UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 , "PWUSHERS. \£d;nburgh 
 DEALERS AM) \ SCOTbwf) 
 
 ft| :

 
 A DIGEST 
 
 OF THE 
 
 LAW OF EVIDENCE 
 
 JAMES FITZJAMES STEPHEN, Q. 0. 
 
 SECOND EDITION— REPRINT 
 
 ST. LOUIS 
 P. H. THOMAS AND COMPANY 
 
 1879 
 
 ^v

 
 INTRODUCTION. 
 
 In the years 1870-1871 I drew what afterwards became 
 the Indian Evidence Act (Act 1 of 1872). This Act began 
 by repealing (with a few exceptions) the whole of the Law 
 of Evidence then in force in India, and proceeded to re- 
 enact it in the form of a code of 167 sections, which has been 
 in operation in India since Sept. 1872. I am informed 
 that it is generally understood, and has required little 
 judicial commentary or exposition. 
 
 In the autumn of 1872 Lord Coleridge (then Attorney- 
 General) employed me to draw a similar code for England. 
 I did so in the course of the winter, and we settled it in 
 frequent consultations. It was ready to be introduced 
 early in the Session of 1873. Lord Coleridge made var- 
 ious attempts to bring it forward, but he could not succeed 
 till the very last day of the Session. He said a few words 
 on the subject on the 5th August, 1873, just before Parlia- 
 ment was prorogued. The Bill was thus never made 
 public, though I believe it was ordered to be printed.
 
 IV INTRODUCTION. 
 
 It was drawn on the model of the Indian Evidence Act, 
 and contained a complete system of law upon the subject 
 of Evidence- 
 In the latter part of 1873 Lord Coleridge was raised to 
 his present position, and the Bill has not been proceeded 
 with by his successors. 
 
 The present work is founded upon this Bill, though it 
 differs from it in various respects. Lord Coleridge's Bill 
 proposed a variety of amendments of the existing law. 
 These are omitted in the present work, which is intended to 
 represent the existing law exactly as it stands. The Bill, of 
 course, was in the ordinary form of an Act of Parlirnent. In 
 the book I have allowed myself more freedom of expression, 
 though I have spared no pains to make my statements as 
 precise and complete in substance as if they were intended 
 to be submitted to the Legislature. 
 
 The Bill contained a certain number of illustrations, 
 and Lord Coleridge's personal opinion was in their favour, 
 though he had doubts as to the possibility of making them 
 acceptable to Parliament. In the book I have much in- 
 creased the number of the illustrations, and I have, in 
 nearly every instance, taken cases actually decided by the 
 Courts for the purpose. In a few instances I have in- 
 vented illustrations to suit my own purpose, but I have 
 done so only in cases in which the practice of the Courts is 
 too well ascertained to be questioned. I think that illus- 
 trations might be used with advantage in Acts of Parlia- 
 ment, though I am aware that others take a different view;
 
 INTRODUCTION. V 
 
 but, be this as it may, their use in a treatise cannot be 
 disputed, as they not only bring into clear light the 
 meaning of abstract generalities, but are, in many cases, 
 themselves the authorities from which rules and principles 
 must be deduced. 
 
 These explanations show, amongst other things, that I 
 cannot honestly claim Lord Coleridge's authority for more 
 than a general approval of this work. An Act of Parlia- 
 ment which makes the law, and a treatise which states it, 
 differ widely, and my work may of course be open to num- 
 erous objections which would have been easily answered 
 if they had been urged against Lord Coleridge's Bill. 
 
 The novelty of the form and objects of the work may 
 justify some explanations respecting it. In December 
 last, at the request of the Council of Legal Education, I 
 undertook the duties of Professor of Common Law, at the 
 Inns of Court, and I chose the Law of Evidence for the 
 Bubject of my first course of lectures. It appeared to me 
 that the draft Bill which I had prepared for Lord Coleridge 
 supplied the materials for such a statement of the law as 
 would enable students to obtain a precise and systematic 
 acquaintance with it in a moderate space of time, and with- 
 out a degree of labour disproportionate to its importance 
 in relation to other branches of the law. No such work, 
 so far as I know, exists ; for all the existing books on the 
 Law of Evidence are written on the usual model of Eng- 
 lish law books, which, as a general rule, aim at being col- 
 lections more or less complete of all the authorities upon
 
 Vi INTRODUCTION. 
 
 a given subject, to which a judge would listen in an argu- 
 ment in court. Such works often become, sometimes under 
 the hands of successive editors, the repositories of an extra- 
 ordinary anount of research, but they seem to me to have 
 the effect of making the attainment by direct study of a 
 real knowledge of the law, or of any branch of it as a whole, 
 almost impossible. The enormous mass of detail and illus- 
 trations which they contain, and the habit into which their 
 writers naturally fall, of introducing into them everything 
 which has any sort of connection, however remote, with the 
 main subject, make these books useless for purposes of 
 study, though they may increase their utility as works of 
 reference. The last edition of Mr Taylor's work on Evi- 
 dence contains 1797 royal 8vo pages. To judge from the 
 table of cases, it must refer to about 9000 judicial decisions, 
 and it cites nearly 750 Acts of Parliament. The last edition 
 of 'Roscoe's Digest of the Law of Evidence on the trial of 
 Actions at Nisi Prius,' contains 1556 closely-printed pages. 
 The table of cases cited consists of 77 pages, one of which 
 contains the names of 152 cases, whieh would give a total 
 of 11,704 cases referred to. There is, besides, a list of 
 references to statutes which fills 21 pages more. 'Best's 
 Principles of the Law of Evidence,' which disclaims the 
 intention of adding to the number of practical works on 
 the subject, and is said to be intended to examine the prin- 
 ciples on which the rules of evidence are founded, contains 
 908 pages and refers to about 1400 cases. When we re- 
 member that the Law of Evidence forms only one branch
 
 INTRODUCTION. vii 
 
 of the Law of Procedure, and that the Substantive Law 
 which regulates rights and duties ought to be treated inde- 
 pendently of it, it becomes obvious that if a lawyer is to 
 have anything better than a familiarity with indexes, he 
 must gain his knowledge in some other way than from 
 existing books on the subject. No doubt such knowledge 
 is to be gained. Experience gives by degrees, in favour- 
 able cases, a comprehensive acquaintance with the princi- 
 ples of the law with which a practitioner is conversant. 
 He gets to see that it is shorter and simpler than it looks, 
 and to understand that the innumerable cases which at 
 first sight appear to constitute the law, are really no more 
 than illustrations of a comparatively small number of prin- 
 ciples ; but those who have gained knowledge of this kind 
 have usually no opportunity to impart it to others. More- 
 over, they acquire it very slowly, and with needless labor 
 themselves, and though knowledge so acquired is often 
 specially vivid and well remembered, it is often fragment- 
 ary, and the possession of it not unfrequently renders those 
 who have it sceptical as to the possibility, and even as to 
 the expediency of producing anything more systematic and 
 complete. 
 
 Circumstances already mentioned have led me to put 
 into a systematic form such knowledge of the subject as 
 I had acquired, and my connection with the scheme of 
 education, established by the Inns of Court, seems to 
 impose upon me the duty of doing what I can to assist in 
 their studies those who attend my lectures. This work is
 
 Vlll INTRODUCTION. 
 
 the result The labor bestowed upon it has, I may say, 
 been in an inverse ratio to its size. 
 
 My object in it has been to separate the subject of 
 evidence from other branches of the law with which it has 
 commonly been mixed up ; to reduce it into a compact 
 systematic form, distributed according to the natural divi- 
 sion of the subject-matter; and to compress into precise 
 definite rules, illustrated, when necessary, by examples, 
 such cases and statutes as properly relate to the subject 
 matter so limited and arranged. I have attempted, in 
 short, to make a digest of the law, which, if it were 
 thought desirable, might be used in the preparation of a 
 code, and which, at all events, will, I hope, be useful, not 
 only to professional students, but to every one who takes 
 an intelligent interest in a part of the law of his country, 
 bearing directly on every kind of investigation into ques- 
 tions of fact, as well as on every branch of litigation. 
 
 The Law of Evidence is composed of two elements, 
 namely, first, an enormous number of cases, almost all of 
 which have been decided in the course of the last 100 
 or 150 years, and which have already been collected and 
 classified in various ways by a succession of text writers, 
 the most recent of whom I have already named; secondly, 
 a comparatively small number of Acts of Parliament 
 which have been passed in the course of the last thirty or 
 forty years, and have effected a highly beneficial revolu- 
 tion in the law as it was when it attracted the denuncia- 
 tions of Buntham. Writers on the Law of Evidence usu-
 
 INTRODUCTION. IX 
 
 ally refer to statutes by the hundred, but the Acts of Parlia- 
 ment which really relate to the subject are but few. A 
 detailed account of this matter will be found at the end of 
 the volume, in Note XLTX. 
 
 The arrangement of the book is the san e as that of the 
 Indian Evidence Act, and is based upon the distinction 
 between relevancy and proof, that is, between the question 
 What facts may be proved ? and the question How must 
 a fact be proved assuming that proof of it may be given ? 
 The neglect of this distinction, which is concealed b}" the 
 ambiguity of the word ' evidence ' (a word which sometimes 
 means testimony and at other times relevancy), has thrown 
 the whole subject into confusion, and has made what wa& 
 really plain enough appear almost incomprehensible. 
 
 In my 'Introduction to the Indian Evidence Act,' pub- 
 lished in 1872, and in speeches made in the Indian Legis- 
 lative Council, I entered fully upon this matter, and I need 
 not return to it here. I may. however, give a short outline 
 of the contents of this work, in order to show the nature of 
 the solution of the problem stated above at which I have 
 arrived. 
 
 All law may be divided into Substantive Law, by which 
 rights, duties, and liabilities are defined, and the Law of 
 Procedure, by which the Substantive Law is applied to 
 particular cases. 
 
 The Law of Evidence is that part of the Law of Proced- 
 ure which, with a view to ascertain individual rights and 
 liabilities in particular cases, decides:
 
 I INTRODUCTION. 
 
 L What facts may, and what may not be proved in such 
 cases ; 
 
 II. What sort of evidence must be given of a fact which 
 may be proved ; 
 
 III. By whom and in what manner the evidence must 
 be produced by which any fact is to be proved. 
 
 I. The facts which may be proved are facts in issue, or 
 facts relevant to the issue. 
 
 Facts in issue are those facts upon the existence of 
 which the right or liability to be ascertained in the pro- 
 ceeding depends. 
 
 Facts relevant to the issue are facts from the existence 
 of which inferences as to the existence of the facts in issue 
 may be drawn. 
 
 A fact is relevant to another fact when the existence of 
 the one can be shown to be the cause or one of the causes, 
 or the effect or one of the effects, of the existence of the 
 other, or when the existence of the one, either alone or 
 together with other facts, renders the existence of the 
 other highly probable, or improbable, according to the 
 common course of events. 
 
 Four classes of facts, which in common life would usually 
 be regarded as falling within this definition of relevancy, 
 are excluded from it by the Law of Evidence except in 
 certain cases : 
 
 1. Facts similar to, but not specifically connected with, 
 each other, (lies inter alios actce.)
 
 INTRODUCTION. XI 
 
 2. The fact that a person not called as a witness has 
 asserted the existence of any fact. [Hearsay.) 
 
 3. The fact that any person is of opinion that a fact 
 exists. [Opinion.) 
 
 4. The fact that a person's character is such as to 
 render conduct imputed to him probable or improbable. 
 (Character.) 
 
 To each of these four exclusive rules there are, however, 
 important exceptions, which are defined by the Law of 
 Evidence. 
 
 IL As to the manner in which a fact in issue or relevant 
 fact must be proved. 
 
 Some facts need not be proved at all, because the Court 
 will take judicial notice of them, if they are relevant to 
 the issue. 
 
 Every fact which requires proof must be proved either 
 by oral or by documentary evidence. 
 
 Every fact, except (speaking generally) the contents of 
 a document, must be proved bv oral evidence. Oral evi- 
 dence must in every case be direct, that is to say. it must 
 consist of an assertion by the person who gives it that he 
 directly perceived the fact to the existence of which he 
 testifies. 
 
 Documentary evidence is either primary or secondary. 
 Primary evidence is the document itself produced in court 
 for inspection. 
 
 Secondary evidence varies according to the nature of the 
 document. In the case of private documents, a copy of
 
 Xll INTRODUCTION. 
 
 the document, or an oral account of its contents, is sec- 
 ondary evidence. In the case of some public documents, 
 examined or certified copies, or exemplifications, must or 
 may be produced in the absence of the documents them- 
 selves. 
 
 Whenever any public or private transaction has been 
 reduced to a documentary form, the document in which 
 it is recorded becomes conclusive evidence of that trans- 
 action, and its contents cannot, except in certain cases ex- 
 pressly defined, be varied by oral evidence, though 
 secondary evidence may be given of the contents of the 
 document. 
 
 ILL As to the person by whom, and the manner in 
 which the proof of a particular fact must be made. 
 
 When a fact is to be proved, evidence must be given of 
 it by the person upon whom the burden of proving it is 
 imposed, either by the nature of the issue or by any legal 
 presumption, unless the fact is one which the party is 
 estopped from proving by his own representations, or by 
 his conduct, or by his relation to the opposite party. 
 
 The witnesses by whom a fact is to be proved must be 
 competent. With very few exceptions, every one is now 
 a competent witness in all cases. Competent witnesses, 
 however, are not in all cases compelled or even permitted 
 to testify. 
 
 The evidence must be given upon oath, or, in certain 
 excepted cases, without oath. The witnesses must be 
 first examined in chief, then cross-examined, and then
 
 INTRODUCTION. Xlll 
 
 re-examined. Their credit may be tested in certain ways, 
 and the answers which they give to questions affecting 
 their credit may be contradicted in certain cases and not 
 in other-. 
 
 This brief statement will show what I regard as consti- 
 tuting the Law of Evidence properly so called. My view 
 of it excludes many things which are often regarded as 
 forming part of it. The principal subjects thus omitted 
 are as follows: — 
 
 I regard the question, "What may be proved under par- 
 ticular issues? (which many writers treat as part of the 
 Law of Evidence) as belonging partly to the subject of 
 Pleading, and partly to each of the different branches into 
 which the Substantive Law may be divided. 
 
 A is indicted for murder, and pleads Not Guilty. This 
 plea puts in issue, amongst other things, the presence of 
 any st;ite of mind describable as malice aforethought, 
 and all matters of justification or extenuation. 
 
 Starkie and Roscoe treat these subjects at full length, as 
 supplying answers to the question, TVriat can be proved 
 under an issue of Not Guilty on an indictment for murder? 
 Mr. Taylor does not go so far as this ; but a great part of 
 his book is based upon a similar principle of classification. 
 Thus chapters i. and ii. of Part II. are rather a treatise on 
 pleading than a treatise on evidence. 
 
 Again. I have dealt very shortly with the whole subject 
 of presumptions. My reason is that they also appear to 
 me to belong to different branches of the Substantive Law,
 
 XIV INTRODUCTION. 
 
 and to he unintelligible, except in connection with them. 
 Take, for instance, the presumption that every one knows 
 the law. The real meaning of this is that, speaking gen- 
 erally, ignorance of the law is not taken as an excuse for 
 breaking it. This rule cannot be properly appreciated if 
 it is treated as a part of the Law of Evidence. It belongs 
 to the Criminal Law. In the same way numerous pre- 
 sumptions as to the rights of property (in particular, ease- 
 ments and incorporeal hereditaments) belong not to the 
 Law of Evidence, but to the Law of Real Property. The 
 only presumptions which, in my opinion, ought to find a 
 place in the Law of Evidence are those which relate to 
 facts merely as facts, and apart from the particular rights 
 which they constitute. Thus the rule, that a man not 
 heard of for seven years is presumed to be dead, might be 
 equally applicable to a dispute as to the validity of a mar 
 riage, an action of ejectment by a reversioner against a 
 tenant pur autre vie, the admissibility of a declaration 
 against interest, and many other subjects. After careful 
 consideration, I have put a few presumptions of this kind 
 into a chapter on the subject, and have passed over the 
 rest as belonging to different branches of the Substantive 
 Law. 
 
 Practice, again, appears to me to differ in kind from the 
 Law of Evidence. The rules which point out the manner 
 in which the attendance of witnesses is to be procured, evi- 
 dence is to be taken on commission, depositions are to be 
 authenticated and forwarded to the proper officers, inter-
 
 INTRODUCTION. XV 
 
 rogatories are to be administered, &c, have little to do 
 with the general principles which regulate the relevancy 
 and proof of matters of fact. Their proper place would 
 be found in codes of civil and criminal procedure. 
 
 A similar remark applies to a great mass of provisions 
 as to the proof of certain particulars. Under the head of 
 "Public Documents," Mr. Taylor gives, amongst other 
 things, a list of all, or most, of the statutory provisions 
 which render certificates or certified copies admissible in 
 particular cases. 
 
 To take an illustration at random, section 1458 begins 
 thus: "The registration of medical practitioners, under 
 the Medical Act of 1858, may be proved by a copy of the 
 'Medical Register,' for the time being, purporting," &c. 
 I do not wish for a moment to undervalue the practical 
 utility of such information, or the industry displayed in 
 collecting it; but such a provision as this appears to me 
 to belong not to the Law of Evidence, but to the law relat- 
 ing to medical men. It is matter rather for an index or 
 schedule than for a legal treatise, intended to be studied, 
 understood, and borne in mind in practice. 
 
 On several other points the distinction between the Law 
 of Evidence and other branches of the law is more difficult 
 to trace. For instance, the law of estoppel, and the law 
 relating to the interpretation of written instruments, both 
 run into the Law of Evidence. I have tried to draw 
 the line by dealing in the case of estoppels with estoppels 
 in pais only, to the exclusion of estoppels by deed and by
 
 XVI INTRODUCTION. 
 
 matter of record, which must be pleaded as such ; and, in 
 regard to the law of written instruments, by stating those 
 rules only which seemed to me to bear directly on the 
 question whether a document can be supplemented or 
 explained by oral evidence. 
 
 The result is, no doubt, to make the statement of the law 
 much shorter than is usual. I hope, however, that com- 
 petent judges will find that, as far as it goes, the statement 
 is both full and correct. As to brevity, I may say, in the 
 words of Lord Mansfield : — " The law does not consist of 
 particular cases, but of general principles, which are illus- 
 trated and explained by those cases." 1 
 
 Ever}' one will express somewhat differently the princi- 
 ples which he draws from a number of illustrations, and 
 this is one source of that quality of our law which those 
 who dislike it describe as vagueness and uncertainty, and 
 those who like it as elasticity. I dislike the quality in 
 question, and I used to think that it would be an improve- 
 ment if the law were once for all enacted in a distinct form 
 by the Legislature, and were definitely altered from time 
 to time as occasion required. For many years I did my 
 utmost to get others to take the same view of the subject, 
 but I am now convinced by experience that the unwilling- 
 ness of the Legislature to undertake such an operation 
 proceeds from a want of confidence in its power to deal 
 with such subjects, which is neither unnatural nor un- 
 
 R. v. Bembridgc, 8 Doug. 332.
 
 INTRODUCTION. 3TV11 
 
 founded. It would be as impossible to get in Parlia- 
 ment a really satisfactory discussion of a Bill codifying the 
 Law of Evidence as to get a committee of the whole House 
 to paint a picture. It would, I am equally well satisfied, 
 be quite as difficult at present to get Parliament to dele- 
 gate its powers to persons capable of exercising them 
 properly. In the meanwhile the Courts can decide only 
 upon cases as they actually occur, and generations may 
 pass before a doubt is set at rest by a judicial decision 
 expressly in point. Hence, if anything considerable is to 
 be done towards the reduction of the law to a system, it 
 must, at present at least, be done by private writers. 
 
 Legislation proper is, under favorable conditions, the best 
 way of making the law, but if that is not to be had, indi- 
 rect legislation, the influence on the law of judges and legal 
 writers, who deduce from a mass of precedents such prin- 
 ciple* and rules as appear to them to be suggested by the 
 great bulk of the authorities, and to be in themselves 
 rational and convenient, is very much better than none at 
 all. It has, indeed, special advantages, which this is not 
 the place to insist upon. I do not think the law can be in 
 a less creditable condition than that of an enormous mass 
 of isolated decisions, and statutes assuming unstated prin- 
 ciples; cases and statutes alike being accessible only by 
 elaborate indexes. I insist upon this because I am well 
 aware of the prejudice which exists against all attempts to 
 state the law simply, and of the rooted belief which exists 
 in the minds of many lawyers that all general propositions
 
 XV111 INTRODUCTION. 
 
 of law must be misleading and delusive, and that law 
 books are useless except as indexes. An ancient maxim 
 sa} T s, " Oinnis definitio in jure periculosa." Lord Coke 
 wrote, " It is ever good to rely upon the books at large ; 
 for many times compendia sunt dispendia, and Melius est 
 petere fontes quam sectari rivulos." Mr. Smith chose 
 this expression as the motto of his 'Leading Cases,' and 
 the sentiment which it embodies has exercised immense 
 influence over our law. It has not, perhaps, been suffi- 
 ciently observed that when Coke wrote, the "books at 
 large," namely, the 'Year Books' and a very few more 
 modern reports, contained probably about as much matter 
 as two, or at most three, years of the reports published by 
 the Council of Law Keporting; and that the compendia 
 (such books, say, as Fitzherbert's 'Abridgment') were 
 merely abridgments of the cases in the ' Year Books,' 
 classified in the roughest possible manner, and much infe- 
 rior both in extent and arrangement to such a book as 
 Fisher's • Digest' * 
 
 In our own days it appears to me that the true fontes 
 are not to be found in reported cases, but in the rules and 
 principles which such cases imply, and that the cases 
 themselves are the rivuli, the following of which is a dis- 
 pendium. My attempt in this work has been emphatically 
 
 * Since the beginning of 1865 the Council has published 
 eighty-six volumes of Reports. The Year Books from 1307- 
 1535, 228 years, would fiil not more than twenty-five such vol- 
 umes. There are also ten volumes of Statutes since 1865
 
 INTRODUCTION. XIX 
 
 peiere fontes, to reduce an important branch of the law to 
 the form of a connected system of intelligible rules and 
 principles. 
 
 Should the undertaking be favorably received by the 
 profession an^ the public. I hope to apply the same 
 process to some other branches of the law ; for the more 
 I study and practise it, the more firmly am I convinced of 
 the excellence of its substance and the defects of its form. 
 Our earlier writers, from Coke to Blackstone, fell into the 
 error of assorting the excellence of its substance in a ful- 
 some and exaggerated strain, whilst they showed a total 
 insensibility to defects, both cf substance and form, which 
 in their trrae were grievous and glaring. Bentham seems 
 to me in many points to have fallen into the converse 
 error. Fe was too keen and bitter a critic to recognize 
 he substantial merits of the system which he attacked; 
 and it is obvious to me that he had not that mastery of the 
 law itself which is unattainable by mere theoretical study, 
 even if the student is, as Bentham certainly was, a man of 
 talent, approaching closely to genius. 
 
 During the last twenty-five years Bentham's influence 
 has to some extent declined, partly because some of his 
 book* are, like exploded shells, buried under the ruins 
 which, they have made, and partly because, under the influ- 
 ence of some of the ablest and most distinguished of living 
 authors, great attention has been directed to legal history, 
 &«d in particular to the study of Roman Law. It would 
 be difficult to exaggerate the value of these studies, but
 
 XX INTRODUCTION. 
 
 their nature and use is liable to be misunderstood. The 
 history of the Roman Law, no doubt, throws great light on 
 the history of our own law; and the comparison of the 
 two great bodies of law, under one or the other of which 
 the laws of the civilized world may be classified, cannot 
 fail to be in every way most instructive; but the history 
 of by-gone institutions is valuable mainly because it en- 
 ables us to understand, and so to improve existing institu- 
 tions. It would be a complete mistake to suppose either 
 that the Roman Law is in substance wiser than our own, 
 or that, in point of arrangement and method, the Institutes 
 and the Digest are anything but warnings. The pseudo- 
 philosophy of the Institutes, and the confusion of the 
 Digest, are, to my mind, infinitely more objectionable 
 than the absence of arrangement and of all general theo- 
 ries, good or bad, which distinguish the Law of England. 
 
 However this may be, I trust the present work will show 
 that the law of England, on the subject to which it refers, 
 is full of sagacity and practical experience, and is capable 
 of being thrown into a form at once plain, short and sys- 
 tematic. 
 
 I wish, in conclusion, to direct attention to the manner 
 in which I have dealt with such parts of the Statute Law 
 as are embodied in this work. I have given, not the very 
 words of the enactments referred to, but what I understand 
 to be their effect, though in doing so I have deviated as 
 little as possible from the actual words empWed. I have 
 done this in order to make it easier to study the subject as
 
 INTRODUCTION. XXI 
 
 a whole. Every Act of Parliament which relates to the 
 Law of Evidence assumes the existence of the unwritten 
 law. It cannot, therefore, be fully understood, nor can its 
 relation to other parts of the law be appreciated, till the 
 unwritten law has been written down, so that the provi- 
 sions of particular statutes may take their places as parts 
 of it. "When this is done, the Statute Law itself admits 
 of, and even requires, very great abridgment. In many 
 cases the result of a number of separate enactments may 
 be stated in a line or two. For instance, the old Common 
 Law, as to the incompetency of certain classes of witnesses, 
 was removed by parts of six different Acts of Parliament 
 — the net result of which is given in five short articles 
 (106-110). 
 
 So, too, the doctrine of incompetency for peculiar or 
 defective religious belief has been removed by many dif- 
 ferent enactments, the effect of which is shown in one 
 article (123). 
 
 The various enactments relating to documentary evi- 
 dence (see chap, x.) appear to me to become easy to fol- 
 low and to appreciate when they are put in their proper 
 places in a general scheme of the law, and arranged ac- 
 cording to their subject matter. By rejecting every part 
 of an Act of Parliament except the actual operative words 
 which constitute its addition to the law, and by setting it 
 (so to speak) in a definite statement of the unwritten law 
 of which it assumes the existence, it is possible to combine 
 brevity with substantial accuracy and fullness of statement
 
 XXli INTRODUCTION. 
 
 to an extent which would surprise those who are acquainted 
 with Acts of Parliament only as they stand in the Statute 
 Book.* At the same time I should warn any one who may 
 use this book for the purposes of actual practice in or out 
 of court, that he would do well to refer to the very words 
 of the statutes embodied in it. It is very possible that, in 
 Btating their effect instead of their actual words, 1 may 
 have given, in some particulars, a mistaken view of their 
 meaning. 
 
 Such are the means by which I have endeavored to make 
 a statement of the Law of Evidence which will enable not 
 only students of law, but, I hope, any intelligent person 
 who cares enough about the subject to study attentively 
 what I have written, to obtain from it a knowledge of that 
 subject at once comprehensive and exact — a knowledge 
 which would enable him to follow in an intelligent manner 
 the proceedings of Courts of Justice, and which would 
 enable him to study cases and use text-books of the com- 
 mon kind with readiness and ease. I do not say more than 
 this. I have not attempted to follow the matter out into 
 its minute ramifications, and I have avoided reference to 
 what, after all, are little more than matters of curiosity. 
 I think, however, that any one who makes himself thor- 
 oughly acquainted with the contents of this book, will 
 
 * Twenty articles of this work represent all ihat is material 
 in the ten Acts of Parliament, containing sixty-six sections, 
 which have been passed on the subject to which i* refers. For 
 the detailed proof of this, see Note XLIX.
 
 INTRODUCTION. XX111 
 
 know fully and accurately all the leading principles and 
 rules of evidence which occur in actual practice. 
 
 If I am entitled to generalize at all from my own expe- 
 rience, I think that even those who are already well 
 acquainted with the subject will find that they understand 
 the relations of its different parts, and therefore the parts 
 themselves more completely than they otherwise would, 
 by being enabled to take them in at one view, and to con- 
 sider them in their relation to each other. 
 
 J. F. S. 
 
 4, Paper Buildings, Temple, 
 May, 1876.
 
 TABLE OF CASES CITED, 
 
 PAGE 
 
 136 
 
 132 
 
 146 
 
 102, 103 
 
 82 
 
 Adams v. Lloyd 
 A. G. v. Bryant . 
 
 v. Hitchcock 
 
 Aldous v. Cornwell 
 Alivon v. Furnival 
 
 Allen v. Dundas ... 55 
 
 v. Prink 108 
 
 Allgoodv. Blake . . . 1S5 
 
 Allison's Case .... 67 
 
 Alner v. George . . . 166 
 
 Anderson v. Weston . . 100 
 Angel v. Duke . .107 
 
 Annesley v. Anglesea . 135 
 
 Appleton v. Braybrooke 1S1 
 
 Armoury v. Delamire . 118 
 Aveson v. L'd Kinnaird 6, 22 
 
 B. 
 
 Bacon v. Chesney ... 80 
 Bailey v. Bidwell . . 86 
 Bank of Hindustan, Alli- 
 son's Case 67 
 
 PAGB 
 
 Bank of Ireland v. Evans 190 
 
 Baron de Bode's Case . 65 
 
 Barrett v. Long .... 21 
 
 Barrs v. Jackson ... 57 
 
 Barton v. Dawes ... 107 
 
 Bateman v. Bailey ... 12 
 
 Bauerman v. Radenius . 166 
 
 Baylis r. A. G Ill 
 
 Beatson v. Skene . . . 132 
 
 Beeston's Case .... 49 
 Berkeley Peerage Case— 
 
 47, 172, 17S 
 
 Biddle v. Bond .... 127 
 
 Birtv. Barlow 69 
 
 Blackett v. Royal Ex- 
 change Ill 
 
 Boyse v. Rossborough . 14 
 
 Bradley v. James ... 41 
 
 Bain v. Precce .... 40 
 Brassington v. Brassing- 
 
 ton 136 
 
 Breton v. Cope .... 85 
 
 Bristow v. Sequeville . . 65
 
 XXVI 
 
 TAI3LE OF CASES CITED. 
 
 PAGE 
 
 Brittain v. Kinnaird . . 62 
 
 Broad v. Pitt 197 
 
 Brough v. Lord Scars- 
 dale 9 
 
 Brown v. Foster .... 135 
 
 Bruce v. Nicolopulo . . 82 
 
 Burgess v. Langley . 133 
 
 Butler v. Moore . . 195, 197 
 
 Caddy v. Barlow ... 55 
 Caermarthen R'y Co v. 
 
 Manchester R'y Co . 80 
 
 Call v. Dunning .... 85 
 
 Calvert v. Flower . . . 151 
 
 Calypso, The 61 
 
 Carrv. L. & N. W. R.R. 191 
 
 Carter v . Boehm ... 65 
 
 Cartwright v. Green . . 13S 
 Castrique v. Imrie — 
 
 58, 60, 63 65, 175 
 
 Catherwood v. Caslon . 69 
 
 Chambers v. Bernasconi 39 
 
 Charlton v. Coombes . 134 
 
 Charter v. Charter . . 1S4 
 
 Chasemore v. Richards.. 123 
 
 Chubb v. Salomons . . 132 
 
 Clay v. Langslow . . . 167 
 
 Clayton v. Lord Nugent. Ill 
 
 Clifford v. Burton ... 29 
 
 Closmadeuc v. Carrel . 100 
 
 Cole v. Sherard .... 75 
 
 Collins v. Bantuti . - . 86 
 
 PACK 
 
 Coole v. Braham ... 80 
 
 Cooper v. Tamswell . . 86 
 
 Cope v. Cope 121 
 
 Cory v. Bretton .... 82 
 Crease v. Barrett 44, 45 46 
 
 Cronk v. Frith .... 85 
 
 Crossley v. Dixon . , , 127 
 
 Curry v. Walter . . . 131 
 
 D. 
 
 Da Costa v. Jones . . . 154 
 
 Daniel v. Pitt 31 
 
 Dartmouth, Lady v. Rob- 
 erts 180 
 
 Davidson v. Cooper 102 103 
 Davies v. Lowndes 46, 4S, 173 
 
 v. Waters . 
 
 
 137 
 
 Di Sora v. Phillipps . . 
 
 65 
 
 Dixon v. Hammond . . 
 
 127 
 
 Doe v. Barton . 
 
 . . 
 
 126 
 
 v. Baytup . 
 
 
 126 
 
 v. Beaviss . 
 
 . . 
 
 43 
 
 v. Brydges . 
 
 . . 
 
 58 
 
 v. Catomore 
 
 . . 
 
 1^2 
 
 v. Coulthred 
 
 . . 
 
 117 
 
 v. D ite . . 
 
 . . 
 
 136 
 
 v. Derby 
 
 
 49 
 
 Doe d. Devine v. V 
 
 Zilson 
 
 122 
 
 Doe v. Edwards 
 
 
 75 
 
 Doe d. Hammonc 
 
 1 v. 
 
 
 Cooke .... 
 
 
 124 
 
 v. Hiscocks — 
 
 
 
 112 
 
 . 134 
 
 185
 
 TAELK OF CASES CITED. 
 
 XXV11 
 
 PAGE 
 
 Doe v. Hodgson . . . 151 
 
 v. Kemp .... 6 
 
 v. Needs . . . 113, 184 
 
 v. Pegg 126 
 
 v. Pulman ... 8 
 
 v. Ross 88 
 
 v. Sackermore . . 63 
 
 v. Smyth .... 126 
 
 v. Tatham — 
 
 49. 156, 163, 175 
 
 v. Turford .... 39 
 
 v. Vowles .... 43 
 
 v. Wilson .... 122 
 
 Doncaster, Mayor of, v. 
 
 Day 4S 
 
 Dover v. Child .... 56 
 Duchess of Kingston's 
 
 Case 58 61 63.136,174 175 
 Duke of Bedford v. 
 
 Lopes 8 
 
 Duke of Newcastle v. 
 
 Broxtowe 46 
 
 Dunn's Case 19 
 
 Du Barre v. Livette . . 196 
 Dwyer v. Collins 83, S4, 17? 
 
 E. 
 
 Elkin v. Janson .... 119 
 Entick v. Carrington , . 81 
 Evans v. Beattie ... 30 
 v. Rees 171 
 
 F. 
 
 Fairlie v. Hastings . . 16V 
 
 PAGE 
 
 Fenwick v. Thornton . 27 
 
 Feversham v. Emerson . 59 
 
 Few v. Guppy .... 137 
 
 Flitters v. Alltrey ... 56 
 
 Follett v. Jefferyes . . 134 
 
 Foote v. Hayne .... 134 
 
 Fouikes v. Chadd ... 67 
 
 Freeman v. Cooke. . 125 190 
 
 Fry v. Wood ..... 43 
 
 Garland v. Jacomb 
 Gerish v. Chartier 
 Geyer v. Aguilar 
 G.bson v. Hunter . 
 Gillies v. Smither . 
 Gleadow v. Atkin . 
 Godard v. Gray . . 
 Goodtitle v. Baldwin 
 Gorrissen v. Pernn 
 Gosling v. Birnie . 
 Goss v. Lord Nugent 
 Gray's Case . . . 
 Green v. New River ( 
 Greenough v Eccles 
 
 v. Gaskell . . 
 
 Guy v. West . . . 
 
 . 127 
 . 20 
 
 55. 53 
 . 21 
 . S5 
 40, 171 
 63, 175 
 . 122 
 . Ill 
 . 127 
 
 108,133 
 . 38 
 
 o 55. 60 
 . 201 
 . 195 
 . 117 
 
 H. 
 
 Halifax Guardians v. 
 
 wnght 
 
 Hall v. Bainbridge 
 Hall v. Hill . . . 
 
 Wheel- 
 . . 190 
 . . 101 
 . . 113 
 
 Hammond v. Bradstreet 45
 
 XiVlll 
 
 TABLE OF CASKS CITED. 
 
 PAGE 
 
 Hardman v. Wilcock . 127 
 Harratt v. Wise .... 22 
 Helyear v. Hawke . . 29 
 Hetherington v. Kemp . 24 
 Higham v. Ridgway — 
 
 42, 43, 170 
 Hiscocks v. Hiscocks . 185 
 Holcomb v. Hewson . . 18 
 Holt v. Squire .... 30 
 Hope v. Liddell ... 136 
 Hopewell v. De Pinna . 121 
 Houlston v. Smith . . . 100 
 
 How v. Hall 84 
 
 Howard v. Hudson . . 125 
 Hunter v. Atkins ... 117 
 
 v. Leathly . . 136.137 
 
 Hurst v. Leach .... 113 
 Hutchinson v. Bernard 50 
 
 Ireland, Bank of, v. Evans 190 
 
 Jaggersv. Binning . 
 Jarrett v. Leonard . 
 Jones v. Stevens . 
 
 v. Williams . 
 
 Johnson v. Kershaw 
 
 K. 
 
 Kemp v. King .... 136 
 Kempland v. Macaulay 81 
 
 PACE 
 
 Kingston, Duchess of, — 
 
 Case 53, 61,63, 136. 174, 175 
 Kirkstall Brewery Co. v. 
 
 Furness Railway Co. . 29 
 Knight v. Clements . . 102 
 Knights v. Wiffen . . . 125 
 Koster v. Reed .... 118 
 
 Lady Dartmouth v. Rob- 
 erts . . 180 
 
 Lady Ivy's Case .... 14 
 
 Langhorn v. Allnutt . . 29 
 
 Leconfield v. Lonsdale 123 
 
 Leev. Pain 112 
 
 Leeds v. Cook .... 84 
 
 Leggatt v. Tollervey . . 55 
 
 Legge v. Edmonds . . 121 
 
 Ley v. Barlow .... 147 
 
 Lindley v. Lacey . . . 107 
 
 Lothian v. Henderson . 58 
 
 Lucas v. De la Cour . . 2d 
 
 M. 
 
 v. Moor 72 
 
 Malcolmson v. O'Dea . 155 
 
 Mann v. Langton . . . 154 
 Marine Investment Co. 
 
 v. Haviside 100 
 
 Marston v. Downes . . 81 
 Mayor ol Doncaster v. 
 
 Day 48 
 
 McMahon v. McElroy . 121
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Meyer v. Sefton .... 82 
 
 Miles v. Oddy .... SI 
 
 Miller v. Travers . . . 112 
 
 Mills v. Berber .... 117. 
 
 Minet v. Morgan . . . 135 
 
 Morgan v. Griffiths . . 107 
 Moriarty v. L. C. & D. 
 
 Railway ... 11. 27, 166 
 
 Morris v. Davies ... 121 
 
 Morns v. Miller .... 69 
 
 Mortimer v. McCallan . 82 
 
 Muggleton v. Barnett . 9 
 Munn v. Godbold . . 80, 82 
 
 N. 
 
 N o e< J h3Tn v. Bremner 
 Neil v. Jakle . . . 
 Nepean v Doe . . 
 
 v. Knight . . 
 
 Newcastle Duke of, 
 
 Broxtowe . . . 
 N<-wron v. Chaplin 
 Noble v. Ward . . 
 Noden v. Murray . 
 
 Omichund v. Barker 
 
 56 
 
 10 
 
 121 
 
 121 
 
 46 
 
 S2 
 
 1S3 
 
 80 
 
 142 
 
 P. 
 
 Paddock v. Forester . . 82 
 Palmer v. Trower . . . 146 
 Papendick v. Bridgewater 44 
 Pearce v. Hooper ... 86 
 
 
 PAGE 
 
 Pearse v. Pearse . . 
 
 135 
 
 Pftch v. Lyon . . . 
 
 30 
 
 Petrie v. Nuttall . . . 
 
 61 
 
 Phelps v. Prew . . . 
 
 137 
 
 Phene's Trust, re . . 
 
 121 
 
 Philips v. Bury . . . 
 
 55 
 
 Pickard v. Sears . .12; 
 
 ) 190 
 
 Pickering v. Noyes . 
 
 136 
 
 Picton's Case .... 
 
 , 65 
 
 Pigott's Case .... 
 
 102 
 
 Pirn v Curell .... 
 
 46 
 
 Pipe v. Fulcher . . . 
 
 . 45 
 
 Piper v. Chappell . . 
 
 . 74 
 
 Plaxton v. D tre . . . 
 
 . 46 
 
 Plumer v. Bnsco . . 
 
 . S6 
 
 Plunket v. Cobbett . 
 
 . 132 
 
 Pocock v. Billing 
 
 . 27 
 
 Poole v. Warren . . 
 
 . 86 
 
 Preston's Case . . . 
 
 21 
 
 Price v. Torrington . 8 
 
 I 169 
 
 Pritt v. Fairclough . 
 
 . 39 
 
 Pym v. Campbell 
 
 . 108 
 
 Q. 
 
 
 Queen's Case, The . 15 
 
 5, 177 
 
 R. 
 
 
 R. v. 154 
 
 v. All Saints, Wor- 
 cester 138 
 
 v. Baker 169 
 
 v. Baldry .... 168 
 
 v. Barnard .... 18 
 
 v. Bathwick ... 188
 
 XXX 
 
 TABLE OF CASES CITED. 
 
 R. v 
 
 
 PAGE 
 
 . Bembridge . . 
 
 xvi 
 
 v. Blake .... 
 
 7 
 
 v. Bliss .... 
 
 . 45 
 
 v. B .swell . . . 
 
 . 33 
 
 v. Boyes .... 
 
 . 18S 
 
 v. Butler . . . 
 
 . 117 
 
 v. Canning . . 
 
 . 24 
 
 v. Castleton . . 
 
 . 82 
 
 v. Cheadle . . lb 
 
 t. 188 
 
 v. Chidley & Curr 
 
 i" 
 
 ngs 
 
 . 85 
 
 v. Clapli.im . . 
 
 . 40 
 
 v. Clarke . . . 
 
 14S 
 
 v. CI ewes . . . 1( 
 
 \ 34 
 
 v. Cliviger . . . 
 
 138 
 
 v. Cole .... 
 
 17 
 
 v. Davis .... 
 
 18 
 
 v. Donellan . . 
 
 14 
 
 v. Doolin . . . 
 
 143 
 
 v. Dove .... 
 
 66 
 
 v. Drummond . 
 
 149 
 
 v. Dunn ... If 
 
 , 19 
 
 v. Edmunds . . 
 
 10 
 
 v. Eriswell . . . . 
 
 48 
 
 v. Exeter . . . . 
 
 43 
 
 v. Forster . . . , 
 
 20 
 
 v. Foster . . . . 
 
 6 
 
 v. Foulkes . . . . 
 
 5 
 
 v. Francis . . . . 
 
 20 
 
 v. Francklin . . . 
 
 52 
 
 v. Garbett . . . . 
 
 35 
 
 v. Girner . . . . 
 
 23 
 
 v. Gazard . . . . 
 
 131 
 
 v. Geering . . . . 
 
 28 
 
 PAHR 
 
 R. v. G'lham 84 
 
 v. Gordon .... 102 
 
 v. Gould 85 
 
 v. Gray 23 
 
 v. Griffin .... 197 
 
 v. Harborne . . . 121 
 
 v. Hardy ... 7, 132 
 
 v. Harringworth 85, 179 
 
 v. Hartington, Mid- 
 dle Quarter 56 
 
 v. Haworth ... 81 
 
 v. Heyford .... 43 
 
 v. Hind 88 
 
 v. Hogg 4S 
 
 v. Holmes .... 149 
 
 v. Holt 20 
 
 v. Home Tooke . 68 
 
 v. Hull 10S 
 
 v. Hutchinson . . 38 
 
 v. Jarvis 119 
 
 v. Jenkins .... 38 
 
 v. Llanfaethly . . 84 
 
 v. Lloyd 34 
 
 v. Lord George Gor- 
 don 13 
 
 v. LordThanet . . 194 
 
 v. Luffe 121 
 
 v. Lumley .... 121 
 
 v. Mainwaring . . 69 
 
 v. Mansfield ... 121 
 
 v. Martin .... 149 
 
 v. Mead 88 
 
 v. Moore .... 84 
 
 v. Mosley .... 87
 
 TABLE OP CASES CITED. 
 
 XXXI 
 
 R. v. Oddy .... 
 
 v. Orton . . . 
 
 v. Palmer 11,22 
 
 v. Parbhudas 
 
 Others 
 
 v. Patch . . . 
 
 v. Payne . . 
 
 v. Pike . . . 
 
 v. Richardson . 
 
 v. Rowton . . 
 
 v. Russell . . 
 
 v. Scaife . . . 
 
 v. Scott . . . 
 
 v. Sparkes . . 
 
 v. Stephenson 
 
 v. Stone . 
 
 v. Sutton . . 
 
 v. Tait . . . 
 
 v. Thompson 
 
 v. Thornhill . 
 
 v. Turner . . 
 
 v. Twyning . 
 
 v. Walker . . 
 
 v. Warwickshall 
 
 v. Watson 
 
 v. Whitehead 
 
 v. Widdop . . 
 
 v. Woodcock 
 
 Radcliffe v. Fursman 
 Randall v. Lynch . 
 Rawson v. Haigh . 
 Rearden v. Minter 
 Reeve v. Wood . 
 Reffell v. Reffell . 
 
 PAGE 
 
 . 18 
 
 53, 145 
 
 66, 67 
 
 and 
 
 . 159 
 
 . 11 
 
 . 130 
 
 . 149 
 
 23, 132 
 
 71, 176 
 
 . 193 
 
 43, 49 
 35 
 
 195 
 49 
 
 119 
 52 
 50 
 
 130 
 76 
 61 
 
 116 
 12, 157 
 35 
 81 
 
 144 
 35 
 3S 
 
 135 
 85 
 12 
 86 
 
 130 
 
 105 
 
 SO, 
 
 Roberts v. Doxen . . . 
 Robinson v. Yarrow . . 
 Roe d. West v. Eavis . 
 Rogers v. Allen .... 
 Rowley v. L. & N. W. 
 
 R. R 
 
 Ryall v. Hannam . . . 
 
 S. 
 
 PAGB 
 
 82 
 
 127 
 
 79 
 
 65 
 113 
 
 Sanderson v. Colemar 
 
 i . 127 
 
 Sandilancis, re . . . 
 
 . 101 
 
 Sheen v. Bumpstead . 
 
 . 21 
 
 Sheridan v. New Quay . 127 
 
 Shields v. Boucher . 
 
 . 17a 
 
 Shore v. Wilson . . 
 
 . 112 
 
 Short v. Lee . . . 170, 171 
 
 Shrewsbury Peerage Case 47 
 
 Simmons v. Rudall . 
 
 . 10£ 
 
 Sinclair v. Baggally . 
 
 . 100 
 
 Skilbeck v. Garbett . 
 
 . 24 
 
 Slane Peerage Case . 
 
 . S9 
 
 Slattene v. Pooley . . 
 
 . 79 
 
 Smith v. Blakely . . 
 
 . " 39 
 
 v. Morgan . . . 
 
 . 27 
 
 v, Wh ppingham 
 
 . 80 
 
 v. Wilson . . . 
 
 . Ill 
 
 Spargo v. Brown . . 
 
 . 166 
 
 Springer v. Gardiner . 
 
 . 186 
 
 Stead v. Heaton . . 
 
 . 43 
 
 Stoate v. Stoate . . . 
 
 . 57 
 
 Stobart y. Dryden . 
 
 . 26 
 
 Stockfleth v. De Ta 
 
 stet 32 
 
 Stowe v. Querner . 
 
 . 7*
 
 xxxn 
 
 TABLE OF CASES CITED. 
 
 
 PAGK 
 
 
 PAG8 
 
 Stringer v. Gardiner . . 
 
 113 
 
 Weeks v. Sparke . .44, 
 
 172 
 
 Sugden v. St. Leonards 
 
 44 
 
 Weston v. Eames . . . 
 
 107 
 
 Sussex Peerage Case 44, 
 
 150 
 
 Wharam v. Routledge . 
 
 151 
 
 Swan v. N. B. Austra- 
 
 
 Whitaker v. Izod . . . 
 
 136 
 
 lasian Co 126, 
 
 190 
 
 v. Jackson .... 
 
 59 
 
 
 
 Whitcomb v. Whitting . 
 
 29 
 
 T. 
 
 
 Whittuck v. Walters . . 
 
 47 
 
 
 
 Whyman v. Garth . 85, 
 
 9 
 
 Talbot v. Hodson . . . 
 
 87 
 
 Wigglesworth v. Dallison 
 
 , 
 
 Taylor v. Foster . . . 
 
 184 
 
 106, 
 
 183 
 
 Thurtell v. Beaumont . 
 
 116 
 
 Williams v. Bridges . . 
 
 81 
 
 Trelawney v. Coleman . 
 
 22 
 
 v. East India Co . 
 
 116 
 
 Turquand v. Knight . . 
 
 184 
 
 v. Graves ... 
 
 43 
 
 
 
 Wilson y. Anderton . . 
 
 127 
 
 v. 
 
 
 v. Rastal .... 
 
 134 
 
 
 
 Wing v. Angrave . . . 
 
 122 
 
 Vaise v. Delaval . . . 
 
 133 
 
 Woodcock v. Houlds- 
 
 
 Volant v. Soyer .... 
 
 137 
 
 worth. 
 
 24 
 
 Vooght v. Wince . . . 
 
 69 
 
 Wright v. Doerf.Tatham, 
 
 
 
 
 12 
 
 , 64 
 
 W. 
 
 
 Y. 
 
 
 Wallis v. Littell .... 
 
 108 
 
 
 
 Warren v. Warren . . 
 
 24 
 
 Young v. Clare Hall . . 
 
 170 
 
 Webb v. Bird .... 
 
 123 
 
 Young v. Grote . . 126, 
 
 191
 
 TABLE OF STATUTES CITED, 
 
 PAGE 
 
 7 James I. c. 12 ... . 54 
 7 & 8 Will. III. c. 8, ss. 
 
 2, 4 139, 208 
 
 89 & 40 Geo. III. c. 
 
 93 HO, 203 
 
 41 Geo. III. c. 90, s. 9 . 93 
 46 Geo. III. c. 37 . 138, 203 
 7 Geo. IV. c. 64, s. 4 . . 51 
 
 7 & 8 Geo. IV. c. 28, s. 
 
 11 71, 203 
 
 9 Geo. IV. C.14.S. 1 . 23, 202 
 , s. 8 . . . . 41. 42 202 
 
 8 & 4 Will. IV. c. 42 . 42, 203 
 
 5 & 6 Will. IV. c. 50, s. 
 100 193 
 
 6 & 7 Will. IV. c. 111. 71, 202 
 1 & 2 Vict. c. 94, ss. 1, 
 
 12, 13 89, 91 
 
 c. 105 142 
 
 8 & 4 Vict. c. 26 . . . . 193 
 6 & 7 Vict. c. 85 . . 193. 208 
 8 & 9 Vict. c. 10, s. 6.139, 203 
 
 PAGE 
 
 8 & 9 Vict. c. 118 (pream- 
 ble) . 90, 208 
 
 , s. 1 208 
 
 , s. 2 75, 204 
 
 , s. 8 98, 204 
 
 , ss. 4, 5, 6, 7 . . . 204 
 
 c. 113 208 
 
 11 & 12 Vict. c. 42, s. 
 
 17 . . . 49, 50, 169 . 20S 
 
 13 & 14 Vict. c. 21, ss. 
 
 7, S 78 
 
 14 & 15 Vict. c. 99 . . 204 
 
 , s. 2 193, 204 
 
 , s. 4 205 208 
 
 ,s. 7 97. 205 
 
 , ss. 9,10,11,19 . 92. 205 
 
 , s. 14 .... 92, 205 
 
 , s. 16 . . . 142, 205 
 
 16 & 17 Vict. c. 88, ss. 
 
 1, 2 193, 208 
 
 , s. 8 131 
 
 17 & 18 Vict. c. 125 . 205, 207 
 
 b
 
 XXXIV 
 
 TABLE OF STATUTES CITKD. 
 
 PAGE 
 
 
 17 & 18 Vict. c. 125,5.2 148 
 
 28 
 
 , ss. 22-27 .... 209 
 
 
 , s 20 141 
 
 — 
 
 , ss 22 27 206 
 
 
 , s. 24 147 
 
 
 , s. 26 ..... 87, 180 
 
 80 
 
 , s. 27 69, 206 
 
 81 
 
 18 & 19 Vict, c 111, s. 
 
 82 
 
 3 128 
 
 
 19 & 20 Vict. c. 97, s. 
 
 
 
 
 24 & 25 Vict. c. 66 . 141, 2^6 
 
 88 
 
 c. 96, s. 116 . . 71, 203 
 
 
 c. 99, s. 87 . . 71. 208 
 
 34 
 
 28 & 29 Vict. c. 18, ss. 
 
 
 1, 7 87, 180, 202 
 
 85 
 
 , s. S 148 
 
 86 
 
 , ss. 8-8 . . . . 206, 209 
 
 
 , s. 4 207 
 
 87 
 
 , s. 5 147, 207 
 
 
 , s. 6 146, 207 
 
 
 PAGE 
 
 & 29 Vict. c. 18, s. 7, . 207 
 ,s. 8, . . .66, 69, 20 
 
 — , s. 18 65 
 
 c. 63, s. 6 .... 93 
 
 c. 104, s. 84 ... 130 
 
 »&81Vict.c.85,s. 6.51. 202 
 
 & 32 Vict. c. 87. 94,95, 207 
 
 & 33 Vict. c. 68 ... 207 
 
 — , s. 2 138 
 
 — , s. 8 181, 198 
 
 — , s. 4 141, 192 
 
 & 84 Vict. c. 49 . 141, 208 
 
 c. 79, s. 21. ... 94 
 
 & 85 Vict. c. 70, s. 5. 94 
 
 • c. 112, s. 19 . 18, 202 
 
 : 36 Vict. c. 6,s.4. 189,208 
 
 & 37 Vict. c. 66, s. 25. 78 
 
 s. 76, 75 
 
 & 88 Vict. c. 85 . . . 193 
 -, c. 96 198
 
 LIST OF ABBREVIATIONS, 
 
 A. & E. . 
 
 , . 
 
 Atk. . . , 
 
 - 
 
 B. & A. . , 
 
 a 
 
 B. & Ad. . . 
 
 . 
 
 13. & B. . . 
 
 . 
 
 B. & 0. . . 
 
 . 
 
 Beav. . • , 
 
 . 
 
 Bell, C. C. . 
 
 
 Best, . . , 
 
 • 
 
 B. & S. . 
 
 . 
 
 Bing. . . 
 
 ■ . 
 
 Bing. N. C. 
 
 > . 
 
 B. N. P. . 
 
 . . 
 
 Br. P. C. . 
 
 
 Buller, N. P. 
 
 
 Cam. . . 
 
 
 Car. & Kir. 
 
 . 
 
 C. B. . . . 
 
 
 C. B. (N. S.) 
 
 . 
 
 C. C. C. . 
 
 
 Cox, Cr. Ca. 
 
 
 Adolphus & Ellis's Reports. 
 Atkyn's Reports. 
 
 Barnewall & Alderson's Reports. 
 Barnewall & Adolphus's Reports. 
 Broderip & Bingham's Reports. 
 Barnewall & Cresswell's Reports. 
 Beavan's Reports. 
 Bell's Crown Cases. 
 Best on Evidence, 6th ed. 
 Best & Smith's Reports. 
 Bingham's Reports. 
 Bine-ham's New Cases. 
 Builer's Nisi Prius. 
 Brown's Parliamentary Cases. 
 Builer's Nisi Prius. 
 
 Campbell's Reports. 
 
 Carrington & Kirwan's Reports. 
 
 Common Bench Reports. 
 
 Common Bench Reports. New Series. 
 
 Cox's Crown Cases.
 
 LIST OF ABBREVIATIONS. 
 
 C. & F. . 
 C. M. & R. 
 C. & Marsh. 
 
 Cowp. . . 
 C. & P. . 
 C. & J. . 
 
 D.&B . 
 Dear., or . 
 Dearsle}' & P 
 De G. & J 
 De G. M. i 
 De G. & S. 
 Den. C. C. 
 Doug. . . 
 Dru. & War 
 
 G. . 
 
 . Clark & Finnelly's Reports. 
 
 . Crompton, Meeson, & Roscoe's Reports 
 
 . Carrington & Marshman's Reports. 
 
 . Cowper's Reports. 
 
 . Carrington & Paine's Reports. 
 
 . Crompton & Jervis's Reports. 
 
 . Dearsley & Bell's Crown Cases. 
 
 ' > Dearsley's Crown Cases. 
 
 . De Gex & Jones's Reports. 
 
 De Gex, Macnaughten & Gordon. 
 De Gex & Smale's Reports. 
 Denison's Crown Cases. 
 Douglas's Reports. 
 Drury & Warren's Reports. 
 
 Ea East's Reports. 
 
 East, P. C. . . East's Pleas of the Crown. 
 
 E. & B. ... Ellis & Blackburn's Reports. 
 
 Esp Espinasse's Reports. 
 
 Ex Exchequer Reports. 
 
 F. &F. 
 
 . Foster & Finalson's Reports. 
 
 Gen. View Cr. Law,Stephen's General View of the Criminal 
 
 Law. 
 
 Hale, P. 0. . . Hale's Pleas of the Crown. 
 
 Hare, .... Hare's Reports. 
 
 H. Bl H. Blackstone's Reports. 
 
 H. & C. . . . Hurlston & Coltman's Reports. 
 
 H. & N. ... Hurlston & Norman's Reports. 
 
 H. L. C. . . . House of Lords Cases.
 
 LIST OF ABBREVIATIONS. 
 
 It. Cir. Rep. 
 
 
 Ir. Rep. Eq. . 
 
 • 
 
 Jac. & Wal. . 
 
 . 
 
 4ebb, C. C. . 
 
 • 
 
 Keen, . . , 
 
 • 
 
 L. & C. . . 
 
 m 
 
 Leach, . . 
 
 
 L. J. Ch. . . 
 
 a 
 
 L. J. Eq. . . 
 
 . 
 
 L. J. M. C. . 
 
 , 
 
 L. J. N. S. . 
 
 , 
 
 L. R. Ch. Ap. 
 
 . 
 
 L. R. C. C. 
 
 . 
 
 L. R. C. P. . 
 
 . 
 
 L. R. Ex. . . 
 
 . 
 
 L. R. Q. B. . 
 
 
 Madd. . . . 
 
 
 Man. & R. 
 
 . 
 
 McNallv Ev. 
 
 
 Moo. C. C. , 
 
 
 M. & G. . , 
 
 . 
 
 M. &K. . 
 
 , . 
 
 M. & M. . 
 
 . 
 
 Moo. P. C. 
 
 
 Mo. & Ro. 
 
 . 
 
 M. & S. . 
 
 , 
 
 M. & W. . 
 
 - • 
 
 Pea. R. . 
 
 . 
 
 Phill. . . 
 
 
 Irish Circuit Reports. 
 Irish Equity Reports 
 
 Jacob & Walker's Reports. 
 Jebb's Criminal Cases (Ireland). 
 
 Keen's Reports, Chancery. 
 
 Leigh & Cave's Crown Cases. 
 
 Leach's Crown Cases. 
 
 Law Journal, Chancery. 
 
 Law Journal, Equity. 
 
 Law Journal, Magistrates' Cases. 
 
 Law Journal. New Series. 
 
 Law Reports, Chancery Appeals. 
 
 Law Reports, Crown Cases Reserved. 
 
 Law Reports, Common Pleas. 
 
 Law Reports, Exchequer. 
 
 Law Reports, Queen's Bench. 
 
 Maddock's Reports. 
 Manning & Ryland's Reports. 
 McNally's Rules of Evidence. 
 Moody's Crown Cases. 
 Manning & Granger's Reports. 
 Mylne & Keen's Reports. 
 Moody & Malkin's Reports. 
 Moore's Privy Council Reports. 
 Moody & Robinson's Reports. 
 Maule & Selwyn's Reports. 
 Meeson & "Welsby's Reports. 
 
 Peake's Reports. 
 Phillips's Reports.
 
 S. L. C, or 
 
 Smith, L. C 
 
 Ph. Ev. . . . Phillips on Evidence, 10th ed. 
 
 Price .... Price's Reports. 
 
 Q. B Queen's Bench Reports. 
 
 R. N. P. . . . Roscoe's Nisi Prius, 13th ed. 
 
 R. & R. ... Russell & Ryan's Crown Cases. 
 
 Russ. on Crimes. Russell on Crimes, 4th ed. 
 
 Selw. N. P. . . Selwyn's Nisi Prius. 
 
 Simon .... Simon's Reports. 
 
 Simon (N. S.) . Simon's Reports. New Series. 
 
 Sim. & Stu. . . Simon & Stuart's Reports. 
 
 [ > Smith's Leading Case 1 :, 7th ed. 
 
 Star Starkie's Reports. 
 
 Starkie .... Starkie on Evidence, 4th ed. 
 
 S. & T. . . . Swabey Tristam's Reports. 
 
 S. T., or St. Tri. State Trials. 
 
 Story's Eq. Jur. Story on Equity Jurisprudence. 
 
 Swab. Ad. . . Swabey's Admiralty Reports. 
 
 T. R Term Reports. 
 
 T. E Taylor on Evidence, 6th ed, 
 
 Tail. .... Taunton's Reports. 
 
 Ve Vesey's Reports. 
 
 „ T . „ „ ' > Wisrram on Extrinsic Evidence. 
 
 Wig. Ext. Ev. • J 8 
 
 Wills's Circ. Ev. Wills on Circumstantial Evidence.
 
 CONTENTS. 
 
 PAET I.— EELEYANCY. 
 
 Chapter I. — Preliminary. 
 Art. 1. Definition of Terms .... Page 1-3 
 
 Chapter LL — Op Facts in issue and Relevant to 
 
 THE ISSUE. 
 
 Art. 2. Pacts in issue and Facts relevant to the issue may 
 be proved — 3. Relevancy of facts forming part of the 
 same transaction as Facts in issue — i. Acts of Conspir- 
 ators — 5. Title — 6. Customs — 7. Motive, preparation, 
 subsequent conduct, explanatory statements — 8. Facts 
 necessary to explain or introduce relevant Facts — 9. 
 General definition of Relevancy .... 4-16 
 
 Chapter III. — Occurrences similar to but uncon- 
 nected with the Facts in issue, Irrelevant except 
 in certain cases. 
 
 Art. 10. Similar but unconnected Facts — 11. Acts show- 
 ing intention, good faith, &c. — 12. Facts showing sys- 
 tem — 13. Existence of course of business when rele- 
 vant 17-24
 
 CONTENTS. 
 
 Chapter IV. — Hearsay Irrelevant except in certain 
 Cases. 
 
 Art. 14. Hearsay irrelevant — 15. Admissions defined — 
 16. Who may make admissions, and when — 17. Admis- 
 sions by agents and persons jointly interested with par- 
 ties — 18. Admission by strangers to an action — 19. 
 Admission by person referred to by party — 20. Ad- 
 missions made without prejudice — 21. Confessions de- 
 fined — 22. Confession caused by inducement, threat, 
 or promise, when irrelevant in Criminal Proceeding 
 — 23. Confessions made upon oath, &c. — 24. Con- 
 fession made under a promise of secrecy — 25. State- 
 ments by deceased persons, when relevant — 26. Dying 
 declaration as to cause of death — 27. Declarations made 
 in the course of business or professional duty — 28. 
 Declarations against interest — 29. Declarations by tes- 
 tators as to contents of will — 30. Declarations as to 
 public and general rights — 31. Declarations as to pedi- 
 gree — 32. Evidence given in former proceeding, when 
 relevant — 33. Deposition* before magistrates — 34. Depo- 
 sitions under 30 & 31 Vict. c. 35, s. 6 — 35. Relevancy 
 of statement in certain acts or notifications — 36. Rele- 
 vancy of entry in public record made in performance of 
 duty — 37. Relevancy of statements in maps, charts, 
 and plans — 38. Entries in tradesmen's books — 39. Defi- 
 nition of word "judgment" — 40. All judgments 
 conclusive proof of their legal effect — 41. Judgments 
 conclusive as between parties and privies of Facts form- 
 ing ground of judgment — 42. Statements in judgments 
 irrelevant as between strangers, except in Admiralty 
 Cases — 43. Effect of judgment not pleaded as an estop- 
 pel — 44. Judgments generally irrelevant as between
 
 CONTENTS. ill 
 
 strangers — 45. Judgments conclusive in favor of Judge — 
 46. Fraud, collusion, or want of jurisdiction may be 
 proved — 47. Foreign judgments . . . 25-63 
 
 Chapter V. — Opinions, when Relevant and when not. 
 
 Art. 48. Opinion generally irrelevant — 49. Opinions of 
 experts on points of science or art — 50. Facts bearing 
 upon opinions of experts — 51. Opinion as to handwrit- 
 ing, when relevant — 52. Comparison of handwritings — 
 53. Opinion as to existence of marriage, when relevant 
 — 54. Grounds of opinion, when relevant . . 64-69 
 
 Chapter VI. — Character, when Relevant and 
 
 WHEN NOT. 
 
 Art. 55. Character generally irrelevant — 56. Evidence of 
 character in Criminal Cases — 57. Character as affecting 
 damages 70-72
 
 xlii CONTACTS. 
 
 PAET n.— ON PEOOF. 
 
 Chapter Vll. — Facts which need not be proved— 
 Judicial Notice. 
 
 Art. 68. Of what Facts the Court takes judicial notice — 
 69. As to proof of such Facts — 60. Facts admitted need 
 not be proved Pag© 73-76 
 
 Chapter Yin. — Of Oral Evidence. 
 
 Art. 61. Proof of Facts by oral evidence — 62. Oral 
 evidence must be direct 77, 78 
 
 Chapter IX. — Of Documentary Evidence — Primary 
 and Secondary, and Attested Documents. 
 
 Art. 63. Proof of contents of documents — 64. Pri- 
 mary evidence — 65. Secondary evidence — 66. Proof of 
 documents by primary evidence — 67. Cases in which 
 secondary evidence relating to documents may be given 
 — 68. Rules as to notice to produce — 69 Proof of exe- 
 cution of document required by law to be attested — 70. 
 Cases in which attesting witness need not be called — 71. 
 Proof when attesting witness denies the execution — 72. 
 Proof of document not required by law to be at- 
 tested 79-87 
 
 Chapter X. — Proof of Public Documents. 
 
 Art. 73. Proof of public documents — 74. Production 
 of document itself — 75. Examined copies — 76. Gen- 
 eral records of the realm — 77, 78. Exemplifications —
 
 CONTENTS. Xliii 
 
 79. Certified copies — 80. Documents admissible 
 throughout the Queen's dominions — 81. Queen's print- 
 ers' copies — 82. Proof of Irish Statutes — 83. Procla- 
 mations, Orders in Council, &c. — 84. Foreign and 
 Colonial Acts of State, judgments, &c. . . 88-98 
 
 Chapter XI. — Presumptions as to Documents. 
 
 Art. 85. Presumption as to date of document — 86. Pre- 
 sumption as to stamp of a document — 87. Presumption 
 as to sealing and delivery of deeds — 88. Presumption 
 as to documents thirty years old — 89. Presumption as 
 alterations 99-103 
 
 Chapter XII. — Of the Modification and Interpreta- 
 tion of Documentary Evidence by Oral Evidence. 
 
 Art. 90. Evidence of terms of contract, grants, and other 
 dispositions of property reduced to a documentary 
 form — 91. What evidence may be given for the inter- 
 pretation of documents — 92. Cases to which articles 
 90 and 91 do not apply 104-114
 
 Xliv CONTENTS. 
 
 PART III— PRODUCTION AND EFFECT 
 OF EVIDENCE. 
 
 Chapter XIIL — Burden or Proof. 
 
 Art. 93. He who affirms must prove — 94. Presumption 
 of innocence — 95. On whom the general burden of proof 
 lies — 96. Burden of proof as to particular Facts — 97. 
 Burden of proving Fact to be proved to make evidence 
 admissible . . . . . Page 115-119 
 
 Chapter XIV. — On Presumptions and Estoppels. 
 
 Art. 98. Presumption of legitimacy — 99. Presumption 
 of death from seven years' absence — 100. Presumption 
 of lost grant — 101. Presumption of regularity and of 
 deeds to complete title — 102. Estoppel by conduct — 
 103. Estoppel of tenant and licensee — 104. Estoppel 
 of acceptor of bill of exchange — 105. Estoppel of bailee, 
 agent, and licensee 120-128 
 
 Chapter XV. — Of the Competency of Witnesses. 
 
 Art. 106. Who may testify — 107. What witnesses are 
 incompetent — 108. Competency in Criminal Cases — 
 
 109. Competency in proceedings relating to adultery — 
 
 110. Communications during marriage — 111. Judges 
 and advocates privileged as to certain questions — 112. 
 Evidence as to affairs of State — 113. Information as to 
 commission of offences — 114. Competency of jurors — 
 115. Professional communications — 116. Confidential 
 communications with legal advisers — 117. Clergymen 
 and medical men — 118 Production of title-deeds of
 
 CONTENTS. xlv 
 
 witnesses not a party — 119. Production of documents 
 which another person, having possession,, could refuse to 
 produce — 120. Witness not to be compelled to criminate 
 himself — 121. Corroboration, when required — 122. Num- 
 ber of witnesses . - 129-140 
 
 Chapter XVI. — Of the Examination of Witnesses. 
 
 Art. 123. Evidence to be upon oath, except in certain 
 cases — 124. Form of oaths — 125. Who is to have power 
 to administer oaths — 126. Examination in chief, cross- 
 examination, and re-examination — 127. To what matters 
 cross-examination and re-examination must be directed 
 — 128. Leading questions — 129. Questions lawful in cross- 
 examination — 130. Exclusion of evidence to contradict 
 answers to questions testing veracity — 131. Statements 
 inconsistent with present testimony may be proved — 
 132. Cross-examination as to previous statements in 
 writing — 133. Impeaching credit of witnesses — 134. Of- 
 fences against women — 135. What matters may be proved 
 in reference to declarations relevant under articles 25-35 
 — 136. Refreshing memory — 137. Right of adverse party 
 as to writing used to refresh memory — 138. Giving, as 
 evidence, document called for and produced on notice — 
 139. Using, as evidence, a document, production of 
 which was refused on notice. . . Page 140-151 
 
 Chapter XYH. — Of Improper Admission and Rejec- 
 tion of Evidence 
 
 Art. 140 152 
 
 Appendix of Notes 163 
 
 Index, 211
 
 A DIGEST 
 
 OF THE 
 
 LAW OF EVIDENCE.
 
 A DIGEST 
 
 LAW OF EVIDENCE 
 
 PAET L— KELEVAXCY. 
 
 CHAPTER L 
 PRELIMINARY. 
 
 Article L* 
 
 DEFINITION OF TERMS. 
 
 In this book the following words and expressions are used 
 in the following senses unless a different intention appears 
 from the context. 
 
 "Court" includes all persons authorized by any law to 
 compel the attendance of witnesses for the purpose of de- 
 ciding any question of law or of fact, or of law and fact. 
 
 "Judge" includes all persons authorized to take evi- 
 dence, either by law or by the consent of the parties. 
 
 "Fact" means — 
 
 See Note I.
 
 2 a digest of [Part I. 
 
 (1) Everything capable of being perceived by the senses: 
 
 (2) Every mental condition of which any person is con- 
 scious. 
 
 Every part of any fact is itself a fact. 1 
 
 "Document" means any matter expressed or described 
 upon any substance by means of letters, figures, or marks, 
 or by more than one of those means, intended to be used, 
 or which may be used, for the purpose of recording that 
 matter. 2 
 
 "Evidence" means — 
 
 (1) All statements which the judge permits or requires 
 to be made by witnesses in court, in relation to matters of 
 fact under inquiry; 
 
 such statements are called oral evidence: 
 
 (2) All documents produced for the inspection of the 
 Court or judge; 
 
 such documents are called documentary evidence. 
 
 "Conclusive Proof" means evidence upon the produc- 
 tion of which, or a fact upon the proof of which, the judge 
 is bound by law to regard some fact as proved, and to ex- 
 clude evidence intended to disprove it. 3 
 
 "A Presumption" means a rule of law that Courts and 
 judges shall draw a particular inference from a particular 
 fact, or from particular evidence, unless and until the truth 
 of such inference is disproved. 8 
 
 "Action" means any judicial proceeding, whether civil 
 or criminal. 
 
 1 Illustration (a). 8 Illustration {b). 8 Illustration (c).
 
 Chap, L] thb law or bvldexcb. 8 
 
 Illustrations. 
 
 (a) That there are certain objects arranged in a certain order 
 in a certain place is a fact. 
 
 That a man heard or saw something is a fact. 
 
 That a man said certain words is a fact. 
 
 That a man holds a certain opinion, has a certain intention, 
 acts in good faith or fraudulently, or uses a particular word 
 in a particular sense, or is or was at a specified time conscious 
 of a particular sensation, is a fact. 
 
 {b A writing is a document. 
 
 Words printed, lithographed, or photographed, are documents. 
 
 A map or plan is a document. 
 
 An inscription on a metal plate or stone is a document. 
 
 A caricature is a document. 
 
 (c) The production of the record of a judgment of a Court of 
 Record is conclusive proof that that Court delivered that 
 judgment. 
 
 The fact that a married woman committed a theft in her hus- 
 band's presence raises a presumption that she acted under 
 his coercion.
 
 DIGEST OF [PART I. 
 
 CHAPTER H. 
 
 OF FACTS IN ISSUE AND RELEVANT TO THE 
 ISSUE. 
 
 Article 2.* 
 facts in issue and facts relevant to the issue 
 
 may be proved. 
 Evidence may be given in any action of the existence or 
 non-existence of any fact in issue, and of any fact relevant 
 to any fact in issue, and of no others. 
 
 The judge may exclude evidence of facts which, though 
 relevant to the issue, appear to him too remote to be ma- 
 terial under all the circumstances of the case. 
 
 The expression "facts in issue" means — 
 
 (1) All facts which, by the form of the pleadings in any 
 action, are affirmed on one side and denied on the other: 
 
 (2) In actions in which there are no pleading, or in 
 which the form of the pleadings is such that distinct issues 
 are not joined between the parties, all facts from the estab- 
 lishment of which the existence, non-existence, nature, or 
 extent of am T right, liability, or disability asserted or denied 
 in any such case would by law follow. 
 
 • See Note II.
 
 Chap. II. ] the law of evidence. 5 
 
 The relevancy of facts to facts in issue, depends on the 
 principles and rules stated in chapters ii., iii., iv., v., 
 
 and vL 
 
 Illustration. 
 
 (a) A is indicted for the murder of B, and pleads not guilty. 
 
 The following facts may be in issue : — The fact that A killed B ; 
 the fact that at the time when A killed B he was prevented 
 by disease from knowing right from wrong; the fact that A 
 had received from B such provocation as would reduce his 
 offence to manslaughter. 
 
 The following facts would be relevant to the issue : — The f; ct 
 that he had a motive for murdering B; the fact that A admit- 
 ted that he had murdered B ; the fact that A was, after B's 
 death, in possession of property taken from B's person. 
 
 Article 3. 
 relevancy of facts forming part of the same 
 
 transaction as facts in issue. 
 Facts which, though not in issue, are so connected with 
 a fact in issue as to form part of the same transaction or 
 subject-matter, are relevant to the fact with which they 
 are so connected. 
 
 Illustrations. 
 (a) The question is, whether A murdered B by shooting him. 
 The fact that a witness in the room with B, just before he was 
 shot, saw a man with a gun in his hand pass a window 
 opening into the room in which B was shot, and thereupon 
 exclaimed, " That's the butcher 1" (a name by which A was 
 known) is relevant. 1 
 
 1 R v. Foulkes, per Campbell, C. J., Leicester Spriw As- 
 sizes, 1856. Ex relatione O'Brien, Serjt.
 
 6 a digest or [Part L 
 
 (&) The question is, whether A committed manslaughter on B 
 by carelessly driving over him. 
 
 A statement made by B as to the cause of the accident, as soon 
 as he was picked up, is a relevant fact, though it may not be 
 admissible as a dying declaration. 1 
 
 (c) The question is, whether A, the owner of one side of a river, 
 owns the entire bed of it, or only half the bed, at a particular 
 spot. The fact that he owns the entire bed a little lower 
 down the river is relevant. 2 
 
 {d) The question is, whether a slip of land by the roadside be- 
 longs to the lord of the manor or to the owner of the adjacent 
 land. The fact that the lord of the manor owned other parts 
 of the slip of land by the side of the same road is relevant. 8 
 
 Article 4.* 
 acts of conspirators. 
 "When two or more persons conspire together to commit 
 any offence or actionable wrong, everything said, done, or 
 written by any one of them in the execution or furtherance 
 of their common purpose, is deemed to be so said, done, 
 or written by every one, and is a relevant fact as against 
 each of them ; but relations of measures taken in the execu- 
 tion or furtherance of any such common purpose are not 
 relevant as such as against any conspirators, except those 
 
 *See Note III. 
 
 » R. v. Foster, 6 C. & P. 325. The Judges (Park, J , Gur- 
 ney, B., and Patteson. J.) who decided this case referred to 
 Aveson v. Lord Klnnaird, 6 Ea. 193. See article 11, Illustra- 
 tion (w). 
 
 2 Jones v. Williams, 2 M. & W. 826. 
 
 8 Doe v. Kemp, 7 Bing. 332 ; 2 Bing. N. C. 102.
 
 Chap. II.] the law of evidence. 7 
 
 who make them, or are present when they are made. 
 
 Evidence of acts relevant under this article may not be 
 
 given until the judge is satisfied that, apart from them, 
 
 there are prima facie grounds for believing in the existence 
 
 of the conspiracy. 
 
 Illustrations. 
 
 (a) The question is, whether A and B conspired together to 
 cause certain imported goods to be passed through the cus 
 torn-house on payment of too small an amount of duty. 
 
 The fact that A made in a book a false entry, necessary to be 
 made in that book in order to carry out the fraud, is a rele- 
 vant fact as against B. 
 
 The fact that A made an entry on the counterfoil of his cheque- 
 book showing that he had shared the proceeds of the fraud 
 with B, is not a relevant fact as against B. 1 
 
 (3) The question is, whether A committed high treason by im- 
 agining the king's death ; the overt act charged is that he 
 presided over an organized political agitation calculated to 
 produce a rebellion, and directed by a central committee 
 through local committees. 
 
 The facts that meetings were held, speeches delivered, and 
 papers circulated in different parts of the country, in a man- 
 ner likely to produce rebellion by, and by the direction of 
 persons shown to have acted in concert with A, are relevant 
 facts as against A, though he was not present at those trans- 
 actions and took no part in them personally. 
 
 An account given by one of the conspirators in a letter to a 
 friend, of his own proceedings in the matter, not intended to 
 further the common object, and not brought to A's notice, is 
 not relevant as against A. a 
 
 1 R. v Blake, 6 Q. B. 137-40. 
 
 * R. v. Hardy, 24 S. T. passim, but see particularly 451-S.
 
 8 a digest or [Fart i. 
 
 Article 5.* 
 
 TITLE. 
 
 When the existence of any right of property, or of anj 
 right over property is in question, every fact which con- 
 stitutes the title of the person claiming the right, or which 
 shows that he, or any person through whom he claims, was 
 in possession of the property, and every fact which consti- 
 tutes an exercise of the right, or which shows that its 
 exercise was disputed, or which is inconsistent with its 
 existence or renders its existence improbable, is relevant 
 
 Illustrations. 
 
 (d) The question is, whether A has a right of fishery in a river. 
 
 An ancient inquisitio post mortem finding the existence of a 
 right of fishery in A's ancestors, licences to fish granted bj 
 his ancestors, and the fact that the licensees fished undr 
 them, are relevant. 1 
 
 \V) The question is. whether A owns land. 
 
 The fact that A's ancestors granted leases of it is relevant. 2 
 
 ( ) The question is, whether there is a public right of way over 
 A's land. 
 
 The facts that persons were in the habit of using the way, that 
 they were turned back, that the road was stopped up, that 
 the road was repaired at the public expense, and A's title- 
 deeds showing that for a length of time, reaching beyond the 
 
 * See Note IV. 
 
 1 Rogers v. Allen, 1 Camp. 309. 
 
 ' Doe v. Pulman, 3 Q. B. 622, 623, 626 (citing Duke of Bed. 
 ford v. Lopes). The document produced to show the lease 
 was a counterpart signed by the lessee. See post, art. 64
 
 Chap. IL] the law of evidence. 9 
 
 time when the road was said to have been used, no one had 
 power to dedicate it to 4 .he public, are all relevant. 1 
 
 Article 6. 
 
 When the existence of any custom is in question, every 
 fact is relevant which shows how, in particular instances, 
 the custom was understood and acted upon by the parties 
 then interested. 
 
 Illustrations, 
 (a) The question is, whether, by the custom of borough- 
 English as prevailing in the manor of C, A is heir to B. 
 The fact that other persons, being tenants of the manor, in- 
 herited from ancestors standing in the same or similar rela- 
 tions to them as that in which A stood to B, is relevant. 8 
 
 Article 7.* 
 
 motive, preparation. subsequent conduct, 
 
 explanatory statements. 
 
 "When any act done by any person is a fact in issue, or is 
 
 relevant to the issue, the following facts are relevant, that 
 
 is to say — 
 
 any fact which supplies a motive for such an act, or 
 which constitutes preparation for it ; s 
 
 * See Note V. 
 1 Common practice. As to the title-deeds, Brough v. Lord 
 Scarsdale, Derby Summer Assizes, 1S65. 
 1 Muggleton v. Burnett, 1 K. & N. 2S2. 
 3 Illustrations (a) and (i).
 
 10 X. digest of [Part L 
 
 any suosequent conduct of such person which appears to 
 have been influenced by any such act, and any act done in 
 consequence of any such act by or by the authority of that 
 person ; l 
 
 all statements made by or to that person accompanying 
 and explaining any such act.* 
 
 The conduct of a person against whom an offence has 
 been committed, and in particular the fact that he made a 
 complaint soon after the offence to persons to whom he 
 would naturally complain, are relevant; but the terms of 
 the complaint itself seem not to be relevant. 3 
 
 When a person's conduct is in issue or is relevant to the 
 issue, statements made in his presence and hearing by 
 which his conduct is likely to have been affected, are re- 
 levant facts. 4 
 
 Illustrations. 
 
 (a) The question is, whether A murdered B. 
 
 The facts that, at the instigation of A, B murdered C twenty- 
 five years before B's murder, and that A at or before that 
 time used expressions showing malice against C. are relevant 
 as showing a motive on A's part to murder B. 6 
 
 {6) The question is, whether A committed a crime. 
 
 » Illustrations (c) (d) and (*) 
 
 * Illustrations (/) and {g). Other statements made by such 
 persons are relevant or not according to the rules as to state- 
 ments hereinafter contained. See ch. iv. post. 
 
 3 Illustration (A). 
 
 * /?. v. Edmunds, 6 C. & P. 164 ; Neil v. Jakle, 2 C & K. 709. 
 » R. v. Clewes. 4 C & P. 221.
 
 Chap. II.] the law of evidence. 11 
 
 The fact that A procured the instruments with which the crime 
 was committed is relevant. 1 
 
 (c) A is accused of a crime. 
 
 The facts that, either before, or at the time of, or after the al- 
 leged crime, A caused circumstances to exist tending to give 
 to the facts of the case an appearance favorable to himself, 
 or that he destroyed or concealed things or papers, or pre- 
 vented the presence or procured the absence of persons who 
 might have been witnesses, or suborned persons to give false 
 evidence, are relevant. 2 
 
 (d) The question is, whether A committed a crime. 
 
 The facts that, after the commission of the alleged crime, he 
 absconded, or was in possession of property or the proceeds 
 of property acquired by the crime, or attempted to conceal 
 things which were or might have been used in committing it, 
 and the manner in which he conducted himself when state- 
 ments on the subject were made in his presence and hearing, 
 are relevant. 8 
 
 {e) The question is, whether A suffered damage in a railway 
 accident. 
 
 The fact that A conspired with B, C and D to suborn false wit- 
 nesses in support of his case is relevant 4 as conduct subse- 
 quent to a fact in issue tending to show that it had not hap- 
 pened. 
 
 (/) The question is, whether A committed an act of bank- 
 ruptcy, by departing the realm with intent to defraud his 
 creditors. 
 
 1 P. v. Palmer {passim). 
 
 » P. v. Patch, Wilis Circ. Ev. 230; P. v. Palmer, ub. sup. 
 (passim). 
 
 * Common Practice. 
 
 * Moriarty v. London, Chatham and Dover Co., L. R. 5 Q. 
 B. 314.
 
 12 A DIGEST OF [FART L 
 
 Letters written during his absence from the realm, indicating 
 such an intention, are relevant facts l 
 
 (g) The question is, whether A was sane. The fact that he 
 acted upon a letter received by him is relevant, as conduct 
 forming part of the issue. The contents of the letter so acted 
 upon are relevant, as statements accompanying and explain- 
 ing such conduct. 3 
 
 (A) The question is, whether A was ravished. 
 
 The fact that, shortly after the alleged rape, she made a com- 
 plaint relating to the crime, and the circumstances under 
 which it was made, are relevant, but not (it seems) the terms 
 of the complaint itself.* 
 
 The fact that, without making a complaint, she said that she 
 had been ravished, is not relevant as conduct under this arti- 
 cle, though it may be relevant {e.g.) as a dying declaration 
 under article 26. 
 
 Article 8. 
 facts necessary to explain or introduce relevant 
 
 FACTS. 
 
 Facts necessary to be known to explain or introduce a 
 fact in issue or relevant fact, or which support or rebut an 
 inference suggested by a fact in issue or relevant fact, or 
 which establish the identity of any thing or person whose 
 identity is in issue or relevant to the issue, or which fix the 
 time or place at which any fact in issue or relevant fact 
 
 1 Rawson v. Haigh, 2 Bing. 99 ; Bateman v. Bailey, 5 T. 
 R. 512. 
 
 2 Wright v. Doe d. Tatham, 1 A. & E., 324-5 (per Den- 
 man, C. J.). 
 
 » R. v. Walker, 2M.4R. 212. See Note V. .
 
 CHAJ II.] THE LAW OF EVIDENCE. 13 
 
 happi aed, or which show that any document produced is 
 genuine or otherwise, or which show the relation of the 
 parties by whom any such fact was transacted, or which 
 afforded an opportunity for its occurrence or transaction, 
 or which are necessary to be known in order to show the 
 relevancy of other facts, are relevant in so far as they are 
 necessary for those purposes respectively. 
 
 Illustrations. 
 
 (a) The question is, whether a writing published by A of B is 
 libellous or not. 
 
 The position and relations of the parties at the time when the 
 libel was published may be relevant facts as introductory to 
 the facts in i«sue. 
 
 The particulars of a dispute between A and B about a matter 
 unconnected with the alleged libel are not relevant under 
 this ar'icle. though the fact that there was a dispute may be 
 relevant if it affected the relations between A and B. 1 
 
 (1) The question is, whether A wrote an anonymous letter, 
 threatening B, and requiring B to meet the writer at a cer- 
 tain time and place to satisfy his demands. 
 
 The fact that A met B at that time and place is relevant, as 
 conduct subsequent to and affected by a fact in issue. 
 
 The fact that A had a' reason, unconnected with the letter, for 
 being at that time at that place, is relevant, as rebutting the 
 inference suggested by his presence. 2 
 
 (r) A is tried for a riot, and is proved to have marched at the 
 head of a mob. The cries of the mob are relevant, as ex- 
 planatory of the nature of the transaction. 8 
 
 1 Common practice. 
 
 2 R. v. Barnard, 19 St. Tri. S15. etc. 
 
 9 R. v. Lord George Gordon, 21 St. Tri. 520.
 
 14 a digest of [Part L 
 
 (d) The question is, whether a deed was forged. It purports 
 to be made in the reign of Philip and Mary, and enumerates 
 King Philip's titles. 
 
 The fact that at the alleged date of the deed, Acts of State and 
 other records were drawn with a different set of titles, is rel- 
 evant. 1 
 
 (e) The question is, whether A poisoned B. Habits of B 
 known to A, which would afford A an opportunity to admin- 
 ister the poison, are relevant facts. 8 
 
 {/) The question is, whether A made a will under undue in- 
 fluence. His way of life and relations with the persons said 
 to have influenced him unduly, are relevant facts.* 
 
 Article 9.* 
 general definition of relevancy. 
 
 Facts, whether in issue or not, are relevant to each other 
 when one is, or probably may be, or probably may have 
 been — 
 
 the cause of the other; 
 
 the effect of the other; 
 
 an effect of the same cause; 
 
 a cause of the same effect: 
 or when the one shows that the other must or cannot have 
 occurred, or probably does or did exist, or not; 
 
 or that any fact does or did exist, or not, which in the 
 
 * See Note VI 
 1 Lady ivy's Case, 10 St. Tri. 615 
 
 * R. v. Donellan. Wills Circ. Ev. 192; and see my 'Gen- 
 eral View of the Criminal Law,' p. 838. etc. 
 
 • Boyse v. Rossborough, 6 H. L. C. 42-5*5
 
 Chap, n.] the law of evidence. 16 
 
 common course of events would either have caused or 
 have been caused by the other; 
 
 provided that such facts do not fall within the exclusive 
 rules contained in chapters iii., iv., v., vi.; or that they do 
 fall within the exceptions to those rules contained in those 
 chapters. 
 
 Illustrations. 
 
 (a) A's death is caused by his taking poison. The administra- 
 tion of the poison is relevant to A's death as its cause. A's 
 death is relevant to the poisoning as its effect. 
 
 (b) A and B each eat from the same dish and each exhibit 
 symptoms of the same poison. A's symptoms and B's 
 symptoms are relevant to each other as effects of the same 
 cause. 
 
 (c) The question is, whether A died of the effects of a railway 
 accident. 
 
 Facts tending to show that his death was caused by inflamma 
 tion of the membranes of the brain, which probably might 
 be caused by the accident ; and facts tending to show that his 
 death was caused by typhoid fever, which would have noth- 
 ing to do with the accident, are relevant to each other as 
 possible causes of the same effect — A's death. 
 
 (d) A is charged with committing a crime in London on a 
 given day. The fact that on that day he was at Calcutta is 
 relevant, as proving that he could not have committed 
 the crime. 
 
 (e) The question is whether A committed a crime. 
 
 The circumstances are such that it must have been committed 
 either by A, B, or C. Every fact which shows this, and every 
 fact which shows that neither B nor C committed it, or that 
 either of them did or might have committed it, is relevant. 
 
 (/) B, a person in possession of a large sum of money, i& 
 murdered and robbed. The question is, whether A mur-
 
 16 A DIGEST OF [PART I. 
 
 dered him. The fact that after the murder A was or was 
 not possessed of a sum of money unaccounted for is relevant, 
 as showing the existence or the absence of a fact which in 
 the common course of events would be caused by A's com- 
 mitting the murder. A's knowledge that B was in possession 
 of the money would be relevant as a fact which, in the ordi- 
 nary course of events, might cause or be one of the causes 
 of the murder. 
 (g) A is murdered in his own house at night. The absence of 
 marks of violence to the house is relevant to the question 
 whether the murder was committed by a servant, because 
 it shows the absence of an effect which would have been 
 caused by its being committed by a stranger.
 
 CHAP. III. J THE LAW OF EVIDENCE. 
 
 CHAPTER ILL 
 
 OCCURRENCES SIMILAR TO BUT UNCON- 
 NECTED WITH THE FACTS IN ISSUE, IRREL- 
 EVANT EXCEPT IN CERTAIN CASES. 
 
 Article 10.* 
 similar but unconnected facts. 
 The occurrence of a fact similar to, but not specifically 
 connected in any of the ways hereinbefore mentioned with, 
 the facts in issue is not to be regarded as relevant to the 
 existence of such facts except in the cases specially 
 excepted in this chapter. 
 
 Illustrations. 
 
 (a) The question is, whether A committed a crime. 
 
 The fact that he formerly committed another crime of the 
 
 same sort, and had a tendency to commit such crimes, is 
 
 irrelevant. 1 
 (3) The question is, whether A, a brewer, sold good beer to 
 
 B, a publican. The fact that A sold good beer to C, D and E, 
 
 ♦See Note VII. 
 1 R. v. Cole, 1 Phi. Ev. 508 (said to have been decided 
 by all the Judges in Mich. Term, 1810). 
 
 B
 
 18 A DIGEST OF [PART I. 
 
 other publicans, is irrelevant 1 (unless it is shown that the 
 beer sold to all is of the same brewing). 2 
 
 Article 11.* 
 acts showing intention, good faith, &q. 
 
 When the intention, knowledge, good faith, malice, or 
 any other state of mind of any person, or when any bod- 
 ily feeling or state of the body of any person is a fact in 
 issue or relevant to the issue, all things done or said by any 
 such person which express or show the existence of any 
 such state of mind or body, in reference to the particular 
 matter in question, are relevant, though they may not have 
 been done or said on the occasion when the facts in issue 
 happened. 
 
 Statements made to any such person, which would cause 
 or prevent the existence of any such state of mind, are 
 relevant facts. 
 
 3 Where proceedings are taken against any person for 
 having received goods, knowing them to be stolen, or for 
 having in his possession stolen property, the fact that there 
 was found in the possession of such person other propeity 
 
 *See Note VII. 
 
 1 Holcombe v. Hewson, 2 Camp 391. 
 
 * See Illustrations to article 3. 
 
 8 34 A 35 Vict. c. 112. s 19 (language slighCy modified). 
 This enactment overrules R. v. Oidy, 2 Den. C. C 264, and 
 practically supersedes R. v. Dunn, 1 Moo. C. C. 150, and R. 
 v. Davis, 6 C. & P. 177. See illustrations.
 
 Chap. EX] the law of evidence. 19 
 
 stolen within the preceding period of twelve months, is 
 relevant to the question whether he knew the property to 
 be stolen which forms the subject of the proceeding taken 
 against him. 
 
 If, in the case of such proceedings as aforesaid, evidence 
 has been given that the stolen property has been found in 
 the possession of the person proceeded against, the fact 
 that such person has, within five years immediately prece- 
 ding, been convicted of any offence involving fraud or 
 dishonesty, is relevant for the purpose of proving that the 
 person accused knew the property which was proved to be 
 in his possession o have been stolen, and may be proved 
 at any stage of the proceedings : provided that not less 
 than seven days' notice in writing has been given to the 
 person accused that proof is intended to be given of such 
 previous conviction. 
 
 Illustrations . 
 
 (a) A is charged with receiving two pieces of silk from B, 
 knowing them to have been stolen from C. 
 
 The facts that A received from B many other articles stolen by 
 him from C in the course of several months, and that A 
 pledged all of them, are relevant to the fact that A knew 
 that the two pieces of silk were stolen by B from C. 1 
 
 (5) A is charged with uttering, on the 12th December 1854, a 
 counterfeit crown piece, knowing it to be counterfeit. 
 
 The facts that A uttered another counterfeit crown piece on 
 the 11th December 1S54, and a counterfeit shilling on the 
 
 1 Dunn's case, 1 Moo. C. C 146.
 
 20 A DIGEST OF [PART I. 
 
 4th Unuary, 1855. are relevant to show A's knowledge that 
 the crown piece uttered on the 12th was counterfeit. x 
 
 (c) A is charged with attempting to obtain money by false 
 pretenses, by trying to pledge to B a worthless ring as a dia- 
 mond ring. 
 
 The facts that two days before, A tried, on two separate occa- 
 sions, to obtain money from C and D respectively, by a 
 similar assertion as to the same or a similar ring, and that 
 on another occasion on the same day he obtained a sum of 
 money from E by pledging, as a gold chain, a chain which 
 was only gilt, are relevant, as showing his knowledge of the 
 quality of the ring.* 
 
 (d) A is charged with obtaining money from B by falsely 
 pretending that Z had authorized him to do so. 
 
 The fact that on a different occasion A obtained money from 
 C by a similar false pretense, is irrelevant, 3 as A's knowledge 
 that he had no authority from Z on the second occasion had 
 no connection with his knowledge that he had no authority 
 from Z on the first occasion. 
 
 (e) A sues B for damage done by a dog of B's, which B knew 
 to be ferocious. 
 
 The facts that the dog had previously bitten X, Y, and Z, and 
 that they had made complaints to B, are relevant. 4 
 
 (/) The question is, whether A, the acceptor of a bill of 
 exchange, knew that the name of the payee was fictitious. 
 
 The fact that A had accepted other bills drawn in the same 
 manner before they could have been transmitted to him by 
 the payee, if the payee had been a real person, is relevant, as 
 
 1 R. v. Forster, Dear. 456. 
 
 1 R. v. Francis, L. R. 2 C. C. R. 128 
 
 3 R. v. Holt, Bell C. C. 280 ; and see R. v. Francis, ub. sup. 
 p. 130. 
 
 4 See cases collected in Roscoe's Nisi Prius, 789.
 
 Chap. ID.J the law of evidence. 21 
 
 showing that A knew that the payee was a fictitious person. 1 
 
 tg) A sues B for a malicious libel. Defamatory statements 
 made by R regarding A for ten years before those in respect 
 of which the action is brought, are relevant to show malice. 2 
 n) A is sued by B for fraudulently representing to B that C 
 was solvent, whereby B, being induced to trust C, who was 
 insolvent, suffered loss. 
 
 The fact that, at the time when A represented C to be solvent, 
 C was to A's knowledge supposed to be solvent by his neigh- 
 bors and by persons dealing with him, is relevant, as show- 
 ing that A made the representation in good faith. 3 
 
 (i) A is sued by B for the price of work done by B, by the 
 order of C, a contractor, upon a house, of which A is owner. 
 A's defence is that B's contract was with C. 
 
 The fact that A paid C for the work in question is relevant, as 
 proving that A did, in good faith, make over to C the man- 
 agement of the work in question, so that C was in a position to 
 contract with B on C's own account, and not as agent for A. 4 
 
 (/) A is accused of stealing property which he had found, and 
 the question is, whether he meant to steal it when he took 
 possession of it. 
 The fact that public notice of the loss of the property had been 
 given in the place where A was, and in such a manner that A 
 knew or probably might have known of it, is relevant, as 
 showing that A did not, when he took possession of it, in 
 good faith believe that the real owner of the property could 
 not be found. 5 
 
 1 Gibson v. Hunter. 2 H. Bl. 288. 
 
 * Barrett v. Long, 3 Ho. Lo Ca. 395 414. 
 
 s Sheen v. Bumpstead. 2 H. & C. 193. 
 
 4 Gerish v. Chartier, 1 C. B. 13. 
 
 5 This illustration is adapted from Preston's Case, 2 Den. C. 
 C. 358 ; but the misdirection given in that case is set right. As 
 to the relevancy of the fact, see in particular Lord Campbell's 
 remark on p. 859.
 
 22 A DIGEST OF [PART L 
 
 (£) The question is, whether A is entitled to damages from B, 
 
 the seducer of A's wife. 
 The fact that A's wife wrote affectionate letters to A before the 
 
 adultery was committed, is relevant, as showing the terms on 
 
 which they lived and the damage which A sustained. 1 
 (/) The question is, whether A's death was caused by poison. 
 Statements made by A before his illness as to his state of health, 
 
 and during his illness as to his symptoms, are relevant facts.' 
 (m) The question is, what was the state of A's health at the 
 
 time when an insurance on her life was effected by B. 
 Statements made by A as to the state of her health at or neai 
 
 the time in question are relevant facts. 8 
 (n) The question is, whether A, the captain of a ship, knew 
 
 tha'. a port was blockaded. 
 The fact that the blockade was notif.ed in the Gazette is rele 
 
 vant. 4 
 
 Article 12.* 
 
 facts showing system. 
 
 "W"hen there is a question whether an act was accidental 
 
 or intentional, the fact that such act f.rmed part of a 
 
 series of similar occurrences, in each of which the person 
 
 doing the act was concerned, is relevant. 
 
 Illustrations, 
 (a) A is accused of setting fire to his house in order to obtain 
 money for which it is insured. 
 
 * See Note VII. 
 1 Trelawney v. Coleman, 1 B. & A 90. 
 
 * R. v. Palmer. See my 'Gen. View of Crim. Law,' p. 863, 
 877 (evidence of Dr. Savage and Mr. Stephens). 
 
 5 Aveson v. Lord Kinnaird, 6 Ea. 188. 
 
 * Harratt v. Wise, 9 B & C. 712.
 
 Chap. UI.J the law of evidence. 23 
 
 The facts that A had previously lived in two other houses suc- 
 cessively, each of which he insured, in each of which a fire 
 occurred, and that after each of those fires A received pay- 
 ment from a different insurance office, are relevant, as tend- 
 ing to show that the fires were not accidental. 1 
 
 {b) A is employed to pay the wages of B's laborers, and it is 
 A's duty to make entries in a book showing the amounts 
 paid by him. He makes an entry showing that, on a particu- 
 lar occasion, he paid more than he really did pay. 
 
 The question is, whether this false entry was accidental or in- 
 tentional. 
 
 The fact that for a period of two years A made other similar 
 false entries in the same book, the false entry being in each 
 case in favor of A, is relevant. 5 
 
 (c) The question is, whether the administration of poison to A, 
 by Z, his wife, in September, 1848, was accidental or inten- 
 tional. 
 
 The facts that B, C, and D (A's three sons), had the same 
 poison administered to them in December, 1548, March, 
 1849, and April, 1849, and that the meals of all four were 
 prepared by Z, are relevant, though Z was indicted sepa- 
 rately for murdering A, B, and C, and attempting to murder 
 D.« 
 
 Article IS.* 
 
 EXISTENCE OF COURSE OF BUSINESS WHEN RELEVANT. 
 
 "When there is a question whether a particular act was 
 done, the existence of any course of office or business, ac- 
 cording to which it naturally would have been done, is a 
 relevant fact. 
 
 * See Note VIII. 
 1 R. v. Gray, 4 F. & F. 1102. 
 * R. v. Richardson, 2 F. & F. 348. 
 
 » R. v. G>cring t 13 L. J. VI. C. 215 ; cf. R. v. Gamer, 8 F. 
 : F. 681.
 
 24 A DIOttST OF [PaKT L 
 
 "When there is a question whether a particular person 
 held a particular public office, the fact that he acted in that 
 office is relevant. 1 
 
 Illustrations, 
 (a) The question is, whether a letter was sent on a given day. 
 The post-mark upon it is a relevant fact. 8 
 
 (6) The question is, whether a particular letter was despatched. 
 The facts that all letters put in a certain place were, in the 
 
 common course of business, carried to the post, and that 
 
 that particular letter was put in that place, are relevant.* 
 (c) The question is, whether a particular letter reached A. 
 The facts that it was posted in due course properly addressed, 
 
 and was not returned through the Dead Letter Office, are 
 
 relevant. 4 
 
 1 1 Ph. Ev. 449; R. N. P. 46; T. E. s. 139. 
 
 2 R. v. Canning, 19 S. T. 370. 
 
 * Heiherington v. Kemp, 4 Camp. 193 ; and see Skilbeck v. 
 Garbett, 7 Q. B. 846. 
 
 4 Warren v. Warren, 1 C. M. & R. 250 ; Woodcock v. 
 Houldsworth, 16 M. & W. 124. Many cases on this subject 
 are collected in Roscoe's Nisi Prius, pp. 374-5.
 
 Chap. IV.] the law of evidence. 26- 
 
 CHAPTER IV. 
 
 HEARSAY IRRELEVANT EXCEPT IN CERTAIN 
 
 CASES. 
 
 Articlk 14.* 
 
 hearsay irrelevant. 
 
 The fact that a statement was made by a person not 
 
 called as a witness, is not regarded as relevant to the truth 
 
 of the matter asserted thereby, under any of the preceding 
 
 articles, unless such statement is — 
 
 (a) An admission or confession (see articles 15-24) ; or 
 
 (b) A statement by a deceased declarant (see articles 
 25-31); or 
 
 (c) Evidence given on a former occasion (see articles 
 32-34); or 
 
 (d) A statement made under special circumstances (see 
 articles 35-38) ; or 
 
 (e) The judgment of a Court of Justice (see articles 
 39-47). 
 
 In these cases such statements are relevant or not, 
 according to the provisions hereinafter contained. 
 
 * See Note IX.
 
 26 ▲ digest or [Part L 
 
 Illustration. 
 A declaration by a deceased attesting witness to a deed that he 
 
 had forged it, is irrelevant to the question of its validity. 1 
 
 Article 15. 
 admissions defined.* 
 An admission is a statement, oral or written, suggesting 
 any inference as to any fact in issue or relevant fact, un- 
 favorable to the conclusion contended for by the person by 
 whom or on whose behalf the statement is made. Every 
 admission is (subject to the rules hereinafter stated) a rel- 
 evant fact as against the person to whom it is unfavorable. 
 
 Article 16.f 
 
 WHO MAY MAKE ADMISSIONS, AND WHEN. 
 
 Admissions may be made — 
 
 By any party to an action, whether substantial or nomi- 
 nal; 
 
 By any person who, though not a party to the action or 
 proceeding has a substantial interest in the event; oris 
 privy in law, in blood, or in estate to any party thereto. 
 
 A statement made by a party to an action may be an ad- 
 mission whenever it is made, unless it is made by a per- 
 son, suing, or sued in a representative character only, in 
 which case [it seems] it must be made whilst the person 
 making it sustains that character. 
 
 * See Note X. j 3~ Note XI. 
 
 I Siobart v. Dry den, 1 M. h. W. 615
 
 Chap. IV.] the law or evidence. 27 
 
 A statement made by a person interested in an action, 
 or by a privy to any ,party thereto, is not an admission un- 
 less it is made during the continuance of the interest which 
 entitles him to make it. 
 
 Illustrations. 
 
 (a) The assignee of a bond sues the obligor in the name of the 
 obligee. 
 
 An admission on the part of the obligee that the money due 
 has been paid is relevant on behalf of the defendant. 1 
 
 (b) An admission by the assignee of the bond in the last illus- 
 tration would also be relevant on behalf of the defendant. 
 
 (c) A statement made by a person before he becomes the as- 
 signee of a bankrupt is not relevant as an admission by him 
 in a proceeding by him as such assignee. 2 
 
 (a?) Statements made by a person as to a bill of which he had 
 been the holder, are not relevant as against the holder, if 
 they are made after he has negotiated the bill. 3 
 
 Article 17.* 
 admissions by agents and persons jointly interested 
 with parties. 
 Admissions may be made by agents authorized to make 
 them either expressly or by the conduct of their princi- 
 pals; but a statement made by an agent is not an admis- 
 sion merely because if made by the principal himself it 
 would have been one. 
 
 *See Note XII. 
 
 1 See Moriarty v. L. C. 6* D. Co.. L. R. 5 Q. B 320. 
 
 * Fenwicks. Thornton, M. & M. 51 (by Lord Tenderden). 
 In Smith v. Morgan, 2 M. & R. 257. Tindai, C. J., decided ex- 
 actly the reverse. 
 
 1 Pococi v. Billing. 2 Bing. 289.
 
 28 a digest of [Part I. 
 
 Partners and joint contractors are each other's agents for 
 the purpose of making admissions against each other ir. 
 relation to partnership transactions or joint contracts. 
 
 Barristers and solicitors are the agents of their clients 
 for the purpose of making admissions whilst engaged in 
 the actual management of the cause, either in court or in 
 correspondence relating thereto ; but statements made by 
 a barrister or solicitor on other occasions are not admis- 
 sions merely because they would be admissions if made by 
 the client himself. 
 
 The fact, that two persons have a common interest in the 
 same subject matter, does not entitle them to make admis- 
 sions respecting it as against each other. 
 
 In cases in which actions founded on a simple contract 
 have been barred by the statutes of limitations, no joint 
 contractor or his personal representative loses the benefit 
 of such statute, by reason only of any written acknowledg- 
 ment or promise made or sigrted by [or by the agent duly 
 authorized to make such acknowledgment or promise of] 
 any other or others of them [or by reason only of payment 
 of any principal, interest, or other money, by any other or 
 others of them]. 1 
 
 A principal, as such, is not the agent of his surety for 
 the purpose of making admissions as to the matters for 
 which the surety gives security. 
 
 1 9 Geo. IV. c. 14, s. 1. The words in the first set of brack- 
 ets were added by 19 & 20 Vict. c. 97 s. 18. The words in the 
 second set by s. 14 of the same act. The language is 
 slightly altered
 
 Chap. IV.J the law of evidence. 29 
 
 Illustrations, 
 
 {a) The question is, whether a parcel, for the loss of which a 
 Railway Company is sued, was stolen by one of their ser- 
 vants. Statements made by the station-master to a police- 
 officer, suggesting that the parcel had been stolen by a porter, 
 are relevant, as against the railway, as admissions by an 
 agent. 1 
 
 (b) A allows his wife to carry on the business of his shop in 
 his absence. A statement by her that he owes money for 
 goods supplied to the shop is relevant against him as an ad- 
 mission by an agent. 2 
 
 (c) A sends his servant B to sell a horse. What B says at the 
 time of the sale, and as part of the contract of sale, is a rele- 
 vant fact as against A, but what B says upon the subject at 
 some different time is not relevant as against A s (though 
 it might have been relevant if said by A himself). 
 
 (d) The question is, whether a ship remained at a port for an 
 unreasonable time. Letters from the plaintiffs agent to the 
 plaintiff containing statements which would have been ad- 
 missions if made by the plaintiff himself, are irrelevant as 
 against him. 4 
 
 (<?) A, B, and C sue D as partners upon an alleged contract 
 respecting the shipment of bark. An admission by A that 
 the bark was his exclusive property and not the property of 
 the firm is relevant as against B and C. 5 
 /) A, B, C, and D make a joint and several promissory note. 
 Euher can make admissions about it as against the rest. 6 
 
 1 Kirkstall Brewery v. Fumess Ry., L. R. 9 Q. B. 468. 
 
 * Clifford v. Burton, 1 Bing. 199. 
 3 Helyear v. Hawke, 5 Esp. 72. 
 
 * Langhom v. Allnutt, 4 Tau. 511. 
 
 * Lucas v. De La Cour, 1 M. & S. 249. 
 
 * Whitcomb v. Whitting, 1 S. L. C. 644.
 
 30 A DIGEST OF [PART I. 
 
 (g) The question is, whether A accepted a bill of exchange. 
 A notice to produce the bill signed by A's solicitor and de- 
 scribing the bill as having been accepted by A is a relevant 
 fact. 1 
 
 (h) The question is, whether a debt to A, the plaintiff, was due 
 from B, the defendant, or from C. A statement made by A's 
 solicitor to B's solicitor in common conversation that the 
 debt was due from C, is not relevant against A. 2 
 
 (i) One co-part-owner of a snip can not, as such, make admis- 
 sions against another as to the part of the ship in which they 
 have a common interest, even if he is co-partner with that 
 other as to other parts of the ship. 3 
 
 (j ) A is surety for B, a clerK. B being dismissed make? state- 
 ments as to sums of money which he has received ai d not 
 accounted for. These statements are not relevant as against 
 A, as admissions.* 
 
 Article 18.* 
 admissions by strangers to an action. 
 Statements by strangers to an action are not relevant as 
 against the parties except in the cases mentioned in this 
 article and in article 19. 5 
 
 In actions against sheriffs for not executing process 
 against debtors, statements of the debtor admitting his 
 
 ♦See Note XIII. 
 
 1 Holt v. Squire, Ry. & Mo. 2S2. 
 
 2 Fetch v. Lyon, 9 Q. B. 147. 
 
 3 y a gg ers v - Binning. 1 Star. 64. 
 
 * Smith v. Whippingham. 6 C. & P. 78. See also Evans v. 
 Beattie , 5 Esp. 26 ; Bacon v. Chesney, 1 Star. 192 ; Cacrmar- 
 then R. C. v. Manchester R C, L. R. 8 C. P. 685. 
 
 6 Coole v. Braham. 8 Ex. 183
 
 Chap. IV.] the law of evidence. 31 
 
 debt to be due to the execution creditor are relevant as 
 against the sheriff. 1 
 
 In actions by the trustees of bankrupts, an admission by 
 the bankrupt of the petitioning creditor's debt if relevant 
 as against the defendant. 2 
 
 Article 19.* 
 admission" by person referred to by party. 
 When a party to any action or proceeding expressly 
 refers to any other person for information in reference to 
 a matter in dispute, the statements of that other person 
 may be admissions as against the person who refers to 
 him. 
 
 Illustration. 
 The question is, whether A delivered goods to B. B says " if 
 C" (the carman) " will say that he delivered the goods, I 
 will pay for them." C's answer may, as against B, be an 
 admission. 8 
 
 Article 20. f 
 
 ADMISSIONS MADE WITHOUT PREJUDICE. 
 
 No admission is relevant in any civil action if it is made 
 either upon an express condition that evidence of it is not 
 
 * See Note XIV. f See Note XV. 
 
 1 Kemplandv. Macaulay, Peake, 95 ; Williams v. Bridges, 
 2 Star. 42. 
 
 ■ Jarrett v. Leonard, 2 M. & S. 265 (adapted to the new 
 law of bankruptcy). 
 
 * Daniels. Pitt, 1 Camp. 866. n.
 
 82 a digest of [Part I. 
 
 to be given, 1 or under circumstances from which the judge 
 infers that the parties agreed together that evidence of it 
 should not be given, 2 or if it was made under duress. 3 
 
 Article 21. 
 confessions defined. 
 A confession is an admission made at any time by a 
 person charged with a crime, and suggesting the inference 
 that he committed that crime. Confessions, if voluntary, 
 are relevant facts as against the persons who make them 
 only. 
 
 Article 22.* 
 confession caused by inducement, threat, or pro- 
 MISE, WHEN IRRELEVANT IN CRIMINAL PROCEEDING. 
 
 No confession is deemed to be voluntary if it appears to 
 the judge to have been caused by any inducement, threat, 
 or promise, proceeding from a person in authority, and 
 having reference to the charge against the accused person, 
 whether addressed to him directly or brought to his 
 knowledge indirectly ; 
 
 and if (in the opinion of the judge) such inducement, 
 threat, or promise, gave the accused person reasonable 
 grounds for supposing that by making a confession he 
 
 •See note XVI. 
 1 Cory v. Bretton, 4 C & P. 462. 
 1 Paddock v. Forester, 5 M . & G. 918. 
 8 Siock/leth v. De Tastet, per Ellenborough, C. J.. 4 Cam. 11.
 
 Chap. IV.] the law of evidence. 33 
 
 would gain some advantage or avoid some evil in reference 
 to the proceedings against him. 
 
 But a confession is not involuntary, only because it ap- 
 pears io have been caused by the exhortations of a person 
 in authority to make it as a matter of religious duty, or 
 by an inducement collateral to the proceeding, or by in- 
 ducements held out by a person not in authority. 
 
 The prosecutor, officers of justice having the prisoner in 
 custody, magistrates, and other persons in similar posi- 
 tions, are persons in authority. The master of the prisoner 
 is not as such a person in authority if the crime of which 
 the person making the confession is accused was not com- 
 mitted against him. 
 
 A confession is deemed to be voluntary if (in the opin- 
 ion of the judge) it is shown to have been made after the 
 complete removal of the impression produced by any in- 
 ducement, threat, or promise which would otherwise 
 render it involuntary. 
 
 Facts discovered in consequence of confessions improp- 
 erly obtained, and so much of such confessions as dis- 
 tinctly relate to such facts, may be proved. 
 
 Illustrations. 
 
 (a) The question is, whether A murdered B. 
 
 A handbill issued by the Secretary of State, promising a reward 
 an 1 pardon to any accomplice who would confess, is brought 
 to the knowledge of A, who, under the influence of the hope 
 of pardon, makes a confession. This confession is not vol- 
 
 1 R. v. Boswell, C. & Marsh. 534.
 
 84 A DIGEST OF [PAET L 
 
 (3) A being charged with the murder of B, the chaplain of the 
 gaol reads the Commination Service to A, and exhorts him 
 upon religious grounds to confess his sins. A, in conse- 
 quence, makes a confession. This confession is voluntary. 1 
 
 (c) The gaoler promises to allow A, who is accused of a crime, 
 to see his wife, if he will tell where the property is. A does 
 so. This is a voluntary confession 2 
 
 (d) A is accused of child murder. Her mistress holds out an 
 inducement to her to confess, and she makes a confession. 
 This is a voluntary confession, because the mistress is not a 
 person in authority. 5 
 
 (<?) A is accused of the murder of B. C, a magistrate, tries to 
 to induce A to confess by promising to try to get him a par- 
 don if he does so. The Secretary of State informs C that 
 no pardon can be granted, and this is communicated to A. 
 After that A makes a statement. This is a voluntary con- 
 fession * 
 
 (/) A, accused of burglary, makes a confession to a police- 
 man under an inducement which renders it involuntary. 
 
 1 R. v. Gilham, 1 Moo. C. C. 186. In this case the exhorta- 
 tion was that the accused man should confess " to God," but 
 it seems from parts of the case that he was urged also to 
 confess to man " to repair any injury done to the laws of his 
 country." As is always the case in Moody's reports, no 
 reasons are given for the judgment. The principle seems to 
 be that a man is not likely to tell a falsehood in such cases, 
 from religious motives. The case is sometimes cited as 
 an authority for the proposition that a clergymap may be 
 compelled to reveal confessions made to him professionally. 
 It has nothing to do with the subject. 
 
 • R. v. Lloyd, 6 C. & P. 393. 
 
 • R. v. Moore, 2 Den. C. C. 522. 
 
 • R. v. Clewes, 4 C. & P. 221.
 
 Chap. IV.] the law of evidence. 35 
 
 Part of it is that he (A) had thrown a lantern into a certain 
 pond. The fact that he said so, and that the lantern was 
 found in the pond in consequence, may be proved. 1 
 
 Article 23* 
 confessions made "upon oath, &c. 
 
 Evidence amounting to a confession may be used as 
 such against the person who gives it, although it was given 
 upon oath, and although the proceeding in which it was 
 given had reference to the same subject matter as the 
 proceeding in which it is to be proved, and although the 
 witness might have refused to answer the questions put to 
 him; but if, after refusing to answer any such question, 
 the witness is improperly compelled to answer it, his an- 
 swer is not a voluntary confession. 2 
 Illustrations. 
 (a) The answers given by a bankrupt in his examination may 
 
 be used against him in a prosecution for offences against the 
 
 law of bankruptcy. 3 
 (J>) A is charged with maliciously wounding B. 
 Before the magistrates A appeared as a witness for C, who was 
 
 charged with the same offence. A's deposition may be used 
 
 against him on his own trial.* 
 
 * See Note XVII. 
 
 1 R. v. Gould, 9 C. & P. 364. This is not consistent, so far 
 as the proof of the words goes, with R. v. Warwickshall, 1 
 Leach, 263. 
 
 7 R. v. Garbett, 1 Den. 236. 
 
 5 R. v. Scott, 1 D. & B. 47; R. v. WidJop, L. R. 2 C C. 5. 
 
 * R. v. Chidley fr Cummins. 8 C. C. C. 365.
 
 digest oy [Part L 
 
 Article 24. 
 confession made under a promise of secrecy. 
 If a confession is otherwise relevant, it does not become 
 irrelevant merely because it was made under a promise of 
 secrecy, or in consequence of a deception practised on the 
 accused person for the purpose of obtaining it, or when he 
 was drunk, or because it was made in answer to questions 
 which he need not have answered, whatever may have 
 been the form of those questions, or because he was not 
 warned that he was not bound to make such confession, 
 and that evidence of it might be given against him. 1 
 
 Article 25. 
 statements by deceased persons when relevant. 
 
 Statements, written or verbal, of facts in issue or relevant 
 to the issue are relevant, if the person who made the state- 
 ment is dead, in the cases, and on the conditions, specified 
 in articles 26-31, both inclusive. In each of those articles 
 the word "declaration" means such a statement as is 
 herein mentioned, and the word "declarant" means a dead 
 person by whom such a statement was made in his life- 
 time. 
 
 1 Cases collected and referred to in 1 Ph. Ev. 420, and T. E. 
 s. 804. See, too, Joy, sections iii., iv., v.
 
 Chap. IV.J the law of evidence. 37 
 
 Article 26.* 
 dying declaration as to cause of death. 
 
 A declaration made by the declarant as to the cause of 
 his death, or as to any of the circumstances of the trans- 
 action which resulted in his death, is relevant 
 
 only in trials for the murder or manslaughter of the 
 declarant ; 
 
 and only when the declarant is shown, to the satisfaction 
 of the judge, to have been in actual danger of death, and 
 to have given up all hope of recovery at the time when his 
 declaration was made. 
 
 Such a declaration is not irrelevant merely because it 
 was intended to be made as a deposition before a magis- 
 trate, but is irregular. 
 
 Illustrations. 
 
 (a) The question is, whether A has murdered B, 
 
 B makes a statement to the effect that A murdered him. 
 
 B at the time of making the statement has no hope of recovery, 
 though his doctor had such hopes, and B lives ten days after 
 making the statement. The statement is relevant. 1 
 
 B, at the time of making the statement (which is written down) 
 says something, which is taken down thus — "I make the 
 above statement with the fear of death before me, and with no 
 hope of recovery." B, on the statement being read over, 
 
 *See Note XVIII. 
 1 A\ v. Mosley, 1 Moo. 97.
 
 88 A DIGEST OF [PART I. 
 
 corrects this to " with no hope at present of my recovery." 
 B died thirteen hours afterwards. The statement is irrele- 
 vant. 1 
 
 (b) The question is, whether A administered drugs to a woman 
 with intent to procure abortion. The woman makes a 
 statement which would have been admissible had A been on 
 his trial for murder. The statement is irrelevant. 2 
 
 (c) The question is, whether A murdered B. A dying declar- 
 ation by C that he (C) murdered B is irrelevant. 8 
 
 (d) The question is whether A murdered B. 
 
 B makes a statement before a magistrate on oath, and makes 
 her mark to it, and the magistrate signs it, but not in the 
 presence of A, so that her statement was not a deposition 
 within the statute then in force. B, at the time when the 
 statement was made, was in a dying state, and had no hope 
 of recovery. The statement is relevant.* 
 
 Article 27.* 
 declarations made in the course of business or 
 
 professional duty. 
 A declaration is relevant when it was made by the de- 
 clarant in the ordinary course of business, or in the dis- 
 
 * See Note XIX. 
 1 R. v. Jenkins, L. R. 1 C. C. R. 137. 
 
 3 R. v. Hind, Bell, 253, following R. v. Hutchinson, 2 B. & C. 
 608, n. quoted in a note to R. v. Mead. 
 
 8 Grays Case, Ir. Cir. Rep. 76. 
 
 4 R. v. Woodcock, 1 East, P. C. 356. In this case, Eyre, C. 
 B., is said to have left to the jury the question, whether the 
 deceased was not in fact under the apprehension of death ? 1 
 Leach, 504. The case was decided in 1789. It is now settled 
 that the question is for the judge.
 
 Chap. IV.] the law of evidence. 39 
 
 charge of professional duty, at or near the time when the 
 matter stated occurred, 1 and of his own knowledge. 
 
 Such declarations are irrelevant except so far as they 
 relate to the matter which the declarant stated in the ordi- 
 nary course of his business or duty. 
 
 Illustrations. 
 
 (a) The question is, whether A delivered certain beer to B. 
 
 The fact that a deceased drayman of A's, on the evening of 
 the delivery, made an entry to that effect, in a book kept for 
 the purpose, in the ordinary course of business, is relevant.* 
 
 {b) The question is, what were the contents of a letter not 
 produced after notice. 
 
 A copy entered immediately after the letter was written, in a 
 book kept for that purpose, by a deceased clerk, is a rele- 
 vant fact. 8 
 
 (c) The question is, whether A was arrested at Paddington, or 
 in South Molton Street. 
 
 A certificate annexed to the writ by a deceased sheriff's officer, 
 and returned by him to the sheriff, is relevant so far as it re- 
 lates to the fact of the arrest ; but irrelevant so far as it 
 relates to the place where the arrest took place.* 
 
 (rf) The course of business was for A, a workman in a coal- 
 pit, to tell B, the foreman, what coals were sold, and for B 
 (who could not write) to get C to make entries in a book 
 accordingly. 
 
 » Doe v. Turford, 3 B. & Ad. 893. 
 
 * Price v. Torrington, 1 S. L C. 328, 7th ed. 
 
 * Pritt v. Fairclough, 3 Camp. 305. 
 
 * Chambers v. Bernasconi, 1 C. M. & R. 847 ; see, too, 
 Smith v. Blakey, L. R. 2 Q. B. 326.
 
 40 A DIGEST OF [PART I. 
 
 The entries (A and B being dead) are not reWant, because B, 
 for whom they were made, did not know them to be true. 1 
 
 (e) The question is, what is A's age. A statement by the in- 
 cumbent in a register of baptisms, that he was baptised on a 
 given day, is relevant. A statement in the same register that 
 he was born on a given day is irrelevant, because it was not 
 the incumbent's duty to make it. 2 
 
 Article 28.* 
 declarations against interest. 
 
 A declaration is relevant if the declarant had peculiar 
 means of knowing the matter stated, if he had no interest 
 to misrepresent it, and if it was opposed to his pecuniary 
 or proprietary interest. 3 The whole of any such declara- 
 tion, and of any other statement referred to in it, is rele- 
 vant, although matters may be stated which were not 
 against the pecuniary or proprietary interest of the declar- 
 ant; but statements, not referred to in, or necessary to 
 explain, such declarations, are not relevant merely because 
 they were made at the same time or recorded in the same 
 place. 4 
 
 A declaration may be against the pecuniary interest of 
 the person who makes it, if part of it charges him with a 
 liability, though other parts of the book or document in 
 
 * See Note XX. 
 1 Brain v. Preece. 11 M. & W. 773. 
 « P. v. Clapham 4 C. & P. 29. 
 
 8 These are almost the exact words of Bayley, J., in Glcadow 
 v. Atkin, 1 C. & M. 423. 
 
 4 Illustrations (a) {b) and (c).
 
 Chap. IV.] the law of evidence 42 
 
 •which it occurs may discharge him from such liability in 
 whole or in part, and [it seems] though there may be no- 
 proof other than the statement itself either of such liability 
 or of its discharge in whole or in part. 1 
 
 A statement, made by a declarant holding a limited 
 interest in any property against the interest of the rever- 
 sioner therein, is not a declaration against proprietary 
 interest within the meaning of this article. 2 
 
 An endorsement or memorandum of a payment made 
 upon any promissory note, bill of exchange, or other 
 writing, by or on behalf of the party to whom such pay- 
 ment was made, is not sufficient proof of such payment 
 to take the case out of the operation of the statutes of 
 limitation ; 3 but any such declaration made in any other 
 form by or by the direction of the person to whom the 
 payment was made, is, when such person is dead, sufficient 
 proof for the purpose aforesaid. 4 
 
 Any endorsement or memorandum to the effect above 
 mentioned made upon any bond or other specialty by a 
 deceased person, is regarded as a declaration against the 
 proprietary interest of the declarant for the purpose above- 
 mentioned, if it is shown to have been made at the time 
 
 1 Illustrations (d) and (e). 
 
 3 Illustration (g-) ; see Lord Campbell's Judgment incase 
 quoted, p. 177. 
 
 s 9 Geo. IV. c. 14, s. 3. 
 
 * Bradley v. James. 13 C. B. 822.
 
 42 A DIGEST OF |P ART !• 
 
 when it purports to have been made ; l but it is uncertain 
 whether the date of such endorsement or memorandum 
 may be presumed to be correct without independent 
 evidence. 2 
 
 Statements of relevant facts opposed to any other than 
 the pecuniary or proprietary interest of the declarant are 
 not relevant as such. 8 
 
 Illustrations, 
 (a) The question is, whether a person was born on a particular 
 
 day. 
 An entry in the book of a deceased man-midwife in these words 
 is relevant : * 
 
 " W. Fowden, Junr.'s wife 
 Filius circa hor. 3 post merid. natus H. 
 W. Fowden, Junr., 
 Ap. 22, filius natus, 
 
 Wife, £1 6s. Id., 
 Pd. 25 Oct., 1768." 
 b) The question is, whether a certain custom exists in a part 
 
 of a parish. 
 The following entries in the parish books, signed by deceased 
 
 church-wardens, are relevant — 
 •' It is our ancient custom thus to proportion church-lay. The 
 
 chapelry of Haworth pay one-fifth, etc." 
 Followed by — 
 * Received of Haworth, who this year disputed this our ancient 
 
 1 3 & 4 Will. IV. c. 42, which is the Statute of Limitations 
 relating to Specialties, has no provision similar to 9 Geo. IV. c. 
 14, s. 8. Hence, in this case, the ordinary rule is unaltered. 
 
 2 See the question discussed in 1 Ph. Ev. 302-5, and T. E. 
 ss. 625-9, and see article 85. 
 
 3 Illustration (h). 
 
 * Higham v. Ridgway, 2 Smith L. C. 818, 7th ed.
 
 Chap. IV.] the law of evidence. 43 
 
 custom, but after we had sued him, paid it accordingly — ^8, 
 and ;£l for costs." * 
 
 (c) The question is, whether a gate on certain land, the prop- 
 erty of which is in dispute, was repaired by A. 
 
 An account by a deceased steward, in which he charges A with 
 the expense of repairing the gate, is irrelevant, though it 
 would have been relevant if it had appeared that A admitted 
 the charge. 2 
 
 (d) The question is, whether A received rent for certain land. 
 
 A deceased steward's account, charging himself with the re- 
 ceipt of such rent for A, is relevant, although the balance of 
 the whole account is in favor of the steward. 3 
 
 (e) The question is, whether certain repairs were done at A's 
 expense. 
 
 A bill for doing them, receipted by a deceased carpenter, is 
 
 . Y there being no other evidence either that the 
 irrelevant ° J 
 
 repairs were done, or that the money was paid. 
 
 (/) The question is, whether A (deceased) gained a settlement 
 in the parish of B by renting a tenement. 
 
 A statement made by A, whilst in possession of a house, that he 
 had paid rent for it, is relevant, because it reduces the inter- 
 est which would otherwise be inferred from the fact of A's 
 possession. 6 
 
 (g) The question is, whether there is a right of common over 
 a certain field. 
 
 A statement by A, a deceased tenant for a term of the land in 
 
 1 Stead v. Heaton, 4 T. R. 669. 
 
 2 Doe v. Beviss, 7 C. B. 456. 
 
 3 Williams v. Graves, 8 C. & P. 592. 
 
 4 R. v. Heyford, note to Higham v. Ridgway, 2 S. L. C. 
 7th ed. 
 
 6 Doe v. Vowles, 1 Mo. & Ro. 261. 
 8 R. v. Exeter, L. R. 4 Q. B. 841.
 
 44 A DIGEST OF [PART I. 
 
 question, that he had no such right, is relevant as against his 
 successors in the term, but not as against the owner of the 
 field.* 
 
 (h) The question is, whether A was lawfully married to B. 
 
 A statement by a deceased clergyman that he performed the 
 marriage under circumstances which would have rendered 
 him liable to a criminal prosecution, is not relevant as a 
 statement against interest. 2 
 
 Article 29. 
 declarations by testators as to contents of will. 
 When there is a question as to the contents of a lost will, 
 the declarations of the deceased testator as to its contents 
 are relevant, whether they were made before or after the 
 loss of the will. 3 
 
 Article 30.* 
 
 declarations as to public and general rights. 
 
 Declarations are relevant (subject to the third condition 
 mentioned in the next article) when they relate to the 
 existence of any public or general right or custom or matter 
 of public or general interest. But declarations as to par- 
 
 * See Note XXI. Also see Weeks v. Sparke, 1 M. & S. 
 679 ; Crease v. Barrett, 1 C. M. & R. 917. 
 
 1 Papendick v. Bridge-water, 5 E. & B. 166. 
 
 * Sussex Peerage Case, 11 C. & F. 108. 
 
 8 Sugden v. St. Leonards, ' Weekly Notes,' Mar. 26, 1876, p. 
 114. In questions between the heir and the legatee or devisor, 
 such statement would probably be relevant as admissions by a 
 privy in law, estate, or blood.
 
 Chap. IV.] the law of evidence. 45 
 
 ticular facts from which the existence of any such public 
 or general right or custom, or matter of public or general 
 interest, may be inferred, are irrelevant. 
 
 A right is public if it is common to all Her "Majesty's 
 subjects, and leclarations as to public rights are relevant 
 whoever made them. 
 
 A right or custom is general if it is common to any con- 
 siderable number of persons, as the inhabitants of a parish, 
 or the tenants of a manor. 
 
 Declarations as to general rights are relevant only when 
 they were made by persons who are shown, to the satisfac- 
 tion of the judge, or who appear from the circumstances of 
 their statement, to have had competent means of knowledge. 
 
 Such declarations may be made in any form and manner. 
 
 Illustrations . 
 
 (a) The question is, whether a road is public. 
 
 A statement by A (deceased) that it is public is relevant. 1 
 
 A statement by A, (deceased) that he planted a willow (still 
 standing) to show where the boundary of the road had been 
 when he was a boy, is irrelevant.' 
 
 (£) The following are instances of the manner in which declara- 
 tions as to matters of public and general interest may be 
 made : — They may be made in 
 
 Maps prepared by or by the direction of persons interested in 
 the matter ; 8 
 
 1 Crease v. Barrett, per Parke, B..1C. M.& R. 929. 
 
 » /?. v. Bliss, 7 A. & E. 550. 
 
 3 Implied in Hammond v. Bradstreet, 10 Ex. 390, and Pipe 
 v. Fulcher, 1 E <fc E 111. In each of these cases 'he map 
 was rejected as not properly qualified.
 
 46 A DIGEST OF [PART I. 
 
 Copies of Court rolls : l 
 
 Deeds and leases between private persons : * 
 Verdicts, judgments, decrees, and orders of Courts, and similar 
 bodies 8 if final.* 
 
 Article 31.* 
 declarations as to pedigree. 
 
 A declaration is relevant (subject to the conditions here- 
 inafter mentioned) if it relates to the existence of any 
 relationship between persons, whether living or dead, or to 
 the birth, marriage, or death of any person, by which such 
 relationship was constituted, or to the time or place at 
 which any such fact occurred, or to any fact immediately 
 connected with its occurrence. 5 
 
 Such declarations may express either the personal knowl- 
 edge of the declarant, or information given to him by other 
 persons qualified to be declarants, but not information 
 collected by him from persons not qualified to be declar- 
 ants. 6 They may be made in any form and in any docu- 
 ment or upon any thing in which statements as to relation- 
 ship are commonly made. 7 
 
 * See Note XXII. 
 
 1 Crease v. Barrett, 1 C. M. & R 923. 
 
 a Plaxton v. Dare, 10 B. & C. 17. 
 
 3 Duke of Newcastle v. Broxtowe, 4 B. & Ad. 278. 
 
 * Pirn v. Cure//, 6 M. & W. 234, 266. 
 5 Illustration (a). 
 
 • Davie s v. Lowndes, 6 M. & G. 527. 
 7 Illustration {b)
 
 Chap. IV.] the law of evidence. 47 
 
 The conditions above referred to are as follows — 
 
 (1) Such declarations are relevant only in cases in which 
 the pedigree to which they relate is in issue, and not to 
 cases in which it is only relevant to the issue ; 1 
 
 (2) They must be made by a declarant shown to be 
 legitimately related by blood to the person to whom they 
 relate ; or by the husband or wife of such a person. 2 
 
 (3) They must be made before the question in relation 
 to which they are to be provided has arisen ; but they do 
 not cease to be relevant because they were made for the 
 purpose of preventing the question from arising. 3 
 
 This condition applies also to statements as to public 
 and general rights or customs and matters of interest. 
 
 Illustrations . 
 
 (a) The question is, which of the three sons (Fortunatus, 
 Stephanus, and Achaicus) , born at a birth, is the eldest. 
 
 The fact that the father said that Achaicus was the youngest, 
 and he took their names from St. Paul's Epistles (see 1 Cor. 
 xvi. 17), and the fact that a relation present at the birth said 
 that she tied a string round the second child's arm to dis- 
 tinguish it, are relevant.* 
 
 (6) The question is, whether one of the cestuis que vie in a 
 lease for lives is living. 
 
 The fact that he was believed in his family to be dead is irrele- 
 vant, as the question is not one of pedigree. 6 
 
 1 Illustration [c). 
 
 3 Shrewsbury Peerage Case, 7 H. of L. 26. 
 8 Berkeley Peerage Case, 4 Cam. 401—417 
 * Vin. Abr. tit. Evidence, T. b. 91. The report calls the 
 son Achicus. 
 
 * Whittuck v. Walters, 4 C. & P. 875.
 
 48 A DIGEST OF [PART L 
 
 {c) The following are instances of the ways in which state- 
 ments as to pedigree may be made: By family conduct or 
 correspondence ; in books used as family registers ; in deeds 
 and wills; in inscriptions on tombstones, or portraits; in 
 pedigrees, so far as they state the relationship of living per- 
 sons known to the compiler. 1 
 
 Article 32.* 
 evidence given en former proceeding "when relevant. 
 
 Evidence given by a witness in a previous action is rele- 
 vant for the purpose of proving the matter stated in a 
 subsequent action, or in a later stage of the same action 6 
 when the witness is dead, 2 or is mad, 3 or so ill that he will 
 probably never be able to travel, 4 or is kept out of the 
 way by the adverse party, 5 or in civil, but not, it seems, 
 in criminal cases, is out of the jurisdiction of the Court, 
 or, perhaps, in civil, but not in criminal, cases when he 
 cannot be found." 
 
 Provided in all cases — 
 
 (1) That the person against whom the evidence is to be 
 
 * See Note XXIII. 
 
 1 In 1 Ph. Ev. 203-15, and T. E. ss. 583-7, these and many 
 other forms of statement of the same sort are mentioned; and 
 see Davies v. Lowndes, 6 M & G. 527, 
 
 a Mayor of Doncaster v. Day, 8 Tau. 262. 
 
 8 R. v. Eriswell, 3 T. R. 720. 
 
 * R. v. Hogg, 6 C. A P. 176. 
 
 6 R. v. Scai/e, 17 Q. B. 238, 248. 
 
 6 Fry v. Wood. 1 Atk 444; R. v. Scai/e. 17 Q. B. 243. 
 
 T Godbolt, p. 826, case 418 ; R. v. Scai/e, 17 Q. B. 248.
 
 Chap. IV.] the law of evidence. 49 
 
 given had the right and opportunity to cross-examine the 
 declarant when he was examined as a witness ; * 
 
 (2) That the questions in issue were substantially the 
 same in the first as in the second proceeding; l 
 
 Provided also — 
 
 (3) That the action, if civil, was between the same par- 
 ties or their representatives in interest; x 
 
 (4) That, in criminal cases, the same person is accused 
 upon the same facts. 2 
 
 Article 33. 
 depositions before magistrates. 
 A deposition taken under 11 & 12 Vict. c. 42, s. 17, may 
 be produced and given in evidence at the trial of the per- 
 son against whom it was taken, 
 
 if it is proved [to the satisfaction of the judge] that the 
 witness is dead, or so ill as not to be able to travel [although 
 there may be a prospect of his recovery] ; 3 
 
 [or, if he is kept out of the way by the person accused] * 
 or, [probably if he is too mad to testify,] 5 and 
 if the deposition purports to be signed by the justice by 
 or before whom it purports to have been taken ; and 
 
 1 Doe v Tatham, 1 A. & E. 319 ; Doe v. Derby, 1 A. & E. 
 Y83, 785, 7S9. 
 ' Bceston's Case, Dears. 405. 
 
 * R. v. Stephenson, L. & C. 165. 
 
 * R. v. Scaife, 17 Q. B. 778. 
 
 * Analogy of R. v. Scaife. 
 
 D
 
 60 A DIGEST OF [PART L 
 
 if it is proved by the person who offers it as evidence 
 that it was taken in the presence of the person accused, and 
 that he, his counsel, or attorney, had a full opportunity of 
 cross-examining the witness ; 
 
 Unless it is proved that the deposition was not in fact 
 signed by the justice by whom it purports to be signed 
 
 [or, that the statement was not taken upon oath ; 
 
 or [perhaps] that it was not read over to or signed by 
 the witness.] 1 
 
 If there is a prospect of the recovery of a witness proved 
 to be too ill to travel, the judge is not obliged to receive 
 the deposition, but may postpone the trial. 2 
 
 "When a deposition or other record of evidence is used as 
 evidence in a subsequent proceeding, the same objections 
 may be made to the reading of any part of it as might have 
 been made when it was originally taken by the party who 
 might have objected when the question was asked, but no 
 one can object to the reading of an answer to a question 
 asked by the representative of his own party. 3 
 
 1 I believe the above to be the effect of 11 and 12 Vict. c. 42, 
 s. 17, as interpreted by the cases referred to, the effect of which 
 is given by the words in brackets, also by common practice. 
 Nothing can be more rambling or ill-arranged than the lan- 
 guage of the section itself. See 1 Ph. Ev. 87-100 ; T. E. s. 
 448, etc. 
 
 ' R. v. Taii, 2 F. & F. 558. 
 
 8 Hutchinson v. Bernard, 2 Moo. & R. 1.
 
 Chap. IV.] the law of evidence. 61 
 
 Article 34. 
 depositions under 30 and 31 vict. c. 35, 8. 6. 
 
 A deposition taken for the perpetuation of testimony in 
 criminal cases, under 30 and 31 Vict. c. 35, s. 6, may be 
 produced and read as evidence, either for or against the 
 accused, upon the trial of any offender or offence l to which 
 it relates — 
 
 if the deponent is proved to be dead, or 
 
 if it is proved that there is no reasonable probability 
 that the deponent will ever be able to travel or to give 
 evidence, and 
 
 if the deposition purports to be signed by the justice by 
 or before whom it purports to be taken, and 
 
 if it is proved to the satisfaction of the Court that 
 reasonable notice of the intention to take such deposition 
 was served upon the person (whether prosecutor or accused) 
 against whom it is proposed to be read, and 
 
 that such person or his counsel or attorney had or might 
 have had, if he had chosen to be present, full opportunity 
 of cross-examining the deponent. 2 
 
 1 Sic. 
 
 * 80 and 81 Vict. c. 35, s. 6. The section is very long, and 
 as the first part of it belongs rather to the subject of criminal 
 procedure than to the subject of evidence, I have omitted it. 
 The language is slightly altered. I have not referred to depo- 
 sitions taken before a coroner (see 7 Geo. IV. c. 64, s. 4), be- 
 cause the section says nothing about the conditions on which 
 they may be given in evidence. Their relevancy, therefore,
 
 A DIGEST OF [PART I. 
 
 Article 35. 
 
 relevancy of statement in certain act8 or 
 notifications. 
 
 When any act of state or any fact of a public nature is 
 in issue or relevant to the issue, any statement of it made 
 in a recital contained in any public Act of Parliament, or 
 in any royal proclamation or speech of the Sovereign, in 
 opening Parliament, or in any address to the Crown of 
 either House of Parliament, is a relevant fact. 1 
 
 Article 36. 
 
 relevancy of entry in public record made in 
 performance of duty. 
 
 An entry in any official book, register, or record kept in 
 any of Her Majesty's dominions, or at sea, or in any foreign 
 country, stating a fact in issue or relevant fact, and made 
 in proper time by any person in the discharge of any duty 
 imposed upon him by the law of the place in which such 
 book, register, or record is kept, is itself a relevant fact. 2 
 
 depends on the common law principles expressed in article 83. 
 They must be signed by the coroner ; but these are matters, 
 not of evidence, but of criminal procedure. 
 
 1 R. v. Francklin, 17 S. T. 636; R. v. Sutton, 4 M. & S- 532. 
 
 * T. E. (from Greenleaf ) ss. 1429, 1432.
 
 Chap. IV.] the law of evidence. 53 
 
 Article 37. 
 
 relevancy of statements in works of history ) maps, 
 
 charts, and plans. 
 
 Statements as to matters of general public history, made 
 in accredited historical books, are relevant, when the occur- 
 rence of any such matter is in issue or relevant to the issue ; 
 but statements in such works as to private rights or customs 
 are irrelevant. 1 
 
 [Submitted] Statements of facts in issue or relevant facts, 
 made in published maps or charts generally offered for 
 public sale as to matters of public notoriety, such as the 
 relative position of towns and countries, and such as are 
 usually represented or stated in such maps, or charts, are 
 themselves relevant facts ; 2 but such statements are irrele- 
 vant if they relate to matters of private concern, or matters 
 not likely to be accurately stated in such documents. 
 
 Article 38. 
 
 entries in tradesmen's books. 
 
 No tradesman or handicraftsman keeping a shopbook, or 
 
 his executors or administrators, may give his shopbook in 
 
 evidence in any action for money due for wares delivered 
 
 1 See cases in 2 Ph. Ev. 155-6. 
 
 2 In R. v. Orton, maps of Australia were given in evidence 
 
 to show the situation of various places at which the defendant % 
 said he had lived.
 
 64 A DIGEST OF [PART I. 
 
 or work done above a year before the same action brought, 
 unless he shall have obtained a bill of debt or obligation 
 of the debtor for the said debt, or shall have brought some 
 action against the debtor for the debt or work within a year 
 next after the delivery of the wares or the work done. 
 
 This does not extend to dealings between merchant and 
 merchant, merchant and tradesman, or tradesman and 
 tradesman, for anything directly falling within the compass 
 or circuit of their mutual trades and merchandises. 1 
 
 Article 39.* 
 definition of word "judgment." 
 The word "judgment" in articles 40-47 means any final 
 judgment order or decree of any Court. 
 
 Article 40. 
 all judgments conclusive proof of their legal 
 
 EFFECT. 
 
 All judgments whatever are conclusive proof as against 
 all the world, of the existence of that state of things which 
 they actually effect, and they are relevant when their own 
 
 * See Note XXIV. 
 1 7 James I. c. 12. This act is printed in the revised edition 
 of the statutes. It appears to imply a rule that shop- 
 books are, as such, admissible in proof of what they state. If 
 this ever was the law, it has been superseded by the principles 
 stated in articles 27 and 28.
 
 Chap. IV.] the law of evidence. 55 
 
 ■existence or the existence of the state of things so effected 
 is a fact in issue or relevant to the issue. 
 
 Illustrations. 
 
 (a) The question is, whether A has been damaged by the neg- 
 ligence of his servant B in injuring C's horse. 
 
 Judgment in an action, in which C recovered damages against 
 A, is conclusive proof as against B, that C did recover dam 
 ages against A in that action. 1 
 
 (<5) The question is, whether A, a shipowner, is entitled to re- 
 cover as for a loss by capture against B, an underwriter. 
 
 A judgment of a competent French prize court condemning 
 the ship and cargo as prize, is conclusive proof that the ship 
 and cargo were lost to A by capture. 8 
 
 {c) The question is, whether A can recover damages from B 
 for a malicious prosecution. 
 
 The judgment of a Court by which A was acquitted is conclu- 
 sive proof that A was acquitted by that Court. 8 
 
 {d) A, as executor to B, sues C for a debt due from C to B. 
 
 The grant of probate to A is conclusive proof, as against C, 
 that A is B's executor.* 
 
 (e) A is deprived of his living by the sentence of an ecclesias- 
 tical court. 
 
 The sentence is conclusive proof of the fact of deprivation in 
 all cases. 6 
 
 1 Green v. New River Company, 4 T. R. 590. (See article 
 44. illustration {a) ). 
 
 * Involved in Geyerv. Aguilar, 7 T. R 681. 
 
 8 Leggalt v. Tollervey, 14 Ex. 301 ; and see Caddy v. Bar- 
 low, 1 Man. & Ry. 277. 
 
 * Allen v. Dundas, 87 R. 125—130. In this case the will to 
 which probate had been obtained, was forged. 
 
 6 Judgment of JLonJ Holt in Phillips v. Bury, 2 T. R. 346, 
 851.
 
 66 A DIGEST OF [PART ] 
 
 (/) A and B are divorced a vinculo matrimonii by a sentence 
 
 of the Divorce Court. 
 The sentence is conclusive proof of the divorce in all cases. 1 
 
 Article 41. 
 judgments conclusive as between parties and 
 
 privies of facts forming ground of judgment. 
 
 Every judgment is conclusive proof as against parties 
 and privies of facts directly in issue in the case, actually 
 decided by the Court, and appearing from the judgment 
 itself to be the ground on which it was based ; unless 
 evidence was admitted in the action in which the judg- 
 ment was delivered, which is excluded in the action in 
 which that judgment is intended to be proved. 
 
 Illustrations. 
 
 (a) The question is, whether C, a pauper, is settled in parish 
 A or parish B. 
 
 D is the mother and E the father of C. D, E, and several oJ 
 their children were removed from A to B before the question 
 as to C's settlement arose, by an order unappealed against, 
 which order described D as the wife of E. 
 
 The statement in the order that D was the wife of E is conclu- 
 sive as between A and B. 2 
 
 (d) A and B each claim administration to the goods of C, 
 deceased. 
 
 1 Assumed in Needham v. Bremner, L. R. 1 C. P. 582. 
 
 8 R. v. Ilarlington Middle Quarter, 4 E. & B. 780 ; and set 
 Flitters v. All/rey, L. R. 10 C. P. 29; and contrast Dover v. 
 Child, L R. 1 Ex. Div. 172.
 
 Chap. IV.] the law of evidence. 67 
 
 Administration is granted to B, the judgment declaring that, as 
 far as appears by the evidence, B has proved himself next of 
 kin. 
 
 Afterwards there is a suit between A and B for the distribution 
 of the effects of C. The declaration in the first suit is in the 
 second suit conclusive proof as against A that B is nearer of 
 kin to C than A. 1 
 
 (c) A company sues A for unpaid premium and calls. A 
 special case being stated in the Court of Common Pleas, A 
 obtains judgment on the ground that he never was a share- 
 holder. 
 
 The company being wound up in the Court of Chancery, A 
 applies for the repayment of the sum he had paid for premium 
 and calls. The decision that he never was a shareholder is 
 conclusive, as between him and the company, that he never 
 was a shareholder, and is therefore entitled to recover the 
 sums he paid. 8 
 
 (d) A obtains a decree of judicial separation from her husband 
 B, on the ground of cruelty and desertion, proved by her 
 own evidence. 
 
 Afterwards B sues A for dissolution of marriage on the ground 
 of adultery, in which suit neither B nor A can give evidence. 
 A charges B with cruelty and desertion. The decree in the 
 first suit is irrelevant in the second. 8 
 
 Article 42. 
 statements in judgments irrelevant as between 
 
 strangers, except in admiralty cases. 
 Statements contained in judgments as to the facts upon 
 which the judgment is based, are irrelevant as between 
 
 1 Barrs v. Jackson, 1 Phill. 5S2. 58 7. 53S, 
 
 2 Bank of Hindustan, etc., All-son's Case, L. R. 9 Ch. App. 24. 
 * Stoate v. Stoate, 2 Swa. & Tri. 223.
 
 68 A DIGEST OF [PART I. 
 
 strangers, or as between a party, or privy, and a stranger, 
 except 1 in the case of judgments of Courts of Admiralty 
 condemning a ship as prize. In such cases the judgment 
 is conclusive proof as against all the world, of the fact on 
 which the condemnation proceeded, where such fact is 
 plainly stated upon the face of the sentence. 
 
 Illustrations. 
 
 {a) The question between A and B is, whether certain lands in 
 Kent had been disgavelled. A special verdict on a feigned 
 issue between C and D (strangers to A and B) finding that 
 in the 2d Edw. VI. a disgavelling act was passed, in words 
 set out in the verdict, is irrelevant. 2 
 
 {£) The question is, whether A committed bigamy by marrying 
 B during the lifetime of her former husband C. 
 
 A decree in a suit of jactitation of marriage, forbidding C to 
 claim to be the husband of A, on the ground that he was not 
 her husband, is irrelevant. 8 
 
 (c) The question is, whether A, a shipowner, has broken a 
 warranty to B, an underwriter, that the cargo of the ship 
 whose freight was insured by A, was neutral property. 
 
 The sentence of a French prize court condemning ship and 
 cargo, on the ground that the cargo was enemy's property, 
 is conclusive proof in favor of B that the cargo was enemy's 
 property (though on the facts the Court thought it was not). 4 
 
 1 This exception is treated by Lord Eldon as an objection- 
 able anomaly in Lothian v. Henderson. See, too, Castrique v. 
 Imrie, 8 B. & P. 545. L. R. 4 E. & I. App. 434-5. 
 
 8 Doe v. Brydges, 6 M. & G. 282. 
 
 • Duchess of Kingston!* Case, 2 Smith's Leading Cases, 760. 
 
 * Geyer v. Aguilar, IT R. 681.
 
 Chap. IV.] the law of evidence. 69 
 
 Article 43. 
 effect of judgment not pleaded as an" estoppel. 
 If a judgment is not pleaded by way of estoppel, it is as 
 
 between parties and privies a relevant fact, whenever any 
 
 matter which was or might have been decided in the 
 
 action in which it was given, is in issue or relevant to the 
 
 issue in any subsequent action. 
 Such a judgment is conelusive proof of the facts which 
 
 it decides, or might have decided, if the party who gives 
 
 evidence of it had no opportunity of pleading it as an 
 
 estoppel. 
 
 Illustrations. 
 
 (a) A sues B for deepening the channel of a stream, whereby 
 the flow of water to A's mill was diminished. 
 
 A verdict recovered by B in a previous action for substantially 
 the same cause, and which might have been pleaded as an 
 estoppel, is relevant, but not conclusive in B's favor. 1 
 
 (J>) A sues B for breaking and entering A's land, and building 
 thereon a wall and a cornice. B pleads that the land was 
 his, and obtains a verdict in his favor on that plea. 
 
 Afterwards B's devisee sues A's wife (who on the irial admitted 
 that she claimed through A) for pulling down the wall and 
 cornice. As the first judgment could not be pleaded as an 
 estoppel (the wife's right not appearing on the pleadings), it 
 is conclusive in B's favor that the land was his. 8 
 
 l Vooghtv. Winch, 2 B. & A. 662; and see Feversham v. 
 Emerson, 11 Ex. 391. 
 
 » Whitaker v. Jackson, 2 H. & C. 926. This had pre- 
 viously been doubted- See 2 Ph. Ev. 24, n. 4.
 
 60 A DIGEST OF [PART I. 
 
 Article 44. 
 
 judgments generally irrelevant as between 
 
 strangers. 
 
 Judgments are not relevant as rendering probable facta 
 which may be inferred from their existence, but which 
 they neither state nor decide- 
 As between strangers ; 
 
 As between parties and privies in suits where the issue 
 is different, even though they relate to the same occur- 
 rence or subject matter; 
 
 Or in favor of strangers against parties or privies. 
 
 But a judgment may be relevant as between strangers: 
 
 (1) As being an admission, or 
 
 (2) If it relates to a matter of public or general interest, 
 as a statement under article 30. 
 
 Illustrations. 
 
 (a) The question is, whether A has sustained loss by the negli- 
 gence of B, his servant, who has injured C's horse. 
 
 A judgment recovered by C against A for the injury, though 
 conclusive as against B, as to the fact that C recovered a 
 sum of money from A, is irrelevant to the question, whether 
 this was caused by B's negligence. 1 
 
 (6) The question, whether a bill of exchange is forged, arises in 
 an action on the bill. The fact that A was convicted of 
 forging the bill is irrelevant.' 
 
 1 Green v. New River Company, 4 T. R. 589. 
 
 2 Per Blackburn, J., in Castrique v. Jmrie, L. R. 4 E. 
 App. 434.
 
 Chap. IV.] the law of evidence. 61 
 
 (c) A collision takes place between two ships A and B, each of 
 which is damaged by the other. 
 
 The owner of A sues the owner of B, and recovers damages 
 on the ground that the collision was the fault of B's captain. 
 This judgment is not conclusive in an action by the owner of 
 B against the owner of A, for the damage done to B. 1 [Sem- 
 ite it is irrelevant.] 3 
 
 (d) A is prosecuted and convicted as a principal felon. 
 
 B is afterwards prosecuted as an accessory to the felony com- 
 mitted by A. 
 
 The judgment against A is irrelevant as against B, though A's 
 guilt must be proved as against B. 3 
 
 (e) A sues B, a carrier, for goods delivered by A to B. 
 
 A judgment recovered by B against a person to whom he had 
 delivered the goods, is relevant as an admission by B that he 
 had them.* 
 
 (/) A sues B for trespass on land. 
 
 A judgment, convicting A for a nuisance by obstructing a high- 
 way on the place said to have been trespassed on, is [at 
 least] evidence to show chat the place was a public highway 
 [and is possibly conclusive]. 5 
 
 Article 45. 
 
 judgments conclusive in favor of judge. 
 
 "When any action is brought against any person for any 
 
 thing done by him in a judicial capacity, the judgment 
 
 delivered, and the proceedings antecedent thereto, are con- 
 
 1 The Calypso, 1 Swab. Ad. 2S. 
 
 2 On the general principle in Duchess of Kingston 's Case. 
 
 3 Semble from R. v. Turner, 1 Moo. C. C. 347. 
 * Buller N. P. 242, b. 
 
 5 Petrie v. Nuitalt, 11 Ex. 569.
 
 62 A DIGEST OF [PART L 
 
 elusive proof of the facts therein stated, whether they are 
 
 or are not necessary to give the defendant jurisdiction. 
 Illustration. 
 
 A sues B (a justice of the peace) for taking from him a vessel 
 and 500 pounds of gunpowder thereon. B produces a con- 
 viction before himself of A for having gunpowder in a boat 
 on the Thames (against 2 Geo. III. c. 28). 
 
 The conviction is conclusive proof for B that the thing called a 
 boat was a boat. 1 
 
 Article 46. 
 
 fraud, collusion, or want of jurisdiction may bb 
 
 PROVED. 
 
 Whenever any judgment is offered in evidence under 
 any of the articles hereinbefore contained, the party against 
 whom it is so offered may prove that the Court which 
 gave it had no jurisdiction, or that it has been reversed, or, 
 if he is a stranger to it, that it was obtained by any fraud 
 or collusion, to which neither he nor any person to whom 
 he is privy was a party. It is doubtful whether a party or 
 privy to such a judgment can show that it was obtained by 
 a fraud to which he was not a party. 3 
 
 Article 47. 
 foreign judgments. 
 The provisions of articles 40-46 apply to such of the 
 judgments of Courts of foreign countries as can by law be 
 
 1 Brittain v. Kinnaird, 1 B. & B. 432. 
 
 * Cases collected in T. E. ss. 1524-1525. s. 1580. See, too, 
 2 Ph. Ev. 85.
 
 Chap. IV.] the la~w of eytdence. 6& 
 
 enforced in this country, and so far as they can be so 
 
 enforced. 1 
 
 1 The cases on this subject are collected in the note on the 
 Duchess of Kingston's Case, 2 S. L. C. 813-845. A list of the 
 cases will be found in R. N. P. 221-3. The last leading cases 
 on the subject are Godard v. Gray, L. R. 6 Q. B. 139, and 
 Castriaue v. /mru, L. R. 4 E. & I. App. 414.
 
 64 A DIGEST OF [PART 1. 
 
 CHAPTER V.* 
 OPINIONS, WHEfii RELEVANT AND WHEN NOT. 
 
 Article 48. 
 opinion generally irrelevant. 
 The fact that any person is of opinion that a fact in issue, 
 or relevant to the issue, does or does not exist, is not re- 
 garded as relevant to the existence of such fact, within any 
 of the articles hereinbefore contained, except in the cases 
 specified in this chapter. 
 
 Illustration. 
 The question is, whether A, a deceased testator, was sane or 
 not when he made his will. His friends' opinions as to his 
 sanity, as expressed by the letters which they addressed to 
 him in his lifetime, are irrelevant. 1 
 
 Article 49. 
 
 opinions of experts on points of science or art. 
 
 When there is a question as to any point of science or 
 art, the opinions upon that point of persons specially 
 skilled in any such matter are relevant facts. 
 
 Such persons are hereinafter called experts. 
 
 ♦See Note XXV. 
 1 Wright v. Doe d. Tat ham, 7 A & E. 818.
 
 Chap. V.] the law of evidence. 66 
 
 The words, "science or art," include all subjects on 
 which a course of special study or experience is necessary 
 to the formation of an opinion, 1 and amongst others the 
 examination of handwriting. 
 
 "When there is a question as to a foreign law the opin- 
 ions of experts, who in their profession are acquainted with 
 such law, are the only admissible evidence thereof, though 
 such experts may produce to the Court books which they 
 declare to be works of authority upon the foreign law in 
 question, which books the Court, having received all neces- 
 sary explanations from the expert, may construe for itself. 2 
 
 It is the duty of the judge to decide, subject to the 
 opinion of the Court above, whether the skill of any per- 
 son in the matter on which evidence of his opinion is 
 offered is sufficient to entitle him to be considered as an 
 expert. 3 
 
 The opinion of an expert as to the existence of the facts 
 on which his opinion is to be given is irrelevant, unless he 
 perceived them himself. 4 
 
 Illustrations, 
 (a) The question is, whether the death of A was caused by 
 
 poison. 
 
 1 1 S L. C. 555, 7th ed. (note to Carter v. Boehm); 28 Vict, 
 c 18, s. 18. 
 
 2 Baron de Bodes Case, 8 Q. B. 250-267 ; Di Sora v. Phil- 
 lipps, 10 H. L. 624; Castrique v. Imrie, L. R. 4 E. & I. App. 
 434; see, too, Pictons Case, 30 S. T, 510-511. 
 
 » Brisiow v. Sequeville, 6 Ex. 275 ; Rowley v. L. 6* N. W. 
 Railway, L. R. S. Ex. 221. 
 « 1 Ph. 507 : T. E. s. 1278. 
 
 E
 
 66 A DIGEST OF [PART I. 
 
 The opinions of experts as to the symptoms produced by the 
 poison by which A is supposed to have died, are relevant. 1 
 
 (i) The question is, whether A, at the time of doing a certain 
 act, was, by reason of unsoundness of mind, incapable of 
 knowing the nature of the act, or that he was doing what was 
 either wrong or contrary to law. 
 
 The opinions of experts upon the question whether the symp- 
 toms exhibited by A commonly show unsoundness of mind, 
 and whether such unsoundness of mind usually renders per- 
 sons incapable of knowing the nature of the acts which they 
 do, or of knowing that what they do is either wrong or con- 
 trary to law, are relevant. 2 
 
 (c) The question is, whether a certain document was written 
 by A. Another document is produced which is proved or 
 admitted to have been written by A. 
 
 The opinions of experts on the question whether the two docu- 
 ments were written by the same person or by different per- 
 sons, are relevant.* 
 
 (d) The opinions of experts on the questions, whether in illus- 
 tration (a) A's death was in fact attended by certain symp- 
 toms; whether in illustration (£) the symptoms from which 
 they infer that A was of unsound mind existed ; whether in 
 illustration (c) either or both of the documents were written 
 by A, are irrelevant. 
 
 Article 50. 
 facts bearing upon opinions of experts. 
 Facts not otherwise relevant, are relevant if they sup- 
 port or are inconsistent with the opinions of experts, when 
 such opinions are relevant. 
 
 1 R. v. Palmer, {passim). See my ' Gen. View of Crim. 
 Law," 357. 
 
 2 R.\. Dove (passim). Ibid, 891. 
 • 23 Vict. c. 18. s. 8.
 
 Chap. V.] the law of evidence. 67 
 
 Illustrations, 
 (a) The question is, whether A was poisoned by a certain 
 
 poison. 
 The fact that other persons, who were poisoned by that poison, 
 
 exhibited certain symptoms which experts affirm or deny to 
 
 be the symptoms of that poison, is relevant. 1 
 (3) The question is, whether an obstruction to a harbor is caused 
 
 by a certain bank. An expert gives his opinion that it is not. 
 The fact that other harbors similarly situated in other respects, 
 
 but where there were no such banks, 2 began to be obstructed 
 
 at about the same time, is relevant. 
 
 Article 51. 
 opinion as to handwriting, "when relevant. 
 
 When there is a question as to the person by whom any 
 document was written or signed, the opinion of any per- 
 son acquainted with the handwriting of the supposed writer 
 that it was or was not written or signed by him, is a rele- 
 vant fact. 
 
 A person is deemed to be acquainted with the hand- 
 writi-g of another person when he has at anytime seen 
 that person write, or when he has received documents pur- 
 porting to be written by that person in answer to docu- 
 
 1 R. v. Palmer, printed trial, p. 124, <fcc. In this case (tried 
 in 1S56) evidence was given of the symptoms attending the 
 deaths of Agnes Senet, poisoned by strychnine in 1845, Mrs. 
 Serjeantson Smith, similarly poisoned in 1S43, and Mrs. Dove, 
 murdered by the same poison subsequently to the death of 
 Cook, for whose murder Palmer was tried. 
 
 8 Foulkes v. Chadd, 8 Doug. 157.
 
 68 A DIGEST OF [PART 1. 
 
 ments written bj' himself or under his authority and ad- 
 dressed to that person, or when, in the ordinary course of 
 business, documents purporting to be written by that 
 person have been habitually submitted to him. 1 
 
 Illustration. 
 The question is whether a given letter is in the handwriting of 
 
 A, a merchant in Calcutta. 
 
 B is a merchant in London, who has written letters addressed 
 to A, and received letters purporting to be written by him. 
 C is B's clerk, whose duty it was to examine and file B's 
 correspondence. D is B's broker, to whom B habitually 
 submitted the letters purporting to be written by A for the 
 purpose o f advising with him thereon. 
 
 The opinions of B, C, and D on the question whether the 
 letter is in the handwriting of A are relevant, though neither 
 
 B, C, nor D ever saw A write.* 
 
 The opinion of C, who saw A write once twenty years ago, is 
 also relevant. 8 
 
 Article 52. 
 comparison op handwritings. 
 Comparison of a disputed handwriting with any writing 
 proved to the satisfaction of the judge to be genuine is 
 permitted to be made by witnesses, and such writings, 
 and the evidence of witnesses respecting the same, may be 
 submitted to the Court and jury as evidence of the genu- 
 
 1 See Illustrations. 
 
 * Doe v. Sackermore, 5 A. A E. 705 (Coleridge, J.); 780 (Pat- 
 teson, J.); 739-40 (Denman, C. J.). 
 ■ R. v. Home Tooke, 25 S. T. 71-2.
 
 Chap. V.] the law of evidence. 69 
 
 ineness or otherwise of the writing in dispute. This para- 
 graph applies to all courts of judicature, criminal or civil, 
 and to all persons having by law, or by consent of parties, 
 authority to hear, receive, and examine evidence. 1 
 
 Article 53. 
 
 opinion as to existence of marriage, when 
 
 relevant. 
 
 When there is a question whether two persons are or 
 
 are not married, the opinion, expressed by conduct, of 
 
 their acquaintances and friends, is a relevant fact ; but such 
 
 opinions are not sufficient evidence to prove a marriage in 
 
 a prosecution for bigamy or in proceedings for a divorce, 
 
 or in a petition for damages against an adulterer. 2 
 
 Article 54. 
 grounds of opinion, when relevant. 
 Whenever the opinion of any living person is relevant, 
 the grounds on which such opinion is based are also 
 relevant. 
 
 Illustration. 
 
 An expert may give an account of experiments performed by 
 him for the purpose of forming his opinion. 
 
 1 IT and 18 Vict. c. 125, s. 27 ; 28 Vict. c. 18, s. 8. 
 
 2 Morris v. Miller, 2 Burr. 2057 ; Birt v. Barlow, 1 Doug. 
 170; and see Catherwood v. Caslon, 13 Mow. 261. Compare 
 R. v. Mainwaring, Dear 6° B 132
 
 70 A DIGEST OF [PART I. 
 
 CHAPTER VI.* 
 
 CHARACTER, WHEN RELEVANT AND WHEN 
 NOT. 
 
 Article 55. 
 character generally irrelevant. 
 The fact that a person is of a particular character is not 
 deemed to be relevant to any inquiry respecting his con- 
 duct under any of the articles hereinbefore contained, 
 except in the cases mentioned in this chapter. 
 
 Article 56. 
 evidence of character in criminal cases. 
 In criminal proceedings, the fact that the person accused 
 has a good character, is relevant; but the fact that ho has . 
 a bad character is irrelevant, unless it is itself a fact in 
 issue, or unless evidence has been givsn that he has a good 
 character, in which case it becomes relevant. 
 
 When any person gives evidence of his good character 
 who — 
 
 * See Note XXVI.
 
 Chap. VI.] the law of evidence. 71 
 
 Being on his trial for any felony not punishable with 
 •death, 1 has been previously convicted of felony; 
 
 Or, who being upon his trial for any offence punishable 
 under the Larceny Act, 1861, has been previously convicted 
 of any felony, misdemeanor or offence punishable upon 
 summary conviction ; 2 
 
 Or who, being upon his trial for any offence against the 
 Coinage Offences Act, 1861, or any former Act relating to 
 the coin, has been previously convicted of any offence 
 against any such Act. 3 
 
 The prosecutor may, in answer to such evidence of good 
 character, give evidence of any such previous conviction 
 before the jury return their verdict for the offence for which 
 the offender is being tried. 4 
 
 In this article the word character means reputation as 
 distinguished from disposition, and evidence may be given 
 only of general reputation and not of particular acts by 
 which reputation or disposition is shown. 5 
 
 Article 57. 
 character as affecting damages. 
 In civil cases, the fact that the character of any party to 
 
 1 Y & 8 Geo. IV. c. 28, s, 11, amended by 6 & 7 Will. IV. c. 
 111. If " not punishable with death " means not so punishable 
 at the time when 7 & 8 Geo. IV. c. 28 was passed (21 June 
 1827), this narrows the effect of the article considerably. 
 
 2 24 & 25 Vict. c. 96, s. 116. 
 ■ 24 & 25 Vict. c. 99, s. 37. 
 
 * See each of the Acts above referred to. 
 5 R. v. Rowton, 1 L. & C. 520.
 
 72 A DIGEST OF [PART L 
 
 the action is such as to affect the amount of damages 
 which he ought to receive, is generally irrelevant. 1 ' 
 
 1 In 1 Ph. Ev. 504, &c, and T. E. s. 833, all the cases are 
 
 referred to. The most important are v. Moor, 1 M. & S. 
 
 284, which treats the evidence as admissible, though perhaps it 
 does not absolutely affirm the proposition that it is so ; and 
 Jones v. Stevens, 11 Price, 235, see especially pp. 265, 268, 
 which decides that it is not. The question is now rendered 
 comparatively unimportant, as the object for which such evi- 
 dence used to be tendered can always be obtained by cross- 
 examining the plaintiff to his credit.
 
 Chap. VIL] the law of evidence. 73 
 
 PART II.— ON PEOOF. 
 
 CHAPTER VH. 
 FACTS WHICH NEED NOT BE PROVED— JU- 
 DICIAL NOTICE. 
 
 Article 58.* 
 of what facts the court takes judicial notice. 
 It is the duty of all judges to take judicial notice of the 
 following facts — 
 
 (1) All unwritten laws, rules, and principles having the 
 force of law adm -tered by any Court sitting under the 
 authority of Her Majesty and her successors in England or 
 Ireland, whatever may be the nature of the jurisdiction 
 thereof. 1 ^ 
 
 (2) All public Acts of Parliament, 1 and all Acts of Par- 
 liament whatever, passed since February 4, 1851, unless 
 the contrary is expressly provided in any such Act. 2 
 
 (3) The general course of proceeding and privileges of 
 Parliament and of each House thereof, and the date and 
 
 * See Note XXVII. 
 
 1 Ph. Ev. 460-1 ; T. E. s. 4, and see 36 & 37 Vict. c. 66 (Ju- 
 dicature Act of 1873), s. 25. 
 
 2 13 & 14 Vict. c. 21, ss. 7, 8, and see (for date) caption of 
 session of 14 & 15 Vict.
 
 74 A DIGEST OF [PART II. 
 
 place of their sittings, but not transactions in their 
 journals. 1 
 
 (4) All general customs which have been held to have 
 the force of law in any division of the High Court of 
 Justice or by any ol the superior courts of law or equity, 
 and all customs which have been duly certified to and 
 recorded in any such court. 2 
 
 (5) The course of proceeding and all rules of practice in 
 force in the Supreme Court of Justice. Courts of a limited 
 or inferior jurisdiction take judicial notice of their own 
 course of procedure and rules of practice, but not of those 
 of other courts of the same kind, nor does the Supreme 
 Court of Justice take judicial notice of the course of pro- 
 cedure and rules of practice of such courts. 3 
 
 (6) The accession and [semble] the sign manual of Her 
 Majesty and her successors. 4 
 
 (7) The existence and title of every State and Sovereign 
 recognized by Her Majesty and her successors. 5 
 
 (8) The accession to office, names, titles, functions, and, 
 when attached to any decree, order, certificate, or other 
 
 1 Ph. Ev. 460 ; T. E. s. 5. 
 
 2 The rule was that each Court took notice of customs held 
 by or certified to it to have the force of law. It is submitted 
 that the effect of the Judicature Act, which fuses all the courts 
 together, must be to produce the result stated in the text. As 
 to the old law, see Piper v. Chappell, 14 M. & W. 649 -50. 
 
 » 1 Ph. Ev. 462-3; T. E. s. 19. 
 * 1 Ph. Ev. 453 ; T. E. ss. 16, 19. " 
 5 1 Ph. Ev.460; T. E. s. 3.
 
 Chap. YIL] the law of evidence. 75 
 
 judicial or official documents, the signatures, of all the 
 judges of the Supreme Court of Justice. 1 
 
 (9) The Great Seal, the Privy Seal, the seals of the 
 Superior Courts of Justice, 2 and all seals which any Court 
 is authorized to use by any Act of Parliament, certain other 
 Seals mentioned in Acts of Parliament, 3 the seal of the Cor- 
 poration of London, 4 and the seal of any notary public. 5 
 
 (10) The extent of the territories under the dominion of 
 Her Majesty and her successors; the territorial and politi- 
 cal divisions of England and Ireland, but not their geo- 
 graphical position or the situation of particular places ; the 
 commencement, continuance, and termination of war be- 
 tween Her Majesty and any other Sovereign; and all other 
 public matters directly concerning the general government 
 of Her Majesty's dominions. 6 
 
 (11) The ordinary course of nature, natural and artificial 
 divisions of time, the meaning of English words. 7 
 
 (12) All other matters which they are directed by any 
 statute to notice. 8 
 
 1 1 Ph. 462; T. E 19 ; and as to latter part, 8 & 9 Vict. c. 
 113. s. 2, as modified by 36 & 37 Vict. c. 66, s. 76 (Judicature 
 Act of 1873). 
 
 2 The Judicature Acts confer no seal on the Supreme or 
 High Court or its divisions. 
 
 3 Doe v. Edwards, 9 A. & E. 555. See a list in T. E. s. 6. 
 * 1 Ph. Ev. 464 ; T. E. s. 6. 
 
 5 Cole v. Sherard, 11 Ex. 4S2. 
 
 6 1 Ph. Ev. 466, 460, 453 , and T. E. ss. 15-16. 
 
 7 1 Ph. Ev. 465-6 ; T. E. s. 14. 
 
 8 E.g., the Articles of War. See sec. 1 of the Mutiny Act.
 
 76 a digest of [Tart LL 
 
 Article 59. 
 as to proof of such facts. 
 No fact of which the Court will take judicial notice need 
 be proved by the party alleging its existence ; but the 
 judge, if he is unacquainted with such fact, may refer to 
 any person or to any document or book of reference for 
 his satisfaction in relation thereto, or may refuse to take 
 judicial notice thereof unless and until the party calling 
 upon him to take such notice produces any such document 
 or book of reference. 1 
 
 Article 60. 
 facts admitted need not be proved. 
 No fact need be proved in any action which the parties 
 thereto or their agents agree to admit at the hearing, or 
 which they have admitted before the hearing and with 
 reference thereto, or by their pleadings. 2 In a trial for 
 felony the prisoner can make no admissions so as to dis- 
 pense with proof, though a confession may be proved as 
 against him, subject to the rules stated in articles 21-24. 3 
 
 1 T. E. (from Greenleaf) s. 20. E. g„ a judge will refer in 
 case of need to an almanac, or to a printed copy of the stat- 
 utes, or write to the Foreign Office to know whether a State 
 had been recognized. 
 
 * See Schedule to Judicature Act of 1875, Order xxxii. 
 
 • 1 Ph. Ev. 391, n. 6. In R. v. Thornhill, 8 C. & P., Lord 
 Abinger acted upon this rule in a trial for perjury.
 
 •CHAP. VIII. J THE LAW OF EVIDENCE. 1 1 
 
 CHAPTER VITL 
 
 OF ORAL EVIDENCE. 
 
 Article 61. 
 
 proof of facts by oral evidence. 
 
 All facts may be proved by oral evidence, except — 
 
 (1) The contents of such documents as must be proved 
 otherwise ; and 1 
 
 (2) Such facts as must be proved either by documentary 
 evidence or by secondary evidence of the contents of 
 -documents. 2 
 
 Article 62.* 
 oral evidence must be direct. 
 
 Oral evidence must in all cases whatever be direct ; that 
 is to say — 
 
 If it refers to a fact alleged to have been seen, it must 
 be the evidence of a witness who says he saw it ; 
 
 If it refers to a fact alleged to have been heard, it must 
 be the evidence of a witness who says he heard it ; 
 
 If it refers to a fact alleged to have been perceived by 
 any other sense or in any other manner, it must be the 
 
 * See Note XXVIII. 
 1 See chapter x. 
 1 See chapter xii.
 
 78 A DIGEST OF [PART II. 
 
 evidence of a witness who says he perceived it by that 
 sense or in that manner; 
 
 If it refers to an opinion, or to the grounds on which 
 that opinion is held, it must be the evidence of the person 
 who holds that opinion on those grounds.
 
 Chap. IX.] the law of evidence. 79 
 
 CHAPTER IX. 
 
 OF DOCUMENTARY E VI DENCE— PRIMARY AND 
 SECONDARY, AND ATTESTED DOCUMENTS. 
 
 Article 63. 
 proof of contents of documents. 
 The contents of documents may be proved either by pri- 
 mary or by secondary evidence. 
 
 Article 64. 
 primary evidence. 
 
 Primary evidence means the document itself produced 
 for the inspection of the Court; or an admission of its 
 contents proved to have been made by a person whose 
 admissions are relevant under articles 15-20. 1 
 
 Where a document is executed in several parts, each 
 part is primary evidence of the document: 2 
 
 Where a document is executed in counterpart, each, 
 counterpart being executed by one or some of the parties 
 only, each counterpart is primary evidence as against the- 
 paities executing it. 3 
 
 1 Slatterie v. Pooley , 6 M. & W. 664. 
 J Roe d. West v Davis, 7 Ea. 362. 
 * Stowe v. Quern er, L. R. 5 Ex. 155.
 
 80 A DIGEST OF [PART IL 
 
 Where a number of documents are all made by print- 
 ing, lithography, or photography, or any other process of 
 such a nature as in itself to secure uniformity in the 
 copies, each is primary evidence of the contents of the 
 rest; 1 but where they are all copies of a common original, 
 no one of them is primary evidence of the contents of the 
 original.* 
 
 Article 65. 
 secondary evidence. 
 
 Secondary evidence means — 
 
 (1) Examined copies, exemplifications, office copies, and 
 certified copies: 3 
 
 (2) Other copies made from the original and proved to 
 be correct: 
 
 (3) Counterparts of documents as against the parties 
 who did not execute them : 4 
 
 (4) Oral accounts of the contents of a document given 
 by some person who has himself seen it. 
 
 Article 66. 
 proof of documents by primary evidence. 
 The contents of documents must be proved by primary 
 evidence, except in the cases hereinafter mentioned. 
 
 1 R. v. Watson, 2 Star. 129. This case was decided long 
 before the invention of photography ; but the judgments de- 
 livered by the Court (Ellenborough, C. J., and Abbott, Bayley 
 and Holroyd, JJ.) establish the principle stated in the text. 
 
 a Noden v. Murray, 8 Camp. 224. 
 
 ' See chapter x. 
 
 4 Munn v. Godbold, 8 Bing. 292
 
 Chap. IX.] the law of evidence. 81 
 
 Article 67. 
 cases in which secondary evidence relating to 
 
 documents may be given. 
 Secondary evidence may be given of the contents of a 
 document in the following cases — 
 
 (a) "When the original is shown or appears to be in the 
 possession or power of the adverse party, 
 
 and when, after the notice mentioned in article 68, he 
 does not produce it ; * 
 
 (b) When the orignial is shown or appears to be in the 
 possession or power of a stranger not legally bound to 
 produce it, and who refuses to produce it after being 
 served with a subpoena duces tecum, or after having been 
 sworn as a witness and asked for the document and having 
 admitted that it was in court; * 
 
 (c) When the original has been destroyed or lost, and 
 proper search has been made for it; 3 
 
 (d) When the original is of such a nature as not to be 
 
 1 R. v. Watson, 2 T. R. 201. Entick v. Carrington, 19 S. T. 
 1073, is cited by Mr. Phillips as an authority for this propo- 
 sition. I do not think it supports it, but it shows the necessity 
 for the rule, as at common law no power existed to compel the 
 production of documents. 
 
 2 Miles v. OuJy, 6 C. & P. 732 ; Mats/on v. Downes, 1 A. & 
 E 81. 
 
 3 1 Ph. Ev. s. 452 ; 2 Ph. Ev. 881 ; T. E. (from Greenleaf ) 
 s. 399. The loss may be proved by an admission of the party 
 or his attorney ; R. v. Haworth, 4 C. & P. 254. 
 
 Y
 
 82 A DIGEST OF [PART II. 
 
 easily movable, 1 or i3 in a country from which it i3 not 
 permitted to be removed ; 3 
 
 (e) When the original is a public document; 8 
 
 (/) When the original is a document for the proof of 
 which special provisior is made by any Act of Parliament, 
 or any law in force for the time being ; * or 
 
 (9) When the originals consist of numerous documents 
 which cannot conveniently be examined in court, and the 
 fact to be proved is the general result of the whole collec- 
 tion: provided that that result is capable of being ascer- 
 tained by calculation. 5 
 
 In cases (a), (b), (c), and {d\ any secondary evidence of 
 the contents of the document is admissible. 6 
 
 In case (e), the contents of the document may be proved 
 according to the provisions hereinafter contained as to the 
 proof of public documents. 
 
 In case (/), the document may be proved in the manner 
 
 1 Mortimer v. McCallan, 6 -M. & W. 67, 68 (this was the case 
 Of a libel written on a wall) ; Bruce v. Nicolopulo, 11 Ex. 183 
 (the case of a placard posted on a wall). 
 
 2 Alivon v. Furnivai, 1 C. M , & R. 277, 291-2. 
 8 See chapter x. 
 
 * Ibid. 
 
 5 Roberts v. Doxen, Peake, 116; Meyer v. Se/ton, 2 Star. 
 276. The books, &c, should in such a case be ready to be 
 produced if required, yohnson v. Kershaw, 1 De G. & Smale, 
 264. 
 
 6 If a counterpart is known to exist, it is the safest course to 
 produce or account for it. Munn v. Godbold, 8 Bing. 297 ; 
 R. v. Castleton, 7 T. R. 236.
 
 Chap. IX.] the law of evidence. 83 
 
 specially provided by the law which makes provision for 
 its proof. 
 
 In case (g), evidence may be given as to the general re- 
 sult of the documents by any person who has examined 
 them, and who is skilled in the examination of such docu- 
 ments. 
 
 Questions as to the existence of facts rendering second- 
 ary evidence of the contents of documents admissible are 
 to be decided by the judge. 
 
 Article 68*. 
 
 RULES AS TO NOTICE TO PRODUCE. 
 
 Secondary evidence of the contents of the documents 
 referred to in article 67 (a), may not be given, unless the 
 party proposing to give such secondary evidence has, 
 
 if the original is in the possession or under the control 
 of the adverse party, given him such notice to produce it 
 as the Court regards as reasonably sufficient to enable it to 
 be procured; l or has, 
 
 if the original is in the possession of a stranger to the 
 action, served him with a subpoena duces tecum requiring 
 its production; 2 
 
 if a stranger so served does not produce the document, 
 and has no lawful justification for refusing or omitting to 
 do so, his omission does not entitle the party who served 
 
 * See Note XXIX. 
 1 Dwyer v. Collins, 7 Ex. 643. 
 5 Newton v. Chaplin, 10 C. B. 56-69.
 
 84 a digest of [Part II. 
 
 him with the subpcena to give secondary evidence of the 
 contents of the document. 1 
 
 Such notice is not required in order to render secondary 
 evidence admissible in any of the following cases — 
 
 (1) When the document to be proved is itself a notice; 
 
 (2) When the action is founded upon the assumption 
 that the document is in the possession or power of the 
 adverse party and requires its production ; 2 
 
 (3) When it appears or is proved that the adverse party 
 has obtained possession of the original from a person sub- 
 poenaed to produce it; 3 
 
 (4) When the adverse party or his agent has the original 
 in court.* 
 
 Article 69.* 
 proof of execution of document required by law 
 
 to be attested. 
 If a document is required by law to be attested, it may 
 not be used as evidence if there be an attesting witness 
 alive sane and subject to the process of the Court, until 
 one attesting witness at least has been called for the pur- 
 pose of proving its execution. 
 
 * See Note XXX. 
 
 1 R. v. Llanfaethly, 2 E. & B. 940. 
 
 2 How v. Hall, 14 Ea 247. In an action on a bond, no 
 notice to produce the bond is required. See other illustrations 
 in 2 Ph. Ev. 373; T. E. s. 422. 
 
 3 Leeds v. Cook, 4 Esp. 256. 
 
 4 Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer 
 v. Collins, 7 Ex. 639.
 
 Chap. IX.] the law of evidence. 85 
 
 If it is shown that no such attesting witness is alive or 
 can be found, it must be proved that the attestation of one 
 attesting witness at least is in his handwriting, and that 
 the signature of the person executing the document is in 
 the handwriting of that person. 
 
 The rule extends to cases in which — 
 
 the document has been burnt 1 or cancelled;' 
 
 the subscribing witness is blind ; 3 
 
 the person by whom the document was executed is pre- 
 pared to testify to his own execution of it ; 4 
 
 the person seeking to prove the document is prepared to 
 prove an admission of its execution by the person who 
 executed the deed, even if he is a party to the cause, 5 un- 
 less such admission be made for the purpose of, or has 
 reference to, the cause. 
 
 Article 70.* 
 cases in which attesting witness need not be 
 
 CALLED. 
 
 In the following cases, and in the case mentioned in 
 article 88, but in no others, a person seeking to prove the 
 execution of a document required by law to be attested is 
 
 * See Note XXX. 
 
 1 Gillies v. Smither, 2 Star. R. 528. 
 
 2 Breton v. Cope. Pea. R. 43 
 
 » Cronk v. Frith, 9 C. & P. 197. 
 
 4 R. v. Harnngworth, 4 M. & S. 853. 
 
 5 Call v. Dunning, 4 Ea. 53. See, too, Whyman v. Garth, 
 I Ex. 803 ; Randall v. Lynch, 2 Camp. 857.
 
 86 A DIGEST OF [PART II. 
 
 not bound to call for that purpose either the party who 
 executed the deed or any attesting witness, or to prove the 
 handwriting of any such party or attesting witness — 
 
 (1) When he is entitled to give secondary evidence of 
 the contents of the document under article 67 (a) ; " 
 
 (2) When his opponent produces it when called upon 
 and claims an interest under it in reference to the subject- 
 matter of the suit; 2 
 
 (3) When the person against whom the document is 
 sought to be proved is a public officer bound by law to 
 procure its due execution, and who has dealt with it as a 
 document duly executed. 3 
 
 Article 71. 
 proof when attesting witness denies the execution. 
 If the attesting witness denies or does not recollect the 
 
 1 Cooper v. Tamswell, 8 Tau. 450 ; Poole v. Warren, 8 A. & 
 E. 5S8. 
 
 2 Pearce v. Hooper, 8 Tau. 60 ; Rear den v. Minter, 5 M. & 
 G. 204. As to the sort of interest necessary to bring a case 
 within this exception, see Collins v. Bayntun, 1 Q. B. 118. 
 
 8 Plumer v. Brisco, 11 Q. B. 46. Bailey v. Bidzuell, 13 
 M. & W. 73, would perhaps justify a slight enlargement of the 
 exception, but the circumstances of the case were very pecu- 
 liar. Mr. Taylor (ss. 1650-1) considers it doubtful whether 
 the rule extends to instruments executed by corporations, or 
 to deeds enrolled under the provisions of any Act of Parlia« 
 ment, but his authorities hardly seem to support his view : at 
 all events, as to deed? by corporations.
 
 Chap. IX.] the law of evidence. 87 
 
 execution of the document, its execution may be proved 
 by other evidence. 1 
 
 Article 72. 
 proof of document not required by law to be 
 
 attested. 
 An attested document not required by law to be attested 
 may in all cases whatever, civil or criminal, be proved as 
 if it was unattested. 2 
 
 1 "Where an attesting witness has denied all knowledge of 
 the matter, the case stands as if there were no attesting wit- 
 ness." Talbot v. Hodson, 7 Tau. 251, 254. 
 
 s 17 & 13 Vict. c. 125, s. 26 ; 28 & 29 Vict. c. 18, ss. 1, 7.
 
 88 A DIGEST OF [PART II 
 
 CHAPTER X. 
 PROOF OF PUBLIC DOCUMENTS. 
 
 Article 73. 
 proof of public documents. 
 When a statement made in any public document, reg- 
 ister or record, judicial or otherwise, or in any pleading 01 
 deposition kept therewith, is in issue, or is relevant to the 
 issue in any proceeding, the fact that that statement is 
 contained in that document, may be proved in any of the 
 ways mentioned in this chapter. 1 
 
 Article 74. 
 production of document itself. 
 
 The contents of any public document whatever may be 
 proved by producing the document itself for inspection 
 from proper custody, and identifying it as being what it 
 professes to be. 
 
 Article 75.* 
 examined copies. 
 The contents of any public document whatever may, in 
 
 * See Note XXXI ; also Doe v. Ross, 7 M. & W. 106. 
 1 See articles 36 and 90.
 
 Chap. X.] the law of evidence. 89 
 
 all cases, be proved by an examined copy as hereinafter 
 denned. 
 
 An examined copy is a copy proved by oral evidence to 
 have been examined with the original and to correspond 
 therewith. The examination may be made either by one 
 person reading both the original and the copy, or by two 
 persons, one reading the original and the other the copy, 
 and it is not necessary (except in peerage cases 1 ), that 
 each should alternately read both. 2 
 
 Article 76. 
 general records of the realm. 
 Any record under the charge and superintendence of the 
 Master of the Rolls for the time being, may be proved by 
 a copy, certified as a true and authentic copy by the dep- 
 uty keeper of the records or one of the assistant record 
 keepers, and purporting to be sealed or stamped with the 
 seal of the Record Office. 3 
 
 Article 77.* 
 exemplifications. 
 An exemplification is a copy of a record set out either 
 under the Great Seal or under the Seal of a Court. 
 
 * See Note XXXII. 
 
 1 Slane Peerage Case, 5 C. & F. 42. 
 
 2 2 Ph. Ev 200, 231 ; T. E. ss. 1379. 1389; R. N. P. 113, 
 
 3 1 1 2 Vict. c. 94, ss. 1, 12. 13.
 
 90 a digest of [Part 11. 
 
 A copy made by an officer of the Court, bound by law 
 to mak e it. is equivalent to an exemplification, though it 
 is sometimes called an office copy. 
 
 An exemplification is equivalent to the original docu- 
 ment exemplified. 
 
 Article 78.* 
 
 A copy made by an officer of the Court, who is author- 
 ized to make it by a rule of Court, but not required by law 
 to make it, is regarded as equivalent to an exemplification 
 in the same Cause and Court, but in other Causes or 
 Courts it is not admissible unless it can be proved as an 
 examined copy. 
 
 Article 79. 
 certified copies. 
 It is provided by many statutes that various certificates, 
 official and public documents, documents and proceedings 
 of corporations, and of joint stock and other companies, 
 and certified copies of documents, by-laws, entries in 
 registers and other books, shall be receivable in evidence 
 of certain particulars in Courts of Justice, provided they 
 are respectively authenticated in the manner prescribed by 
 such statutes. 1 
 
 * See Note XXXII. 
 1 8 & 9 Vict. c. 113 • preamble. Many such statutes are 
 specified in T. E. s. 1440 and following sections. See, too, 
 R. N. P. 114-5.
 
 Oh A P. X.] THE LAW OF EVIDENCE. 91 
 
 "Whenever, by virtue of any such provision, any such 
 certificate, or certified copy as aforesaid, is receivable in 
 proof of any particular in any Court of Justice, it is ad- 
 missible as evidence if it purports to be authenticated in 
 the manner prescribed by law without proof of any stamp, 
 seal, or signature required for its authentication, or of the 
 official character of the person who appears to have 
 signed it. 1 
 
 Whenever any book or other document is of such a 
 public nature as to be admissible in evidence on its mere 
 production from the proper custody, and no statute ex- 
 ists which renders its contents provable by means of a 
 copy, any copy thereof or extract therefrom is admissible 
 in proof of its contents, 2 provided it purport to be signed 
 and certified as a true copy or extract by the officer to 
 whose custody the original is intrusted. Every such officer 
 must furnish such certified copy or extract to any person. 
 
 1 Ibid., s. 1. I believe the above to be the effect of the pro- 
 vision, but the language is greatly condensed. Some words at 
 the end of the section are regarded as unmeaning by several 
 text writers. See e. g., R. N. P. 116 ; 2 Ph. Ev. 241 ; T. E. s. 
 7, note 1. Mr. Taylor says that the concluding words of the 
 section were introduced into the Act while passing through the 
 House of Commons. He adds, they appear to have beei 
 copied from 1 & 2 Vict, c 94, s. 13 (see art. 76) " by some hon 
 orable member who did not know distinctly what he was 
 about." They certainly add nothing to the sense. 
 
 2 The words " provided it be proved to be an examined 
 copy or extract or." occur in the Act, but are here omitted 
 because their effect is given in article 75.
 
 92 A DIGEST OF [PaRT II. 
 
 applying at a reasonable time for the same, upon payment 
 of a reasonable sum for the same, not exceeding four- 
 pence for every folio of ninety words. 1 
 
 Article 80. 
 
 DOCUMENTS ADMISSIBLE THROUGHOUT THE QUEEN'S 
 DOMINIONS. 
 
 If, by any law in force for the time being, any document 
 is admissible in evidence of any particular, either in courts 
 of justice in England and "Wales or in courts of justice in 
 Ireland, without proof of the seal, or stamp, or signa- 
 ture authenticating the same, or of the judicial or official 
 character of the person appearing to have signed the 
 same, that document is also admissible in evidence to the 
 same extent and for the same purpose, without such proof 
 as aforesaid, in any court or before any judge in any part 
 of the Queen's dominions except Scotland. 2 
 
 1 14 & 15 Vict. c. 99, s. 14. 
 
 * Consolidates 14 & 15 Vict. c. 99, ss. 9, 10, 11, 19. Sec. » 
 provides that documents admissible in England shall be admis- 
 sible in Ireland ; sec. 10 is the converse of 9 ; sec. 11 enacts 
 that documents admissible in either shall be admissible in the 
 " British Colonies ; " and sec. 19 defines the British Colonies 
 as including India, the Channel Islands, the Isle of Man, and 
 "all other possessions" of the British Crown, wheresoever 
 and whatsoever. This cannot mean to include Scotland, 
 though the literal sense of the words would perhaps extend 
 to it.
 
 Chap. X.] the law of evidence. 93 
 
 Article 81. 
 queen's printers' copies. 
 The contents of Acts of Parliament, not being public 
 Acts, may be proved by copies thereof purporting to be 
 printed by the Queen's printers ; 
 The journals of either House of Parliament; and 
 Koyal proclamations, 
 may be proved by copies thereof purporting to be printed 
 by the printers to the Crown or by the printers to either 
 House of Parliament. 1 
 
 Article 82. 
 proof of irish statutes. 
 The copy of the statutes of the kingdom of Ireland, 
 enacted by the Parliament of the same prior to the union 
 of the kingdoms of Great Britain and Ireland, and printed 
 and published by the printer duly authorized by King 
 George HI. or any of his predecessors, is conclusive evi- 
 dence of the contents of such statutes. 2 
 
 Article 83. 
 proclamations, orders in council, &c 
 The contents of any proclamation, order or regulation 
 issued at any time by Her Majesty or by the Privy Coun- 
 cil, and of any proclamation, order, or regulation issued 
 at any time by or under the authority of any such depart- 
 
 * 8 & 9 Vict. c. 113, s 3. Is there any difference between 
 the Queen's printers and the printers to the Crown? 
 * 41 Geo. III. c. 90, s. 9.
 
 94 A DIGEST OF [PART II. 
 
 ment of the Government or officer as is mentioned in the 
 first column of the note l hereto, may be proved in all or 
 any of the notes hereinafter mentioned ; that is to say — 
 
 Column 1. 
 
 Name of Department or 
 Officer. 
 
 The Commissioners of the 
 Treasury. 
 
 The Commissioners for exe- 
 cuting the Office of Lord 
 High Admiral. 
 
 Secretaries of State. 
 
 Committee of Privy Council 
 for Trade. 
 
 The Poor Law Board. 
 
 The Postmaster General. 
 
 (Schedule to 81 & 32 Vict. c. 87. 
 s. 6.) 
 
 Column 2. 
 
 Names of Certifying Officers. 
 
 Any Commissioner, Secretary 
 or Assistant Secretary of 
 the Treasury. 
 
 Any of the Commissioners 
 for executing the Office of 
 Lord High Admiral or 
 either of the Secretaries to 
 the said Commissioners. 
 
 Any Secretary or Under-Sec- 
 retary of State. 
 
 Any Member of the Commit- 
 tee of the Privy Council 
 for Trade or any Secretary 
 or Assistant Secretary of 
 the said Committee. 
 
 Any Commissioner of the 
 Poor Law Board or any 
 Secretary or Assistant Sec- 
 retary of the said Board. 
 
 Any Secretary or Assistant 
 Secretary of the Post Office 
 (83 & 34 Vic. c. 79, s. 21). 
 See also 34 & 35 Vict. c. 70,
 
 Chap. X.] the law of evidence. 95' 
 
 (1) By the production of a copy of the Gazette pur- 
 porting to contain such proclamation, order, or regulation : 
 
 (2) By the production of a copy of such proclamation, 
 order, or regulation purporting to be printed by the G-ov- 
 ernment printer, or, where the question arises in a court 
 in any British colony or possession, of a copy purporting 
 to be printed under the authority of the legislature of 
 such British colony or possession : 
 
 (3) By the production, in the case of any proclamation, 
 order or regulation issued by Her Majesty or by the Privy 
 Council, of a copy or extract purporting to be certified to 
 be true by the Clerk of the Privy Council or by any one 
 of the Lords or others of the Privy Council, and, in the 
 case of any proclamation, order, or regulation issued by 
 or under the authority of any of the said departments or 
 officers, by the production of a copy or extract purporting 
 to be certified to be true by the person or persons specified 
 in the second column of the said note in connection with 
 such department or officer. 
 
 Any copy or extract made under this provision may be 
 in print or in writing, or partly in print and partly in 
 writing. 
 
 No proof is required of the handwriting or official posi- 
 tion of any person certifying, in pursuance of this pro- 
 vision, to the truth of any copy of or extract from any 
 proclamation, order, or regulation. 1 
 
 Subject to any law that may be from time to time made 
 
 1 81 & 32 Vict. c. 37, s. 2.
 
 96 A DIGEST OF [PART IL 
 
 by the legislature of any British colony or possession, this 
 provision is in force in every such colony and possession. 1 
 
 Art rex e 84. 
 
 FOREIGN AND COLONIAL ACTS OF STATE, JUDGMENTS, &C. 
 
 All proclamations, treaties, and other acts of state of 
 any foreign state, or of any British colony, and all judg- 
 ments, decrees, orders, and other judicial proceedings of 
 any court of justice in any foreign state or in any British 
 colony, and all affidavits, pleadings, and other legal docu- 
 ments filed or deposited in any such court, may be proved 
 either by examined copies, or by copies authenticated as 
 hereinafter mentioned ; that is to say — 
 
 If the document sought to be proved be a proclamation, 
 treaty, or other act of state, the authenticated copy to be 
 admissible in evidence must purport to be sealed with the 
 seal of the foreign state or British possession to which the 
 original document belongs. 
 
 And if the document sought to be proved be a judg- 
 ment, decree, order, or other judicial proceeding of any 
 foreign court in any British possession, or an affidavit, 
 pleading or other legal document filed or deposited in any 
 such court, the authenticated copy to be admissible in 
 evidence must purport either to be sealed with the seal of 
 the foreign or other court to which the original document 
 belongs, or, in the event of such court having no seal, to 
 
 i Ibid., s. 8.
 
 Chap. X.] the law of evidence. 97 
 
 be signed by the judge, or, if there be more than one 
 judge, by any one of the judges of the said court, and 
 such judge must attach to his signature a statement in 
 writing on the said copy that the court whereof he is 
 judge has no seal; 
 
 If any of the aforesaid authenticated copies purports to 
 be sealed or signed as hereinbefore mentioned, it is admis- 
 sible in evidence in every case in which the original docu- 
 ment could have been received in evidence, without any 
 proof of the seal where a seal is necessary, or of the signa- 
 ture, or of the truth of the statement attached thereto 
 where such signature and statement are necessary, or of 
 the judicial character of the person appearing to have 
 made such signature and statement. 1 
 
 Colonial laws assented to by the governors of colonies, 
 and bills reserved by the governors of such colonies for 
 the signification of Her Majesty's pleasure, and the fact 
 (as the case may be) that such law has been duly and 
 properly passed and assented to, or that such bill has been 
 duly and properly passed and presented to the governor, 
 may be proved (prima facie) by a copy certified by the 
 clerk or other proper officer of the legislative body of the 
 colony, to be a true copy of any such law or bill. Any 
 proclamation purporting to be published by authority of 
 the governor in any newspaper in the colony to which such 
 law or bill relates, and signifying Her Majesty's disallow- 
 
 14 & 15 Vict. c. 99, s. 7.
 
 98 a digest of [Part II. 
 
 ance of any such colonial law, or Her Majesty's assent to 
 any such reserved bill, is prima facie proof of such disal- 
 lowance or assent. 1 
 
 1 28 & 29 Vict. c. 68, s. 6. "Colony" in this paragraph 
 means " all her Majesty's possessions abroad" having a legis- 
 lature, "except the Channel Islands, the Isle of Man, and 
 India." " Colony " in the rest of the article includes those 
 places.
 
 Chap. XL] the law or evidence. 29 
 
 CHAPTER XL 
 
 PRESUMPTIONS AS TO DOCUMENTS. 
 
 Article 85. 
 
 presumption as to date of a document. 
 
 When any document bearing a date has been proved, it 
 is presumed to have been made on the day on which it 
 bears date, and if more documents than one bear date on 
 the same day, they are presumed to have been executed in 
 the order necessary to effect the object for which they were 
 executed, but independent proof of the correctness of the 
 date will be required, if the circumstances are such that 
 collusion as to the date might be practised, and would, if 
 practised, injure any person, or defeat the objects of any 
 law. 1 
 
 Illustrations. 
 
 (a) An instrument admitting a debt, and dated before the act 
 of bankruptcy, is produced by a bankrupt's assignees to 
 prove the petitioning creditor's debt. Further evidence of 
 the date of the transaction is required in order to guard 
 against collusion between the assignees and the bankrupt, to 
 
 1 1 Ph. Ev. 482-8; T. E. s. 137 ; Best, s. 408.
 
 100 A DIGEST OF [PART II. 
 
 the prejudice of creditors whose claims date from the inter- 
 val between the act of bankruptcy and the adjudication. 1 
 (£) In a petition for damages on the ground of adultery, letters 
 are produced between the husband and wife, dated before 
 the alleged adultery, and showing that they were then on 
 affectionate terms. Further evidence of the date is required 
 to prevent collusion to the prejudice of the person petitioned 
 against. 2 
 
 Article 86. 
 
 presumption as to stamp op a document. 
 
 When any document is not produced after due notice to 
 
 produce, and after being called for, it is presumed to have 
 
 been duly stamped, 3 unless it be shown to have remained 
 
 unstamped for some time after its execution. 4 
 
 Article 87. 
 
 presumption as to sealing and delivery of deeds. 
 
 When any document purporting to be, and stamped as, 
 
 a deed, appears or is proved to be or to have been signed 
 
 and duly attested, it is presumed to have been sealed and 
 
 1 Anderson v. Weston, 6 Bing. N. C. 802 ; Sinclair v. Bag- 
 gallay,± M. & W. 318. 
 
 2 Houlston v. Smith 2 C. & P. 24. 
 
 8 Closmadeuc v. Carrel, 18 C. B. 44. In this case the growth 
 of the rule is traced, and other cases are referred to, in the 
 judgment of Creswell, J. 
 
 4 Marine Investment Company v. Haviside, L. R. 5 E. & I. 
 App. 624
 
 Chap. XI.] the law of evidence. 101 
 
 delivered, although no impression of a seal appears 
 thereon. 1 
 
 Article 88. 
 
 presumption as to documents thirty tears old. 
 
 Where any document purporting or proved to be thirty 
 years old is produced from any custody which the judge in 
 the particular case considers proper, it is presumed that 
 the signature and every other part of such document 
 which purports to be in the handwriting of any particular 
 person is in that person's handwriting, and, in the case of 
 a document executed or attested, that it was duly executed 
 and attested by the persons by whom it purports to be 
 executed and attested; and the attestation or execution 
 need not be proved, even if the attesting witness is alive 
 and in court. 
 
 Documents are said to be in proper custody if they are 
 in the place in which, and under the care of the person 
 with whom, they would naturally be ; but no custody 13 
 improper if it is proved to have had a legitimate origin, or 
 if the circumstances of the particular case are such as to 
 render such an origin probable. 2 
 
 Article 89. 
 presumption as to alterations. 
 No person producing any document which, upon its face> 
 
 1 Halls. Bainb ridge, 12 Q. B. 699—710. Re Sandilands, 
 L. R 6 C P. 411. 
 
 2 2 Ph. Ev. 245-8 ; Starkie, 521-6 ; T. E. s. 74. and ss. 593- 
 601 ; Best, s. 220.
 
 102 A DIGEST OF [PART IT. 
 
 appears to have been altered in a material part, can claim 
 under it flie enforcement of any right created by it, unless 
 the alteration was made before the completion of the 
 document, or with the consent of the party to be charged 
 under it or his representative in interest. 
 
 This rule extends to cases in which the alteration was 
 made by a stranger whilst the document was in the cus- 
 tody of the person producing it, but without his knowl- 
 edge or leave. 1 
 
 Alterations and interlineations appearing on the face of 
 a deed are, in the absence of all evidence relating to them, 
 presumed to have been made before the deed was com- 
 pleted. 2 
 
 Alterations and interlineations appearing on the face of 
 a will are, in the absence of all evidence relating to them, 
 presumed to have been made after the execution of the 
 will. 8 
 
 There is no presumption as to the time when alterations 
 and interlineations, appearing on the face of writings not 
 under seal, were made* except that it is presumed that 
 they were so made that the making would not constitute 
 an offence. 5 
 
 1 Pigot's Case, 11 Rep. 47 ; Davidson v. Cooper, 11 M. & W. 
 778; 13 M. & W. 343; Aldous v. Cornweil, L R. 3 Q. B. 573. 
 This qualifies one of the resolutions in Pigot's Case. The 
 judgment reviews a great number of authorities on the subject. 
 
 8 Doe v. Catomore, 16 Q. B. 745. 
 
 3 Simmons v. Rudall, 1 Sim. (N. S.) 136. 
 
 * Knight v. Clements, 8 A. & E. 215. 
 
 6 R. v. Gordon, Dearsley & Pearce. 592.
 
 Chap. XI.] the law of evidence 103 
 
 An alteration is said to be material when, if it had been 
 made with the consent of the party charged, it would 
 have affected his interest or varied his obligations in any 
 way whatever. 
 
 An alteration which in no way affects the rights of the 
 parties or the legal effect of the instrument, is immaterial. 1 
 
 1 This appears to be the result of many cases referred to in 
 T. E. ss. 1619-20; see also the judgments in Davidson y. 
 Cooper and Aldous v. Cornwell referred to above.
 
 104 a digest oy [Part IT. 
 
 CHAPTER XIL 
 
 OF THE MODTFICA TION AND TNTERPRETA TION 
 
 OF DOCUMENTARY EVIDENCE BY ORAL 
 
 EVIDENCE. 
 
 Article 90.* 
 evidence of terms of contracts, grants, and other 
 dispositions of property reduced to a documen- 
 tary form. 
 "When any judgment of any Court or any other judicial 
 or official proceeding, or any contract or grant, or any 
 other disposition of property, has been reduced to the 
 form of a document or series of documents, no evidence 
 may be given of such judgment or proceeding, or of the 
 terms of such contract, grant, or other disposition of 
 property, except the document itself, or secondary evi- 
 dence of its contents in cases in which secondary evidence 
 is admissible under the provisions hereinbefore contained. 1 
 Nor may the contents of any such document be contra- 
 dicted, altered, added to, or varied by oral evidence. 
 
 * See Note XXXIII. 
 1 Illustrations (a) and (3).
 
 Chap. XII.] the law of evidence. 105 
 
 Provided that any of the following matters may be 
 proved — 
 
 (1) Fraud, intimidation, illegality, want of due execu- 
 tion, want of capacity in any contracting party, the fact 
 that it is wrongly dated, 1 want or failure of consideration, 
 or mistake in fact or law, or any other matter which, if 
 proved, would produce any effect upon the validity of 
 any document, or of any part of it, or which would entitle 
 any person to any judgment, decree, or order relating 
 thereto. 2 
 
 (21 The existence of any separate oral agreement, as to 
 anv matter on which a document is silent, and which is 
 not inconsistent with its terms, if from the circumstances 
 of the case the Court infers that the parties did not intend 
 the document to be a complete and final statement of the 
 whole of the transaction between them. 3 
 
 (3) The existence of any separate oral agreement, con- 
 stituting a condition precedent to the attaching of any 
 obligation under any such contract, grant or disposition of 
 property. 4 
 
 (4) The existence of any distinct subsequent oral agree- 
 ment to rescind or modify any such contract, grant or 
 
 1 Reffells. Reffell, L. R. 1 P. & D. 139. Mr. Starkie ex 
 tends this to mistakes in some other formal particulars. 8 Star. 
 Ev. YST-3. 
 
 2 Illustration (c). 
 
 8 Illustrations (</) and (e). 
 * Illustrations (/) and (g).
 
 106 A DIGEST OF [PART II. 
 
 disposition of property, provided that such agreement is 
 not invalid under the Statute of Frauds, or otherwise. 1 
 
 (5) Any usage or custom by which incidents not ex- 
 pressly mentioned in any contract are annexed to contracts 
 of that description; unless the annexing of such incident 
 to such contract would be repugnant to or inconsistent 
 with the express terms of the contract. 2 
 
 Oral evidence of a transaction is not excluded by the 
 fact that a documentary memorandum of it was made, if 
 such memorandum was not intended to have legal effect 
 as a contract, or other disposition of property. 3 
 
 Oral evidence of the existence of a legal relation is not 
 excluded by the fact that it has been created by a docu- 
 ment, when the fact to be proved is the existence of the 
 relationship itself, and not the terms on which it was es- 
 tablished or is carried on. 4 
 
 The fact that a person holds a public office need not be 
 proved by the production of his written or sealed appoint- 
 ment thereto, if he is shown to have acted in it. 5 
 
 Illustrations, 
 (a) A policy of insurance is effected on goods " in ships from 
 Surinam to London." The goods are shipped in a particu- 
 lar ship, which is lost. 
 
 1 Illustration (A). 
 
 2 Wigglesworth v. Dallison, and note thereto, S. L. C. 
 598-628. 
 
 3 Illustration («). 
 
 4 Illustration (k). 
 
 5 See authorities collected in 1 Ph. Ev 449-50 ; T. E. s. 139.
 
 Chap. XTT.] the latv of evidence. 107 
 
 The fact that that particular ship was orally excepted from the 
 policy cannot be proved. 1 
 
 (b) An estate called Gotton Farm is conveyed by a deed which 
 describes it as consisting of the particulars described in the 
 first division of a schedule and delineated in a plan on the 
 margin of the schedule. 
 
 Evidence cannot be given to show that a close not mentioned 
 in the schedule or delineated in the plan was always treated 
 as part of Gotton Farm, and was intended to be conveyed 
 by the deed.* 
 
 (c) A institutes a suit against B for the specific performance of 
 a contract, and also prays that the contract may be reformed 
 as to one of its provisions, as that provision was inserted in 
 it by mistake. 
 
 A may prove that such a mistake was made as would entitle 
 him to have the contract reformed s 
 
 (d) A lets land to B, and they agree that a lease shall be given 
 by A to B. 
 
 Before the lease is given, B tells A that he will not sign it un- 
 less A promises to destroy the rabbits. A does promise. 
 The '.ease is afterwards granted, and reserves sporting rights 
 to A, but does not mention the destruction of the rabbits. 
 B may prove A's verbal statement as to the rabbits.* 
 
 (<?) A & B agree verbally that B shall take up an acceptance 
 of A's, and that thereupon A and B shall make a written 
 agreement for the sale of certain furniture by A to B. B 
 does not take up the acceptance. A may prove the verbal 
 agreement that he should do so. 5 
 
 1 Weston v. Eames. 1 Tau. 115. 
 
 * Barton v. Dawes, 10 C. B. 261-285. 
 
 3 Story's Equity Jurisprudence, chap. v. ss. 153-162. 
 
 * Morgan v. Griffiths, L. R. 6 Ex. 70 ; and see Angell v. 
 Duke. L. R. 10 Q. B. 174. 
 
 6 Lindley v. Lacey. 17 C. B. (N. S.) 578.
 
 108 A DIGEST OF [PART II. 
 
 (/) A & B enter into a written agreement for the sale of an 
 interest in a patent, and at the same time agree verbally 
 that the agreement shall not come into force unless C ap- 
 proves of it. C does not approve. The party interested 
 may show this. 1 
 
 (g ) A, a farmer, agrees in writing to transfer to B, another 
 farmer, a farm which A holds of C. It is verbally agreed 
 that the agreement is to be conditional on C's consent. B 
 sues A for not transferring the farm. A may prove the con- 
 dition as to Cs consent and the fact that he does not con- 
 sent. 2 
 
 (h) A agrees in writing to sell B 14 lots of freehold land and 
 make a good title to each of them. Afterwards B consents 
 to take one lot though the title is bad. Apart from the 
 Statute of Frauds this agreement might be proved. 8 
 
 (/') A sells B a horse, and verbally warrants him quiet in har- 
 ness. A also gives B a paper in these words: " Bought of 
 A a horse for 11. 2s. 6</." 
 
 B may prove the verbal warranty.* 
 
 (/') The question is, whether A gained a settlement by occu- 
 pying and paying rent for a tenement. The facts of occu- 
 pation and payment of rent may be proved by oral evidence, 
 although the contract is in writing. 5 
 
 Article 91.* 
 what evidence may be given for the interpretation 
 of documents. 
 (1) Putting a construction upon a document means as- 
 
 * See Note XXXIV. 
 » Pym v. Campbell, 6 E & B. 370 
 2 Wallis v. Littell, 11 C. B. (N. S.) 359. 
 » Goss v. Lord Nugent, 5 B. & Ad. 58, 65. 
 
 * Allen v. Prink 4 M. & W 140. 
 
 * R. v. Hull, 7 B. & C. 611.
 
 Chap. XII.] the law of evidence. 109 
 
 certaining the meaning of the signs or words made upon 
 it, and their relation to facts. 1 
 
 (2) In order to ascertain the meaning of the signs and 
 words made upon a document, oral evidence may be given 
 of the meaning of illegible or not commonly intelligible 
 characters, of foreign, obsolete, technical, local, and prov- 
 incial expressions, of abbreviations, and of common words 
 which, from the context, appear to have been used in a 
 peculiar sense; but evidence may not be given to show 
 that common words, the meaning of which is plain, and 
 which do not appear from the context to have been used 
 in a peculiar sense, were in fact so used. 2 
 
 (3) If the words of a document are so defective or am- 
 biguous as to be unmeaning, no evidence can be given to 
 show what the author of the document intended to say. 3 
 
 (4) In order to ascertain the relation of the words of a 
 document to facts, every fact may be proved to which it 
 refers, or may probably have been intended to refer, 4 or 
 which identifies any person or thing mentioned in it. 5 
 Such facts are hereinafter called surrounding circum- 
 -stances. 
 
 (5) If the words of a document have a proper legal 
 meaning, and also a less proper meaning, they must be 
 
 1 Illustrations (a) (6) (c). 
 
 2 Illustration (d) 
 
 3 Illustrations (<r) and (/). 
 * See all the Illustrations. 
 6 Illustration (g).
 
 110 A DIGEST OF [PART II. 
 
 deemed to have their proper legal meaning, unless such a 
 construction would be unmeaning in reference to sur- 
 rounding circumstances, in which case they may be inter- 
 preted according to their less proper meaning. 1 
 
 (6) If the document has one distinct meaning in refer- 
 ence to surrounding circumstances, it must be construed 
 accordingly, and evidence to show that the author intended 
 to express some other meaning is not admissible. 2 
 
 (7) If the document applies in part but not with accu- 
 racy to surrounding circumstances, the Court may draw 
 inferences from the surrounding circumstances as to the 
 meaning of the document, whether there is more than 
 one or only one thing or person to whom or to which the 
 inaccurate description may apply. In such cases no evi- 
 dence can be given of statements made by the author of 
 the document as to his intentions in reference to the mat- 
 ter to which the document relates, though evidence may 
 be given as to his circumstances, and as to his habitual use 
 of language or names for particular persons or things. 3 
 
 (8) If the language of the document, though plain in 
 itself, applies equally well to more objects than one, evi- 
 dence may be given both of surrounding circumstances 
 and of statements made by any party to the document as 
 to his intentions in reference to the matter to which the 
 document relates. 4 
 
 1 Illustration (A). 
 
 * Illustration (*'). 
 
 • Illustrations (£) (/) {m\ 
 4 Illustration (»).
 
 Chap. XII.] the' law of evidence. Ill 
 
 (9) If the document is of such a nature that the Court 
 will presume that it was executed with any other than its 
 apparent intention, evidence may be given to show that it 
 was in fact executed with its apparent intention. 1 
 Illustrations. 
 
 (a) A lease contains a covenant as to " ten thousand " rab- 
 bits. Oral evidence to show that a thousand meant, in rela- 
 tion to rabbits, 1200, is admissible. 2 
 
 (b) A sells to B " 1170 bales of Gambier." Oral evidence is 
 admissible to show that a " bale " of gambier is a package 
 compressed, and weighing 2 cwt. 8 
 
 (c) A, a sculptor, leaves to B " all the marble in the yard, the 
 tools in the shop, bankers, mod tools for carving." Evidence 
 to show whether "mod" meant models, moulds, or model- 
 ing-tools, and to show what bankers are, may be given. 
 
 (d) Evidence may not be given to show that the word "boats," 
 in a policy of insurance, means " boats not slung on the out- 
 side of the ship on the quarter." 4 
 
 (e) A leaves an estate to K, L, M, etc., by a will dated before 
 1838. Eight years afterwards A declares that by these let- 
 ters he meant particular persons. Evidence of this declara- 
 tion is not admissible. Proof that A was in the habit of 
 calling a particular person M would have been admissible. 6 ' 
 
 (/) A leaves a legacy to . Evidence to show how the 
 
 blank was intended to be filled is not admissible. 6 
 
 (g) Property was conveyed in trust in 1704 for the support of 
 " Godly preachers of Christ's holy Gospel." Evidence may 
 
 1 Illustration (o). 
 
 2 Smith v. Wilson. 8 B. & Ad. 728. 
 
 8 Gorrissen v. Perrin. 2 C. B. (N. S.) 681. 
 
 * Blackett v. Royal Exchange, C. 3 ; 2 C. & J. 244. 
 
 6 Clayton v. Lord Nugent. 13 M. & W. 200; see 205-6. 
 
 6 Baylis v. A. %, 2 Atk. 239.
 
 112 A DIGEST OF [PART II. 
 
 be given to show what class of ministers were at the time 
 known by that name. 1 
 
 (4) A leaves property to his " children." If he has both legit- 
 imate and illegitimate children the whole of the property 
 will go to the legitimate children. If he has only illegiti- 
 mate children, the property may go to them * 
 
 (*) A testator leaves all his estate in the county of Limerick 
 and city of Limerick to A. He had no estates in the county 
 of Limerick, but he had estates in the county of Clare, of 
 which the will did not dispose. Evidence can not be given 
 to show that the words " of Clare " had been erased from 
 the draft by mistake, and so omitted from the will as exe- 
 cuted. 8 
 
 (_/) A leaves a legacy to " Mrs. and Miss Bowden." No 
 such persons were living at the time when the legacy was 
 made, but Mrs. Washburne, whose maiden name had been 
 Bowden, was living, and had a daughter, and the testatrix 
 used to call them Bowden. Evidence of these facts was 
 admitted.* 
 
 (k) A devises land to John Hiscocks, the eldest son of John 
 Hiscocks. John Hiscocks had two sons, Simon, his eldest, 
 and John, his second son, who, however, was the eldest son 
 by a second marriage. The circumstances of the family, 
 but not the testator's declarations of intention, may be 
 proved in order to show which of the two was intended. 6 
 
 (/) A devises property to Elizabeth, the natural daughter of B. 
 B has a natural son John, and a legitimate daughter Eliza- 
 beth. The Court may infer from the circumstances under 
 which the natural child was born, and from the testator's 
 
 ' Shore v. Wilson, 9 C. & F. 365, 565-6. 
 
 2 Wig. Ext. Ev., p. 18 & 19, and note of cases. 
 
 3 Miller v. Travers, 8 Bing. 244. 
 * Lee v. Pain, 4 Hare, 251-3, 
 
 6 Doe v. Hiscocks, 5 M. & W. 368.
 
 Chap. JS.IL] the law of evidence. 113 
 
 relationship to the putative father, that he meant to provide 
 for John. 1 
 
 (m) A leaves a legacy to his niece, Elizabeth Stringer. At th 
 date of the will he had no such niece, but he had a great- 
 great-niece named Elizabeth Jane Stringer. The Court may 
 infer from these circumstances that Elizabeth Jane Stringer 
 was intended ; but they may not refer to instructions given 
 by the testator to his solicitor, showing that the legacy was 
 me int for a niece, Elizabeth Stringer, who had died before 
 the date of the will, and that it was put into the will by a 
 mistake on the part of the solicitor. 3 
 
 («) A devises one house to George Gord, the son of George 
 Gord, another to George Gord, the son of John Gord, and a 
 third to George Gord, the son of Gord. Evidence both of 
 circumstances and of the testator's statements of intention 
 may be given to show which of the two George Gords he 
 
 meant 
 
 (0) A leaves two legacies of the same amount to B, assigning 
 the same motive for each legacy, one being given in his will, 
 the other in a codicil. The Court presumes that they are 
 not meant to be cumulative, but the legatee may show, 
 either by proof of surrounding circumstances, or of declara- 
 tions by the testator, that they were.* 
 
 1 Ryallv. Hannam, 10 Beav. 536. 
 
 * Stringer v. Gardiner, 27 Beav. 35 ; 4 De G. & J. 468. 
 ■ Doe v. Needs, 2 M. & W. 129. 
 
 * Per Leach, V. C, in Hursts. Leach, 5 Madd. 351, 360-1. 
 The rule in this case was vindicated, and a number of other 
 cases both before and after it were elaborately considered, by 
 Lord St. Leonards, when Chancellor of Ireland, in Hall v. 
 Hill, 1 Dm. and War. 94, 111-133.
 
 114 a digest of [part ii. 
 
 Article 92* 
 cases to which articles 90 and 91 do not apply. 
 Articles 90 and 91 apply only to parties to documents, 
 and to their representatives in interest, and only to cases 
 in which some civil right or civil liability dependent upon 
 the terms of a document is in question. Any person 
 other than a party to a document or his representative in 
 interest may, notwithstanding the existence of any docu- 
 ment, prove any fact which he is otherwise entitled to 
 prove [Submitted — and any party to any document, or 
 any representive in interest of any such party, may prove 
 any such fact for any purpose other than that of varying 
 or altering any right or liability depending upon the 
 terms of the document]. 
 
 Illustration. 
 
 The question is, whether A, a pauper, is settled in the parish 
 of Cheadle. A deed of conveyance to which A was a party 
 is produced, purporting to convey land to A for a valuable 
 consideration. The parish appealing against the order was 
 allowed to call A as a witness to prove that no consideration 
 passed. 1 
 
 * See Note XXXV. 
 « R v. Cheadle, 8 B. & Ad. 838.
 
 CHAP. XIII.] THE LAW OF EVIDENCE. 115 
 
 PART III.— PRODUCTION AND EFFECT 
 OF EVIDENCE. 
 
 CHAPTER ML* 
 
 BURDEN OF PROOF. 
 
 Article 93.f 
 
 HE WHO AFFIRMS MUST PROVE. 
 
 Whoever desires any Court to give judgment as to any 
 legal right or liability dependent on the existence or non- 
 existence of facts which he asserts or denies to exist, must 
 prove that those facts do or do not exist. 1 
 
 Akticle 94. f 
 
 PRESUMPTION OF INNOCENCE. 
 
 If the commission of a crime is directly in issue in any 
 action, criminal or civil, it must be proved beyond reason- 
 able doubt. 
 
 The burden of proving that any person has been guilty 
 of a crime or wrongful act is on the person who asserts it, 
 whether the commission of such act is or is not directly in 
 issue in the action. 
 
 * See Note XXXVI. f -See Note XXXVII. 
 
 1 1 Ph. Ev. 552 ; T. E. (from Greenleaf ), s. 887 ; Best, ss. 
 265-6 ; Starkie, 585-6.
 
 118 A DIGEST OF [PART III. 
 
 Illustrations. 
 
 (a) A sues B on a policy of fire insurance. B pleads that A 
 burnt down the house insured. B must prove his plea as 
 fully as if A were being prosecuted for arson. 1 
 
 (&) A sues B for damage done to A's ship by inflammable mat- 
 ter loaded thereon by B without notice to A's captain. A 
 must prove the absence of notice. 3 
 
 (c) The question in 1819 is, whether A is settled in the parish 
 of a man to whom she was married in 1813. It is proved 
 that in 1S12 she was married to another person, who enlisted 
 soon afterwards, went abroad on service, and had not been 
 heard of afterwards. The burden of proving that the first 
 husband was alive at the time of the second marriage is on 
 the person who asserts it. 8 
 
 Article 95. 
 on whom the general burden of proof lies. 
 The burden of proof in any action lies, when the action 
 begins, on that party against whom the judgment of the 
 Court would be given, if no evidence at all were produced 
 on either side, regard being had to any presumption which 
 may appear upon the pleadings. As the action proceeds, 
 the burden of proof may be shifted from the party on 
 whom it rested at first, by his proving facts which raise a 
 presumption in his favor.* 
 
 1 Thurtellw. Beaumont, 1 Bing. 339. 
 » Williams v. East India Co., 3 East, 102, 198-9. 
 » R. v. Twyning, 2 B. & A. 886. 
 
 * 1 Ph. Ev. 552; T. E. ss. 838-9; Starkie, 586-7 & 748; 
 Best. s. 268.
 
 Chap. XTTL] .the law of evidence. 117 
 
 Illustrations. 
 
 (a) It appears upon the pleadings that A is indorsee of a bill 
 of exchange. The presumption is that the indorsement was 
 for value, and the party interested in denying this must prove 
 it.» 
 
 (<$) A, a married woman, is accused of theft and pleads not 
 guilty. The burden of proof is on the prosecution. She is 
 shown to have been in possession of the stolen goods soon 
 after the theft. The burden of proof is shifted to A. She 
 shows that she stole them in the presence of her husband. 
 The burden of proving that she was not coerced by him is 
 shifted on to the prosecutor. 8 
 
 (c) A is ind.jted for bigamy. On proof by the prosecution of 
 the first marriage, A proves that at the time he was a minor. 
 This throws on the prosecution the burden of proving the 
 consent of A's parents. 8 
 
 (d) A deed of gift is shown to have been made by a client to 
 his solicitor. The burden of proving that the transaction 
 was in good faith is on the solicitor.* 
 
 (e) It is shown that a hedge stands on A's land. The burden 
 of proving that the ditch adjacent to it is not A's also is on 
 the person who denies it that the ditch belongs to A. 5 
 
 (/) A proves that he received the rent of land. The presump- 
 tion is, that he is owner in fee simple, and the burden of 
 proof is on the person who denies it. 6 
 
 (g) A finds a jewel mounted in a socket, and gives it to B to 
 look at. B keeps it, and refuses ta produce it on notice, but 
 
 1 Mills v. Barber, 1 M. & W. 425. 
 
 2 1 Russ. Cri. 33; and 2, 337. 
 
 3 R. v. Butler, 1 R. & R. 61. 
 
 * 1 Story Eq. Juris., s. 310, n. 1. Quoting Hunter v. Atkins, 
 M. & K. 113. 
 
 5 Guy v. West, Selw. N. P. 1297. 
 
 6 Doe v. Coulthred, 7 A. & E. 235"
 
 118 A DIGEST OF [PART III. 
 
 returns the socket. The burden of proving that it is not as 
 valuable a stone of the kind as would go into the socket is 
 on B. 1 
 
 (A) A sues B on a policy of insurance, and shows that the ves- 
 sel insured went to sea, and that after a reasonable time no 
 tidings of her have been received, but that her loss had been 
 rumored. The burden of proving that she has not foundered 
 
 . is on B. 2 
 
 Article 96. 
 burden of proof as to particular fact. 
 The burden of proof as to any particular fact lies on 
 that person who wishes the Court to believe in its exist- 
 ence, unless it is provided by any law that the burden of 
 proving that fact shall lie on any particular person ; 3 but 
 the burden may in the course of a case be shifted from 
 one side to the other, and in considering the amount of 
 evidence necessary to shift the burden of proof the Court 
 has regard to the opportunities of knowledge with respect 
 to the fact to be proved which may be possessed by the 
 parties respectively. 
 
 Illustrations. 
 
 (a) A prosecutes B for theft, and wishes the Court to believe 
 that B admitted the theft to C. A must prove the admis- 
 sion. 
 
 B wishes the Court to believe that, at the time in question, he 
 was elsewhere. He must prove it. 
 
 1 Armoury v. Delamitie, 1 S. L. C. 35V. 
 * Koster v. Reed, 6 B. & C. 19. 
 ' For instances of such provisions see T. E. ss. 4 856.
 
 Chap. XII I. J the law of evidence. 119 
 
 {&) A, a shipowner, sues B, an underwriter, on a policy of in- 
 surance <">ti a ship. B alleges that A knew of and concealed 
 frosa B material facts. B must give enough evidence to 
 thr ,w upon A the burden of disproving his knowledge ; but 
 slight evidence will suffice for this purpose. 1 
 
 (c) In actions for penalties under the old game laws, though 
 the plaintiff had to aver that the defendant was net duly 
 qualified, and was obliged to give general evidence that he 
 was not, the burden of proving any definite qualification 
 was on the defendant. 2 
 
 Article 97. 
 
 burden op proving fact to be proved to make 
 
 evidence admissible. 
 
 The burden of proving any fact, necessary to be proved 
 
 in order to enable any person to give evidence of any other 
 
 fact, is on the person who wishes to give such evidence. 
 
 Illustrations, 
 
 (a) A wishes to prove a dying declaration by B. 
 
 A must prove B's death, and the fact that he had given up all 
 hope of life when he made the statement. 
 
 (b) A wishes to prove, by secondary evidence, the contents of 
 a lost document. 
 
 A must prove that the document has been lost. 
 
 1 Elkin v. Jdnson, 13 M. & W. 655. See, especially, the 
 judgment of Alderson, B., 663-6. 
 
 8 1 Ph. Ev. 556, and cases there quoted. The illustration is 
 founded more particularly on R. v. yarvis, in a note to R. v. 
 Stone, 1 Ea. 639, where Lord Mansfield's language appears to 
 imply what is stated above.
 
 120 A DIGEST OF [PART HI 
 
 CHAPTER XTV. 
 ON PRESUMPTIONS AND ESTOPPELS* 
 
 Article 98. 
 presumption of legitimacy. 
 The fact that any person was born during the continuance 
 of a valid marriage between his mother and any man, or 
 within such a time after the dissolution thereof and before 
 the celebration of another valid marriage, that his moth- 
 er's husband could have been his father, is conclusive proof 
 that he is the legitimate child of his mother's husband, 
 unless it can be shown 
 
 either that his mother and her husband had no access to 
 each other at any time when he could have been begotten, 
 regard being had both to the date of the birth and to the 
 physical condition of the husband, 
 
 or that the circumstances of their access (if any) were 
 such as to render it highly improbable that sexual inter- 
 course took place between them when it occurred. 
 
 Neither the mother nor the husband is a competent 
 witness as to the fact of their having or not having had 
 
 * See Note XXXVI
 
 Chap. XIV.] the law of evidence. 121 
 
 sexual intercourse with each other, nor are any declara- 
 tions by them upon that subject regarded as relevant facts- 
 when the legitimacy of the woman's child is in question, 
 whether the mother or her husband can be called as a 
 witness or not, provided that, in applications for affiliation 
 orders, when proof has been given of the non-access of 
 the husband at any time when his wife's child could have 
 been begotten, the wife may give evidence as to the per- 
 son by whom it was begotten. 1 
 
 Article 99. 
 presumption of death from seven tears' absence. 
 A person shown not to have been heard of for seven 
 years by those (if any) who, if he had been alive, would 
 naturally have heard of him, is presumed to be dead, un- 
 less the circumstances of the case are such as to account 
 for his not being heard of without assuming his death ; but 
 there is no presumption as to the time when he died, and 
 the burden of proving his death at any particular time is 
 upon the person who asserts it. 2 
 
 1 R. v. Luffe, 8 Ea. 207 ; Cope v. Cope, 1 Mo. & Ro. 272-4 ; 
 Legge v. Edmonds 25 L. J. Eq. 125, see p. 135 ; R. v. Mans- 
 field, 1 Q. B. 444 ; Morris v. Davies, 3 C. & P. 215. 
 
 2 McMahon v. McElroy, 5 Ir. Rep. Eq. 1; Hopewell v. D 
 Pinna, 2 Camp. 113; Nepean v. Doe, 2 S. L. C. 562, 681 ; N» 
 pean v. Knight, 2 M. & W. 894, 912 ; R. v Lumley, L. R. 1 
 C. C. R. 196 ; and see the caution of Lord Denman in R. v. 
 Harborne, 2 A. & E. 544 All the cases are collected and 
 considered in In re Phene's Trust, L. R. 5 Ch. App. 139.
 
 122 a digest or [Part III. 
 
 There is no presumption as to the age at which a person 
 died who is shown to have been alive at a given time, or 
 as to the order in which two or more persons died who are 
 shown to have died in the same accident, shipwreck, or 
 battle. 1 
 
 Article 100. 
 presumption of lost graxt. 
 
 When it has been shown that any person has, for a long 
 period of time, exercised any proprietary right which 
 might have had a lawful origin by grant or license from 
 the Crown or from a private person, and the exercise 
 of which might and naturally would have been prevented 
 by the persons interested if it had not had a lawful origin, 
 there is a presumption that such right had a lawful origin 
 and that it was created by a proper instrument which has 
 
 been lost. 
 
 Illustrations. 
 
 (a) The question is, whether B is entitled to recover from A 
 the possession of lands which A's father and mother succes- 
 sively occupied from 1754 to 1792 or 1793, and which B had 
 occupied (without title) from 1793 to 1809. The lands 
 formed originally an encroachment on the Forest of Dean. 
 
 The undisturbed occupation for thirty-nine years raises a pre- 
 sumption of a grant from the Crown to A's father.* 
 
 1 Wing v. Angrave, 8 H. L. 183, 19S ; and see authorities 
 in last note. 
 
 2 Goodtitle v. Baldwin, 11 Ea. 488. The presumption was 
 rebutted in this case by an express provision of 20 Ch. II, c. 
 8 avoiding grants of the Forest of Dean. See also Doe d. 
 Devine v. Wilson, 10 Moo. P. C. 502.
 
 "JlIAP. XIV.J THE LAW OF EVIDENCE. 123 
 
 (b) A fishing mill-dam was erected more than 110 years before 
 1S61 in the River Derwent, in Cumberland (not being navi- 
 gable at that place), and was used more than sixty years 
 before 1861 in the manner in which it was used in 1861. 
 This raises a presumption, that all the upper proprietors, 
 whose rights were injuriously affected by the dam, had 
 granted a right to erect it. 1 
 
 (c) A builds a windmill near B's land in 1S29, and enjoys a 
 free current of air to it over B's land as of right, and with- 
 out interruption till 1860. This enjoyment raises no- pre- 
 sumption of a grant by B of a right to such a current of air, 
 as it would not be natural for B to interrupt it. 3 
 
 (d) No length of enjoym-nt (by means of a deep well) of 
 water, percolating through underground undefined passages, 
 raises a presumption of a grant, from the owners of the 
 ground under which the water so percolates, of a right to 
 the water. 8 
 
 Article 101* 
 presumption of regularity and of deeds to 
 
 complete title. 
 
 When any judicial or official act is shown to have been 
 done in a manner substantially regular, it is presumed 
 that formal requisites for its validity were complied with. 
 
 "When a person in possession of any property is shown 
 to be entitled to the beneficial ownership thereof, there is 
 
 * See Note XXXVIII. 
 1 Leccnfield v. Lonsdale, L. R. 5 C. P. 657. 
 » Webb v. Bird, 13 C. B. (N. S.) S41. 
 * Chasmore v. Richards, 7 H. of L. C. 349.
 
 124 A DIGEST OF [PART III. 
 
 a presumption that every instrument has been executed 
 which it was the legal duty of his trustees to execute in 
 order to perfect his title. 1 
 
 Article 102.* 
 estoppel by conduct. 
 
 When one person by anything which he does or says, 
 or abstains from doing or saying, intentionally causes or 
 permits another person to believe a thing to be true, and 
 to act upon such belief otherwise than but for that belief 
 he would have acted, neither the person first mentioned 
 nor his representative in interest is allowed, in any suit or 
 proceeding between himself and such person or his repre- 
 sentative in interest, to deny the truth of that thing. 
 
 When any person, under a legal duty to any other per- 
 son to conduct himself with reasonable caution in the 
 transaction of any business, neglects that duty, and when 
 the person to whom the duty is owing alters his position 
 for the worse because he is misled as to the conduct of the 
 negligent person by a fraud, of which such neglect is in 
 the natural course of things the proximate cause, the neg- 
 ligent person is not permitted to deny that he acted in the 
 manner in which the other person was led by such fraud 
 to believe him to act. 
 
 " See Note XXXIX. 
 1 Doe d. Hammond v. Cooke, 6 Bing. 174, 179.
 
 Chap. XTV.] the law of evidence. 125 
 
 Illustrations. 
 
 (a) A, the owner of machinery in B's possession, which is 
 taken in execution by C, abstains from claiming it for 
 some months, and converses with C's attorney without refer- 
 ring to his claim, and by these means impresses C with the 
 belief that the machinery is B's. C sells the machinery. A 
 is estopped from denying that it is B's 1 
 
 {<$) A, a retiring partner of B, gives no notice to the customers 
 of the firm that he is no longer B's partner. In an action 
 by a customer, he cannot deny that he is B's partner. 8 
 
 (c) A sues B for a wrongful imprisonment. The imprison- 
 ment was wrongful if B had a certain original warrant; 
 rightful if he had only a copy. B had in fact a copy. He 
 led A to believe that he had the original, though not with 
 the intention that A should act otherwise than he actually 
 did, nor did A so act. B may show that he had only a copy 
 and not the original s 
 
 (d) A sells eighty quarters of barley to B, but does not specif- 
 ically appropriate to B any quarters. B sells sixty of the 
 eighty quarters to C. C informs A, who assents to the 
 transfer. C, being satisfied with this, says nothing further to 
 B as to delivery. B becomes bankrupt. A cannot, in an 
 action by C to recover the barley, deny that he holds for C 
 on the ground that, for want of specific appropriation, no 
 property passed to B * 
 
 (<f) A signs blank checks and gives them to his wife to fill up 
 as she wants money. A's wife fills up a check for _£50 2s. so 
 carelessly that room is left for the insertion of figures before 
 the 50, and for the insertion of words before the " fifty. "' 
 
 1 Pickard v. Sears. 6A.&E. 469; 474. 
 
 * (Per Pirke, B.) Freeman v. Cooke, 2 Ex. 661. 
 
 * Howard v. Hudson, 2 E. A B. 1. 
 
 * Kmghts v. Wiffen, L. R. 5 Q. B. 660.
 
 126 a digest of [Part III. 
 
 She then gives it to a clerk of A's to get it cashed. He writes 
 8 before 50 and "three hundred and " before "fifty." A's 
 banker pays the check so altered in good faith. A cannot 
 recover against the banker. 1 
 (/) A carelessly leaves his door unlocked, whereby his goods 
 are stolen. He is not estopped from denying the title of an 
 innocent purchaser from the thief. 2 
 
 Article 103. 
 estoppel of tenant and licensee. 
 No tenant and no person claiming through any tenant oi 
 any land or hereditament of which he has been let into 
 possession, or for which he has paid rent, is, till he has 
 given up possession, permitted to deny that the landlord 
 had, at the time when the tenant was let into possession 
 or paid the rent, a title to such land or hereditament; 3 
 and no person who came upon any land by the license of 
 the person in possession thereof is, whilst he remains on 
 it, permitted to deny that such person had a title to such, 
 possession at the time when such license was given. 4 
 
 Article 104. 
 estoppel c" acceptor of bill of exchange. 
 No acceptor of a bill of exchange is permitted to deny 
 the signature of the drawer or his capacity to draw, or, if 
 
 1 Young v. Grotte, 4 Bing. 253 
 
 2 Per Blackburn, J., in Swan v. N. B. Australasian, C. 8, 2 
 H. & C. 181. 
 
 3 Doe v. Barton, 11 A. & E. 807; Doe v. Smyth, 4 M. & S. 
 847 ; Doe v. Pegg, 1 T. R. 760 (note). 
 
 * Doe v. Baytup, 3 A. & E. 188.
 
 Chap. XIV.] the law* of evidence. 127 
 
 the bill is payable to the order of the drawer, his capacity 
 to endorse the bill, though he may deny the fact of the 
 endorsement ; x nor, if the bill be drawn by procuration, 
 the authority of the agent, by whom it purports to be 
 drawn, to draw in the name of the principal, 2 though he 
 may deny his authority to endorse it. 3 
 
 Article 105. 
 estoppel of bailee, agent, and licensee. 
 
 No bailee, agent, or licensee is permitted to deny that 
 the bailor, principal, or licensor, by wmom any goods were 
 entrusted to any of them respectively, was entitled to 
 those goods at the time when they were so entrusted. 
 
 Provided, that any such bailee, agent, or licensee, may 
 show that he was compelled to deliver up any such goods 
 to some person who had a right to them as against his 
 bailor, principal, or licensor, or that his bailor, principal, 
 or licensor, wrongfully and without notice to the bailee, 
 agent, or licensee, obtained the goods from a third person 
 who has claimed them from such bailee, agent, or licensee. 4 - 
 
 Every bill of lading in the hands of a consignee or en- 
 
 1 Garland v. Jacomb, L. R. S Ex. 216. 
 
 2 Sanderson v. Coleman, 4 M. & G. 209. 
 
 3 Robinson v. Yarrow, 7 Tau. 455. 
 
 * Dixon v. Hammond, 2 B . & A. 813 ; Crossley v. Dixon, 10 
 H. L. 293 ; Gosling v. Birnie, 7 Bing. 339 ; Hardman v. Wil- 
 cock, 9 Bing. 3S2 . Biddle v. Bond, L. J. 34 Q. B. 137 ; Wilson 
 v. Anderton, 1 B. & Ad. 450. As to carriers, s^e Sheridan v. 
 New Quay, 4 C. B. (N.S.) 618.
 
 128 A DIGEST OF [PART III. 
 
 dorsee for valuable consideration, representing goods to 
 have been shipped on board a vessel, is conclusive proof 
 of that shipment as against the master or other person 
 signing the same, notwithstanding that such goods or some 
 part thereof, may not have been so shipped, unless such 
 holder of the bill of lading had actual notice at the time 
 of receiving the same that the goods had not been in fact 
 laden on board, provided that the master or other person 
 so signing may exonerate himself in respect of such 
 misrepresentation by showing that it was caused without 
 any default on his part, and wholly by the fraud of the 
 shipper or of the holder, or some person under whom the 
 holder holds. 1 
 
 » 18 & 19 Vict. c. Ill, s. 8.
 
 Chap. XV.] the law of evidence. 129 
 
 CHAPTER XV. 
 
 OF THE COMPETENCY OF WITNESSES.* 
 
 Article 106. 
 who may testify. 
 All persons are competent to testify in all cases except as 
 hereinafter excepted. 
 
 Article 107.f 
 
 WHAT WITNESSES ARE INCOMPETENT. 
 
 A witness is incompetent if, in the opinion of the judge, 
 he is prevented by extreme youth, disease affecting his 
 mind, or any other cause of the same kind, from recol- 
 lecting the matter on which he is to testify, from under- 
 standing the questions put to him, from giving rational 
 answers to those questions, or from knowing that he 
 ought to speak the truth. 
 
 A witness unable to speak or hear is not incompetent, 
 but may give his evidence by writing or by signs, or in 
 any other manner in which he can make it intelligible; 
 but such writing must be written and such signs made in 
 
 * See Note XL. f See Note XLI. 
 
 I
 
 130 A DIGEST OF [PaKT III. 
 
 open Court. Evidence bo given is deemed to be oral 
 evidence. 
 
 Article 108.* 
 competency in criminal cases. 
 
 In criminal cases the accused person md his or her wife 
 or husband, and every person and the wife or husband of 
 every person jointly indicted with him, is incompetent to 
 testify. 1 
 
 Provided that in any criminal proceeding against a 
 husband or wife for any bodily injury or violence inflicted 
 upon his or her wife or husband, such wife or husband is 
 competent and compellable to testify. 2 
 
 Proceedings at law on the Revenue side of the Exchequer 
 Division of the High Court of Justice are not criminal 
 within the meaning of this article. 3 
 
 Article 109. 
 
 competency in proceedings relating to adultery. 
 
 In proceedings instituted in consequence of adultery, 
 
 the parties and their husbands and wives are competent 
 
 witnesses, provided that no witness in any [such ?] pro 
 
 ♦See Note XLII. 
 
 1 R. v. Payne, L. R. 1 C. C. R 3-49, and R. v. Thompson, ib. 
 377. 
 
 1 Reeve v. Wood, 5 B. * S. 364. Treason has been also 
 supposed to form an exemption. See T. E. s. 1237. 
 
 8 23 ,1- 29 Vict. c. 104, s. 34.
 
 Chap. XY.] the law of evidence. 131 
 
 ceeding, whether a party to the suit or not, is liable to be 
 asked or bound to answer any question tending to show 
 that he or she has been guilty of adultery, unless such 
 witness has already given evidence in the same proceeding 
 in disproof of his or her alleged adultery. 1 
 
 Article 110. 
 communications during marriage. 
 No husband is compellable to disclose any communica- 
 tion made to him by his wife during the marriage, and no 
 wife is compellable to disclose any communication made to 
 her by her husband during the marriage.* 
 
 Article 111*. 
 judges and advocates privileged as to certain 
 questions. 
 It is doubtful whether a judge is compellable to testify 
 as to anything which came to his knowledge in court as 
 such judge. 3 It seems that a barrister cannot be com- 
 pelled to testify as to what he said in court in his character 
 of a barrister. 4 
 
 *See Note XLIII. 
 
 1 32 & 83 Vict. c. 68, s. 8. The word "such" seems to 
 have been omitted accidentally. 
 
 J 16 and 17 Vict. c. 83, s. 3. It is doubtful whether this 
 would apply to a widow or divorced person, questioned after 
 the dissolution of the marriage as to what had been communi- 
 cated to him whilst it lasted 
 
 8 R. v. Gazard, S C. A P. 595. 
 
 * Curry v. Walter, 1 Esp. 456.
 
 132 a digest of [part ttt . 
 
 Article 112. 
 evidence as to affairs of state. 
 No one can be compelled to give evidence relating to 
 any affairs of state, or as to official communications be- 
 tween public officers upon public affairs, except with the 
 permission of the officer at the head of the department 
 concerned, 1 or to give evidence of what took place in 
 either House of Parliament, without the leave of the 
 House, though he may state that a particular person 
 acted as Speaker. 2 
 
 Article 113. 
 information as to commission of offences. 
 
 In cases in which the government is immediately con- 
 cerned no witness can be compelled to answer any ques- 
 tion, the answer to which would tend to discover the 
 names of persons by or to whom information was given 
 as to the commission of offences. 
 
 In ordinary criminal prosecutions it is for the judge to 
 decide whether the permission of any such question would 
 or would not, under the circumstances of the particular 
 case, be injurious to the administration of justice. 3 
 
 1 Beatson v. Skene, 5 H. & N. 838. 
 
 » Chubb v. Salomons, 3 Car. & Kir. 77 ; P/unkett v. Cobleit, 
 5 Esp 136. 
 
 » A\ v. Hardy. 24 S. T. 811 ; A. G. v. Bryant, 15 M. & W. 
 169; R. v. Richardson, 8. F & F. 693.
 
 Chap. XV.] the law of evidence. 133 
 
 Article 114. 
 competency of jurors. 
 A petty juror may not x and it is doubtful whether a 
 grand juror may 2 give evidence as to what passed be- 
 tween the jurymen in the discharge of their duties. It is 
 also doubtful whether a grand juror may give evidence as 
 to what any witness said when examined before the grand 
 jury. 
 
 Article 115.* 
 professional communications. 
 No legal adviser is permitted, whether during or after 
 the termination of his employment as such, unless with 
 his client's express consent, to disclose any communication, 
 oral or documentary, made to him as such legal adviser, 
 by or on behalf of his client, during, in the course, and 
 for the purpose of his employment, whether in reference 
 to any matter as to which a dispute has arisen or other- 
 wise, or to disclose any advice given by him to his client 
 during, in the course, and for the purpose of such employ- 
 ment. It is immaterial whether the client is or is not a 
 party to the action in which the question is put to the 
 lesa] adviser. 
 
 *S^e Note XLIV. 
 1 Vaise v. Delavjl, 1 T. R. 11; Burgess 
 G. 722. 
 * 1 Ph Ev. 140; T. E. S. 868
 
 134 a diokst of [Part 1IL 
 
 This article does not extend to — 
 
 (1) Any such communication as aforesaid made in fur- 
 therance of any criminal purpose ; J 
 
 (2) Any fact observed by any legal adviser, in the course 
 of his employment as such, showing that any crime or 
 fraud has been committed since the commencement of his 
 employment, whether his attention was directed to such 
 fact by or on behalf of his client or not; 
 
 (3) Any fact with which such legal adviser became 
 acquainted otherwise than in his character as such. The 
 expression "legal adviser " includes barristers and solici- 
 tors, 2 their clerks, 3 and interpreters between them and 
 their clients. 
 
 Illustrations. 
 
 (a) A, being charged with embezzlement, retains B, a barris- 
 ter, to defend him. In the course of the proceedings, B 
 
 1 Follett v. Jefferyes, 1 Sim. (N. S.) 17 ; Charlton v. 
 Coombes, 32 L. J. Ch. 2S4. These cases put the rule on the 
 principle, that the furtherance of a criminal purpose can never 
 be part of a legal adviser's business. As soon as a legal ad- 
 viser takes part in preparing for a crime, he ceases to act as a 
 lawyer and becomes a criminal — a conspirator or accessory as 
 the case may be. 
 
 2 Wilson v. Rastall, 4 T. R. 753. As to interpreters, lb., 
 750. 
 
 5 Taylor v. Foster, 2 C. & P. 195 ; Foote v. Hayne, 1 C & 
 P. 545 Qmere, whether licensed conveyancers are within the 
 rule ? Parke B.. in Turquand v. Knight, 7 M. ft W. 100, 
 thought not. Special pleaders would seem to be on the same 
 footing
 
 Chap. XV.] the law of evidence. 135 
 
 observes that an entry has been made in A's account book, 
 charging A with the sum said to have been embezzled, which 
 entry was not in the book at the commencement of B's em- 
 ployment. 
 
 This being a fact observed by B in the course of his employ- 
 ment, showing that a fraud has been committed since the 
 commencement of the proceedings, is not protected from 
 disclosure in a subsequent action by A against the prosecutor 
 in the original case for malicious prosecution. 1 
 
 (£) A retains B, an attorney, to prosecute C (whose property 
 he had fraudulently acquired) for murder, and says, " It is 
 not proper for me to appear in the prosecution for fear of 
 its hurting me in the cause coming on between myself and 
 him ; but I do not care if I give ^10 000 to get him hanged, 
 for then I shall be easy in my title and estate." This com- 
 munication is not privileged.* 
 
 Article 116. 
 confidential communications with legal advisers. 
 No one can be compelled to disclose to the Court any 
 communication between himself and his legal adviser, 
 which his legal adviser could not disclose without his per- 
 mission, although it may have been made before any dis- 
 pute arose as to the matter referred to. 3 
 
 1 Brown v. Foster, 1 H. & N. 736 
 
 * Annesley v. Anglesea, 17 S. T. 1223-4. 
 
 3 Minet v Morgan, L. R 8 Ch. App. 361, reviewing all the 
 cases, and adopting the explanation given in Pearse v. Pearse, 
 1 DeG. & S. 18-31, of Radcliffe v. Fursman, 2 Br. P. C. 514.
 
 136 a digest of [pabt ill 
 
 Article 117.* 
 clergymen and medical men. 
 Medical men 1 and [probably] clergymen may be com- 
 pelled to disclose communications made to them in pro- 
 fessional confidence. 
 
 Article 118. 
 production of title-deeds of witness not a party. 
 No witness who is not a party to a suit can be compelled 
 to produce his title-deeds to any property, 2 or any docu- 
 ment, the production of which might tend to criminate 
 him, or expose him to any penalty or forfeiture; 3 but a 
 witness is not entitled to refuse to produce a document in 
 his possession only because its production may expose him 
 to a civil action, 4 or because he has a lien upon it. 5 
 
 * See Note XLV. 
 
 1 Duchess of Kingston's Case, 20 S. T. 572-3. As to cler- 
 gymen, see Note XLV. 
 
 2 Pickering v. Noyes, 1 B. & C. 2G3 ; Adams v. Lloyd, 8 H. 
 & N. 351. 
 
 8 Whitakerv. hod, 2 Tau. 115. 
 
 * Doe v. D.ite, 3 Q B 6»>9. 618. 
 
 6 Hope v. Lid dell, 7 De G. M. & G. 331; Hunter v. Leath- 
 ley, 10 B. & C. S53 ; Brassm^ton v. Brassing ton, 1 Si. & Stu. 
 455. It has been doubted whether production may not be re- 
 fused on the ground of a lien as against the party requiring the 
 production. This is suggested in Brassington v. Brassington 
 and was acted upon by Lord Denman in Kemp v. King, 2 Mo.
 
 Chap. XV.] the law of evidence. 137 
 
 Article 119. 
 
 production of documents which another person, 
 having possession, could refuse to produce. 
 
 No solicitor, 1 trustee, or mortgagee can be compelled to 
 produce (except for the purpose of identification) docu- 
 ments in his possession as such, which his client, cestui que 
 trust or mortgagor would be entitled to refuse to produce 
 if they were in his possession ; nor can any one who is en- 
 titled to refuse to produce a document be compelled to 
 give oral evidence of its contents. 2 
 
 Article 120. 
 witness not to be compelled to criminate himself. 
 No one is bound to answer any question if the answer 
 thereto would, in the opinion of the judge, have a ten- 
 dency to expose the witness [or the wife or husband of 
 the witness] to any criminal charge, or to any penalty 
 or forfeiture which the judge regards as reasonably likely 
 
 & Ro. 437 ; but it seems to be opposed to Hunter v. Leathley, 
 in which a broker who had a lien on a policy for premiums ad- 
 vanced, was compelled to produce it in an action against the 
 underwriter by the assured who had created the lien. See Ley 
 v. Barlow (Judgt. of Parke, B.) 1 Ex 801. 
 
 1 Volant v. Soyer, 13 C. B. 231. Phelps v. Frew, 8 E. & B. 
 431. 
 
 2 Davies v. Waters. 9 M. & W. 60S; Few v. Guppy, 13 
 Beav. 454.
 
 138 A DIGEST OF [PART 1 1 J. 
 
 to be preferred or sued for ; l but no one is excused from 
 answering any question only because the answer may es- 
 tablish or tend to establish that he owes a debt, or is oth- 
 erwise liable to any civil suit, either at the instance of 
 the Crown or of any other person. 2 
 
 Article 121. 
 corroboration, when required. 
 
 No plaintiff in any action for breach of promise of 
 marriage can recover a verdict, unless his or her testimony 
 is corroborated by some other material evidence in support 
 of such promise. 3 
 
 No order against any person alleged to be the father of 
 a bastard child can be made by any justices, or confirmed 
 on appeal by any Court of Quarter Session, unless the 
 evidence of the mother of the said bastard child is cor- 
 
 1 R. v. Boyes, 1 B. & S. 330. As to husbands and wives, see 
 1 Hale, P. C. 301 ; R. v. divider, 2 T. R. 263 ; Cartwright v. 
 Green, 8 Ve. 4^5 ; R. v. Bathwick, 2 B and Ad. 639 ; R. v. 
 All Saints, Worcester, 6 M. & S. 194. These cases show that 
 «ven under the old law which made *he parties and their hus- 
 bands and wives incompetent witnesses, a wife was not incom- 
 petent to prove matter which might tend to criminate her 
 husband. R. v. Cliviger assumes that she was, and was to 
 that extent overruled. Thf cases, however, do not decide 
 that if the wife claimed the ^ri^iiege of not answering she 
 would be compelled to de so, and ft some extent they suggest 
 that she would not. 
 
 * 46 Geo. Ill, c. 37. 
 
 • 82 & 33 Vict. c. 6S * 9
 
 Chap. XY.] the law of evidence. 139 
 
 roborated in some material particular to the satisfaction of 
 the said justices or Court respectively. 1 
 
 When the only proof against a person charged with a 
 criminal offence is the evidence of an accomplice, uncor- 
 roborated in any material particular, it is the duty of the 
 judge to warn the jury that it is unsafe to convict any 
 person upon such evidence, though they have a legal right 
 to do so.* 
 
 Article 122. 
 number of witnesses. 
 
 In trials for high treason, or misprision of treason, no 
 one can be indicted, tried, or attainted (unless he pleads 
 guilty) except upon the oath of two lawful witnesses, 
 either both of them to the same overt act, or one of them 
 to one and another of them to another overt act of the 
 same treason. If two or more distinct treasons of divers 
 heads or kinds are alleged in one indictment, one witness 
 produced to prove one of the said treasons and another 
 witness produced to prove another of the said treasons 
 are not to be deemed to be two witnesses to the same trea- 
 son within the meaning of this article. 3 
 
 This provision does not apply to cases of high treason 
 in compassing or imagining the Queen's death, in which 
 
 1 8 A 9 Vict, c 10, s. 6 ; 35 & 6 Vict. c. 6, s. 4. 
 
 * 1 Ph. Ev. 93-101 ; T. E. ss. 8S7-91 ; 8 Russ. Cri. 600-611. 
 
 » 1 & 8 Will. III. c. S, ss. 2. 4.
 
 140 A DIGEST OF [PART 111. 
 
 the overt act or overt acts of such treason alleged in the 
 indictment are assassination or killing of the Queen, or 
 any direct attempt against her life, or any direct attempt 
 against her person, whereby her life may be endangered 
 or her person suffer bodily harm, 1 or to misprision of such 
 treason. 
 
 If upon a trial for perjury the only evidence against the 
 defendant is the oath of one witness contradicting the 
 oath on which perjury is assigned, and if no circumstances 
 are proved which corroborate such witness, the defendant 
 is entitled to be acquitted. 3 
 
 * 89 & 40 Geo. III. c. 93. 
 
 * Russ. on Crimes, 77-86.
 
 Chap. XVI. ] the law or evidence. 141 
 
 CHAP. XVI. 
 OF THE EXAMINATION OF WITNESSES. 
 Article 123. 
 evidence to be "upon oath, except ix certain cases. 
 All oral evidence given in any action must be given upon 
 oath, but if any person called as a witness refuses or is 
 unwilling to be sworn from alleged conscientious motives, 
 the judge before whom the evidence is to be taken may, 
 upon being satisfied of the sincerity of such objection, 
 permit such person, instead of being sworn, to make his or 
 her solemn affirmation and declaration in the following 
 words — 
 
 "1, A B, do solemnly, sincerely, and truly affirm and 
 declare that the taking of any oath is according to my 
 religious belief unlawful, and I do also solemnly, sin- 
 cerely, and truly affirm and declare," &C 1 
 
 2 If any person called to give evidence in any court of 
 
 1 17 & IS Vict c. 125, s. 20 (civil cases) ; 24 &25 Vict. c. 66 
 (criminal cases). 
 
 2 32 & 33 Vict. c. 63, s. 4. ; 33 & 34 Vict. c. 49. I omit 
 special provisions as to Quakers, Moravians, and Separatists, as 
 the enactments mentioned above include all cases. The stat- 
 utes are referred to in T E. s. 1254 ; R. N. P. 175-6.
 
 142 A DIGEST OF [PaKT III. 
 
 justice, whether in a civil or criminal proceeding, objects 
 to take an oath, or is objected to as incompetent to take 
 such an oath, such person must, if the presiding judge is 
 satisfied that the taking of an oath would have no binding 
 effect on his conscience, make the following promise and 
 declaration — 
 
 "I solemnly promise and declare that the evidence 
 given by me to the Court shall be the truth, the whole 
 truth, and nothing but the truth." 
 
 If any person, having made either of the said declara- 
 tions wilfully, and corruptly gives false evidence, he is 
 liable to be punished as for perjury. 
 
 Article 124. 
 form of oaths. 
 Oaths are binding which are administered in such form 
 and with such ceremonies as the person sworn declares to 
 be binding. 1 
 
 Article 125. 
 who is to have power to administer oaths. 
 Every person now or hereafter having power by law or 
 by consent of parties to hear, receive, and examine evi- 
 dence, is empowered to administer an oath to all such 
 witnesses as are lawfully called before him. 2 
 
 1 1 A2 Vict. c. 105. For the old law, see Otitic hand v. 
 Barker, 1 S. L. C. 455. 
 
 2 14 & 15 Vict. c. 99, s. 16.
 
 Chap. XVL] the law of evidence. 14& 
 
 Article 126.* 
 
 examination in chief, cross-examination, and 
 re-examination. 
 
 Witnesses must be first examined in chief, then cross- 
 examined, and then re-examined. 
 
 Whenever any witness has been examined in chief, or 
 has been intentionally sworn, or has made a promise and 
 declaration as hereinbefore mentioned for the purpose of 
 giving evidence, the opposite party has a right to cross- 
 examine him; but the opposite party is not entitled to 
 cross-examine merely because a witness has been called to 
 produce a document on a subpoena duces tecum, or in order 
 to be identified. After the cross-examination is concluded, 
 the party who called the witness has a right to re-examine 
 him. 
 
 The Court may in all cases permit a witness to be re- 
 called either for further examination in chief or for further 
 cross-examination, and if it does so, the parties have the 
 right of further cross-examination and further re-exam- 
 ination respectively. 
 
 If a witness dies, or becomes incapable of being further 
 examined at any stage of his examination, the evidence 
 given before he became incapable is good. 1 
 
 * See Note XLVI. 
 1 R. v. Doolin, 1 Jebb, C. C. 123. The judges compared 
 the case to that of a dying declaration which is admitted r 
 though there can be no cross-examination.
 
 144 A DIGEST OF [PART ITT. 
 
 If in the course of a trial a witness who was supposed 
 to be competent appears to be incompetent, his evidence 
 may be withdrawn from the jury, and the case may be 
 left to their decision independently of it. 1 
 
 Article 127. 
 to what matters cross-examination and re-exam- 
 ination must be directed. 
 
 The examination and cross-examination must relate to 
 facts in issue or relevant facts, but the cross-examination 
 need not be confined to the facts to which the witness 
 testified on his examination in chief. 
 
 The re-examination must be directed to the explanation 
 of matters referred to in cross-examination ; and if new 
 matter is, by permission of the Court, introduced in re- 
 examination, the adverse party may further cross-examine 
 upon that matter. 
 
 Article 128. 
 leading questions. 
 Questions suggesting the answer which the person put- 
 ting the question wishes or expects to receive, or suggest- 
 ing disputed facts as to which the witness is to testify, 
 must not, if objected to by the adverse party, be asked in 
 an examination in chief, or a re-examination, except with 
 the permission of the Court, but such questions may be 
 asked in cross-examination. 
 
 1 R. v. Whitehead. L R. 1 C. C. R. 83.
 
 Chap. XVL] the law of evidence. 145 
 
 Article 129.* 
 questions lawful in cross-examination. 
 When a witness is cross-examined, he may, in addition 
 to the questions hereinbefore referred to, be asked any 
 questions which tend — 
 
 (1) To test his accuracy, veracity, or credibility; or 
 
 (2) To shake his credit, by injuring his character. 
 
 He may be compelled to answer any such question, 
 however irrelevant it may be to the facts in issue, and 
 however disgraceful the answer may be to himself, except 
 in the case provided for in article 120. 
 
 Illustration. 
 
 t) The question is, whether A committed perjury in swearing 
 that he was R. T. B deposes that he made tattoo marks on 
 the arm of R. T., which at the time of the trial were not and 
 never had been on the arm of A. B may be asked and 
 compelled to answer the question whether, many years after 
 the tattooing, and many years before the occasion on which 
 he was examined, he committed adultery with the wife of 
 one of his friends. 1 
 
 Article 130. 
 a^cltjsion of evidence to contradict answers to 
 questions testing veracity. 
 When a witness under cross-examination has been 
 
 * See Note XLVII. 
 1 R. v. Orton, See summing-up of Cockburn, C. J., p. 
 719, &c.
 
 146 A DIGEST OF [PART III. 
 
 asked and has answered any question which is relevant tr 
 the inquiry only in so far as it tends to shake his credit bj 
 injuring his character, no evidence can be given to contra 
 diet him except in the following cases : — l 
 
 (1) If a witness is asked whether he has been previously 
 convicted of any felony or misdemeanor, and denies or 
 does not admit it, or refuses to answer, evidence may be 
 given of his previous conviction thereof. 2 
 
 (2) If a witness is asked any question tending to show 
 that he is not impartial, and answers it by denying the 
 facts suggested, he may be contradicted. 8 
 
 Article 131.* 
 statements inconsistent with present testimony 
 
 may be proved. 
 Every witness under cross-examination in any proceed- 
 ing, civil or criminal, may be asked whether he has made 
 any former statement relative to the subject matter of the 
 action and inconsistent with his present testimony, the 
 circumstances of the supposed statement being referred to 
 sufficiently to designate the particular occasion, and if ho 
 does not distinctly admit that he has made such a state- 
 ment, proof may be given that he did in fact make it 
 
 * See Note XLVIII. 
 
 1 A. G. v. Hitchcock, 1 Ex. 91, 99-105. See, too, Palmer v. 
 Trower, 8 Ex. 247. 
 
 2 28 & 29 Vict. c. 18, s. 6. 
 
 8 A. G. v Hitchcock, 1 Ex. 91, pp. 100, 105.
 
 CliAP. XVI.] THE LAW OF EVIDENCE. 147 
 
 The same course may be taken with a witness upon hi3 
 examination in chief, if the judge is of the opinion that 
 he is [hostile] to the party by whom he is called and per- 
 mits the question. 
 
 Article 132. 
 cross-examination as to previous statements in 
 
 WRITING. 
 
 A witness under cross-examination [or a witness whom 
 the judge, under the provisions of article 131, has permit- 
 ted to be examined by the party who called him as to pre- 
 vious statements inconsistent with his present testimony] 
 may be questioned as to previous statements made by him 
 in writing, or reduced into writing, relative to the subject 
 matter of the cause, without such writing being shown to 
 him [or being proved in the first instance] ; but if it is 
 intended to contradict him by the writing, his attention 
 must, before such contradictory proof can be given, be 
 called to those parts of the writing which are to be used 
 for the purpose of contradicting him. The judge may, at 
 any time during the trial, require the document to be pro- 
 duced for his inspection, and may thereupon make such 
 use of it for the purposes of the trial as he thinks fit. 1 
 
 i 17 & 13 Vict. c. 125 s. 24; and 28 Vict. c. 18, s. 5. I 
 think the words between brackets represent the meaning of the 
 sections, but in terms they apply only to witnesses under cross- 
 examination — " Witnesses may be cross-examined," &c.
 
 148 a digest of [part iii. 
 
 Article 133. 
 impeaching credit of witness. 
 
 The credit of any witness may be impeached by the 
 adverse party, by the evidence of persons who swear that 
 they, from their knowledge of the witness, believe him to 
 be unworthy of credit upon his oath. Such persons may 
 not, upon their examination in chief, give reasons for their 
 belief, but they may be asked their reasons in cross-exam- 
 ination, and their answers cannot be contradicted. 1 
 
 No such evidence may be given by the party by whom 
 any witness is called, 2 but, when such evidence Is given by 
 the adverse party, the party who called the witness may 
 give evidence in reply to show that the witness is worthy 
 of credit.* 
 
 Article 134. 
 offences against women. 
 When a man is prosecuted for rape or an attempt to 
 ravish, it may be shown that the woman against whom the 
 offence was committed was of a generally immoral char- 
 acter, although she is not cross-examined on the subject.* 
 The woman may, in such a case, be asked whether she has 
 
 » 2 Ph. Ev. 503-4; T. E. ss. 1324-5. 
 
 ■ 17 & 18 Vict. c. 125, s. 2; and 28 Vict. c. 18, s. 8. 
 
 » 2 Ph. Ev. 504. 
 
 « R. v. Clarke, 2 Star. 241.
 
 Chap. XVI.] the law of evidence. 149 
 
 had connection with other men, but her answer cannot be 
 contradicted. 1 She may also be asked whether she has 
 had connection on other occasions with the prisoner, and 
 if she denies it she [probably] may be contradicted. 2 
 
 Article 135. 
 what matters may be proved in reference to 
 declarations relevant under articles 25-34. 
 Whenever any declaration or statement relevant under 
 articles 25-34, both inclusive, is proved, all matters may 
 be proved in order to contradict it, or in order to impeach 
 or confirm the credit of the person by whom it was made 
 which might have been proved if that person had been 
 called as a witness, and had denied upon cross-examina- 
 tion the truth of the matter suggested. 5 
 
 Article 136. 
 refreshing memory. 
 A witness may, while under examination, refresh hia 
 memory by referring to any writing made by himself at the 
 
 1 R. v. Holmes, L. R. 1 C. C. R, 334. 
 
 2 R. v. Martin, 6 C. & P. 562, and remarks in R. v. Holmes, 
 p. 337, per Kelly, C. B. 
 
 3 R. v. Drummond, 1 Lea. 338. R. v. Pike, 3 C. & P. 593. 
 In these cases dying declarations were excluded, because the 
 persons by whom they were made would have been incompe- 
 tent as witnesses, but the principle would obviously apply to 
 all the cases in question.
 
 150 A DIGEST OF [PART III. 
 
 time of the transaction concerning which he is questioned, 
 or so soon afterwards that the judge considers it likely that 
 the transaction was at that time fresh in his memory. 
 
 The witness may also refer to any such writing made by 
 any other person, and read by the witness within the time 
 aforesaid, if when he read it he knew it to be correct. 1 
 
 An expert may refresh his memory by reference to 
 professional treatises. 2 
 
 Article 137. 
 right of adverse party as to writing used to 
 refresh memory. 
 Any writing referred to under article 136 must be pro- 
 duced and shown to the adverse party if he requires it; 
 and such party may; if he pleases, cross-examine the wit- 
 ness thereupon. 3 
 
 Article 138. 
 
 giving, as evidence, document called for and 
 
 produced on notice 
 
 "When a party calls for a document which he has given 
 
 the other party notice to produce, and such document is 
 
 produced to, and inspected by, the party calling for its 
 
 » 2 Ph. Ev. 4S0, .Sec; T. E ss. 1264-70; R. N. P. 194-5. 
 * Sussex Peerage Case, 11 C. F. 114-17. 
 » See cases in R. N. P. 195.
 
 Chap. XVI.] the law of evidence. 151 
 
 production, he is bound to give it as evidence if the party 
 producing it requires him to do so, and if it is relevant. 1 
 
 Article 139. 
 using as evidence a document, production op 
 
 which was refused on notice. 
 When a party refuses to produce a document which he 
 has had notice to produce, he may not afterwards use the 
 document as evidence without the consent of the other 
 party. 5 
 
 1 Wharam v. Routledge, 1 Esp. 235 ; Calvert v. Flower, 7 
 C. & P. 886. 
 
 2 Doe v. Hodgson, 12 A. & E. 135 ; but see remarks in 2 Ph. 
 Ev. 270.
 
 16a A digest off [Part III. 
 
 CHAPTER XVLL 
 
 OF IMPROPER ADMISSION AND REJECTION OF 
 
 EVIDENCE. 
 
 Article 140. 
 A new trial will not be granted in any civil action on the 
 ground of the improper admission or rejection of evidence, 
 unless, in the opinion of the Court to which the applica- 
 tion is made, some substantial wrong or miscarriage has 
 been thereby occasioned in the trial of the action. 1 
 
 If in a criminal case evidence is improperly rejected or 
 admitted, there is no remedy, unless the prisoner is con- 
 victed, and unless the judge, in his discretion, states ■% 
 case for the Court for Crown Cases Reserved ; but if tb"\t 
 Court is of opinion that any evidence was improperly r V 
 mitted or rejected, it must set aside the conviction. 
 
 1 Judicature Act, 1675, Order xxxix, 8.
 
 Notes.] the law of evidence. 163 
 
 APPENDIX OF NOTES. 
 
 NOTE L 
 (to Article 1.) 
 
 For the definition of fact, see Bentham ' Judicial Evi- 
 dence,' vol. 1, pp. 39-50. See, too, my 'Introduction to 
 the Indian Evidence Act,' pp. 14r-16. The definition of 
 the word "Document" is taken from the Indian Penal 
 Code, s. 29. See, too, the Indian Evidence Act, s. 12. 
 
 The definitions are simply explanations of the senses 
 in which the words defined are used in this work. They 
 will be found, however, to explain the manner in which it 
 is arranged. 
 
 I use the word presumption in the sense of a presump- 
 tion of law capable of being rebutted. A presumption of 
 fact is simply an argument. A conclusive presumption I 
 describe as conclusive proof. Hence the few presumptions 
 of law which I have thought it necessary to notice are the 
 onlv ones I have to deal wiv v
 
 154 A DIGEST OF [NOTES. 
 
 NOTE EL 
 (to Article 2.) 
 
 See 1 Ph. Ev. 493, &c. ; Best, ss. Ill and 251 ; T. E. 
 chap, ii, pt. ii. 
 
 For instances of relevant evidence held to be insufficient 
 for the purpose for which it was tendered, on the ground 
 
 of remoteness, see R. v. , 2 C. & P. 459 ; and Mann 
 
 v. Langton, 3A.&E. 699. 
 
 Mr. Taylor (s. 867) adopts from Professor Grcenleaf the 
 statement that "the law excludes on public grounds . . . 
 evidence which is indecent or offensive to public morals, 
 or injurious to the feelings of third persons." The author- 
 ities given for this are actions on wagers which the Court 
 refused to try, or in which they arrested judgment because 
 the wagers were in themselves impertinent and offensive, 
 as, for instance, a wager as to the sex of the Chevalier 
 D'Eon {Da Costa v. Jones, Cowp. 729). No action now 
 lies upon a wager, and I fear that there is no authority for 
 the proposition advanced by Professor Greenleaf. I know 
 of no case in which a fact in issue or relevant to an issue 
 which the Court is bound to try can be excluded merely 
 because it would pain some one who is a stranger to the 
 action. Indeed, in Da Costa v. Jones, Lord Mansfield 
 said expressly, "Indecency of evidence is no objection to 
 its being received where it is necessary to the decision of a 
 civil or criminal right" (p. 734). (See article 129, and 
 Note XLVIL)
 
 Notes.] the law of evldexce. 155 
 
 NOTE EEL 
 (to Article 4.) 
 On this subject see also 1 Ph. Ev. 157-164; T. E. ss. 
 
 527-532 ; Best, s. 508 ; 3 Kuss. on Crimes, by Greaves, 
 161-7. (See, too, the Queen's case, 2 Br. &Bing. 309-10.) 
 The principle is substantially the same as that of prin- 
 cipal and accessory, or principal and agent. When various 
 persons conspire to commit an offence, each makes the 
 rest his agents to carry the plan into execution. (See, too, 
 article 17, Note XII.) 
 
 NOTE IV. 
 (to Article 5.) 
 
 The principle is fully explained and illustrated in Mal- 
 cohnson v. O'Dea, 10 H. of L. 593. See particularly the 
 reply to the questions put by the House of Lords to the 
 Judges, delivered by Willes, J., 611-22. 
 
 See also 1 Ph. Ev. 234-9; T. E. ss. 593-601; Best, s. 499. 
 
 Mr. Phillips and Mr. Taylor treat this principle as an 
 exception to the rule excluding hearsay. They regard the 
 statements contained in the title-deeds as written state- 
 ments made by persons not called as witnesses. I think 
 the deeds must be regarded as constituting the transac- 
 tions which they effect; and in the case supposed in the 
 text, those transactions are actually in issue. When it is 
 asserted that land belongs to A, what is meant is, that A 
 is entitled to it by a series of transactions of which his
 
 156 A DIGEST OF [NOTES. 
 
 title-deeds are by law the exclusive evidence (see article 
 40). The existence of the deeds is thus the very fact 
 which is to be proved. 
 
 Mr. Best treats the case as one of "derivative evidence," 
 an expression which does not appear to me felicitous. 
 
 It will be observed that articles 2-6 refer to facts, either 
 strictly in issue, or so closely connected with facts in issue 
 as to be of the same nature. Articles 7, 8, 9, refer to facts 
 which would usually be described by the phrase, " circum- 
 stantial evidence." 
 
 NOTE V. 
 (to Article 7.) 
 The items of evidence included in this article are often 
 referred to by the phrase "res gestae," which seems to 
 have come into use on account of its convenient obscurity. 
 The doctrine of "res gestae" was much discussed in the 
 case of Doe v. Tatham (p. 79, &c). In the course of the 
 argument, Bosanquet, J., observed, "How do you trans- 
 late res gestae? gestae, by whom?" Parke, B., afterwards 
 observed, "The acts by whomsoever done are res gestae, if 
 relevant to the matter in issue. But the question is, what 
 are relevant?" (7 A. & E. 353.) In delivering his opinion 
 to the House of Lords, the same Judge laid down the rule 
 thus: "Where any facts are proper evidence upon an 
 issue [i. e. when they are in issue, or relevant to the issue] 
 all oral or written declarations which can explain such 
 facts may be received in evidence." (Same case, 4 Bing.
 
 Notes.] the law of evidence. 157 
 
 N. C. 548.) The question asked by Baron Parke goes to 
 the root of the whole subject, and I have tried to answer 
 it at length in the text, and to give it the prominence in 
 the statement of the law which its importance deserves. 
 
 Besides the cases cited in the illustrations, see cases as 
 to statements accompanying acts collected in 1 Ph. Ev. 
 152-7, and T. E. ss. 521, 528. I have stated, in accord- 
 ance with R. v. Walker, 2 M. & K. 212, that the particu- 
 lars of a complaint are not admissible; but I have heard 
 Willes, J., rule they were on several occasions, vouching 
 Parke, B., as his authority. R. v. Walker was decided by 
 Parke, B., in 1839. Though he excluded the statement, 
 he said, " the sense of the thing certainly is, that the jury 
 should in the first instance know the nature of the com- 
 plaint made by the prosecutrix, and all that she then said. 
 But for reasons which I never could understand, the usage 
 has obtained that the prosecutrix's counsel should only 
 inquire generally whether a complaint was made by the 
 prosecutrix of the prisoner's conduct towards her, leaving 
 the prisoner's counsel to bring before the jury the particu- 
 lars of that complaint by cross-examination." 
 
 Baron Bramwell has been in the habit, of late years, of 
 admitting the complaint itself. The practice is certainly 
 in accordance with common sense. 
 
 NOTE VL 
 (to Article 9.) 
 This is taken (with some verbal alterations) from a
 
 158 A DIGEST OK [NOTES. 
 
 pamphlet called ' The Theory of Relevancy for the pur- 
 pose of Judicial Evidence, by George Clifford Whitworth, 
 Bombay Civil Service. Bomba} r , 1875.' 
 
 The 7th section of the Indian Evidence Act is as fol- 
 lows: "Facts which are the occasion, cause or effect, im- 
 mediate or otherwise, of relevant facts or facts in issue, or 
 which constitute the state of things under which they 
 happened, or which afforded an opportunity for their oc- 
 currence or transaction, are relevant." 
 
 The 11th section is as follows : 
 
 "Facts not otherwise relevant are relevant; 
 
 "(1) If they are inconsistent with any fact in issue or 
 relevant fact ; 
 
 " (2) If by themselves, or in connection with other facts, 
 they make the existence or non-existence of any fact in 
 issue, or relevant fact, highly probable or improbable." 
 
 In my 'Introduction to the Indian Evidence Act' I ex- 
 amined at length the theory of judicial evidence, and 
 tried to -show that the theory of relevancy is only a par- 
 ticular case of the process of induction, and that it de- 
 pends on the connection of events as cause and effect. 
 This theory does not greatly differ from Bentham's, 
 though he does not seem to me to have grasped it as 
 distinctly as he probably would if he had lived to study 
 Mr. Mill's Inductive Logic. 
 
 My theory was expressed too widely in certain parts, 
 and not widely enough in others ; and Mr. Whitworth's 
 pamphlet appears to me to have corrected and completed
 
 Notes.] the law of evidence. 159 
 
 it in a judicious manner. I have accordingly embodied 
 his definition of relevancy, with some variations and ad- 
 ditions, in the text. The necessity of limiting in some 
 such way the terms of the 11th section of the Indian Evi- 
 dence Act may be inferred from a judgment by Mr. Jus- 
 tice West (of the High Court of Bombay), in the case of 
 R. v. Parbhudas and others, printed in the 'Law Journal,' 
 May 27, 1876. 
 
 As to the coincidence of this theory with English law, I 
 can only say that it will be found to supply a key which 
 will explain all that is said on the subject of circumstan- 
 tial evidence by the writers who have treated of that 
 subject. Mr. "Whitworth goes through the evidence given 
 against the German, Miiller, executed for murdering Mr. 
 Briggs, on the North London Railway, and shows how 
 each item of it can be referred to one or the other of the 
 heads of relevancy which he discusses. 
 
 It is not necessary to give specific authority for the 
 illustrations. They are too obvious to be noticed in re- 
 ported cases, but they might all be justified by reference 
 to different parts of Palmer's case. The last illustration 
 was suggested by the case of Courvoisier. 
 
 The theory of relevancy contained in this article would, 
 I believe, suffice to solve every question which can arise 
 upon the subject; but as questions connected with it have 
 been raised and decided in many different forms, it is 
 necessary in a Digest of the Law of Evidence to notice 
 them. The principles, however, which are embodied in
 
 160 A DIGEST OF [NOTES. 
 
 articles 3-8 are only particular applications of the general 
 principle stated in the article. It might, no doubt, be 
 expressed very shortly by saying that every fact is relevant 
 to every other, if it affects in any definite way the proba- 
 bility of its occurence. This, however, would throw no 
 light on the question how facts affect the probability of the 
 occurrence of other facts ; and, to obtain a real mastery of 
 the principles of evidence, it is necessary to have clear 
 views on this subject. 
 
 NOTE vn. 
 (to Articles 10, 11, 12.) 
 
 Article 10 is equivalent to the maxim, "Res inter alios 
 acta alteri nocere non debet," which i? explained and com- 
 mented on in Best, ss. 506-510 (though I should scarcely 
 adopt his explanation of it), and by Broom ('Maxims,' 
 954-968). The application of the maxim to the Law of 
 Evidence is obscure, because it does not show how uncon- 
 nected transactions should be supposed to be relevant to 
 each other. The meaning of the rule must be inferred 
 from the exceptions to it, stated in articles 11 and 12, which 
 show that it means, You are not to draw inferences from 
 one transaction to another which is not specifically con- 
 nected with it, merely because the two resemble each other. 
 They must be linked together by the chain of cause and 
 effect in some assignable way before you can draw your 
 inference. 
 
 In its literal sense the maxim also fails, because it is not
 
 Notes.] the law of evidence. 161 
 
 true that a man cannot be affected by transactions to which 
 he is not a part}-. Illustrations to the contrary are obvious 
 and innumerable; bankruptcy, marriage, indeed every 
 transaction of life, would supply them. 
 
 The exceptions to the rule given in articles 11 and 12 
 are generalized from the cases referred to in the illustra- 
 tions. It is important to observe that though the rule is 
 expressed shortly, and is sparingly illustrated, it is of very 
 much greater importance and more frequent application 
 than the exceptions. The exceptions apply more frequently 
 to criminal than to civil proceedings, and in criminal cases 
 the Courts are always disinclined to run the risk of preju- 
 dicing the prisoner by permitting matters to be proved 
 which tend to show in general that he is a bad man, and 
 so likely to commit a crime. In each of the cases by 
 which article 12 is illustrated, the evidence admitted went 
 to prove the true character of facts which, standing alone, 
 might naturally have been accounted for on the supposi- 
 tion of accident — a supposition which was rebutted by 
 the repetition of similar occurrences. In the case of R. 
 v. Gray, (Illustration (a) ), there were many other circum- 
 stances which would have been sufficient to prove the 
 prisoner's guilt, apart from the previous fires. That part 
 of the evidence, indeed, seemed to have little influence on 
 the jury. Garner's case (Illustration (c), note) was an ex- 
 traordinary one, and its result was in every way unsatis- 
 factory. Some account of this case will be found in the
 
 162 A DIGEST OF [NOTES. 
 
 evidence given by me before the Commission on Capital 
 Punishments, which sat in 1866. 
 
 NOTE VITL 
 (to Article 13.) 
 As to presumptions arising from the course of office or 
 business, see Best, s. 403; 1 Ph. Ev. 480-4; T. E. s. 147. 
 The presumption, "Omnia esse rite acta," also applies. 
 See Broom's 'Maxims,' 942; Best, ss. 353-365; T. K s. 
 124, &c. ; 1 Ph. Ev. 480 ; and Star. 757, 763. 
 
 NOTE IX. 
 (to Article 14.) 
 The unsatisfactory character of the definitions usually 
 given of hearsay is well known. See Best, s. 495 ; T. E. 
 ss. 507-510. The definition given by Mr. Phillips suffi- 
 ciently exemplifies it: "When a witness, in the course of 
 stating what has come under the cognizance of his own 
 senses concerning a matter in dispute, states the language 
 of others which he has heard, or produces papers which he 
 identifies as being written by particular individuals, he 
 offers what is called hearsay evidence. This matter may 
 sometimes be the very matter in dispute," <fec. (1 Ph. 
 Ev. 143). If this definition is correct, the maxim, " Hear- 
 say is no evidence," can only be saved from the charge of 
 falsehood by exceptions which make nonsense of it. By 
 attaching to it the meaning given in the text, it becomes 
 both intelligible and true. There is no real difference
 
 Notes.] the law of evidence 163 
 
 between the fact that a man was heard to say this or that, 
 and any other fact. Words spoken may convey a threat, 
 supply the motive for the crime, constitute a contract, 
 amount to slander, &c, &c. ; and if relevant or in issue, 
 on these or other grounds, they must be proved, like other 
 fac ts, by the oath of some one who heard them. The 
 important point to remember about them is that bare as- 
 sertion must not, generally speaking, be regarded as rele- 
 vant to the truth of the matter asserted. 
 
 The doctrine of hearsay evidence was fully discussed by 
 many of the judges in the case of Doe d. Wright v. 
 Tatham on the different occasions when that case came 
 before the Court (see 7 A. & E. 313-408 ; 4 Bing. N. C. 
 489-573). The question was, whether letters addressed to 
 a deceased testator, implying that the writers thought him 
 sane, but not acted upon by him, could be regarded as 
 relevant to his sanity, which was the point in issue. The 
 case sets the stringency of the rule against hearsay in a 
 light which is forcibly illustrated by a passage in the 
 judgment of Baron Parke (7 A. & E. 385-8), to the fol- 
 lowing effect: — He treats the letters as "statements of the 
 writers, not on oath, of the truth of the matter in ques- 
 tion, with this addition, that they have acted upon the 
 statements on the faith of their being true by their send- 
 ing the letters to the testator." He then goes through a 
 variety of illustrations, which had been suggested in argu- 
 ment, to show that in no case ought such statements to be 
 regarded as relevant to the truth of the matter stated,
 
 164 A DIGEST OF [NOTES. 
 
 even when the circumstances were such as to give the 
 strongest possible guarantee that such statements ex- 
 pressed the honest opinions of the persons who made them. 
 Amongst others, he mentioned the following: — "The con- 
 duct of the family or relations of a testator, taking the 
 same precautions in his absence as if he were a lunatic— 
 his election in his absence to some high and responsible 
 office ; the conduct of a physician who permitted a will to 
 be executed by a sick testator; the conduct of a deceased 
 captain on a question of seaworthiness, who, after exam- 
 ining every part of a vessel, embarked in it with his fam- 
 ily; all these, when deliberately considered, are, with 
 reference to the matter in issue in each case, mere instances 
 of hearsay evidence — mere statements, not on oath, but 
 implied in, or vouched by, the actual conduct of persons 
 by whose acts the litigant parties are not to be bound." 
 All these matters are, therefore, to be treated as irrelevant 
 to the questions at issue. 
 
 These observations make the rule quite distinct, but the 
 reason suggested for it in the concluding words of the 
 passage extracted appears to be weak. That passage im- 
 plies that hearsay is excluded because no one " ought to 
 be bound by the act of a stranger." That no one shall 
 have power to make a contract for another, or commit a 
 crime, for which that other is to be responsible without 
 his authority, is obviously reasonable, but it is not so plain 
 why A's conduct should not furnish good grounds for in- 
 ference as to B's conduct, though it was not authorized
 
 Notes.] the law of evidence. 165 
 
 by B. The importance of shortening proceedings, the 
 importance of compelling people to procure the best evi- 
 dence they can, and the importance of excluding opportu- 
 nities of fraud, are considerations which probably justify 
 the rule excluding hearsay; but Baron Parke's illustra- 
 tions of its operation clearly prove that in some cases it 
 excludes the proof of matter which, but for it, would be 
 regarded not only as relevant to particular facts, but as 
 good grounds for believing in their existence. 
 
 NOTE X. 
 (to Article 15.) 
 This definition is intended to exclude admissions by 
 pleading, admissions which, if so pleaded, amount to 
 estoppels, and admissions made for the purposes of a 
 cause by the parties or their solicitors. These subjects 
 are usually treated of by writers on evidence; but they 
 appear to me to belong to other departments of the law. 
 The subject, including the matter which I omit, is treated 
 at length in 1 Ph. Ev. 308-401, and T. E. ss. 653-788. A 
 vast variety of cases upon admissions of every sort may 
 be found by referring to Roscoe N. P. (Index, under the 
 word Admissions.) It may perhaps be well to observe 
 that when an admission is contained in a document, or 
 series of documents, or when it forms part of a discourse 
 or conversation, so much and no more of the document, 
 series of documents, discourse or conversation, must be 
 proved as is necessary for the full understanding of the
 
 166 a digest ov [Notes. 
 
 admission, but the judge or jury may, of course, attach 
 degrees of credit to different parts of the matter proved. 
 This rule is elaborately discussed and illustrated by Mr. 
 Taylor, ss. G55-665. It has lost much of the importance 
 which attached to it when parties to actions could not be 
 witnesses, but could be compelled to make admissions by 
 bills of discovery. The ingenuity of equity draughtsmen 
 was under that system greatly exercised in drawing 
 answers in such a form that it was impossible to read part 
 of them without reading the whole, and the ingenuity of 
 the Court was at least as much exercised in countermining 
 their ingenious devices. The power of administering 
 interrogatories, and of examining the parties directly, 
 has made great changes in these matters. 
 
 NOTE XI. 
 
 (to Article 16.) 
 
 As to admissions by parties, see Moriarty v. L. C. $ D. 
 Railway, L. R. 5 Q. B. 320, per Blackburn, J.; Alner v. 
 George, 1 Camp. 392 ; Bauerman v. Radenius, 7 T. R. 663. 
 
 As to admissions by parties interested, see Spargo v. 
 Brown, 9 B. & C. 938. 
 
 See also on the subject of this article, 1 Ph. Ev. 362-3, 
 869, 398; and T. E. ss. 669-671, 685, 687, 719; Roscoe, 
 N. P. 71. 
 
 As to admissions by privies, see 1 Ph. Ev. 394-7, and 
 T. E. (from Greenleaf), s. 712.
 
 Notes.] the law oe evidence. 167 
 
 NOTE xn. 
 (to Article 17.) 
 
 The subject of the relevancy of admissions by agents 
 is rendered difficult by the vast variety of forms which 
 agency assumes, and by the distinction between an agent 
 for the purpose of making a statement and an agent for 
 the purpose of transacting business. If A sends a mes- 
 sage by B, B's- words in delivering it are in effect A's; but 
 B's statement in relation to the subject matter of the mes- 
 sage have, as such, no special value. A's own statements 
 are valuable if they suggest an inference which he after- 
 wards contests because they are against his interest ; but 
 when the agent's duty is done, he has no special interest 
 in the matter. 
 
 The principle as to admissions by agents is stated and 
 explained by Sir W. Grant, in Fairlie v. Hastings, 10 Ve. 
 126-7. 
 
 NOTE XIII. 
 
 (to Article 18.) 
 See, for a third exception (which could hardly occur 
 now), Clay v. Langslow, M. & M. 45. 
 
 NOTE XIV. 
 (to Article 19.) 
 This comes very near to the case of arbitration. See, as 
 to irregular arbitrations of this kind, 1 Ph. Ev. 383 ; T. E. 
 bs. 689-90.
 
 168 A DIGEST OF [NOTES. 
 
 NOTE XV. 
 (to Article 20.) 
 See more on this subject in 1 Ph. Ev. 32G-8 ; T. E. ss. 
 702, 720-3 ; K. N. P. 66. 
 
 NOTE XVI. 
 (to Article 22.) 
 
 On the law as to confessions, see 1 Ph. Ev. 401 423; T. 
 E. ss. 796-807, and s. 824 ; Best, ss. 551-574 ; Roscoe, Cr. 
 Ev. 38-56; 3 Puss, on Crimes, by Greaves, 365-436. Joy 
 on Confessions reduces the law on the subject to the shape 
 of 13 propositions, the effect of all of which is given in 
 the text in a different form. 
 
 Main' cases have been decided as to the language which 
 amounts to an inducement to confess (see Pvoscoe, Cr. Ev. 
 40-3, where most of them are collected). They are, how- 
 ever, for practical purposes, summed up in R. v. Baldry, 
 2 Den. 430, which is the authority for the last lines of the 
 first paragraph of this article. 
 
 NOTE XVLL 
 
 (to Article 23.) 
 
 Cases are sometimes cited to show that if a person is 
 
 examined as a witness on oath, his deposition cannot be 
 
 used in evidence against him afterwards (see T. E. ss. 800 
 
 and 818, n. 6; also 3 Kuss. on Cri., by Greaves, 407> &c).
 
 Notes.] the law of evidence. 169 
 
 All these cases, however, relate to the examination before 
 magistrates of persons accused of crimes, under the stat- 
 utes which were in force before 11 & 12 Vict. c. 42. 
 
 These statutes authorized the examination of prisoners, 
 but not their examination upon oath. The 11 and 12 
 Vict. c. 42, prescribes the form of the only question which 
 the magistrate can put to a prisoner; and since that enact- 
 ment it is scarcely possible to suppose that any magistrate 
 would put a prisoner upon his oath. The cases may 
 therefore be regarded as obsolete. 
 
 note xvm. 
 
 (to Article 26.) 
 As to dying declarations, see 1 Ph. Ev. 239-252 ; T. E. 
 ss. 644-652 ; Best, s. 505 ; Starkie, 32 & 38 ; 3 Russ. Cri. 
 250-272 (perhaps the fullest collection of the cases on the 
 subject) ; Roscoe, Crim. Ev. 31-2. R. v. Baker, 2 Mo. & 
 Ro. 53, is a curious case on this subject. A and B were 
 both poisoned by eating the same cake. C was tried for 
 poisoning A. B's dying declaration that she made the 
 cake in C's presence, and put nothing bad in it, was ad- 
 mitted as against C, on the ground that the whole formed 
 one transaction. 
 
 NOTE XIX. 
 (to Article 27.) 
 1 Ph. Ev. 280 300 ; T. E. ss. 630-643 : Best, 501 ; R. N. 
 P. 63 ; and see note to Pi-ice v. Lord Torrington, 2 S. L. 
 C. 328.
 
 170 a digest or [Notes. 
 
 NOTE XX. 
 (to Article 28.) 
 
 The best statement of the law upon this subject will be 
 found in Higharn v. Ridgivay, and the note thereto, 2 S. 
 L. C. 318. See also 1 Ph. Ev. 252-280 ; T. E. ss. 602-629; 
 Best, s. 500; R.N. P. 584. 
 
 A class of cases exist which I have not put into the form 
 of an article, partly because their occurrence since the 
 commutation of tithes must be very rare, and partly be- 
 cause I find a great difficulty in understanding the place 
 which the rule established by them ought to occupy in a 
 systematic statement of the law. They are cases which 
 lay down the rule that statements, as to the receipts of 
 tithes and moduses made by deceased rectors and other 
 ecclesiastical corporations sole, are admissible in favor of 
 their successors. There is no doubt as to the rule (see, in 
 particular, Short v. Lee, 2 Jac. & "Wal. 464 ; and Young v. 
 Clare Hall, 17 Q. B. 537). The difficulty is to see why it 
 was ever regarded as an exception. It falls directly within 
 the principle stated in the text, and would appear to be an 
 obvious illustration of it; but in many cases it has been 
 declared to be anomalous, inasmuch as it enables a prede- 
 cessor in title to make evidence in favor of his successor. 
 This suggests that article 28 ought to be limited by a pro- 
 viso that a declaration against interest is not relevant if it 
 was made by a predecessc in title of the person who 
 seeks to prove it, unless it is a declaration by an ecclesi-
 
 Notes.] the law of evidence. 171 
 
 astical corporation sole, or a member of an ecclesiastical 
 corporation aggregate (see Short v. Lee), as to the receipt 
 of a tithe or modus. 
 
 Some countenance for such a proviso may be found in 
 the terms in which Bay ley, J., states the rule in Gleadow 
 v. Aikin, and in the circumstance that when it first ob- 
 tained currency the parties to an action were not compe- 
 tent witnesses. But the rule as to the indorsement of 
 notes, bonds, &c, is distinctly opposed to such a view. 
 
 NOTE XXI. 
 (to Article 30.) 
 
 Upon this subject, besides the authorities in the text, 
 seel Ph. Ev. 169-197; T. E. ss. 543-569; Best, s. 497; 
 R. N. P. 50-54 (the latest collection of cases). 
 
 A great number of cases have been decided as to the 
 particular documents, &c, which fall within the rule given 
 in the text. They are collected in the works referred to 
 above, but they appear to me merely to illustrate one or 
 other of the branches of the rule, and not to extend or 
 vary it. An award, e. g., is not within the last branch of 
 illustration (b), because it "is but the opinion of the 
 arbitrator, not upon his own knowledge" (Evans v. Rees, 
 10 A. & E. 155) ; but the detailed application of such a 
 rule as this is better learnt by experience, applied to a 
 firm grasp of principle, than by an attempt to recollect 
 innumerable cases.
 
 172 A DIGEST OF [NOTES. 
 
 Thacase of Weeks v. Sparke is remarkable for the light 
 it throws on the history of the Law of Evidence. It was 
 decided in 1813, and contains inter alia the following 
 curious remarks by Lord Ellenborough. " It is stated to 
 be the habit and practice of different circuits to admit this 
 species of evidence upon such a question as the present. 
 That certainly cannot make the law, but it shows at least, 
 from the established practice of a large branch of the pro- 
 fession, and of the judges who have presided at various 
 times on those circuits, what has been the prevailing opin- 
 ion upon this subject amongst so large a class of persons 
 interested in the due administration of the law. It is 
 stated to have been the practice both of the Northern and 
 "Western Circuits. My learned predecessor, Lord Kenyon, 
 certainly held a different opinion, the practice of the Ox- 
 ford Circuit, of which he was a member, being different.'* 
 So in the Berkeley Peerage Case, Lord Eldon said, "when 
 it was proposed to read this deposition as a declaration, 
 the Attorney-General (Sir Vicary Gibbs) flatly objected to 
 it. He spoke quite right as a Western Circuiteer, of what 
 he had often heard laid down in the West, and never heard 
 doubted" (4 Cam. 419 a.d. 1811). This shows how very 
 modern much of the Law of Evidence is. Le Blanc, J., 
 in Weeks v. Sparke, says, that a foundation must be laid 
 for evidence of this sort, "by acts of enjoyment within 
 living memory." This seems superfluous, as no jury 
 would ever find that a public right of way existed, which 
 had not been used in living memory, on the strength of a
 
 Notes.] the law of evidence. 173 
 
 report that some deceased person had said that there once 
 was such a right 
 
 NOTE XXLT. 
 (to Article 31.) 
 
 See 1 Ph. Ev. 197-233; T. E. ss. 571-592; Best, 633; R. 
 N. P. 49-50. 
 
 The Berkeley Peerage Case (Answers of the Judges to 
 the House of Lords), 4 Cam. 401, which established the 
 third condition given in the text ; and Davies v. Lowndes, 
 6 M. & G-. 471 (see more particularly pp. 525-9, in which 
 the question of family pedigrees is fully discussed) are 
 specially important on this subject. 
 
 As to declarations as to the place of births, &c, see 
 Shields v. Boucher, 1 De G. & S. 49-58. 
 
 NOTE XXLTL 
 (to Article 32.) 
 See also 1 Ph. Ev. 308-8; T. E. ss. 434-447 ; Buller, N. 
 P. 238, and following. 
 
 NOTE XXIY. 
 
 (to Articles 39-47.) 
 
 The law relating to the relevancy of judgments of Courts 
 
 of Justice to the existence of the matters which they assert, 
 
 is made to appear extremely complicated by the manner in
 
 174 A DIGEST OF [NOTES. 
 
 which it is usually dealt with. The method commonly 
 employed is to mix up the question of the effect of 
 judgments of various kinds with that of their admissi- 
 bility, subjects which appear to belong to different branches 
 of the law. 
 
 Thus the subject, as commonly treated, introduces into 
 the Law of Evidence an attempt to distinguish between 
 judgments in rem, and judgments in personam or inter 
 partes (terms adapted from, but not belonging to, Roman 
 law, and never clearly defined in reference to our own or 
 any other system) ; also the question of the effect of the 
 pleas of autrefois acquit, and autrefois convict, which 
 clearly belong not to evidence, but to criminal procedure ; 
 the question of estoppels, which belongs rather to the law 
 of pleading than to that of evidence; and the question of 
 the effect given to the judgments of foreign Courts of 
 Justice, which would seem more properly to belong to 
 private international law. These and other matters are 
 treated of at great length in 2 Ph. Ev. 1-78, and T. E. ss. 
 1480-1534, and in the note to the Duchess of Kingston's 
 Case in 2 S. L. C. 777-880. Best (ss. 588-595) treats the 
 matter more concisely. 
 
 The text is confined to as complete a statement as I 
 could make of the principles which regulate the relevancy 
 of judgments considered as declarations proving the facts 
 which they assert, whatever may be the effect or the use 
 to be made of those facts when proved. Thus the leading 
 principle stated in article 40 is equally true of all judg-
 
 Notes.] the law of evidence. 175 
 
 merits alike. Every judgment, whether it be in rem or 
 inter partes, must and does prove what it actually effects, 
 though the effects of different sorts of judgments differ as 
 widely as the effects of different sorts of deeds. 
 
 There has been much controversy as to the extent to 
 which effect ought to be given to the judgments of for- 
 eign Courts in this country, and as to the cases in which 
 the Courts will refuse to act upon them ; but as a mere 
 question of evidence, they do not differ from English 
 judgments. The cases on foreign judgments are collected 
 in the note to the Duchess of Kingston's Case, 2 S. L. C 
 813-845. There is a convenient list of the cases in R. N. 
 P. 201-3. The cases of Godard v. Gray, L. R. 6 Q. B. 
 139, and Castrique v. Imrie, L. R. 4 E. & L A. 414, are 
 the latest leading cases on the subject. 
 
 NOTE XXV. 
 
 (to Chapter V.) 
 On evidence of opinions, see 1 Ph. Ev. 520-8; T. E. ss. 
 1273-1281 ; Best, ss. 511-17 ; R. N. P. 193-4. The leading 
 case on the subject is Doe v. Tatham, 7 A. & E. 313 ; and 
 4 Bing. N. C. 489, referred to above in Note IX. Baron 
 Parke, in the extracts there given, treats an expression of 
 opinion as hearsay — that is, as a statement affirming the 
 truth of the subject-matter of the opinion. 
 
 NOTE XXVL 
 (to Chapter VI.) 
 See 1 Ph. 502-8 ; T. E. ss. 325-336 ; Best ss. 257-263 r
 
 176 A DIGEST OF [NOTES. 
 
 3 Russ. Cr. 299-304. The subject is considered at length in 
 R. v. Rowion, 1 L. & C. 520. One consequence of the view 
 of the subject taken in that case is that a witness may, with 
 perfect truth, swear that a man, who to his knowledge has 
 been a receiver of stolen goods for years, has an excellent 
 character for honesty, if he has had the good luck to con- 
 ceal his crimes from his neighbors. It is the essence of 
 successful hypocrisy to combine a good reputation with a 
 bad disposition, and, according to R. v. Rowton, the 
 reputation is the important matter. The case is seldom, if 
 ever, acted on in practice. The question always put to a wit- 
 ness as to character is, What is the prisoner's character 
 for honesty, morality, or humanity? as the case maybe; 
 nor is the witness ever warned that he is to confine his 
 evidence to the prisoner's reputation. It would be no 
 easy matter to make the common run of witnesses under- 
 stand the distinction. 
 
 NOTE xxvn. 
 
 (to Article 58.) 
 The list of matters judicially noticed in this article is not 
 intended to be quite complete. It is compiled from 1 Ph. 
 Ev. 458-67, and T. E. ss. 4-20, where the subject is gone 
 into more minutely. A convenient list is also given in 
 R. N. P. ss. 88-92, which is much to the same effect. It 
 may be doubted whether an absolutely complete list could 
 be formed, as it is practically impossible to enumerate 
 everything which is so notorious in itself, or so distinctly
 
 Notes.] the law of evidence. 177 
 
 recorded by public authority, that it would be superfluous 
 to prove it. Paragraph (1) is drawn with reference to the 
 fusion of Law, Equity, Admiralty, and Testamentary 
 Jurisdiction effected by the Judicature Act. 
 
 NOTE XXVLTL 
 (to Article 62.) 
 Owing to the ambiguity of the word "evidence, " which 
 is sometimes used to signify the effect of a fact when 
 proved, and sometimes to signify the testimony by which 
 a fact is proved, the expression "hearsay is no evidence," 
 has many meanings. Its common and most important 
 meaning is the one given in article 14, which might be 
 otherwise expressed by saying that the connection between 
 events, and reports that they have happened, is generally 
 so remote that it is expedient to regard the existence of 
 the reports as irrelevant to the occurrence of the events, ex- 
 cept in excepted cases. Article 62 expresses the same 
 thing from a different point of view, and is subject to no 
 exceptions whatever. It asserts that whatever may be the 
 relation of a fact to be proved to the fact in issue, it must, if 
 proved by oral evidence, be proved by direct evidence. For 
 instance, if it were to be proved under article 31 that A, who 
 died 50 }-ears ago, said that he had heard from his father B, 
 who died 100 years ago, that A's grandfather. C had told B 
 that D, C's elder brother, died without issue, A's statement 
 must be proved by some one who, with his own ears, 
 heard him make it If (as in the case of verbal slander)
 
 178 a digest of [Notes 
 
 the speaking of the words was the very point in issue, they 
 must be proved in precisely the same way. Cases in which 
 evidence is given of character and general opinion, may 
 perhaps seem to be exceptions to this rule, but they are 
 not so. When a man swears that another has a good char- 
 acter, he means that he has heard many people, though he 
 does not particularly recollect what people, speak well of 
 him, though he does not recollect all that they said. 
 
 NOTE XXIX. 
 (to Article 68.) 
 
 For these rules in greater detail, see 1 Ph. Ev. 452-3, 
 and 2 Ph. Ev. 272-289; T. E. ss. 419-426; R. N. P. 8 & 9. 
 
 The principle of all the rules is fully explained in the 
 cases cited in the footnotes, more particularly in Diuyer v. 
 Collins, 7 Ex. 639. In that case it is held that the object 
 of notice to produce is "to enable the party to have the 
 document in Court, and if he does not, to enable his oppo- 
 nent to give parol evidence ... to exclude the argu- 
 ment that the opponent has not taken all reasonable means 
 to procure the original, which he must do before he can 
 be permitted to make use of secondary evidence " (p. 647-8). 
 
 NOTE XXX. 
 (to Articles 69 & 70.) 
 This is probably the most ancient, and is, as far as it
 
 NOTES.J THE LAW OF EVIDENCE. 179 
 
 extends, the most inflexible of all the rules of evidence. 
 The following characteristic observations by Lord Ellen- 
 borough occur in R. v. Harringwo7-th, 4 M. & S. 353: 
 
 "The rule, therefore, is universal that you must first 
 
 i 
 call the subscribing witness ; and it is not to be varied in 
 
 each particular case by trying whether, in its application, 
 it may not be productive of some inconvenience, for then 
 there would be no such thing as a general rule. A lawyer 
 who is well stored with these rules would be no better than 
 any other man that is without them, if by mere force of 
 speculative reasoning it might be shown that the applica- 
 tion of such and such a rule would be productive of such 
 and such an inconvenience, and therefore ought not to 
 prevail ; but if any general rule ought to prevail, this is 
 certainly one that is as fixed, formal, and universal as any 
 that can be stated in a Court of Justice." 
 
 In Whyvian v. Carth, 8 Ex. 807, Pollock, C. B., said, 
 "The parties are supposed to have agreed inter se that the 
 deed shall not be given in evidence without his [the attest- 
 ing witness] being called to depose to the circumstances 
 attending its execution." 
 
 In very ancient times, when the jury were witnesses as 
 to matter of fact, the attesting witnesses to deeds (if a deed 
 came in question) would seem to have been summoned 
 with, and to have acted as a sort of assessors to, the jury. 
 See as to this, Bracton, fo. 38a; Fortescue de Laudibus, 
 ch. xxxii. with Selden's note ; and cases collected from the 
 Year-books in 'Broke's Abridgment,' tit. Testmoigne*.
 
 180 A DIGEST OF [NOTES. 
 
 For the present rule, and the exceptions to it, see 1 Ph. 
 Ev. 242-261; T. E. ss. 1637-42; R. N. P. 147-50; Best, 
 ss. 220, &c. 
 
 The old rule which applied to all attested documents 
 was restricted to those required to be attested by law, by 
 17 & 18 Yict. c. 125, s. 26, and 28 & 29 Vict. c. 18, ss. 1 
 &7. 
 
 NOTE XXXL 
 (to Article 75.) 
 
 Mr. Phillips (ii. 196) says, that upon a plea of nul tiel 
 record, the original record must be produced if it is in the 
 same Court. 
 
 Mr. Taylor (s. 1379) says, that upon prosecutions for 
 perjury assigned upon any judicial document, the original 
 must be produced. The authorities given seem to me 
 hardly to bear out either of these statements. They show 
 that the production of the original in such cases is the 
 usual course, but not, I think, that it is necessary. The 
 case of Lady Dartmouth v. Roberts, 16 Ea. 334, is too 
 w""li Po* the proposition for which it is cited. The matter, 
 however, is of little practical importance. 
 
 NOTE XXXLL 
 (to Articles 77 & 78.) 
 The learning as to exemplifications and ofBce-copies will
 
 Notes.] the law of evidence 181 
 
 be found in the following authorities: Gilbert's 'Law of 
 Evidence,' 11-20; Buller, Nisi Prius. 228, and following; 
 Starkie, 256-66 (fully and very conveniently) ; 2 Ph. Ev. 
 196-200; T. E. ss. 1380-4; K. N. P. 112-15. The second 
 paragraph of article 77 is founded on Appleion v. Bray- 
 brook, 6 M. & S. 39. 
 
 As to exemplifications not under the Great Seal, it is 
 remarkable that the Judicature Acts give .no seal to the 
 Supreme Court, or the High Court, or any of its divisions. 
 
 NOTE XXXIH. 
 (to Article 90.) 
 The distinction between this and the following article is, 
 that article 90 defines the cases in which documents are 
 exclusive evidence of the transactions which they embody, 
 while article 91 deals with the interpretation of docu- 
 ments by oral evidence. The two subjects are so closely 
 connected together, that they are not usually treated as 
 distinct, but they are so in fact. A and B make a contract 
 of marine insurance on goods, and reduce it to writing. 
 They verbally agree that the goods are not to be shipped 
 in a particular ship, though the contract makes no such 
 reservation. They leave unnoticed a condition usually 
 understood in the business of insurance, and they make 
 use of a technical expression, the meaning of which is not 
 commonly known. The law does not permit oral evidence 
 to be given of the exception as to the particular ship. It
 
 182 a digest of [Notes. 
 
 does permit oral evidence to be given to annex the con- 
 dition; and thus far it decides that for one purpose the 
 document shall, and that for another it shall not, be re- 
 garded as exclusive evidence of the terms of the actual 
 agreement between the parties. It also allows the tech- 
 nical term to be explained, and in doing so it interprets 
 the meaning of the document itself. The two operations 
 are obviously different, and their proper performance 
 depends upon different principles. The first depends 
 upon the principle that the object of reducing transactions 
 to a written form is to take security against bad faith or 
 bad memory, for which reason a writing is presumed, as a 
 general rule, to embody the final and considered determ- 
 ination of the parties to it. The second depends on a con- 
 sideration of the imperfections of language, and of the 
 inadequate manner in which people adjust their words to 
 the facts to which they apply. 
 
 The rules themselves are not, I think, difficult either to 
 state, to understand, or to remember; but they are by no 
 means easy to appl}-, inasmuch as, from the nature of the 
 case, an enormous number of transactions fall close on one 
 side or the other of most of them. Hence the exposition of 
 these rules, and the abridgment of all the illustrations of 
 them which have occurred in practice, occupy a very large 
 space in the different text writers. They will be found in 
 2 Ph. Ev. 332^24; T. E. ss. 1031-1110; Star. 648-731; 
 Best (very shortly and imperfectly), ss. 226-229; R. N. 
 P. (an immense list of cases), 17-35.
 
 Notes.] ihk law of evidence. 183 
 
 As to paragraph (4), which is founded on the case of 
 Goss v. Lord Nugent, it is to be observed that the para- 
 graph is purposely so drawn as not to touch the question 
 of the effect of the Statute of Frauds. It was held in effect 
 in Goss v. Lord Nugent, that if by reason of the Statute 
 of Frauds the substituted contract could not be enforced, 
 it would not have the effect of waiving part of the original 
 contract ; but it seems the better opinion, that a verbal 
 rescission of a contract good under the Statute of Frauds 
 would be good. See Noble v. Ward, L. R. 2 Ex. 135, and 
 'Pollock on Contracts,' 411, note (6). A contract by deed 
 can be released only by deed, and this case also would fall 
 within the proviso to paragraph (4). 
 
 The cases given in the illustrations will be found to mark 
 sufficiently the various rules stated. As to paragraph (5), 
 a very large collection of cases will be found in the notes 
 to Wigglesworih v. Dallison, 1 S. L. C. 598-628, but the 
 consideration of them appears to belong rather to mercan- 
 tile law than the Law of Evidence. For instance, the 
 question what stipulations are consistent with, and what 
 are contradictory to, the contract formed by subscribing a 
 bill of exchange, or ihe contract between an insurer and 
 an underwriter, are not questions of the Law of Evidence. 
 
 NOTE xxxrv. 
 (to Article 91.) 
 Perhaps the subject-matter of this article does not fall
 
 184 A DIGEST OF [NoTES. 
 
 strictly within the Law of Evidence, but it is generally 
 considered to do so ; and as it has always been treated as a 
 branch of the subject, I have thought it best to deal with it. 
 
 The general authorities for the propositions in the text 
 are the same as those specified in the last note ; but the 
 great authority on the subject is the work of Vice-Chan- 
 cellor Wigram on Extrinsic Evidence. Article 91, indeed, 
 will be found, on examination, to differ from the six propo- 
 sitions of Vice-Chancellor Wigram only in its arrangement 
 and form of expression, and in the fact that it is not restricted 
 to wills. It will, I think, be found, on examination, that 
 every case cited by the Vice-Chancellor might be used as 
 an illustration of one or the other of the propositions con- 
 tained in it. 
 
 It is difficult to justify the line drawn between the rule 
 as to cases in which evidence of expressions of intention is 
 admitted and cases in which it is rejected (paragraph 7, 
 illustrations (k), (I), and paragraph 8, illustration (m)). 
 When placed side by side, such cases as Doe v. Hiscocks 
 (illustration (k) ) and Doe v. Needs (illustration (m) ) pro- 
 duce a singular effect. The vagueness of the distinction 
 between them is indicated by the case of Charter v. Charter, 
 L. R. 2 P. & D. 315. In this case the testator Forster 
 Charter appointed " my son Forster Charter" his execu- 
 tor. He had two sons, William Forster Charter and 
 Charles Charter, and many circumstances pointed to the 
 conclusion that the person whom the testator wished to be 
 his executor was Charles Charter. Lord Penzance not
 
 Notes.] the law of evidence. 185 
 
 only admitted evidence of all the circumstances of the case, 
 but expressed an opinion (p. 319) that, if it were necessary, 
 evidence of declarations of intention might be admitted 
 under the rule laid down by Lord Abinger in Hiscocks v. 
 Hiscocks, because part of the language employed ("my 
 
 son Charter") applied correctly to each son, and the 
 
 remainder, "Forster," to neither. This mode of con- 
 struing the rule would admit evidence of declarations of 
 intention both in cases falling under paragraph 8, and 
 in cases falling under paragraph 7, which is inconsist 
 ent not only with the reasoning in the judgment, but 
 with the actual decision in Doe v. Hiscocks. It is also 
 inconsistent with the principles of the judgment in the 
 later case of Allgood v. Blake, L. K. 8 Ex. 160, where the 
 rule is stated by Blackburn, J., as follows : "In construing 
 a will, the Court is entitled to put itself in the position of 
 the testator, and to consider all material facts and circum- 
 stances known to the testator with reference to which he 
 is to be taken to have used the words in the will, and then 
 to declare what is the intention evidenced by the words 
 used with reference to those facts and circumstances which 
 were (or ought to have been) in the mind of the testator 
 when he used those words." After quoting Wigram on 
 Extrinsic Evidence, and Doe v. Hiscocks, he adds: "No 
 doubt, in many cases, the testator has, for the moment, for- 
 gotten or overlooked the material facts and circumstances 
 which he well knew. And the consequence sometimes is 
 that he uses words which express an intention which he
 
 186 A. DIGEST OF [NOTES. 
 
 would not have wished to express, and would have altered 
 if he had been reminded of the facts and circumstances. 
 But the Court is to construe the will as made bj r the test- 
 ator, not to make a will for him ; and therefore it is hound 
 to execute his expressed intention, even if there is great 
 reason to believe that he has by blunder expressed what 
 he did not mean." The part of Lord Penzance's judg- 
 ment above referred to was unanimously overruled in the 
 House of Lords; though the Court, being equally divided 
 as to the construction of the will, refused to reverse the 
 judgment, upon the principle " prcesumitur pro negante." 
 Conclusive as the authorities upon the subject are, it 
 may not, perhaps, be presumptuous to express a doubt 
 whether the conflict between a natural wish to fulfill the 
 intention which the testator would have formed if he had 
 recollected all the circumstances of the case ; the wish to 
 avoid the evil of permitting written instruments to be 
 varied by oral evidence ; and the wish to give effect to wills, 
 has not produced in practice an illogical compromise. The 
 strictly logical course, I think, would be either to admit 
 declarations of intention both in cases falling under para- 
 graph 7, and in cases falling under paragraph 8, or to ex- 
 clude such evidence in both classes of cases, and to hold 
 void for uncertainty every bequest or devise which was 
 shown to be uncertain in its application to facts. Such a 
 decision as that in Springer v. Gardiner, the result of which 
 was to give a legacy to a person whom the testator had no 
 wish to benefit, and who was not either named or described
 
 Notes.] the law of evidence. 187 
 
 in his will, appears to me be a practical refutation of the 
 principle or rule on which it is based. 
 
 Of course, every document, whatever, must to some ex- 
 tent be interpreted by surrounding circumstances. How- 
 ever accurate and detailed a description of things and per- 
 sons may be, oral evidence is always wanted to show that 
 persons and things answering the description exist; and, 
 therefore, in every case whatever, every fact must be 
 allowed to be proved to which the document does, or 
 probably may, refer; but if more evidence than this is 
 admitted, if the Court may look at circumstances which 
 affect the probability that the testator would form this in- 
 tention or that, why should declarations of intention be 
 excluded ? If the question is, "What did the testator say ?" 
 why should the Court look at the circumstances that he 
 lived with Charles, and was on bad terms with William? 
 How can any amount of evidence to show that the testator 
 intended to write "Charles," show that what he did write 
 means "Charles ?" To say that "Forster" means "Charles," 
 is like saying that "two " means "three." If the question 
 is. "What did the testator wish?" why should the Court 
 refuse to look at his declarations of intention ? And what 
 third question can be asked ? The only one which can be 
 suggested is, "What would the testator have meant if he 
 had deliberately used unmeaning words ? " The only an- 
 swer to this would be, he would have had no meaning, and 
 would have said nothing, and his bequest should be pro 
 ianto void.
 
 188 A DIGEST OF [NOTES. 
 
 NOTE XXX^V. 
 (to Article 92.) 
 See 2 Ph. Ev. 364; Star. 726; T. E. (from Greenleaf,) s. 
 1051. Various cases are quoted by these writers in support 
 of the first part of the proposition in the article ; but R. v. 
 Ckeadle is the only one which appears to me to come quite 
 up to it. They are all settlement cases. The latter part 
 of the article rests, so far as I know, on no authority ; but 
 it must, I think, be law. It cannot be doubted, for instance, 
 that if a contract in writing, as it stood, supplied a motive 
 for an alleged crime, a party to it, accused of that crime, 
 might show that a verbal agreement had been incorporated 
 with it which would remove the motive, and which was 
 intended to be carried out, though not legally binding. 
 
 NOTE XXXVL 
 (to Part HI.) 
 
 In this and the following chapter many matters usually 
 introduced into treatises on evidence are omitted, because 
 they appear to belong either to the subject of pleading, 
 or to different branches of Substantive Law. For instance, 
 the rules as to the burden of proof of negative averments 
 in criminal cases (1 Ph. Ev. 555, &c; 3 Russ. on Cr. 
 276-9,) belong rather to criminal procedure than to evi- 
 dence. Again, in every branch of Substantive Law there
 
 Notes.] the law of evidence. 189 
 
 are presumptions, more or less numerous and important, 
 which can be understood only in connection with those 
 branches of the law. Such are the presumptions as to the 
 ownership of property, as to consideration for a bill of 
 exchange, as to many of the incidents of the contract of 
 insurance. Passing over all these, I have embodied in 
 Chapter XIV. those presumptions only which bear upon 
 the proof of facts likely to be proved on a great variety of 
 different occasions, and those estoppels only which arise 
 out of matters of fact, as distinguished, from those which 
 arise upon deeds or judgments. 
 
 NOTE XXXVIL 
 
 (to Article 94.) 
 The presumption of innocence belongs principally to the 
 Criminal Law, though it has, as the illustrations show, a 
 bearing on the proof of ordinary facts. The question, 
 "What doubts are reasonable in criminal cases?" belongs 
 to the Criminal Law. 
 
 NOTE XXXVLLL 
 
 (to Article 101.) 
 
 The first part of this article is meant to give the effect 
 
 of the presumption, omnia esse rite acta, 1 Ph. Ev. 480, 
 
 &c: T. E. ss. 124, &c; Best, s. 353, &c This, like all
 
 190 A DIGEST OF [NOTES. 
 
 presumptions, is a very vague and fluid rule at best, and is 
 applied to a great variety of different subject matters. 
 
 NOTE XXXIX. 
 (to Articles 102-105.) 
 
 These articles embody the principal cases of estoppels in 
 pais, as distinguished from estoppels by deed and by record. 
 As they may be applied in a great variety of ways and to 
 infinitely various circumstances, the application of these 
 rules has involved a good deal of detail. The rules them- 
 selves appear clearly enough on a careful examination of 
 the cases. The latest and most extensive collection of 
 cases is to be seen in 2 S. L. C. 851-880, where the cases 
 referred to in the text and many others are abstracted. 
 See, too, 1 Ph. Ev. 350-3; T. E. ss. 88-90, 776, 778; Best, 
 s. 543. 
 
 Article 102 contains the rule in Pickard v. Sears, 6 A. 
 & E. 474,. as interpreted and limited by Parke, B., in 
 Freeman v. Cooke, 6 Bing. 174, 179. The second para- 
 graph of the article is founded on the application of this 
 rule to the case of a negligent act causing fraud. The 
 rule, as expressed, is collected from a comparison of the 
 following cases: Bank of Ireland v. Evans, 5 H. L. 389; 
 Swan v. British and Australasian Company, which was 
 before three Courts, see 7 C. B. (N. S.) 448 ; 7 H. & N. 603 ; 
 2 H. & C. 175, where the judgment of the majority of the 
 Court of Exchequer was reversed ; and Halifax Guardians
 
 Notes.] the law of evidence. 191 
 
 v. Wheelwright, L. R. 10 Ex. 183, in which all the cases 
 are referred to. All of these refer to Young v. Grote, 4 
 Bing. 253, and its authority has always been upheld, 
 though not always on the same ground. The rules on this 
 subject are stated in general terms in Carr v. L. $ N. W. 
 Railway, L. R. 10 C. P. 316-17. 
 
 It would be difficult to find a better illustration of the 
 gradual way in which the judges construct rules of evi- 
 dence, as circumstances require it, than is afforded by a 
 study of these cases. 
 
 NOTE XL. 
 (to Chapter XV.) 
 The law as to the competency of witnesses was formerly 
 the most, or nearly the most, important and extensive 
 branch of the Law of Evidence. Indeed, rules as to the 
 incompetency of witnesses, as to the proof of documents, 
 and as to the proof of some particular issues, are nearly 
 the only rules of evidence treated of in the older author- 
 ities. A great part of Bentham's 'Rationale of Judicial 
 Evidence ' is directed to an exposure of the fundamentally 
 erroneous nature of the theory upon which these rules 
 were founded ; and his attack upon them has met with a 
 success so nearly complete that it has itself become obso- 
 lete. The history of the subject is to be found in Mr. 
 Best's work, book i. part i. ch. ii. ss. 132-188. See, too.
 
 192 A DIGEST OF [NOTES. 
 
 T. E. ss. 1210-57, and R. N. P. 177-81. As to the old law, 
 see 1 Ph. Ev. 1-104. 
 
 NOTE XLI. 
 (to Article 107.) 
 The authorities for the first paragraph are given at great 
 length in Best, ss. 146-165. See, too, T. E. s. 1240. As 
 to paragraph 2, see Best, s. 148; 1 Ph. Ev. 7; 2 Ph. Ev. 
 457; T. E. s. 1241. The concluding words of the last 
 paragraph are framed with reference to the alteration in 
 the law as to the competency of witnesses made by 32 & 33 
 Vict. c. 68, s. 4. The practice of insisting on a child's 
 belief in punishment in a future state for lying as a con- 
 dition of the admissibility of its evidence, leads to anec- 
 dotes and to scenes little calculated to increase respect 
 either for religion or for the administration of justice. 
 The statute referred to would seem to render this unneces- 
 sary. If a person who deliberately and advisedly rejects 
 all belief in God and a future state is a competent witness, 
 & fortiori, a child who has received no instructions on the 
 subject must be competent also. 
 
 NOTE XLLL 
 (to Article 108.) 
 At Common Law the parties and their husbands and 
 wives were incompetent in all cases. This incompetency 
 was removed as to the parties in civil, but not in criminal
 
 Notes.] the law of evide>.*ce. 193 
 
 cases, by 14 & 15 Vict. c. 99, s. 2; and as to their husbands 
 and wives, by 16 & 17 Vict. c. 83, ss. 1, 2. But sec. 2 
 expressly reserved the Common Law as to criminal cases 
 and proceedings instituted in consequence of adultery. 
 
 The words relating to adultery were repealed by 32 & 33 
 Vict. c. 68, s. 3, which is the authority for the next article. 
 
 Persons interested and persons who had been convicted 
 of certain crimes were also incompetent witnesses, but 
 their incompetency was removed by 6 & 7 Vict. c. 85. 
 
 The text thus represents the effect of the Common Law 
 as varied by four distinct statutory enactments. 
 
 By 5 & 6 Will. IV. c. 50, s. 100, inhabitants, &c, were 
 made competent to give evidence in prosecutions of par- 
 ishes for non-repair of highways, and this was extended to 
 some other cases by 3 & 4 Vict. c. 26. These enactments, 
 however, have been repealed by 37 & 38 Vict. c. 35, and 
 c. 96 (the Statute Law Kevision Acts, 1874) respectively. 
 Probably this was done under the impression that the 
 enactments were rendered obsolete by 14 and 15 Vict. c. 
 99, s. 2, which made parties admissible witnesses. A ques- 
 tion might be raised upon the effect of this, as sec. 3 
 expressly excepts criminal proceedings, and a prosecution 
 for a nuisance is such a proceeding. The result would 
 seem to be, that in cases as to the repair of highways, 
 bridges, &c, inhabitants and overseers are incompetent, 
 unless, indeed, the Courts should hold that they are sub- 
 stantially civil proceedings, as to which see R. v. Russell, 
 3 E. & B. 942. 
 
 If
 
 194 A DIGEST OF [NOTES. 
 
 NOTE XLILL 
 (to Article 111.) 
 
 The en sea on which these articles are founded are only 
 Nisi Prius decisions ; but as they are quoted by writers of 
 eminence (1 Ph. Ev.139; T. E. s. 859), I have referred to 
 them. 
 
 In the trial of Lord Thanet, for an attempt to rescue 
 Arthur O'Connor, Serjeant Shepherd, one of the special 
 commissioners, before whom the riot took place in court 
 at Maidstone, gave evidence. R. v. Lord Thanet, 27 S 
 T. 836. 
 
 I have myself been called as a witness on a trial for per- 
 j-iry to prove what was said before me when sitting as an 
 arbitrator. The trial took place before Mr. Justice PJayes 
 at York, in 1869. 
 
 As to the case of an advocate giving evidence in the 
 course of a trial in which he is professionally engaged, see 
 several cases cited and discussed in Best, ss. 184-6. 
 
 In addition to those cases, reference may be made to the 
 trial of Home Tooke for a libel in 1777, when he proposed 
 to call the Attorney-General (Lord Thurlow), 20 S. T. 740. 
 These cases do not appear to show more than that, as a 
 rule, it is for obvious reasons improper that those who 
 conduct a case as advocates should be called as witnesses 
 in it. Cases, however, might occur in which it might be 
 absolutely necessary to do so. For instance, a solicitor
 
 Notes.] the law of evidence. 195 
 
 engaged as an advocate might, not at all improbably, be 
 the attesting witness to a deed or wilL 
 
 NOTE XLIV. 
 (to Article 115.) 
 This article sums up the rule as to professional commu- 
 nications, every part of which is explained at great length, 
 and to much the same effect in 1 Ph. Ev. 105-122 ; T. E. 
 ss. 832-9 ; Best, s. 581. It is so well established and so 
 plain in itself that it requires only negative illustrations. 
 It is stated at length by Lord Brougham in Greenough v. 
 Gaskell, 1M.&K 98. 
 
 NOTE XLV. 
 (to Article 117.) 
 The question whether clergymen, and particularly 
 whether Roman Catholic priests, can be compelled to dis- 
 close confessions made to them professionally has never 
 been solemnly decided in England, though it is stated by 
 the text writers that they can. See 1 Ph. Ev. 109 ; T. E. 
 ss. 837-8; E. N. P. 190; Starkie, 40. The question is dis- 
 cussed at some length in Best, ss. 583-4 ; and a pamphlet 
 was written to maintain the existence of the privilege by 
 Mr. Baddeley, in 1865. >Ir. Best shows clearly that none 
 of the decided cases are directly in point, except Butler v. 
 Moore (MacNally, 253-4), and possibly R. v. Sparkcs,
 
 196 A DIGEST OF [NoTKS. 
 
 which was cited by Garrow, in arguing DuBarre v. Livctle, 
 before Lord Kenyon (1 Pea. 108). The report of his m- 
 gument is in these words : "The prisoner being a Pnpfot, 
 had made a confession before a Protestant clergyman el 
 the crime for which he was indicted; and that confession 
 was permitted to be given in evidence on the trial" (be- 
 fore Buller, J.), "and he was convicted and "executed." 
 The report is of no value, resting as it does on Peake's 
 note of Garrow' s statement of a case in which he was 
 probably not personally concerned; and it does not appear 
 how the objection was taken, or whether the matter was 
 ever argued. Lord Kenyon, however, is said to have 
 observed : " I should have paused before I admitted the 
 evidence there admitted." 
 
 Mr. Baddele\-'s argument is in a few words, that the 
 privilege must have been recognized when the Roman 
 Catholic religion was established by law, and that it has 
 never been taken away. 
 
 I think that the modern Law of Evidence is not so old 
 as the Reformation, but has grown up by the practice 
 of the Courts, and by decisions in the course of the last 
 two centuries. It came into existence at a time when ex- 
 ceptions in favor of auricular confessions to Roman Cath- 
 olic priests were not likely to be made. The general rule 
 is that every person must testify to what he knows. An 
 exception to the general rule has been established in regard 
 to legal advisers, but there is nothing to show that it 
 extends to clergymen, and it is usually so stated as not to
 
 Notes.] the law of evidence. 197 
 
 include them. This is the ground on which the Irish Mas- 
 ter of the Rolls (Sir Michael Smith) decided the case of 
 Butler v. Moore, in 1802 (MacNally, Ev. 253-4). It was a 
 demurrer to a rule to administer interrogatories to a Roman 
 Catholic priest as to matter which he said he knew, if at 
 all. professionally only. The Judge said, "It was the 
 undoubte I legal constitutional right of every subject of 
 the realm who has a cause depending, to call upon a fel- 
 low-subject to testify what he may know of the matters in 
 issue; and every man is bound to make the discovery, 
 unless specially exempted and protected by law. It was 
 candidly admitted, that no special exemption could be 
 shown in the present instance, and analogous cases and 
 principles alone were relied upon." The analogy, how- 
 ever, was not considered sufficiently strong. 
 
 Several judges have, for obvious reasons, expressed the 
 strongest disinclination to compel such a disclosure. Thus 
 Best, C. J., said, "I, for one, will never compel a clergy- 
 man to disclose communications made to him by a prisoner; 
 but if he chooses to disclose them I shall receive them in 
 evidence" {obiter, in Broad v. Pitt, 3 C. & P. 518). Alder- 
 son, B., thought (rather it would seem as a matter of good 
 feeling than as a matter of positive law) that such evidence 
 should not be given. R. v. Griffin, 6 Cox, Cr. Ca. 219. 
 
 NOTE XLVL 
 
 (to Articles 126, 127, 128.) 
 These articles relate to matters almost too familiar to
 
 198 A DIGEST OF [NOTES. 
 
 require authority, as no one can watch the proceedings in 
 any Court of Justice without seeing the rules laid down in 
 them continually enforced. The suhject is discussed at 
 length in 2 Ph. Ev. pt. 2, chap. x. p. 456, &c. ; T. E. s. 
 1258, &c; see, too, Best, s. 631, &c. In respect to leading 
 questions, it is said, " It is entirely a question for the pre- 
 siding judge whether or not the examination is being con- 
 ducted fairly." L.R. N.P. 182. 
 
 NOTE XLVLL 
 (to Article 129.) 
 This article states what is now the well-established prac- 
 tice of the Courts, and it never was more strikingly illus- 
 trated than in the case referred to in the illustration. But 
 the practice which it represents is modern ; and it may 
 perhaps be doubted whether, upon solemn argument, it 
 would be held that a person who is called to prove a minor 
 fact, not really disputed, in a case of little importance, 
 thereby exposes himself to having every transaction of his 
 past life, however private, inquired into by persons who 
 may wish to serve the basest purposes of fraud or revenge 
 by doing so. Suppose, for instance, a medical man were 
 called to prove the fact that a slight wound had been in- 
 flicted, and been attended to by him, would it be lawful, 
 under pretence of testing his credit, to compel him to 
 answer upon oath a series of questions as to his private 
 affairs, extending over many years, and tending to expose
 
 Notes.] the law oe evidence. 199 
 
 transactions of the most delicate and secret kind, in which 
 the fortune and character of other persons might be in- 
 volved? If this is the law, it should be altered. The 
 following section of the Indian Evidence Act (1 of 1872) 
 may perhaps be deserving of consideration. After author- 
 izing, in sec. 117, questions as to the credit of the witness, 
 the Act proceeds as folluws in sec. 148 : — 
 
 "If any such question relates to a matter not relevant 
 to the suit or proceeding, except in so far as it affects the 
 credit of the witness by injuring his character, the Court 
 shall decide whether or not the witness shall be compelled 
 to answer it, and may, it it thinks fit, warn the witness 
 that he is not obliged to answer it. In exercising this 
 discretion, the Court shall have regard to the following 
 considerations: — 
 
 "(1) Such questions are proper if they are of such a 
 nature that the truth of the imputation conveyed by them 
 would seriously affect the opinion of the Court as to the 
 credibility of the witness on the matter to which he 
 testifies. 
 
 "(2) Such questions are improper if the imputation 
 which they convey relates to matters so remote in time, 
 or of such a character, that the truth of the imputation 
 would not affect, or would affect in a slight degree, the 
 opinion of the Court as to the credibility of the witness 
 on the matter to which he testifies. 
 
 "(3) Such questions are improper if there is a great 
 disproportion between the importance of the imputation
 
 200 A DIGEST OF [NOTES. 
 
 made against the witness's character and the importance 
 of his evidence." 
 
 NOTE XLVLLL 
 (to Article 131.) 
 
 The words of the two sections of 17 & 18 Vict. c. 125, 
 meant to be represented by this article are as follows : — 
 
 " 22. A party producing a witness shall not be allowed to 
 impeach his credit by general evidence of bad character; 
 but he may, in case the witness shall, in the opinion of the 
 judge, prove adverse, contradict him by other evidence, 
 or, by leave of the judge, prove that he has made at other 
 times a statement inconsistent with his present testimony; 
 but before such last-mentioned proof can be given, the 
 circumstances of the supposed statement, sufficient to 
 designate the particular occasion, must be mentioned to 
 the witness, and he must be asked whether or not he has 
 made such statement. 
 
 "23. If a witness, upon cross-examination as to a former 
 statement made by him relative to the subject matter of 
 the cause, and inconsistent with his present testimony, 
 does not distinctly admit that he made such statement, proof 
 may be given that he did in fact make it ; but before such 
 proof can be given, the circumstances of the supposed state- 
 ment, sufficient to designate the particular occasion, must be 
 mentioned to the witness, and he must be asked whether 
 or not he has made such statement."
 
 Notes.] the law of evidence. 201 
 
 The sections are obviously ill-arranged ; but apart from 
 this, s. 22 is so worded as to suggest a doubt whether a 
 party to an action has a right to contradict a witness called 
 by himself whose testimony is adverse to his interests. 
 The words "he may, in case the witness shall, in the 
 opinion of the judge, prove adverse, contradict him by 
 >ther evidence," suggest that he cannot do so unless the 
 adge is of that opinion. This is not, and never was, the 
 aw. In Greenough v. Eccles, 5 C. B. (N. S.), p. 802, Wil- 
 liams, J., says: "The law was clear that you might not 
 discredit your own witness by general evidence of bad 
 character; but you might, nevertheless, contradict him by 
 other evidence relevant to the issue;" and he adds (p. 
 803): "It is impossible to suppose that the Legislature 
 could have really intended to impose any fetter whatever 
 on the right of a party to contradict his own witness by 
 other evidence relevant to the issue — a right not only 
 established by authority, but founded on the plainest good 
 sense." 
 
 Lord Chief Justice Cockburn said of the 22nd section : 
 "There has been a great blunder in the drawing of it, and 
 on the part of those who adopted it." . . . "Perhaps 
 the better course is to consider the second branch of the 
 section as altogether superfluous and useless" (p. 806). 
 On this authority I have omitted it. 
 
 For many years before the Common Law Procedure 
 Act of 1854, it was held, in accordance with Queen Caro- 
 line's case (2 Br. & Bing. 28<i-291). that a witness could
 
 202 A DIGEST OF [NOT£S 
 
 not be cross-examined as to statements made in writing, 
 unless the writing had been first proved. The effect of 
 this rule in criminal cases was, that a witness could not be 
 cross-examined as to what he had said before the magis- 
 trates without putting in his deposition, and this gave the 
 prosecuting counsel the reply. Upon this subject rules of 
 practice were issued by the judges in 1837, when the Pris- 
 oner's Counsel Act came into operation. The rules are 
 published in 7 C. & P. 676. They would appear to have 
 been superseded by the 28 Vict. c. 18. 
 
 NOTE XLIX 
 
 The Statute Law relating to the subject of evidence may 
 be regarded either as voluminous or not, according to the 
 view taken of the extent of the subject. 
 
 The number of statutes classified under the head "Evi- 
 dence " in Chitty's ' Statutes ' is 35. The number referred 
 to under that head, in the Index to the 'Revised Statutes,' 
 is 39. Many of these, however, relate only to the proof of 
 particular documents, or matters of fact which may become 
 material under special circumstances. 
 
 Of these I have noticed a few which, for various reasons, 
 appeared important. Such are : 34 & 35 Vict. c. 112, s. 19 
 (see article 11) ; 9 Geo. IV. c. 14, s. I, amended by 19 & 20 
 Vict c. 97, s. 13 (see article 17); 9 Geo. IV. c. 14, s. 3; 
 3 & 4 Will. IV. c. 42 (see article 28) ; 11 & 12 Vict. c. 42, 
 s. 17 (article 33); 30 & 31 Vict. c. 35, s. 6 (article 34); 7
 
 Notes.] the law of evidence. 203 
 
 James I. c. 12 (article 38) ; 7 & 8 Geo. IV. c. 28, s. 11, 
 amended by 6 & 7 Will. IV. c. Ill ; 24 & 25 Vict. c. 96, s. 
 116 ; 24 & 25 Vict c. 90, s. 37 (see article 56) ; 8 & 9 Vict, 
 c. 10, s. 6 ; 35 & 36 Vict. c. 6, s. 4 (article 121) ; 7 & 8 Will. 
 ID. c. 3, ss. 2-4; 39 & 40 Geo. IH. c. 93 (article 122). 
 
 Many, again, refer to pleading and practice rather than 
 evidence, in the sense in which I employ the word. Such 
 are the Acts which enable evidence to be taken on com- 
 mission if a witness is abroad, or relate to the administra- 
 tion of interrogatories. 
 
 Those which relate directly to the subject of evidence, 
 as defined in the Introduction, are the ten following Acts : 
 
 1. 
 
 46 Geo. III. c. 37 (1 section; see article 120). This Act 
 qualifies the rule that a witness is not bound to answer 
 questions which criminate himself, by declaring that he is 
 not excused from answering questions which fix him with 
 a civil liability. 
 
 2. 
 
 6 & 7 Vict. c. 85. This Act abolishes incompetency 
 from interest or crime (4 sections; see article 106). 
 
 3. 
 
 8 & 9 Vict. c. 113: "An Act to facilitate the admission 
 of evidence of certain official and other documents" (8th 
 August, 1845 ; 7 sections) : — 
 
 S. 1, after preamble reciting that many documents are, 
 by various Acts, rendered admissible in proof of certain
 
 204 A DIGEST OF [NOTES. 
 
 particulars if authenticated in a certain way, enacts inter 
 alia that proof that the}- were so authenticated shall not 
 be required if they purport to be so authenticated. (Ar- 
 ticle 79.) 
 
 S. 2. Judicial notice to be taken of signatures of certaio 
 judges. (Article 58, latter part of clause 8.) 
 
 S. 3. Certain Acts of Parliament, proclamations, &c, 
 may be proved by copies purporting to be Queen's printer's 
 copies. (Article 81.) 
 
 4S..] Penalty for forgery, &c. This is omitted as belong- 
 ing to the Criminal Law. 
 
 Ss. 5, 6, 7. Local extent and commencement of Act. 
 4. 
 
 14 & 15 Vict. c. 99 : " An Act to amend the Law of 
 Evidence," 7th August, 1851 (20 sections) : — 
 
 S. 1 repeals part of 6 & 7 Vict. c. 85, which restricted 
 the operation of the Act. 
 
 S. 2 makes parties admissible witnesses, except in cer- 
 tain cases. (Effect given in articles 106 & 108.) 
 
 S. 3. Persons accused of crime, and their husbands and 
 ■wives, not to be competent. (Article 108.) 
 
 S. 4. The first three sections not to apply to proceedings 
 instituted in consequence of adultery. Repealed by 32 & 
 33 Vict. c. 68. (Effect of repeal, and of s. 3 of the last 
 named Act, given in article 109.) 
 
 S. 5. None of the sections above mentioned to affect the 
 Wills Act of 1838, 7 Will. IV. and 1 Vict. c. 26. (Omitted 
 as part of the Law of Wills. )
 
 Notes.] the law of evidence. 205 
 
 iS. 6. The Common Law Courts authorized to grant in- 
 spection of documents. (Omitted as part of the Law of 
 Civii Procedure.) 
 
 S. 7. Mode of proving proclamations, treaties, &c 
 (Article 84.) 
 
 S. 8. Proof of qualification of apothecaries. (Omitted 
 as part of the law relating to medical men.) 
 
 Ss. 9, 10, 11. Documents admissible either in England or 
 in Ireland, or in the colonies, without proof of seal, &c, 
 admissible in all. (Article 80.) 
 
 S. 12. Proof of registers of British ships. (Omitted as 
 part of the law relating to shipping.) 
 
 S. 13. Proof of previous convictions. (Omitted as be- 
 longing to Criminal Procedure.) 
 
 S. 14. Certain documents provable by examined copies, 
 or copies purporting to be duly certified. (Article 79, last 
 paragraph.) 
 
 S. 15. Certifying false documents a misdemeanor. 
 (Omitted as belonging to Criminal Law.) 
 
 S. 16. Who may administer oaths. (Article 125.) 
 
 S. 17. Penalties for forging certain documents. (Omitted 
 as belong' ng to the Criminal Law.) 
 
 S. 18. ivct not to extend to Scotland. (Omitted.) 
 
 S. 19. Meaning of the word " Colony." (Article 80, 
 note 1.) 
 
 S. 20. Commencement of Act. 
 5. 
 
 17 & 18 Vict. c. 125. The Common Law Procedure Act
 
 206 A DIGEST OF [NOTES. 
 
 of 1854 contained several sections which altered the Law 
 of Evidence. 
 
 S. 22. How far a party may discredit his own witness. 
 (Articles 131, 133; and see Note XLVHI.) 
 
 S. 23. Proof of contradictory statements by a witness 
 under cross-examination. (Article 131.) 
 
 S. 24. Cross-examination as to previous statements in 
 writing. (Article 132.) 
 
 S. 25. Proof of a previous conviction of a witness may 
 he given. (Article 130 (1).) 
 
 S. 26. Attesting witnesses need not be called unless 
 writing requires attestation by law. (Article 72.) 
 
 S. 27. Comparison of disputed handwritings. (Articles 
 49 and 52.) 
 
 After several Acts, giving relief to Quakers, Moravians 
 and Separatists, who objected to take an oath, a general 
 measure was passed for the same purpose in 1861. 
 
 6. 
 
 24 & 25 Vict. c. 66 (1st August, 1861, 3 sections) :— 
 
 S. 1. Persons refusing to be sworn from conscientious 
 motives may make a declaration in a given form. (Article 
 123.) 
 
 S. 2. Falsehood upon such a declaration punishable as 
 perjury. (Do.) 
 
 S. 3. Commencement of Act. 
 
 7. 
 28 Vict. c. 18 (9th May, 1865, 10 sections):—
 
 Notes.] the law ok evidence. 207 
 
 S. 1. Sections 3-8 apply to all courts and causes, criminal 
 as well as civil. 
 S. 3. Ke-enacts 17 & 18 Vic. c. 125, s. 22. 
 
 S. 4. 
 
 M 
 
 it 
 
 M 
 
 s.23. 
 
 S. 5. 
 
 (« 
 
 U 
 
 (« 
 
 s. 24. 
 
 S. 6. 
 
 M 
 
 u 
 
 «( 
 
 8.25. 
 
 S. 7. 
 
 H 
 
 u 
 
 U 
 
 s.26. 
 
 S. 8. 
 
 U 
 
 M 
 
 H 
 
 s.27. 
 
 The effect of these sections is given in the articles above 
 referred to by not confining them to proceedings under the 
 Common Law Procedure Act, 1854. 
 
 The rest of the Act refers to other subjects. 
 
 8. 
 
 31 & 32 Vict. c. 37 (25th June, 1868, 6 sections) :— 
 S. 1. Short title. 
 
 S. 2. Certain documents may be proved in particular 
 ways. (Art. 83, and for schedule referred to, see note to 
 the article.) 
 
 S. 3. The act to be in force in the colonies. (Article 83.) 
 
 S. 4. Punishment of forgery. (Omitted as forming part 
 of the Criminal Law.) 
 
 S. 5. Interpretation clauses embodied (where necessary) 
 in Article 83. 
 
 S. 6. Act to be cumulative on Common Law. (Implied 
 article 73.) 
 
 9. 
 
 32 & 33 Vict. e. 68 (9th August, 1869, 6 sections) :—
 
 208 A DIGEST OF [NOTES. 
 
 S. 1 repeals part of 14 & 15 Vict. c. 99, s. 4, and part 
 of 16 & 17 Vict. c. 83, s. 2. (The effect of this repeal is 
 given in article 109 ; and see Note XLII.) 
 
 S. 2. Parties competent in action for breach of promise 
 of marriage, but must be corroborated. (See articles 106 
 and 121.) 
 
 S. 3. Husbands and wives competent in proceedings in 
 consequence of adultery, but not to be compelled to 
 answer certain questions. (Article 109.) 
 
 S. 4. Atheists rendered competent witnesses. (Articles 
 106 and 123.) 
 
 S. 5. Short title. 
 
 S. 6. Act does not extend to Scotland. 
 
 10. 
 
 33 & 34 Vict. c. 49 (9th August, 1870, 3 sections):— 
 
 S. 1. Recites doubts as to meaning of "Court" and 
 "Judge," in s. 4 of 32 & 33 Vict. c. 68, and defines the 
 meaning of those words. (The effect of this provision is 
 given in the definitions of " Court" and " Jud^e" in ar- 
 ticle 1, and in s. 125.) 
 
 S. 2. Short title. 
 
 S. 3. Act does not extend to Scotland. 
 
 These are the only Acts which deal with the Law of 
 Evidence as I have defined it. It will be observed that 
 they relate to three subjects only— the competency of wit- 
 nesses, the proof of certain classes of documents, and
 
 JNOTES.J THE LAW OF EVIDENCE. 209 
 
 certain details in the practice of examining witnesses. 
 These details are provided for twice over, namely, once in 
 17 & 18 Vict. c. 125, ss. 22-27, both inclusive, which con- 
 cern civil proceedings only ; and again in 28 Vict, c 18, 
 ss. 3-8, which re-enact these provisions in relation to pro- 
 ceedings of every kind. 
 
 Thus, when the Statute Law upon the subject of Evi- 
 dence is sifted and put in its proper place as part of the 
 general system, it appears to occupy a very subordinate 
 position in it. The ten statutes above mentioned are the 
 only ones which really form part of the Law of Evidence, 
 and their effect is fully given in twenty 1 articles of the 
 )igest, some of which contain other matter besides. 
 
 " 1 49, 52, 58, 72, 79, 80, 81, 88, 84, 106, 108, 109, 120, 181, 
 123, 125, 181, 132, 188.
 
 INDEX 
 
 Abortion, 38. 
 
 Accomplices, evidence of, 139. 
 
 "Action," an, definition of, 2. 
 
 Acts of conspirators, 6 ; illustrations of, 7. 
 
 showing intention, good faith, &c, 18 ; illustration of, 19. 
 Acts of notifications, relevancy of statement in certain, 52. 
 
 of Parliament, 93. 
 
 of State, judgments, &c; foreign and colonial, 96. 
 Admissions defined, 26 ; who may make, and when, 26 ; illus* 
 trations of, 27. 
 
 by strangers to an action, 80. 
 
 by person referred to by party, 81 ; illustration of, ib. 
 
 made without prejudice. 31. 
 
 of evidence, improper, 152. 
 Adultery, competency of witnesses in proceedings relating to, 
 130. 
 
 letters as evidence in case of, 100. 
 Advocates' privileges as to certain questions, 131. 
 Affairs of State, evidence as to, 132. 
 Agent, estoppel of, 127. 
 Art, opinions of experts on points of, 64. 
 Attestation of documents thirty years old, 101. 
 Attesting witness, cases in which he need not be called, 85. 
 
 proof of, when he denies the execution, 85.
 
 212 INDEX. 
 
 Bailee, estoppel of, 127. 
 
 Bankruptcy, 11 35 99, 125. 
 
 Barristers, privileges as to certain questions, 181. 
 
 Bastardy, evidence in cases of, 138. 
 
 Bigamy, 58, 117. 
 
 Bills of Exchange, 117. 
 
 fictitious, 20. 
 
 forged, 60. 
 
 estoppel of acceptor of, 126. 
 Bills of Lading, 127. 
 Birth, evidence of, 42. 
 Burden of Proof, 115. 
 Business, declarations made in the course of, 88. 
 
 existence of course of, when relevant, 28 ; illustrations of, 24. 
 
 Cases in which secondary evidence relating to documents may 
 
 be given, 81. 
 Cases in which attesting witness need not be called, 85. 
 Certified copies, payment for, 90 
 
 of evidence, 80. 
 Character, evidence of, in criminal cases, 70. 
 
 when relevant and when not, 70. 
 
 as affecting damages, 71. 
 Charts, relevancy of statements in, 68. 
 Cheques, 125. 
 
 Clergymen may be compelled to disclose communications, 188. 
 Collisions between ships, 61. 
 Collusion may be proved, 62. 
 Colonial Proclamations, 96 
 Commission of offences, information as to, 182. 
 Common, right of, 48. 
 Communications, during marriage, 181. 
 
 professional. 138; illustrations of, 134. 
 
 with legal advteers, 135. 
 
 to medical men and clergymen must be disclosed, 186. 
 Comparison of handwritings, 68.
 
 ENDEX. 213 
 
 Competency of witnesses, 129. 
 
 of jurors, 133. 
 "Conclusive proof," definition of, 2; illustrations of, 8. 
 Conduct, estoppel by, 124 
 Confession, when deemed voluntary. 32. 
 Confessions defined, 32. 
 
 caused by inducement, threat or promise, when irrelevant in 
 criminal proceeding, 32 ; illustrations of, 32. 
 
 made upon oath, 35 ; illustrations of, id. 
 
 made under a promise of secrecy, 36. 
 
 in trial for felony, 76. 
 Confidential communications with legal advisers, 135. 
 Conspirators, acts of, 6 ; illustrations of, 7. 
 Construction of documents, 108. 
 Contract, evidence of terms of, reduced to a documentary, 
 
 form, 104. 
 Copies, certified, examined, and office, 80. 
 Corroboration, when required, 138. 
 Council, Orders in, 93. 
 " Court," definition of, 1. 
 Criminal cases, evidence of character in, 70. 
 
 competency of witnesses in, 130. 
 Crimination of witnesses, 137 
 Cross-examination of witnesses, 143. 
 
 to what matters it must be directed, 144. 
 
 questions lawful in, 145. 
 
 as to previous statements in writing, 147. 
 Customs, 9 ; illustrations of, ib. 
 
 Damages, character as affecting, 71. 
 Death, dying declaration as to cause of, 37 
 
 presumption of, from seven years' absence, 121. 
 Debtors, process against, 30. 
 Deceased persons, statements by, when relevant, 36. 
 
 what matters may be proved in reference to relevant declar- 
 ations by, 149.
 
 214 1KDJ3X. 
 
 " Declarant," 86. 
 Declaration, 86. 
 
 dying, 119. 
 Declarations made in the course of business or professional 
 duty, 38 ; illustrations of, 39. 
 
 against interest, 40 ; illustrations of, 42. 
 
 by testators as to contents of will, 44. 
 
 as to public and general rights, 44 ; illustrations of 45. 
 
 as to pedigree, 46 ; illustrations of, 47. 
 Deeds, presumption as to sealing and delivering, 100. 
 
 of, to complete title, 123. 
 Depositions before magistrates, 49. 
 
 under 30 & 31 Vict. c. 85, s. 6, 51. 
 Disgavelling, 58. 
 Divorce, evidence in, 57. 
 " Document," definition of, 2 ; illustrations of a, 8. 
 
 proof of execution of, required by law to be attested, 84. 
 
 proof of, not required by law to be attested, 87. 
 
 production of, 88. 
 
 examined copies of, 88. 
 
 called for and produced on notice, given as evidence. 150. 
 
 refused on notice used as evidence, 151. 
 Documentary evidence, — primary and secondary, and attested 
 documents, 79. 
 
 modification and interpretation of, by oral evidence. 104. 
 
 from, evidence of terms of contract, &c, reduced to, 104. 
 Documents, proof of contents of, 79. 
 
 by primary evidence, 80. 
 
 cases in which secondary evidence relating to may be given, 81. 
 
 proof of public, 88. 
 
 admissible throughout the Queen's dominions, 92. 
 
 Queen's printers' copies of, 93. 
 
 colonial and foreign, as evidence, 96. 
 
 presumption as to date of, 99. 
 
 stamp of, 100. 
 
 thirty years old, 101.
 
 IXDBX. 215 
 
 Documents — Continued. 
 
 alterations, 101. 
 
 alterations of, 102, 103. 
 
 proper custody of, 101, 
 
 construction of, 108. 
 
 what evidence may be given for the interpretation of, 108. 
 
 foreign words in, 109. 
 
 technical terms in, 109. 
 
 a person in possession could refuse to produce, 137. 
 Dying declaration as to cause of death, 37 ; illustrations of, ib. 
 
 declarations, 119. 
 
 Effect of evidence, 115. 
 
 judgment not pleaded as an estoppel, 69 ; illustrations of, ib. 
 Embezzlement, 134. 
 Entries in tradesman's books. 53. 
 Estoppel, effect of judgment not pleaded as an, 59. 
 
 by conduct, 124. 
 
 of tenant and licensee, 126. 
 
 of acceptor of bill of exchange, 126. 
 
 of bailee, 127. 
 
 of agent, 127. 
 
 of licensee, 127. 
 Estoppels and presumptions, 120. 
 Evidence, definition of, 2. 
 
 of birth, 42. 
 
 given in former proceeding when relevant, 48. 
 
 as to insanity 64, 66. 
 
 of character in criminal cases, 70. 
 
 oral, 77 ; must be direct, ib. 
 
 documentary, primary and secondary, attested documents, 79. 
 
 examined copies of, 80. 
 
 cffice copies of, 80. 
 
 the Gazette as, 95. 
 
 of terms of contracts, grants, and other dispositions of pro- 
 perty reduced to a documentary form, 104.
 
 216 INDEX. 
 
 Evidence — Continued. 
 
 oral, in the modification and interpretation of documentary 
 evidence, 104. 
 
 what may be given for the interpretation of documents, 108. 
 
 production and effect of, 115. 
 
 burden of proving fact to be proved to make it admissible, 
 119 ; illustrations of, ib. 
 
 as to affairs of State, 132. 
 
 as to what takes place in Houses of Parliament, 182. 
 
 of accomplices, 139. 
 
 in cases of bastardy, 188. 
 
 of witnesses to be upon oath except in certain cases, 141. 
 
 exclusion of, to contradict answers to questions testing vera- 
 city, 145. 
 
 giving as, document called for and produced on notice, 150. 
 
 using as, a document, production of which was refused on 
 notice, 151. 
 Evidence, improper admission and rejection of, 152. 
 Examination-in-chief of witnesses, 143. 
 
 cross-, of witnesses, 143. 
 
 re-, of witnesses, 148. 
 
 to what matters cross- and re-, must be directed, 144. 
 Examined copies of evidence, 80. 
 Exchange, bills of. See Bills of Exchange. 
 Execution of document, proof of, required by law to be at- 
 tested, 84. 
 Exemplifications, 80, S9. 
 
 certified copies of, 90. 
 
 made by an officer of the Court 90. 
 Experts, opinions of, on points of science and art, 64. 
 
 facts bearing upon opinions of, 66. 
 
 " Fact," definition of, 1 ; illustrations of a, 8. 
 burden of proof as to particular, 118. 
 proving, to be proved to make evidence admissible, 119.
 
 INDEX. 217 
 
 Facts in issue and relevant to the issue, 4 ; may be proved, ib. 
 illustrations of, 5. 
 
 necessary to explain or introduce relevant facts, 12 ; illustra- 
 tions 0/", 13, 
 
 similar but unconnected, 17 ; illustrations of, ib. 
 
 showing system 22 ; illustrations of, ib. 
 
 bearing upon opinions of experts, 66 ; illustrations of, 67. 
 
 which need not be proved — judicial notice, 73. 
 
 of which the Court takes judicial notice, 73 ; proof of such, 76. 
 
 admitted need not be proved, 76. 
 
 proof of, by oral evidence, 77. 
 Faith, good, acts showing, 18. 
 Felony, 61. 
 
 confession in, 71. 
 Fishery, right of, 8. 
 
 Foreign and Colonial Acts of State, judgments, &c, 96, 
 Foreign words in documents, 109. 
 Forged Bills of Exchange, 60. 
 Forgery, 104. 
 Fraud, collusion, or want of jurisdiction, may be proved, 62. 
 
 Game Laws, the old, 119 
 
 Gazette, the, as evidence 95. 
 
 General records of the realm, S9. 
 
 Government prosecutions, 132. 
 
 Grant, presumption of lost, 122 , illustrations of, ib. 
 
 Grants, evidence of, reduced to a documentary form, 104. 
 
 Grounds of opinion, when relevant, 69. 
 
 Handwriting, evidence of experts as to, 66, 67, 68. 
 relevancy, opinion as to, 67 ; illustrations to, 63. 
 Handwritings, comparison of, 68. 
 
 Hearsay irrelevant except in certain cases, 25 ; illustrations to-, 
 26.
 
 218 INDEX. 
 
 He who affirms must prove, 115. 
 
 High treason, 139. 
 
 Houses of Parliament, evidence as to what takes place in, 182. 
 
 Illegitimate children, 120. 
 Impeaching credit of witness, 143. 
 Imprisonment, wrongful, 125. 
 
 Improper admission and rejection of evidence, 152. 
 Incompetency of witnesses, 129. 
 
 Inducement as a cause for confession, when irrelevant in crim- 
 inal proceedings, 82. 
 Information as to commission of offences, 182. 
 Innocence, presumption of, 115. 
 Insanity, 12. 
 
 evidence as to, 64, 66. 
 Insolvency, 21. 
 
 Insurance, 22, 106, 116, 118, 119. 
 Intention, acts showing, 18. 
 Interest, declarations against, 40. 
 Interpretation of documentary evidence by oral evidence, 104. 
 
 of documents, what evidence may be given for the, 108 ; 
 illustrations of, 111. 
 Involuntary confessions 32. 
 Irish statutes, proof of, 93. 
 
 "Judge," definition of, 1. 
 
 Judges and advocates privileged as to certain questions, 131. 
 
 "Judgment," definition of, 54. 
 
 " Judgment," effect of, not pleaded as an estoppel, 59 ; illustra- 
 tion of, ib. 
 
 Judgments, conclusive proof of their legal effect, 54; illustra- 
 tions of, 55 
 conclusive as between parties and privies of facts forming 
 
 ground of judgment, 56 ; illustrations of, ib. 
 statements in, irrelevant as between strangers, except in Ad- 
 miralty cases, 57.
 
 INDEX. 219 
 
 Judgment — Continued, 
 
 generally irrelevant as between strangers, 60 ; illustrations 
 of ib. 
 
 conclusive in favour of judge, 61 ; illustration of, 62. 
 
 foreign, 62. 
 
 Acts of State, &c, foreign and colonial, 96. 
 Jurisdiction, want of may be proved, 62. 
 Jurors, competency of, 133. 
 
 Lading, bills of, 127. 
 
 Legal adviser, confidential communications with, 135. 
 
 Legitimacy, presumption of, 120. 
 
 Libel, 13, 21. 
 
 Licensee, estoppel of, 127. 
 
 Lithographs as evidence, 80. 
 
 Machinery. 125. 
 
 Magistrates, depositions before, 49. 
 Maps, relevancy of statements in, 53. 
 Marriage, validity of, 44. 
 
 opinion as to existence of, when relevant, 69. 
 
 communications during, 131. 
 Medical men may be compelled to disclose communications, 
 
 136. 
 Memory, refreshing, 149. 
 Mill dams, 123. 
 Modification and interpretation of documentary evidence by 
 
 oral evidence, 104. 
 Motive, preparation, subsequent conduct, explanatory state- 
 ments, 9 ; illustrations of 10. 
 Murder, 10. 
 
 Notice to produce, rules as to, 88. 
 
 Notifications, Acts of, relevancy of statement in certain, 52. 
 
 Number of witnesses, 139.
 
 220 INDEX. 
 
 Oath, evidence to be upon, except in certain cases, 141. 
 Oaths, form of, 142. 
 
 who is to have power to administer, 142. 
 Obsolete words in documents, 109. 
 Occurrences similar to, but unconnected with the facts in issue, 
 
 irrelevant, except in certain cases, 17. 
 Offences, information as to commission of, 132. 
 
 against women, 148. 
 Office copies of evidence, 80. 
 Opinion generally irrelevant, 64 ; illustration of, ib. 
 
 as to handwriting, when relevant, 67 ; illustrations of, 68. 
 
 as to existence of marriage, when relevant, 69. 
 
 grounds of, when relevant, 69; illustrations of, id. 
 Opinions, when relevant and when not, 64. 
 
 of experts on points of science and art, 64 ; illustrations of, 
 65. 
 Oral evidence, 77; must be direct, ib. 
 
 proof of facts by, 77. 
 
 in the modification and interpretation of documentary evi- 
 dence, 104. 
 Orders in Counci , 93. 
 
 Parliament, Acts of, 93. 
 
 Houses of, evidence as to what takes place in, 132. 
 Partnerships, 125. 
 Pedigree, declarations to, 47. 
 Peerage cases, examined copies in, 89. 
 Photography as evidence, 80. 
 Plans, relevancy of statements in, 58. 
 Poisoning, 14, 15, 22, 23. 
 
 evidence as to, 65, 67. 
 " Presumption, A," definition of, 2. 
 
 as to documents, 99. 
 
 date of documents, 99. 
 
 stamp of a document, 100.
 
 ENDEX. 221 
 
 Presumption — Continued, 
 
 sealing and delivery of deeds, 100. 
 
 documents thirty years old, 101. 
 
 alterations in documents, 101. 
 
 of innocence, 115 ; illustrations of, 116. 
 
 and estoppels, 120. 
 Presumption of legitimacy, 120. 
 
 of death from seven years' absence, 121. 
 
 of lost grant, 122. 
 
 of regularity, 123. 
 
 of deeds to complete title, 123. 
 Primary evidence, 79 ; proof of documents by, 80. 
 Printing, as evidence, 80. 
 Privileged communications, 135. 
 
 Privileges of judges and advocates as to certain questions, 181. 
 Privy Council Orders, 95 
 Proceedings relating to adultery, 130. 
 Proclamation a relevant fact in recital, 52. 
 Proclamations, Foreign and Colonial, 96. 
 
 Orders in Council, &c, 93. 
 Production of document itself, 88. 
 
 and effect of evidence, 115. 
 
 of title-deeds of witness not a party, 136. 
 
 of documents which another person, having possession, 
 could refuse to produce, 137. 
 Professional communications, 133. 
 
 duty, declarations made in the course of, 88. 
 Proof, 78. 
 
 of facts of which the Court takes judicial notice, 76. 
 
 of facts by oral evidence, 77. 
 
 of contents of documents, 79. 
 
 of documents by primary evidence, 80. 
 
 of execution of document required by law to be attested, 84. 
 
 of document not required by law to be attested, 87. 
 
 when attesting witness denies the execution, 86. 
 
 of public documents, 88.
 
 222 INDEX. 
 
 Proof— Continued. 
 
 of Irish statutes, 98. 
 
 must be given by those who affirm, 115. 
 
 burden of, 115. 
 
 on whom the general burden lies, 116 ; illustrations of, 117. 
 
 burden of, as to particular facts, 118. 
 Property, evidence of terms of contracts, grants, &c, reduced 
 
 to a documentary form. 104. 
 Prosecutions, government, 182. 
 Provincial expressions in documents, 109. 
 Public ways, 8. 
 
 record, relevancy of entry in, made in performance of duty, 
 52. 
 Public documents, proof of, 88. 
 
 officers and documentary evidence, 108. 
 
 Queen's dominions, documents admissible throughout, 92. 
 Questions, advocates privileges as to certain, 131. 
 
 leading, to witnesses, 144. 
 
 lawful in cross-examination, 145. 
 
 exclusion of evidence to contradict answers to, testing verac 
 ity, 145 
 
 Rape, 12, 148. 
 
 Realm, general records of the, 89. 
 
 Receiving stolen property, 19, 21. 
 
 Recital of Proclamations a relevant fact, 58. 
 
 Record Office, documents from, 89. 
 
 Records of the realm, 89. 
 
 Re-examination, 148. 
 
 to what matters it must be directed, 144. 
 Refreshing memory, 149. 
 
 right of adverse party as to writing used, 150; 
 Regularity, presumption of, 128.
 
 Rejection of evidence, improper, 152. 
 Relevancy, 4. 
 
 of facts, 5. 
 
 forming part of the same transaction as facts in issue, 5 ; 
 illustrations of, 5 . 
 
 general definition of, 14 ; illustrations of, 15. 
 
 of existence of course of business, 23. 
 
 of statements by deceased persons, 36. 
 
 of evidence given in former proceedings, 48. 
 
 of entry in public record made in performance of duty, 52, 
 
 of statement in certain acts or notifications 52. 
 
 of statements in maps, charts, and plans, 53. 
 
 of opinion as to handwriting, 67. 
 
 of grounds of opinion, 69. 
 
 of opinion as to existence of marriage, 69. 
 
 and irrelevancy of character, 70. 
 Repairs, 43. 
 Right of common, 43. 
 Right of way, 45. 
 
 Rights, public and general, declarations as to, 44. 
 Riots, 13. 
 
 Royal Proclamations, 93. 
 Rules as to notice to produce, 83. 
 
 Sanity, 12. 
 
 evidence as to, 64, 66. 
 Science, opinions of experts on points of, 64. 
 Seals, official, 75. 
 Secondary evidence, 80. 
 
 relating to documents, cases in which it may be given, 81. 
 Secrecy, confession made under promise of, 86. 
 Seduction, 22. 
 
 Shipowner and underwriters, 58. 
 Ships, collisions between, 61. 
 
 loss of, 118,
 
 224 LNDEX. 
 
 State, judgments in foreign and colonial acts of, 96. 
 
 evidence as to affairs of, 132. 
 Statement, relevancy of in certain acts, 62. 
 
 in judgments irrelevant as between strangers, except in Ad- 
 miralty cases, 57 ; illustrations of, 58. 
 
 inconsistent with present testimony may be proved, 146 
 
 in writing, cross-examination as to previous, 147. 
 
 by deceased persons, what matters may be proved in refer- 
 ence to, 149. 
 Statements by deceased persons when relevant, 86. 
 Statutes, Irish, proof of, 93. 
 Stolen property, receiving, 19, 21. 
 Strangers, statements in judgments irrelevant as between, 54 
 
 judgments generally irrelevant as between, 66 ; illustrations 
 of, ib. 
 
 Technical terms in documents, 109. 
 Tenant and licensee, estoppel of, 126. 
 Terms, definition of, 1. 
 
 of contract, evidence of, reduced to a documentary form, 104. 
 Threat, as a cause for confession, when irrelevant in criminal 
 
 proceedings, 32 
 Title, 8 ; illustrations of ib. 
 
 Title-deeds, their production by witness not a party, 186. 
 Tradesman's books, entries in, 53. 
 Treason, 139. 
 Trespass on land, 61. 
 
 Underwriters and shipowners, 58. 
 Unwritten laws, 73. 
 
 Veracity of witnesses, exclusion of evidence to contradict 
 
 answers to questions testing, 145. 
 Voluntary confessions, 82 76.
 
 INDEX. 22b 
 
 Water, right to use of, 123. 
 Way, right of, 45. 
 Wells, 123. 
 Will, contents of, 44. 
 
 declarations by testators as to contents of, 44. 
 Wills, evidence as to, 111, 112. 
 Witness, attesting, cases in which he need not be caPed, 85. 
 
 proof of document, when he denies the execution, 86. 
 
 not a party, production of title deeds by, 136. 
 Witnesses, competency of, 129. 
 
 in criminal cases, 130. 
 
 in proceedings relating to adultery, 130. 
 
 who are incompetent, 129, 143. 
 
 who may testify, 129. 
 
 not testify, 129. 
 
 not to be compelled to criminate themselves, 137. 
 
 number of, 139. 
 
 examination of, 141. 
 
 evidence of, to be upon oath, except in certain cases. 141. 
 
 forms of oath, 142. 
 
 who is to have power to administer oath, 142. 
 
 examination in chief, 143. 
 
 cross-examination, 143. 
 Witnesses, re-examination, 143. 
 
 to what matters cross-examination and re-examination must 
 be directed, 144. 
 
 incompetent, 144. 
 
 leading questions, 144. 
 
 questions lawful in cross-examination, 145. 
 
 exclusion of evidence to contradict answers to questions test- 
 ing veracity, 145. 
 
 statements inconsistent with present testimony maybe proved, 
 146. 
 
 cross-examination as to previous statements in writing, 147, 
 
 impeaching credit of, 148.
 
 226 INDEX. 
 
 Witnesses — Continued. 
 refreshing memory, 149. 
 wright of adverse party as to riting used to refresh memory, 
 
 150. 
 giving of evidence, document called for and produced on 
 notice, 150. 
 Women, offences against, 148. 
 
 Writing used to refresh memory, right of adverse party as to, 
 150.
 
 UC SOUTHERN REGIONAL 
 
 B 000 018 923 3