.3. — Barn. & Aid. 243. In I'urness v. Cope, 5 Ring 114, a bank- (7) M'Gahey v. Alston, 2 M. 8,- AVel. rupt's ledger was received, to prove tbnt 211. The same has been held by Ten- a person bad no funds in the bank, with- lerden, as to a clerk of trustees under a out calling the clerks who made the en- turnpik'e act. The rule would seem to tries. prevail even in actions for libel Peri'arke, (3) Rowe v. Brenton, 3 M. &, R. \\.,ib. 209. Per Tindal, Ch. .1., in 212. Cannel r. Curtis, 2 Bing. N. C. 234.— (4) Assignees of Meyer v- Sefton, 2 From the cases, where the acting in a St. 274. It was observed by llolroyd, particular capacity is proof against a par- J., that the like evidence had been re- ly by way of admission. Vide supra, ceived by Lord Kenyon, as from the na- p 3g9_ ture of the case, such an impiiry could (1) Spencer w. Billing, 3 Camp. 310. not be made in Court. [a) A (loputy shoriff was pormittod to prove, flint iio snizpd a p.irtiriilftr horso on execution, as llie property of tho execution debtor. !) Pick. CiH. 412 Secondary Evidence. [Ch. 19. Orijjinal evidence not avail- able. [ *455 ] 5lissinf^ (locumeiils. Absent wit' nesses. without giving a notice to produce or shewing the loss of the original evidence. {5){a) *Where the production of evidence indicates the existence of other evidence of a more original character, still if it can be shewn that the better evidence is not attainable, the principle of the rule will not apply. (1) {b) With respect to the proof of documents, it is, in general, permitted to give secondary ev- idence of them, where they are destroyed or lost, or where they are in the possession of an adversary who refuses to pro- duce them, or are not available, in consequence of some rea- son of public policy, or of consideration for the interests of witnesses. This subject involves several subordinate ques- tions of great practical importance, as, for example, the neces- sary search after documents, and the due notice to produce them ; which will be more particularly considered in treating of written evidence. With respect to the case where the more original evidence consists in the testimony of an individual, the practical ques- tions chiefly occur in regard to the absence of attesting wit- nesses, or of persons who have made depositions. Where there is not sufficient proof that the parties are dead, some (5) Notice of dishonor, Kine v. Benu- mont, 3 Br. & B. 288. Attorney's bill. Colling u. Trevveek, 6 B. & C. 895. It is not necessary, that such notices should be proved by duplicate originals, or con- temporary copies, ib. Ackland v. Pearce, 2 Camp. 601. If a notice to quit be attested, the attesting witness must be called, Doe v. Durntord, 2 M. Xr S. 62. Such notices are usually proved by dupli- cate originals, or, at least, by examined copies. (1) Inscriptions on walls and fixed ta- bles do not admit of being proved, oth- erwise than by secondary evidence, Doe d. Coyle v. Cole, 6 C. A: P. 360. Rex V. Fursey, 6 C. & P. 81. (a) Notices. See Smith v. Hawthorn, 3 Rawle, 3.55- A notice to an en- dorser, relates to a few simple facts, and it has been usual to prove it with- out calling on the party to produce the written notice received by hirn. 3 Pick. ISO. So, the purchase of personal property may be proved without producing the bill of parcels. 8 id. 55*2. [b] Missmg documents. If any suspicion hangs over the instrument, or that it is designedly withheld, a more rigid inquiry should be made into the reasons for its non-production. But where there is no such suspicion, all that ought to be required is a reasonable diligence to obtain the original, By Thompson, J. 7 Pet. 99. Certain promissory notes were entrusted with the clerk of the court ; and it appeared from his testimony that they were lost, and that he could not find them. Held, that this was a proper case to let in evidence of the con- tents ; and the attorney of record was a proper witness to prove the facts. Jones V. Fales, 5 Mass. 101, Presumptive evidence of the loss is sufficient. 5 Pick. 436. A writing was left with a friend, who removed and left the paper with his father, who died. After proof of these facts, a witness swore, that after the father's death, he, together with the son-in-law, to ivhom all his papers came, made diligent search among the father's papers, but could not find the writ- ing. It was held that this was sufficient proof of the loss to let in the sec- ondary evidence, without the oath of the son-in-law, 6 Binn. 59. Ch. 19.] Secondary Evidence. 413 difficulty often arises as to whether any, and what, causes of absence shall be sufficient to allow of the admission of second- ary evidence. The search after absent witnesses is another point of considerable practical importance. These matters will be more particularly considered in treating of written ev- idence, in which part of the work it will also be more conve- nient to examine the cases where the proof of documents by attesting witnesses may be dispensed with, from various oth- er causes, besides that of not being able to procure their at- tendance. It may be proper, however, to observe in this place, that where it is proposed to discredit a witness, in which case it is proper to give him an opportunity of explain- ing his own acts and declarations previous *to proving them i #45^ i by other witnesses, (such inquiry not being irrelevant to the issue,) it is necessary to examine the witness sought to be discredited as to these matters, in the first instance, not- withstanding his answers would tend to criminate him- self. (1) Where original evidence is not available, many questions have arisen, as to what shall be deemed sulficient secondary evidence. These questions usually occur in the proof of doc- uments, and will therefore be more conveniently treated of in the second part of the work. (2) CHAPTER XX. ON PRESUMPTIVE EVIDENCE. In the preceding chapters we have considered the various rules for the exclusion of evidence ; we now proceed to treat more particularly of the quality of evidence. Where a fact is not of a nature of which a Court will take judicial cogni- zance, it is sometimes proved by the immediate inspection of a jury, but more frequently by the actual witnesses of it, and occasionally, under the limitations which wc have noticed, by hearsay or secondary evidence. It is proposed, in the present chapter, to treat of the quality of the evidence in cases where the facts, to be proved by any of the above means, are not the precise facts in issue, but where the jury arrives at a conclu- (1) The Queen's case, 2 Y>r. S,- B. Meek,, 2 Y. 4- .T. 116. A uiacliine not 313. Sen lidiiiunstonev. Webb, 3 Esp. copy, Nixlin w. Murry, 3 Camp. 2:JM. 244. Vide itifra, part 3, Examina- Ilex v. Watson, 2 St. 129, 11. I)u I'.er- tion of Witnesses. inger's ciise, ib. Ilolliind ru Reeves, 7 (2) To the s.iiiie pari of the work l)e- C. &, P. 3(). .As to post-iriiirkn iinil Ion" the f|uesiioris, wlietlier piirticuhir marks of double poslnge. Ilex v. I'lum- documetits are the Ijest, or secoiidiiry mer, II. Sf 11. 2(i4. As lo ilupliiMto evidence. A CDuntorpart is original ev- originals, see per Hayloy, .1., in (,'olling idence, Burleigh v. Stibbs, 4 T. II. 465. v. Trewcek, 6 B. <^ C. 3!)S. Roe V. Davis, 7 Kast, 363. Paul v. 414 On Presumptive Evidence. [Ch.'20. sion, upon the points submitted to them, by an act of reason- ing. The evidence in such cases is said to be presumptive. [ *A57 ] In tlie first section will *be considered the presumption of or- (Jinary occurrence, wliicli are usually made by Courts and ju- ries ; and in the second, the relevancy of presumptions will be treated of. Section I. Presumptions made by Courts and Juries. "A presumption of fact," says Lord Tenterden (1) "is, properly, an inference of that fact from other facts that are known ; it is an act of reasoning. It is chiefly in those instan- ces, where a sanction has been given by the Judges, to infer- ences, which a jury are to draw in particular cases, and which are called presumptions of law, that presumptive evidence be- comes a subject of legal science ; nevertheless it may be useful to advert to some authorities respecting presumptions in gene- ral, whether of fact or of law." ex^^^aua"-*^ In drawing an inference from facts proved, regard must al- tion. ways be had to the facility that appears to be afforded for ex- planation or contradiction. No person is to be required to ex- plain or contradict, until enough has been proved to warrant a reasonable conclusion against him in the absence of explana- tion or contradiction ; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, human reason cannot do otherwise than adopt the conclusion to which the proof tends, if no explana- tion or contradiction is offered. (2) Corpus Lord Stowell observes, that when a criminal fact is ascer- tained, presumptive proof may be taken to shew who did it, in order to fix the criminal, having then an actual corpus de- licti ] but to take presumptions, in order to swell an equivo- cal and ambiguous fact, into a criminal fact, is an entire mis- application of the doctrine of presumptions. (3) Hov/ever, on proper occasions, the same learned Judge was accustomed to r *458 ] resort to presumptive *evidence for the purpose of testing the truth of positive testimony, especially that presumption which Evidentia arises from the conduct of the parties at the time of a transac- tion, the evidejitia rei, as he was used to call it, and which will generally be found to lead to a conclusion incompatible with direct testimony, where such testimony is invented or exaggerated. (1) (1) In Rex r. Burdett, 4 B. &. A. Lord Tenterden, in Rex v. Burdett, 4 161. B. 4* A. 162, as to the proof of the cor- (2) Per Lord Tenterden, in Rex v. pus delicti. Burdett, 4 B. ^ .4. 162. (1) Evans r. Evans, 1 Hagg. Con. (3) Evans r. Evans, 1 Hagg. Con. Rep. 105, 112. See Lord tJtoweH'.'* Rep. 105. And see the observations of observations on the circumstantial evi- ret. Sect, l.j Presumptions by Courts and Juries. 415 Where it appears that on one side there has been forgery Fraud. or fraud in some material parts of the evidence, and they are discovered to be the contrivance of a party to the proceeding, it affords a presumption against the whole of the evidence on that side of the question, and has the effect of gaining a more ready admission to the evidence of the other party. (2) With respect to the comparative weight due to direct and Direct nud presumptive evidence, it has been said, that circumstances are siamini in many cases of greater force and more to be depended on evideuce.. than the testimony of living witnesses : inasmuch as witness- es may either be mistaken themselves, or wickedly intend to deceive others, whereas circumstances and presumptions nat- urally and necessarily arising out of a given fact cannot lie. (3) (a) It may be observed, that it is generally the prop- erty of circumstantial evidence to bring a more extensive as- semblage of facts under the cognizance of a jury, and to re- quire a greater number of witnesses than v/here the evidence is direct, whereby such circumstantial evidence is more capa- ble of being disproved if untrue. (4) On the other hand, it may be observed, that circumstantial *evidence ought to be acted on. with great caution, especially [ *459 ] where an anxiety is naturally felt for the detection of great crimes. This anxiety often leads witnesses to mistake or ex- aggerate facts, and juries to draw rash inferences ; there is also a kind of pride or vanity felt in drawing conclusions from a number of isolated facts, which is apt to deceive the judg- ment. Not unfrequently a presumption is formed from cir- cumstances which would not have existed as a ground of crimination, but for the accusation itself; such are the con- duct, demeanor, and expressions of a suspected person, when dence leadiiiw to the presumption of the great cause of A nnesly r. Lord Anglesea, fact of ."Adultery, which he observes, is and the opinion quoted by him, ih. 9 St. rarely proved by direct testimony, Love- Tr. 426, 17 Howell, 1430. It was said, den V. Loveden, Hagg. Com. Rep. vol. the presumptions in that case, arisinj^ ii, page 2. Cadogan v. Cadogan, 2 Hagg. from kidnapping, and the prosecution 4,11. Chambers t). Chaaibers, 1 Hagg. for murder, were stronger than the evi- 444. Williams v. Williams, ih. 294. dence of a thousand witnesses. Elvves t) Elwes, ib. 217. Hammerton (4) See the observations of Mr. Benlh- «. Hainmerton, 2 Hagg. 2 Ser. 14. am, on the probative force of circumstan- (2) See Mr. A. Stewart's Letters to stantial evidence, Ualionulc of Judicial Lord Mansfield, upon the Douglas case. Evidence, vol. 3. p. 251. (3) Charge of Mountenoy, 15., in the (a) See the observations of Story, J, 1 Gall. R. 104. Testimony, however positive, must in its nature be liable to control by strong presumptive cir- cumstances, and must be weighed with care, when it coinos h'adod with tiie temptations of private interest, and the impressions of personal penalties. It, is a melancholy consideration for the court, that in the discharge of pub- lic duty, it finds itself often obliged to resist the influence of human declar- ations, and to rely upon the concurrence of probable circumstances. 416 On Presuntptive Evidence. [Ch. 20. scrutinized by those who suspect him. (1) And it may be ob- served that circumstantial evidence, which must in general be submitted to a Court of Justice through the means of wit- nesses, is capable of being perverted in like manner as direct evidence ; and that, moreover, it is subjected to this addition- al infirmity, that it is composed of inferences each of which may be fallacious. Tresiimp- The principal authorities concerning presumptive evidence <>"• Ye\d,tQ to particular presumptions of law. These are of two Conclusive dcscriptions ; First, where the presumption is conclusive in lionl"'"''" i'^'s nature, being in fact a rule of law, which is capable of be- ing withdrawn altogether from the consideration of a jury, and which, if successive juries were to disregard it, would be en- forced by granting as many new trials, the presumption (though usually a part of the common law) being as obligato- Authorizeti ^^ iipou juries as any ])art of the statute law : (2) Secondly, ))resiinii)- whcu the prcsumptiou is authorized by having received great- ''°"^" er or less judicial sanction, and by .Judges being in the habit of recommending it's adoption in terms more or less strong, but where it cannot be wholly withdrawn from the consider- ation of a jury, and when, though juries were to repudiate it, [ *460 ] a new trial would *not be granted as a matter of certainty, and probably not above one or two new trials would be grant- ed in any case. Conclusive ^\\e first sDCcies of presumptions may be again divided into tions, two kinds, first, when the presumption admits of no proof to species of. ^^^^ contrary, and secondly, where it only afibrds a, prima fa- cie inference, which is conclusive only in the absence of proof to the contrary. Presump- In the history of the law, several presumptions which were lions oi inw ■ when estab- at One time deemed conclusive by the courts, have, by the hshed. (a) opiuious of later Judges, acting upon more enlarged experi- ence, become conclusive only in the absence of proof to the contrary, or have been treated as wholly within the discretion (1) Of the suspicious conduct some- 506. Burnet's Criminal Law of Scot- times exhibited by innocent persons un- land; Harris's Criminal Law of Scotland, der accusation of crimes, a remarkable I'aley's Moral Philosophy; Evan's Ap- instance is mentioned by Lord Hale in pendix to Pothier, 339; Bentham's lla- his pleas of the Crown. On the dan- tionale of .ludicial Evidence, vol. v., gers of circumstantial proof, see defence which contains many valuable sugges- of Donellan, published by his solicitors, tions on the subject. A. D. 1781. On the general subject of (2) Presumptions of this kind were Presuntptive Evidence, see 7 Howell's distin«;uished by the civil law by the ap- St. Tr. 1529, n. 14 vol 1230, 1229, j)e\[aUon, Presumptiu juris et de jure. 1246; 17 vol. 1430, 1341; 33 vol. (a) Presumptions of law. If an executor after the inakinp of his ivill transfer a specific legacy., the presumption of law is, that his intention was to adeem it. White v. Winchester, 6 Pick. 48 ; ]4 J. R. 324. See Stout v. Hart, 2 Hals. 414 ; Walton v. Walton, 7 J. Ch. R. 262. Sect. 1.] Presumptions by Courts and Juries. 417 of juries. In. modern times, many presumptions have been established, which convenience or general experience have dictated, and which are binding upon juries, until they are rebutted. Several presumptions of this nature have been cre- ated by the Courts ; others have been made by act of ])arlia- ment, and this principally in cases of revenue and penal stat- utes. (1) With respect to those presumptions of law, Aviiich are not Auihomed considered imperative upon juries, the occasions, upon which [ons^'iiow Judges have afforded their sanction and authority to them, ^'""ctwtieiJ. have been various. In some cases, it has been said, a jury ought to have drawn a particular inference which they have not drawn, and a new trial has consequently been granted. In others, the Court lias observed, that a jm-y or inferior Court have not improperly acted upon a particular presumption, and that therefore the decision ought not to be interfered with. It has not unfrequently happened that the same presumption has been spoken of by some Judges as a rule of *law ; whilst [ *4G1 ] by others, it has been treated merely as lit to be recommended to a jury, or as one which a jury might properly make. Though the presumptions under consideration are strictly within the province of a jury, the language of Courts expres- sed in regard to particular presumptions- may, in general, be expected to have considerable influence in the determination of future cases, whether by a Court or a jury, in which the like presumption may arise. The presumption of prescriptive rights or of obligations Irom modern user, is seldom warranted in point of fact, or real- ly entertained by juries. It seems, however, improper for a Judge to leave the presumption to a jury, where modern us- er, is uncontradicted, as one which it was competent for thoni to make ; they should rather be irjstructed, that tliey o//^'Vi^ to make the presumption. (1) In a recent case, the Court of Common Pleas Avere e(pially divided upon the question, whether a second new trial slioidd be granted in a case where the court appeared satisfied that (I) A retnailcri])tion; and, ho observes, I'.racton, were, in his opinion, not suffi- that it is fit to reromnittid a jury to cient, though at the time Bracion wrote, make tiio presumption. h\ that case they were considered as conclusive pre- the usage had existed only for twenty suiiiptions. years. (I) See per Parko, B., and Aldernon, 41S On Presumptive Evidence. [Ch. 20. the jury had acted in direct opposition to the presumption of unseaworthiness, arising from a ship recently after sailing be- coming distressed without any adequate cause ; which pre- sumption has been sanctioned by great legal authorities, and lias by some eminent Judges been expressly called a rule of law. (2) Partiruiar jj^ secms to be a presumption not admitting of proof to the tions. contrary, that a person under the age or lourteen is unable to ■Age. commit the crime of rape, (3) and also, that an infant under [ *462 ] *the age of seven cannot be guilty of felony, (1) and it is a prima facie presumption of law, that a person under the age of fourteen is not guilty of a felonious intention, until evidence is produced to show that he is doli capax ; for then, it is said, malitia supplct cctate-m. (2) ^^gitima- j^ ^ child be born after the marriage of the mother, and during the husband's life, it is presumed to be legitimate. It was formerly an established doctrine of the Courts, that this presumption in favour of legitimacy could not be rebutted, unless the husband was incapable of procreation, as from im- potency or old age, or was absent beyond the four seas during the whole period of the wife's pregnancy. (3) This doctrine was not, however, conformable to earlier legal authorities. (4) In later times it came to be established, that the presumption, in favour of the legitimacy of the child of a married woman, might be rebutted, if it were shewn that the husband had not opportunity for sexual intercourse within such a period of time before the birth of the child, as admits of his having been the father. And in the jiresent day, even, where a hus- band and wife have had opportunities for sexual intercourse, at a time when the husband might have become the father of the child, a court or jury are at liberty to infer from the cir- (2) Foster v, Steele, C. B. Tiiri. T. executed for arson, and a boy of the age A. D. 1837. Douglds I'. Scougal,4 of ten for murder. The age of witness- Dow. 269. Parker u. Potts, 3 Dow. 23. es was formerly regulated Ijy the prac- Watson r. Clark, 1 Dow 32. lice of the Courts. In the Banbury Peer- (3) I Hale's P. C. 630. Rex v. age case. Sir S, Romilly argues, that it Groombridge, 7 C. &- P. 582, where it is a presumption of English law that was held that the presumption was not parties are never too old to beget chil- affected by the statute 9 Geo. 4, c. 31. dren; but it would seem that the doc- Rex V. Eldershaw, 3 C. 4" P- 396, un- trine, as far as it is a positive rule of law, less as a principal in the second degree, only applies to estates tail. As to the The rule seems to be laid down, as if presumption of the illegitimacy of chil- no proof could be admitted to the con- dren, on account of the tender years of trary of the presumption. It does not the father, Rolle's Abr. tit. Bastardy, appear, whether in any case such proof 359. has been tendered. Medical experience (3) Co. Litt. 244, a. Rex v. Alber- shews, that the presumption is not al- ton, 1 Lord Ray. 395. Regina v. Mur- ways according to fact and truth. ry, 1 Salk. 12i. (1) 1 Hale, P. C. ch. 3; 1 Russel on (4) See the ancient authorities collec- Crimes, ch. 1. ted in Le Merchants' Preface to the Gar- (2) Rex V. Owen, 4 C. & P. 236.— diner's Peerage case. A boy between eight and nine has been Sect. 1.] Presumptions by Courts arid Juries. 419 cumstances of the case, that no sexual intercourse took place. (5) But where a *jury helieve that sexual intercourse [ *463 ] took place between husband and wife, and at a time when it might have led to the conception of the child whose legitima- cy is disputed, it would seem that they ought not to find the child a bastard. (I) Children, born during a divorce amensa et iho7'o, are presumed to be illegitimate. (2) The fact of marriage is generally considered as sufficiently Marriage, proved by presumptive evidence of cohabitation, or even by general reputation, (3) but in actions for adultery and on in- dictment for bigamy an actual marriage must be proved. (4) Even where a marriage between parties is proved to have been illegal, it may be competent for a jury to presume, from the circumstances of the case, where the parties have cohabit- ed as man and wife, that a subsequent valid marriage has tak- en place. (5) There is a general presumption in criminal matters, that a intention, person intends whatever is the natural and probable conse- quence of his own actions. Where a prosecutor, on an indict- ment for forging a receipt with intent to defraud him, swore *that he believed the prisoner had no such intent, the Judge [ *464 ] directed the jury, that the defrauding, being tiie necessary ef- fect and consequence of the forgery, was sufficient evidence of the intent of the prisoner to warrant them in convicting. (1) (5) Pendrell v. Pendrell, 2 Str. 925.— Rex V. Reading, Rep. Temp. Hard. 82. Rex r. Luffe, 8 East, 193. Banbury ^ Gardiner Peerage cases, Le Merchant's Ed. See the Ed. Rev. March, 1829, where it is contended, that the want of lecognition on the part of tlie husband is essential to the proof of illegitimacy. Cope V. Cope, 1 M. & Ro. 275. Mor- ris r. Davis, 3 C. <^ P. 215. Rex v. Luffe. 8 East, 206. Goodright v. Saul, 4 T. R. 356. (1) Cope V. Cope, 1 M. & Ro. 275, where it is said by Alderson, H., that where a jury believes that a husband and wife have actually had sexual intercourse within the requisite limits of time, the law will not allow a balance of the evi- dence as to who is most likely to have been the father. See Head i'. Head, I Sim. & Slu. 152. 1 Turn. 139. It may, perhaps, be thought that even this point will ultimately be reduced within the province of a jury. It has been said, that if a man marries a woman visibly pregnant, it is a conclusive inference of law, that the child is Icgilinnlo. As to the existence of any presuinpiion respect- ing the length of the period of gestation, see the evidence in the Gardiner's Peer- age case, Hargr. Co. Lilt. 123, b. n. 1 & 2. Alsop V. Bowtrell, Cro. Jac. 541. As to the presumption when a widow marries again, and has a child within nine months, Harg. Co. Litt. 8 a. n. 7. (2) Parish of St. George v. St. Mar- garet, 1 Salk. 123. (3) Doe V. Fleming, 4 Bing. 266, though the parties whose marriage was disputed might have been called as wit- nesses in an ejectment brought by their lieir, Reed v. Prosser, Peake, 233. (4) Morris v. Miller, 5 Burr. 2057. Birt V. Barlow, 1 Doug. 170. It was said by Lord Mansfield, that the action might be turned to bad purposes, if per- sons could give the name of a wife to women to whom they were not married, 1 Russell on Crimes, 206, 207. It is not necessary to prove registration, li- cense, or banns. Rex v. Alison, It. ^ R. 109. (5) Wilkinson v. Payne, 4 T. R. 468. (1) The judges held the conviction to be right, Shepherd's case, 11. ^- 11. H>9. See Phelps's case, 1 ftlo. Cr. Ca. 263; Maragora'd case, R. fy 11.291; Earring- ton's ca^e, R. iV It- 207, where inten- tion to injure the owner of a mill set on fire was presumed. Dixon's case, S M. ^ S. 15. 420 On Presumptive Evidence. [Ch. 20. Malice. jt seems to be clearly a presumption of law, which ought not (to be left to the discretion of the jury, that where an act is done injurious to an individual, malice is prima facie, to be presumed in the person doing that act. Thus a new trial has been granted, because a Judge left it to the jury to say, whether a defendant intended to injure the plaintiff by the publication of a libel, the Court determining that the law Av^ould presume the, intention. (2) (a) Sir M. Forster observes, that, in every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity or infirmi- ty are to be satisfactorily established by the prisoner, unless they arise out of the evidence produced against him ; for the law presumes the fact to be founded in malice, unless the con- trary appears. (3) Innocence, A presumptiou exists agaiust Criminality and the commis- sion of fraud. (4) Thus, where a plaintiff complained that a defendant had put on board of a vessel combustibles which oc- sioned the loss of the vessel, the Court held it to be incum- bent on the plaintiff to prove the negative, that no proper no- [ *4G5 ] tice *had been given, and they confirmed a nonsuit upon this ground. (1) The force of this presumption has been consider- (2) Haire u. Wilson, 9 B. ^ C. 643. 169, 2Q7, 191. The distinction between majice in fact (3) Sjr M. J'oster's Discourses, 256, and in law. is explained by Bailey, J., 257. 1 Hale's P. C. 455. 1 East's P. in Bromage v. Pmsser, 4 B. ^ C. 253. C. 340, 3 M. .S" S. 15. R. ^ R. Cr. In actions for malicitms prosecution, mal- Ca. 169, 207, 291. ice may be presumed from want of prob- (4) 10 Coke, 56, the case of the able cause, Burley v. Bethune, 5 Taunt. Chancellor v. the University of Oxford, 583. See Turner v. Turner, Gow, 20. where see the various Latin maxims by Brooks r. Warwick, 2 St. 389. Cozer which this presumption has been ex- i>. Pilling, 4 B. Sr C. 26. But the want pressed. of probable cause is only presumptive (1) Williams v. E.I. Co. 3 East, 192. evidence of malice, and ought not to be For other examples, see Rex. v. Haw- left to the jury as conclusive, Mitchell v. kins, 10 East, 211, presumption of tak- Jenkins, 5 B. & Ad. 588. On the infer- ing the sacrament. Pvwell v. Millbank, ence of malice in criminal cases, Foster's 3 VVils. 855; 2 Bl. 851. Monke v. Bui- Disc. 256, 257, 3 M. 4- S. 15. R. .V R. ler, 1 Roll. R. 83. Clayton's R. foj. (a) In an action for a malicioos prosecution, it oujrht to be left to the jury to find whether there Avas malice or not ; 5 B. & Ad. .588 ; it is essen- tial for a plaintiff to prove facts from which the judge may decide that there is want of probable cause, and the jury that there is malice. 9 Conn. 309. If a person commence an action, by attaching tlie goods of the defendant, knowing that he has no cause of action ; this is malicious enough. By Daggett, J., id. See also 12 Pick. 324. and 5 Mason, 192, where jt is laid down, that whatever is done with a wilful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlaw- ful means, or to do a wrong knowing it to be such, constitutes legal malice. See6 Wend. 418. In an action of slander, defendant under the general issue may .show that he spoke the words without intention to defame. 15 Mass. 48; 5 J. R. 180; Alderman v. French, 1 Pick. 1. But the mere proof of the words spoken is sufficient proof for the plaintiff; he is not bound to prove that the words spoken were false or malicious. 1 Pick. 1. Sect. 1.] Presumptions hij Courts and Juries. 421 ed, in a late case, not so great as to preclude a jury, or a Court of duarter Sessions from presuming the continuance of human life, although such presumption necessarily led to a conclusion that a party had been guilty of bigamy. (2) But on the other hand, the presumption that a party has not been guilty of bigamy, may, it has been held, warrant a jury or Court of Quarter Sessions in concluding that a person was dead, who had been proved to have been alive within seven years. (3) {a) It appears from the case of Williams v. East India Com^ pantj, that the presumption under consideration may have the effect of shifting the onus prohandi from the person who has to prove the affirmative to him who relies on the negative ; (4) but it is conceived that it will not have this eftect, where the affirmative lies peculiarly within the knowledge of the party supposed to be criminal. Thus, in an action for practising as an apothecary without having obtained a certificate, the proof of the certificate lies on the defendant. (5) The like rule ob- tains; in convictions against persons for trading as hawkers, or selling without license. (6) *But where a libel is sold at a bookseller's shop by his ser- )^"I|'iIpf,''°" vant, it is, at least, presumptive evidence of a publication by r *4G6 ] the master ; though, in general, an authority to commit a breach of the law is not to be presumed. This is stated to be upon a ground of policy, lest irresponsible persons should be put forward, and the person who really produces the pub- 48,Dr. Maskers case, Comb. 202. ReK (4) 3 East, 192, and see B. N. P. t'. Coombs, Comb. 57. B N. P. 298, 298. Monke v. Butler, 1 Roll. Rep. 8.3, Rex «. Rogers, 2 Camp. 654. Bennet cited by Lord Ellenborough, 3 East, 199. ». Clongh, I B. & A. 461. Sissons v. Powell i'. INliibank, 2 Bl. Rep. 851. Dixon, 5 B. .^ C. 758. Rodwell r. Rex r. Coombs, Comb. 57. Gilb. Ev. Redge, 1 C. 4- P. 220, license of a the- 132. aire presumed. 3 C.h. Ca. 114; Cro. (5) Apothecaries' Co. t). Bentley. R. Car. 550; Latch. 68; and see the cases, ^ M. 150. See 4 B. 4^ A. 140; 9 Price, where a person acting in a public capaci- 257; 5 M. & S. 211; 1 B. 4" C. 150; ty is presumed to have been duly ap- 3 B & C. 242; 2 East's P. C. 782; pointed. Dickson v. Evans, 6 T. R. 57. (2) Rex v- Harbonne, 2 A. 4" E- (6) Rex v. Hanson, Paley on Con- 545. viciions, by Dowling, 45; and the cases (3) Rex V- Twyning, 2 B. & A. 388. of qualifications under the repealed Gamo The general observations of the Court Laws, 1 T. R. 144; 1 East, 650; 2 as to the force of the presumption of in- Russ. on Crimes, 692. Rex r. Turner, nocence in this case, are impugned by 5 M. 4" S. 206. Rex i*. Smith, 3 Burr, the observations of the Court, in Rex v- 1475. 1 B- & P. 468; 2 B. 4- P. 307. Harbonne, 2 A. & E. 545. (a) Innocence. Under an indictment for peddling' jjoods contrary to the statute, it is incumbent on the prosecutor to prove .such facts as constitute guilt according- to the statute. 2 Pick. 103. Advice given to another to commit suicide, will be presumed to have produced tlie effect intended. 1^ Mass. 359. 422 On Presumptive Evidence. [Ch. 20. Presiimp- lloil olllioft Irom pos- session. Contra spo- liatorem. [ =*467 ] licatioii, and without whom it could not be published, should escape. (1) The most common case of presumptive evidence in crimi- nal proceedings is the presumption arising from the possession of stolen property. Juries are frequently warranted, by the sanction if not by the recommendation of Judges, to presume that a person, who is found in possession of stolen property recently after it has been missed, has been guilty of stealing it. Sometimes this presumption has been spoken of as made by the law ; but it seems to be presumption purely of fact. It depends upon various circumstances, especially on the in- terval of time which has elapsed since the loss of the proper- ty, and the probability of the prisoner having had access to it. (2) Where a person is proved to have suppressed any species of evidence, or to have defaced or destroyed any written instru- ment, a presumption will arise, that if the truth had appeared, *it would have been against his interest, and that his conduct is attributable to his knowledge of this circumstance, (a) In a case where the finder of a jewel would not produce it, upon an action of trover being brought against him to recover it, Chief Justice Pratt directed the jury, that they ought to pre- sume the strongest against him, and to make the value of the jewel of the finest water that would fit the socket of the one which had been withheld, the measure of their damages. (1) In Harwood v. Goodright^ (2) a testator made a will, and de- (1) Gutch's case, M, Sf M. 433. Al- mon's case, 5 Burr. 2698. Walter's case, 3 Esp. 21. Cuthel's case. Holt on Libel, 287; 2 Starkie on Slander, 33; Dodd's case, 2 Ses?. Ca. 33; 1 Russ. on Crimes, 236. See Harding v. Greening, 8 Taunt. 42. Several aulliorities appear to decide, that the master is responsible for the publication by his shopman, in the ordinary course of his business, not- withstanding he is able to negative all knowledge of the particular libel, by showing that he has been kept away from the premises for a long time by ill- ness. (2) See the observations on this pre- sumption, 2 East's P. C. 656, 665; 2 Hale's P. C. 289. As to the interval elapsing between the loss and discovery of the property, see Anon, 2 C. .^ P. 459. Roscoe, on Cr. evidence, 17. It may be observed, that this presumption is frequently as strong in favor of receiv- ing stolen property, as of stealing it. As to the possession of stolen property being evidence of another felony, e. ^. Arson, Rickman's case, 2 East's P. C. 1035. That it is not necessary that the stolen property' should be discovered before the prisoner's apprehension, see per Lord Ellenborough and Lord Tenderden, in Watson's case, 2 St. 139. Cases of dif- ficulty in practice frequently occur, where stolen property is found in the house of a prisoner, but there are other inmates capable of stealing it, (1) Armory v. Dolamire, 1 Str. 505. (2) Cowp. 86. For other examples of this presumption, see the case of An- nesley v. Anglesea, 17 Howell, 1430, where the presumption arose from the plaintitT being kidnapped and sold for a slave. Sir S. Romilly's speech on Lord Melville's trial, where most of the cases [a] It has been said that if an alteration appears upon the face of a bill, the party producincr it, must show that the alteration was not improperly made. .5 Bing. 183. But this is denied in Bailey v. Taylor, Jl Conn. R. 531, by Williams, C. J., who cites Taylor v. Mosely, 6 C. & P. 273. Sect. 1.] Presumptions by Courts and Juries. 423 vised premises to A. ; afterwards he made another will, wliich was lost, and which the jury found, by a special verdict, to be different from the former will, but they did not find in what particular the difference consisted : the Court decided, that the devisee under the first will was entitled to the estate; but Lord Mansfield said, that in case the devisee under the first will had destroyed the second, it would have been a good ground for a jury to find a revocation. The fabrication of evidence is calculated to raise a presumo- ^*'''"''''«- • i il ^11 1 ' . ^ tioii of tion agamst the party who has recourse to such a practice, not evidence, less than when evidence has been suppressed or withheld. Legal experience however, has shewn that false evidence has some- times been resorted to, for proving facts which are true. (3) In the Douglas Peerage case, the successful party had to contend with a presumption against him arising from the fab- rication of several letters. (4) It has been considered, that upon a charge of robbery it is *not necessary that actual fear should be strictly proved, be- [ *46S 1 cause, as it is said, the law, in odium spoliatoris, will presume fear, where there appears to have been a just ground for it. Accordingly an indictment for robbery has been sustained, where the party robbed sought out the robber and submitted to be robbed by him, purposely with the view of bringing him to justice. (1) In general, there is a presumption in favour of the continu- c'on'inu- ance of what is once proved to have existed. (2) But in coiuinu- questions concerning the duration of human life, there is a ance of life, presumption which has been much sanctioned and acted upon (if it be n»)t obligatory upon juries), that where a person has been absent abroad for seven years, he is to be presumed to be dead, (a) This period has been adopted as the ground of are collected. Cowper v. Cowper, 2 P. ilie Surgeon, fabricated hy Sir J. Stew- Wins. 720, 748, 752. 8 Ves. 363. art. Gartside v. Ratclifle, 1 Ch. Ca. 292. (1) Fost. 12S, 2 East's P. C. c. ]6,s. Delany v. Tenison, 3 Br. P. C. fi59. 128. 1 Russ. on Crimes. 72. Ualston J. Coulsworth, 1 P. Wms. 731. (2) Wilson v. Hodges, 2 East, 312. Anon. 1 Lord Raym. 731. Barker u. Throgmorton i>. \Valton, 2 Roll. R. 461, Ray, 2 Russ. 73. Evans's Pothier, vol. \V here insanity is once established, it is 2, p. 336. Crisp v. Anderson, 1 St. 35. presumed to continue till a lucid interval Clunnes u. Pezzy, 1 Camp. 8 n. Braith- is proved. Atty. Gen. v. I'arnther, 3 waiie V. Coleman, 1 Harr. 22; Burr. Br. Ch. Ca. 25. Ex paite, Holyland, 2484. As to the inferences to be drawn 11 Ves. 10. White v. Wilson, 13 Yea. from withholding booUs, after notice to 88. Swinb. 72, 78. Hargr. Co. Litt. produce. Cooper v. Gibbons, 3 Camp. n. 185. White v. Driver, 1 Phillirii. 363. Lawson w. Sherwood, 1 St. 314. 100. Groom r. Thomas, 2 Hagg. 2 (3) See a remarkable instance, 4 In- Ser. 434, presumption of continuance of stitute, 232. pulilic appointment. Rex v. Budd, 5 (4) See Appendix to Evan's Pothier, Esp. 230. respecting the four letters of Lamarre, (a) See the case of Jackson v. Etz, S.Cowen, 314. 1.5 .1. R. 228. An ab- sence for a shorter period than seven years, is not sufficient to raise a pre- 424 On Presumptive Evidence. [Ch. 20. [ *409 Of surviv Missing' ships. such presumption, from analogy to the statute 1 Jac. 1, c. 11, relating to bigamy, and to the statute 19 Car. 2, c. 6, relating to the continuance or lives on which leases are held. (3) But the fact of absence for seven years raises no inference as to the exact time of the death, or that the death took- place at the end of seven years; (4) ] *iiy the civil law and in foreign codes several rules are laid down for the direction of Courts, in ascertaining the fact of survivorsliip, where several persons have perished by the same calamity. No- very definite rule has been adopted in this country upon the subject ; but there appears to have been a leaning to consider the person possessed of the proper- ty in dispute to have surviv'ed, and some regard appears to have been paid to the probability of the survival of the strong- er party. (1) With respect to the presumption of the loss of missing ships, (3) In Doe d. George v. Jes! is in possession of property. A person in possession of land, r"*472 ] (2) Bex V. All Saints, Southampton, memorandum of the service, which was 7 B. Sf C 789. admissible, according to a recognised ex (3) Butler v. Alnutt, 1 St. 222. ception to the rule which excludes hear- (4) Per Parke B., in Warren i>. War- say evidence. As to the effect of the ren, i Cr. M. i^ R. 252. Proof of no- course of business in proving that letters tice of dishonor, by putting letter into have been sent by the post, where the the post, R. & M. 149; 2 Campb. 633; clerks of an otfice are dead, Prilt r. Fair- 9 East, 347. Post marks are evidence clough, 3 Camp. 305. Hagedorn v. that the letters were in the office at the Reid, 3 Camp. 377. Toosey r. VVil- times which the dates specify, R. 8f R. liams, ftl. 8c M. 129. As to the effect of 264; 3 St. 64; 2 Camp. 23;'l M. & M. the like course of business, where the 276. Vide infra, part 2. clerks are living, Hethoringlon v. Kemp (5) Doe d. Pattershail v. Turford, 3 4 Camp. 193. Hawkes v. Salter, 4 B. &. Ad. 895, service of a notice to Bing. 715. quit. The deceased person liad made a (a) Munn r. Baldwin, 6 Mass. 316. If it was agreed that the letter mis- carried, and that the defendants did not receive it, it rnijrht be a question at whose risk the letter was sent by the mail; and wlicther the regular mail being the usual method of conveyance for notices of protest of bills, &c., the defendants must not be answerable for the miscarriage in the same manner as if a letter sent by their private servant had not been delivered by him. See Miller v. Hacklcy, 5 J. R. .'37.'), where the notary testified that he did not recollect positively as to sending the notice in the present case, but said it was his usual practice, as notary, on the evening of the day of the protest, and in all cases of protest, to give notice in writing, to the endorsers at a distance, by putting the notice in the post-office, directed to the party, at his place of residence. Held, sufficient. (i) Property in (roods. In Ireland v. Higgins, Cro. Eliz. 125, a plainti/T recovered in trover for a grcy-jiound. The naked possession of a personal chattel is prima facie evidence of property, and good against all but the rightful owner. But a person claim- ing title under a sheriff's sale, must show the execution by virtue of whicU 428 On Presumptive Evidence. [Ch. 20. is jon'ma/aae presumed to be seised in fee. (1) This pre- sumption, however, maybe rebutted by a stronger presump- tion, arising from circumstances, as from subsequent posses- sion ; it is not conchisiv^c evidence of a seisin requiring to be divested by deeds. (2) Possession of personal property affords a j&n??ja/ade presumption of o\vnership. Thus, although a docum/entary title is essential to the ownership of ships, it is sufficient, in an action upon a policy, for the plaintiff to rest upon the mere fact of possession, unless further proof be ren- dered necessary by contrary evidence being adduced. (3) («) (1) ric?e the cases, supra of decla- (3) Robertson o. French, 4 East, 130, rations against interest by persons in pos- See also Trotter v. Harris, 2 Y. & J. 285, session of property, which depend on possesion of tlie franchise of a ferry, presumption. Uoev. Dyebali, M. Sf M. 346. Doe v. (2) Jayne V. Price, 5 Taunt. 326, as Clarke, 7 Bing. 346, possession of to presumptive right to minerals. Rowe title in ejectment against a wrong «, Grenfel, R. ^ M. 396;Rowe r. Dren- doer. Further on, presumptions from Ion, 8 B. 4" C. 737, of quit rent. Doe possession, Sutton v. Buck, 2 Taunt. V. Johnson, Gow, 173, of property in 302. Thomas v. Foyle, 5 Esp. 88. rriines. B. N. P. 33; as to rebutting Catteris v. Cowper, 4 Taunt. 547. — the presumption arising from possession, Graham r. Peat, 1 East, 244. Sheriff by shewing that an ancestor has not con- v. Cadell, 2 Esp. 617. Webb v. Fox, veyed by true recovery, Doe v. Pike, 3 7 T. R. 397. 1 B. ^ P. 44 ; 1 St. 374, p. & Ad. 738. 454; 3 Esp. 140, 278;Peake, 148. the property was sold. Vance v. Reardon, 2 N. & M'Cord, 299. But the sale may be proved by parol evidence. Evans v. Rosters, ib. 563. The reason is, that the return is not essential to the title of the purchaser; and the sale will be valid, although the execution shall never be returned, ib. 1 J. Cas, 155 ; Simonds v. Catlin, 2 Caines R. 63. The property of a building erected on the land of another by the consent of the owner of the land is personal property. Wells v. Banister, 4 Mass. 514 ; consequently, trover lies against a defendant on his conversion of the building. Osgood v. Howard, 6 Greenl. 452; Russell v. Richards, 1 Fairf. 429. And this against a purchaser of the land, although the latter pur- chased of the vendor who made no reservation of the building in the deed of conveyance. Hilborne v. Brown, 3 Fairf. 162. And a purchaser under a sheriff's sale of such building, may maintain trover against one who has fraudulently purchased the property, although there was a conversion by the defendant before the plaintiff became the purchaser, under tlie execution. Jewett V. Partridge, 3 Fairf 243, The owner of a swarm of bees retains his property in the same so long as he may be able to distinguish and identify it in the air; and it equally belono-s to him if it settles upon a branch or in the trunk of a tree, while it remains there under his observation and charge. If a stranger cuts the tree and carries away the honey, he may maintain trespass, although the tree is standing upon the soil of another. 13 Wend. 550. The growing fleece of sheep, and the crop of grain or fruit of the soil, are the subjects of sale. So, the owner of aninjals may contract for the sale of the increase thereof, when parturition from the mother takes place. 5 Yerg. R. 195. The vendor of property, however, cannot commu- nicate a riwht to property which he has not, and which he has no reasonable expectation of receiving by prior contract or consignment, but only means to go into the market and obtain it. Ry. & Mo. 386 ; 2 K. C. 468. (a) A bill of sale or other instrument under seal, is not essential to the .transfer of a ship, more than of any other chattel. Taggard v. Lofing, J6 Sect. 1.] Presnm'ptions by Courts and Juries. 429 There are ceYta-in prima facie presumptions in respect of ^°""^'^'''^*- the ownership of property, which seem to have the force of rules of law, though a jury must draw the conclusion which is derived from them. Thus, the ownership of a road, ad me- dium filum vicB, presumptively belongs to the owner of the ad- jacent lands ; (4) and there is the like presumption in respect of the property in rivers. (5) It is a presumption that strips of waste land, which adjoin a road, belong to the owner of the adjoining inclosed land, whether he be a freeholder or copyholder, and not to the Lord of the *Manor, unless the [ *473 ] strips communicate with open commons, or larger portions of land. (1) In speaking of the latter presumption, Mr. Justice Bayley says, it is very desirable, that there should be one cer- tain and definite rule applicable to all cases of this descrip- tion ; (2) and Mr. Justice Holroyd remarks, that it was of con- siderable importance, that the prima facie presumption should be constant and uniform. (3) By the prescription act, 2 and 3 W. 4, c. 71, various pre- inforpo- sumptions, which juries had been ordinarily recommended, if ^^^ "° not directed, to make from modern user, as to the existence of immemorial rights, or of modern rights founded on supposed non-existing grants, have been converted into positive rules of (4) Berry & Goodman's case, 2 Le- 304. on. 14S. Per Gibbs, Ch. J., in Grose (3) Ibid. Presumptive ownership of V. West, 7 Taunt. 40. See Headlam v. walls. Duke of Newcastle, v. Clark, 8 Headley, Holt, N. P. 463. Taunt. 613. Wiltshire v. Sidford, cited (5) Hale de Jure Maris, part 1, ch. 1, 8 B. ^ C. 259. Matts v. Hawkins, 5 Callis on Sewers. Taunt. 20. Callis on Sewer.^, p. 74. — (1) Doe d. Pring r. Pearsay,7 B. & Of trees. Masters v. Poll is, 2 Roll. R. C. 304. Steel v. Prickett, 2 St. C. 463. 141. Holder v. Cotes, 1 M. & M. 112. Grose v. V\ est, 7 Taunt. 40. Cook v. Waterman r. Soper, 1 Lord Raym. 737- Green, 11 Pr. 736. The presumption 2 Roll. R. 255; B. N. P. 85, of mate- has a reasonable foundation, since, if the rials of public bridge. Hamson v. Par- road was out of repair, travellers might ker, 6 East, 154, of soil in separate fish- go upon the adjacent land, which would ery. Lloft, 364, of ditches. Vowies be a reason for the owner not inclosing v. Miller, 3 Taunt. 138. Guy v. West, up to the margin of the road. It ap- 2 Sewl. N. P. 1218; of balks between pears not to exist where the road is de- commons and private lands. Bailiff's fined for the first time under an inclosure of Godmanchester v. Phillips 4 A. & E. act. Rex v. Hatfield, 4 A. & E. 165. 556. (2J In Doe t;. Pearsay, 7 B. ^ C. Mass. 340. Such a document may be required in the admiralty courts ; but the principle has not been introduced in the common law. 8 Pick. 80. It is well settled that tlie registry of a vessel does not determine the own- ership. 2 Hall 1. The object of the registry at the custom-house is merely to show her national character, id.; 14 J. R. 201 ; 15 id. 302. A party is not concluded by the registry. And where a mortgagee of a vessel declared himself the legal owner, for the purpose of the registry acts, held, that this did not in any manner alter the relations existing between him and the mortgagor. 1 Mason, 318 ; 2 Hall, 1. See also the case of Wait v. Gibbs, 4 Pick. 298. The presumption of law is, that the consignee is the owner of the proper- ty. 15 Wend. 474. 430 On Presumptive Evidence. [Ch. 20. law. Previous to this act, a technical effect was given to the evidence of enjoyment of certain incorporeal rights for the pe- riod of twenty years, which, though, in theory, only presump- tive evidence, was in practice and effect a bar. (4) (a) Public way. With respect to the presumed creation of rights of way, it is to be observed, that notwithstanding the statute, the dedica- tion of public ways is still a matter to be presumed by juries ; and in making a presumption in such cases, numerous cir- cumstances require to be taken into consideration^ the effect [ *474 J of *which has, in different instances, been more or less clear- ly defined by legal authorities. (1) (i) With respect to the presumption of incorporeal rights from user not included within the statute, many presumptions may continue to be formed by juries, and will, it is conceived, be recommended to them in deference to legal authority, and in consonance with the justice of a case, though contrary to (4) Per Parke, B., in Bright v. Walk- Trustees of Rugby Charity v. Merry- er, 1 Cr. M. 4- 11. 217. The statute weather, 11 East, 376, n. 2 M. & S. does not prevent a jury from presuming 262; 4 Camp. 189. As to the effect of a grant from possession with other cir- a bar, Roberts r. Karr, 2 Camp. 262, n. cumstances, if they believe one to have Lethbridge v. Winter, 1 Camp. 263, n. been actually made; but it precludes the II East, 376, n. As to limited dedica- presumption from possession alone for a tions, Maiq. of Stafford v. Coyney, 7 less period of of enjoyment than that B. 8f C. 257. Woodyer v. Haddon, 5 prescribed. Ibid. Taunt. 125. As to the persons, wheth- (1) The limit of time is not clearly er tenants or trustees competent to dedi- defined, and the question is generally af- cate. Rex v. Leake, 5 B. & Ad. 469. fected by other stronger circumstances. Wood v. Veal, 5 B. 4" Ad. 454. Rex. than mere lapse of time. See Rex v. «. Barr, 4 Camp. 16. Harper w Charles- Lloyd, 1 Camp. 262. Trustees of Brit- worth, 4 B. & C. 574. 2 B. & C. 686; ish Museum v. Furnis, 5, C. 4* P. 460, 11 East, 372; 4 B. ^ A. 579. (a) With respect to easements and incorporeal rights, the rule is, that from long adverse enjoyment, a grant, or whatever else is necessary to legalize the enjoyment, and to establish a title to it, may be presumed. By Gould, J., 2 Conn. 628. Twenty years occupation of land by flowing* it under a elaim of right, affords a presumption of a grant of the use of it in that particular manner. 4 Day, 244. See 7 Cowen, 266 ; 10 Wend. 167; 10 Conn. 213; 4 Rand. 58. {b) Public ivay. The mere use of a road through a forest, cannot by a lapse of time, confer a right of way. 1 Bail. R. 56. To establish a road by prescription, the user mus< have been adverse and exclusive, id. p. 311. A way by prescription can properly exist only after an adverse user for 60 years. 14 Mass. 49; 5 Pick. 42L But the presumption of a grant of way may exist after a user of at least 20 years ; 2 Pick. 466 ; 3 id. 408. In Pennsylvania, uninterrupted enjoyment for 21 years is considered presump- tive evidence of a grant of the easement whether the land be enclosed or not. 2 Whar. R. 427. And occupation adverse to a right of way for the same length of time bars tlie easement id. p. 123. See 16 S. & R. 394; 2 Walts, 23; 12 Pick. 184. Proof that all persons have been accustomed to pass over a common will not be sufficient to establish it a highway. 7 Pick. 68. But a grant of a public square or street may be presumed from lapse of time, so far as to bai an indictment for a nuisance. I Whar. R. 469. Sect. 1.] Presumptions by Courts and Juries. 431 their opinion of the real facts ; as, when faculties are presum- ed for regulating the right to pews or vaults. (2) The like may be said of copyhold customs, (3) and the liabiUty to re- pair fences. (A.) Various other instances might be added, rest- ing as well upon modern as immemorial title. (5) It has been said, that an act of parliament may be presum- ed.(l) *Thus, where a road obstructing a navigable channel had existed for so long a time, that the state of the channel could not be proved, it was considered that an act of parlia- ment, or a writ of ad quod damnum, might be presumed, which had extinguished the public right in the channel. (2) Grants from the Crown may be presumed ; but where such a presumption has been made, it has been under particular circumstances, and, after a much longer period of time than has been deemed sufficient for raising the presumption of a grant from private individuals. (3) Conveyances between private individuals are often recom- mended to juries, in more or less forcible terms, as presumable in favour of a party who has proved a right to the beneficial ownership of property, and whose possession has been con- sistent with the existence of such a conveyance as is to be presumed, especially if the possession cannot be accounted for, and would have been unlawful, except on the supposition of a conveyance ; such presumptions are made to prevent justice Faculties. Fences. Act of par- liament. [ *475 ] Writ o( ad- quod dam- num. Grants from the crown. Private conveyan- (2) Rogers v. Brooks, cited 1 T. R. 43i, n. Peltman v. Bridger, 1 Phiilim. 323. Fuller v. Lane, 2 Adams, 425. Waiter v. Gunner, 1 Hagg. 314. Corn. Dig. Esgiise. Byerley v. VVindus, 5 B. & C. 1. Mainwaring v. Giles, 5 B. & A. 360. Stock V. Booth, 1 T. R. 430. Griffith V. Matthews. 5 T. R. 296. The presumption of the right of pew against a wrong doer appears to be diti'erent from that which would be made against churchwardens. (3) A single entry upon the rolls may afford evidence from which a copyhold custom may be presumed. Doe d. Ma- son V. Mason, 3 Wil.s. 63. (4) 6 B. ^ C. 337. Chectham v. Hampson, 4 T. R. 318; 2 Wms. Saund, 285, n. 4; 290, n. 7. Booth v. Wil- son, 1 B. ^ A. 59. Churchill v. Evans, 1 T. R. 529. Yin. Ab. til. Fences. Com. Dig., action on the case for negligence. (5) See Gray v. Bond, 2 B. 8f B. 667, presumed grant of right of lending nets. As to the presumption of the endowment of vicarages, VVooley v. Brownhill, M'Clel. 321. Inman v. Whormby, 1 Y. &. J. 545. VVooley v. Birken.shaw, 12 Price, 702. Appeiley r. (iill, 1 C. If P. 316. The abandonment of the rights to ways, commons and light may, it is conceived, notwithstanding the statute, soiDetitnes give rise to ques- tions of presumptive evidence. See 3 B. 8c C. 339, as to the waiver of an im- plied covenant in law within twenty years, in the case of lights. As to re- leases of incorporeal rights, see 12 Ves. 265; 2B. & A. 791; 3B. & C. 339; 15 East, 108; 1 St. 102; 1 Price, 251, 253; Vin. Ab. 16, pi. 3. (1) By Lord Mansfield, in Eldridge v. Knott, Cowp. 215, citing Lord Coke. (2) Rex r. Montagu, 4 B. & C, 599. See Cowper, 215; 1 Eden, 296; 6 Ves. 215; 2 Ves. Jun. 583; 1 Jac. 8f W. 63; Lopez u. Andrews, Hays' Conv. 11 n. That a private act of parliament may be presumed, Skinner, 78; 12 Ves. 265. That the relinquishment of public rights is not to be presumed in the sanie man- ner as that of private rights, Vooght v. Winch, 2 B. ^ A. 662. 4 Burr. 2613; 7 East, 199. (3) Roe V. Ireland, 11 East, 161, en- franchisement of a copyhold by the Crown, presumed after an enjoyment of more than a hundred years. Rex w. Brown, cited by Lord Mansfield, Cowp. 110; 1 J. 4- W. 159. Mayor of Kiiiga- ton V. Horner, Cowp. 102. Lord Mans- field, in Eldridge t;. Knot, Cowp. 115. 432 On Presumptive Evidence. [Ch. 20. being defeated by a mere formal objection to the party's title ia a Court of Law. (4) (a) But ^vhere the original possesion (4) Per Tindai, Ch. J., in Doe v. pointing to thetn; per Bayley, J., and Cooke, 6 Hing. 180. See Matthews, Lord Tenterden, Ch. J., in Doev. Reed, on Presumptions, ch. xi. Reconveyances 5 B. ^ A. 237. It has been doubted of Mortgages, 2 Sim. & Stu. 154^ B. whether deeds can be presumed in regis- N. F. 10. Conveyances by trustee to ter counties in opposition to the want of cestui que trust, 8 T. R. 122, 1 J. & registration. Doe v. Hurt, H Price, 475. W. 620. The doctrine extends to con- Surrender of lease not presumed, Doe v. structive trusts, 12 Ves 239, 251. Re- Thomas, 9 B. ^ C. 288. Non-pay- conveyance of feoffer, Tenny v. Jones, nieui of tithe does not raise, as against a 3 M. <^ S. 472. Conveyances from old lay improprietor, a presumption to go to to new trustees, 1 H. Bl. 446, 459. — the jury of a grant of tithe to the land- Mesne assignments of leaseholds, Eafl «j owner, Bayley v. Drever^ 1 A. 4" E. Baxter, 2 Bl. 1228; 11 Ves. 350; Jn- 449. Presumption of disseverance of on. 12 Vin. Ab. 223; Skinner, 77; tithes, Countess Dartmouth v. Rob- per. Le Blanc, 8 East, 266; per Lord erts, 16 East, 334, where Lord Ellen- Bldon, 1 Turn. 29; As to the point borough quotes a dictuin of Lord Ken- whelher fines or recoveries could not be yon, that he would presume two hun- presumed, without evidence directly dred deeds if necessary. (a) The statute of limitations ordinarily constitutes a sufficient title or de- fence. And where the circumstances of the case justify it, a presumption of a grant may as well be presumed in the case of corporeal as incorporeal hereditaments. A grant of lanid may as well be presumed as a grant of a fishery, or of a common, or of a way. By Story, J., 7 Wheat. 109. However, in Sumner v. Child, 2 Conn. 607, it was held, that a grant of lands could not be presumed from possession and length of time. Mr. Jus- tice Gould observes, that " whenever length of possession is admitted, as presumptive evidence of title to corporeal hereditaments, it is only as sec- ondary corroborative evidence of an an actual conveyance, or of some ac- companying requisite, of which the original and best evidence has been lost." It is said in note to a former edition of this work (1st Am. ed. 1816), that the presumption "equally applies to lands and tenements." The editor cites among other cases, 10 J. R. 377 ; 3 Mass. 399 ; and 10 id. 105 ; "nei- ther of which alFords any countenance to such a proposition." By Gould, J., 2 Conn. 632. " And with respect to the other cases brought together by the editor, for the same purpose, it may be safely asserted, that they all proceed upon principles totally distinct from tliat conclusive rule of presumption, which obtains in the case of incorporeal ri^hts.^— It may be sufficient to ob- serve, that in several of them, the presumption was founded upon special corroborating circumstances, accompanying the possession ', and that, in most of the others, the fact in question was presumed, in pursuance of the maxim, that 'what ought to haVe been done, shall be presumed to have been done ; ' so that where a party is entitled to a conveyance, a conveyance shall be presumed." id. " Length of possession may, with other circumstances, be proved to perfect the title to lands and tenements. But the distinction between the principle of those cases and the doctrine of conclusive presumption, in the case of incorporeal rights, is very broad, and I think, very clear. The rule of dis- crimination, I take to be this : when an actual transfer of title, of which the deed, or any other necessary original evidence, is lost, is to be made out, in whole, or in part, by secondary evidence ; length of possession is, like any ether circumstantial fact, admissible, as corroborative evidence, and only as corroborative evidence, of such transfer. And here it is immaterial, whether the subject in question be incorporeal or corporeal, id. But where length of time is relied upon as a presumptive bar, i. e., where mere length of pos- session is the only fact required to be proved, and is, of itself, the conclusive Sect. 1.] Presumptions hij Courts and Juries. 433 of property* may be accounted for, and is consistent with the [*476] fact of there having been no conveyance, it seems proper to direct a jury to presume a conveyance or not, according to their actual belief on the subject. (1) With regard to the presumptions of a conveyance from a c<">vey- trustee to a cestui que trust, and of the surrender of outstand- uZ^Je""^ ing terms, which are often necessary in order to constitute a Pi"""*'"'- legal title in an action of ejectment, considerable differences '"° '^™*' of opinion have been expressed. As these questions are some- what removed from ordinary comprehension, it may be ex- pected, that, although they must be submitted to a jury, yet that, in point of fact, they will ordinarily be decided upon principles of law by the Judge. A surrender of an outstand- ing term will, in general, be presumed, where the trustees ought to convey to the beneficial owner, (2) or where a term is satisfied, and is set up by a mortagagor against a mortga- gee. (3) But such a presumption will not be made, where it would have been a breach of trust in the trustees to have sur- rendered the term; (4) or, in general, where the surrender would have been against the interests of the owner of the in- heritance, especially if the term has been recognised as sub- sisting at a late period. (5) The mere fact of a term having been satisfied does not aftbrd sufficient ground, upon which a jury can presume it surrendered. (G) *It has been considered, that when acts are done or omitted [*477] by the owner of the inheritance and persons dealing with him as to the land, which ought not reasonably to have been done or omitted if the term existed in the hands of a trustee, a sur- render may be presumed. (1 ) (a) (1) Doe (]. FenwicU v. Reed, 5 U. & 792. See further on tliis conlroverted A. 233. It was j.iid that the presmnp- suh;ect, Uoe v. Hilder, 2 B. <^ A. 7S2. lion of grants and conveyances h;i(I IJartleet r. Downes, 3 B. &: C. 616. — gone to too great a length. See Levett Doe v. Plowman, 2 B. ^ Ad. 573. — «. Wilson, 3 Bing. 115. Towsend r.Chainpernown,l Y. 4- J. .538. (2) By Lord Kenyon, Doe v. Staple, Doe d. Harriinond r. Coolie, 6 Bing. 2 T. II. 696. Doe v. Sybourn, 7 T. 174. Day v. Williams, 2 Cr. Sf J. R. 2. 460. Doe ». I'ulland, Sugd. V. &. P. (3) Ibid. 8th ed. 440. Marq. Townsond v. Bp. (4) Keen v. Dearden, 8 East, 2G7. of Norwich, ib. 443. Cholmondeley «. (.5) Dor r. Scott. 11 East, 478. vSee ('linton ib. 444. Aspinal v. Keinpson, Doe u. Wright, 2 B. & A. 720. ib. lUi Sugden's V. & P. 8ih ed. (6) Evans v. Bicknel, 6 V'es. 184, 440 to 446. IMalthew.s oil Prcsump- Sugd. V. & P. 424; 7th ed. tions, 226 to 59. (1) Per Lord Tenterden, 2 B. 4- A. fact, from which a title is to be peremptorily presumed, vpon the prinapJc of iiaietins: possession, and whellier an ori',nnal title is believed to have existed, or not, the subject in controversy alwaya is, and must be an iiici)r])or( al rifrht. id. {a) See .3 Wend. 149; 4 id. .18 ; id. .^543 ; G id. 228 ; 4 id. (YAli. 'J'hc talc- incr of a new lease by y)arol, is by operation of law a surrender of the old one, although it be by deed, provided the lease be a good oin; and operate 55 434 On Presiunptive Evidence. [Ch. 20. The principal difference of opinion has existed in respect of the presnmiition of the surrender of terms, from the circum- stance of their not being noticed in recent marriage contracts or other conveyances. It should seem that the Courts of Law had in some instances proceeded on an erroneous opinion as to the practice of noticing outstanding terms upon such occa- sions. But the Courts of Equity having expressed great dis- satisfaction at the decisions of the Courts of Law as to this matter, the Courts of Law appear to have been desirous, in la- ter cases, to assimilate their decisions to those of the Equity Courts. According to one of the most recent decisions upon the subject in the Court of King's Bench, Lord Tenterden ob- served, that the authorities which had. been discussed had been much questioned ; and, in answer to an inquiry made by him, whether a term, lilce that under consideration, had been usually noticed in a marriage settlement, having receiv- ed an answer in the negative, he observed, " if that be so, there is no ground for presuming that this term, which was assigned to attend the inheritance, was ever surrendered." (2) VVhere the ground for the presumption of a conveyance be- tween private individuals is simply that of length of posses- sion, it should seem that the Courts have imposed a restriction r *478 1 upon *the discretion of juries. It has been held, that posses- sion of land for any period less than twenty years by a feoffee Livery. is not sufficient to found a presumption, that livery of seisin has accompanied the feoffment. (1) Licences. Licenses may be presumed after a shorter space of time than is ordinarily required for the presumption of actual conveyan- ces. Thus where an inclosure had been made from a waste twelve or fourteen years, and had been seen by the steward of the lord from time to time, without objection being made, (2) The subject is fully discussed, by Wightw. 123. The period of twenty Sir E. Sudgen, in the last edition of his years has been adopted by the Courts, book on Venders and Purchasers (9th in various instances, for the purpose of ed. A. D. 1837). He concludes, that raising presumptions, in analogy, proba- the profession are justified by the author- bly, to the statute of James; ijut, in re- ities in considering the law to stand as it gard to the proof of written instruments, did, before the decision in Doe v. Ilil- by their production from the proper cus- der. tody, without further proof of execu- (1) Doe d. Wilkins v. Marq. Cleve- tion, the period of thirty years has been land, 9 B. ^ C. 871. As to the pre- adopted, 11 East, 504; 4 B. & A. 376; sumption of livery of seisin, Isack v. 5 T. R. 359; 2 M. & S. 337; 2 B. ^ C. Clarke, Roll. Rep. 132, pi. 9. Biden 814. Vide infra, part 2. V. Loveday, Vern. 196. Rees v. Lloyd, to pass an interest according to the intention of the parties. 15 Wend. 400. Surrenders are favored in law and require no technical words, but only such as require an intention to yield up. Gwyn v. Wellborn, 1 D. & B. 318. Sect. 1.] Presumptions by Courts and Juries. 435 it was left to the jury to say, whether the inclosure was made by the lord's license. (2) («) Although there do not remain any traces of a bye-law in %e-iaw. the corporation books, and although there cannot be any proof given of the loss of it, yet, upon evidence of constant usage, a jury may be directed to presume it's existence. Sixty years usage has been considered evidence of a bye-law. (3) It has sometimes been laid down, that a conspiracy to levy Presump- war against the King, when proved, amounts, in presumption Ire'aUa. of law, to a compassing of the King's death ; but, on the other hand, there are still higher and better authorities, both ancient and modern, for considering, that a jury are not bound to make such a presumption, unless they are satisfied, that the conspiracy was of such a nature as in it's consequences to oc- casion probable danger to the King's life. (4) *Presumptions of the payment of money have been sanction- ^^y* „ ed in various cases. Where it has been usual between parties r *479 1 to make payments, that frequently become due, without taking written vouchers, and a long time has elapsed Avithout any complaint being made of non-payment, the fact of payment (2) Doe ». Wilson, 11 East, 56. — Phillip's observations on Lord Russell's Goodtitle v. Baldwin, 11 East, 488. case, in his abridgment of the State Tri- Ditchaiii V. Bond, 3 Camp. 523. als; and Luder's tracts on Treasons. The (3) See Rex v. Head, 4 Burr. 251S. charge of Chief Justice E^re, in Har- Rex r. Bird, 13 East, 368. Per Lord dy's case; his summing up in Ilorne Mansfield in Perkins v. Warden of the Tooke's case; the summing up of Lord Co. of Cutlers, 21 IMiJS. Serg. Hill, p. Ellenborough, in Watson's case, are in 65; 2 Ves. 330; B. N. P. 211; 4 Co. favor of treating the presumption as one 78;Cowp. 110. of pure law. (4) See the authorities collected in (ffl) See Whitney v. Holmes, IG Mass. 443. Where the tenant cut a ditch and flowed the water into a swamp covered with timber, lield, that it was not a forfeiture. The court observed, that " if the turning of tlie creek produced waste by the destruction of tlie timber 20 years ago, and if the landlord lies by, until the inheritance is bonelitted by the act, it would be unreasonable to admit him to say tiiat tiiere was a forfeiture by an act in which he had so long acquiesced." Jackson v. An- drews, 18 J. R. 431. [h] In the case of a previous debt, if the creditor, by agreement with the debtor, accept the promissory note of a third person payable to himself, it is presumed to be in satisfaction, and exlinijuishcs the original consideration, and may be pleaded in bar, or given in evidence under tiic general issue. Much more, wjien the seller agrees at the time of sah?, to take, and lie doe.s then take, for tlie price, the note of such third person. 1 Dev. &. B. 3!)1 ; Tatlock V. Harris, .3 T. R. 180; 11 J. R. 409 ; 3 Wend. GG ; 7 Mass. 28G. Prima facie the delivery of a check for a larger sum, is evidence of pay- ment for goods sold. G C. & P. G4. But where a check on a bank is given, in the ordinary course of business, it is not an absolute payujent of a debt. 1 Cowen, 3.")!); 1 Hall, .IG. If liie check turns out to be unproductive, witli- out the fault of him who receives it, the original indebtedness remains us a good foundation for an action, id. 436 On Presumptive Evidence. [Ch. 20. Rcpnlrd ownership. may very properly be presumed. (1) [a) If a landlord gives a receipt for the rent last due, it is to be presumed that all for- mer rent due from the tenant has been paid. (2) (6) Where a bill of exchange, negotiated after acceptance, is produced from the hands of the acceptor, subsequently to it's becoming dne, the presumption is that the acceptor has paid it. (3) Where a person has been the absolute owner of property, and he continues in possession of it till the time of his bank- ruptcy, he will he prima facie presumed to have had the re- (1) See Lucas %■>. Novosilieski, 1 Esp. 2f»G. Selleii v. Norman, 4 C. Sf P. 8(i. Erans v. Birch, 3 Camp. 10. Tophaiii v. Lraddick, 1 Tnunt. 572. (2) Gilb. Ev. 157. {?>) Gibbons v. Featherstonehaugh, 1 St. 225. rfiel V. Vanbatenburgli, 2 Camp. 439. See Bciiibridge )■. Osborn, 1 St. 374. As to the pro-umplion of payincnt arising froiri the production of a clieque, see lioswell v. Siriilh, C. I'c P. 60. Pearce v. Davis, 1 U. & Ro. 365. Egg ?•. Barnet, 3 Esp. 196. Govv, 16; 4 Taunt. 293. Lloyd v. Sandilands, Govv, 16. Thai the payment of money does not in general raise tiie presumption of a loan, Welsh v. Seabone, 1 St. 474; Carey v. Gerrish, 4 Esp. 9; Holden v. llartsink, 4 Esp. 46. As to a presump- lioii of gift to a relative. Hick v, Keats, 4 B. &. C. 71. Sec further on the pre- sumption of payment, Cooper v. Turner, 2 St. 207. 4 Taunt. 293. On the pre- sumption of the satisfaction of judgments) warrants to confess judgments, decrees statutes, recognizances, annuities, por- tions, legacies, liens for purchase montjy. quit rents, Matihevrs on Presumptions, ch. 19 i*c 20. \\ iilauine v. Gorges, I Camp. 217. Ilulke ». Pickering, 2 B. C. 555. Cowp. 214. On the subject of the payment of bonds, see the stat- ute 3 & 4 W. 4, c. 42. Before the statute, payment might have been pre- sumed within twenty years, if circumstan- ces, occurred to fortify tiie presumption arising from lapse of time, as a settle- ment of accounts. Colsel y. Budd, 1 Camp. 27. Oswald v. Leigh, 1 T. R. 270. The production by the assured of a policy, with an adjustment, and the name of the defendant struck off, does not prove payment, Adams v. Saunders, M. l^ M. 373. [a] Payment from lapse of time in a court of chancery is a conclusion to be drawn by the court from the proofs, in like manner as they are drawn by a jury in a court of law. 5 J. Ch. R. 545. Payment of money is presumed after a great kpse of time, because the evidence of the fact may be pre- sumed to be lost. But the same presumption is not applicable to the extin- guishment of a right to rent, where the relation of landlord and tenant is once established, by a conveyance of the interest in remainder to the tenant, which can only be by deed. .Tackson v. Davis, 5 Cowen, 123. Such a pre- sumption is not a presumption of law which cannot be contradicted; but is a presumption in the nature of evidence, id. ; 3 J. R. 283. Where there is neither payment of rent nor acknowledgment for 20 years; as where a mortgagee has never entered into the possession of the premises, and no demand or payment has been made of principal or interest for 20 years, the presumption is that the mortgagee is satisfied. Bui. N. P. 110 ; 3 J. R. 386 ; 7 id. 282 ; 12 id. 242. Payment of a bond may be inferred from lapse of time; and this inference is a presumption of law ; and the rebuttal of such presumption by circum- stances is also a matter for tlie court ; though the truth of the facts is to be left to the jury. 2 Whar. 503. {/j) Brewer v. Knapp, 1 Pick. 337. Here, the lease was for one year, but the tenant occupied upwards of two years, and paid part of the rent for the first year, and the sum of $230 afterwards, but whether this latter sum was paid before or after the rent had accrued for the second year, did not appear. The Court held, that the lessor might apply it to rent due after the term, although there were sureties for the payment of the first years rent. Sect. 1.] Presumptions bij Courts and Juries. 437 puted ownership of it, unless he has made the change of prop- erty notorious ; but if he has never been the absohite owner, *it will be necessary to establish the fact of a reputed owner- [ *4S0 ] ship by other means than proof of possession, (1) There are several branches of law, in which there are rules Aroppiancc founded on the presumption that a party is willing to accept °' ''*'"'^'''- a benefit. Thus, it has been held, on the ground of this pre- sumption, that a surrender immediately divests the estate out of the surrenderor, and vests it in the surrenderee, before no- tice or agreement. (2) Besides the presumptions which have been mentioned, there If^^'a,'*^*'^*' are various others, which liave been adopted by the Courts of Couns. Equity and the Ecclesiastical Courts, but which are more sel- £ j^ dom used in common law proceedings. (3) It would be impossible to include, within convenient limits, a notice of the various presumptions, which have received ju- dicial sanction ; upon the etfect of which, useful observations may be found in the works of legal writers. Indeed the grea- ter part of the rules of evidence is founded upon presumptions ; *and consequently the subject of the present chapter receives [ *481 ] illustration from nearly every other chapter of the present Work. (1) (1) Lingard v. Messiter, 1 B. & C. 312, Storer v. Hunter, 3 B. & C. 374. (2) Thompson v. Leach, 2 Saik. 618, Hargr. Co. Litt. 337, b. n. 1. See Touson V. Tickle, 3. B. &. A. 31; 2 Salk. 618; 2 Swanst. 365; 5 Madd. 435. (3) Presumptive revocation of a will from marriage and birth of a child, Johnston v. Wharton, 1 Phillim. 447; Hoi way v. Clarke, 1 Phillim. 339; Em- erson V. Boswell, 1 Phillim. 342. Pre- sumption that a testator has destroyed his will, where it is known to have been in his custody, and is not found after his death, Rickords v. Mumford, 2 Phillim. 24; 3 Phillim. 128, 552; 2 Hagg. 2 Ser. 266, 192. Presumption, that where a later will is destroyed, and a former one uncancelled, the former is not revived, Wilson V. Wilson 3 Phillim. 543; Glaiz- er V. Glaizer, 4 Burr. 2512. i^o where a duplicate is left uncancelled, Colvin v. Fraser, 2 Hagg. 2 Ser. 2G6. The pre- sumption against a Will in the hand- writing of a party benefited, 1 Phillim. 193; 2 Phillim. 323. Presumption against an unexecuted will, or an unwit- nessed attestation clause, 2 Phillim. 122; 3 Phillim. 5, 628, 24, 524; 2 Phillim. 177; I Ad. 383. Presumption in favor of INIarriage, 2 Phillim. 51; 1 IMiillim. 294. Presumption of the commission of adultery, under parlicnlar circumstan- ces, Elliot V. Elliot, 1 Hagg. 1 Ser. 302. Williams v. Williams, 1 Hagg. 303; Sir J. Astley's case, 1 Hagg. 2 Ser. 716. For presumptions in Courts of Equity, see Matthews on presumptions. Courts of Equity presume, in the case of ten- ant rights of renewal, that a new lease has been obtained with reference to the interest in the former lease. Hargr. Co. Litt. 290, b. n. 1, xi. that a legacy charged on real eastate should not vest till the time when it is made payable, Hargr. Co. Litt. 227 a, n. 1. (1) See Bentham's Rationale, vol. iii. p. 598, authentication of writings by presumptions, ex visu scriptionis, ex scfiptis olim visis, ex cotuparatime scriptorum, ex custodid, ex tenore ; CT visu oJficiali,nnd the due authentica- tion of writings by the lii) it had been decided iu the (1) 1 Cowp. SOS. H venire de novo was granted, because (2) 1 Maule (^ Selw. 6G2. tlie Court considered iliai they could not (3) Rowe I). Brenton, 8 f>. ^ C. 758. assume that all the pieces of waste, with The matter in dispute Was neither a ques- respect lo which evidence was received, tiun of tenure nor of custom, as to which lay on the sidi;s of a road or roads ler- some nice distinctions are taken by For- minatin^ in a larije common. They rescue, J., in' DuUe of Somerset v. were, however, of opinion that evidence France, 'fhat proof of llie manner in was admissihiu of grants of parcels of which a particular trade is carried oa one and the same waste, lying on both at one place, is evidence as to the course sides of the road, although liie continui- of that f)arlicular trade in another ty of the waste was interrupted for ii place. Noble v. Kennavvay, 2 Doug, sliort distance by the intervention of 610. houses. The same princijtle is rucogni- (1) .Tones v. Williams, 2 HI. ^ We\. sed in Tyrwhitt v. Wynne, 2 li. Ik. A. 331, where the nature of this kind of .'if) I, where leases were ri'jecierJ on .ic- evidence is explained by I'arke, B., count of no previous proof IxMMg given see F,vann v. Butt, Jv. B. tlii. '1'. 1837. that the lor.iin in (/no was part of n hr- (2) 2 Bing. N. C. 10 J. 7 liing. 332, ger district to which ihusc leasts applied. o G 442 On Preswnjptive Evidei^ce. [Ch. 20. Exchequer Chamber, upon a question whether a piece of waste land between a highway and inclosure belonged to the plain- tiff, the owner of the adjoining inclosure, or to the lord of the manor, that the lord might give evidence of grants by him of waste land terminating in a common, between the road and the inclosures of other persons at a distance from the spot claimed by the plaintill"; but that such evidence must be confined to the waste adjoining the road which passed by the spot so claimed. * The case of Sir- T. Stanley y. White, (3) may here be mentioned as a leading authority upon this subject. This was an action of trespass for cutting down the plaintiff's trees ; the defendant pleaded his soil and freehold in the close upon which the trees were growing. The plaintiff replied, that the trees were his trees and freehold. It appeared on the tri- al, that the trees in question grew in a woody belt of consid- erable extent, entire and undivided, which encircled the plain- tiff"'s manor, and lay contiguous to a number of closes belong- ing to several owners, one of which closes was that of the de- fendant. Evidence was admitted of several acts of ownership, [ *487 ] in different *parts of the belt, by those under whom the plain- tiff claimed, which had been acquiesced in by the owners of the adjoining land. And the Court of King's Bench after- wards, on a motion for a new trial, adjudging the evidence to have been properly admitted, as evidence of the general right through the whole extent of such entire undivided inclosure, which might be presumed to have belonged formerly to one owner. This appears to be the true principle, on which the proposed evidence, in that case, was admissible. For, gener- ally speaking, acts of ownership, submitted to by the holder of one portion of land, cannot be proof that the person exer- cising them has any right to the adjoining land. (1) Inquiry in Tliougli it is a general rule, that a custom of tithing, &c. hla^i^on."^"" in one parish will not be evidence of a custom in another, yet such an inquiry may sometimes be very proper in cross-exam- ination. Thus, in an action by a rector for tithes, where the point in issue is, whether there exists a modus of a certain sum of money for a particular farm in a township within the parish, the defendant will not, in general, be allowed to inquire, whether other farms in the same township are not subject to the same payment. But where a modus is alleged on one side, it may be relevant on the other side to make an inquiry of this nature, for the purpose of shewing that such payments cannot be a modus, consistently with the evidence which has been previously adduced. This was adjudged to be ad- (S) 14 East, 332, See also Bryan v. Goldfinch, 1 B. ^^ C. 218, 219. Winwood, 1 Taunt. 208. Hollis v. (1) See 1 Barn. 4" Cress. 218, 222. Sect. 2. J On the Relevancy of Presumptions. 443 missible in the case of Blundell v. Howard. (2) The ques- tion there was not put by the defendant with a view of sup- porting the modus set up by him, but was put by the plaintiff, in order to shew that this and similar payments by tlie occu- piers of different tenements were merely portions of a sum in gross paid throughout the township by way of composition, and could not be a modus, since the ecclesiastical surveys, *which had been produced on the part of the rector, were en- [ *4SS ] tirely silent as to any modus co-extensive with the township. The character of the parties to a civil suit affords, in gen- Ev''|\ence eral, such a weak and vague inference as to the truth of points ter. in issue between them, that it is not usual to admit evidence civil suits. of this description. Thus, in an action of ejectment by an heir at law, to set aside a will for fraud and imposition com- mitted by the defendant, witnesses cannot be examined to the defendant's good character. (1) So, on the trial of an in- formation against the defendant for keeping false weights where it was proposed to call witnesses on behalf of his char- acter, Eyre, C. B., ruled that such evidence was not admissi- ble in a civil suit. (2) (a) " The otfence imputed is not," he said, " in the shape of a crime. To admit such evidence would be contrary to the true line of distinction, which is this, that in a direct prosecution for a crime, evidence of character is admissible, but when the prosecution is not directly for the crime, but for the penalty, it is not. If evidence to character were admissible in such a case as this, it would be necessary to try character in every charge of fraud upon the Excise and Custom-house laws." Where, in a civil suit, character is a matter in issue, there Character the ev^idence of it ceases to be of a circumstantial nature, and there can be no objection to receiving it. Various questions, however, have arisen in civil suits as to the point, whether (2) 1 Maule & Selw. 292. See Rex prisoner's expressions concerning him; ». Slallard, 7 C. .^ P. 263, wherean in- (I) Goodriglit d. Farr v. Hicks, B. quiry as to what other persons had said N. 1'. 296. II N. P. 298. of the prosecutor became relevant on (2) Attorney (Jen. v. Bowman, 2 B. account of an inquiry respecting the Sr P. 532. (a) See the observations of Hoffman, J., 1 Hall, 417; Fowler v. iEtna Ins. Co., G Cowen, G73 ; Converse v. Stow, ',] Conn. 3-25 ; Ilumpiirey v. Hum- phrey, 7 id. IKi; Norton v. Warner, 9 id. 172; PoUer v. Webb, G Greenl. 14; Gough V. St. John, IG Wend. G4G. WherfTa will was soiin^lit lo bo set aside on the ffround of improper in- fluence, tlie court admitted proof that persons combined to influence tiie testator were women of bad ciiaracter. K3 S. & R. 32.']. So, where proof had been admitted to show improper influence of one of the devisees, proof to uphold tiie ciiaracter of such devisee was admitted. .'> id. 207. So, in Ruan V. Perry, 3 Caines R. 120, in a case where defendant is cliar) In (3) Dodd ?•. Norris, 3 Campb. .519. dence of general conduct, is receivable, Gardiner v. Tadis, 1 Selw. N. I\ 25. — eillier wliere tbe general issue is pleaded, Roberts v. IMaisten, B. N. V. 296. El- or wliere tbero are pleas of juslificiition. sam p. Faucelt, 2 Esp. 2G2. As to the (1) Cornwall t). Richardson, 11. & M. husband's bad character, Bromly v. 305. Stuart u. Lovell, 2 St. 93. .fones WalUce, 4Esp. 237. The aulhoritie.