r P540Zz Shi UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON THE LAW OF EVIDENCE. By S. MARCH PHILLIPPS, Esq. OF THE INNER TEMPLE, BARRISTER AT LAW. VOLUME THE FIRST. jftftS CDtimon, WITH CONSIDERABLE ADDITIONS. LONDON: PRINTED BY A. STRAHAN, LAW- PRINTER TO THE KING'S MOST EXCELLENT MAJESTY; FOR JOSEPH BUTTERWORTH AND SON, LAW- BOOKSELLERS, 43. fleet-street; J. COOKE, ORMOND QUAY, DUBLIN; AND T. CLARK, 8. PARLIAMENT SQUARE, EDINBURGH. 1822. F54cg Records - - - 314 Of the Effect of Records - - 315 Acts of Parliament - - 315 General Acts - - - 316 Preamble of Acts - - -316 Public Act, when pleaded - - 3 1 7 CHAP. II. Of Verdicts, and Judgments of Courts of Re- cord 318 Sect. I. Of Verdicts and Judgments, con- sidered with reference to the Par- ties in the Suit - 319 General Ride - - - 3 1 9 Effect of Judgment between same Parties - 320 Who the same Parties - - 321 Who the real Parties - - 322 Effect qf Judgment between Privies - 323 Verdict not Evidence against a Stranger - 325 Verdict not Evidence for a Stranger - 325 Exceptions to the Rule - - - 326 1. Verdict as to Customs, Tolls, tyc. - 326 2. Judgment of Courts of exclusive Juris- diction - - - 328 xvi CONTENTS. Page 3. Judgment of Sessions in Appeals - 328 4. Convictions - - - 328 5. Judgment^ Evidence by way of Induce- ment - 330 Sect. II. Of Verdicts and Judgments, con- sidered with reference to the Sub- ject matter of the Suit - - 331 General Rule - - - 331 Effect of former Judgment - - 332 Judgment in Ejectment - - 333 Sect. III. Of the Admissibility, in Civil Cases, of Verdicts in Criminal Proceed- ings - 334 Sentence in Ecclesiastical Court - 334? Record of Conviction - -334 Coroner's Inquest - - 335 Effect of Record of Conviction - - 336 Record of Acquittal - - 338 CHAP. III. Of the Judgments of Courts of exclusive Juris- diction - - - 338 Sect. I. Of Sentences in Ecclesiastical Courts 339 Sentence on Question of Maniage - 339 Sentence of Jactitation of Marriage - - 340 Probate of Wills - - - 342 Letters of Administration - - - 342 Sentence, how far Evidence in Criminal Proceedings - - - 343 Sentence impeachable for Fraud » - S44 CONTENTS. • xvii Page Sect. II. Of Sentences in Courts of Admiralty and Foreign Courts - - 3i<5 Sentence on Qiiestion of' Prize - - 345 Sentence of Foreign Courts of Admiralty - 345 Effect of such Sentence - - 347 Sentence of other Foreign Courts - - 348 Action on Foreign Judgment - - 349 Effect of 'Foreign Judgment - - 351 Sect. III. Of Judgments in rem in the Ex- chequer, by Commissioners of Ex- cise, and by Colleges in the Uni- versities - 359, Judgment of Condemnation in Exchequer - 352 Judgment in personam - - - 352 Judgment by Commissioners of Excise - 353 Acquital in the Exchequer - - 356 Sentence of Deprivation by a College - - 357 General Rule, as to limited Jurisdictions - 358 CHAP. IV. Of certain other Judicial Proceedings - - 359 Sect. 1. Of Proceedings in Chancery - 3.59 Decree - - 359 Bill - - - - 359 Answer - - - - 360 Depositions - - - 364 vol. r. xviii CONTENTS Page Sect. II. Of Depositions, Examinations, Inqui- sitions, and other Judicial Pro- ceedings - - - 368 Depositions on Interrogatories - - 368 Depositions in India - - 369 Depositions before Justices of Peace - - 369 Depositions before Coroner - - 373 Inquisitions - - - - 375 Examinations of Paupers, fyc. - - 378 Depositions in Ecclesiastical Courts - - 380 Judgments of Inferior Courts - - 381 Awards - - - . - 382 Certificates - - - 382 CHAP. V. Of the Proof of Records and Judicial Pro- ceedings - - - 384 Records - - - - 384 Public Acts of Parliament ~ - 384 Private Acts - 385 Copies of Records - 385 Verdict - - - - 389 Postea - - - 389 Writs - - - 390 Inquisitions - 391 Common Recoveries - - - 392 Proceedings in Chancery - - 393 Judgment in House of Lords - - 397 Proceedings in inferior Courts - - 397 Probate of Wills - - 397 Letters of Administration - - 399 Foreign Judgment - - - 399 iwgrd ... - 400 CONTENTS. xix CHAP. VI. Page Of Public Writings, not Judicial - - 402 Domesday-book - 402 Surveys of Ecclesiastical Benefices - 403 Pope Nicholas's Taxation - - 403 Valor Beneficiorum in reign of Henry VIII. 403 Survey in Time of the Commonwealth - 404 Journals of Parliament - - 405 Gazettes - - 406 Parish Registers - 408 Registers of Ships - - - 410 Rate-books - - - 412 Book for Parish Indentures - - 412 Books of Public Offices - - 413 Rolls of Manor Courts - - 417 Terriers - - - 418 Herald's Books - - - 421 Pope's Bull - - - - 422 Corporation Books - - 422 Histories - - - - 423 Proof of Entry in Public Books - 423 CHAP. VII. Of the Inspection of Public Writings - - 42j Records - - - 425 Copy of Indictment - - - 425 Inspection of Depositions - - 428 , Proceedings of Inferior Jurisdictions - 428 Parish Books and other Public Books - 431 Rolls of Manor Court - - 132 Corporation Books - 433 Inspection, when not compelled - - 435 Process for obtaining Inspection - 436 a 2 xx CONTENTS. CHAP. VIII. Page Of the Proof of Private Writings - -438 Sect. I. Of the Proof of Deeds, Agreements, and other Writings - - 438 Subpoena duces tecum - - 438 Rule on Party to produce - - 439 Notice to Parti/ to produce - - 442 Proof of Writing being in the Party's Possession - - - 443 Calling for Papers after Notice - 444 Notice "when dispensed with - 444 Proof of Notice - - 448 Proof of Deed produced under Notice 450 Secondary Evidence of writings - - 453 Proof of Loss of Original - 455 What Secondary Evidence admitted 458 Pleading of lost Deed - - - 461 Proof of Exccidion by subscribing Witness 462 Proof of Execidion by proving subscribing Witness's Hand-writing - - 471 Proof of Execution, in absence of subscrib- ing Witness - - 474 Exceptions to the General Rule - 475 1. Old Writings ... 4.75 Custody of Old Writings - 477 2. Deeds enrolled - - - 481 4. Deed produced under Pule of Court - - - 485 Proof of Hand-writing in general - 485 Comparison of Hand-xiriting - 492 Evidence as to Genuineness of Writing - 495 CONTENTS. Page Sect.IL Of the Proof of Wills. Form of Wu - 4? 9 7 Competency of attesting - 497 Proof' of Contents of Will - - 500 Proof of Execution, by subscribing Witness 500 Signing of Testator - - - 501 Attestation - - - 503 Witness impeaching the Execution - 507 Proof of Old Wills - - - 507 CHAP. IX. Of Stamping, as a Requisite of Written Instru- ments - - . 508 General Rule - - - 508 Proof of' the Transaction without Writing - 509 Foreign Instrument - - 510 Denomination of Stamp - - 5 1 1 Several Stamps, where necessary - 513 Alteration of Bill of Exchange - 51 7 Alteration of Policy of Insurance - 518 Alteration to cotrect Mistakes - - 521 Unstamped Instrument, when Evidence for collateral Purposes - - - 523 Writing lost — Stamp* when presumed - 528 Defect of Stamp, how cured - - 529 Stamp on Agreements - - 530 Exemptions - - - 532 1. Label or Memorandum of certain In- surances - - - 532 2. Memorandum or Agreement for granting a Lease of Land, Sfc. - - 532 3. Memorandum or Agreement for the Hire of a Labourer, fyc. - - 533 a 3 XXI xxii CONTENTS. Page 4. Memorandum, Letter, or Agreement for or relating to the Sale of Goods, $c. - 533 5. Memorandum or Agreement for Wages, between the Master and Mariners of certain Ships - - 536 6. Letters containing Agreements in respect of any Merchandise, or Evidence of such Agreement, 8fc. - - 536 CHAP. X. Of the Admissibility of Parol Evidence to explain, vary, or discharge Written Instruments - - - 537 Sect. I. Of the Admissibility of Parol Evi- dence to explain Ambiguities - 537 Latent Ambiguity - - - 537 Mistake in Names - - 538 Parol Evidence, to give Effect to Wills - 539 Patent Ambiguity - - 544 Uncertainty in Devise - - 545 Omission of Name in Will - -545 Omission in Written Instruments - 546 Usage explanatory ef Ancient Charters and Deeds - - - 547 Evidence of the Situation or Estate of the Party - 550 Sect. II. Of the Admissibility of Parol Evi- dence to vary or discharge Written Instruments - 554* Wills - - - 554 Deeds, - - -555 IS CONTENTS. xxiii Page Proof of another Consideration when admissible - -555 Proof of a different Consideration, in case of illegal Transactions - 557 Proof of Delivery of Deed at a dif- ferent Time - - 559 Proof of Customary Right, SfC, not expressed in Lease - -559 Proof not admissible to vary the Time of holding - - 560 Policies of Insurance - - 561 Charter-parties - - - 561 Promissory Notes, SfC. - - 562 Contract for Seaman's Wages - 562 Usage of Merchants, to explain mercan- tile Contracts - - - 563 Agreements within Statute of Frauds - 566 Agreements not within Statute of Frauds - 568 Proof of collateral Facts, to shew Intention 570 Discharge of Simple Contract bi/ Parol - 57 1 Sect. III. Of the Rule in Courts Equity, respecting the Admissibility of Pa- rol Evidence - - 575 General Rule - - .575 Rule with respect to the Difoidan on a Bill for specific Performance - 576 Rule with respect to the Plaintiff - 578 Rule, in Case of Part-performance - 584 Mistakes in Deeds, Sfc.when rectified, - 585 Trusts in Equity, when raised by Parol Evidence - 5H7 a 4 TABLE OF THE CASES CITED. ^BBOT v. Massie - v. Plumb - v. Smith 51 Abel v. Potts Abery v. Dickenson Abignye v. Clifton Abrahams q. t. v. Bunn Acerro v. Petroni Ackerley v. Dr. Parkinson Ackland v. Pearce Adam v. Kerr Adams v. Davis v. Evans Adamthwaite v. Synge Addison v. Overend Page 546 462 211 414 430 383 122 269 358 448 465 128 251 388 211 134 81 98. 309 342 Akehurst's case Alban v. Pritchett Alexander v. Gibson Allen v. Dundas Allott v. Wilkinson 255 Alner v. George 155 Alsop v. Bowtrell 383 Alves v. Bunbury 400 v. Hodgson 510 Ambrose v. Clindon 231 Ames v. Hill 531 Amey v. Long . 3. 439 Amitie, Villeneuve, case of 55 Anderson v. Sir W.Hamilton 287 v. Hayman 443, 444 v. May 449 v. Pitcher 563 » v. Sanderson 85 Andrews v. Palsgrave 186 Anscombe v. Shore 57 Page 16 133. 135 401 Ansley v. Birch Anstey v. Dowsing Antram v. Chase Appleton v. (Lord) Bray- brook Arding v. Flower Armorie v. Delamirie Armstrong v. Hewitt Armstrong's v. Lisle's Arundel's (Lord) case Aslin v. Parkin Atcheson v. Everett Atherfold v. Beard Atkins v. Hatton Attorney-general v. Bowman 175 v. Griffith 28 v. King 352 v. Le Mer- 3. 442. Parker 548 38.42 84 507 232 400 4. 5. 156 260 34 260 322. 333 26,27 432 419 chant Atwood's case Audley's (Lord) case Austin v. Willes Aveson v. Lord Kinnaird B Backhouse v. Middleton 367 Bacon's case 120 Baillie v. Wilson 52, 53 v. Jardine 513 v. Morley 81 v. Paine 5S(> v. Tyrwhit I .'it' TABLE OF THE ( \ SJ Page Baker s case 312 Baldney v. Ritchie 443 Ball v. Dunstervilk 465 v. Bostock 61 Ballard v. Dyson 162 Balutti v. Serani 170 Bambridge's case 235 Banbury Peerage, case of 154. 360 Baring v. Roval Ex. Ass. Comp. 347 Barker v. Sir Wooiston Dixie 83 v. Macrae 128 Barlow v. Vowel 136 Barnes v. Mawson 252 Barrett v. Gore 70 Barron v. Grillard 81 Barrow v. Greenough 587 Barry v. Alexander 442 v. Bebbington 256 Barrymore (Ld.)v. Taylor 109 Barthon v. Loughman 289 Bartlet v. Pickersgill 1 1 9. 337 Barzillay v. Lewis 347 Bateman v. Philips 441 Bath v. Montague 41. 48 Batty e v. Gresley Bauerman v. Radenius 69 Bayley v. Lloyd v. Wylie Baylis v. Attorney- general 13 89 99 134 396 545 Bay n ham v. Guy's Hospital 553 Bealey v. Shaw Beasley v. Magrath Beaumont v. Fell Bedle v. Beard Beebee v. Parker Beeching v. Gower Bell v. Ansley v. Harwood Benjamin v. Porteus Bennet v. Hertford (Hun- dred of) Bennet v. Francis - v. Neale v. Skeffington v. Watson Bent v. Baker Bentley v. Cook Berkeley Peerage, of 161 363 538 157 249 268 91 66 128 70 185 158 158 8 48 77 242 507 Bernard (Ld) v. Saul Bernardi v. Motteux Berry v. Banner Berryman v. Wise Bertie v. Beaumont Berwick's case Bettison v. Bromley Bevan q. t. v. Williams Bevis v. Lindfell Biddulph v. Ather v. St. John Bigg's v. Laurence Billers v. Bowels Bilmore's case Binstead v. Coleman Bird v. Appleton v. Thompson Birt v. Barlow v. Kirshaw Blackham's case Blackburn v. Scholes Blackett v. Lowes Blake v. Lawrence Blakey v. Porter Bland v. Ansley 6 Blandford v. Detastet Bloxham v. Hubbard Blundell v. Howard Bolton v. Gladstone Bond v. Seawell Bootle v. Blundle Bothwick v. Carruthers Boson v. Sandford Botham v. Swingler Bourne v. Turner Bowen v. Ashley Bowerman v. Sybourn Bowles v. Johnson Bowman v. Manzleman v. Nichol Bowsher v. Calley Boyle v. Boyle Bradbury v. Grinsel Brangham's case Brazier's case 20, Breedon v. Gill Breton v. Cope 413. Brett v. Rigden Brewer v. Palmer Brewster v. Sewell Brice v. Smith Bridgman v. Jennings Page 317 347 327 227 480 116 53 226 184 327 151 98 184 41 566 348 129 408 62 341 185 252 190 440 4. 83 7 211 174 346 504 501 200 211 132 59 513 360 6 440 517 105 336 162 425 253 3S0 463 554 509 ■156 503 TABLE OF THE CASES CITED. Bristow v. Wright Broadhurst v. Baldwin Brock v. Kent Brook v. Willett Brookbard v. Woodley Broughton v. Harper Brounker (Ld.) v. Atkins Brown v. Brown v. Crashaw v. Fox ■ v. Hodgson v. Jacobs v. Corporation of London Selwin Watts -ats. 88, Brune v. Rawlins Bryan v. Winwood Buchanan v. Rucker Buckhouse and Crosby's case Buckland v. Tankard Buckler v. Millerd Buckworth's case Bullen v. Michel 257 Bunting's case Burdon v. Browning Burleigh v. Stibb's Burr v. Harper Burridge's case Burro ugh v. Martin Burrows v. Jemino Burt v. Palmer Burton v. Hindc Busby v. Greenslate Bush v. Railing Bushwood v. Bond Butcher's case Butchers' Comp. \ Butler v. Carver Buxton v. Bedali Byam v. Booth Byne (ex parte) v. Moore 1] Jones 131. Page 207 186 100 212 4-95 78 324- 4-23 75 36 75 191 213 135 555 190 367 494 173 351 573 68 557 230 ,4-60 339 119 446 493 34 288 34S 100 65 49 124 212 3S6 132 303 534 395 5 214 Caffy's case 120 Call v. Dunning Calliard v. 15. 17 Callow v. Law) 518 Calthorpe v. Gough Calvert v. Bovill Calvert v. Canterbury (Archbp.) v. Roberts Campbell v. Twemlow v. Wilson 'age 508 348 266 518 87 159 410 81 Camden v. Anderson Carey v. Adkins Carlisle (Mayor of) v. Bla- mire 89 Carpenters' Comp. v. Hay- ward IS. 58 Garry. Heaton 159.324 Carrington (Ld.) v. Payne 506 Carter v. Pearce 52 v. Pryke 170 Cartwright v. Williams 133 Cass's case 110 Casson v. Dade 505 Castile v. Bainbridge 27 Castlemain's (Ld.) case 34. 86 Castleton v. Turner 545 Cater v. Price 504 Gates q. t. v. Winter 3 Gator v. Stokes 392 Cavan v. Stewart 351. 400 Cazenove v. Vaughan 368. 396 Celier's case 31. 34 Champian v. Atkinson 128. 172 Champion v. Plummer 453. 459 Chancey's case 30 Chandler v. Thompson 161 227 258.418 11.75 6 249 31 38 31 15^.250 Chapman v. Beard v. Cowlan v. Graves v. Poynton v. Smith Charlesworth's case Charnock's case Chater v. Hawkins Chatfield v. Fryer Chelsea Waterworks (Gov. of) v. Cowper 475 Cheyney's case 538 Christie v. Secretan 347 Clanricard's (Lord) case 422 Clanricard (Ld.) v. Lady Denton 58 Clarke v. Gray 187.209 v. Shee 129 Clarkson v. Hanway v. Woodhouse '. Will TABLE OF THE CASES CITED. Clay v. Willan Clerk v. Bedford Clifford v. Taylor Clinan v. Cooke Clothier v. Chapman Clutter'ouck v. Ld. Hunt- ingtower Cobb v. Carr Cobden v. Kendrick Coe v. Westernham Coglan v. Williamson Coker v. Farewell Colchester, Mayor, &c. case of Cole v. Parkin Collenridge v. Farquhar- son Collett v. Jennis v. Ld. Keith Colson v. Selby Compagnon v. Martin Cook v. Parsons Cooke's case Cooke v. Booth v. Fountain ■ v. Maxwell v. Munstone v. Sholl Cooper v. Gibbons v. Marsden Cope v. Bedford Copeland v. Watts Copley (Sir J.) v Corbet v. Corbet Corder v. Drakeford Corking v. Jarrard Corsbie v. Oliver Cossham v. Goldney Cotterel v. Apsey v. Cuff v. Griffiths 260. 129. Courteen v. Touse 104. Cowling v. Ely 91 Cox v. Brain v. Copping v. Parry Craib v. D'Aeth Crawley v. Blewett Cresby's (Sir P.) case Crew q. v. t. Blackburn Crimes v. Smyth Crisp v. Anderson Crispin \, Williamson Page 188 266 442 .577 252 69 71 144 342 472 230 135 522 231 60 109 190 202 504 280 553 366 32 209 356 442 265 422 140 515 365 512 132 169 67 185 210 160 272 363 185 431 185 89 206 41 432 158 528 210 Crocker's case Cromack v. Heathcote Cromwell's (Ld.) case Crosby's case Crosby v. Percy Cross v. Kaye Crossfield's case Cuddington v. Wilkins Cuff v. Penn Cunliffe v. Sefton Currie v. Child Curry v. Edensor Cuthbert v. Gostling Cuts v. Pickering Cutter v. Powell D Dalison v. Stark Dalzel v. Maii- Daniel v. North Daniel v. Pitt Dartmouth (Lady) v. berts Darwin v. Upton Davies v. Edwards v. Humphreys Pierce v. Ridge Davis and Carter's case v. Dinwoody v. Living v. Williams Davy v. Smith Dawson v. D. of Norfolk Day v. Bower Deacon's case Deakin's case De Gaillon v. L'Aigle De Gaminde v. Pigou. De Sailly v. Morgan De Symonds v. De la Court Denn dem. Goodwin v. Page 120 141 581 31. 36 472 227 117 36 568 472 74 533 130 139. 143 565 222 155 162 100 394 160 191 433 255 90 31 62 73 399 505 160 191 179 157 184 155 291 49 Ro- 362. 159. Spray Denn v. White Decharme v. Lane Despard's case Dickinson v. Shee v. Coward Dickman v. Benson Dickson v. Evans Didsbury v. Thomas 249 38. 417 81 367 42. 43 274 229 440 199 TABLE OF THE CASES CITED. Page Digby v. S ted man 264 Dingler's case 235 DTsraeli v. Jovvett 413 Dixon v. Cooper 128 Dockwray v. Dickenson 211 Dodd's (Dr.) case 134 Dodd v. Norris 276 Doe v. Pearson 222 v. Perkins 288 Doe ex. dem. Allason v. Sisson 249 Ash v. Calvert 342 Baggalley v. Jones 259 Baker v. Womb well 107 — Banning v. Griffin 198. 238 Bingham v. Cartwright 222 Brown v. Brown 540 ■ — Chichester (Sir A.) v. Oxenden 540 Clarges v. Forster 107 Cople}' (Sir J.) v. Day 515 Digby v. Steel 89 Folev v. Wilson 160 — — Forster v. Williams 59 Foster v. Sisson 171 Freeland v. Burt 551 George v. Jesson 198. 238 Haldane and Urry v. Harvey 446 Hale v. Benson 561 Hanson v. 552 73 133 468 ackson v. Ashburner 532 Fyldes Green Kersey Pearce Doe ex. dem. Johnson v. Johnson Johnson v. 472 Harrop v. Hindson v. Hotchkiss v. Jackson v. Ld. Pembroke 239 Jones v. Wilde 65 Jupp v. An- drews ] 43 Leicester v. Biggs 107 Lloyd v. Deakin 198 Lowdenv. Wat- son, 229 Mansfield v. Peach 467 Morris v. Ros- 382 256 220 Barton Allen Reece v. Rob- Robinson v. Sheppard v. Small v.AHen Spicer v. Lea Sutton v. Ridsj- way ford phenson Grey 105 558 560 236 Sykes v. Durn- 463 Toilet v. Salter 216 Walker v. Ste- 308 442 259 105 222 Wartney v. Webber v. Lord G. Thynne Winckley v. Pye Wood v. Mor. ris Doncaster (Mayor of) v. Day Dongal v. Wilson Dormer v. Fortescue Douglas cause Dover v. Maestaer Dowden v. Fowle Dowdeswell v. Nott Downes v. Moreman v. Skrymsher Down's case Doxon v. Haigh Drake v. Munday Drake v. Smyth 230 159 76 163 524 91 65 424 216 212 454 532 408 XXX rABLE OF THE CASES CITED. Page Drummond's case '!:>'■> Du Barre v. Livette 141 Du Bost v. Beresford 231 Dace's case 40 Duffin v. Smith 143. 144 Duke v. Aldridge 91 Duncan v. Scott 589 Dundas v. Lord Wey- mouth 213 Durham's case 42 Durham (Bp.) v. Beau- mont 308 Dutton v. Colt 24 E Earl v. Lewis 479 East India Company v. Donald 1.31 _ y. Glover 184 Eccleston v. Petty 91.363 Edmonstone v. Plaisted 391 Edwards v. Crock 82 v. Harvey 238 v. Vesey 429 Elden v. Keddell 399 Eldridsje v. Knott 156 Ellis v. Wall 184 Ely (Dean and Ch. of) v. Stewart 475 Warren Emerson v. Blonden Emmett v. Bradley England v. Roper Ennis v. Donisthorne Entick v. Canington Erskine v. Ruffle Evans v. Lewis and Lake, case of v. Williams 66. Evelyn v. Haynes Eyre v. Palsgrave 220. 172 85 74 464. 231 442 171 210 265 139 332 424 Fabrigas v. Mostyn 100 Fachina v. Sabine 23, 24 Faii-iie v. Christie 520 . v. Hastings 98. 101 Page Falconer v. Hanson 369 Farr v. Price 509 Fasset v. Brown 1-7 i Faulder v. Silk 377 Fearshire's case 112 Fell v. Chamberlain 575 Fenn dem. Pewtiiss v. Granger 72 Fermor's case 339 Ferrer's case 331, 332 Ferrers (Ld.) v. Shirley 360.488 Field v. Beaumont 3 Filmer v. Gott 558 Fisher v. Heming 140 v. Kitchingman 390 v. Lane 397 Fleming's case 372 Flower v. Young 411 Folkes v. Chad 289 Fonnereau v. Poyntz 552 Fonsick,v. Agar 369 Forrester v. Pigou 63. 137 Forty v. Imber 203 Foster v. Compton 390 Fotheringham v. Greenwood 54. 63 Fountain v. Young 141 Foxcraft v. Lister 585 Francia's case 116 Francisco v. Gilmore 369 Franklin's case 405 Fraser v. Marsh 134 Free v. Hawkins 562 Freeman v. Phillipps 24-6 Friend's (Sir J.) 5.276 French q. t. v. Patten 521 Frontine v. Frost 199 Frost v. Holloway 283 Fuller v. Fotch 355 v. Prentice 6 Furly v. Newnham 6. 15 Furneaux v. Hutchins 171 G Gahagan's case 149 Gainsford v. Grammar 100. 105. 139. 143 Galbraith v. Neville 349 Garnons v. Barnard 250 v. Swift 219 Gaul's case 317 TABLE OF THE CASES CITED. Geery v. Hop! Germain v. Frederick Gevers v. Mainwaring .5 Gibbon's case Gibson v. Hunter . v. Maccarty Gillum v. Stirrup Gladstone v. Neale Glyn v. Bank of England v. Thorpe Goater v. Nunnely Goddard's case Goldie v. Shuttleworth Goman v. Salisbury Gocdacre v. Breame Goodes v. Wheatley Goodright dem. Fan- Hicks dem. Stephens Moss v. Saul Goodtitle dem. Thompson Bremridsje Walter dem. Welford dem. Baldwin dem. Lammiman dem. Southern dem. Fowler Parker Pinsent Radford Revolt Page IS! 210 J. 128 422 312 334 384 210 265 314 441 559 104 573 GO 203 v. 174 242 154 216 135 157 216 539 Binham 495 Goodwin v. West 4 Gordon's (Lord G.) case 96. 183 v. Secret an 451 Gordon's case 6. 205. 225 Goss v. Tracy 53. 365. 47 1 Gotlieb v. Danvers 1 IS Gracewood v. Cecil 440 Graham v. Dyster 444 v. Peate 156 v. Robertson 21 1 Grant v. Jackson 92. 363 Grant's case ] 1 5 Gray's case 212 Greaves v. Ashlin 569 Green v. Dunn 109 v. Gaturk 230 v. Greenbank 209 • v. Hearne 184 Page Green v. Hewett v. New River Com- pany 57. 129. :;25 Rennet Gregory v. Fraser v. Howard v. Parker Greg's case Grellier v. Neale Grey v. Smith Griffith v. Matthews Grigg's case Grillard v. Hogue Grimwood v. Barritt Groenvelt (Dr.) v. Dt Burwell Guest v. Caumont Gully's case Gunnis v. Erhart Gunston and Downes Gutteridge v. Smith Gwinnett v. Philips Gyftbrd v. Woodgate H Haddow v. Parry Hagedorn v. Reid Hale's case Halifax's (Lord) case Hall v. Cazenove v. Hill 213 526 10S 85 116 •17 1 531 159 77. 84 15 213 429 217 37 567 41. 48 IS6 206 392 263. Hallet v. Mears Hammond v. Stewart Hancock v. Welch Handford v. Palmer Hands v. James Hannay v. Smith Hanson v. Parker Harding v. Carter Hardy's case Hard wick's case Harman v. Lasbrey Harpur v. Brook Harrington v. M'Morris ■ v. Wise 177. Harris v. Mantle v. Tippet v. White Harrison's case v. Blades 1 — v. Harrison 211. 257 149 110 196 559 81 6 4 330 210 506 185 90 103 275 112 61 256 169 532 201 273 36 374 504 xxxu TABLE OF THE CASES CITED. Page Hart v. M'Namara 352 Harvey v. Collison 59 Harwood v. Sims 250 v. Wallis 586 Haslam's case 41 Hatch v. Blisset 5 Hathaway v. Barrow 119 Hatton v. Gray 459 Havelock v. Rockwood 348 Hawkeswood's case 524 Hay ward v. Firmion 241 Head v. Head 60 Heath v. Hall 53 Hedges' case 525 Helyar v. Hawke 98 Henkle v. Royal Exchange Assurance Company Hennell v. Lyon Henry v. Adey Leigh 387 219 Herbert v. Cook v. Tuckal Heston's case Hetherington v. Kemp Heward v. Shipley Hewson v. Brown Hick's case Higgs v. Dixon Higham v. Ridgway Hill v. Fleming v. Patten v. Wright Hillyard v. Jennings Hindson v. Kersey Hitchin v. Campbell Hoare v. Allen v. Cory ton v. Graham Hockley v. Lamb Hodge's case Hodges v. Atkis Hodgkinson v. Fletcher ■ v. Willis Hodgson v. Fullarton 585 395 399 415 381 239 34 450 124 386 317 463 257 74 519 169 499 498 331 1:33 267 562 57 115 437 81 394 260 175. 276 398 238 334. 322. Hodgson's case Hoe v. Nilthorp Hogg v. Snaith . 562 Holcombe v. Hewson 170 Holcroft v. Heel 159. 160 v. Smith 483 Holland q. t. v. Duffin 523 v. Hopkins 189 Home v. Ld. T. Bentinck 287 Hopewell v. De Pinna Hopkins v. Neal Home v. Smith How v. Hall Howell v. Lock v. Richards Hudson v. Robinson Huddleston v. Briscoe Huet v. Le Mesurier Hughes' case v. Cornelius Humble v. Hunt Humphries v. Knight Hunt v. Andrews Hunter v. Gibson v. Kins Hurst v. Watkis Hutchinson's case Ilderton v. Atkinson Illingworth v. Leigh Incledon v. Burgess Ingram v. Dade Irnham (Ld.) v. Child Israel v. Benjamin Ivat v. Finch Ives's case Jacob's case Jacob v. Lindsay Jagger's case James v. Hatfield Janson v. Rany Jarrett v. Leonard Jefferies v. Duncombe Jeffery v. Walton Jelfs v. Ballard Jenkins v. Blizard Jenks's case John's case Johnson v. Browning ■ v. Gillson ■ v. Llewellyn v. Mason . v. Duke of Page 198 60.69 7 445 130. 268 213 67 510 409 224 345 415 403 415 170 122 192 349 62.66 261. 420 320 132 579 189 258 315 186 Marlborough v.Ward 112 109. 222 84 60. 69. 91 151 105 217 569 199 408 208 235 71 453 440 103. 464 51S 102. 414 TABLE OF THE CASES CITED Page Johnstone's case 207 Jones v. Brewer 15 v. Brooke 44. 61, 62 v. Mason 29. 471 v. Randall 397. 405. 424 v. Sandys 513 v. Waller 259. 262. 479 v. White 335 Jordan v. Lewis 427 Jordaine v. Lashb rooke 18.44 Jory v. Orchard 448 Joynes v. Statham 577 Juxon v. Ld. Byron 152 K Kahl v. Jansen 99 Kaines v. Knightley 561 Keightley v. Birch 57. 62 Kellington (vicar of) v. Trin. Coll. Cambridge 404 Kempton dem. Boyfield v. Cross 387. 399 Kennerley v. Nash 518 Kensington v. Inglis 455. 458 Kent v. Lowen 98. 231 Kershaw" v. Cox 521 Keynier v. Summers 159 Kinder v. Williams 5 Kindersley v. Chase 346 The King v. — See Rex, infra. King dem. Ld. Thanet v. Foster 421 v. Fraser 217 Kingston (Mayor of) v. Horner 157. 422. Kingston's (Duchess of) case 319 Kinnersley v. Orpe 322. 389 Kirtland v. Pounsett 217 Kirwan v. Cockburn 407 Knight v. Halsey 158 Knill v. Williams 517 Laing v. Raine 463 Lake v. Billers 391 Lambe's case 110 Langhorn v. Allnut 99 v. Cologan 520 Latkow v. Earner 378 Vol. I. c VyAac/O uiin,iJ. Page KXXlll Laugh ton v. Ward 161 Lawley's (Lady) case 84 Layer's case 40.114. 281. 290 Leader v. Barry 409 Lee q. t. v. Birred 142 v. Gansel 32 Lee's case 40 v. Libb 502 Leeds v. Cook 446 Leeson v. Halt 407 Legal v. Miller 578 Legatt v. Tollervey 426 Leggett v. Cooper 186 Leglise v. Champante 211 Le Gross v. Lovemoor 260 Leigh v. Banner 536 Leighton v. Leighton 315. 384 Lemayne v. Stanley 501 Leslie v. De la Torre 562 Lethulier's case 563 Lewis v. Price 159 Lightfoot v. Cameron 4? Lilly v. Ewer 564 Lipscombe v. Holmes 186 Lister q. t. v. Priestley 226 L'Neve v. L'Neve 151 Lloyd, v. Willan 100 v. Williams 74 v. Woodall 383 Lock v. Norborne 323 Lockhart's case 115 v. Graham 66 London (Mayor and com- monalty of) 65. 71. 90 v. Clarke 326 v. Lynn (Mayor of) 422 Longchamp v. Fish 502 Lopes v. De Tastet 209 Lothian v. Henderson 346 Lovat's (Lord) case 17. 13. 130. Lovelock v. Chiveley Loveridge v. Botham Lowe v. Jolift'e Lowry v. Doubleday Lowther v. Raw Lucas v. De la Cour v. Novosilienski Luttrel v. Reynel v. Lea Lygon v. Strutt Lynch v. Clarke 131 193 107 41 7 172 92 155 364 386 478 360. 424 41. Lynn (Mayor of) v. Denton 434 b XXXIV TABLE OF THE CASES CITED. M Page Macbride v. Macbride 282 Macferson v. Thoytes 492 Mackalley's case 204, 205 Macclesfield's (Lord) case 276 M'Braine v. Fortune M'Craw v. Gentry M'Kenire v. Fraser M'Kenzie v. Banks M'Queen v. Farquhar M'Quillin v. Cox Maddison v. Shore Maesters v. Abraham Malcolm v. Fullarton Maloney v. Bartley Maltby v. Christie Manby v. Curtis Manners q. t. v. Postan Marriage v. Lawrence Marsh v. Colnet v. Meager Marshall v. Cliff Marshalsea case Marson v. Petit Martin v. Goble v. Hemickson v. Hovvel 424. 129 474 507 536 469 202 4 99 185 276 105. 229 260. 262 463 422 476 231 105 358 518 151 57 128 427 51 550 128 61 49 291 436 416 84 Massey v. Johnson Masters v. Drayton v. Masters Matthews v. Haydon Maundrel v. Kennett Mawman v. Gillet Mawson v. Hartsinck May v. G wynne v. May Mead's case ■ v. Robinson 124.414.424 Mease v. Mease 555 Meath (Bp.) v. Lord Bel- field 252 Mee v. Reed 24 Meekins v. Smith 4 Mellish v. AUnutt 185 Melville (Lord's) case 98.279. 406. 459 Meredith v. Gilpin 127 Mich ell v. Rabbets 420 Middleton v. Brewer 186 Mildrone's case 24 Miles v. Sheward 210 Miller v. Falconer 57. 129 Miller v. Foster v. Johnson v. Williams Mills v. Lyne Milward v. Temple Milwood v. Walter Minton's case Mitchell v. Tarbutt Mohun's (Lord) case Moises (Dr.) v. Dr. Thorn- ton 228. 387 Page 419 191 186 184 104 192 208 211 235 Molony v. Gibbons Molten v. Harris Monke v. Butler Monroe v. Twisleton Montgomerie v. Clarke Moodie v. Reid Moody v. Thurston Moor v. Adam Moore v. Foley Morewood v. Wood Morgan's case v. Bissell ■ v. Bridges (Sir C.) v. Ed 352 219 196 83 390 468 358 7 554 248. 249. 251 23. 24 532 wards Morley's (Ld.) case Morris v. Burdett Morrison v. Kelly Moses v. Macferlan Mosey 's case Mostyn v. Fabrigas Moulin v. Dalison Muller v. Hartshorne Mytton v. Harris N 371. 274 216 374 105 427 321 115 15 172 187 420 Neal d. Duke of Athol v. Wilding 327 v. Erving 103 Nelson v. Whittal 464. 473 Newburgh v. Newburgh 253 New College, case of 357 Newland's case 55. 121. 224 Nicholls v. Dowding 92. 269 v. Parker 241. 249, 250 Nix v. Cutting 49. 64. Noble v. Kennoway 171 Nodin v. Murray 449 Noel v. Wells 342 TABLE OF THE CASES CITED. XXXT Norden v. Williamson North v. Miles Page 72 105 O Oates (Titus) case of Oddy v. Bovil Ogle v. Paleski Oldham v. Litchford Olive v. Gwin Omichund and Barker Orford v. Cole Osborn v. Taylor 405 348 366 587 484 23, 24 530 441 Outram v. Morewood 254. 332 Page v. Crook 74 Paine v. Bustin 462 Palethorp v. Furnish 85. 98 Palmer v. Aylesbury (Ld.) 365 Palmerston's (Ld.) case Parke v. Mears Parker v. Hoskins v. Palmer v. Staniland Parkins v. Hawkshaw Parkinson v. Collier Parkyn's (Sir W.) case Parr's case Parris's case Parteriche v. Povvlet Patram's case Patrick's (Dr.) case Peacock v. Harris ■ v. Monk Pearce v. Hooper Pearson v. lies Pederson v. Stoffles Pember v. Mathers Pendock v. Mackinder Pendrel v. Pendrel Penny v. Porter Peppen v. Solomon Perigal v. Nicholson Peto v. Hague 141. 396 230 466 477 209 535 464 565 150 121 119 570 £1 357 227 556 452 7- 8. 54 151 30,31. 498 241 209 207 130. 261 98 Philips v. Bacon v. Bury v. Earner v. Hunter v. Shaw Page 214 358 274 350 215 53 170 228 423 60 323 412 386 390. 421 348 230. Phillipps v. D. of Buckingham 69 Phipps v. Pitcher Pickering v. ltudd Pickford v. Gutch Piercey's case Piesley v. Von Esch Pike v. Crouch Pirie v. Anderson Pitt v. Knight Pitton v. Walter 231. Pollard v. Bell Pomfret v. Smith Pope v. Skinner Portman v. Okeden Portmore (Ld.) v. Morris Potts v. Durant Powel v. Cleaver v. Edmunds v. Ford v. Hord v. Layton v. Milbank v. Ward Preston's (Ld.) case v. Merceau Price's case v. Dyer ton Fletcher v. Littlewood • v. Page v. Ld. Torrin; Prideaux v. Collier Priddle's case Prince v. Blackburn Pritt v. Fairclough Prudham v. Philips Purcell v. Macnamara Putt. v. Roster Pye's case Q Queen, (proceedings against the) 102. 293, 294, 295, 296, 297. 299. 305 254 203 126 579 419 507 515 486 60 210 196 27 486 566 41 574 213 414 546 263 98 31 472 459 344 214 331 207 b 2 XXXVI TABLE OF THE CASES CITED. R Radbourne's case Radford q. t. v. MTntosh iiambert v. Cohen Ramsay's case Ramsbottom v. Brewer v. Buckhurst v. Mortley ■ . Tunbridge 222. Ramsbottom's case Ramstrom v. Bell Rancliffe (Lord) v. Randall v. Gurney Randal v. Lynch v. Randal Randle v. Blackburn Randolph v. Gordon Rands v. Thomas Rankin v. Horner Rann v. Hughes Ratcliffe's case Ravee v. Farmer Raven v. Dunning Rawson v. Walker Read v. Brookman Readshaw v. Wood Reazon v. Ewbank Reed (the King in aid ( Hopper v. Jackson 252. v. Passer Rees v. Abbott v. Alansel v. Smith Reid v. Margison Reilly's case Rescous v. Williams Reusse v. Meyers Revet v. Braham Rex v. Abergwilly v. Aickles v. All Saints, > Page Paye cester Austrey Babb Baldwin Barker Barnes Ban- Bedell Rex v. Bermondsey (St. Mary Madgdalen) v. Bickley v. Blaney v. Boston v. Bowler v. Bramley v. Bray v. Brooke v. Broughton v. Brown v. Bunting v. Burbage v. Burley v. Buttery v. Carpenter 65 71. v. Carr v. Castel Careinion v. Castleton v. Cator v. Chadderton — — v. Chester (Bp.) v. Clarke 1 75. 204. 233 v. Clayton-le-Moors 379 69 377 124. 50.119. 337 377 86. 240 48. 50. 52 273 119 158 120 5 110 343 125. 230. 361 32 454. 457 496 241 529 Cliviger Cole Combs Cor den Corsham Cotton Creswell Crossley Culpeper (Sir T Dalby Damaree Davis Debenham Doherty , Doran Eardisland East Knoyle Eden , Edwards , Elkins , Ellis . Eriswell , Erith . Ferry Friston . Fletcher . Ford . Fox 77 167. 180 196 ib. 328 246 226 30. 413 ) 454 119 95 31.126 255 84 219 329 528 119 110. 283 392 119 375 240 241 75 30, 31. 37 138 TABLE OF THE CASES CITED. XXXVll Page Rex v. Frederick v. Fraternity of Host men in Newcastle v. Gardner v. Gibson v. Gillson v. Gisburn v. Green v. Greepe v. Grimes v. Grimwood v. Grundon v. Gwyn v. Hardwick v. Hardy v. Haslingfield v. Hathaway v. Hawkins v. Hebden v. Higgins v. Holland v. Holt v. Hopper v. Howe v. Hube v. Hunt 433 27. 226 343 527 132 27 37 324 415 358 424 89, 90. 93 112 94, 95, 96 401 231 196 324 310 428 406 314 292 220 181. 203 v. Mr. Just. Johnson 455 v. Johnson 125 v. Jones 42. 462 v. Kea 86. 240 v. Kennelworth 328 v. King and others 424 v. Kirdford 126 v. Lafone 75 v. Laindon 570 v. Lambert and Perry 1 83 v. Lee v. Leefe v. Lewis v. Lingate v. Lloyd v. Locker v. London (Mayor of) &c v. Long Buckby v. Lookup v. Lucas v. Luckup v. Luffe 86. 154, v. Macartney v. Mallinson v. Mattingley 435 213 282 111 159 81 65 528 21i. 437 125 240 119 196 r,r,H Page Rex v. Martin 413 v. Mead 435 v. Merceron 113 v. Middlezoy 451 v. Midlam 427 v. Miller 37 v. Morphew 368 v. Morris 395 v. Morton 457 v. Mothersell 423 v. Muscot 148 v. Netherthong 481 v. Northamptonshire (Inhabitants of) 168 v. Nuneham Court- ney 241. 378 50. 119 ter v. Nunez v. O'Coigley v. Olney v. Paget (Ld. v. Payne v. Pearce v. Pemberton v. Pendleton v. Phipps v. Piercy v. Pippet v. Pooley v. Preston v. Prosser v. Purchase v. Purnell (Dr.) v. Ravenstone v. Reading v. Reason and Tran- 235, 236 514 177 558 310 214. 370. 372 529 318 525 128 124 214 526 310 56 95 435 380 86. 240 v. Reeks v. Ring 8 v. Ripon (Mayor of) 135 v. Roberts 181 v. Roddam 5 v. Rogers 196 v. Rooke 86 v. Rosier 112 v. Row 110 v. Ryton 481 v. St. George (Inhab.) 318 v. St. Pancras 327- 338 — v. St. Peter's — v. St. Mary's, Not- tingham v. St. Paul's Bed- ford 86 276 509 XXXV111 TABLE OF THE CASES CITED. Page 328 557 27 385 436 75 Rex v. Sarrat — — v. Scammonden * v. Shacklington ■' v. Shaw ■ v. Shelley — — v. Shearman v. Smith 329. 37 1 . 429 v. Smith and Hor- nage 113 — — v. Sparkes 141 v. Stoke Golding 454 v. Stone 94s 124. 199. 287 v. Stratton 311 v. Sutton 316. 406 v. Taylor 25. 213 v. Teasdale 125 v. Teale 32. 44 v. Telicote 114 v. Thornton 372 v. Tilly 124 v. Tooke 94.183 v. Tower 437 v. Townsend 329 v. Travers 20 v. Tucker 21 v.Turner 27.199 v. Vandercomb 180. 426 v. Varlo 547 v. Verelst 226 v. Vincent 343 v. Walker 178 v. Warden of the Fleet 37. 325 v. Warley 379 v. Warminster 379 v. Watkinson 143 v. Watson 97. 165. 179 — — v. West Riding of Yorkshire 1 1 v. Whitley Lower 90. 127 v. Whiting 50.119 v. Williams 203 v.Wilson 113 v. Withers 139 v. Wobourn 72. 91. 127 278 v. Wych 27 v. Wylie 180 v. York (Mayor of) 324 v. Young 134 Reyner v. Pearson 99 Rhind v. Wilkinson 220 Rhodes's case 120 Rhodes v. Ainsworth 58 Ribbans v. Cricket Rice v. Shute Rich v. Jackson Richardson v. Disborow v. Edmonds Rickets v. Salway Rickman's case Ridley v. Taylor Right dem. Cater v. Price Rippener v. Wright Roberts v. Fortune v. Herbert Robertson v. French Robinson v. Drybrough — v. Smyth ■ ■ v. Tour ay Robinson's case 179. Robson v. Hall v. Kemp Rocher v. Busher Roderick v. Hovil Roe v. Aylmer ex dem. Beebee v. Parker Bennet v. Page 187 211 567 152 552 212 168 51.67 501 509 355 202 157 511 16 523 322.331 531 143 66 529 432 JefFery Rawlings Brune v. Pellatt v. Ferrars 417 417 258 361 Davis v. Hasland Rogers v. Allen v. Brooks West v. 446 198 212.254 159 Rogerson v. Whittington 70 Rolf v. Dart 388 Rookwood's case 36. 38. 290 Roscoe, ex parte 6. 13 Ross v. Hunter 194 Rotheroe v. Elton 57 Rothery v. Curry 445 Roulston v. Clarke 213 Rudd's case 39, 40. 48 Ruding v. Newel 171 Rugby Charity (Trustees of) v. Merryweather Rushworth v. Pembroke (Countess) and Currier 324 Russel's case (Ld.) Ruston's case 20. 38 Rutland's (Countess of case) 555 159 326 120 142 TABLE OF THE CASES CITED. XXXIX Page St. George and St. Mar- garet Parishes 155.197 St. Katharine Hosp. (case of) 423 St. Leger v. Adams 500 Saloucci v. Woodmas 347 Salte v. Thomas 414 Samuel v. Evans 316 Sanderson v. Symonds 521 Sandwell v. Sandwell 288 Sangster v. Mazarredo 92 Sarum (Earl) v. Spencer 381 Saunders v. Pitman 16 Savage q. t. v. Smith 206 Saville v. Roberts 30 Saxby v. Kirkus 316 Say and Seale's (Lord) case 139 Sayer v. Kitchen 444 Schinotti v. Bumstead 431 Scott v. Clare 220 v. Jones 525 v. Lifford 133 v. Shearman 352 Searle v. Williams 34 Seddon v. Tutop 332 Selby v. Harris 389 Selword v. Mildmay 539 Sergeson v. Sealey 377 Serle v. Serle 66 Shaw v. Markham 449 Sheers's (Sir G.) case 505 Shelling v. Farmer 432 Shephard v. Gosnold 548 v. Shorthouse 398 Shires v. Glascock 505 Short v. Edwards 190 Shotter v. Friend 147. 152 Shuttleworth v. Stevens 66 Sibley v. Cuming 318 Sidgworth v. Overend 21 1 Sidney (Algernon)'s case 486 Sikes v. Marshall 266 Skipp v. Harwood 27 Skrine v. Elmore 533 Slack v. Buchanan 108 Slade's case 331 Sloman v. Heme 139 Sloper v. Allen 212 Smalt v. Whitmill 4 Smartle v. Williams 482 Smith v. Beadnell 89 Page Smith v. Blackham 64 v. Cator 534 v. Doe dem. Earl of Jersey 552 - v. Evans 502 v. Harris 50 v. Lyon 91 v. Prager 51.122 v. Rummens 1 1 9. 337 v. Taylor 226, 227 v. Veale 367 v. Woodward 462 v. Young 109. 222 Smith's case 116.151.225 Snaith v. Mingay 511 Snead v. Robinson 41 Snow v. Philips 359 Somerset (Duke of) v. France 171, 172 Southampton's (Lord) case 96 Sparin v. Drax 361 Sparry 's case 331 Spence v. Stuart 5 Spenceley v. Schullenberg 144 v . De Willott 170. 273 Spencer v. Golding 128 Spieres v. Parker 199 Sponsonby's case 121 Squierv. Hunt 210 Stafford's (Ld.) case 150. 373 Stammers v. Dixon 549 Stanley v. White 173. 259 Staples v. Okines 66 Stapleton v. Stapleton 240 Stead v. Heaton 256 Stephens v. Crichton 15 Stevens v. Moss 240 Stockfleth v. De Tastet 89 Stone v. Bale 559 v. Blackburn 268 v. Forsyth 397 Stonehouse v. Evelyn 503 Stoveld v. Brewin 186 Strafford's (Ld.) case 287 Stratton v. Rastall 107 Street v. Brown 441 Strother v. Willan 410 Sutton v. Bisbop 32 v.Buck 156 i Coldfield Corp. of v. Wilson 71 Swan's case 204 xl TABLE OF THE CASES CITED. Swendsen's case Swinnerton v. Marquis of* Stafford Swire v. Bell Sydenham v. Rand Symmons v. Knox Page 83 420 474 4 213 Talbot v. Hodson — v. Villeboys Tarleton v. Tarleton Taylor v. Cole . v. Hague v. Hooman v. Royal Exchange Company ■ v. Scott 475 433 352 360 512 216 15 27 120 211 213 354 Taylor's case Teed v. Elworthy Tempany v. Barnard Terry v. Huntington Tewkesbury (Bailiff, &c. of) v. Bricknell 212 Thaire v. Thaire 471 Thanet (Ld.) v. Paterson 593 Thellusonv. Coslin 406 Theobald v. Tregott 128 Thomas's case 110. 113 Thomas, dem. Jones v. Thomas 107. 543 Thompson's case 110 Thomson v. Donaldson 342 . v. Smith 345 and Wife v. Trevannion 232 Thornton v. Jones 209 ■ v. Lyster 216 v. Royal Exch. Assurance Company 289 Thorowgood's case 465 Throgmorton v. Walton 198 Thurston v. Slatford 310 Thwaites v. Richardson 92 Thynne v. Protheroe 530 Tiley v. Cowling 87 Tillotson, ex parte 5 Tilly's case 365 Tinkler's case 235 Tinkler v. Walpole 410 Tonge's case 40. 114 ocker v. Beaufort (D. of) 377 Toole v. Medlicott Totty v. Nesbitt Towers v. Moore Townend v. Downing Townsend (Marquis) Stangroom Trapp v. Spearman Travis v. Chaloner Treble's case Trelawney v. Coleman — v. Thomas Tremain v. Faith Trevivan v. Lawrence Trowel v. Castle Tuckey v. Flower Turner v. Eyles v. Pearte Tyler v. D. of Leeds Tyrwhitt v. Wynne U Uncle v. Watson Underhill v. Durham Usher's case Vaillant v. Dodemend Vane's (Lord) case Vane's (Sir H.) case Vaughan's case v. Barnes Page 151 462 54-7 62 v. 582 518 324 121 82 55 7 320 393 424 206. 215 130. 268 104 173 259 404 121 141. 144 84 310 179 185 533 92 Venning v. Leckie Vicary's case Viile de Varsovie, case of 29, 30. Villiers v. Villiers 45S and Beamont's case 556 Viney v. Barrs 1 70 Vooght v. Winch 320 Vowels v. Young 238. 241 W Waddington v. Bristow 535 Wade v. Beasley 190 Wagstaff v. Wagstaff 497 Wakefield's case 4 Waldridsje v. Kennison 10S TABLE OF THE CASES CITED. xli Page | Waldron v. Coombe 382 I Walker v. Kearney 29 . v. Walker 584 v. Witter 34-9 Wallis's case 205 Wallis v. Delancey 473 Walton v. Hobbs 151 v. Shelley 4-4. 47 Ward v. Haydon 75 v. Shepherd 158 v. Wilkinson 325 Wardel v. Fermor 472 Wardle's case 207 Warneford v. Warneford 502 Warren v. Grenville 256 v. Stagg 568 Warrington v. Furbor 533 Warwick's (Lord) case 33, 34. 36, 37 Widrington's (Dr.) case Wigglesworth v. Dallison Wigley v. Jones Wild's case Wilks v. Atkinson Williams v. East India Com- pany 196 v. Johnson Williams v. Innes v. Sills Page 357 560 215 41 535 220 87 100 169 Williamson v. Allison 206, 207 Willingham v. Matthews 5 v. Bruce Warwickshall's case Watkins v. Newlett - v. Towers v. Vince Watson v. Kins: 536 110.115 531 186 104 169 120. 122 267 Willis's case Willis v. Peckham Wilson v. Clerk v. Gilbert v. Hart Watts's case Watts v. Thorpe Waynham v. Bend 206 Weall v. King 209 Webb v. Petts 252 v. Plummer 560 Webber v. Maddocks 522 Weeks v. Sparke 248. 252. Weir v. Aberdeen 520 Welborne's case 235 Weld v. Hornby 548 Weleker v. Le Peletier 206 Weller v. Foundling Hosp. 70 Well's case 121 Westbeer's case 38 West's (Dr.) case 434 case 40. 276 Wharam v. Routlcdge 444 Whateley v. Manheim 330 Wheeling's case 110 Whitaker v. Izod 439 Whitbread v. May 540 White's case 22 v. Cuyler 85 v. Wilson 562 Wliitlockc v. Baker 238 Whitworth v. Crockett 533 139, 92. 85 v. Hodges v. Rogers v. Turner v. Rastall Wiltzie v. Adamson Winsmore v. Greenbank Wishaw v. Barnes Withnell v. Gartham Wood v. Braddick v. Drury Woodcock's case Woodcraft v. Kinaston Woodford v. Ashley Woodnas v. Mason Woodnoth v. Cobham (Ld.) 261 Woodward's case 157 Woodyer v. Haddon 159 Woollam v. Hearn 582 Worsley v. Filisker 313 Wright v. Barlow 467 d. Clymer v. Littler 236 ■ v. Pindar 312 v. Wakeford 466 Wrottcsley v. Bendish and Wife 364 Wyatt v. Gore 2S7 Wych v. Meal 363 116, 117 7 216 ib. 568 198 428 101 143 266 81 49 252 363 471 235 386 213 387 Wyndliam v. Chctwynd 133. 498 Yabsley v. Doblc Yarly v. Turnock c 105 212 xlii TABLE OF THE CASES CITED. Page i Yate v. Leigh 259 York v. Blott 66 v. Willan 188 Young v. Bairncr 60 Yeats v. Pim 565 v. Smith 91 Yewin's case 273 v. Wright JOJ. 10 1 A TREATISE ON THE LAW OF EVIDENCE. BOOK THE FIRST. HHHE arrangement, which has been adopted in the following' Treatise, is that which appeared the most simple and perspicuous. The work consists of two parts ; the former, relating to parol or unwritten evidence ; the latter, to written evidence. The subject of the first chapter is the method of compelling the attendance of witnesses for the purpose of being examined ; and the five succeeding chapters treat of the causes, which render witnesses incompetent. In these the writer has inquired into the several objections to witnesses, arising from want of reason or understanding, from defect of religious principle, from conviction of certain crimes, or from infamy of character, from interest, and, lastly, that arising from the relation which subsists between a client and his counsel or his solicitor. After ascertaining whether the witness is competent to give evidence, the next question that arises, is, what evidence ought to be given, and how the witness ought to be examined. The seventh chapter, therefore, treats of the general nature of proofs ; and the eighth, of the regular mode of examining a witness. And the first part then concludes with an inquiry into bills of exception and demurrers to evidence. VOL. I. j; Of the. Attendance of Witnesses. £Ch. 1. The second part, which relates to written evidence, treats of records, of the admissibility of verdicts, and judgments, and other judicial proceedings, and of the manner in which they are to be regularly proved. Public writings, not of a judicial nature, and the inspection of such writings, are next con- sidered; after which, follows an inquiry into the proof of private writings, the requisite of stamps on written instru- ments, and, lastly, into the admissibility of parol evidence by which written instruments may be explained or varied. PART THE FIRST. CHAPTER I. Of the Attendance of Witnesses. npHE first question that occurs, in entering on the subject of evidence, relates to the method of enforcing the at- tendance of witnesses at t he trial of a cause. This is the sub- ject of the first chapter. Attendance in The process which courts of law have instituted for the civil cases. purpose of compelling the attendance of witnesses, is the writ of subpoena ad testificandum. This writ commands the witness to appear at the trial to testify what he knows in the cause, under the penalty of 1001. to be forfeited to the king. ( 1 ) And the _stat. 5 Eliz. c. 9. s. 12. (which refers to process out of courts of record, for the attendance of wit- nesses, as process well known and then in use (2), ) gives an ad- ditional remedy by enacting, that " ifanyjperson (upon whom any process out of a court of record shall be served, to testify concerning any cause or matter depending there, and having (1) See form of this writ, on a trial, in Tidd. App. p. 351. ; and on a writ of inquiry, p. 241. (2) See 9 East, 484. Ch. 1.] Of the Attendance of Witnesses. i tendered to him according to his countenance or calling such reasonable sum of money for his costs and charges, as with regard to the distance of the place is necessary to be allowed,) do not appear according to the tenor of the process, not having a lawful and reasonable cause to the contrary, he shall forfeit for every such offence 101., and yield such further recompence to the party grieved, as, by the discretion of the judge of the court, out of^which the process issues, shall be awarded." If a witness has in his possession any deeds or writings, Subpoena which are required at the trial, a special clause must be in- serted in the subpoena, called a duces tecum, commanding him to bring them with him. When the writings^ are in pos- session of the adverse party or his attorney, notice should be given to produce them ; and if, after proof of a reasonable notice, they_ are refu sed, secondary evidence of the conte nts will be admitted. It will not be necessary to give notice to the defendant in person ; giving it to his attorney will be suf- ficient even in penal actions. (1) This writ of subpoena duces tecum, as well as the other writ of subpoena ad testificandum, is compulsory upon the witness. And though it will be a question for the consideration of the judge at the trial, whe- ther in any particular case the actual production of writings should be enforced, yet the witness ought always to have them ready to be produced, if required, in obedience to the judicial mandate. (2) From the earliest times, our courts of common law, in order to give effect to their proceedings, have resorted to these compulsory measures for the production of evidence ; measures obviously essential to the existence and constitution of courts of justice. The writ of subpoena, when sued out, is to be regularly Service of served on the witness ; and as only_fo ur witness es can be in- ^P 02 " 3 - (1) Attorney-General v. Le Mer- (2) Aniey v. Long, 9 East, 485. chant, 2 T. R. 20.5. n. Cates q. t. Field v. Beaumont, 1 Swanston'a v. Winter, 7, T.R. 306. See form of Rep. 209. writ, TiHd. App. 332. E 2 4 Qf the Attendance of Witnesses. [Ch. 1. elud ed in on e writ of subpoe na ( 1 ), several writs are frequently necessary. In order to save expence, it is settled, that ser- vice of a ticket, containing the substance of the writ, will be as effectual as service of the writ itself. (2) The writ or ticket should be served personally on the witness (3), and in reason- able time before the day of trial, that he may suffer the less inconvenience from his attendance on the court. (4) Notice to a witness in London at two in the afternoon, requiring him to attend the sittings at Westminster in the course of the same evening, has been held to be too short. (5) If the wit- ness, whose attendance is required, be a man^djvoman^ it will be_n eeessary to se rv e the subpoena upon her p ersonally, and the tender of the expences should be made to her, and not to her husband. (G) If a cause appointed for one sit- ting be made a rcmanet, the subpeena must be re-sealed and re-served. (7) Privilege from The wit nesses, as well as the parties in a suit, are protected by courts of justice and privi leged f rom a rrest^ during the ne- cessary time consumed by them in going to the place, where their attendance is required, in staying there for the purpose of such attendance, and in returning from the place. (8) And, in ordinary cases, it is not necessary for the protection of a witness, that he should have been served with a subpeena, if upon application to him he consented to attend without one. (9) A reasonable time is allowed to the witness for going and returning ; and in making this allowance the courts ( 1 ) Cowp. 846. (5) 2 Tidd. Pr. 835., 7th ed. (2) Goodwin v. West, Cro. Car. (6) Cro.El. 182. 1 Jon. 430. S. P. 522.540. Maddisonv. Shore, 5 Mod. (7) Sydenham v. Rand, 24 G. 3. 355. S. P. See form of ticket, on K. B., cited from MS. in 2 Tidd. writ of inquiry, in Tidd. App. Pr. 8.53., 7th ed. p. 211. ; and on "trial, p. 331. (8) 2 Roll. Ab. 272. Lightfoot v. (3) Smalt v. Wliitmil!, 2 Stra. Cameron, 2 Blac. Rep. 11 13. Mec- 1054. Wakefield's case, Rep. temp, kins v. Smith, lH.Bl. 636. Ran- Hard. 313. S. P. dall v. Gurney, 3 Barn. & Aid. 252. (4) Hammond v. Stewart, 1 Stra. (9) Lord Kenyon C. J., in Ardine 509. v. Flower, 8 T. R. 536. Ch. 1.] Of the Attendance of Witnesses. 5 are disposed to be liberal. (1) This p rivileg ejhas been ex- tended to aj)arty in the suit attending an arbitrator under an order of nisi prius (2), and to persons attending the insolvent debtors' court. (3) A bankrupt also, attending a meeting of commissioners in pursuance of a notice, is, during his attend- ance, protected from an arrest at the suit of a creditor (4) ; the commissioners being assembled under the authority of an act of parliament, and sitting as a court for the administra- tion of justice. And, by the mutiny-act, witnesses are pri- vileged from arrest during their necessary attendance on courts martial, in the same manner as witnesses attending a court of law. A subpoena can have no effect, where the witness is in cus- Habcas'corpus tody, or on board a ship under the command of an officer, who j um , refuses to allow his attendance. The course then is to sue out a writ of habeas corpus ad testificandum (5); for which purpose application ought to be made to the court or a judge, upon affidavit of the party applying, stating that he is a material witness and willing to attend. (G) Upon this application the court in its discretion will make a rule, or the judge will grant his fat for a writ (7), which is then sued out, signed, and sealed. (8) The writ should be left with the sheriff or other officei", who will then be bound to bring up the body, on being paid his reasonable charges. If the witness be a prisoner of war^ he may be examined by consent on interrogatories, but (1) 2 Blac. Rep. ill.?. Hatch v. 3 East, 89. Ex parte Byne, l Ves. & Blisset, Gilb. Cas. 508., cited 2 Stra. Bean). 316. 986. 13 East, 16. n. (a) Willing- (.5) Tidd. Pr. 837., 7th ed. Ex ham v. Matthews, 2 Marshall, 57. parte Tillotson, 1 Stark. N.P.C. 470. See Randall v. Gurney, 3 Barn. & See form of affidavit in Tidd's App. Aid. 252., and 1 Tidd. Pr. 221., 7th c. 53. S. 37. p. 332. ed., where the cases on this subject (6) R. v. Roddam, Cowp. 672. are collected. On the trial of Sir John Freind for (2) Spence v. Stuart, 3 East, 89. high treason, Lord C. J. Holt, on the Randall v. Gurney, 3 Barn. & Aid. application of the prisoner, ordered 252. his clerk to prepare a warrant for a (3) 6 Taunt. 356. habeas corpus. 4 St. Tr. 600. And (4) Arding v. Flower, 8 T. R. .554. see Layer's case, Fcrtesc. 396 2 Blac. Rep. 1142. Kinder v. Wil- (7) R. v. Burbage, 3 Burr. 1440. liams, 4T.R.377, Spence v Stuart, (s) Tidd. Pr. 837., 7th ed. B 3 i* Of the Attendance of Witnesses. [Ch. 1. cann ot b e brought up without an order from the secretary of _state.(l) It has been doubted whether persons in custody could be brought up as witnesses by writ of habeas corpus, to give evi- dence before any other courts except those at Westminster : but now, by stat. 43 G. 3. c. 140. it is enacted, that ajudge of either of the courts may , at his discretion, aw ard such writ for bringing a prisoner, detained in an y gaol iriEn^land^ before a cour t martial, or before commission ers of b ankrupt, com- mission ers for auditing the public accounts, or^other commis- sioners acting by virtue of any royal commission or warrant ; and the stat. 44 G. 3. c. 102. authorizes the judges of the court of King's Bench, or Common Pleas, or Exchequer, in England or Ireland, or justices of oyer and terminer or gaol delivery (being such judge or baron), to award writs of habeasjmgus for bringing pris oners detained in gaol _before^an£ of^ the co urts, or yi ysitti ng at nisi p rius, or before any court of re - cord in thos e p a rts of the United Kingdom, to be there ex- amined as witnesses in any civil or criminal cause ; and, by the same act, justices of great sessions in Wales and the county palatine of Chester have the same authority within the limits of their jurisdiction. The application for a writ of habeas corpus under this statute ought to be made to a judge out of court. (2) Payment of No witness is bound to appear in ci vil cases, unless his expenses. reasonable expenses, for going to and returning to the trial, and for his reasonable stay at the place, be tendered him at the time of serving the subpoena ; nor, if he appears, is he bound to give evidence, till such charges are actually paid or tendered (3), except he reside within the weekly bills of mor- (1) Furly v. Newnham, 2 Doug, fully stated. Bowles v. Johnson, 419. l Blac. Rep. 36. Fuller v. Prentice, (2) Gordon's case, z Maule & l H. Blac. 49. Hallett v. Mears, Selw. 582. 13 East, 15. Ex parte Roscoe, (3) Chapman v. Poynton, 2 Stra. l Merivale, 191. 1150. 15 East, 16. n.o. S. C. more Ch. 1.} Of the Attendance of Witnesses. 1 tality and be summoned to give evidence within them, m which case it is usual to leave a shilling with the subpoena ticket. (1) The necessity of this previous tender arises from the special provision in the act of Elizabeth, before cited. If a necessary witness is bro ught ov er from a for eign co untry, whether brought after or before the commencement of an action, the r easonable expenses both of his coming to this country, and of his subsistence here pending the action, and of his return, will be allowe d in the taxat ion of costs, provided he is brought over hona fide for the purposes of the particular action. (2) With r espect to comp ensation for lo ss of time, the general rule is, that it^ought not to be allowed. (3) If a witness , who has been duly served with the writ, and Remedies for has had a tender of the reasonable expenses, omit to attend ance at the trial without a sufficient cause, he is liable to be pro- ceeded against in one of three ways. The first and more usual course of proceeding, is by attachment for a contempt of the process of the court (4), which appears to be as ancient as the common law itself. (5) In order to ground this summary proceeding, it will not only be necessary to show an ill motive in the witness, or negligence and inattention to the process of the court, but also to prove that the witness was personally served (6), and that his reasonable expenses were paid or tendered at the time of the service of the subpoena. (7) A second remedy is b y a special _action on the case for damages, at common law. (8) The third, and last, is an action on tii<^ stat. 5 Eliz. j^. 9^ s. 12. for the pe nalty of 10L 2 _and_also for (1) 3 Blac. Com. 369. Tidd. Pr. (4) 2 Ld. Raym. 1528. 1 Stra. 835., 7th ed. 510. 2 Stra. 810. 1054. 1150. Covv|). (2) Tremain v. Faith, 6 Taunt. 88. 846. Doug. 561. Blandl'ord v. Dc 1 Marshall, 563. S. C. Tastet, 5 Taunt. 260. Home v. (3) Moor v. Adam, 5 Maule & Smith, 6 Taunt. 9. 1 Marshall, 4 lo. Selw. 156. Willis v. Peckham, S. C. 1 Brod. & Bing. 515. Lowry v. (5) See Pearson v. Isles, 2 Doug. Doubleday, 5 Maule & Selw. 159. 561. Amey v. Long, 9 East, 43 5. (b.) I^rdJUjejiborough, ajter^citing 6) 2 Stra. 1054. the last_case,~ adde^^' JfreJjeHeYcd (7) Ante, p. 6. Tidd. Pr. 836., the _practice had been to make al- 7th ed. J^^^lo^jne^carmen^ml^&llgi- (S) Pearson v. Iks, Doug. 561* but not to other s." == B I 8 Of the Attendance of Witnesses. [Ch. 1. the further recompence recoverable under that statute. This action for a further recompence will not lie, unless the amount has been previously assessed by the court out of which the process issued : neither the jury nor the judge at nisi prius being competent to make the assessment. (1) When the assessment has been made, an action of debt will lie. Attendance in The means of compe lling^ tl^^tendance^fjwitoesses, in ''criminal cases, are of two kinds (2) : first, by jnrqeess of sub- poena, for disobedience to which the person served with the process is liable to an attachment (3) ; or, secondly, the justice or coroner, who takes the information of the witnesses, may, at the time of taking it, or at any time before the trial, bind them over to appear ; and, if they refuse to come or to be bound over, may commit them for a contempt. (2) This proceeding by recognizance is the ordinary and more effectual method. In prosecutions for misdemeanors the defen dant has been, from the earliest times, allow ed the w rit of subpoena. But prisoners had no right, by the common law, to this process in capital casesj without the special order of the court. (4) For- merly, in such cases, a prisoner was put upon his trial under a twofold disadvantage ; he was unable to compel the attendance of witnesses, and if they voluntarily attended, their evidence, not being given on oath, met with less credit than the evidence on the part of the prosecution. But by stat. 7 W. 3. c. 3. s. 7., all persons indicted for any high treason, whereby corruption of blood may ensue, shall have the like process of the court, where they shall be tried, to compel their witnesses to appear for them, as is usually granted to compel witnesses to appear against them. And now, as the stat. 1 Ann. st. 1. c. 9. s. 3. enacts, that a ll witne sses, on behalf of a prisoner on a trial for (1) Pearson v. lies, Doug. 561. crown-office, requiring the witness to See supra, p. 3. appear at the ensuing assizes in the (2) 2 Hale P. C. 281. Bennet v. country; and the court of K. B. Watson, 3 Maule & Selw. 1. granted an attachment. (3) R. v. Ring, 8 T. R. 585. The (4) 2 Hawk. P. C. c.46. s. 17. subpoena in this case issued from the Ch. 1.] Of the Attendance of Witnesses. treason or felony, shall be sworn in the same manner as wit- nesses for the crown, and be liable to all the penalties of perjury, process maybe taken J>ut_ against jthem in any case whatev er. In order to provide for the appearance of witnesses, to an- swer in cases where warrants are not usually issued, and to give evidence in criminal prosecutions in any part of the United Kingdom, it is enacted by a late act of parliament, stat. 45 Geo. 3. c. i)2. s. 3. and s. 4., that the service of a writ of sub- poena or other process, in any one of the parts of the United Kingdom, shall be as effectual to compel his appearance in any other of the parts of the same, as if the process had been served in that part where the person is required to appear. And if the person served does not appear, the court, out of which the process issued, may transmit a certificate of the default in the manner specified by the act, and the court, to which the certificate is transmitted, may punish the person for his default, as if he had refused to appear to process issuing out of that court ; provided it appear, that a reasonable and s ufficient sum of money, to defray the expenses of coming and attending to give evidence and of returning, was tendered to t he person m aking default, at t he time when the subp eena or other process was served upon him. In civil proceedings, as we have seen, a witness is not Compcns- obliged to attend or give evidence, unless his expenses are duly tendered ; but, in crim inal prosecutions, witnesses are bound to appear unconditionally. (1) On the other hand, it is reasonable and highly expedient, that, when they attend on behalf of the public, a fair compensation should be given them for their trouble and necessary expense. Formerly, however, the law provided no means for reimbursing them ; a defect in our judicial administration, which was at length remedied by stat. 27 G. 2. c.JJ. s^ 3. This statute enacts, that " when any (1) 4 Hawk. B. 2. c. AG. s. 173. ambles of stat. 27 G. 2. c.J. s. 5., 2 Hale P. C. 282 See also Pie- and stat. 18 G. 3. c. 19. s. 7, 10 Of the Attendance of Witnesses. [Ch. 1.. poor^erson ^hall appear on recognizance to give evidence against another accused of grand or petit larceny or other felony, the court may, on the oath of such person, aiidqn^con- sideration of his circumst ances, in open court order the treasurer of the county or place, in which the offence shall have been committed, to pay such sum of money, as to the court shall seem reasonable, for his time, trouble, and expense." As this statute extended only to poor persons who appeared on recognizance, and not to such as appeared on subpoena to give evidence, it was afterwards deemed reasonable by the legislature, that every person so appearing on recognizance or subpoena, should be allowed his reasonable expenses; and also, in case of poverty, a satisfaction for his trouble and loss of time. The stat. \ S Geo. 3. c. 19. s. 8 . therefore enacts, that " where any person shall appear on recognizance or sub- jp cena, to g ive evidence as to any grand or petit laixeny_or other felony, whether any bill or indictment be preferred or not to the grand jury, it shall be in the pow er of the court (provided the person shall, in the opinion of the court, have bondfde attended in obedience to such recognizance or sub- poena,) to order the treasurer of the county or division, in which the offence shall have been committed, to pay him such sum a s to the court shall seem reasonable, not exceeding the expenses, which it shall appear to the court the said person was bond fide put unto by reason of the said recognizance and subpoena, making a reasonable allowance, in case he shall appear to be in poor circumstances, for trouble and loss of time." Another act, lately passed (l), provides, that in cases of felony, the court, before whom a person shall be prosecuted or tried, shall be empowered (at the request of any person bound to prosecute, or subpoenaed to give evidence, and who shall appear to prosecute or give evidence, or who shall appear to (1) St. 58 G. 5. C 70. s. 4. 7 Ch. I.] Of the Attendance of Witnesses. II the court to have been active in the apprehension of a person accused of some one of the offences mentioned in several recited acts,) to order the sheriff or treasurer of the county, to pay to the prosecutor and witnesses, and to the person con- cerned in such apprehension, as well the costs, charges, and expenses, which the prosecutor shall be put to in preferring the indictment, as also such sum of money, as to the court shall seem reasonable and sufficient to reimburse them for their expenses in attending before the grand jury to prefer the indictment, and in carrying on the prosecution, and also to compensate them for their loss of time and trouble in the apprehension and prosecution. And the 8th section further provides, that no person shall be entitled to any such costs or expenses for attending the court, unless he shall have been bound by recognizance, or have previously received a subpoena to attend, or a written notice for that purpose from the pro- secutor, his agent, or his attorney. The statutes, above referred to, apply only to cases of felony; on prosecutions for misdemeanors, and Jn other cases not specially provided f or by act of parliament, the court is not authorized to order a compens ation to witnesses for their attendance . (1) It has been doubted (2), whether a witness may not lawfully refuse to obey a subpoena on a criminal prosecution, as well as in a civil suit, unless he has a tender of his reasonable ex- penses ; and the doubt is suggested in consequence of a provi- sion in the stat. 45 Geo. 3. c. 92., which (after enacting, that service of subpoena on a witness in any one of the parts of the United kingdom, for his appearance on a criminal prosecution in any other of the parts of the same, shall be as effectual as if it had been in that part where he is required to appear,) provides, that he shall not be punishable for default, unless a sufficient sum of money has been tendered to him, on the ser- (l) R. v. W. R. of Yorkshire, (2) See Chitty's Treatise on Cri- .7 T. R. 377. minal Law, 1 voJ. 612. 12 Of the Attendance of Witnesses. [Ch. 1. vice of the subpoena, for defraying his expenses of coming, attending, and returning. One object, which the legislature had in view, was to provide for the appearance of witnesses in any of the parts of the United Kingdom, and they are there- fore subject to punishment for non-attendance ; on the other hand, as the expences of going from one of the parts of the United Kingdom to either of the other parts would necessarily be great, they were allowed to insist on the payment of their reasonable charges, previous to the journey ; a provision more especially necessary at the time of passing this statute, when, in some parts of the kingdom, witnesses were not entitled to any compensation for attending to give evidence in criminal cases. (1) But as there is no statute respecting a tender of expenses in the case of a criminal prosecution, except that mentioned above, (which is confined to the case, where the process is served in one of the parts of the United Kingdom for the appearance of the witness in another of the parts,) and as the tender of expenses in civil suits is under the special pro- vision of an act of parliament, the general rule in ord inary cases, (whether of felony or misdemeanor), ap pears to be, t hat witnesses, making default on the trial of criminal prosecution s, are not exempted from att achment, on the groun d that their expenses jwere not tendered at the ti me of the ser vice of the subpoe na ,* alt hough^jt he court w ould have good reason to ex- cuse thenvfor not obeyi ng the summo nsgifin fact they had not the means of^defraying^thenecessary expenses of the journey. (2) Attendance before com- missioners, and others. ^ommjsjionersjoifjbankrupt, by stat. 1 J. 1. c. 15. s. 10., are empowered to issue their warrant, and jirjprehend__persons, known or suspected of having any^ part of the bankrupt's pro- perty, or of being indebted to thejjankrupt^ who, after a suf- ficient warning given, have refused to come and appear before them to be examined, not having any lawful cause for such refusal; and, by sect. 11. of the same act, witnesses, (1) In Ireland, the expenses of witnesses in case of felony were first allowed by st. 55 G. 3. c. 91. (2) See p. 9.(1), supra. Ch. 1.] Of the Attendance of Witnesses. 13 sent for by the commissioners and attending, shall have such costs and charges as the commissioners shall think fit. It has been determined, on this section, that it is not necessary; to tender to a person, at the time of summoning him to appear before the commissioners, the expenses of his journey ; although, if he be in fact without the means of taking the journey, it may be an excuse for not obeying the summons. ( 1 ) There is a material difference, in this respect, between a witness at law, and a person attending on the examination of com- missioners ; the necessity of a previous tender of expenses, in the case of a witness who is subpoenaed to attend at a trial, arises from the special provision of the stat. 5 Eliz. c. 9. s. 12. Another difference is, that a person, attending the commis- sioners as a witness under the statute of James, is not entitled to have his expenses paid before the conclusion of his examin- ation, when the amount of the compensation may be best ascertained. (2) If a bankrupt is in execution, or cannot be brought before the commissioners, the acting commissioners are required by stat. 5 G. 2. c. 30. s. 6'., to attend the bankrupt and take his discovery ; but as this attendance on the bankrupt in prison has been found to be extremely inconvenient, it is now pro- vided by stat. 49 G. 3. c. 121. s. 13., that bankrupts ch arged in execution are to be brough t befor e the commissioners to be examined by them, in the same manner as bankrupts in custody on mesne process ; and the warrant of the commis- sioners is an indemnity to the keeper of the prison. Ma gistrates have not, in general, any authorit^jto compel the attend ance of witnesses for the purpose of a summary trial, except under the special provision of acts of parliament. As the statute of 2 & 3 Ph. & Mary, c. 10., requires them to take the examination of persons, who bring a prisoner before them on suspicion of felony, it incidentally gives a power to examine (i) Battye v. Grcslcy, 8 East, .519. (2) Ex parte Roscoc, 1 Merivale, Ex parte Benson, 2 Rose, 75. 188, 14 Of the Attendance of Witnesses. [Ch. 1. them uponjjath, and to summon by their_ warrant anj_other persons, who appear to be material witnesses for the prosecu- tion, to come before them and give evidence. And it may be laid down as a general rule, that wherever magistrates are authorised by act of parliament to hear and determine, or to examine witnesses, they have incidentally a power to take the examination on oath. ( 1 ) Witnesses neglecting to attend on courts martial, after being duly summoned, are liable to be attached in the court of King's Bench, &c, as if they had neglected to attend a trial in some criminal proceeding in that court. (2) And commis- sioners of inclosure, under the general inclosure act, stat. 41 G. 3. c. 109. s. 33. 34., have a power to summon in writing any person within a certa in distance, to appear before them and to be examined ; and if the person summoned refuse to appear, he will be subject to a penalty. Witness When a material witness resides abroad, or is going abroad, and cannot attend at the trial, the party requiring his testimony may move the court in term-time, or may apply to a judge in vacation, for a rule or order to have him examined on interro- gatories de bene esse before one of the judges of the court, if the witness reside in town, or, if he reside in the country or abroad, before commissioners specially appointed and approved by both parties. (3) Thej*ule_or order for such examination cannot be obtained without the consent of both parties, as the depositions are only secondary evidence. Without this consent, therefore, the Court will not give the plaintiff leave to examine upon interrogatories an attesting witness to a deed, or to give the examination in evidence at the trial, on the ground that the witness is incapacitated by illness from attending, and unlikely ever to be able to attend, though it appear by (1) Dalt. Just. c. 6. Lamb. 517. (2) Stat. 55 G. 3. c. 108. s. 28. 12 Rep. 131. And see stat. 15 G. 5. (3) 2 Tidd. Pr. 859., 7th ed. c. 39., which gives such power, for the purpose of levying penalties or making distresses. Ch. 1-3 Of the Attendance of Witnesses. 15 affidavit, that the defendant had at one time admitted the exe- cution of the deed ; nor will the court, on these grounds, grant a rule for dispensing with the attendance of the witness. (1) And though the court will not compel the other party to consent, yet, if necessary, it will assist the party applying by putting off the trial, (that there may be an opportunity of filing a bill in equity,) until the consent is obtained, or the witness returns ; and if, after all, the defendant should refuse, the court will not give him judgment as in case of a nonsuit. (2) "When a party, after obtaining leave by consent, examines witnesses abroad on depositions, he will not be entitled to any allowance, in the taxation of costs, for the expense of taking the depositions, although he may proceed in the action. (3) The same rule prevails in the cour t of Chance ry : if a jparty applies to that court for a commission to exam ine witnesses^ he must pay the expenses. Where a cause of action has arisen in India, or any offence has been committed there, which is tried in this country, the evidence of witnesses resident in India may be obtained in the manner prescribed by stat. 13 G. 3. c. 63. s. 40.44.(4) The evidence of witnesses in India may also be obtained, in support of a bill for a divorce in parliament, by the provisions of stat. 1 G. 4. c. 101. ; and in the case of a prosecution, for an offence committed abroad by any person employed in the public service, the evidence of witnesses resident abroad may be obtained in the mode pointed out by stat. 42 G. 3. c. 85. If the defendant is unable to proceed to trial, on account of Material wit- the absence of a material witness, he may move the court in nehS A term-time, or apply to a judge in vacation, on an affidavit of (1) Jones v. Brewer, 4 Taunt. 47. (.3) Stephens v. Crichton, 2 East, (2) Furly v. Newnham, 2 Doug. 2.>9. Taylor v. Roy. Ex. Ass. Comp. 419. Mostyn v. Fabrigas, Cowp. 174. 8 East, 593. Calliard v. Vaughan,"l Bos. & Pull. (4) Grillard v. Hogue, 1 Brod. & 211. As to the admissibility of de- Bing. .Tig. positions on interrogatories, see 2d part, c. 4. s. 2. 16 Oj the Attendance oj' Witnesses. [Ch. 1. the facts, to put it off till the next term ; or in the Common Pleas, if necessary, to a more distant period. ( 1 ) An appli- cation to put off a trial beyond the existing sittings, or from sittings to sittings, is not allowed on the part of the plaintiff; for he has the power at any time of withdrawing the record, if he is not prepared to try the cause. But where, from the sudden indisposition of a witness, who may be able to attend in the course of a day or two, or for any other tem- porary reason, the plaintiff is prevented from trying his cause in its order in the paper, yet has ground to believe that he shall be able to try before the sittings are over, it would be too much to make him, in such a case, withdraw his record ; and a judge at nisi prius will therefore make an order for the trial to stand over, till the witness is likely to attend. (2) It is a rule in the court of Common Pleas, that the trial of a cause can never be put off on the consent of the parties and counsel, at the sittings at nisi prius, but the plaintiff must either proceed to try or withdraw his record. (3) Before the court will consent to put off the trial on account of the absence of a material witness, it requires to be satisfied, that injustice would be done by refusing the application, and that the party, who makes the application, has not conducted himself unfairly, nor been the cause of any improper delay. (4) The rule will not be granted to the defendant, after he has pleaded a sham plea, by which a trial has been lost, unless he consent to pay the money into court (5) ; nor, where the testi- mony of the absent witness is intended to set up an odious defence, (as, that the plaintiff is slave to the defendant, and therefore cannot recover in the action, or that he is an alien enemy, &c.) (6) ; nor will it grant the rule for the purpose of (1) Pr. Reg. 398. Tidd. Pr. 813. (4) Saunders v. Pitman, 1 Bos. & 7 th ed. See form of affidavit in Tidd. Pull. 35. App. 312. (5) Tidd. Pr. 813., 7th ed. (2) Ansley v. Birch, 3 Campb. 333. (6) Robinson v. Smyth, 1 Bos. & by Lord Ellenborough. Pull. 454, (3) 2 Taunt. 221. Ch. 2.] Of Incompetency of JVilnesses, &p. 17 giving the defendant an opportunity, which he has once lost by his own neglect, of applying to a court of equity for a com- mission. (1) When a motion is about to be made to a judge at nisi prius, for putting off the trial of a cause on account of the absence of a witness, notice should first be given to the plaintiff's attorney, with a copy of the intended affidavit. This affidavit ought regularly to be made by the defendant himself; but if he is abroad or out of the way, it may be made by his attorney or a third person. (2) The affidavit generally states, that the person absent is a material witness, without whose testimony the defendant cannot safely proceed to trial ; that he has endeavoured without effect to get him subpoenaed ; but that he is in hopes of procuring his future attendance. (3) CHAP. II. Of the Incompetency of Witnesses from Want of Understanding. Y/t/"HEN a witness appears, he must be regularly sworn, unless an objection is made to his competency ; and the course of proceeding is, that the party, who obje cts to the witness, should state all his objectio ns atjjie same time, in order to prevent unnecessary delay. (4) An exception to the credibility of a witness cannot exclude him from being sworn. The exception of kindred, for example, although it is a good cause of challenge against a juror, is not an objection to the competency of a witness ; a father is a competent witness for oragainst his son , and a master for his servant, or a servant for his master. Such exceptions may affect the credibility, but they do not affect the competency of witnesses. (1) Calliard v. Vaughan, l Bos. & (.3) See form of affidavit, Tidd. Pull. 212. Pr.Appx. (2) Peake, N.P. C. 97. (4) Lord Lo vat's case. 9 St. Tr. 65a. VOL. I. C Of Incompetency of Witnesses [Ch.2. As it is the province of the jury to consider what degree of credit ought to be given to evidence, so it is fo r the^ourt alone to determine, whether a witness is competent, or the evidence admissible. Whether there is any evidence, is a question for the judge: whether it is sitfficient, is for the jury. (1) And whatever antecedent facts are necessary to be ascertained, fo r the pur pose of decid ing the question of com- pet ency or admissibUityjrf evidence, as, for example, whether a child understands the nature of an oath — or whether the confession of a prisoner was voluntary — or whether declar- ations, offered in evidence as dying declarations, were made under the immediate apprehension of death — these, and other facts of the same kind, are to be determined by the court, and not by the j u ry . By the law of England the objections to the competen cyof witnesses a re fou rfold . The first ground of incompetency is want of reason or unde r standing : a second ground is defect of relig ious principle : a third ground arises from conviction o f certain crimes, or from i nfam y of character : the fourth and most general cause of incompetency is int erest. Either of these grounds of incompetency will exclude the witness from giving any kind of evidence. " I find no rule less compre- hensive than this," said Mr. Justice Lawrence in the case of Jordaine v. Lashbrooke (2), " that all persons are admissible witnesses, who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest." * (1) By Buller J. Comp. of Car- (2) 7 T. R. 610. penters, &c. v. Hayward, Doug. 375. Bull. N. P. 297. * After taking a view of the law of England, it may not be thought un- interesting to inquire, what was the rule of the Roman law, respecting the disqualification of witnesses. The classical reader will readily excuse an allusion to such a subject ; and the more severe student of law will pardon the digression, when he considers the great influence which the code of Justinian formerly obtained iD this as in every other country. The princi- pal rule* were the following " Admittendi non sunt ad testimonii fidem, Ch. 2.] from Want of Understanding. An enquiry into these several causes of incompetency forms the subject of the four following chapters. First, as to incompetency for want of understanding. Persons, who have not the use of reason, labour under a Idiots, &c. physical disqualification, and from their infirmity are utterly incapable of giving evidence. Insane persons, idiots, and lunatics under the influence of their malady, are in this situ- ation. ( 1 ) But lunatics, and other persons, though subject to temporary fits of insanity, may yet be witnesses in their lucid intervalsji f they have sufficien tl y recovered their under stand- ings. (2) And a person born deaf and dumb is not on that account incompetent, but, if he has sufficient understanding, (1) Co, Lit. 6. 6. -6 Com. Dig. tit. (2) Com. Dig. lb. " Testmoigne," A. 1 . qui impuberes erunt: qui judicio publico damnati erunt, et qui eorum in integrum restitutus non erit : quive in vinculis, cutodiave publicit erit. Adulterii, aut repetundarum damnatus, et ob testimonium dicen- dum damnatus vel non dicendum, ad testimonium non adhiberi po- test. — Nullus idoneus testis in re sua intelligitur. — Testis idoneus pater filio aut filius patri non est. — Lege Julia cavetur, ne invito denuntietur ut testimonium litis dicat adversus socerum, generum, vitricum, privig- num, sobrinum, sobrinam, sobrino natum, eosve qui priore gradu sunt. — Idonei non videntur esse testes, quibus imperari potest, ut testes fiant : domestici testimonii fides improbatur. — Unius omnimodo testis responsio non audiatur, etiamsi prceclaras curias honore fulgeat. — Testes qui adversus fidem suam testationis vacillant, audiendi non sunt." — Digest, lib. 2. tit. 4, de Testibus. Domat. b. 5. sect. 5. of Proofs by Witnesses. Huberi Praelect Jur. civ. lib. 22. tit. 5., de Testibus. The Roman law will appear, in the foregoing regulations, to have been too narrow and restrictive on the question of incompetency . Its maxims were much wiser on the subject of the credibility of witnesses : " Testium fides (says the Digest,) diligenter examinanda est. Ideoque in persona eorum exploranda imprimis conditio cujusque: utrum quis decurio an plebeius sit : et an honestae et inculpatae vita?, an vero notatus quis et reprehensi- bilis: an locuples vel egens sit, ut lucri causa quid facile admittat: vel an inimicus ei sit, adversus quem testimonium fert : vel amicus ei sit, pro quo testimonium dat. Nam si careat suspicione testimonium vel propter per* sonam, aqua fertur, quod honesta sit; vel propter cansam quod neque lucri, neque gratise, neque inimicitise causa sit, admittendus est. Ideoque Divus Hadrianus Vivio Varo legato provincial Ciliciae rescripsit, eum qui judicat magis posse scire, quanta fides habenda sit testibus. Verba epistolas naec sunt. Tu magis scire potes, quanta fides habenda sit testibus : qui, et cujus dignitatis, et cujus sestimationis sint: et qui simpliciter visi sint dicere, utrum unum eundemque meditatum sermonem attulerint, an ad ca quae interrogaveras, ex tempore verisimilia responderint." Digest, lib, ?2. tit- 5, art. S. 19 20 Of Incompetency of Witnesses [Ch. 2. may give evidence by signs with the assistance of an inter- preter. (1) Children, ^ witness must not only have a competent share of reason, but also know the nature of an oath. Children, therefore, who are not able to understand its moral obligation, cannot be ex- amined. (2) There seems to be no precise age fixed, at which infants are excluded from being witnesses. At one time, indeed, their age was considered as the criterion of their com- petency ; and it was a general rule, that none could be admit- ted under the age of nine years, very few under ten (3) ; which was in some measure denying them the protection of law against secret acts of violence. (4) A more reasonable rule has been since adopted : and the adm issibilit y of children is now regul ated, not by their age, but by their a pparent sense _and u nderstand ing. In Brazier's case, on an indictment for assaulting an infant of five years of age with intent to ravish her, it was agreed by all the judges, that children of an y age might be ex amined on oath, if capable of distinguishing _be- tween good and evil : but that they cannot be examined, in any case, wit hout oath. (5) This is now the established rule in all cases, criminal as well as civil, and whether the prisoner is tried for a capital offence, or for one of an inferior nature. When the child has appeared not sufficiently to understand the nature and obligation of an oath, judges have often thought it necessary for the purposes of justice, to put off the trial of the prisoner, directing that the child in the mean time should be properly instructed. If a child is too young to be sworn, it follows as a necessary consequence, that any account, which it may have given to others, ought not to be admitted. On an indictment, there- (1) Ruston's case, 1 Leach, Cr. C. (4) Bull. N. P. 295. 455. (5) Brazier's case, 1779, 1 East, (2; Com. Dig. tit. Testmoigne,A. 1. P. C. 443, 444. Bull. N. P. 293. Bull N. P. 293. Gilb. Ev. 130. l Leach, Cr. C. 237. 4 Black. Com. (3) R. v. Travers, 2 Stra. 700. and 214. cases in East. P. C. 442. S. P. 1 Hal. P.C. 302. 2 Hal. P. C. 278. GJh. %~\ from Want of Understanding. 21 fore, for a rape on a child five years old, where the child was not examined, but an account of what she had told her mother, about three weeks after the transaction, was given in evidence by the mother, and the jury convicted the prisoner, principally, as was supposed, on that evidence : the judges, on a case reserved for their opinion, thought the evidence clearly inadmissible, and the prisoner was accordingly par- doned. (1) * When the evidence of children is admitted, says Mr. Justice Blackstone(2), it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact ; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years- of discretion. It seems, however, impossible to lay down any general rule on this subject, applicable to all cases. A prisoner may be legally convicted on such evidence, alone, and unsup- ported; and whether the account of the witness requires to be corroborated in any part, or to what extent, is a question ex- clusively for the jury, to be determined by them on a review of all the circumstances of the case, and especially of the manner in which the child has given his evidence. The evi- dence may be so circumstantial, so plain and clear, and so free from all mixture of partiality and ill will, as to leave no reason- able doubt of the prisoner's guilt, although it stands unsup- ported by other witnesses. (l) R. v. Tucker, 1808, MS. See (2) 4 Com. 214. also R. v. Brazier, supra, p. 'JO. * By the law of Scotland, children cannot be examined on oath under the age of twelve: but their declarations, it seems, may be taken without oath, and left to the consideration of the jury. See Burnett on the Crim. Law of Scotland, p. 591., and Hume's Comment, on the Law of Scotland, vol. ii. 330. £2" Of Incompetency of Witnesses |Xh. 3. CHAP. IIL Of Incompetency from Defect of Religious Principle. '"PHE second ground of incompetency, which has been men- tioned, is defect of religiou s p rinciple. All witnesses, before they are examined, are required to take an oath, by which they appeal to the Supreme Being for the truth of the evidence which they are about to give. This necessarily implies a belief, that by the laws of God truth is enjoined, and falsehood punished. It is not sufficient, that a witness believes himself bound to speak the truth from a regard to character or to the common interests of society, or from fear of punishment. (1) Such motives have indeed their influence, and may come in aid of the religious obligation, but they are of a nature so capricious and infirm, and so liable to be per- verted, as to afford little or no security for the observance of truth. Our law therefore, like that of most other civilised countries, requires a witness to beli eve that there is a God and a future state of reward anu^jjjmishme nt, and that by taking the oath he impre cates the D ivine_vengeance upon him- self, if his evidence shall be false. (2) Atheists Atheists, and such infidels as profess not any religion, that can bind their consciences to speak the truth, are excluded from being witnesses. (3) Lord Coke, indeed, says generally, that an infidel cannot be a witness (4), in which denomination he intended to comprise Jews as well as Heathens (5) : and Mr. Serjeant Hawkins thought it a sufficient objection to the com- petency of a witness, that he believed neither the Old nor the New Testament (6) Lord Hale however was of a different (1) Ruston's case, L Leach, Cr. C. (4) Co. Lit. 6. b. 455. (5) 2 Inst. 506. 3 Inst. 16.5. (2) White's case, I Leach, Cr. C. 1 Atk. 43. Willes, 541. 482. 1 Atk. 19. 48. (6) Hawk, P. C b, 2. c.46 6.148. (5) Bull. N.P. 292. I Atk, 40. 45. 48. Gi!b. Ev. 129. 17 Ch. 3.] from Defect of Religious Principle. %3 opinion, and strongly points out the unreasonableness of ex- cluding indiscriminately all Heathens from giving evidence, as well as the inconsistency of compelling them to swear in a form, which they may possibly not consider binding. " It were a very hard case, he says, if a murder, committed here in presence only of a Turk or a Jew, should be dispunishable, because such an oath should not be taken, which the witness holds binding, and cannot swear otherwise, and possibly might think himself under no obligation, if sworn according to the usual style of the courts of England." (1) All doubts upon this subject, however, are now removed. . In the celebrated case of Omichimd and Barker, (which came before Lord Chancellor Hardwicke, assisted by Lee C. J., Willes C. J., and Parker C. B.) it was solemnly decided, that the depositions of witnesses professing the Gentoo religion, who had been sworn according to the ceremonies of their religion under a com- mission out of Chancery, ought to be admitted in evidence. (2) And it may now be considered as an established rule, that infidels of any other country , who believe in a Gock ^the^ avenger of falseh ood, ough t to be receiv ed_jhere_ as witnesses : but infidels, who believe not that th ere is a G od, or a future state of rewards and punishment's, cannot be admitted in any case (3) With regard to the ceremony or form of administering an Form of oath, that form is obviously the best, which most clearly con- sweaun S veys the meaning of the oath, and most forcibly impresses its obligation. And since this is not an essential part of the oath, but entirely of human institution, and has varied in different times and countries, though the substance of the oath must be the same in all, it is obviously necessary to allow men to swear according to the peculiar ceremony of their religion, that is, in 1 he manner which they consider binding on their conscience. " Possibly," says Lord Hale, " they may not think them- HaleP.C. 279. (5) Willes, 549. 1 Atk. 45. Fn- {2] ' jnichund and Uarkcr, I Atk. china v. Sabine, Stra, 1104. Mor- 2i. 1 Wils. 6-1. S. C. Willes, 5SS. jail's case, Leach, Cr C. 64. S.C. • • 1 24' Of Incompetency of Witnesses [Ch. 3, selves under any obligation, if sworn according to the usual style in the courts of England." (1 ) Jews have therefore been sworn in our courts, from the earliest times, on the Penta- teuch (2) ; and no distinction appears ever to have been taken between their swearing in a civil or in a criminal case. In an old case, where a witness refused to be sworn in the usual form, by laying his right hand on the book and kissing it after- wards, Glin C. J. ruled, that he might be sworn, by having the book laid open before him and holding up his right hand. (3) " In my opinion," said the Chief Justice, " he has taken as strong an oath as any other witness." On the trial of some of the rebels at Carlisle in the year 1745, a witness being sworn in the same manner by holding up his hand, the point was referred to the judges for their opinion, and they all agreed in thinking the witness legally sworn. (4) There is at this day a sect in Scotland, who hold it to be idolatry to kiss the book ; but their own form of swearing is much more so- lemn. (5) Common sense requires that witnesses should be allowed to swear in that particular form, which they consider binding on their conscience. A Quaker affirms the truth of what he states. A Jew swears on the Pentateuch, with his head covered. A Gentoo touches with his hand the foot of a Bramin. Mahometans are sworn on the Koran (6) : and upon the same principle, all persons_ ought to be s worn_according to the ceremo nies of the ir peculiar religion. (7) Whatever be the form, the meaning of the oath is the same. It is an appeal to Heaven, calling upon God to witness what we say, and in- voking his vengeance, if what we say be false. The most correct and proper time for asking a witness, whether the lorm of administering the oath is such as will be binding upon his conscience, is previous to the administration of the oath. But as it may occasionally happen, that the (1) 2H.P.C. 279. 1 Atk.42. 48. (5) Lord Mansfield, Cowp. 390. (2) l Atk. 40. 42. Willes, 543. (6) Morgan's case, 1 Leach, Cr. C Cowp 389. C4., by Gold J. delivering the opinion (3) Dutton v. Colt, 2 Sid. t. of all the judge;. Cowp. 390. Fa- (4) By Gold J. in Mildrone's ease, china v. Sabine, 2 Stra. 1104. 1 Leach' Cr. C. 459. Mee v. Reed, (7) Omichundand Barker, 1 Atk. PeakeN.P.C.22. S.P. 21. Ch. 3. J from Defect of Religious Principle. 25 oath is administered in the usual form, before the attention of the Court or of the counsel is directed to it, that q ues- tion may properly be after wards as ked. And if, in answer to such question, the witness shall declare in the affirmative, namely, that he considers the oath, taken by him, to be bind- ing upon his conscience, it would be irrelevant to ask fur- ther, whether there be any other mode of swearing, that would be more binding than that which has been used. (1) If the witness says, he considers the oath to be binding upon his conscience, he affirms in effect, that in taking that oath he has called his God to witness, that what he shall say will be the truth, and that he has imprecated the Divine ven- geance upon his head, if what he shall afterwards say is false ; and when this is done, it would be perfectly unneces- sary and irrelevant to ask any further questions. (2) The proper mode of examining a witness, for the_pu rpose Examination of trying his compet ency on this ground,_is_ not to question as to °P inioIl& * him as to his particular opinions, (as, whether he believes in Jesus Christ,) but to enquire whether he believes in the ex ist- en ce of a G o d an d a futur e stat e. In a case before Mr. Justice Buller, where a witness, who had been sworn on the Gospels, was asked, whether he believed in the Gospels on which he had been sworn, the question was objected to, and is said to have been overruled by the court. (3) This question appears to have been put after the swearing in chief, though before the examination of the witness. If it had been asked before the witness was sworn, it seems that it would have been regular ; for if he had not believed in the Gospels, how could he have been effectually sworn upon them ? The administration of an oath in such a case would be entirely nugatory ; and evidence would be given without any religious sanction, on the bare assertion of a witness. If the law requires an oath to be ad- (l) Resolution of the judges deli- of the printed evidence. 2 Brod. & vered by the Lord Chief Justice, in Bing. 284. the proceedings on the Bill of Pains (2) By the Lord Chief Justice, on and Penalties, Aug. 24. 1 820. In the the same occasion. case of the witness Gargiulo, p.llG. (s) R. v Taylor, Peake, N. P. C. 11. Of Incompetency of Witnesses [Ch. 3. ministered in a certain form, and a witness believes not in any form of religion, the consequence must necessarily be, that he cannot be sworn. ( 1 ) There appears to be no good reason for not admitting the solemn affirmation of a Quaker in all cases, as well as the oath of a Jew or Gentoo, or any other person, who thinks himself really bound by the mode and form in which he attests. Be- fore the Revolution, Quakers, who refused to take a legal oath, were treated as obstinate offenders, and subject to penalties. (2) But these hardships were removed by the toleration act (3), which first allowed them to make a declaration of their fidelity to the state instead of taking an oath of allegiance, and ex- empted them from all pains and penalties on their making, if required, certain other declarations there prescribed. And by another statute, which passed about six years after (4), their solemn affirmation in courts of justice is admitted to have the same effect as an oath taken in the usual form, excep ting only that on such affirm ation they are not permitted t o give evi- dence in criminal cases. This exception against the testimony of Quakers in criminal prosecutions, which Lord Mansfield has called a strong prejudice in the minds of the great men who introduced the statute (5), has been continued in the seve- ral succeeding acts of the legislature on this subject. (6) The soundness and propriety of such a distinction between criminal and civil cases may well be questioned; unless it can be shown, that evidence requires less sanction in civil cases than in criminal, or that Quakers, in making their solemn affirm- ation, do not consider themselves under a strict religious obli- gation to speak the truth. The affirmation of a Quaker, as Lord Mansfield observed in his excellent judgment in the case of Atcheson against Everett (7), is in substance the same as an (1) A tract has been written on (4) St. 7 & S W. 5. c 34. this subject by Mr. Baron Smith, one (5) Cowp. 590. of the Barons of the Court of Exche- (6) St. s G. 1. c. 6. St 22 G. 2. quer in Ireland, c. 46. s. 36. (2) St. 15 C. 2. c. I. (7) Cowp. 382. (3) St. 1W.&M CIS. s 15. Cli. 3-] from Defect of Religious Principle. 27 oath ; the form only is different ; an affirmation is a most so-' lemn appeal and attestation to God. The legislatu re, by not admitting the affirmation of Quakers i n criminal cases, must be understood to mean causes techni- cally criminal. (1 ) They may be received in penal actions ; as, in an action for debt on the statute against bribery in elec- tions (2); so, on a motion for an attachment for non-perform- ance of an award (3), or on a motion to quash an appointment of overseers (4); these proceedings being of a civil, not a cri- minal nature. But in all cases which a re substantially of a criminal nature, the affirmation of a Quaker is inadmissible ; as, in an appeal for murder (5), though it is in form a civil proceeding ; so on a motion for an information for a misde- meanor (6), or on exhibiting articles of the peace (7), or on a motion for non-performance of an order of Court. (8) Where the application to the court is against a Quaker, his affi rmation ma y be received in his own defence, though the proceeding be of a criminal nature. (9) It has been observed by Lord Mansfield (iuj, that Quakers are at present under some hardship, in not being able to call other Quakers as witnesses in their defence, on a charge of treason or felony ; since, in these cases, witnesses on behalf of the prisoner are to be sworn, before they can give evidence, like witnesses for the crown (11); and no exception is made in the statute, in order to give a prisoner the benefit of a Quaker's testimony. It has been frequently laid down, that persons excommuni- Excommuni- cated are not competent witnesses, because it is supposed, that catl0n * (1) Cowp. 591. (7) R. v. Green, 1 Str. 527. (2) Atchesonv. Everett, Cowp. 582. (8) Skipp v. Harwood, Willes, (3) Taylor v. Scott, cited Cowp. 291 ; and see n. {b) ib., where the 594. Powel v. Ward, cited Andr. cases on this subject are collected. 200. (9) It. v. Shacklington, Andr. (4) K. v. Turner, 2 Str. 1219. 201. n. R. v. Gardner, 2 Burr. 1117. (5) Castile v. Bainbridge, 2 Str. Cowp. 383. 392. 856. Cowp. 392. (10) Cowp. 591. (6) R. v. Wych, 2 Str. 872. R. v. (ll) St. 7 & 8 W. & M. c.5. s. U Gardner, 2 Burr. 1117. 1 Ann, st. 2. a 9, s 3. Of Incompetency from Infamy. [Ch. 4.. those who have been excluded from the church, are not under the influence of any religion. The authority, generally re- ferred to in support of this rule, is a dictum of Lord C. J. Coke, in the case of the Attorney-General v. Griffith ( 1 ), con- cerning the oath of allegiance required of Popish recusants. He is there reported to have said, " By the stat. 3 J. 1. c. 5. every recusant convict is to be excommunicated ; and therefore on my circuit I do not admit of them for witnesses between party and party, they being not competent witnesses." On the authority of this dictum, the rule has been commonly adopted by writers on the subject of evidence; although the reason, upon which it is supposed to have been founded, would in the present day be generally exploded. But now, by a late act of the legislature, this objection has been entirely removed. The stat. 53 G. 3. c. 127. s. 2, 3. enacts, that no sentence of excommunication shall be pronounced by ecclesiastical courts in cases of contempt or disobedience to their order, and that persons excom munic ated shall in no case incur any civil pe- nalty or disability. CHAP. IV. Of Incompetency from Infamy. A THIRD cause of incompetency is infamy of character, proceeding from a c onvictio n of some offence. The conviction of an infamou s crime, follow ed by judg- ment, disqualifies a witness from giving evidence in courts of justice. This is strictly a legal objection, to be supported by strict legal proof; a nd nothing less than a conviction w ill dis- qualify. Here again is another striking instance, to show the distinction between competency and credibility. Witnesses of the most infamous and depraved character, though hot cre- dible, may yet be competent ; and it frequently happens, that a (i) 2 BuLtr. 15 5. Sect. 1.] Of Incompetency from Infamy. 29 witness is suffered to give evidence, because not absolutely dis- qualified by the rules of law, though at the same time he may be far lower, in point of credit and real character, than an- other, who is at once excluded as incompetent. Writers on the subject of evidence, therefore, distinguish between the infamia juris and the infamia facti. Of these tests of infamy, t he latter may destroy the credibility of a witness ; but it is the form er only that can destroy his competenc y. , In treating of this subject, it is proposed to consider, in the first section, what offences incapacitate, and how a witness may be restored to his competency ; in the second, to consider the evidence of accomplices. Sect. I. What Offences incapacitate ; and of the mode of restoring Competency, There are many offences, which our law considers such What crimes blemishes on the moral character, as to incapacitate from dlsc l uall fy- giving evidence in courts of justice. (1) Of this kind are treason, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, attaint of false verdict (2), and other offences of the same description, which involve the charge of falsehood, and affect the public administration of justice. (3) The whole class of offences which come under the denomin- ation of felonyj 4), that is, all offences which occasion a for- feiture of lands or goods, will have the same effect in rendering a witness incompetent ; though it is obvious, that crimes are (1) Gilb. Ev. 126. Bull. N. P. 291. judicio damnati, et non in integrum (2) Co. Lit. 6. b. Hawk. b. 2. c. 46. restituti, adniittendi non sunt ad tes- s. 101.Com.Dig.tit.Testmoigne,A.5. timonii fidem." Dig. lib. 22. tit. 5. 2 H. P. C. 277. Fortesc. Rep. 209. de Testibus. art. 5. s. 5. Jones v. Mason, 2 Stra. 833. Walker (3) See the judgment of Sir W. v. Kearney, 2 Stra. 1148. Our Scott in the case of Ville de Varsovic earliest writers notice this cause of and others, May 13. 1817. disqualification. The rule of the Ro- (4) Co. Lit. 6. b. Com. Di* ubi man law was the same ; " Publico sup. .30 Of Incompetency from Infamy. [Ch. 4. not always punished by the legislature in proportion to their guilt, and there may be more depravity in frauds, which are not punishable, than in some kinds of felony. By the com- mon law, a person convicted of petty larceny was not a com- petent witness, as the offence was felony, no less than grand larceny (1) ; but now by stat. 31 G. 3. c. 35. it is enacted, that no person shall be incompetent by reason of a conviction for petty l arceny. Some other offences also make a witness incompetent after conviction and judgment; as praemunire, barretry (2), or the having bribed a witness to absent himself and not give evi- dence. (3) And a witness is disqualified by attaint of con- spiracy at the suit of the king (4), that is, of a conspiracy to accuse another person of a capital offence (5) ; for then he is to have the villainous judgment, and lose the freedom of the law. It is otherwise, says Lord Hale, where he is attainted of a conspiracy at the suit of the party (6) ; and in a late case in the Admiralty court, which underwent much discussion, Sir W. Scott determined, on great consideration, that a conviction for a conspiracy to commit a fraud would not render an affidavitjof the convict inadmissible. (7) So, it should seem, a person, who has been convicted of winning by fraud or ill practice in certain games, would not be a competent witness, since the stat. 9 Ann. c. 14. s. 5. not only inflicts a penalty, but also enacts, that he shall be deemed infamous ; and one of the legal consequences of infamy is incompetency to give evi- dence in a court of justice. (8) As convicts in such offences cannot be witnesses, they cannot make affidavits to support a charge against others ; but, to exculpate or defend themselves, (1) 2 H. P. C. 277. Pendock v. Hawk. P. C. b. 1. c. 72. s. 9. Com. Mackinder, Willes, 667. ; where the Dig. ubi sup. authorities on this point are col- (5) 2 H. P. C. 277. Hawk. ib. lected. See R. v. Crossley, 2 Leach, Cr. C. (2) R. v. Ford, 2 Salk. 690. Bull. 496. N. P. 292. See Com. Dig. tit. Test- (6) 2 H. P. C. 277. Saville v. moigne, A. 5. Roberts, Carth. 416 Hawk, ubi (3) Adjudged in Clancey's case, by sup. seven judges ; Holt C. J. doubting at (7) In the case of Ville de Varso- first. Fortesc. Rep. 208. vie and others, May 13. 1817. (4) Co. Lit. 6. A. 2 H. P. C. 277. (8) Co. Lit. 6. 4. Fortesc. 208. Sect. 1.] Of 'Incompetency from Infamy* 81 their affidavits have been allowed (1); and upon the same principle the affirmations of Quakers are admitted in their defence on a criminal charge. Outlawry in a personal action is no ground of exception. (2) But judgment of outlawry for treason or felony, appearing on record by the sheriff's return of the exigent, hasjthe^ same effectasjudg ment after a verdict or confes sion (3) ; it follows, therefore, that such an outlaw cannot be a competent wit- ness. (4) Some kinds of punishment were formerly thought to be marks of infamy, and therefore witnesses were frequently re- jected after branding, or after standing in the pillory ; these being the usual punishments for the crimen falsi. (5) But the distincti on is obvious, and now clearly settled, that it is not the_ punishment, but the nature of the offencejjwhich causes i n- famy. (6) The maxim is, ex delicto non ex supplicio e mergit infamia. Thus, it is no objection against the competency of a witness, that he has been in the pillory for a libel on the government, or for a trespass, or a riot. (7) He is not in- competent, unless he has suffered for the crimen falsi, as, for perjury, &c; in which case, it is the crime, not the punish- ment, that incapacitates. And, on the other hand, afterjudg- ment for the latter kind of o ffence, he is not competent, thoug h the p unishme nt may hav e been only a fi ne. (8) Infamy, arising from the sentence of a court of justice, must Proof of judg- ' — *- J ment. (1) Davis and Carter's case, 2 Salk. 2 Wils.18. Willes, 666. S.C. Fortesc. 461. Charlesworth's case, cited by Rep. 209. Priddle's case, 2 Leach, the Court in Walker v Kearney, Cr. C. 496. 2 Str. 1148. (7) Chater v. Hawkins, 3 Lev. 426. (2) Co. Lit. 6. b. Com. Dig. Com. Dig. Testm. A. 5. Gilb. Ev. Tcstm.A. 5. Hawk. P. C. b. 1. c. 72. 127. Fortesc. Rep. 209. In such s- 107. cases, punishment by the pillory is (3) 3 Inst. 212. Hawk. P. C. b. 2. now abolished. Seest. 56 G.-3. c.158. c. 48. s. 22. But this statute does not make any (4) Celier's case, Sir T. Raym. ."69. alteration in the punishment of per- (5) 2 H. P. C. 277. Co. Lit. 6.6. jury, or of subornation of perjury. (6) Gilb. Ev. 127. Bull. N. P. 292. (8) R. v. Ford, 2 Salk. 690. Bull. R. v. Davis, 5 Mod. 75. R. v. Ford, N. P. 292. Crosby's case, 10 St. Tr. S^lk. 690. Pendock v. Mackinder, 42. Appx. 32 Of Incompetency from Infamy. [Ch. 4. be e stablish ed by regular proof of a convicti on and judgment in the due course of law. The rule most commonly laid down is, that a conviction makes the witness incompetent. But it is not to be understood, that conviction alone incapacitates ; the conviction may possibly have been quashed, on a motion in arrest of judgment. (1) Thejudgment, therefo re, as well as the conviction , mu st be proved ; and the general rule is, that the judgment ^n^nJj_bejroyed J)y_jhe record or by a copy of the record. (2) Even an admission by the witness himself, of his being in prison under judgment for grand larceny (3), or of his having been guilty of perjury on another occasion (4), will not make him incompetent, however it may affect his credit. If the objection to the competency of a witness is founded on criminal proceedings instituted in a foreign court, these proceedings must appear on their face to be regular, and be regularly proved. A document, purporting to be an indict- ment and conviction, is imperfect as a record, without a caption ; since the caption shows, by what authority the in- dictment was found. (5) And the indictment must state all circumstances essential to constitute the offence. (5) Reversal of The party, who objects to a witness as attainted, will have judgment. to p rove th e attainder by proceedings in the regular course of law ; and the opposite party may produce other proceedings in answer to the objection. If a conviction and judgment are read on the one side, this may be answered on the other by reading a reversal of the judgment upon a writ of error. If the incapacity arises from outlawry under a charge of treason or felony, it will be removed by proof of the reversal of that outlawry. Or if the objection is, that the witness has been attainted by an act of parliament, which subjects him to all (1) Lee v. Gansel, Cowp. s. Gilb. (4) R. v. Teale, 11 East, 309. Ev 129. Com. Dig. tit. Testm. A. 5. Rands v. Thomas, 5 Maule & Selw. Sutton v. Bishop, 4 Burr. 2285. 246. (2) Com. Dig. lb. 8 East, 79. (5) Cooke v. Maxwell, 2 Starkie, (3) R. v. Castel Careinion, 8 East, N. P. C. 184. Sect. 1.] Of Incompetency from Infamy. 3§ the penalties of -an attainder, unless he surrenders before a certain day, (which is a kind of parliamentary outlawry,) it may be shown, that the witness surrendered conformably with the act. Such an objection and such an answer occurred on the trial of Lord Lovat ( 1 ) ; and in that case the record of a proceeding, commenced on the part of the crown, and de- fended on the part of the witness by a plea of surrender, which the attorney-general confessed to be true, was allowed to be conclusive proof of the fact of his surrender within the limited time. A pe rson convicted of felony being thus disabled from Competency giving evidence, it remains to be considered, by what means ° w res orc ' the disability may be removed. 1. In ancient times, this was effected in many cases by a *• Purgation, proceeding then in use, called purgation (2), by which all per- sons, entitled to the benefit of clergy, were allowed to clear themselves before the ordinary, even after a conviction in the temporal courts. If on this canonical trial the party failed, which seldom happened, he was sentenced to remain in the ordinary's prison ; and, on the other hand, upon his acquittal, he was pronounced innocent, absolved from infamy, and dis- charged from the punishment, incapacity, and discredit incident to the felony. Thus, formerly, allowance of the privilege of clergy, followed by purgation, would restore the competency of a witness. 2. It was afterwards found necessary to abolish this mode of 2. Benefit of trial by purgation; and therefore the stat. 18Eliz. c. 7. s. $. ceTg ^' enacted, that persons, admitted to the benefit of clergy, should no longer be delivered to the ordinary for purgation; but, "jifter the clergy allowed and burning in the hand, should forthwith be enlarged and delivered out of prison." In the construction of this statute, the judges held, that^ as the old mode of purgation was thus taken away, the burning in the (1) 9 St. Tr. 652. 665. case, 5 St. Tr. 172. Hob. 28S. Ke- (2) Treby C. J. in Lord Warwick's lyng. 37. VCL. I. D 34 Of Incompetency from Infamy. (Xli. 4. hand should be considered, as having the same effect in clear- ing away the disabilities of conviction. ( 1 ) " It was never the intent of the statute," said Lord Chief Justice Treby, in Lord Warwick's case, " merely to set at large and leave him a convict-felon ; but when it said ' delivered,' it meant delivered free from all incident and further penalties, as if delivered upon purgation." (2) Hence the burning in the hand is considered in the nature of a statute-pardon. (3) It appears to be established by several cases, that proof of the record, whereby clergy is granted, without furt her proof of the burning in the hand, is not sufficient (4): for the words of the statute are, that he shall be " delivered after clergy allowed and burning in the hand." This, therefore, is neces- sary to be proved, except in those cases where the benefit of clergy may be allowed without branding, as to a clerk in holy orders or peer of parliament, or where the branding is ex- cused by pardon, or commuted for another punishment (as a fine), and then it must be shown, that the witness has suffered such substituted punishment instead of the other. (5) In Lord Warwick's case, above cited, one who had been con- victed of manslaughter and allowed his clergy, but not burnt in the hand, was called as a witness for the prisoner : and, on an objection to his competency, the lords referred it to the judges present, who thought he was not a competent witness, as the statute had made the burning in the hand a condition precedent to the discharge. (6) s. Effect of suffering pu- nishment. 3. In cases where, instead of this burning in the hand, some other punishment has been substituted by act of parliament, (as transportation, by st. 4G. 1. c. 11.(7), or a fine or whipping (1) Heston's case, cited in Fox- ley's case, 5 Rep. 1 1 0. Searle v. Wil- liams, Hob. Rep. 292. Celier's case, Sir T. Raym. 569. Lord Castle- main's case, ib. 380. Kelyng. 37. (2) Ld. Warwick's case, 5 St. Tr. 172. (5) Hob. 292. Bull. N. P. 292. (4) Searle v. Williams, Hob. 288. Armstrong and Lisle, Kel. 93. Ld. Warwick's case, 5 St. T. R. 166. (5) Burridge's case, 3 P. Wms. 485. 490. (6) See infra p. 55. on substitution of punishment for burning in the hand. (7) This statute enacts, that on the conviction of any person for «rand or Sect. 1.] Of Incompetency from Infamy, 35 hy st. 19 G. 3. c. 74. s. 3.) felons, within the benefit of clergy j are made competent after suffering such substituted punish- ment : these statutes exp ressly p roviding, that_it sh all operate as a pardon, and completel y remov e al l incap acities. And it "appears from the recital of st. 31 G. 3. c. 35. the statute be- fore mentioned, which removes the incompetency arising from a conviction for petty larceny (1), that in every case of grand larceny, convicts are restored to their competency by suffering the punishment awarded by the* judgment ; that statute recit- ing that persons convicted of grand larceny are by their punish- ment restored to their credit as witnesses. Peers of parlia- ment (2), and all clergymen are entitled to benefit of clergy, and are therefore competent witnesses, without burning in the hand, and consequently wi thout any punishment in its stead. As the privilege of clergy, at common law, extended only to capital felonies, and not to petty larcenies or misdemeanors, persons convicted of petty larceny could not be discharged under stat. 18 Eliz. c. 7. s. 3., which relates only to such as were allowed their clergy ; nor were they included in stat. 19 G. 3. c. 74. s. 3., which gives a discretionary power to substitute a moderate fine or whipping for burning in the hand (3) ; so that convicts in petty larceny, though they had suffered the sentence of the law, were still incompetent to give evidence, while in many cases convicts in grand larceny were admissible. This inconsistency was removed by a sta- petit larceny, where the convict is en- ation, the Court may allow him the titled to benefit of clergy, and liable benefit of a pardon under the great only to the penalties of burning in seal. And, by the second clause of the hand or whipping, (except per- the same act, where any such offen- sons convicted for receiving or buying ders shall be transported, and shall stolen goods, knowing them to be have served their respective terms, stolen,) the Court before whom the according to the order of any such person is convicted, instead of order- Court, such services shall to all in- ing the offender to be burnt in the tents and purposes have the effect of hand or whipped, may direct, that he a pardon, as for the crime for which shall be transported for the space of they were so transported, seven years; and on the conviction (l) This act is said to have been of an offender for a crime, for which proposed by Lord Kenyon. Sea he would be excluded from the bene- Evans's Coll. Stat. vol. 5. part 4. 360, fit of clergy, but to whom mercy is (a) St. I Ed. 6. c. 12. s. 4. extended on condition of transport- (.") St. 4 & S H.7. c 15. j) 8 56 Of Incompetency jrom Infamy. [Ch. 4. tute of the present reign, which has been already men- tioned. ( 1 ) 4. Pardon. 4. The most effectual mode of restoring the competency of a witness is, by a pardon, either under the great seal, or by act of parliament. Some indeed have thought, that a pardon can only remove the punishment, not the blemish of character. (2) But it is now settled, that a pardon of treason or fel ony, even after conviction or attainder, not only takes off every part of the punishment, but also clears the party from the l egal di s- abilities of infamy and all other consequences of his crime. (3)* A pardon, whether under the great seal, or by act of parlia- ment, is said to make the witness a new creature, and gives him a new capacity : the crime, indeed, may still be objected against him, as affecting his credit, but cannot be urged against his competency as a witness. And a pardon, by which the king remits the punishment of burning in the hand, is admit- ted to have the same operation. (4) It is indeed highly expe- dient, that a pardon should be allowed to have this effect, and that a discretionary power should be vested in the crown to remove such legal incapacities : otherwise, a person, once con- victed of felony, would be stigmatised for life, and treated as infamous in courts of law, though in the opinion of mankind his character for truth and honesty may have been completely redeemed. As in the greater offences, so in those below felony, (as per- jury at com mon law, Scc^,) a pardon will restore competency, (1) St. 31 G. 5. c. 35. and 56 G.3. Holt, 685. 4 St. Tr.682. Crosby's c. 29. Irish stat. case, Lord Raym. 59. Lord Castle- (2) Lord Coke, in Brown v. Cra- main's case, T. Ray. 379. 2 H. P. C shaw, 2Bulstr. 154. Doclderidge J. in 278. Hawk. P. C. b. 2. c. 37. s. 48. Harris v. Whyte, Palm. 412. Latch. Com. Dig. Testm.A.5. Reilly's case, 81.; and other dicta cited in Hargrave Leach Cr. C. 510. Jurid. Arg. 2 vol. p. 263. (4) Rookwood's case, Rep. Temp. (3)Cuddington v.Wilkins,Hob. 67. Holt, 685. Warwick's case, 5 St. Tr. 82. Rookwood's case, Rep. temp. 166. Hawk. P. C. b. 2. c. 57. s. 49. * The King's prerogative has the same effect in Scotland, in restoring the competency of a convict. See Burnet's History of the Criminal Law of Scotland, p. 405., and the report there of the case of Bell and Mortimer in 1800, in which the rule was fully established. Sect. 1.] Of the Evidence of Accomplices. 37 where the disability is a consequence of the judgment. (1) But where the disability is declared by act of parliament to bTpart of the punishment, as in the case of a conviction for perjury or subornation of perjury on the stat. 5 Eliz. c. 9. ? the king's pardon will not make_the witness competent. (1) In this case the statute expressly provides, that he shall never be admitted to give evidence in courts of justice, until_thejudg- ment be reversed. If the pardon is conditional, the performance of the condi- tion ought to be shown (2) ; for on that depends all its efficacy. Thus, where the pardon is on condition of transportation for a number of years, the witness is not competent before the ex- piration of the term or other lawful determination. (3) To prove that a witness after conviction^ has been restored to his competency by pardon, the general rule is, that it will be necessary to produce the pardon itself under the great seal. A warrant under the privy seal or sign manual, for the pardon of burning in the hand, is not sufficient for this purpose, as it is not of itself a complete irrevocable pardon, the warrant being countermandable. (4-) Sect. II. Of the Admissibility of Accomplices. It has been before mentioned, that a witness is not incom- petent from infamy of character, unless a conviction and judg- ment are proved, though he may confess himself guilty of an infamous crime. Nor is it a sufficient objection to his compe- (1) 2 H. P. C. 278. R. v. Greepe, (2) Hawk. b. 2. c. 37. s. 45. 2 Salk. 514. ; I Ld. Raym. 256. S. C. (3) Hawk. b. 2. c. 37. s. 45. Bur- R. v. Ford, 2 Salk. 690. Crosby's ridge's case, 3 P. Wms. 485. case, 2 Salk. 689. Bull. N. P. 292. (4) Lord Warwick's case, 5 St. Tr. Hawk. b. 2. c- 46. s. 112. R.v. War- 171. Gully's case, Leach Cr. C. 1 1 6. den of the Fleet, Rep. temp. Holt, See R. v. Miller, 2 Black. Rep. 7*97.j 135. Anonym, case, 5 Salk. 155. 35 S 38 Of the Evidence of Accomplices. [Ch. 4, tency, that he has been an accomplice in guilt with the p risoner at the bar. The evidence of accomplices has been_ at all times admitted ( 1 ), from a principle of public policy and from necessity, as it is scarcely possible to detect conspiracies and many of the worst crimes without their information. In the case of Charnock (2), who was tried for high treason in the time of William III., Lord Holt said, in his address to the jury, " Conspiracies are deeds of darkness as well as of wickedness, the discovery whereof can properly come only from the conspirators themselves ; and the evidence of accom- plices has always been allowed good proof in all ages ; and they are most proper witnesses, for otherwise it is hardly pos- sible, if not altogether impossible, to have a full proof of such secret contrivances ;" and he adds, " such discoveries are to be encouraged in all governments, without which there can be no safety." But though accomplices are received as witnesses, their testimony ought to be received by a jury with a sober degree of jealousy and caution ; for, on their own confession, they stand contaminated with guilt, and in the hope of lessen- ing their own infamy will often be tempted to throw as much guilt as possible upon the prisoner. They may be also in some cases entitled to rewards on the prisoner's conviction, and in all cases expect to earn a pardon ; and as fear is usually their motive in giving evidence, the same feeling may tempt them to exaggerate their statement, for the purpose of destroying their former associate and securing themselves against his vengeance. The practice of admitting accomplices to give evidence against their associates_has been adopted from analogy to the ancient doctrine of approvement ; a part of the old law, which, though now grown obsolete, may properly be mentioned here, (l) 1 H. P. C. 303. Hawk. b. 2. 4S8. And see oil this subject the c. 46. s. 94. Gilb. Ev. 123. Char- report of the proceedings under a nock's case, 4 St. Tr. 594. Rook- special commission at York, in 1S13, wood's case, 4 St. Tr. 665. Atwood's pp. 17. 150. case, cited by Grose, J. 7 T. R. 609. (2) 4 St. Tr. 12 Howell, 1454., re- Westbeer's case, Leach Cr. C. 14. ferred to by Lord Ellenborough in pcspard's case, 28 Howell's St. Tr. Despard's case, 28 Howell, 48S. Sect. 2.] Qf the Evidence of Accomplices. 39 from its affinity to the more improved modern usage substituted in its place. (1) Approvement is, when a prisoner arraigned on a capital charge confesses the fact befo re plea pleaded, and accuses his ac complices of the_ saine offence. He must also discover upon oath, not only the particular crime charged upon him, but all treasons and felonies, of which he can give any information. It i s th en in the discret ion of the Court eith er to refuse or admit him to be an approver : and if on his confession it appears that he was a principal and tempted the others, he ought not to be received. But if he does not dis- cover the whole truth, or, on thejtrial^of the appeal, the party accused should be acquitted, judgment of death passes against him upon his own confession of the indictment. This practice of allowing approvements, which was at alt times in the discretion of the Court, is now grown into disuse, and entirely discontinued^ more mischief having arisen from false accusations under pretence of approving, than benefit to the public by the discovery and conviction of real offenders. (2) Whatever good was to be expected from this old method, is now more effectually provided for and secured by one of the following methods. First, there are several acts of parliament which enact, in cases of robbery (3), coining (4), burglary (5), housebreaking (5), horse-stealing (5), privately stealing to the value of five shillings from shops, warehouses, stables, and Coach-houses (5), or uttering counterfeit money (6), that^ if any such offender, beings ou^of prison, shall discover two or more persons, who have committed the like off ences, he sh all be en- titled to pardon fo r su ch crime, on thei r convic tion. Another method is by special proclamations in the Gazette or otherwise, promising pardon on certain conditions. But the practice most generally adopted is that of admit- ting accomplices to give evidence for the crown, under an im- (H Rudd's case, Cowp. . 53o . (.5) St. 10 W. 3. c. 23. s. 5. St, (2) 2 Hale P. C. 227. ch.29. 5 Ann. c. 31. s. 4. (3) St. 4 W. & M. c. 8. 6. 7 (6) St. 15 Geo. 2. C. 28. 5. 4. (4) St. 6 W. 5. C. 17. S. 12. p I 40 Of the Evidence of Accomplices. [Ch. 4. plied promise of pardon, on condition of their making a full and fair confession of the whole truth. (1) On a strict and ample performance of this condition, to th e satisfaction of the judge presiding at the trial, they have an equitable title to a recommendation for the king's mercy. (2) They cannot plead this in bar to an indictment against them, nor can they avail themselves of it as a defence on their trial, though it may be made the ground of a motion for putting off the trial, in order to give the prisoner time to make an application in another quarter. (3) And if an accomplice, after being received as a witness against his companions, breaks the condition on which he is admitted, and refuses to give ful] and fair information, he will be sent to trial to answer for his share of guilt in the transaction. It is not a matter of course, to admit an offender as witness on the trial of his accomplices, n ot even after h e has been so allowed by the committing^ magistrate ; but a motion for this purpose must be made by the counsel for the prosecu- tion, and the Court, under all the circumstances of the case, will either admit or disallow such evidence, whichever may most effectually answer the purposes of justice. The general rul e then js, thata pe rson who co nfesses him- self^mlty^f a^rimei i^a^qm^etent jvitness agai nst his part- ners in guilt. Thus, if two or more persons are accomplices, one, who is not indicted, may be a witness against the others, though he has had the promise of a pardon or of a reward on con- ".if ion of giving evidence against the prisoner (4): so he may, i en after a conviction, if judgment has not passed; for it is not the conviction, but the judgment, that creates the dis- ability. If several persons are indicted together, and one of them pleads guilty and is fined, after payment of the fine he (1) Rudd's case, Cowp. 359. fore, he is not bound to answer on his (2) This equitable claim to pardon cross-examination. This point has does not protect an accomplice from been lately determined in West's case, prosecutions for other offences, in O. B. sess. after Easter term, 1821. which he was not concerned with (3) Cowp. 339. the prisoner. Duce's case, 1801. (4) Tonge's case, Kel. 17. 1 H Lee's case, 1818. MS. cases, stated P. C. 303. S. C. Layer's case, 1 St. in 1vol. Chetwynd'sBurn. Just. 167. Tr. 259. Hawk. P. C. b. 2. c. 46. With respect to such offences, there- s. 135. 15 Sect. 2.] Of the Evidence of Accomplices. 41 may be a witness against the others. So, on the trial of one of several per sons, w ho are indicted separately, the others, who have not been convicted, may be witnesses in his behalf. (1) It was formerly thought, from analogy to the ancient doctrine of approvement, that an accomplice, separately indicted for the same offence, could not give evidence against the others, unless- he had first pleaded guilty to his indictment (2); but the rule is now settled as above stated. On the trial of an accessary, for a misdemeanor in receiving stolen goods, under stat. 22 G. 3. c. 58., the principal felon is a competent witness ; the statute enacting, that the accessary may be proceeded against, although the principal felon has not been convicted, and whether he be or be not amenable to jus- tice. (3) So, the principal felon may be a witness, in a prose- cution on stat. 4G. 1. c. 11., for taking a reward to help to stolen goods. (4) The evidence of accomplices is also admitted on the trial of smaller offences. In an information under stat. 2 G. 2. c. 24., for bribery at an election, a person, who has received a bribe, may be a witness against the defendant, though in case of a conviction he would be indemnified from the penalties of the act. (5) In an action of trespass, a co-trespasser, who is not sued, may be a witness against the defendant, though left out of the declaration for that purpose, and although satisfaction from one is a discharge for all the rest. (6) A person, who has set his name as subscribing witness to a deed or will, is admissible to impeach the execution of the instrument (7), although his evidence is to be received with all the jealousy necessarily at- (1) Case of Bilmore and others, (4) Wild's case, 2 East P. C. 782. 2 H. P. C. 279. 1 H. P. C. 305. (5) Bush v. Railing, Say. 289. Gunston and Downes, 2 Roll. Ab. cited by Lord Mansfield, Cowp. 199. 685. pi. 3. Hawk. b. 2. c. 46. s. 99. Snead v. Robinson, Willes, 423. and Gilb. Ev. 118. Bath v. Montague, n. (c) ib. 425. cited Fortesc. Rep. 247. (6) Bull. N. P. 286. Luttrel v. (2) Sir P. Cresby's case, 1 H. PiC. Reynel, 1 Mod. 283. Chapman v. 303. Graves and others, 2 Campb. N. P. C. (3) Haslam's case, I Leach Cr. C. 533. n. 467. Price's case, ib. 468. n. (l.) (7) Lowe v. Joliffe, 1 Blac. Rep Patrara's case, 2 East P. C. 782. 365. 7 T. R. 604. 611. 6 East, 195. 42 Of the Evidence of Accomplices. [Ch. 4. taching to a witness, who upon his oath asserts to be false, what he has by his solemn act attested as true. (1) Confirmatory Since accomplices are competent witnesses, it necessarily evidence. follows, that, if their evidence is believed by a jury, a prisoner may be legally convicted upon it, though it be unconfirmed by any other evidence as to his identity. (2) But their testimony alone is seldom of sufficient weight with a jury to induce them to give a verdict against the prisoner ; the temptation to com- mit perjury being so great, where the witness by accusing an- other may escape himself. (3) The practice, therefore, is, to advise the jury to regard the evid ence of an acc om plice, o nly so far as he may be confirmed, in some material part of his narrati ve, by unimpeachab le testimony. It is not necessary that he should be confirmed in every circumstance which he details in evidence : for there would be no occasion to use him at all as a witness, if his narrative could be completely proved by other evidence free from all suspicion. Nor need it appear from the confirmatory evidence, that he speaks truth with re- spect to all the prisoners, or with respect to the share which each had in the transaction. But if the jury are satisfied, that he speaks truth in some material parts of his testimony, in which they see unimpeachable evidence brought to confirm him, that is a ground for them to believe, that he also speaks truly in other parts, and with regard to other prisoners, as to whom there may be no confirmation. (4) The confirmation, here intended, is not a confirmation merely of those parts of the narrative which implicate the accomplice alone, and which maybe true without involving the prisoners in any share of the transaction; but such a corroboration by unimpeached evi- dence, as may satisfy the jury, that those persons whom he charges with a participation of the crime, were in truth, as he (1) 1 Ves. & Beam. 208. (4) See the Report of the Trials at (2) Atwood's case Leach 2 Cr. C. York, Jan. 1813, on special commis- 521. Durham's case, ib. 538. By sion, p. 3. IT. 50. 150. 165. 201. And Ld. Ellenborough C.J. in R. v. Jones, see Despard's case, 28 Howell St. Tr. 2 Campb. 133. S. P. 7 T. R. 609. 488. (3) By Ld. Mansfield C. J., Cowp. 336. Sect. 2.] Of the Evidence of Accomplices. 43 represents, his confederates and associates in guilt. The prin- ciple ? upo n_ wn ^ cn courts ^mdjuries are disposed to give credit to an accomplice, however base his conduct, when he is con- firmed by clear and unimpeachable evidence, is well warranted on this consideration, that witnesses^ who agree in the main facts of a case, without concert and without contrivance, acquire a credit, entirely independent of character, from the mere agreement and consistency of their narrative. There is another class of persons, which cannot properly be Associates -7— r — r r . informers, considered as coming within the description, or as partaking of the criminal contamination, of accomplices ; per sons, enter-* ing int o commun ication with conspirators, with an orig inal purpose o f discovering their secret designs, and disclosing them for the bene fit of the public. ( 1 ) The existence of such original purpose on their part, is best evinced by a conduct, which pre- cludes them from ever wavering in or swerving from the dis- charge of their duty, if they might otherwise be disposed so to do ; as when the witness binds himself to his duty by an early communication, and receives directions, as to the steps which he is afterwards to pursue, on entering into the apparent pro- secution of the purposes of the conspiracy. With this view and object, such a witness is not an accomplice, although per- haps a great degree of objection or disfavour may attach to him on other grounds, for certainly (however necessary it may be in some cases) no person of very delicate feelings would choose to go on from day to day, apparently forwarding the purposes of a conspiracy, in order that he might afterwards disclose it, and bring the parties concerned in it to justice j but still, whatever may be the merit or demerit of this species of conduct on other grounds, such a witness is not, strictly speaking, an accomplice. (2) The cases which have been mentioned, respecting the evi- Palt y inva " c !■ i i !..,.,.„ lidating an dence ot accomplices, and on the admissibility of persons to instrument. prove the forgery of an instrument, which they have signed as (l) Part of Lord Ellenborough's (2) Part of the same address, 28 address to the jury in Despard's case, Howell's St. Tr. 489. 2B Howell's St. Tr. 489. 44 Of the Evidence of Accomplices. [Ch. 4~ subscribing witnesses, clearly show, that a man's j*uilt in the transaction disclosed is not a sufficient reason for rejec ting his testimony, however it may affect his credibility. In the case of Walton v. Shelley (1), which was an action upon a bond given by the defendant, in consideration of delivering up certain promissory notes, the Court of King's Bench held, that the indorser of one of the notes ought not to be allowed to prove the consideration of the note usurious, on a supposed principle of public policy, that no party who has signed a paper or deed, and by his signature given it credit, shall ever be permitted to give testimony to invalidate that instrument. This appears to have been the first case in support of such a rule, and its au- thority may now be questioned. In the later case of Jordaine v. Lashbrooke(2), this subject was very fully discussed; and the Court there determined, that in an action on a bill of ex- change against the acceptor, the payee, who was also indorser, was a competent witness for the defendant, to prove, that the bill, which was unstamped, and purported to be drawn at Ham- burgh, was in fact drawn in London, and therefore void for the want of a stamp. " The constant practice of examining accom- plices, (said Mr. Justice Lawrence in delivering his opinion,) and the case of a witness to a forged will who has obtained pro- bate, show, that the mere circumstance of a man's representing himself as having done things inconsistent witn common honesty is not sufficient to reject his testimony, however it may weaken and impeach it. (3) Nor is there any distinction with respect to negotiable securities, when the point to be considered is the competency of the witness : for supposing what he has done in putting such instruments into circulation to be ever so great a fraud and ever so mischievous, he still is a witness unconvicted of any crime, and without interest, and not more devoid of principle than many who have been mentioned as constantly (1) 1 T. R. 296. " Testes qui ad- tra. See Jones v. Brooke, 4 Taunt, versus fidem suam testationis vacil- 464. 1 Ves. & Beam. 208. ant, audiendi non sunt" — was the (3) See also R. v. Teale, supra maxim of the civil law. Domat, p. 32. (4). Lowe v. Jolliffe, supra books, tit. 6. sect. 3. art. 12. p. 41. (7). Rands v. Thomas, 5 (2) 7 T. R. 601. A&hhurst J. con- Maule& Selw. 2 *6. Sect. 1.] Of Incompetency of Witness from Interest. 45 admitted. Whether a defendant shall be allowed to set up such a defence, is quite another consideration, than whether the witness be competent. It certainly is of consequence to prevent men from hanging out false colours : but this must be applied to the parties in the cause, or you may prejudice men who have not hung out such colours." CHAP. V. Of the Incompetency of Witnesses from Interest. THHE fourth ground of incompetency is interest. It is a general rule, that all witnesses, interested in theevent of a cause, are to be excluded from giving evidence in favour of t hat party, to whic h their interest inclines them. They are excluded from a supposed want of integrity ; and not, as some have supposed, that they may be saved from the temptation to commit perjury. If that were the true principle, there would be some inconsistency in excluding witnesses, who have an in- terest even to the smallest amount, at the same time that a son is allowed to give evidence for the father, and a witness is not privileged from answering against his interest. The tempt- ation to perjury may be much stronger in these two last cases than in the former ; yet in one of these the witness will be per- mitted, in the other compelled, to give evidence. " Where a man," says Chief Baron Gilbert, " who is interested in the matter in question, comes to prove it, it is rather a ground for distrust than any just cause of belief; for men are generally so shortsighted, as to look at their own private benefit which is near to them, rather than to the good of the world, that is more remote; therefore, from the nature of human passions and actions, there is more reason to distrust such a biassed testimony, than to believe it." In treating of the incompetency of interested witnesses, it is proposed to consider the subject in the following order • — 4<6 Of the Nature of the Interest [Ch. 5. First, with respect to the nature of the interest, which will disqualify ; Secondly, of the rule on the subject of interest, considered with reference to the parties in the suit ; Thirdly, of the same rule considered with reference to the husband or wife of the party ; Fourthly, of the effect of admissions by a party to the suit, or by his agent, against the party's interest ; Fifthly, of the admissibility of the confession of a prisoner against himself; Sixthly, of the competency of the party injured, as witness in criminal prosecutions ; Seventhly, of certain exceptions to the general rule on the subject of interest ; and Lastly, of the means by which the competency of an in- terested witness may be restored. Sect. I. Of the Nature of the Interest which disqualifies a Witness. It is scarcely possible to reconcile the earlier cases on this subject with those of a more recent date. The old cases re- specting the incompetency of witnesses were generally decided on very narrow grounds. Evidence, which ought to have been admitted, although received with caution, was at once excluded without being heard ; as if juries were not to be trusted with all the means of deciding right, because it was possible their decision might be wrong. " The old cases on 16 Sect. 1.] which disqualifies. \q the competency of witnesses," said Lord Mansfield ( 1 ), " have gone upon very subtle grounds. But of late years the courts have endeavoured, as far as possible, consistently with those authorities, to let the objection go to the credit rather_tlian to thlTcompetency of a witness." At one time it was generally held, that, if a witness had an interest in the question put to him, he was incompetent. Thus it has been laid down in some of the earlier cases, as a general rule, that one com- moner cannot be a witness for another commoner ; and that in an action on a policy of insurance one underwriter cannot be a witness for another. But a distinction has since been made between an interest in the question put to a witness, and an interest [in the event of the suit (2) ; and the general rule now established is, that a witn ess will not be disqualified on the ground of interest, unless he is inte rested i n the event of the suit. The question then resolves itself into this, whether the wit- ness, proposed to be examined, has an interest in the event of the suit. In considering this subject, the simplest method will be, to ascertain, in the first place, what i s not such an interest in the event, as will disqualify a witness from giving evidence ; and then to enquire, what is such an interest, as will dis- qualify him. I. First, what is not such an interest as will disqualify. It is not an objection to the competency of a witness, that he may have wishes or a strong bias on the subject-matter of the suit, or jliat he may expect some benefit from the result of the trial. Such circumstances may influence his mind, and affect his credibility; they are therefore always open to observation, and ought to be carefully weighed by the jury, who are to determine what dependence they can (n Walton v. Shelley, l T. R. 500. (2) l T. R. 302. 3 T. R. 56. cited by Ld. Kenyon in Bent v. Ba- 7 T. R. 603. ker, 3 T. R. 32. 48 Of the Nature of the Interest [Ch. 5. have on his testimony ; but they will not render him incom- petent. A witness, who stands in the same situation as the party, *or whom he is called to give evidence, is under a strong bias, and may have strong wishes upon the subject : but is not on that account disqualified. Thus if there are two actions brought against two persons for the same assault, in the action against one the other may be a witness ( 1 ) ; or if several per- sons are separately indicted for perjury in swearing to the same fact, either of them before conviction may be a witness on the trial of the others. (2) So, in Rudd's case, a woman, whose husband had been before convicted, was admitted to give evi- dence against the prisoner, though she expected, that, in case of his conviction, her husband would receive a pardon. (3.) Upon the same principle, in the case of Bent v. Baker, which was an action against an underwriter on a policy of insurance, the Court held, after much argument, that another underwriter was a competent witness. (4) This case came before the Court of King's Bench, by writ of error from the Court of Commom Pleas; a writ of error was afterwards brought to reverse the judgment of that court (5), but was at length abandoned. It has always been considered a case of great authority, and deserves to be particularly noticed, as it is one of the leading cases, which have established the rule of evidence on this subject. The principal question in that case was, whether a person, who had been employed as broker by the plaintiff in procuring the policy to be subscribed by the defendant, and had afterwards himself subscribed the policy as assurer, was a competent witness for the defendant. The court adjudged that he was competent ; Lord Kenyon C. J., Mr. Justice Buller, and Mr. Justice Grose held, that (1) By Buller J. 1 T. R. 501. (3) 1 Leach Cr.C. 151. (2) Bath v. Montague, cit. Fortesc. (4) 3 T. R. 27. Bull. N. P. 283. Rep. 247. Gunstone v. Downes, S. P- 2 Roll. Abr. 685. art. 3. ; S. C. cited (5) 7 T. R. 604. * H. P. C. 280. and in R. v. Gray (or Bray), 2 Sel. N. P. 1046. Sect. 1/j -which disqualifies. 49 he ought not to have been rejected, on the broad and general ground, because he was not interested in the event ; Mr. Justice Ashhurst, on a narrower ground, because the witness stood in the particular situation of broker; and, having made himself a party to the policy, he ought not to be allowed by his own act to deprive either party of the benefit of his testimony. The other judges also concurred in this opinion; but Lord Kenyon C. J. declared, that the reason before-men- tioned was the principal ground of his judgment. He said, " The objection is, that the witness was underwriter on the the same policy. I must acknowledge, that there have been various opinions upon this subject, and that it is impossible to reconcile all the cases. Then we have only to consider, what are the principles and good sense to be extracted from them all. I think the principle is this ; if the proceeding in the cause cannot be used for him, he is a competent witness, although he may entertain wishes upon the subject: for that only goes t o his credit, and not to his competency." The vendor of an estate, who has sold the inheritance with- Examples of out any covenant for good title or warranty, is competent to witnesses, prove the title of the vendee. (1) So, in an action of trover for a horse, a person who accepted the horse as a security for the payment of a sum of money, and afterwards on default sold it to the defendant, is competent to prove these facts ; (2) the verdict in this case can neither be used by the witness, nor against him. In an action on a contract, a dormant partner, not being one of the contracting parties, and who has had no privity of communication with them in the contract, is compe- tent to prove the contract. (3) In an action of covenant for the mismanagement of a farm, the sublessee of the defendant is competent to prove its proper cultivation. (4) In an action on a policy of insurance, when the only question is concerning (1) Busby v. Greenslate, 1 Str. 44J. (4) Wishaw v. Barnes, l Campb. (2) Nix v. Cutting, 4 Taunt. 18. 341. (3) Mawman v. Gillett, 2 Taunt. 325. n. vol. r. a. $0 Of the Nature of the Interest [Ch.5. the original destination of the ship, the captain is competent to give evidence respecting that fact, though a part-owner of the ship, and, as such, liable to the owners of the goods, in case the ship had unnecessarily deviated from the voyage ; but, if the question turn on a deviation, he could not be examined. ( 1 ) In an action against a defendant for falsely representing the circumstances of a third person, who was insolvent, that per- son is competent to prove himself insolvent. (2) In these cases, the witness neither gains nor loses directly by the event of the verdict : nor would the verdict be evidence either for or against him. A witness is not incompetent^ the^ground, that the v erdict may afterwards come to the hearing of a jury, in an action brought by the witness himself, and_so have an influence on their judgment, though not in evidence before them . Lord Holt, indeed, in the case of the King v. Whiting (3), on an indictment for a cheat, in obtaining a person's subscription to a note of 1001. instead of 5l., rejected the evidence of the maker of the note ; Lord Holt said, the verdict would be cer- tainly heard of, in an action on the note, to influence the jury, This decision was followed by Lord Hardwicke C. J. in the -case of the King v. Nunez (4): but afterwards, in the case of the King v. Bray (5), Lord Hardwicke reviewed his own opinion and that of Lord Holt, and decided that the objection went only to the credit, and not to the competency of the witness ; and with respect to the possibility that the jury might hear of the verdict, he said, that, sitting as judge, he could only hear of it judicially. Upon the same principle, in the case of the King v. Bos- ton (6), where A. having brought an action against B., (who filed a bill in equity for an injunction, and, after answer put in by A., denying the allegations in the bill, the injunction was (1) De Symonds v. De La Cour, (4) 2 Stra. 1043. 2 New Rep' 374. (5) Rep. temp. Hard. 358. (2) Smith v. Harris, 2 Starkie, 47. (o) 4 East, 572. (3) 1 Salk. 283. Sect. 1.] which disqualifies. . 51 dissolved,) A. was afterwards indicted for perjury, alleged to have been committed in his answer, and the indictment came on to be tried immediately before the action ; the Court of King's Bench determined, that B. was a competent witness in the prosecution, and had been properly admitted to give evi- dence on the trial ; as he could not avail himself of the con- viction of A. in any civil proceedings between them either in law or equity. So a person, who has borrowed money on an usurious transaction, is a competent witness for the plaintiff in an action for penalties against the lender (1); and whether he has, or has not, repaid the money lent, does not appear to make any essential difference, at letist so far as his competency is affected (*); for in neither case does he gain any thing immediately by the event of the suit, nor can he give the judgment in evidence in an action against him for the money lent. A me re_contingent benefit, then, which may result to the witness from the event of the suit, (as, that it may possibly be more easy for him to establish his own claim, in case the party calling him should succeed,) can only affect his credit and not his competency, unless the verdict would be evidence for him in an action brought by or against himself. A witness, who has acted under a bare authority, is not to Liability to informatic or action. be excluded from giving his testimony, on the ground that he " (l) Abrahams q. t. v. Bunn, 4 Burr. Sec Masters v. Drayton, 2 T. R. 496. -2251. Smith v. Prager. 7 T. It. 60. * In the case of Smith q. t. v. Prager, the witness said, he had repaid the principal sum and interest by drafts" which had been duly honoured, and that he was still indebted to the defendant on a running account for this and other loans. It may be observed, that, at the time of the trial, the witness was an uncertificated bankrupt : but this was not considered as furnishing any objection. (See Masters q. t. v. Drayton, 2 T. R. 496. See also Ridley v. Taylor, 13 East, 17.5.; In the first case above cited, of Abrahams q. t. v. Bunn, the witness proved, that he had redeemed the pledges and repaid the principal sum, and he was competent to prove that fact. Lord Mans- field is. reported to have said, " that if the defendant had produced a se- curity, or proved the pledge to be remaining in his custody, it would have been a different consideration, whether the witness, who was the borrower of the money, could be examined to contradict this." However it may be inferred from the case of Jordaine v. Lashbrooke, which has been before mentioned, that this consideration would not now affect the competency of the witness. E 2 5 C 2 Of the Nature of the Interest [Cli. may be liable to an information or an action, in case the fact, which he comes to prove, should be found otherwise. (1) Thus persons, who have been themselves in office, are often called to show what the usage is, and what they did when in office; yet if their acts be illegal, they are liable to a quo warranto. (2) If persoris were not allowed to be competent witnesses, in matters belonging to corporations, because they may possibly be punished by information, much good evidence would be shut out. Wherever any unlawful act is done in a corporate assembly, the whole assembly are liable to an inform- ation ; yet the persons, who were present at such assemblies, are always allowed to be good witnesses ; and if they were not allowed, there would be no evidence at all as to such facts. (3) In an action against an administrator, one of the bond-secu- rities for the defendant's due administration of the intestate's effects is a competent witness, on behalf of the defendant, to prove a tender (4); the Court said, the bare possibility of an action being brought against a witness is no objection to his competency, and that a creditor of the defendant would also have been competent, which they considered a stronger case ; and Mr. Justice Buller said, " In order to show a witness interested, it is necessary to prove, that he must derive a cer- tain benefit from the determination of the cause one way or the other. Then in this case, supposing there were no assets, though the defendant would be answerable for the costs, he would not be liable on his bond to the Ecclesiastical Court. He is only bound to distribute the intestate's effects, and it does not appear in this case how they have been applied." A witness may prove a codicil made subsequent to a second will, and reviving a former will, though he has acted under the first will, and might be liable to actions as executor de son (1) R. v. Bray, Rep. temp. Hard. (2) See preceding note. SfiO. 2 Sel. N.P. 1045. S.C. 2 Str. (5) By Lord Hardwicke C J-, R- 1069. S. P. Baillie v. Wilson, cited v. Gray (or Bray), 2 Selw. N. P. 4 Burr. 2254. See Carpenters' Com- 1045. pany, &c. v. Hayward, l Doug. 374. (4) Carter v Fearce, 1 T. R, 165. Sect. 1.] which disqualifies. 53 tort, if it should be set aside. (1) Indeed, it may be laid down as a general rule, that executors in trust, trustees, and agents, are not incompetent merely on t he ground of their liability to actions. (2). If a trustee takes a beneficial interest, that is another ground of objection ; but without such an in- terest, trustees and executors are competent witnesses. (3) In the cases, which have been mentioned, the objection Witness be- , . i • i p i • e lievine himself against the witness was, that, either from the circumstance of- interested. his standing in the same situation as the party for whom he was called, or because the verdict might possibly influence the jury in a cause in which he himself might be a party, or from some other cause of the same kind, he expected a benefit from the result of the suit. The witness in those cases would pro- bably have admitted, that he believed himself interested ; and it was upon the supposition of this fact, that the objection must have been founded. Those cases, therefore, in which such objections were overruled, appear to have determined this point, that a witness will not be incompetent m erely on the ground of his believing himself interested. It is true, if he be- lieves himself interested, the impression on his mind, and his bias in favour of the party calling him, may be as strong as if he were legally incompetent. But the difference is, that, in the one case, the enquiry is more simple and more easily de- fined; in the other, it is complicated, vague, and uncertain. For the purpose of determining that a witness is incompetent on account of his believing himself interested, it might be necessary to examine him on a great variety of points, which after all would be more proper for the consideration of the jury ; as, for example, on the nature of the benefit which he expects, the reasons for his expecting it, and the impression which such an expectation may have produced upon his mind. (1) Baillie v. Wilson, cit. 4 Burr, ford, 1 Doug. 140. Eettison v. Broni- 2254. Goodtitle d. Fowler v. Wcl- ley, 12 East, 250. Heath v. Hall, ford, 1 Doug. 14(>. 4 Taunt. 328. Phipps v. Pitcher, (2) l Mod. 107. Goss v. Tracy, n Taunt. 220. 2 Marshall, 20 S. C. l P. Wms. 287. 1 Black. Rep. ."Gf). See l Ball and Beatty's Rep. 100. Gilb. Ev. 123. 4 14. and cases there cited, as to the (3) Goodtitle deni. Fowler v. Wei- rule in equity. 54 Of the Nature of Die Interest [Ch. 5 Such an enquiry would in all cases be extremely indefinite, and would be subject to this great inconvenience, that it might lead to the rejection of a witness, who, on further examination, might appear to deserve the highest credit, and might have it in his power to give important evidence. The rule of law respecting interested witnesses is perhaps the best that could be adopted, because it is the least exclusive, and most accurately defined. It excludes such o nly as hav e an interest in the event of the suit; not, that in all cases they are likely to feel a stronger bias than persons, who may perhaps expect some benefit from the event, or may be friends or rela- tions to the party, and yet are not on that account incompetent; but the kind of interest, which is marked out as the cause of incompetency, is in general more direct and immediate, and more easily ascertained. It has been held, therefore, that a witness is not incompetent, who believes himself under an ob- ligation of honour to indemnify the bail, unless he has in fact entered into an engagement to that effect. (1) Such an obliga* tion is in general of a nature so uncertain and variable, that it cannot safely be recognized in courts of justice, as a motive of conduct. Besides, where the sense of honour is so strong and binding as to influence him against his interest, it must be un- necessary to reject the witness ; as the same principle, which would induce him to pay the costs, would oblige him, in giving his evidence, to speak only the truth ; and, in cases where the sense of honour is less firm and imperative, the ground of the objection fails, since the witness is not bound in point of law, and does not feel himself absolutely bound in point of morals. But, independent of this reasoning, another more general answer is, that the ends of justice are most effectually attained by a full and complete investigation of the subject in dispute ; and, xmless the objection to the witness is strictly a legal objec- tion, he will be admitted to give evidence. In the case sup- posed, of a witness who says he thinks himself bound in honour (l) Peclersonv. Stoffles, l Campb. see Fotheringham v. Greenwood, 145. S. P., said to have been ruled l Str. 129. contra, in an old case, by Parker C. J.j Sect. 1.] which disqualifies. 55 to pay the costs, it might be injurious to the party, who calls him to be deprived of his testimony on account of such a fancied obligation ; more especially, as it is an obligation which may easily be pretended by the witness, but which it is scarcely possible for the court justly to appreciate, and which, from the nature of the case, the party cannot release, nor enforce against the witness ; on the ether hand, his testimony may not deserve all the credit due to a witness free from bias, and it ought therefore to be strictly examined and sifted. The witness, then, is to be heard, but his evidence is open to observation. However, it is to be observed, there are several dicta in favour of the position, that a witness is not comp ete nt, if he believes himself interested, whether he is or is not intere sted in strictness of law. (1) But these dicta were not the ground of the determination in the cases then before the court, nor was it necessary to determine the point ; and further, the ge- neral rale of law on the subject of interest was not at that time so clearly settled, as it has since been by many later authori- ti :s. In a late ease (2), before the High Court of Admiralty, an objection was made to the evidence of a witness, who had acknowledged in his answer " that he could not say he was not interested, inasmuch as he conceived he would be entitled to share, if his vessel should be pronounced a joint captor, though he had signed a release;" on the other side, it was contended, that as he was clearly not interested, the effect of his impression was no more an objection in this case, than in those in which the expectation depended only on the bounty of the parties. But Sir William Scott rejected the evidence, observing, " he had always understood the distinction to be, that, if the witness says only, that he expects to share from the bounty of the captors, lie is not disqualified or rendered in- competent, whatever may be the deduction of credit to which (l) By Pratt C. J. in Fothering- Cr. C. 353. And see a case tried ham v. Greenwood, 1 Str. 129. cited before Ld. Mansfield, cited by conn- aiid approved by Ld. Loughborough sel in Rudd's case, Leach Cr. C. 154. C. J., and by Gould J. in Trelawnay (2) Case of the Amitic, Villeneuve, v. Thomas, 1 H. Bl. 307. S. P. by 5 Robinson, Adm. Rep. 344. n. Perryn B. in Newland's case, 1 Leach E A •56 Of the Nature of the Interest [Ch. 5 he is exposed. But if lie thinks himself entitled in law, he acts under an impression of interest, which renders him in- competent, however erroneous that opinion may be." II. Secondly, having shown what is not such an interest in the event of the suit, as will disqualify a witness from giving evi- dence, we now proceed to enquire, what is such an interest as will disqualify. On the subject of interested witnesses, Ch. B. Gilbert lays down the rule thus : " The law looks upon a witness as inte- rested, where there is a certain benefit or disadvantage to the witness, attending the consequence of the cause one way."(l) Mr. Justice Buller adopts the same rule. (2) And, in the case of the King v. Prosser, where the question was, whether on an appeal against a rate, parishioners, who had rateable property but were not actually rated, were competent witnesses in sup- port of the rate, the same learned judge expressed himself thus : " I take the rule to be this ; if the witness can derive no benefit from the cause before the court, (meaning evidently from the context, no immediate benefit,) he is competent." (3) * I. Where the First, if the witness can ava il himse lf of the verdict, so as verdict is ^ • -j. • evidence in support of his own claims, or if the evidence for s — — — rr --- . or against the verdict can be used in evidence against hinijjn case the party, for whom he is called as^a witness, ^should fail in the action, that is a direct and immediate interest in the event of the suit, which will render him incompetent. (4) This rule may be illustrated by the following examples. (1) Gilb. Ev. 106, 7. (2) Bull. N. P. 284. (5) 4 T.R. 17. (4) 3 T. R. 32. 33. 36. 7 T. R. 62. 4 East, 5S2. * The law of Scotland is not so strict on this subject. The general rule, in the Scotch Courts of Justice, is, that no interest in the issue of a cause shall be held to disqualify a witness, (whatever effect it may have on his credibility,) unless it is not only a direct and immediate interest, but one which at the same time flows from some undue and corrupt interference on the part of the witness. See Burnett's Treatise on the Criminal Law of Scotland, p. 440 7 Sect. 1.]] which disqualifies. 57 In an action against a master for the negligence of his ser- I- Servant, vant, the servant is not a competent witness to disprove his own negligence ; for the verdict may be given in evidence, in a subsequent action by the master against the servant, as to the quantum of the damages, though not as to the fact of the in- jury. ( 1 ) A broker is not competent, for the same reason, in , 4's an action against the principal, to disprove the negligence of ^ss? s^tr the defendant in the course of his employment. (2) In an action against a sheriff for a false return to a writ of fieri facias, in which he stated that he had paid a sum of money to the landlord of the premises for arrears of rent, the landlord is not competent to prove the rent due ; for if this action were to succeed, the witness would be liable to an action at the suit of the sheriff, in which the judgment in this case would be evidence of special damage. (3) Where a right of common is claimed by custom, one, who 2 « Common- , . . 1 T~~ i ^ — ; ^ ersandper- claims^under the same custom, cannot be a witness in support SO ns claiming of the claim, as he might afterwards use the verdict in his own *? . tne same . :_ °j- m right. cause to establish a similar customary right for himself. (4) So, where in an action on the case against the defendant for not repairing his fences contiguous to a common, (on which common the plaintiff prescribed for common appurtenant,) one of the points in issue was, whether the defendant was liable to repair by reason of his occupation, it has been determined' that other persons, who claimed a right of pasture over the same common, were not competent witnesses for the plain- tiff (5) ; the Court said, the record would be evidence for another commoner, that the occupier of the adjacent land was bound to repair this fence ; and though the plaintiff in that case claimed a right of common by prescription in right of a (1) Green v. New Riv. Company, (3) Keightley v. Birch, 5 Campb. 4 T. R. 589. Martin v. Henrickson, 521. 2 Ld. Raym. 1007. Miller v. Fal- (4) 1 T. R. 302. 3 T. R. 32. coner, 1 Campb. 251. 15 East, 474. Bull. N. P. 285. Hockley v. Lamb, 3 Campb. 516. Rotheroe v. Elton, l Ld. Raym. 731. Peake, N. P. C. p. 84. stated in vol. 2. (5) Anscomb v. Shore, 1 Taunt. (2) Gevers v. Mainwaring, Holt, 261. N.P.C. 139. Of the Nature of the Interest [Ch. 5. particular messuage, still the other commoners, by whatever title they might claim, would have a common interest in cast- ing the burthen of the repair of this individual fence upon the occupier of the adjacent land. So, where the cmestion_ is, whether in a particular parish or vill, certainjthings arej^ene- rally exempted from tithes, or subject only to a niodus, no person, who would be subject to tithes, if the parson's claim were to be allowed, can give evidence in support of the modus or exemption. ( 1 ) So, where a defendant in an action of trespass justifies under a custom in th e parish for out-going tenants to take the away-going crop, he cannot call as witness an occupier of land, who insists upon the same right for him- self. On the trial of an issue, whether the owners of property within a chapelry are liable by immemorial usage to a charge of repairing the chapel, an owner of property within the chapelry is not a competent witness to disprove the liability, though his property is in the occupation of a tenant, who agrees to pay rent without any deduction : for he is immediately interested in removing such a permanent charge, and thus improving the value of his estate. (2) And in an action against the defendant for exercising a trade in breach of a custom, which, as was alleged in the declaration, confined that and other trades to the members of a corporate company, a witness who claims for himself a right to exercise a trade, though not a member, is not competent to negative the exist- ence of such a custom ; for he is interested, that the de- fendant should have a verdict, which he may use in his own defence, in case a similar action should be brought against himself. (3) Where the issue does not affect any common right, but is merely on a right of common claimed by prescription, as be- (1) Ld. Clanricard v. Lady Den- and Aid. s 7. See Meredith v. Gil- ton, 1 Gwill. 560. Gilb. Ev. 1 13. pin, infra. (2) Rhodes v. Ainsworth, 1 Barn. (3) Comp. of Carpenters in Shrews- bury v. Hayward, l Doug. 373. Sect. 1.] which disqualifies. 59 longing to the estate of A., one wh o claims a prescriptive right of common in righ^of his ovvn estate may J)e a witness (1); for though A. may have such a right of common, it does not fol- low that B. has, nor would the verdict in the action of A. be evidence in B.'s action. " It is no good objection to a witness," says Ch. B. Gilbert (2), " that he has common by cause of vicinage in the lands in question, for this is no interest in the land, but only an excuse for trespass ; and let who will recover the lands, the w r hole right of common remains, so that he is certainly indifferent in point of interest between the two con- tenders." However, this position may perhaps be doubted, as the rule is now clearly established, that a witness, who can use the verdict injt n ac tion brought either _by_or^ against himself ? is not competent ; and since common by cause of vicinage is in the nature of common appendant, and implies immemorial usage of intercommoning, it is presumed, that a verdict, find- ing the existence of such an usage, would be evidence for the witness, if he were to justify under the same usage in an action of trespass. It may be observed, that Ch. B. Gilbert does not once mention the power of using the verdict, as a criterion for determining, whether the witness is incompetent ; so undefined, at that time, was the rule of evidence on this subject. _In an action of ejectment^ the tenant in possession^ upon 3. Tenant in whom an ejectment has been served, is not a competentwitness P ossess i° n « in support of the title of the defendant under whom he holds; for he is liable to the mesne profits, and the verdict in eject- ment would be evidence against him in an action to recover them. (3) So, a witness, to whom the lessor of the plaintiff has agreed to demise the lands in question, in case he shall recover them by the verdict in ejectment, would not be com- petent to give evidence against the defendant ; because, in an action for the non-performance of that agreement, the verdict (1) Harvey v. Collison, MS. case, (3) Bourne v. Turner, 1 Str. 632. stated 1 Sel. N. P. 449. l T. R. 302. Doe clem. Forster v. Williams, Cown. Bull. N. P. 283. 621. (2) Gilb. Ev. 103. 60 Of the Nature of the Interest [Ch. 5* would be evidence for him to prove the fact of the lands hav- ing been recovered. 4. Liability Person s liable to the costs of the action have an immediate interest in the event, and therefore are not competent witnesses. Thus the defendants' bail are not competent to give evidence for their principal (1), because they are immediately answer- able in case of a verdict against the defendant. If therefore the defendant is likely to require the evidence of one of his bail at the trial of the cause, he must apply to the court, on an affidavit stating that the bail will be a material witness for him, to have his name struck out of the bailpiece on adding and justifying another in his place. (2) In an action against the sheriff for a false return, the sheriffs officer, who has given security for the due execution of process, is not a competent witness, to prove that he endeavoured to make the arrest. (3) So, in an action by an infant plaintiff, his prochein amy or guardian are not competent witnesses for him, as they are liable to costs. (4) So, in an action of assumpsit for goods sold and delivered, the plaintiff having proved the sale of die goods to the defendant and to one J. S., who were partners in trade, Lord Kenyon held that J. S. could not be a witness for the defendant to prove, that the goods were sold to himself, and that the defendant was not concerned in the purchase except as his servant; for, said Lord Kenyon, by discharging the defendant he benefits him- self, as he will be liable to pay a share of the costs to be reco- vered by the plaintiff. (5) In an action by an indorsee against the acceptor of a bill of (1) l T. R. 164. Piesley v. Von Ev. 107. Head v. Head, 3 Atk. .511, Esch, 2Esp. N.P. C. 606. 547. See 1 Cox's Cases in Chan. (2) Tidd, Pr. 264. Collett v. Jen- 286. nis, Rep. temp. Hard. 133. (5) Goodacre v. Breame, Peake (3) Powell v. Hord, 2 Ld. Raym. N. P. C. 174. Young v. Bairner, 1411. 1 Str. 650. S. C. 3 Campb. 1 Esp. N. P. C. 103. See another 523. example in Baker v. Tyrwhitt, (4) James v. Hatfield, 1 Str. 54*. 4 Campb. 27., stated in another part Hopkins v. Neal, 2 Str. 1026. Gilb. of this book. Sect. 1.] which disqualifies. til exchange, which had been accepted for the accommodation of the drawer, the drawer is not a competent witness for the de- fendant, to prove that the holder took the bill for an usurious consideration. This was lately determined in the case of Jones v. Brooke (1). The Court of Common Pleas there held, that the witness was interested to defeat the action ; for, if the holder should succeed against the acceptor, the acceptor would not only have a right of action against the drawer for the principal sum, but also for all damages, which as acceptor he might sustain in being sued upon the bill ; the^drawer of an accommodation bill being bound to indemnify the acceptor against the consequences of his acceptance Jpr^ the ^drawer's accommodation. So, in an action by an indorsee against the maker of a promissory note, the payee and indorser, who has become bankrupt since the date of the note, and has obtained his certificate, is not competent on the part of the defendant, to prove that the note was an accommodation note, and in- dorsed to the plaintiff after it became due ; for, having obtained his certificate, he is no longer liable to the plaintiff on his in- dorsement, but he will be liable to the defendant, if the de- fendant should be obliged by this action to pay the promissory note, which he had given for the witness's accommodation. (2) And in an action on a bill of exchange against the drawer, where the question was, whether the bill had been, as the de- fendant maintained, delivered by one A. B. to the plaintiff to be discounted, or whether it had been delivered in payment for goods, which A. B. had bought of the plaintiff, Ch. Just. Gibbs held that A. B. was not a competent witness for the de- fendant, to prove the former of these facts ; for if A. B. had received the bill merely to get it discounted, and, instead of doing so, if he pledged it for his own debt, he would be liable for the costs of this action, as special damage resulting from his breach of duty. (3) (1)4 Taunt. 464. Sec also Tre- (2)Maundrellv.Kennett, 1 Campb. lawney v. Thomas, 1 H. Bl. 306. and 408. before Bayley J. Ball v. Bostock, 1 Str. 575. as to the (3) Harman* v. Lasbrey, Holt, incompetency of witnesses liable to N. P. C. 390. costs. 02 Of the Nature of the Interest [Ch. 5. In the case of Iklerton v. Atkinson (1), where the question was, in an action of assumpsit, whether A. B. who had re- ceived money due from the defendant to the plaintiff, received it in the character of agent for the plaintiff, the Court of King's Bench held, that A. B. might be called for the de- fendant to prove his agency, as he was liable either to pay the money received or to refund it to the defendant ; and though it was objected, that he had a stronger interest to give evidence in favour of the defendant than on the side of the plaintiff, (since, if he had received the money under a misrepresentation of his own character, the defendant might recover from him the costs of the action then depending as well as the money,) the court held, that the possibility of such a remote interest did not make the witness incompetent. Upon the authority of this case, the case of Birt v. Kirshaw was decided (2); there, the Court of King's Bench were of opinion, that the indorser of a note, who had received money from the drawer to take it up, was a competent witness in an action by the indorsee against the drawer to prove on the part of the defendant, that he had satisfied the note ; since he would be liable on the note to the plaintiff, if the defendant succeeded, or to the defendant in an action for money had and received, if the plaintiff suc- ceeded ; and the Court held, that the witness was not rendered incompetent by the circumstance of his being also liable to the defendant, in the latter case, for the costs of this action in con- sequence of his non-payment. But in the recent case of Jones v. Brooke (3), which was an action against the acceptor of a bill accepted for the accommodation of the drawer, the Court of Common Pleas held, that the drawer was not a competent wit- ness for the defendant, to prove that the holder received the bill on an usurious consideration ; on the ground, that he was bound to indemnify the acceptor against the consequences of an acceptance made for his accommodation, and would there- fore be liable to the acceptor not only for the principal sum» (1) 7 T. R.480. Keightly v. Birch, 3 Campb. 525, (2) 2 East, 458. which were determined upon the (3) 4 Taunt. 464. See Townend same principle. v. Downing, 14 East, 567, and Sect. 1.] which disqualifies. 63 but also for all the costs, with which he might be charged in this action. The liability to the costs of the action, as appears from several cases before mentioned, is a substantial objection to the competency of a witness ; and however indifferent he may be in other respects towards either party, yet, if he has incurred such a liability, he has an immediate and direct inte- rest in the event of the suit. Secondly, a certain, direct, and immediate interest will dis- H. Direct in- ■" ' — —- - r - — — "~ terest, though qualify, although it may happen that the verdict_in the_cause t he verdict cannot be evidence, either for or a gainst the witness in any fu- cannot be ture suit concerning that interest. " The law, says Ch. Baron Gilbert, looks upon a witness as interested, when there is a certain benefit or disadvantage to the witness, attending the consequence of the cause one way." (1) The following ex- amples may be cited to illustrate this general rule. If a person promise a witness, that, in case he recover the ' , en6 j lands, he will grant him a lease of them for so many years, pending on this excludes his evidence ; for the witness would have a fixed and certain advantage by the event of the verdict. (2) So a witness has been rejected, who, if the plaintiff failed in the action, was to repay a sum of money in his hands be- longing to the plaintiff, but was not to repay any part of it, if the plaintiff succeeded. (3) And in the case of Forrester v. Pigou(4), an action on a policy of insurance, where the defend- ant called another underwriter, as witness, who in his examin- ation on the voire dire said, he had paid the loss to the plaintiff upon an undertaking, that he was to be repaid in the event of this action failing, and that he had since received a letter from the plaintiff promising to return the money on that event, Lord Ellenborough C. J. on the trial rejected the witness. On a motion afterwards for a new trial on account of this rejection, the Court sent the case to be retried, for the purpose of ascertain- ing more particularly the time when the undertaking was made (1) Gilb. Ev. 106. (3) Fotheringham v. Greenwood, (2) lb. 108. 1 Str. 129. ( 4 ) 1 Maule&Sel. 9. 64 Of the Nature of the Interest [Ch.5. lo the witness ; but on that occasion Lord Ellenborough said, " If a person, who is under no obligation to become a witness for either of the parties to the suit, choose to pay his debt be- forehand, upon a condition that it is to be determined by the event of that suit, he becomes as much interested in the event, as if he were a party to a consolidation rule." -2. Devisee Heir. A devisee, who takes an interest under a will in the testator's estate, is not competent to prove his sanity, in an action of ejectment brought by another devisee against the heir-at-law. An heir apparent is a competent witness concerning the title of the land ; for the heirship is a mere contingency : but a re- mainder-man is not competent on such a subject, having a present estate in the land. ( 1 ) 55. Witness ' discharging his owu debt. In an action of trespass against a sheriff, where the question was, whether goods, which had been taken in execution in a suit against A. B., belonged to him or to the plaintiff A. B. was not allowed to be a witness for the defendant to prove the goods his property, since he would have been discharged from his debt in case of a verdict for the defendant. (2) And the Court of Common Pleas distinguished this case from that of Nix v. Cutting before-cited (3), (where, in an action of trover, a witness was allowed to prove the property in himself,) by saying that the verdict in that case could not be afterwards used by or against the witness, but in this case a verdict in favour of the party, by whom he was called to give evidence, would relieve him from an execution then pending against him. •4. Witness proving him- self tenant in ejectment. In an action of ejectment, where the plaintiff had made out a prima facie case against the defendant as tenant in possession, the Court of Common Pleas held, that a witness, called on the part of the. defendant, was not competent to prove himself the real tenant, and that the defendant was only his bailiff J for the verdict would have the effect of turning; him out im- (l) Smith v. Blackham, 1 Salk. 285. Sayer, 45. (2) Bland v. Anslev, -2 New. Rep. 331. (3) See ante, p. -it. Sect. 1.] which disqualifies. 65 mediately; it was therefore an immediate interest, and out- weighed the remoter effect of his subjecting himself by his tes- timony to an action of ejectment and trespass for mesne profits. ( 1 ) If there is a direct interest in the event of the suit, it will Degree of make the witness incompetent, however small and inconsider- able the degree of interest may be. Thus, in an action of trespass, where the question was, whether a corporation, which had inclosed part of a common, had left a sufficiency for the commoners, a freeman was considered incompetent to prove the affirmative (2), because the rent must have been re- ceived for the use of the corporation ; though it was admitted, that the amount of the rent was exceedingly small. Hence it appears, that a person who loses or gains the smallest sum by the event of a suit, whatever may be his rank, fortune, or cha- racter, is as incompetent to give evidence, as one who may be interested to the amount of thousands. This is the unavoid- able consequence of the general rule. If interest is allowed to disqualify in any case, it must in all ; as it is impossible by any scale to measure the different effects, which it may have on different minds. If the witness has an interest inclining; him to each of the Interest on parties, so as upon the whole to make him indifferent, he will be competent to give evidence for either party. Thus, in an action of assumpsit for money paid to the use of the defendants, who were ship-owners, Lord Kenyon admitted the (1) Doe dem. Jones v. Wilde, (2) Burton v. Hinde,5 T. R. 174.* 5 Taunt. 1 83. 1 Marshall, 7. S. C. * See R. v. Mayor and Commonalty of London, 2 Lev. 251., R. v. Car. penter, 2 Show. 47., and case of City of London, 1 Ventr. 551. contra. In these cases, freemen were admitted to be witnesses on account of the mi- nuteness of their interest, against the opinion of Jones J. The law of the case in 2 Lev. (where the point is precisely the same as in the oilier two cases,) has been doubted by Mr. Justice Buller ; see Bull. N. P. 290. In the case of Dowdeswell v. Nott, 2 Vern. 317., the Court said, " The objection of an existing interest, though never so small, has always prevailed, and it was so resolved, upon great debate, in the case of the City of London con- cerning the water-bailiff." VOL. I. v both sides. 66 Of the Nature of the Interest [Ch. 5. captain to prove that he had received the money from the plaintiff for the defendant's use ; for he stood indifferent be- tween the parties, and, whichever way the verdict might go, he r?as equally answerable.(l) So, in an action of covenant for rent, where the point in issue was, whether A. B., whose title both the plaintiff and the defendant admitted, had demised the premises first to the plaintiff or to a third person ; A. B. was a competent witness to prove that fact ; for the verdict could not be given in evidence in any future action either by or against the witness, being a record between other parties; and it appeared to be indifferent to him, whether he had the one or the other as his tenant. (2) In an action on a bill of exchange, by the indorsee against the drawer, the acceptor is a competent witness on the part of the plaintiff, to prove that he had no effects of the drawer in his hands (3): and so is the payee, to prove that he in- dorsed the bill to the plaintiff, before it became due, in payment for goods ; for though he would be liable to the plaintiff for the goods sold, if this action fail, yet, if it succeed, he would be liable to the defendant for money paid. (4) And in an action on a promissory note, by the payee against the maker, a joint maker of the note, who is not sued, is competent to prove the defendant's signature (5); for, if the plaintiff recover ;igainst the defendant, the witness would be liable to him for contribution; and, if he fail, he might resort to the defendant for the whole, and in that case the witness would be entitled to contribution from the defendant, so that in either point of view the witness stands indifferent between the parties. Where one partner drew a bill in the partnership firm, and gave it in payment to a separate creditor in discharge of his (1) Evans v. Williams, 7 T.R. 481, (3) Staples v. Okines, 1 Esp.N. P. n.(c). Rocher v. Busher, l Starkie, C. 551. 27. Ilderton v. Atkinson, 7 T. R. (4) Shuttleworth v. Stephens, 480. 1 Campb. 408. (2) Bell v. Harwood, z T. R. 30s. (5) York v. Blott, 5 Maule & Selw. See Serle v. Serle, 2 Roll. Abr. 685. 71. Lockhart v. Graham, 1 Str. 35. tit. Trial, (G,) cited Gilb. Ev. 109. S. P. in an action on a bond. Sect. 1.] which disqualifies. 6' own debt, the Court of King's Bench held, that, in an action by such creditor against the acceptor, either of the partners might be called on the part of the defendant, to prove that the partner, who drew the bill, had no authority to draw it in the name of the firm; and that the bankruptcy of the partners would not vary the question as to the competency of the Avit- ness. ( 1 ) In this case, the partner who drew the bill would have been liable to the plaintiff to the amount of his debt, if the plaintiff had failed in the action, and, if the plaintiff had succeeded, he would have been liable to the defendant the acceptor; and with respect to the other partner, though he would have been liable to the defendant, if the plaintiff reco- vered, he would have had his remedy over against his joint partner. In the late case of Hudson v. Robinson (2), winch was an ac- tion of assumpsit for the non-delivery of goods and for money had and received, and the defendant pleaded in abatement, that the promises were made by the defendant jointly with A. and B., and not by the defendant alone, the Court of King's Bench determined, that A. was a competent witness for the plaintiff, to prove that the defendant was not authorised or employed by the partners to make the contract, and that he received the money to his own use ; for, although the plaintiff should succeed, the defendant would not on that account be precluded from suing the other partners for contribution ; the record in this action would not operate as an estoppel against him on that occasion, because there is no mutuality, out of which the estoppel can arise : the record could only be used, as a medium of proof, to show that this defendant had paid in the action a certain sum ; and, in this point of view, the verdict in favour of the plaintiff must be considered rather as prejudicial to the witness. (1) Ridley v. Taylor, 13 East, 175. (2) 4 Maule & Sel.476. Cossham v. Goldnev. 2 Starkie, N.P.C. 414, S.P. F 2 68 Of the Nature of the Interest, $c. [Ch. 5. The Court of King's Bench held, in the case of Buckland v. Tankard ( 1 ), that a witness, who might have a remedy by action, whether the plaintiff' or defendant had a verdict, was nevertheless interested, because, under the particular circum- stances, he would have a greater difficulty in the one case, than in the other, to enforce that remedy. However, this appears to be the only case, which has been decided on such a ground; and from the leading cases on this subject, which rest on the broad ground of interest, such a circumstance may now more properly be considered as having a strong influence on the witness, but not as forming any solid objection to his competency. The objection, that the witness derives an immediate benefit or loss from the event of the suit, is an objection on the voire Jire, and excludes him from giving any kind of evidence for the party who calls him. If the objection prevails, he cannot be examined at all. The meaning of the rule, which declares, that such an interested person shall not be a witness in courts of justice, must be, that he cannot be heard at all as a witness on the side, to which his interest inclines him. Chief Baron Gilbert lays it down, that he is totally excluded from all attestation, from his supposed want of integrity. Thus, on an indictment against a township for not repairing a highway, a person of another township in the same parish seems not to be a competent witness for the prosecution, even to prove the road to be a common highway : though it may be said, that to such an extent he charges himself, and his testimony is against his own interest. The answer to this is, that, on the trial of this indictment, his evidence has not, upon the whole, that tendency; for, without the proof of that fact, the in- dictment cannot be sustained, and the witness by giving such evidence is supporting a prosecution, which, if it succeed, would have the effect of discharging him and the inhabitants of the other townships. So, in an action of ejectment, a wit- ness, who admits, that he is to have a lease of the premises, in (1) 5T.R. 579. Sect. &']■ Of Incompetency of Party to the Suit. 6$ ease the defendant is turned out of possession by the ejectment, is as incompetent to prove the defendant in possession of the premises, as to prove any other material fact necessary for the support of the action. Sect. II. Of the Rule on the Subject of Interest, considered with reference to the Parties in the Suit. A tarty to tile suit on the record cannot be a witness at the Party to suis trial for himself, ^oTlbr a joint-suitor, against the adverse '"competent partyj 1 ), on account of the immediate and direct interest, which he has in the event, either from having a certain benefit or loss, or from being liable to costs. The party, therefore, in whose name an action is brought, cannot be a witness, though he be merely a trustee for some other person (2); as, a prochein amy suing for an infant. (3) Persons appointed governors and directors of the poor of a parish, under an act of parliament, which authorises them to assess rates on the in- habitants, but in case of appeal makes them liable to costs, to be indemnified out of the parochial fund, are not competent witnesses on the trial of such appeal ; as they are parties to the suit, and liable to costs individually in the first instance. (4) But ther e is no objection, it is s aid, to the competency of per- sons, who are party to a suit in a corporate capacity, and con- sequently not individually liable to costs, and who are free from all interest in the question. Thus, in an action against the governors of the Foundling Hospital for the amount of work done by the plaintiff, Lord Kenyon admitted several of (1) 1 Vern. 230. l P. Wms. 596. tower, 1 Str. 505. James v. Hatfield, Gilh. Ev. 1 16. 1 Str. 548. Hopkins v. Neal, 2 Str. (2) Bauerman v. Radenius, 7 T. R. 1025. Gilb. Ev. 107. 668. Pliilli|)|)s v. Duke of Bucking- (4) R. v. St. Mary Magdalen, Ber- hani, l Vein. 230. inondscy, 3 East, 7. (3) Clutterbuck v. Lord Hunting- F 3 Of Incompetency of Party to the Suit. [Ch. 5. the governors to prove the badness and insufficiency of the work. (1) Courts of Equity, in granting an issue to be- tried at law, frequently direct, that a party to the suit shall be examined at the tried as a witness; such an order waives no objectio n, ex- cept that which arises from the circumstance of the witness being party in the cause. {2) > C. J. An exception to the general rule is stated by*Rolle in the case of an action against a hundred on the statute ot Winton (3), w T here the plaintiff (the party robbed) was al- lowed to prove the robbery and the amount of his loss, " from necessity, on default of other proof." (4) So, in the case of Bennet v. Hundred of Hertford (5), which was an action on the same statute, brought by a earner for a robbery committed in his absence on his servant, the court ruled, against the opinion of Rolle C. J., that the plaintiff might prove the amount of the money, which he had delivered to his servant. And the 15th section of the statute 3 G. 2. c. 16. recites, that in an action against the hundred the person robbed may prove the robbery, and the property of which he was robbed. But though the plaintiff may prove the fact of the robber}', yet with respect to matters, which may be proved by other evidence, he is not a competent witness. ThuilJie cannot give evidence to prove, that the place, where he wgs robbed, is within the hundred, against which he has brought the action. (6) And though the party robbed, who brought the action, has been allowed to be a witness even in his own cause, yet none of the inhabitants of the hundred were formerly re- ceived on behalf of the hundred, however inconsiderable their (1) Weller v. The Govenors of (4) 2 Roll. Ab. 686. Bull. N. P. Foundl. Hosp. Peake, N. P. C. 153. 289. And see Barrett v. Gore and another, (5) 2 Roll. Abr. 686. Vin. Ab. Ev oAtk.401. (1), pi. 54. (2) Rogerson v. Whittington, (6) By Page J. Rep. temp. Hard. 1 Swanston, Ch. Rep. 39. 83. (3) St. 13 Ed. I.e. 2. Sect. 2.] Of Incompetency of Party to the Suit. 71 interest might be(l); but now they are competent witnesses by the statute 8 G. 2. c. 16. s. 15. One other exception appears to be made in the case of an action for a malicious prosecution, where it seems to have been understood, that the evidence, which the defendant himselt gave on the trial of the indictment, may, under certain circum- stances, be received in his favour on the trial of the action. In the case of Johnson v. Browning (2), Lord Holt C. J. admit- ted in evidence the oath of the defendant's wife (who was the only person present at the time of the supposed felony, and who, as the report says, could not herself be a witness) to prove the felony committed ; " for otherwise, it is said, one that should be robbed would be under an intolerable mischief; if he prosecuted for such robbery, and the party should be ac- quitted, the prosecutor would be liable to an action for a mali- cious prosecution without the possibility of making a good defence, though the cause of prosecution were ever so preg- nant." And Mr. Justice Buller, treating of this action, says, ■" As it may come to be left to a jury, it is advisable for the defendant to give proof of a probable cause, if he be capable of doing it : and for this purpose proof of the evidence given by the defendant on the indictment is good." (3) In the case of the Mayor and Commonalty of London (4), and that of the city of London concerning water-bailage (5), the point in issue was, whether the corporation was entitled to certain tolls ; in the first case, it was ruled by the whole court, and by three judges in the last, that freemen (members of the corporation) might be witnesses in support of the claim, be- cause the tolls would be received for the benefit of the whole corporate body, and the interest of any individual must there- fore be inconsiderable. But Mr. Justice Buller has doubted the law of the former case (6), and its authority is still (1) R. v. Carpenter, 2 Show. 47. Sutton Coldficld v. Wilson, 1 Vern. (2) 6 Mod. Rep. 216. 254. (3) Bull. N. P. 14., citing Cobb v. (5) 1 Ventr. 551. Car, 1746. (6) Bull. N. P. 290. (4) 2 Lev. 231. And see Corp. pf F 4 - > Of Incompetency of Party to the Suit. [Ch. 5. further shaken by the case of Burton v. Hinde, before men- tioned. (2) Party not compellable to give evi- dence. As a party to the suit is not suffered to be a witness in sup- port of his own interest, so he is never compelled in courts of law to give evidence for the opposite party against himself. Thus, on a question of settlement, it was determined, in the case of the King against Woburn, that the rated inhabitants of either parish, being in reality the parties to the proceeding, could not be compelled to give evidence against their own parish. (3) So, in an action of ejectment, on the several de- mises of two lessors, one of them is not compellable to give evidence for the defendant, though no title has been proved under his demise ( 1 ) ; the lessors of the plaintiff, said Lord Ellenborough, are substantially the parties on the record ; all are jointly liable ; that lessor, upon whose title the reco- very proceeds, is generally the trustee of the other ; and there are the same reasons for protecting them from being examined, which have produced the general rule of law, that the parties on the record cannot be compelled to give evidence against themselves, and are not permitted to swear in their own favour. Co-plaintiff witness against an- other But where one of several co-plaintiffs comes forward volun- tarily to disprove the defendant's liability to the demand made upon him, he may be admitted with the consent of the adverse party, though at the same time he defeats the claim of those, who jointly sue with him (2): for, if the plaintiff were to make a declaration against his interest out of court, evidence of that declaration would be admissible ; and how is the proof less credible, said C. J. Mansfield, if, with the consent of the defendant, who waives all objection to his testimony, he declares the same thing upon oath at the time of the trial? And in an action of ejectment against two defendants, a co-defendant, (2) 5 T. R. 1 74. supra, p. 65. (.3) R. v. Woburn, 10 East, 403. This ease was decided before the late act, St. 54 G. 3. c. 170. See infra, Sect. 7. of this Chapter. (1) Fenn dem. Pewtriss v. Gran- ger, 3 Campb. 178. (2) Norden and another v. Wil- liamson, 1 Taunt. 378. Sect. 2.] Of. Incompetency of Party to the Suit ?3 who suffers judgment by default, is a competent witness to prove the other in possession ( 1 ) ; Lord Ellenborough held, that the verdict in this case would not prevent the plaintiff from suing the witness for the mesne profits; that the only supposed interest imputable to the witness, is the possibility that the plaintiff will sue the present defendant alone; but this is such a remote interest as cannot render the witness in- competent. The general rule seems to be, that one of several defendants Co-defendant, is not entitled to a verdict, separately from the rest, at the close tent f or an | of the plaintiff's case, although the plaintiff has failed in prov- other, ing the charge against him ; and therefore cannot be used as a witness for the co-defendants, even after all the witnesses in their defence have been called. (2) If, indeed, any person be arbitrarily made a defendant to prevent his testimony in the cause, he shall not prevail by that artifice, but the defendant, against whom nothing is proved, shall notwithstanding be sworn (3); for here the defendant does not swear in his own justification, but in justification of another, with whom he is unnecessarily joined ; and if this were not allowed, the plain- tiff might turn all the several witnesses into defendants, and he might be able to prove what he pleased without contest. But this rule must be understood, when there is no kind of evidence against such defendant ; for if there be evidence against him, though not enough to convict him in the judge's opinion, yet such person cannot be a witness for the other, but his guilt or innocence must wait the event of the verdict, the jury being judges of the fact. In trespass against a person, " for that he, together with A. B. &c," committed the wrong complained of, if it appear, that A. B. was concerned in the trespass, and is party to the suit, (which must be shewn by producing the original or process (I) Doc dcm. Harrop v. Green (2) See Davis v. Living and others, and another, 4 Esp. N. P.C. 198. Holt, N. P. C. 275. (3) Gilb. Ev. 117. Bull. N.P. 285. 74 Of Incompetency of Party to the Suit. [Ch. 5. against him, and proving an ineffectual endeavour to arrest him, or that the process was lost,) he cannot be admitted a witness for the defendant (1); but if nothing is proved against A. B., than he ought to be admitted. (2) Co-defendant, pleading bankruptcy, not a witness. In an action against several defendants, if one plead his bankruptcy, and the others plead the general issue, the former cannot be admitted to give evidence for the rest, though he may have received his certificate (3) : for, in case of a verdict for the plaintiff, he is liable to the costs of this action. And in a similar case, lately determined in the Court of Common Pleas (4), the Court held, that the co-defendant, who had pleaded his bankruptcy, could not be admitted as witness for the other defendants. " The witness," said Lord Chief Justice Gibbs, " who was called to prove, that all the defendants had not entered into a joint contract with the plaintiff, has admit- ted such contract by his plea, and merely relied on his bank- ruptcy. The bankrupts stood as defendants on the record, and contended that they had a legal defence ; — the plaintiffs went through their proof, and, I am not aware of any case, in which it has been laid down to be the duty of a judge to his opinion of the legal effect of particular evidence in toe middle of a cause in order to have an opportunity of introduc- ing other witnesses to be examined for the defendants, and stili less so, to admit witnesses to disprove that which they had before admitted to be true." If a nolle p-oscqui had been en- tered as to the defendant, who is proposed to be called as wit- ness, that would make him competent. (5) Defendant, In a case where one of the defendants, on an indictment for mfnfbf^e^" *" assault ' submitted and was fined, and paid the fine, Pratt fault, when C. J. allowed him to be witness for another defendant, consider- competent. (1) Keazon v. Ewbank, Bull. N. P. 286. Hill v. Fleming, Rep. temp. Hard. 264. Lloyd v. Williams, ib. 123. (2) Page v. Crook, Sty]. 401. 1 Atk. 452. (.3) Raven v. Dunning and another, 5 Esp. N. P. C. 25. Currie v. Child and another, 5 Campb. 285. S. P. (4) Emmett v. Bradley and others. 1 Moore, C. P. 532. (5) Said by Parke J. to have been so ruled by Le Blanc J. at Lancaster* See 1 Moore, 539. Sect. 2.] Of Incompetency of Party to the Suit. r /5 ing the trial as at an end with respect to him. (1) But on a joint indictment against several for a misdemeanor, a defendant, who suffers judgment by default, cannot be a witness for the others (2) ; the admission of such evidence, said Lord Ellen- borough, might be extended equally to every other criminal case, and thus one of the party, by suffering judgment by default, might protect the rest ; there is a community of guilt ; they are all engaged in an unlawful proceeding ; the offence is the offence of all, not only of a single individual. In an action on a joint contract against two defendants, where one let judgment go by default, Lord Kenyon refused to admit him, as a witness for the other defendant, to negative the contract ; for, if negatived as to one, it fails as to the other? and the plaintiff could not make use of the judgment by default against him (3) : nor is he a competent witness for the plaintiff, for, if the plaintiff succeeds, he will be entitled to a contribution from the co-defendant, and, if the plaintiff fails, he himself will be liable to the whole of the demand. (4) It has been held at nisi prius, in the case of Ward v. Hay- don, that a defendant in an action of trover, who suffers judg- ment by default, may be a witness for the co-defendants, as he is not liable to the costs of the issue tried against the other, and is not himself released, whatever may be the event of that issue. (5) But one who suffers judgment by default, is not a competent witness, in an action of trespass, against the co-de- fendants. In a case of this kind (6), Mr. Justice Le Blanc said, " The general rule is, that a party to the record is not ad- missible as a witness ; in the case of Ward v. Haydon, the co-defendant was called to exculpate the other defendant, here it is proposed to call a co-defendant to inculpate the others ; the cases therefore are distinguishable." And he added, that, (i) R. v. Fletcher, 1 Str. 633. R. (4) Brown v. Brown and another, V. Shearman and Idle, Rep. temp. 4 Taunt. 752. Hard. 303. (5) Ward v. Haydon and another, (2) R. v. Lafone and others, 5 Esp. 2 Esp. N. P. C. 553. N. P. C. 155. (6) Chapman v. Graves, 2 Campb. (3) Brown v. Fox, Ex. Sura. Ass. 333. n. by Le Blanc J. 1789. M.S. 76 Of Incompetency of Husband or Wife. [Ch. 5. " when there had been an innovation in the rule, he was not disposed to extend it." If a material witness for a defendant in ejectment is made a co-defendant, his proper course is to let judgment go by default ; but, if he plead, the Court will not afterwards upon motion strike out his name. (1) " But in such case," adds Mr. Justice Buller, " if he consent to let a verdict be given against him for so much as he is proved to be in possession of,. I see no reason why he should not be a witness for another de- fendant." (2) "Witness made defendant by mistake. Where a witness for the plaintiff is by mistake made a de- fendant, the court will on motion suffer his name to be struck out of the record even after issue joined, and then he may be examined (3) ; or, in the case of an information, the attorney- general may enter a nolle prosequi as to one of the defendants* and so make him a witness. (4) Sect. III. Of the Rule on the Suly'ect of Interest, considered with reference to the Husband or Wife of the Party. As a party on the record is not a competent witness, so neither is the husband or wife of the party competent to give evidence either for or against the party. (5) No other relation is excluded (6) : a father may give evidence for his son, or the son for his father : and though the relation between them may influence his testimony, it will not render him incompetent. The reason for excluding the husband and wife from giving evidence, either for or against each other, is founded partly on (l) Dormer v. Fortescue, Bull. N. P. 285. (2) Bull. N. P. 285. (.5) 1 Sid. 441. Bull. N. P. 285. (4) Rep. temi>. Hard. 165. Bull. N. P. -JS5. (5) Co. Lit. 6. (b.) Hawk. b. i. c. 46. s. 70. Gilb. Ev. 119. Bull N. P. 286. (6) 1 Hale, P. C. 305. 2 Hale, P. C. 276. Hawk. b. 2. c. 46. s"; 76. Bull N. P. 287. 1 Wils. -5-2, Sect. 3.] Of Incompetency of Husband or Wife. 11 their identity of interest, partly on a principle of public policy, which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of jus- tice. They cannot be witnesses for each other, because their interests are absolutely the same ; they are not witnesses against each other, because this is inconsistent with the relation of marriage. First, they cannot be witnesses against each other. It has Not witnesses been resolved, says Lord Coke ( 1 ), that a wife cannot be pro- a "^ l7lst cacl1 duced against the husband, as it might be the means of implac- able discord and dissension between them, and the means of great inconvenience. And in an action brought by a woman as feme sole, the defendant cannot ca ll the plain tiff's husband to prove her married, thereby to nonsuit her. (2) The husband and wife are not allowed to be witnesses ao-ainst each other in any criminal proceeding. Thus, in a prosecution for bigamy, the first husband cannot be admitted to prove the former marriage against the wife (3); such evidence would directly criminate, and therefore is not admissible for the reason above mentioned. So far the principle is clear and well defined. But the rule, as laid down in the case of the Kino- against the Inhabitants of Cliviger is much wider and more general (4) : and as it has lately undergone the revision of the Court of King's Bench, it will be necessary shortly to state that case. On an appeal against an order of removal of a pauper, and also of a woman as his wife, the respondents hav- ing proved the marriage, the appellants called the pauper for the purpose of proving his former marriage with another woman, but he swore directly the reverse ; they then called the woman to prove the alleged former marriage. The court of quarter sessions rejected the witness ; and the Court of King's Bench determined, that she was not competent to give such evidence. Both Mr. Justice Ashurst and Mr. Justice Grose, (1) Co. Lit. 6. b. (5) Mary Grigg's case, Sir T. (2) Bentley v. Cook, cited in R. v. Raym. 1. Cliviger, 2 T. R. 2G5. 26!). (4) 2 T. R. 265. 78 Of Incompetency of Husband or Wife. [Ch. 5. the only judges present in court, were of opinion, that a hus- band and wife are not permitted, from a principle of public policy, to give any evidence that may even tend to criminate each other ; that the objection is not confined merely to cases, where they are directly accused of a crime ; but, even in collateral cases, if their evidence tends that isoay^ it shall not be admitted ; for although the evidence of the one could not be used against the other on a subsequent trial for the offence, yet it might lead to a criminal charge, and cause the other to be apprehended. The authorities relied upon, in support of this decision, are a passage from Lord Hale's Pleas of the Crown ( 1 ) and the case of Broughton v. Harpur. (2) But the former authority goes no further than this, that the wife is not compellable to give any evidence charging the husband with an offence ; the passage is, " a woman is not bound to be sworn, or to give evi- dence against another in case of theft, &c, if her husband be concerned, though it be material against another, and not directly against her husband." In the case of Broughton v. Harpur, where the plaintiff made title to lands as son and heir of A. B. and C. D. his wife, in right of C. D., and the de- fendant's case was, that A. B. was married to a former wife then living, Gould J. admitted the woman, to whom A. B. was supposed to be married, to prove the former marriage ; but afterwards, as the report states, the same cause being tried upon the same title between the same parties, Lord Holt C. J. refused to admit the former wife, as witness, to prove that fact. The note of the case is very short ; and it is not stated for what reason the wife was considered incompetent on the second trial. The objection against her competency on the first trial was on the ground of interest ; and, although at that time this cause of incompetency was not accurately defined, it is now clearly settled, that such an objection could not be sup- ported, and that it was properly overruled on the first trial. These authorities, therefore, it is evident, do not support the (1) 2 H. P C. 501. (2) 2 Ld. Raym. 752 Sect. 3.] Of Incompetency of Husband or Wife. . 79 case of the King v. Inhabitants of Cliviger, to the extent to which that case has gone ; they certainly do not lead to the conclusion, that husbands and wives are not permitted t o giv e any evidence that has a tendency to p r ^}J^ a ^ e _ eac ^ other . The rule laid down in the case of the King v. Cliviger was much discussed in a very late case, the case of the King against the Inhabitants of All Saints in Worcester ( 1 ), in which the Court of King's Bench was of opinion, that it had been expressed in terms much too general and undefined. That case was as follows. On an appeal against the removal of Esther Newman, otherwise Esther Willis, to the parish of All Saints, as to her maiden settlement, the respondents called a woman of the name of Ann Willis for the purpose of prov- ing this fact, namely, that at a cei'tain time she married one G. Willis. The appellants objected to her competency, alleg- ing that they were prepared to prove his marriage with the pauper at a subsequent time. The quarter sessions admitted the evidence of the witness, who proved her marriage with G. W. about fourteen years ago ; and cohabitation between this witness and G. W., as man and wife, was proved by other evidence. The respondents then proved, that the pauper gained a settlement in her own right in the appellant parish, and that she had about three years ago married G. W. ; and this marriage was proved as well by the pauper herself, as by a witness present at the time of the marriage. The counsel for the appellants contended, that the evidence of Ann Willis ought to be struck out. But the court of quarter sessions over-ruled the objection, and stated the case for the opinion of the Court of King's Bench. In the course of the argument, which took place on shewing cause against the rule for setting aside the judgment of the Court below, the case of the King v. Cliviger was brought into discussion. And after much argu- ment the Court of King's Bench was of opinion, in the first place, that the case cited, (admitting it to its utmost extent,) did not shew the evidence to be inadmissible at the time that it (l) l Easter Term, 1817, May, 4. MS. 80 Of Incompetency of Husband or Wife. [Ch. 5. was offered ; for the wife did not contradict the husband, as he had not been examined, — she did not by her evidence directly criminate him, as the proceeding related to other matters, and not to any criminal charge against him, — and her evidence could never be used against him, nor be made the groundwork of any future criminal proceeding ; the evi- dence, therefore, was unobjectionable, when received, and could not properly be expunged. The Court were further of opi- nion, that the rule, laid down in the case of the King v. Cli- viger, was too large and general ; that the former wife would have been competent to prove her marriage, though the second marriage had been first proved by the respondents, and that even if the second marriage had been proved by the appel- lants, still she would be competent, and the respondents in reply might have called her to prove the former marriage ; for her evidence did not directly criminate the husband, and never could be used against him, nor could he ever be affected by the judgment of the Court founded upon such evidence. The result therefore appears to be, that, on the trial of an appeal against an order of removal, (and, upon the same principle, in any suit or proceeding between third pe rsons ,) a husband or wife is a competent witness to prove a former marriage, even after proof of a second marriage, although perhaps the witness would not be compellable to answer such questions. And the reasoning, upon which this rule is founded, is equally strong to shew, that the one maybe called as witness to disprove what has been stated by the other; and that either the party, who has called the one, or the opposite party, may call the other for the purpose of contradicting. Indeed, the reasoning is much stronger in this case than in the former, where the husband or wife is allowed to prove the first mar- riage ; for although they may directly contradict each other as to a particular fact, it will not follow, that either party has been guilty of perjury. And as the most serious inconve- niences might result from a different rule, which would be a bar to the full and complete investigation of the subject, in cases too where the property, the character, or even the life 4 Sect. S.] Of Incompetency of Husband or Wife. 81 of a party may be at stake, it appears to be reasonable and necessary to the ends of justice, that such evidence should be admitted. Secondly, husbands or wives cannot be witnesses for each Not compe- other. The wife of a prisoner cannot give evidence for him on ot i ier . his trial. And on a prosecution against several persons for a conspiracy, Lord Ellenborough C. J. refused to admit the wife of one of the defendants to be a witness for the others ; a joint offence being charged, and an acquittal of all the other de- fendants being a ground of discharge for the husband. (1) The same reason applies to the declarations of the husband or wife. Where an action is brought by or against the husband, or by the husband and wife jointly in right of the wife, the general rule is, that the declarations of the wife are not evidence against the husband. (2) Therefore, in an action of assumpsit brought by the husband for wages earned by his wife, her acknowledg- ment of having been paid by the defendant is not to be admitted against the husband. (3) * So, in an action of trespass against a husband and wife, the wife's confession of a trespass, committed by her, cannot be given in evidence to affect the husband (4): nor are the declarations of the wife evidence in his favour. (5) Letters written by the husband to the wife may be read as (1) R.v. Locker and others, 5 Esp. 3 Ves.& Beam. 165. Baker v. Mor- N.P.C. 107.; and see R. V.Frederick ley, Bull. N. P. 28. and another, 2 Str. 1094. S. P. (3) Hall v. Hill, 2 Str. 1094. (2) VVinsmorev.GreenbankjWilles, (4) Denn v. White and another, 577. Alban and others v. Pritchett, 7 T. R. 112. 6 T. R. 680. Barron ▼. Grillard, (5) Hodgkinson v. Fletcher, 4 Campb. 70. * In the case of Carey v. Adkins («), (an action against an officer of the police, to recover money which he had taken from the plaintiff's wife on suspicion of her having got it unlawfully,) Lord Ellenborough admitted the account given by her, respecting the money, on her examination before a magistrate, to be given in evidence on behalf of the defendant ; " the money," said Lord Ellenborough, " appears never to have been in the hus- band's possession, and, as the wife had the exclusive custody and manage- ment of it, lie must be bound by what she said concerning it." (a) 4 Campb. .'H. YOL. I. G S l 2 Of Incompetency of Husband or Wife. [Ch. .5, evidence against him ; but her letters to him will not be evi- dence for him.(l) A discourse between the husband and wife, in the presence of a third person, may be given in evidence against the husband, like any other conversation in which he may have been concerned. In an action for criminal conversation with the plaintiff's wife, the wife's letters to the defendant are not evidence for the defendant against the husband, nor is her confession evidence for the husband against the defendant ; but con- versations between her and the defendant are evidence against him. (2) Evidence of the manner, in which the husband and wife used to live together, before her connection with the defendant, is clearly admissible, for the puz-pose either of in- creasing or lowering the damages : and upon this principle it has been determined, that, where the husband and wife have lived apart from each other, the letters of the wife to her hus- band, written before any suspicion of a criminal intercourse, are admissible in evidence, as shewing their demeanor and conduct, whether they were living on terms of mutual affection; but, on account of the obvious danger of collusion, it ought to be strictly proved, that the letters, which are offered in evi- dence, were written at a time, when the wife was not suspected of misconduct. (3) In an action brought by the executrix of a surviving trustee under a marriage-settlement, to recover back the value of certain goods, which had been sold by the defendant, as sheriff, under an execution against the husband of the ccstuy que trust, that person was not admitted to prove, on the part of the plaintiff, that the goods had been conveyed in trust to the plaintiff for the separate use of his (the witness's) wife. (4) In this case, as (1) Bull. N. P. 28. ration was not shewn in the latte (,2) Bull. N. P. 28. Winsmore v. case. In the former, they were living Greenbank, Willes, 577. separate, as servants in different f'a- (5) Edwards v. Crock, 4 Esp. N. milies. P. C. 59. Trelawney v. Coleman, (4) Davis v. Dinwoodv, 4 T. R. 1 Barn. & Aid. 90. 2 Starkie, N. P. C. 678. 191. S. C. — The cause of their sepa- Sect. 3.] Of Incompetency of Husband or Wife. S3 the witness's debt would have been discharged by a sufficient execution, his evidence would have been in that respect against his personal interest ( 1 ) : but, on the other hand, it was the wife's interest to have the property secured for her separate use ; and though the action was between third persons, yet it directly affected her interest, the action being brought by her trustee for her benefit, and the real point in issue being, whether the goods belonged to her or to her husband. This general rule of evidence, which has been adopted for the purpose of promoting a perfect union of interests, and of secur- ing mutual confidence, is so strictly observed, that, even after a dissolution of marriage for adultery, the wife is not admitted to give any evidence of what occurred during the marriage, which would have been excluded, if the marriage had con- tinued. (2) This, as Lord Ellenborough has said, is on the ground, that the confidence, which subsisted between them at the time, shall not be violated in consequence of any future separation. Thus one great cause of distrust is removed, by making the confidence, which once subsists, ever afterwards inviolable in courts of law. In a case before Lord Hardwicke C. J., he would not suffer a woman to be a witness, though her husband consented (3); " the rule," he said, " is for the peace of families, and such consent should never be encouraged." There are several exceptions, to which the reason of the Exceptions, general rule on this subject does not apply, or where it is out- weighed by considerations of higher importance. First, if a woman is taken away by force and married, she may be a witness against her husband indicted on stat. 3 H. 7. c. 2., for she is not a wife de jure, a contract obtained by force having no obligation in law. (4) From this it should seem, (1) Bland v. Ansley, 2 New Rep. (4) Swendsen's case, 5 St. Tr. 45G. 581 • Bull. N. P. 286. Ramsay's case, cited (2) Monroe v. Twisleton, cited in Rep. temp. Hard. 83. 1 Hale, P. C. Aveson v. Ld. Kinnaird, 6 East, 192. 502. 661. (3) Barker v. Sir Woolston Dixie, Rep temp. Hard. 264 u 2 84? Qf Incompetency of Husband or Wife. [Ch. 5. that, if the actual marriage is valid, (as where the woman after the abduction consents to the marriage voluntarily, and not induced by any precedent menace,) her evidence ought not to be allowed. (1) Secondly, on an indictment for a second marriage during the continuance of a former marriage, though the first wife cannot be a witness (2), yet the second wife may after proof of the first marriage. (3) * Thirdly, a wife may be a witness on the prosecution of her husband for an offence committed against her person. (4) This was determined by all the judges present on Lord Aud- ley's trial, and has been since confirmed by the greatest au- thorities (5), on every principle of humanity and justice. So, in Azyre's case, on an indictment against a man for beating his wife, Lord Raymond suffered her to give evidence. (6) A wife is per- mitted to exhibit articles of the peace against her husband (7); and the Court will not receive affidavits on the part of the defendant, to contradict the truth of the articles exh ibited against him, and prevent his giving surety. (8) So, an affi- davit of a married woman has been admitted to be read, on an application to the Court of King's Bench for an inform- ation against her husband, for an attempt to take her away by force after articles of separation (9): and it would be strange, says Mr. Justice Buller, to permit her to be a witness to ground a prosecution, and not afterwards to be a witness at the trial. (10) On the trial of a man for the murder of his (1) l Hale, P. C.302. 4 Bl. Com. (6) 1 Str. 633.; Bull. N, P. 2S7. 209. contra. S. C. Jagger's case, 1 East, P. C. (2) Mary Grigg's case, Sir T. 454. Raym. 1. Hawk. b. 2. c. 46. s. 71. (7) Bull. N. P. 287. (3) 1 Hale, P.C.395. Bull. X. P. (8) Lord Vane's case, 2 Str. 1202. 287. 1 East, P. C. 469. more fully stated from Mr. Ford's (4) 1 St. Tr. 395. Hutton, 1 16. MS. in 13 East, 171. n. (a); R. v. (5) 1 Hale, P. C. 301. Hawk. b. 2. Doherty, ib. S. P. c. 46. s. 77. Probyn J. in Rep. temp. (9) Lady Lawlev's case, Bull. N.P. Hard. 85. Bull. N. P. 287. 1 Bl. 287. Mary Mead's case, 1 Burr. Conim. 443. Doubted in Grigg's 543. case, Sir T. Raym. 1., and in Gilb. (10) Bull. X. P. 287. Ev. 120. Sect. 3.] Of Incompetency of Husband or Wife. 85 wife, her dying declarations are evidence against him. (1) It has been said, indeed, that a wife may be a witness against her husband in a case of high treason (2): but there are authori- ties the other way. (3) Fourthly, where the wife has made contracts with the au- thority and consent of the husband, she has been considered his agent for that purpose, and her representations are evidence against the husband, who has permitted her to contract for him with third persons. (4) Thus the wife's acknowledgments, as to a debt being due for goods furnished with her husband's consent for her accommodation, are sufficient to take die case out of the statute of limitations. (5) And for the same reason, in an action of assumpsit by a servant for wages, the plaintiff was allowed to give in evidence a deed executed by the wife of the defendant at the time of the hiring, which, though void as a deed, was admitted in order to shew the terms of the contract. (6) Fifthly, by stat. 21 J. 1. c. 19. s. 5. &6., which recites, that doubts had arisen upon the point, it is provided, " that, after the party is declared a bankrupt, the commisioners may exa- mine his wife on oath, for the finding out of the estate, goods, and chattels of such bankrupt, concealed, kept, or disposed of by such wife, in her own person, or by her act or means, or by any other person." Before this statute, the commisioners could not examine the bankrupt's wife. (7) Sixthly, upon an appeal against an order of bastardy, in the case of a married woman, Lord Ilardwicke and the other Judges held, that she was a competent witness to prove her (1) Woodcock's case, 2 Leach, Cr. (5) Paletliorp v. Furnish, 2 E.sp. C. 565. John's case, 1 East, P.C. 5.57. N. P. C. 51 1 . n. Gregory v. Parker, (2) Dictum in Grieg's case, Sir T. l Cainph. 594. Anderson v. Sander- Ray m. 1. cited in GflB.Ev. 119. and son, Holt, N. P. C. 591. 2 Starkie, in Bull. N. P. 289. N. P. C. 204. S. C. See 15 Ves. 1 59. (3) Brownlow, 17. and see the case of Carey v. Adkins, (4) Emerson v. Blonden, 1 Esp. 4 Camph. stated ante, p. SI. N. P. C. 142. 1 Str. 527. Bull. N. P. (o) White v. Cuyler, 6 T. II. 176. 287. (7) Anon, case, 1 Brownlow, 47. Cr .J 86 Of Incompetency of Husband or Wife. [Ch. 5. criminal connection with the appellant, though her husband was interested both in the question and in the event of the appeal ; because such a fact, so secret in its nature, can scarce ever be proved by other evidence. (1) And by a parity of reason, said Lord Ellenborough, in the last cited case of the King v. LufFe, it should seem, if she be admitted, as a witness of necessity, to speak to the fact of the adulterous intercourse, it might also perhaps be competent for her to prove, that the adulterer alone had that sort of intercourse with her, by which a child might be produced within the limits of time which nature allows for parturition. But this is only from the necessity of the thing : she is not competent to prove any other fact, as want of access (2), which other witnesses may be reasonably supposed capable of proving. She cannot prove want of access even after the husband's death. (3) This rule is founded on the broad principle of public policy, inde- pendently of any possible motives of interest in the particular case. ( 4) On an appeal against the removal of a woman, as the widow of A. B. deceased, prima facie evidence of the marriage having been produced on the part of the respondents, the Court of King's Bench determined, that the woman was a competent witness, on the part of the appellants, to disprove the marriage. (5) Seventhly, it has been ruled at nisi prius, that a wife may be a witness, in an action between third persons not immediately affecting the interest of the husband, though her evidence may possibly expose him to a legal demand ; as, in an action between third persons for goods sold and delivered, to prove that the goods had been sold not on the credit of the defendant, but on her (1) R. v. Reading, Rep. temp. (.") R.v. Kea, 11 East, 132. Hard. 82. R. v. Bedell, Andr. s. (4) 11 East. 152. 8 East, 205. R. v. Luffe, 8 East, 203. Gilb. Ev. (5) R. v. Braroley, 6 T. R. 550. ; 139. R. v. St. Peter's. Burr. Sett. Cas. 25. (2) Ante(l), R.v. Rookc, l Wils. S. P. 340. R. v. Kta, 1 1 East, 152. Sect. 3.] Of Incompetency of Husband or Wife. 87 husband's credit. (1) This evidence, it maybe said, was hi some measure against the husband, though he was not a party in the suit. On the other hand, to reject her evidence in such a case would be a hardship on the defendant, who may have no other means of defending himself against an unjust de- mand : and, though upon her testimony the defendant might have a verdict, and an action might afterwards in consequence he brought against the husband, she would not then be ad- mitted as witness, nor could her evidence in the first suit be produced against him. In an action of trover, by a carrier for a box, which had been delivered to the defendant by mistake, the plaintiff called the owner's wife to prove what the box contained, but Holt C. J. refused to hear her testimony, on the ground that the verdict in that action, with oath of what the carrier's witness swore, might be given in evidence to prove the value of the goods in a subsequent action brought by the husband against the car- rier. (2) But it seems questionable, how the verdict in this cause could be afterwards used as evidence by the husband ; and the husband appears not to be immediately interested in the event of the carrier's action ; for whether the plaintiff succeed or fail, he would be equally liable to the owner of the goods. In the case of Campbell v. Twemlow(3), which came before Evidence of a the Court of Exchequer on a motion to set aside an award, w j tn tn ' e part y one of the grounds of the application was, that the arbitrator as w ' te * had rejected the evidence of a- woman called on the part of the plaintiff, who had cohabited with him for several years and passed as his wife, but who would have stated, that she had never been married to him. The point was much argued at the bar. The Court, considering it a doubtful question, (as the report states,) declined giving any opinion, as it was un- (1) Williams v. Johnson, by King p. 82., the action was between third C.J. 1 Str. 504. Bull. N. P. '287. parties ; but there the plaintiff* sued S. C. lor the benefit of the wife, though (2) Tiley v. Cowling, Ld. Rayni. the husband was not a party to the 744. Bull. N. P. 213. In the case suit. of Davis v. Dinwoody, before cited, (3) i Price, 81. G 4 S8 Of Admissions hi/ a Party to the Suit, [Ch. S. necessary for the determination of the case ; and they refused the motion, on the ground, that the opinion of the arbitrator was final and conclusive, all matters both of law and fact hav- ing been left to his decision. The Lord Chief Baron Richards cited a case, before Lord Kenyon on the Chester circuit in the year 1782, where, on a trial for forgery, the prisoner called a woman as his witness, whom he had himself in Court repre- sented to be his wife, but afterwards, on hearing an objection taken to her competency, denied that she was married to him, and Lord Kenyon would not permit him to call her, after having represented her as his wife. Sect. IV. Of the Effect of Admissions by a Party to the Suit, or by his Agent, against the Party's Interest. The statements and representations of parties to a suit, made by them against their interest, are evidence against them ; and in many cases they will be the strongest evidence. Upon this principle, the free admissions of one of the parties to a suit on the matter in issue, and the voluntary confession of a prisoner under a criminal charge, are always received in evidence against the party. First, with respect to admissions. Admission of Admissions by a party to the suit against his interest are evi- party to suit. c ] ence j n favour of the other side, whether made before or after the commencement of the action, whether in writing or by parol. The recital of a fact in the counterpart of an inden- ture is evidence against the party, by whom the deed is exe- cuted. ( 1 ) So a grant to a corporation by a certain name is evidence against those claiming under the grantor, that the (1) Burleigh v. Stibbs, 5 T. R. 465. 7 Sect. 4.] or by his Agent. 89 corporation was at the time known by that name. ( 1 ) Answers in Chancery are evidence in trials at law, against the party that made them (2) ; and very strong evidence, as they are deliver- ed in upon oath. The examination of a bankrupt before the commissioners is evidence against him, although the ques- tions may have been improperly put to him with a view to the action (3), and though he might have demurred to them as subjecting him to penalties. (4) Admissions are evidence in favour of the other side, whether made by the real party on the record, or by a nominal party who sues as a trustee for the benefit of another (5), or whether by the party who is really interested in the suit though not named on the record. (6) The following examples will illustrate the several parts of this rule. In the case of Bauerman and another v. Radenius (7)> which was an action by the shippers of goods against the cap- tain of a ship, for not delivering the goods in proper condition, a letter written by the plaintiffs was given in evidence on the part of the defendant, in which they entirely exculpated the defendant from all misconduct ; and it appeared also from the letter, that the goods were shipped on the risk of third per- sons, and that the plaintiffs were not really interested in the suit : the counsel on the other side contended, that the parties really interested ought not to be concluded by the admission of the plaintiffs, who were merely nominal parties in the action : Lord Kenyon was of a different opinion, and the plaintiffs were nonsuited. The Court of King's Bench afterwards affirmed the nonsuit. Mr. Justice Lawrence on that occasion said, " Van Dyck and Co., the persons on whose risk the goods were shipped, are in this difficulty : the present plaintiffs (1) Mayor, &c. of Carlisle v. Bla- 4) Smith v. Beadnell, 1 Campb. mire, 8 East, 493. 30. (2) Bull. N. P. 237. Doe dem. (5) Bauerman v. Radenius, 7 T. R. Dnjby v. Steel, 3 Campb. 115. 664. Craib v. D'Aeth, ib. 670. n. (3) Stockflcth v. Dc Tastet, 4 (6) R. v. Hardwick, 11 East, 578. Campb. 10. 589. (7) 7 T. R. 664. 90 Of Admissions by a Party to the Suit, [Ch. 5. either have or have not an interest ; but it must be considered that they have an interest, in order to support the action ; and if they have, an admission made by them, that they have no cause of action, is admissible evidence. I have looked into the books, to see if I could find any case in which it has been holden, that the admission of a plaintiff on the record is not evidence, but have found none." * In an action of debt upon a bond conditioned to pay money to L. D., for whose benefit the action was brought, the de- fendant proved, that L. D. had said in a conversation respecting this bond, that the defendant owed nothing; upon which the jury found for the defendant : on a motion for a new trial, it was argued, that the declarations of L. D., who was not a party to the action, ought not to affect the plaintiff, and affidavits were offered to explain L. D.'s evidence ; but the Court said, that the affidavits were inadmissible, and that the case was to be considered, as if L. D. was the plaintiff, the action being for L. D.'s benefit. ( I ) And in an appeal against the removal of a pauper, declarations by a rated inhabitant of either parish, concerning the facts in issue, are admissible in evidence against the other rated inhabitants of his parish (2): for the rated in- habitants are- the parties directly and immediately interested in (l) Hanson v. Parker, 1 Wils. 257. (2) R. v. Hardwick, 11 East, 578. Davis v. Dinwoody, supra, p. 82. R. v. Whitley Lower, 1 Maule & Selw. 636. * In the Nisi Prius ease of Davies v. Ridge and others, 3 Esp. N. P. C. 101., which was an action by a judgment-creditor of P. P., on an award, and for money received by the defendants as trustees of P. P., Lord El- don is reported to have ruled, that admissions by one of the trustees, of his having money of the trust-estate in his hands, were not binding upon the others, the defendants being only trustees, and not all personally liable. And in an action by the Corporation of London v. Long, 1 Campb. 22., where the question related to the powers of a city-officer, Lord Ellen- borou'di is said to have held, that the declarations of an indifferent indivi- dual of the corporation were not admissible, but that he would admit what the officer himself had been heard to say upon the subject. The general principle is that laid down by Mr. Justice Lawrence in the case cited in the text ; and it does not appear from the reports, upon what specific ground theje Nisi Prius cases are to be considered as exceptions. Sect. 4*.] or by his Agent. 91 the event of the proceeding, although the appeal is entered in the names of the parish-officers. (1) Upon the same principle, declarations by the petitioning creditor of a bankrupt, (who is also assignee under the com- mission,) are admissible in an action against a sheriff, the as- signees having given instructions for the defence, and thus appearing to be the real parties to the action. (2) So, in an action by the master of a ship for freight, the declarations of the owner of the ship are admissible against the plaintiff, as the action is brought for the owner's benefit. (3) An action upon a policy may be brought in the name of the person who effected it, though he be not the person actually interested ; yet the persons interested are so far looked upon as parties to the suit, that the declarations of any of them are admissible in evidence against the plaintiff, and what would be a defence against them is in many instances a defence against the plaintiff. (4) The declarations of a guardian are not admissible in evi- Admission by dence against a minor, who sues by his guardian. (5) And ttapartv jhe infant' s answer in Chan cery by hi s gua rdjan cannot be read as evidenc e aga inst the infant (6); it is not in reality the answer of the infant, but of the guardian ; for the guardian only is sworn ; and the guardian has authority to sue for the infant's benefit, not for his prejudice. We have before seen, t hat the gjiardianjsjiot himself competent to give evidence, being liable to the costs of the suit (7) ; and for this reason, in one case, his declarations were improperly admitted. (8) (1) 11 East, 589. R. v. Woburn, (5) Cowling v. Ely, 2 Starkie, 10 East, 595. N. P. C. 566. by Abbott C. J. (2) Dowden v. Fowle, 4 Campb.38. (6) By the opinion of all thejudgcs Young v. Smith, 6 Esp. N.P.C. 121. of K. B. and C. P. in Ecclcston v. (.5) Smith v. Lyon', 3 Campb. 465. Petty, Carth. 79. Gilb. Ev.4 4. 3 P. (4) By Ld. Ellenborough, in Bell Will. 237. n. [E.] v. Ansley, 16 East, 143. See also (7) See ante, p. 60. the case of Duke v. Aldridgc, cited (s) James v. Hatfield, 1 Str. 547. by counsel in Bauennan v. Radcnius, 7 T. R. 665. 92 Of Admissions by a Party to the Suit, [Ch. 5. Admission It may be inferred, from a former part of this section, that, of the paitT in a civil suit a g ainst several persons, who are proved to have a joint interest in the decision, a declaration made by one of those persons, concerning a material fact within his knowledge, is evidence against him, and against all who are parties with him to the suit. (1) In an action of covenant, therefore, against two defendants, the affidavit of one of them may be given in evidence against both. (2) So, in an action by several part- ners against the defendant for the non-performance of an agree- ment, a declaration by one of the partners, that the goods, to which the agreement related, were his separate property, is evidence against all the plaintiffs suing as upon a joint con- tract. (3) And an admission by one defendant of his partner- ship with the co-defendants, who were sued with him as accep- tors of a bill of exchange, and who had been outlawed, has been received as proof against him of a joint promise by all. (4) The rule has even been extended in actions so far, as to admit the declarations of one partner to be evidence against another, concerning joint contracts and their joint interest, although the person, who has made such declarations, is not a party to the suit : as, where, in an action by a creditor against some of the partnership-firm, the answer of another partner to a bill filed by other creditors was received in evidence against the defendants, not indeed to prove the partnership, but, that being established, as an admission against those, who are as one person with him in interest. (5) And the admission of a partner, though not a party to the suit, is evidence as to joint contracts against any other partner, as well after the determin- ation of the partnership as during its continuance. (6) (1) 11 East, 589. C. 205. Wood and others v. Brad- (2) Vicary's case, Gilb. Ev. 51. dick, 1 Taunt. 104. Nichols v. Dowd- (S) Lucas and others v. De la ing and Kemp, 1 Starkie, 81. (The Cour, 1 Maule & Sel. 249. point was doubted in Thwaites v. (4) Sangster v Mazarredo and Richardson, Peake, N. P. C. 16.) others, 1 Starkie, 161 (g) Wood and others v. Braddick, (5) Grant v. Jackson, Peake, N. P, i Taunt, ich. Sect. 4.] or by his Agent. 93 This is the rule respecting admissions in the case of joint Admission i i i_ l-i . bv co-tres- contracts, or where several persons nave one and the same in- p ' asse rs. terest in the subject-matter. But the same rule cannot be applied to actions of trespass or to criminal proceedings. In an action of trespass against several defendants, an admission by one of the defendants is not evidence against the others to prove the fact of their being co-trespassers ; and, even where that fact is fully established, it seems very doubtful, whether any admissions or declarations made by one of the defendants, as to the joint motives or designs of the party, can be received as evidence against the others, except so far as they accom- pany the act, and may be considered as forming a part of the transaction. The rule has in one case been laid down inci- dentally with greater latitude, and it has been said(l), that al- though an admission by one of several defendants in trespass will not establish the others to be co-trespassers, yet, " if that is proved by other competent evidence, the declaration of the one, as to the motives and circumstances of the trespass, will be evidence against all who are proved to have combined together for the common object." Perhaps, on consideration, it may appear, that the rule is to be understood with some limitation ; and from analogy to the principle established by the greatest authorities in cases of conspiracy, the true limitation of the rule appears to be this, that such declarations only are admissible, as have been made with reference to the concerted plan, and in pursuance of the common object ; and that declar- ations which have not been made with reference to that object, and are not strictly a part of the transaction in question, can- not be admitted as evidence against co-trespassers. In prosecutions for conspiracies, it is an established rule, Acts and de- that, where several persons are proved to have combined to- co^consnira- gether for the same illegal purpose, any act done by one of the tors * party, in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of (l) By Lord Ellenborough, R. v. Hardwick, 11 East, 585. 94- Of Admissions by a Party to the Suit, [Ch. 5. law, as well as in sound reason, the act of the whole party ; and therefore the proof of such act will be evidence against any of the others, who were engaged in the same general con- spiracy, without regard to the question, whether the prisoner is proved to have been concerned in that particular trans- action. This kind of evidence was received on the trial of Lord Stafford and of Lord Lovat, on the trials for high treason at the Old Bailey in 1794, and in the case of Stone in 1796 : in which last case the rule was completely settled. In that case ( 1 ), evidence having been given, which warranted the jury to consider, whether the prisoner was engaged in a con- spiracy for treasonable purposes, it was determined, that a let- ter, written by one of the conspirators in pursuance of the common design, (although the letter had not been traced into the hands of the prisoner, or to his knowledge,) was admis- sible in evidence, as the act of the prisoner himself. The acts of the several conspirators, who are engaged with the prisoner in one common object, are evidence against him, though he may not have been directly a party to them ; they are evidence, as acts connected and in conformity with his own acts. The sama rule, subject to the same limitations, must apply to the declarations of conspirators, as well as to their acts. Any declarations made by one of the party, in pursuance of the common object of the conspiracy, are evidence against the rest of the party, who are as much responsible for all that has been said or done by their associates in carrying into effect the concerted plan, as if it had been pronounced by their own voice or executed by their own hand. These declarations are of the nature of acts : they are, in reality, acts done by the party; and generally they are far more mischievous than acts, which consist only in corporal agency. All consultations, therefore, carried on by one conspirator, relative to the (i) R.v. Stone, 6 T.R. 527. l East, Home Tooke's Trial, vol. 25. 127. P. C. 97, 98. 25 Howell's St. Tr. 243. Stone's case, ib. 1268— 1276. 1311. S. C. Hardy's Trial, 24. 1311. Howell's St. Tr. 437. 451. 700. Sect. 4.] or by his Agent. 95 general design, and all conversations in his presence, are evidence against another conspirator, though absent. What the effect of such evidence will be, as the Ch. J. Eyre observed, on the discussion of a question of this kind in Hardy's trial ( 1 ), must depend on a variety of circumstances, such as, whether he was attending to the conversation, whether he approved or disapproved : but still such conversations are admissible in evidence. Wh at one of the party may have saidj not in furtherance of the plot, but a s a m ere relation of some past transaction, or as to the share which some of the others have had in the execution of the common design, cannot, it is conceived, be adm itted in evidence to affect other persons. On the trial of Hardy, for high-treason (2), a question arose as to the ad- missibility of a letter written by Thelwall, and sent to a third person not connected with the conspiracy, containing sedi- tious songs, which the letter stated to have been composed and sung at the anniversary meeting of the London Corresponding Society, of which society the prisoner and the writer of the letter were proved to be members ; the argument in favour of the evidence was, that the letter was an act done in further- ance of the conspiracy; the objection was, that the letter contained merely a relation by the writer, that certain songs had been sung, which could not be evidence against the pri- soner. The majority of the court decided against the admis- sibility of the letter. The Lord Ch. Justice Eyre, the Lord Chief Baron Macdonald, and Mr. Baron Hotham were of opinion, that the letter could not be received. Mr. Justice Buller (with whom Mr. Justice Grose agreed, in thinking it admissible,) said, the letter ought to be received in evidence, for the purpose of shewing what was the nature and extent of the conspiracy ; that in Damaree's and Purchase's cases, evidence was received of what some of the parties had done, when the prisoner was not there ; that, on the trial of Lord (l) Vol. 24. Howell's Coll. St.Tr. (a) Howell's St. Tr. vol. 24. 452._ 704. 4 75. • 9G Of Admissions by a Tarty to the Suit, [Ch. 5. Southampton, something said by Lord Essex, previous to the prisoner's being there, was admitted as evidence ; that, in Lord George Gordon's case, evidence of what different persons of the mob had said, though he was not there, had been admit- ted. But the Lord Ch. Justice Eyre, and the other judges, considered the letter, not as an act done in prosecution of the plot, but as a mere narrative of what had passed. " Corre- spondence," said the Ch. Justice, " very often makes a part of the transaction, and in that case the correspondence of one who is a party in a conspiracy would undoubtedly be evidence, that is, a correspondence in furtherance of the plot ; but a corre- spondence of a private nature, a mere relation of what had been done, appears a different thing." And with respect to the cases alluded to by Mr. Justice Buller, the Ch. Justice ob- served, " In the cases of Damaree, and Lord George Gordon, the cry of the mob at the time made a part of the fact, pail of the transaction, and therefore such evidence might properly be received." Another question arose in the same trial (1), on the admis- sibility of a letter written by one of the conspirators to another person in a distant part of the kingdom, who was also proved to be a party in the same conspiracy. This was a letter writ- ten by the chairman of a meeting in London, to a delegate sent by that meeting into Scotland, though not received by him : it was stated to contain encouragement to him to proceed in the cause, in which he was engaged by the direction of the meeting in London, and that meeting was proved to have been composed, among others, of the prisoner, the writer of the letter, and the person to whom it was addressed. All the judges held the letter to be admissible, excepting the Lord Chief Justice Eyre, who thought it could not be admitted against the pri- soner, as it had not been received by the person to whom it was written, and might perhaps never have gone out of the (1) Hardy's Case, 24 Howell's St. Tr. p. 453— 177. Sect. 4.] or by his Agent. r J/ writer's hands. But the other judges were of opinion, that the letter, being addressed by one conspirator to another conspi- rator, and having relation to the conspiracy, (not merely a bare description to a stranger, as in the case before mentioned,) this was a complete act in that single conspirator, and the letter, therefore, ought to be read against the prisoner, as shewing the nature and tendency of the conspiracy, though the letter should be intercepted, and though it should never reach the person for whose perusal it was intended. In the late trial of Watson (1), some papers, containing a variety of plans and lists of names, which had been found in the house of a co-conspirator before the apprehension of the prisoner, and which had a reference to the design of the con- spiracy, and were in furtherance of the plot, were held to be admissible evidence against the prisoner ; all the judges were of opinion, that these papers ought to be received, there being in this case strong presumptive evidence, that they were in the house of the co-conspirator before the prisoner's apprehension, and in the same state, in which they were afterwards found ; and that this circumstance very materially distinguished the present case from Hardy's case, (cited by the prisoner's coun- sel,) where the papers were found after the prisoner's appre- hension in the possession of persons, who possibly might not have obtained the papers till afterwards ; whereas, in the pre- sent case, the room, in which the papers were found, had been locked up by one of the conspirators. A question also arose, in the same case (2), as to the admis- sibility of another paper, found among those before mentioned, which contained written questions and answers of a description calculated to excite mutiny in the army ; one objection to this evidence was, that such a written paper could not be admitted, as there had been no proof of its ever having been printed or proposed to be printed, or that any attempt had been made to circulate it; and Sidney's case was cited as an authority. But (l) 9. Starkie, 140. (2) t Starkie, 141. VOL. I. M 98 Of Admissions by a Party to the Suit, [Ch. 5. the judges held, that the case then before them was clearly distinguishable from Sidney's case; and Mr. Justice Abbot particularly stated, that the paper, in that case, was not only an unpublished paper, but appeared to have been composed several years before the crime was supposed to have been com- mitted, and that the true objection was, not that the paper was unpublished, but that it had no reference to the treason- able practices charged in the indictment. The paper, pro- duced in Watson's case, was afterwards withdrawn by the Attorney-General, on account of some doubt expressed by the court, whether it had been clearly proved, that the paper in question was intended to have been used in furtherance of the common purpose. The statement »phe statement or representation of an agent in making an of an agent. . . ' agreement, or in doing an act within the scope of his autho- rity, is evidence against the principal himself, and equivalent to his own acknowledgment (1) : for what the agent says may be explanatory of the agreement, or determine the quality of the act which it accompanies, and must therefore be as binding on the principal, as the act or agreement itself. To prove such a representation, the opposite party is not obliged to call the agent, but may establish it by other evidence. Thus, what an agent says at the time of a sale, which he is employed to make, is evidence as part of the transaction of selling ; but the principal is not bound by a representation of the agent at another time. (2) In the case of Biggs v. Laurence (3), which was an action for goods sold and delivered, Mr. Justice Buller admitted a written paper, by which the defendant's agent acknowledged the re- ceipt of the goods, as evidence against the principal ; and on ( 1 ) See the judgment by the Mas- 2 Esp. N. P. C. 5 1 1 . n. See also Ld. ter of the Rolls in FairJie v. Hastings, Melville's case, 29 Howell's St. Tr. 10 Ves. 127. p. 746— 764. &p. 814— 826. Kent v. (2) Helyar v. Hawke, 5 Esp. N. Lowen, iCampb. 177.1 80.,and stated P. C. 74. Peto v. Hague, 5 Esp. N. infra. Prideaux v. Collier, 2 Starkie P. C. 135. Alexander v. Gibson, N. P. C. 57., stated in vol.2. a Campb. 555. Palethorp v. Furnish, (3) 3 T. R. 454. Sect. 4. J or by his Agent. 99 that evidence the plaintiff recovered. However, it was on one occasion stated by counsel in argument ( 1 ), that Lord Kenyon since that case had frequently ruled the contrary, without its ever having been questioned ; and this statement seems to have been acquiesced in by Lord Kenyon (2), who said, " that was not the point, upon which the case was afterwards argued or determined, on the motion for a new trial," meaning the point, that such a receipt could be admitted in evidence. It does not appear from the case of Biggs v. Laurence, whether the agent's acknowledgment, of having received the goods, was made at the time of delivery, or on what other occasion : though, upon this fact, according to the cases above cited, particularly the case of Fairlie v. Hastings, in which the sub- ject was fully discussed by the Master of the Rolls, the ad- missibility of such evidence may be found materially to depend. In one case indeed (3), Lord Kenyon C. J. is said to have refused to admit an agent's letter as evidence of an agreement against the principal, holding, that the agent himself ought to be examined. " If the agreement," said the Master of the Rolls (4), adverting to this case, " was contained in the letter, I should have thought it sufficient, to prove that the letter was written by the agent: but if the letter was offered as proof of the contents of a pre-existing agreement, then it was properly rejected." And the Court of Common Pleas lately decided, after much argument, in the cases of Kahl v. Jansen (5), and Langhorn v. Allnut (6), that the letters of an agent abroad to his principal, containing a narrative of the transaction in which he had been employed, were not admissible in evidence against the principal, as the mere representation of the agent. The general rule on the subject was there fully recognised and confirmed. " When it is proved," said the Chief Justice, " that A. is agent to B., whatever A. does, or says, or writes, (1) Bauerman v. Radcnius, 7 T.R. (4) loVes. 127. 6G5. (5) 4 Taunt. 565. (2) Sec 10 Vcs. 128. (6) 4 Taunt. 511. and Reyner vj (3) Maestcrs v. Abraham, 1 Esp. Pearson, 4 Taunt. G60, S. P. N.P.C.375. H 2 1(K> Of Admissions by a Parti/ to the Suit, [CIu S, ill the making of a contract as agent of B., is admissible in evidence, because it is part of the contract, which he makes for B., and which therefore binds him, but it is not admissible as the agent's account of what passes." ( 1 ) Such declarations are admitted in evidence, not for the purpose of establishing the truth of the fact stated, but as representations, by which the principal is as much bound as if he made them himself, and which are equally binding, whether the fact stated be true or false. If one party refers another, for information on a disputed fact, to a third person as authorised to answer for him (2), or employs an agent to make certain propositions respecting a transaction between himself and another (3), he is bound by what his agent says or does within the scope of his authority, as much as if it had been done or said by himself. Thus, for example, in an action for goods sold and delivered, where it appeared at the trial, that in a conversation between the plain- tiff and defendant, the former asserted that he had delivei'ed the goods by one C, and the defendant replied, " If C. will say, he did deliver the goods, I will pay for them," the plain- tiff was allowed to give in evidence C.'s answer respecting the matter referred to him. ( 1) In the case of Fabrigas v. Mostyn, a point arose, which may serve as another example to illustrate the rule here laid down. (.5) There, a witness, who had been employed by the defendant to convey certain proposals to the plaintiff, explained them to him by an interpreter, from whom also he received the answer : the question was, whether the words of the interpreter could be given in evidence by the witness, as the answer of the plaintiff: or whether the inter- preter himself ought to be called, as the witness understood neither the questions put to the plaintiff, nor the answer made (0 4 Taunt. .519. (4) Danicll v. Pitt, 1 Campb. (2) Daniell v. Pitt, 1 Campb. 366. 366. ; 6 Esp. N. P. C- 74. S. C. Wil- Lloyd v. Willan, 1 Esp. N. P- C. liams v. Innes, I Campb. 364. Brock 178. v. Kent, do. n. 366. Burt v. Palmer, (3) Gainsford v. Grammar, 2 5 Esp. N. P. C. 145. Campb. 9. (5) 11 St. Tr. 171. Sect. 4.] or' by' his Agent. 101 by him. But Mr. Justice Gould ruled that the evidence of the witness was clearly admissible, and sufficient. Here the interpreter was the accredited agent of the parties, acting within the scope of his authority, and in the execution of his agency. It must be remembered, that the cases, in which the declar- ations of an agent have been admitted against the principal, are exceptions to that general rule, which requires evidence to be given upon oath : and the exception is confined to such state- ments, as are made by him, either at the time of his making an agreement about which he is employed, or in acting within the scope of his authority. " Except in one or the other of these ways, said the Master of the Rolls in Fairlie v. Hastings (1), I do not see how they can be evidence against the principal :" and therefore in that case, (where the fact, sought to be established, was, that a bond had been executed by the defendant to the plaintiff, which the defendant had got possession of,) he refused to admit, as evidence of this fact, the declaration of the defendant's agent, who had been em- ployed to keep the bond for the plaintiff's benefit, and who, on its being demanded by the plaintiff, informed him, that it had been delivered to the defendant. (2) " The admission of an agent, (continued the Master of the Rolls,) cannot be assi- milated to the admission of the principal. A party is bound by his own admission, and is not permitted to contradict it. But it is impossible to say, a man is precluded from questioning or contradicting any thing, that any person may have asserted, as to his conduct or agreement, merely because that person has been an agent. If any fact, material to the interest of either party, rests in the knowledge of an agent, the general rule is, that it ought to be proved by his testimony, not by his mere assertion." In the course of the late proceedings in the House of Lords, (1) 10 Vcs. 128. 139.; Wilson v. Turner, 1 Taunt. (2) Fairlie v. Hasting;., 10 Ves. 398. 128. j Young v. Wright, 1 Campb. 10'2 Of Admissions by a Party to the Suit, [Ch. 5 on the bill of Pains and Penalties, a question was proposed to the judges as to the competency of proving, on the trial of a criminal prosecution, certain acts supposed to have been done by the agent of the prosecutor. On that occasion the judges determined, that a defendant's counsel would not be allowed to prove, in the defence, that A. B., who had been employed as agent to procure evidence in support of the indictment, but who had not been examined as a witness, offered a bribe to some third person, (who likewise had not been examined,) to induce him to give evidence touching the subject-matter of the prosecution ; and similar proof, as to the conduct of the defendent's agent, would be equally inadmissible, if offered on the part of the prosecutor. ( 1 ) Here, it is to be observed, the act of the agent, which it was proposed to prove, is supposed to have been addressed to a person not called as a witness for the prosecution, and to be of a nature entirely unconnected with any particular matter deposed to by other witnesses ; so that those witnesses would not be in any manner affected by the proposed proof, excepting by way of in- ference and conclusion. These circumstances were particularly noticed by the Lord Chief Justice in delivering the opinion of the judges. The Lord Chief Justice, at the conclusion of his speech, after observing on the abstract nature of the question, added, " notwithstanding the opinion thus delivered, he was by no jneans prepared to say, that in no case, and under no cir- cumstances appearing at a trial, it might not be fit and proper for a judge to allow proof of such a nature to be submitted to the consideration of a jury; and the inclination of every judge would be to admit rather than to exclude the offered proof." Proof of agen- The fact of the agency must be first established, before the declarations of a supposed agent can be received. For this purpose, the admissions of the principal are evidence against himself; or the fact may be proved directly by the agent. In the case of Johnson v. Ward (2), an action on a policy of in- (l) See printed Evidence, p. 861. this, in Burnett's Commentary on the 365. 868. & 2 Brod. & Bing. 502. Criminal Law of Scotland, p. 415 — There are some very sensible remarks 419. on a subject nearly connected with (2) 6 E*>p. N, P. C. 4S. 4 Sect. 4.] or by his Agent. 103 surance, the affidavit of a person, stating that he subscribed the policy on behalf of the defendant, (which affidavit the defendant himself had previously used, on a motion to put off the trial,) was, under the particular circumstances, properly admitted as proof of the agency. The defendant, having used the affidavit for such a purpose, must be considered as having known and adopted its contents. But the single circumstance, that the affidavit purports to have been made by a person as agent, would not be sufficient proof of his being invested with that authority. If the action is brought upon a deed, or if a deed is given in evidence in support of the defendant's plea, and the deed has been executed under a power of attorney, the power must be proved ; as, where the defendant, in an action of replevin, made cognizance under A. B. for rent in arrear, and a lease executed by the wife of A. B., as attorney to her husband, was given in evidence, Lord Kenyon held, that she could not be examined as to the lease, until the power of attorney was produced. ( 1 ) A letter written by a clerk, whose business it is to write in the name of his employer, will have precisely the same effect, as if written by the principal himself. (2) Proof that a person has acted as agent in other instances, in which the principal has recognised his acts, will be sufficient evidence of a general authority; as, where one had subscribed several policies, besides the one in question, in the defendant's name, which had been afterwards recognised by him. (3) So, where the defendant's son had in three or four instances signed bills of exchange for his father, this was held to be sufficient prima facie evidence, in an action upon a guarantee purporting to be (1) Johnson v. Mason, l Esp. N. ence of the policy; and the defend- P. C. 88. ant was not allowed to prove, that (2) Harding v.Carter, Park, Ins. 4. the letter had been written by mis- A letter from the defendant's clerk, take, and that the policy had not informing the plaintiff that a policy been made. had been effected, was, in this case, (3) Neal v. Erving, 1 Esp. N.P. C held to be good evidence of the exist- 61. II 4- 104 Of Admissions by a Party to the Suit, [Ch. 5. in the father's name, of an authority to the son to sign the guarantee. ( 1 ) In the two last cited cases, it must be presumed, as a very sensible writer has observed (2), that the acts of the agent in such other instances, as were given in evidence for the purpose of shewing a general authority, were proved to have been recognised by the principal. Such previous proof ap- pears to be indispensably necessary ; and, therefore, in the case of Courteen v. Touse (3), where a witness proved that he had often seen the supposed agent sign policies for the defend- ant, but had never seen any general power of attorney for that purpose, and was not acquainted with any instance in which the defendant had paid a loss upon such a policy, Lord Ellenborough held, that this was not sufficient proof of agency. Proof by a witness, that he has acted for many years as the bailiff of A. B. for a certain manor, and during that time made returns to mandates directed to A. B. as lord of the manor, will be sufficient evidence of his being bailiff, though he may never have seen A. B. ; and the fact of A. B. being lord of the manor will be proved by the sheriff's mandate to him as such, together with the bailiff's return. (4) Admission by The attorney of one of the parties, who has made an ad- attorney of a mission with intent to obviate the necessity of proving the fact, must be supposed to have an authority for that purpose, and his client will be bound by the admission (5); as, where he has given a formal admission of the execution of a deed, or of the dishonour of a bill : but what the attorney may happen to state in the course of conversation, is clearly not evidence in the cause. And propositions, made by an attorney on the part of his client, (whether before or after the commencement (1) Watkins v. Vince, 2 Starkie, 141. An admission, by the defendant's N. P. C. 368. attorney, of the hand-writing of a (2) Paley on Principal and Agent, person attesting a deed, is tanta- 201. mount to an admission of the exe- (3) 1 Campb. 43. n. cution by the defendant ; Milward t. (4) Tylerv.D. of Leeds, 2 Starkie, Temple, ' l Campb. 375. Goldie v. N. P. C. 218. Shuttleworth, lCampb. 70. (5) Young v. Wright, 1 Campb. •Sect. 4.] or by his Agent. J 0.5 of a suit,) respecting a demand, which another person had against him, may be used as evidence against the client. ( 1 ) These propositions, though they cannot be proved by the attorney, from a regard to the privilege of the client, yet, if proved by another witness, are received as the admission of an accredited agent; and proof that they were made by the attorney on the record, will be sufficient to establish his agency. (2) The declarations and statements of an under-sheriff have Statement of been thought admissible in evidence against the sheriff, on the an(J j- ^ ground of his being the sheriff's general agent. (3) But a dis- r 'ff 's officer, tinction is to be made between statements by an under-sheriff, and statements by a bailiff or sheriff's officer. The bailiff is not the high sheriff's general deputy for all official purposes ; when a warrant is granted, he becomes the special officer of the sheriff. (4) The statements of a bailiff, therefore, are ad- missible as evidence against a sheriff, only so far as they form a part of the transaction, in which he represents the sheriff, and for which the sheriff is responsible. (5) In no case is the statement of the sheriff's officer admissible, unless the relation between the officer and the sheriff, in the particular transac- tion, has been clearly proved by other independent evidence. (6) An acknowledgment of a debt may be frequently implied Effect of ad* from the conduct and demeanor of a person, no less than from misslon « an express admission ; and the forbearance and non-interfer- ence of one party, with full knowledge of adverse acts done by another party, is a circumstance to shew his acquiescence. (7) An admission may sometimes be inferred from what has been (i) Gainsford v. Grammar, 2 part, ch. 1., & title Sheriff in the Campb. 9. index. (2) S. C, and see Marshall v. (7) See the following examples: Cliff, 4 Campb. 153. Jarrettv. Leonard, 2 Maule & Selw. (3) Yabslcy v. Doble, l Ld. Raym. 265. Morris v. Burdett, I Campb. 190. 7 Term. Rep. 117. 218. Doe dem. Sheppard v. Allen, (4) 7T.R. 117. 3 Taunt. 78. Maltby v. Christie, (5) North v. Miles, l Campb. 389. 1 Esp. N. P. C. 341., cit. 16 East, Bowshcr v. Cally, 1 Campb. 391. 193., and stated in another part- of This subject is more fully treated of, this treatise. Doe d. Winkley v. Fye, in the 2d vol. 1 Esp. N. P. C. 364. Rankin v. llor- (6) On this subject, see 2d vol. 4th ncr, stated in p. 106. 1(H) Of Admissions by a Parly to the Suit, [Ch. 5. said in the presence and hearing of a person without his op- posing or contradicting. The force ahd effect of an admission must of course depend upon the circumstances, under which it has been made, In many cases it will be evidence of the strongest kind, if clearly proved : in some, it amounts to little. A full and free ad- mission of a debt is, unless satisfactorily explained, conclusive against the party who makes it. Proof, that a defendant, in his examination before com- missioners of bankrupt, has proved his debt under the com- mission, is not evidence against him of such a petitioning creditor's debt, as will support the commission; much less is it evidence against a co-defendant, in an action by the assignees. (1) By proving a debt, the party at most only gives credit to the petitioning creditor and to the commis- sioners, that the former has not sued out the commission, nor the latter declared the party bankrupt, without proper grounds. The creditors have not the means of knowing the evidence, on which the party was declared bankrupt ; and it would not be reasonable, that by proving their debts they should be put to the dilemma of being barred by a certificate, or of being understood to have admitted, that every act necessary to support the commission really existed, when they had not the means of judging, whether such acts did or did not exist. (2) An admission by the defendant, that he owes a certain sum of money to the plaintiff, is strong evidence against him, in an action to recover the debt, but it will not be conclusive : the defendant, if he can, may prove the fact of payment, or shew a receipt, or give other evidence to repel the presumption arising from his acknowledgment.] A receipt for money is not (i) Rankin v. Horner and Lauday, (2) Rankin v. Horner and Lauday, 16 East, 191. 16East 3 192. Sect. 4.] or by his Agent. 107 conclusive against the person who ha s signedj t ; but he may shew, if he can, that the money has not been received. (1 ) A bill delivered by an attorney to his client, for business done during a certain period, is strong presumptive evidence against any additional item within the same period ; but the bill is not like a deed to operate as an estoppel, and the party will be at liberty to prove the fact of his having transacted other business for the defendant. (2) A notice to quit at a certain time is prima facie evidence, Notice to quit, that the tenancy commenced at that period, if the notice was t0# ° Jec e served personally on the tenant, and if he made no objection to the time of quitting mentioned in the notice. (3) The cir- cumstance of his not making such an objection has been considered as prima facie evidence of an admission and ac- quiescence. If, on the other hand, it should be made to appear, that at the time of the service the tenant did not look at the notice so as to know its contents, such evidence would com- pletely repel the supposition of any acquiescence on the part of the tenant; for he cannot be supposed to admit a fact, of which he does not appear to have been informed. In the case of Thomas dem. Jones v. Thomas, the Court of King's Bench said, ft whether the personal service, and silence of the tenant in possession, amount to an admission, must depend upon cir- cumstances. If he cannot read, or does not read the notice in the presence of the person who serves it upon him, it must go for nothing. In the present case, we must suppose, that the de- fendant read the notice and understood its contents, and that the person, who served it, stayed so long, that the defendant might have objected to it in his presence, but made no objection. These circumstances, we think, amount to prima facie evidence of the commencement of the tenancy." (1) Stratton v. Rastall, 2 T. R. 15 East, 405. Doe dcm. Leicester v. 566. Biggs, 2 Taunt. 109. Doe d. Baker (2) Loveridge v. Botham, 1 Bos. v.Woombwell, i.' Campb. 550. Tho- & Pull. 49. mas denj. Jones v. Thomas, 'J Campb. (3) Doe dem. Clarges v. Porster, 647. 108 Of Admissions by a Party to the Suit, Atk. C IOS. 524. CHAP. VII. Of certain general Rules of Evidence. IF no objection is made to the competency of a witness, and he is allowed to give evidence, the next question is, what evidence ought to be given ; and in what manner is the wit- Cli.7-] Of the Number of Witnesses. 11,1 ness to be examined. It will, therefore, now be necessary to inquire into certain general rules, which have been established for the purpose of directing the testimony of witnesses, and for the more effectual attainment of the ends of justice. Some general rules relate to the issue joined between the parties. One of these is, that the evidence, which either party produces, ought to be confined to the points in issue. ( This is an universal principle or axiom, and admits of no exception. As the true end and object of pleading is to raise the point in issue, so the true aim of evidence must be to hit that point. Every proof ought to bear, directly or indirectly, upon the facts in dispute. And an irrelevant argument is not more unsound in point of reasoning, than irrelevant evidence is in point of proof. Another general rule is, that the substance only of the issue need be proved. This is founded on the principles of good sense and justice. If a party prove the substance of the issue, he has proved a substantial ground of action, and is entitled to his remedy. He will not be obliged to prove immaterial averments, which might b e expunged from the record without affecting his right to recover. Such averments serve only to encumber the record ; and the proof of them would be as immaterial as the averments themselves. The former rule, then, co-operates with good pleading; this counteracts defect- ive pleading. A third general rule is, that the affirmative of the issue ought to be proved. This relates to the person who is to prove the issue, and casts the burthen of proof on the affirm- ing party. It is, however, by no means an universal rule, like the two former, and admits of many exceptions. The rules, just mentioned, relate to the general aim or tendency of proof, with reference to the issue. There are other rules, relating to the medium of proof, independently of VOL. i. l 146 Of the Number of Witnesses. [Ch. 7. ihe form of the issue. Such is the general rule, that the best evidence, which the nature of the case admits, ought to be produced ; a rule adopted by courts of justice, as a safeguard and security for the discovery of truth. The rules, before noticed, shew, what facts are to be proved ; this shews, how they are to be proved. The substance of the issue is not only to be proved, but to be proved by the best evidence. — Another rule, usually classed among the general rules of evidence, and relating, like the last, to the medium of proof, is, that hearsay of a fact is not admissible. The consideration of these rules will form the subject of the present chapter. But before we come to examine them, it will be convenient to inquire, first, in what cases the testimony of a single witness is not a sufficient proof of a fact ; and, se- condly, as to the nature of presumptive evidence. The order in which it is proposed to consider the subject, is the following : First, Of the number of witnesses for the proof of a fact : Secondly, Of the nature of presumptive evidence : Thirdly, That evidence is to be confined to the points in issue : Fourthly, That the affirmative of the issue is to be proved : Fifthly, That the substance only of the issue need be proved : Sixthly, That the best evidence is to be given, which the nature of the case admits : Lastly, That hearsay evidence is not admissible. Sect. 1.] Of the Number of JVitnesses. \\r( Sect. I. Of the Number of Witnesses, for the Proof of a Fact. The general rue of the common law is, that a single wit- ness, if credible, is sufficient for the proof of any fact. The law of England differs in this respect from the civil law, of which one maxim is, " unius responsio non omnino audiatur ;" and by the law of Scotland at this day, the testimony of a single witness is not lawful evidence to convict. (1) Lord Coke has said in his Commentary (2), that " when a trial is by witnesses, as in the case of the challenge of a juror or sum- mons of a tenant, the affirmation ought to be proved by two or more witnesses, but, where the trial is by verdict, there the judgment is not given upon witnesses, but upon the verdict, and upon such evidence as is given to the jury they find their verdict." But this distinction has been denied by Lord Holt (3), and the doctrine- is said not to be warranted by the authorities cited in its support. In deciding upon the effect of evidence, the question is, not by how many witnesses a fact may have been proved, but whether it has been proved satisfactorily, and so as to convince the understanding. The number of witnesses is not more conclusive on matters of proof, than a number of arguments on a subject of reasoning. If the law were in every case to require peremptorily two witnesses, this would by no means ensure the discovery of truth ; but it would infallibly obstruct its discovery, wherever a fact is known only to a single witness ; and thus secret crimes might escape with impunity. Abstractedly speaking, there cannot be any reason for sus- pecting the evidence of a witness, because he stands alone. The evidence of a single witness may be so clear, so full, so impartial, so free from all suspicion and bias, as to produce (l) Hume's Comment, on" the (2) Co. Lit. 6. b. Laws of Scotland, 2d vol. 369. (s) Shotter v. Friend, Cartli. J tat. 6G.5. C. 50. 1 East. P C 129. S. C. C. 53. s. 3. L 3 150 Of the Number of Witnesses. [Ch. 7. section it is enacted, "If two or more distinct treasons of divers heads or kinds are alleged in one indictment, one wit- ness produced to prove one of the said treasons, and another witness to prove another of the said treasons, shall not be deemed to be two witnesses to the same treason within the meaning of this act." Long before this act of the 7th and 8th of William, it had been resolved, at a conference among the Judges, prepara- tory to the trial of the Regicides ( 1 ), that one witness to prove one act tending to the compassing of the king's death, and an- other witness to prove another act tending to the same end, were sufficient, and that there need not be two witnesses to prove every overt act tending to the compassing of the king's death. And at the trial of Lord Stafford (2), all the Judges present delivered their opinions upon the same point, and declared that one witness to one overt act, and another to another overt act of the same species of treason, are two sufficient witnesses within the statutes ; and the reason given was, because otherwise it would be a most difficult thing and almost impossible to convict any one of high treason for com- passing the death of the king, for such compassings are seldom acted in the presence of two witnesses at one time present. From that time the rule has been considered as completely settled ; and on many occasions, before the act of the 7th of "William, it was strictly followed. (3) Some alteration has been since made in the worst species of high treason, where an attempt is made on the king's person ; and in that case, the principle and mode of proceeding at com- mon law are restored. The stat. 39, 40 G. 3. c. 93. enacts, that " in all cases of high treason, when the overt act alleged in the indictment is the assassination of the king or any direct attempt against his life, or against his person, the prisoner shall be tried according to the same order of trial, and upon (1) Kelyng,£>. (3) See Fost. 236. and Sir W. (2) Sir T. Rayin. 407. Parkyns's case, 4 St. Tr. 650. 651. Sect. 1.] Of the Number of Witnesses. 151 the like evidence, as if he stood charged with murder." A conviction, therefore, in such a case may proceed on the tes- timony of a single witness. The language of the statutes of Edward 6. is, that " the offenders are to be accused by two witnesses," that is, two witnesses are required to prove the offence or overt act of treason j and the stat. of W. 3. expressly confines itself to the proof of the overt acts. With respe ct to all ot her acts, the re- fore, which are merely collateral and not con ducive to the proof of the overt acts, the rule ef* the common law is nofc altered, and one witness is still suff i cient. ( 1 ) It is an established principle in courts o f equity, that on a Rule in courts, bill praying relief, when the facts charged by the plaintiff as et l lut >'- the ground for obtaining a decree, are proved only b y a single witness, and are clearly and ■positively denied by the ans wer of the defendant, the Cour t will not grant a decree aga inst the defendan t. (2) But where the evidence produced by the plaintiff is so far supported and corroborated by proof of concurring circumstances, as to outweigh the denial in the defendant's an- swer (3), (abstracting from the mind, that the evidence on the part of the plaintiff comes from a disinterested witness) (4), the former rule will not apply ; and the evidence of a single witness, so strengthened and confirmed, will enable the Court to decree against the answer. And there are many cases, in which the Court has granted a decree against the defendant on the tes- timony of a single witness, when his testimony has not been clearly and positively contradicted by the answer. (5) By the civil law, as was before observed, two witnesses are Rule in ecde- required for the proof of a fact ; and such is the rule in eccle- sia8tlcaI courts. (1) Smith's case, Fost. 242. Mathers, 1 Bro. Ch. Ca. 52. Toole (2) L'Nevc v. L'Neve, 1 Ves. 64. v. Medlicott, 1 Ball & Bcattie, 403. 66. 3 Atk. 646. S. C. 1 Ves. 97. Biddulph v. St. John, 2 Scho.& Lef. 125. 2 Ves. jun. 243. East India 521. Comp. v. Donald, 9 Ves. 282, 285. (4) 9 Ves. £83. (3) Walton v. Hobbs, 2 Atk. 19. (5) 3 Atk. 650. 1 Ves. 66. 97. Janson v. Rany, ib. 140. I'cniber v. 12 Ves. 80. 3 Ves. & Beam. 59. L 4 152 Qf Presumptive Evidence. [Ch. 7- siastical courts, whose practice is founded upon that law. But even in those courts, if a matter cognizable at common law arises incidentally in an ecclesiastical suit, (as, where a revoc- ation of a will is pleaded, or payment of a legacy, or plene administravit, and the like,) the proof ought to be according to the principles and courts of the common law ; and if they disallow the plea, because it is proved only by a single witness, they may be controlled by a prohibition. (!) Sect. II. Of the Nature of Presumptive Evidence. Evidence consists either of positive or of presumptive proof. The proof is positive, when a witness speaks directly to a fact from his own immediate knowledge ; and presump- tive, when the fact itself is not proved by direct testimony, but is to be inferred from circumstances, which either necessarily or usually attend such facts. (2) This latter is also called cir- cumstantial evidence. It is obvious, that a presumption is more or less likely to be true, according as it is more or less probable, that the circumstances would not have existed, unless the tact, which is inferred from them, had also existed : and that a presumption can only be relied on, until the contrary is actually proved. In order to raise a presumption, it cannot be necessary to confine the evidence to such circumstances alone, as could not have happened, unless they had been also attended by the alleged fact, — lor that in effect would be to require in all cases evidence amounting to positive proof; — but it will be sufficient to prove those circumstances, which usually attend the fact. The definition of the civilians is most correct, " presumptio (1) Sir W. Juxon v. Lord Byron, 424. Com. Dig. tit. Prohibition, 2 Lev. 64. Richardson v. Disborow, (F 13.) and (G 25.) 1 Ventr. 291. Shotter v. Friend, (2) Gilb. Ev. 142. L'arth. 142. 1 Ld. Ray. 221. Cow p. Sect. 2.] Of Presumptive Evidence. ^8 nihil aliud est, quam argumentum verisimile, communi sensu perceptum, ex eo quod plerumque fit aut fieri intelligitur." A presu mption, then, is a probable inference, wh ich our common sense draws from circumsta nces usually occurring in such cases. The slightest presumption is of the nature of probability; and there are almost infinite shades from the lightest probability to the highest moral certainty. If the circumstantial evidence be such as may afford a fair and reasonable presumption of the facts to be tried, it is to be received and left to the consider- ation of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue. (1) However, for the purpose of trying the weight and effect of such presump- tive proofs, it will often be of the utmost consequence to con- sider, whether any other fact happened, which might have been attended by the same circumstances, and with which of the facts they are most consistent. It has been very justly observed (2), that when the proofs are dependent on each other, or when all the proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact : for the force of the whole is not greater than the force of that on which they depend ; and if this fails, they all fall to the ground. But when the proofs are distinct and independent of each other, the probability of the fact increases in proportion to the number of the proofs ; for the falsehood of one does not diminish the veracity of another. There are presumptions of law, as well as presumptions of fact. Some presumptions of law are considered so strong and conclusive, as not to admit of contrary proof; but there are few instances of this, and much fewer in the present day than (1) 2 H. Black. 297. on Contracts. Numb. 16. sect. 14.; (2) Beccana, ch. xiv. The reader and in a chapter in Burnett's Trca- will find many sensible observations, tise on the Criminal Law of Scotland, on the subject of Presumption and There are also some sensible remarks Presumptive Evidence, in Evans's in a small tract entitled " The Theory Appendix to his edition of Pothier of Presumptive Proof:" 154* Of Presumptive Evidence. [Ch. 7. formerly, the doctrine of conclusive presumptions applying principally, if not exclusively, to estoppels. That innocence is to be presumed, till the contrary is proved, may be called a presumption of law, founded on the universal principles of justice. That a child born during marriage shall be presumed to be legitimate, is another presumption of the same descrip- tion. That grants and deeds are to be presumed in support of long undisturbed possession, is also a presumption of law, founded on principles of public policy and convenience. Some- thing will be said, in the course of this section, on each of these presumptions. Presumption Children, born during a lawful marriage, are presumed to be egi imac} . j e gj t j ma ^ e . j^ fa ls presumption may be removed by compe- tent proof of their illegitimacy. Formerly the rule was so strict in favour of legitimacy, that any proof of the contrary would not be admitted, unless the husband had been out of the kingdom during the whole time of gestation ; but this doctrine has been long exploded. The general principle, to be deduced from the authorities on this subject, as it was laid down and confirmed by the case of the King v. Luffe(l), appears to be this, that where there are circumstances, which show an impos- sibility that the husband could be the father, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, or from his continued absence, the presumption is at an end, and the child will be deemed illegitimate. In an earlier case (2), the Court of King's Bench held, that there was no necessity to prove the impossibility, if the other circumstances of the case tended strongly to repel the presumption of access. And this point has been since established by the opinion of the judges in the case of the Banbury claim of peerage (3), in which it was held, that, where the husband and wife are not proved to be impo- (1) 8 East, 195. 206. (3) 2 Selw. N.P. 681. (c) Goodright dem. Thompson v. Saul, 4 T. R. 356. Sect. 2.] Of Presumptive Evidence. 255 tent, and have had opportunity of access to each other during the period, in which a child could be begotten and born in the course of nature, the presumption of legitimacy, arising from the birth of the child during wedlock, may be rebutted by cir- cumstances inducing a contrary presumption : and the fact of non-access (that is, the non-existence of sexual intercourse,) as well as the fact of impotency, may always be lawfully proved by means of such legal evidence, as is strictly admissible in every other case, where a physical fact is to be proved. It has been held, that, in the case of a divorce a mensd et thoro, a child born after such a separation is presumed to be illegiti- mate (1); in this case, therefore, the party, who asserts the child's legitimacy, will have to prove access. A receipt for rent due on a certain day is strong pi'esump- Pr. Ev. of tive evidence, that the former rents have been regularly paid P a y men • down to that time. But it is only presumptive evidence ; and the other party will be allowed to prove the contrary. " If a man give a receipt for the last rent," says Ch. B. Gilbert (2), " the former is presumed to be paid, because he is supposed first to receive and take in the debts of the longest standing ; especially, if the receipt be in full of all demands, then it is plain there were no debts standing out ; and if this be under hand and seal, the presumption is so strong, that the law admits of no proof to the contrary." So, in an action for work and labour done for the defendant, proof that the plain- tiff and other workmen, who were employed by the defendant, came regularly to receive their wages from the defendant whose practice was to pay every week, and that the plaintiff had not been heard to complain of non-payment, would be presumptive evidence of payment, to meet a stale demand. (3) (1) Parish of St. George v. St. which two last cases show, that an Margaret, 1 Salk. 123. admission of the receipt of the pre- (2) Gilb. Ev. 142. In Alner v. niium, in a policy of insurance, is George, 1 Cauipb. 392. the plaintiff's conclusive evidence of the payment, receipt " in full of all demands" was as between the assured and the held to be a bar to his action of underwriter. assumpsit for goods sold. See also (3) Lucas v. Novosilienski, 1 Esp. Dalzell v. Mair, 1 Campb. 532. ; De N, P. C. 296. Garainde v. Pigou, 4 Taunt, 2i6., 156 Of Presumptive Evidence. [CIi. 7. Pr. Ev. of re- It may be presumed, that a bond has been satisfied after rent? ° *" a forbearance for 20 years unexplained on the part of the obligee ( 1 ) : but, it has been held, that, in the case of a quit- rent claimed by the lord of a manor, proof by the tenant, that no demand had been made upon him for near 40 years, was not a sufficient ground for presuming a release or ex- tinguishment ; and that no such presumption could be raised within less than 50 years, which is the period fixed by the statute of limitations. (2) A bond may be discharged by payment, and, on account of the difficulty of proving this fact after a length of time, it is reasonable to presume it without positive proof: but for the extinguishment of a quit-rent a deed is necessary, and it would be too much to presume, that the lord of a manor has executed such a deed, from the mere fact of his not having demanded payment of the quit- rent. " A presumption," said Mr. Justice Aston, " from mere length of time, which is to support a right, is very different from a presumption to defeat a right ; here the pre- sumption is to defeat the right of the lord to a small payment within the 50 years limited by the statute ; and, therefore, upon mere length of time unaccompanied by other circum- stances, such a limitation ought not to be altered, and another set up." Pr. Ev. of Possession is prima facie evidence of property. Possession p oper y. ^.^ an assert } on f property, or even possession alone, gives the possessor such a property as will enable him to maintain an action of trover or trespass against a wrong-doer. (3) Thus, it has been held, that an agister of cattle may maintain trespass against a person for wrongfully taking them away. (4) And this principle applies to criminal as well as civil cases. On a prosecution for larceny, the property of the goods may be laid in the person who had possession at the time ; and proof (1) See vol. 2. c. 7. On action of (3) Armorie v. Delamirie, 1 Str. Debt, and plea of wow est factum. 505. Graham v. Pcate, 1 East, 244. (2) St. .32 H. S. c. 2. s. 4. Eld- Sutton v. Buck, 2 Taunt. 502. ridge v. Knott, Cowp. 214. (4) 2 Roll. Abr. tit. Trespass, (M). Sect. S.] Of Presumptive Evidence. 157 of the mere possession will support the indictment. This has been determined in the case of an agister of cattle (1), and in the case of a coachman, who drove the stage-coach by which the goods were sent. (2) So, (to give another example in a civil case,) in an action on a policy of insurance (3), the mere fact of possession of a ship by the plaintiff, as owner, is sufficient prima facie evidence of ownership ; and though it should appear on the cross-examination of one of the wit- nesses of the plaintiff, that the plaintiff derived his owner- ship under a bill of sale executed by the witness himself, it would not on that account become necessary for the plaintiff to produce that bill of sale. The proof of possession will be sufficient without the aid of any documentary proof, unless such ulterior evidence should be rendered necessary in conse- quence of some contrary proof on the other side. There are many cases, not within the statute of limitations, Pr. Ev. of where courts of justice, from a principle of quieting posses- fe sion, have held, that juries ought to presume the most solemn instruments to support a long uninterrupted possession. All shall be presumed to have been solemnly done, rather than ancient grants (which were necessary for the perfection of the thing) should be called in question, although the grants cannot now be shown. (4) Ancient possession would injure instead of strengthening a title, if, after a succession of ages and the decease of parties, objections should prevail, which might have been answered in the lifetime of the parties, and which, if well founded, would most probably have been sooner made. (5) Charters and grants from the crown may be presumed from great length of possession, not only in suits between private parties, but in some cases against the crown itself, if the crown were capable of making the grant. (1) Woodward's case, 2 East, P. C. 12 Rep. 5. Mayor of Kingston v. 653. Horner, Cowp. 102. 5 T. R. 151. (2) Deakin'scase, 2 East, P. C. 653. 158. 7 T. R. 492. Goodtitle dem. (3) Robertson v. French, 4 East, Parker v. Baldwin, 1 1 East, 488. 130. (5) Ibid. (4) 8 East, 263. Bedle v. Beard, 158 Of Presumptive Evidence, [Ch./. Thus, before the st. 9. G. 3. c. 16., Lord Mansfield C. J. held, that a possession and enjoyment for a hundred years were evidence in support of a title against the crown ; for though such possession could not conclude as a positive bar, because there was no statute of limitation against the crown, yet it might operate against the crown as evidence of right in the defendant, if the claim could have a legal commencement. (1) An endowment of a vicarage may be presumed from the long and continued possession of tithes and other profits. (2) So, long and uninterrupted usage will support a modus decimandi. It is evidence from which the jury may presume an agreement beyond time of memory, between the land- owners and all the parties, whose consent was necessary to give it effect. But such usage wi ll not of itself be sufficient to support a modus d e non decimando, c laimed by a lay person against a spiritual rector; although it is certainly strong evidence of the right, when a legal foundation for such a n exemp tion has been establ ishe d. And though constant usage is evidence of a modus decimandi, and is a ground for presuming grants even against the crown ; yet in the particular instance of a composition r eal in lieu of tithes, it is settled, that where the deed cannot be produced^jome evidence must be given referring to the deed, or sho wing that it did exist, independent of mere usage._(3) And the reason, why this has been so held, is stated to be, that, if it were other- wise, the church would be defrauded, and every bad modus turned into a good composition. " The presumption of a deed from long usage is for the furtherance of justice and for the sake of peace, when there has been a long exercise of an adverse right. For instance, it cannot be supposed, that any man would suffer his neighbour to obstruct the light of his (1) Case of the King against 2 Bos. & Pull. 206. Bennetv. Xeale, Brown, cited by Lord Mansfield, 1 Wightw. 324. Chatfield v. Fryer, Cowp. 110. And see cases in note 1 Price, 255. Ward v. Shepherd, (4) p. 157. 3 Price, 60S. Bennett v. Skeffing- (2) Crimes v. Smyth, 12 Rep. 4. ton, 1 Daniel's Rep. 10. And see 2 Gwill. 514. 716. 732. 1 Eden's Rep. 296. (3) Knight v. Halsey, in error, Sect. 2.] Of Presumptive Evidence. 159 windows and render his house uncomfortable, or to use a way with carts and carriages over his meadow for 20 years suc- cessively, unless some agreement had been made between the parties to that effect, of which the usage is evidence. But with respect to a composition for tithes, the same reason does not obtain, because temporary agreements are made and continued for the convenience of parties during a succession of incumbents : and there is no exe rci se of any advers ej'ight, which is generally deemed necessary to ra ise the presump- Uon^Xl) Upon the same principle, uninterrupted enjoyment of an easement for 20 years or upwards is strong evidence of a right of enjoyment, from which juries are directed by the court to presume a conveyance or agreement ; as, in an ac- tion on the case for obstructing the plaintiff's lights (2), or in the case of a market regularly kept above 20 years. (3) A faculty from the ordinary may be presumed from the long uninterrupted usage of a pew in a church, claimed as ap- purtenant to a messuage. (4) An adverse enjoyment of a way over another person's land for above 20 years is a strong ground for the jury to presume a grant, although about 26 years ago the way was extinguished by an award under an inclosure act. (5) If, indeed, the party had asserted his right to be grounded on the award, this would show that the way was used by mistake ; but unless it could be clearly referred to something else besides adverse possession, the jury would probably be directed not to consider small circumstances as (1) See note (.3), preceding page. (5) Campbell v. Wilson, 5 East, (2) Lewis v. Price, reported in 294. 502. Keymer v. Summers, Bull. Mr. Serjt. Williams's edit, of Saund. N. P. 74. Carr v. Heaton, 3 Gwill. 2 vol. 175. a; "Dongal v. Wilson, ib. 1262. As to a public right of way, 1 75. b. ; Darwin v. Upton, ib. 3 T. R. by a presumed dereliction on the part 159. of the owner of the soil, see the case (3) Holcroft v. Heel, 1 Bos. & Pul. of the Trustees of the Rugby Cha- 401 . rity v. Merryweather, 1 1 East, 375. n. (4) Rogers v. Brooks, 1 T.R. 151. R. v. Lloyd, 1 Campb. 260. R. v. (a) Griffith v. Matthews, 5 T. R. Barr, 4 Campb. 16. Woodyer v. 296. 298. Haddon, 5 Taunt. 125. Of Presumptive Evidence. £ Ch. 7. raising a presumption, that the possession arose otherwise than by grant. Adverse possession for a shorter period than 20 years will not of itself afford a ground for such a presumption ; and there ought to be some other evidence in support of the right. (1) However, a licence may be presumed within that time, though in general a grant cannot ; as, in an action of ejectment to recover part of a waste inclosed by the defendant, where it was proved that the steward of the lord of the manor had from time to time seen the inclosure, which had been nearly thirteen years, without making any objection, this was held to be evidence from which the jury might presume a licence from the lord. (2) In the cases which have been mentioned, the usage for twenty years was considered to be strong presumptive evi- dence of a grant or agreement. But it is only presumptive proof; and therefore evidence is admissible to repel such a presumption; as, by showing that the usage was limited, or modified, or bad in its commencement, or that it clearly originated in a mistake. (3) In the case of Darwin v. Upton (4), which has been cited, where the effect of this kind of evidence was much considered, Lord Mansfield said, " The enjoyment of lights with the defendant's acquiescence for twenty years is such decisive presumption of a right by grant or otherwise, that, unless contradicted or explained, the jury ought to believe it. But it is impossible that length of time can be said to be an absolute bar, like a statute of limitation ; it is certainly a presumptive bar, which ought to go to the jury." The other Judges also were strongly of the same opinion. In the case of Holcroft v. Heel, indeed (5), Ch. J. Eyre, who tried the (1) 6 East. 215. 4 Burr. 1963. (3) 5 East, 300. 502. Dawson v Cotterel v. Griffiths, 4 Esp. N. P. C. D. of Norfolk, 1 Price, 246. 69. (4) 2 Saund. 175. c. (2) Doe dem. Foley v. Wilson, (5) 1 Bos. & Pull. 400. 6 East, H East, 56. 214. Sect. 2. ] Of Presumptive Evidence. 161 cause, held, that an undisturbed possession of a market by the defendant for twenty-three years was a bar to an action brought by the plaintiff, the grantee of a neighbouring market, and therefore nonsuited the plaintiff; and the Court of Com- mon Pleas seem, from the report, to have been of the same opinion. But this case has been since explained by a learned Judge, who was counsel in the cause ( 1 ) ; and it appears to have been the opinion of the court, that the adverse posses- sion was such strong evidence, that the Chief Justice ought to have left it to the jury to find a grant of the market from the crown ; but as the court also intimated, that if the cause were to be tried again upon the same facts, the jury would be so directed, the plaintiff's counsel declined pressing for a new trial. This case, therefore, appears not to be inconsistent with the other authorities, which determine that such a con- tinued possession is only presu mptive evidence of a grant. The usage which is supposed to be founded on a grant or agreement, determines also the extent of the supposed grant. (2) The right granted is considered to be commensurate with the right enjoyed. A person who has enjoyed a limited right can- not lawfully enlarge it to the detriment of others ; and in case of such enlargement, those who are prejudiced may lawfully obstruct the use in the newly acquired part ; but still he will be entitled to the enjoyment of his former right, not only to the same extent, but in the same specific manner. (3) So, if a person has a way for carriages from D. to B. over another man's close, and purchases land adjoining to B., he cannot use the way with carriages to the adjoining land, though he come first to B. and so to the adjoining land ; for this way may be prejudicial to the other person's close. (4) The con- tinued use and enjoyment of a private way for carriages does (l) .3 East, 298. 302. Goble, 1 Campb. 320. Bealey v. (a) 14 East, 539, 340. Shaw, 6 East, 208. (3) Chandler v. Thompson, 3 (4) Roll. Ab. 391. tit. Chimin, Campb. so. And see Martin v. Art. 3. Laughton v. Ward 1 Lutw. 1 11. VOL. I. M 162 Of Presumptive Evidence. [Ch. 7. not necessarily imply a right to use it as a drift-way, though the one has been often understood as including the other. (1) However, it has been held that the use of a carriage-way is evidence of a right of way for all kinds of cattle, more espe- cially, if some species of cattle have been usually driven along the way : and that it will be a question for the jury to deter- mine, from the nature and situation of the premises, and from other circumstances, whether it is more probable that the grant included both rights of way, or that one of them was excluded. (2) The principle above stated must always be understood with this qualification, that the possession, from which the party would presume a grant of the easement, was with the know- ledge of the person seised of an estate of inheritance. If a tenant for years or for life gives a licence to another to enjoy an easement on his lands for above twenty years without inter- ruption, this will not affect the person in reversion or remain- der ; but, on the determination of the particular estate, he may dispute the right to the easement, and the length of possession will not be evidence against him to presume a grant, unless it can be shewn that he acquiesced. (3) So, where a person made windows in his house, and had them for above twenty years, without any interruption from the occupier of the oppo- site premises, who occupied them under a lease, the Court of King's Bench held, that the possession of such an easement would not affect the landlord on the determination of the lease, and that he would not be liable to an action for raising the height of his own premises, and thereby obstructing the light through the new windows. (4) " It is true," said Mr. Justice Le Blanc in this case, " that pres umptions a re sometimes made against the owners of land_dmingj,he possession and bv the acquiescenceof~tlieir tenants, as in the instances of rights (1) 1 Taunt. 284, 285. (3) Bradbury v. Grinsel, 2 Saund. (2) By Mansfield C. J. and Cham- 175. d. in note. (>re J. in BalJaid v. Dyson, 1 Taunt. (4) Daniel v. North, 11 East, "7.'. 2?y. Sect. £.] Of Presumptive Evidence. 163 of way and of common ; but that happens, because the tenant suffer s an imm ediate and palpable injury to |Jns_own possession, and therefore is presume d to b eupon the aler t to guard the rights of the landlord as well as his own, and to make common cause with him ; but the same cannot be said of lights put out by the neighbours of the tenant, in which he may probably take no concern, as he may have no immediate interest at stake." Presumptive, or circumstantial evidence, must obviously be p r> £ v . \ n as admissible in criminal prosecutions as in civil cases ; for criminal cases. whether the proceeding be of a civil or criminal nature, the modes of reasoning, and of drawing conclusions from facts, must necessarily be the same. When direct evidence of facts cannot be supplied, as must continually happen in some of the worst species of crimes, reasonable minds will necessarily form their judgment on circumstances, and act on the probabilities of a case. The whole system of human action proceeds on probability. And " as mathematical or absolute certainty" (to use the words of Lord Mansfield in the Douglas cause) ( 1 ) " is seldom to be attained in human affairs, reason and public utility require, that judges, and all mankind, in forming their opinion of the truth of facts, should be regulated by the superior number of the probabilities on the one side or the other, whether the amount of these probabilities be expressed in words and arguments, or by figures and numbers." The principal difference to be remarked between civil and criminal cases, with reference to the modes of proof by direct or circumstantial evidence, is, that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in the latter case, which affects life and liberty. In criminal prosecutions, it has been observed (2), the circumstantial evidence should be such, as to produce nearly the same degree of ceitainty as that which arises from direct testimony, and to exclude a rational proba- (l) Cited in Andrew Stuart's 3d (a) Burnet's Treatise on the Cri letter to Lord Mansfield. minal Law of Scotland, 523. M 2 164 Of Presumptive Evidence. [Ch. 7- bility of innocence. Doubtless, the circumstances ought to be of such a nature as not to be reasonably accounted for on the supposition of the prisoner's innocence, but perfectly reconcile- able with the supposition of his guilt. Circumstantial evidence has, in some instances, undoubtedly been found to produce a much stronger assurance of the pri- soner's guilt, than could have been produced by the most direct and positive testimony. (1) As a general principle, however, it is certainly true, that positive evidence of a fact from credible eye-witnesses is the most satisfactory that can be produced, and the universal feeling of mankind leans to this species of evidence in preference to that which is merely cir- cumstantial. If positive evidence of a fact can be produced, circumstantial evidence ought not to be trusted. Chief Baron Gilbert, therefore, considers it a higher species of proof. He says, " When the fact itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances which necessarily or usually attend such facts ; and which are called presumptions and not proofs, for they stand instead of the proofs of the fact, till the contrary be proved." A difference between witnesses on points of little importance affords no reason to suspect their veracity. These variations in testimony occur every day in the transactions of common life, and may be explained on the commonest principle of human nature. Men relate facts, as they observe and remem- ber them ; and the powers of attention, observation, and me- mory, are infinitely diversified. A difference in the manner of relating unimportant circumstances is perfectly natural, and what might be expected in the ordinary course of things : on the contrary, it is the exact coincidence in minute particulars, that shows contrivance, and excites suspicion. An eminent writer, in adverting to differences in the narrative of the sacred writers, has made some very judicious observations on this sub- (l) A very remarkable ease cf cir- length in Burnet' s'Treat. on theCri- curmtantial evidence is stated at minal Law of Scotland, p. 524. Sect. 2.] Of Presumptive Evidence. j^ ject, which are of universal application. (1) " If several inde- pendent witnesses of fair character," he says, " should agree in all the parts of a story, (in testifying, for instance, that a murder or a robbery was committed at a particular time, in a particular place, and by a certain individual,) every court of justice in the world would admit the fact, notwithstanding the abstract possibility of the whole being false. Again, if several honest men should agree in saying that they saw the King of France beheaded, though they should disagree as to the figure of the guillotine, or the size of his executioner, as to the King's hands being bound or loose, as to his being composed or agitated in ascending the scaffold ; yet every court of justice in the world would think, that such difference, respecting the circumstances of the fact, did not invalidate the evidence re- specting the fact itself. It would be impossible to establish the truth of any fact, if a disagreement in the evidence of witnesses, in minute points, should be considered as annihilat- ing the weight of their evidence in points of importance. In a word, the relation of a fact differs essentially from the de- monstration of a theorem. If one step is left out, if one link in the chain of ideas constituting a demonstration is omitted, the conclusion will be destroyed ; but a fact may be established, notwithstanding a disagreement of the witnesses respecting it in certain trifling particulars of their evidence." On an indictment for larcen|y, proof that a part of the stolen goods have been found upon the person of the prisoner, or in his house or possession, is presumptive evidence against him of his having stolen them, so as to call upon him for his defence ; and may be sufficient to warrant a conviction, if no facts appear in evidence to repel that presumption. The goods are some- times found in the prisoner's house before his apprehension, frequently found afterwards ; and there can be no objection to proof of their being found at one time or the other ; scarcely an assize ever occurs, (as the court observed, in Watson's case (2), (1) The Bishop of LandafFs Apo- (2) 2 Starkia, N. P. C. 159. logy, p. 79. M 3 1(30 Of Presumptive Evidence. [Ch. 7. where a question of this kind was suggested,) in which it does not happen, that part of the evidence against a prisoner consists of proof, that the stolen property was found in his house after his apprehension. This kind of evidence is frequently strengthened materially by other circumstances, as by proof, that about the time of the offence the prisoner was near the spot from which the goods were taken, or that he gave some false account respecting the goods on being charged with the crime, or endeavoured to conceal them, or perhaps tried to prevent an inspection, or by some other proof of supicious circumstances in his behaviour. On the other hand, the inference, arising from the mere fact of possession, will be much weakened, if any considerable time has elapsed between the loss of the pro- perty and the finding of it again, or if the property was from its nature likely to pass in the interval through many hands ; especially, where the prisoner betrayed no appearance of guilt at the time of his apprehension. Presumption A presumption of fact is in some cases made a presumption of Jaw. f j aw< Thus in the law of treason, an intention to kill the king may be reasonably inferred from a conspiracy to seize his person and imprison him. " Experience has shown," says Mr. Justice Foster (1), "that the distance is very small be- tween the prisons and the graves of princes." This is a presumption of fact. But it is fully settled by the best au- thorities, that such a conspiracy is in law an overt act of com- passing the king's death, and in itself a substantive act of high treason within the statute of Edward the Third. The same observation applies to other acts, which have a less im- mediate and direct tendency to endanger the king's life, such as entering into measures in concert with foreigners in order to effect an invasion of the kingdom ; this also is an overt act of compassing the king's death. " It is a presumption of fact so obvious and so undeniable, that the law has adopted it, and made it a presumption of law." ( 1 ) (1) Fost. 196. Sect. 3.] Evidence confined to Points in Issue. 167 On an indictment for the murder of a bastard child, the concealment of the death by the mother is a strong circumstance of suspicion against her, if the child is proved to have been born alive. But, unless that is proved, the mere fact of con- cealment is in its nature equivocal. However, by the statute of 21 J. 1. c. 27., the burthen of proof was cast upon the mother ; and unless she proved the negative, namely, that the child was not born alive, that statute did in effect make the concealment conclusive evidence of the murder. This act has been since repealed by the statute 43 G. 3. c. 58. s. 3. ; by which the endeavour to conceal the birth is subject to a lighter punishment. * Sect. III. Eidencc is to be confined to the Points in Issue. The sole object and end of evidence is, to ascertain the truth of the several disputed facts or points in issue on the one side or on the other ; and no evidence ought to be admitted to any other point. Evidence must always be considered with reference to the subject-matter, to which it is applied. And it is material, therefore, to consider the view, with which particular evi- dence is offered, in order to determine whether it bears upon * The 4th section enacts, " That it may be lawful for the jury, by whose verdict any prisoner, charged with such murder, shall be acquitted, tofind, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, which, if born alive, would have been a bastard, and that she did by secret burying or otherwise endeavour to conceal the birth thereof, and thereupon it shall be lawful for the court to adjudge, that such prisoner shall be committed to the common gaol or house of correction for any time not exceeding two years." It has been determined by the opinion of all the Judges, that the prisoner may be found guilty of the concealment, whether charged with the murder by the coroner's inquisition, or on a bill of indict- ment returned by the grand jury. See R. v. Cole, 3 Campb. 371. M 4 His Evidence confined to Points in Issue. [Ch. 7- the point in issue. Evidence may be admissible in one point of view, though not in another. A question, for instance, which would have been irrelevant and improper on the exa- mination in chief, may be rendered necessary by the course of a cross-examination. In criminal cases, though it is not material, in general, to inquire into any other stealing of goods, besides that specified in the indictment, yet, for the purpose of ascertaining the identity of the person, it is often important to shew, that other goods, which had been upon an adjoining part of the premises, were stolen in the same night, and afterwards found in the prisoner's possession. This is strong evidence of the prisoner having been near the prose- cutor's house on the night of the robbery ; and in that point of view it is material. Thus also, on an indictment for the crime of arson, it may be shewn, that property, which had been taken out of the house at the time of the firing, was af- terwards found secreted in the possession of the prisoner. (1) To give one other instance : On an indictment against a county, for not repairing a public bridge, the defendants may shew, under the general issue, that the bridge had been re- paired from time to time by private individuals ; for one ques- tion is, whether the bridge is a public bridge ; and upon that question it is material to inquire, by whom and in what man- ner it had been repaired, with a view of ascertaining, whether those repairs were adapted to the service of the public, or merely to the purposes of ornament or private convenience. It is one medium of proof, to shew that the bridge has been repaired by individuals ; though that alone would be of very little weight. (2) Admissions on As tne J U1 T are bound to tr y u n ty the matter in issue be- record. tween the parties, no evidence need be given to prove any points which are admitted on the record, and none can be received to dispute an admission on the record. (3) Thus in an action (1) Rickman's case, 2 East, P. C. aniptonshirc, 2 Maule & Selw. 262. 1035. See Lord Ellenborough's judgment. (2) R. v. the Inhabitants or North- (3) Bull. N. P. [298.] Sect. 3.] Evidence confined to Points in Issue. 169 for cutting clown trees, if the plaintiff replies to the defendant's plea of soil and freehold, that the trees were his trees and freehold, &c, he thereby admits the plea of the defendant, and cannot dispute that he had the freehold of the soil. So if a tenant justifies for common, and the issue on the right of com- mon is found for the demandant, the jury cannot find, that the tenant did not put in his cattle ; for that is admitted. ( 1 ) So in an action of debt on an award, where the defendant pleads no such award, the jury cannot find matters which make the award void, if they are not contained in the award itself. (2) If the defendant, in an action of covenant for not keeping premises in repair, plead performance, he admits, by refraining from the plea of non est factum, so much of the deed as is expanded on the record ; but he admits no more ; and if the plaintiff would avail himself of any other part of the deed, he must prove it in the common way by the attesting wit- ness. (3) The defendant's plea of plene administravit admits that he is administrator, and he cannot afterwards dispute it in the same action. The plea of not guilty in an action for an assault upon a person described as the wife of the plaintiff, admits the mar- riage. The plea of payment, in an action of debt by the assig- nees of a bankrupt upon a bond, admits their title to sue as assignees (4) ; the general principl e being, that a ^Pjn'ty^who puts himself upon one iss ue, admits all t he rest. To give one other instance : If the defendant in an action of trespass jus- tify the removing of the object, with which he is charged, as injurious to his property, and the plaintiff reply that the de- fendant removed it with unnecessary force, doing unnecessary damage, &c, this replication admits damage to a certain ex- tent, such as would justify the defendant in removing the (1) Com. Dig. tit. Pleader, (S. 17.) son v. King, 4 Campb. '2T2. Har- (2) 2 Roll. Abr. 692. 1. 25. . rington v. M'Morris, 5 Taunt. 2'JS. (3) Williams v. Sills, 2 Campb. (4) Corsbic v. Oliver, 1 Stark. 31!). For other examples, see Hill v. N. P. C. 70". Wright, 2 lisp. N. P. C. 069. Wat- 170 Evidence confined to Points in Issue. [Ch. 7- object, and therefore precludes the plaintiff' from shewing that no damage had been done. ( 1 ) Proof of other Such evidence alone ought to be admitted, as in some man- transactions. ner bears upon the question at issue. An inquiry into other transactions, besides those immediately contested, may in some cases be entirely irrelevant. The relevancy of evidence must depend upon the nature and circumstances of the par- ticular case ; for all evidence is to be considered with reference to the subject-matter, to which it is applied. For instance, in an action against an acceptor of a bill of exchange, if the de- fence is that the acceptance is forged, it cannot be material to inquire, whether the person suspected of the forgery has forged the defendant's name to another acceptance. (2) Or where the question, between a landlord and his tenant, is, whether rent was payable quarterly or half-yearly, it must be obviously irrelevant to consider what agreements subsisted between the landlord and other tenants, or at what time their rents would become due. (3) On the other hand, it may frequently be very proper, and in some cases absolutely necessary, to look beyond the transaction, which is the immediate subject of inquiry, into previous transactions, for the purpose of discovering the know- ledge of the parties, their motives, or intentions. The case of Hunter v. Gibson and Johnson (4) affords an instance of this kind. That was an action by an indorsee against the defendants, as acceptors of an instrument pur- porting to be a bill of exchange : a question arose on the third count, which stated the bill to be payable to bearer, under the following circumstances : It appeared in evidence, that the name of the person mentioned as payee was merely fictitious, but this fact was not known to the plaintiff; and for the purpose of shewing, that the defendants, at the time of their acceptance, either knew the name in the bill to be ficti- (1) Pickering v. Rudd, 1 Stark. (3) Carter v. Prvke, Peake, N. P. N. P. C. 58. C. 94. For other examples, see Hol- (2) Balutti v. Serani, Peake, N. P. combe v. Hewson, i Campb. 591. C. 142. Vinev v. Bans, 1 Esp. N. Spencely v. De Willot, 7 East, 108, P.C. 293. I - H. Bl. 187. 288. 290. 295. Sect. 3.] Evidence confined to Points in Issue. J71 tious, or that the defendants had given authority to the drawer to draw the bill in question payable to a fictitious person, the plaintiff proposed to prove, that the defendants had given a general authority to the drawer to draw bills of exchange upon them, to be made payable to fictitious persons, and evidence to this effect was produced ; the counsel for the defendants objected to this evidence, on the ground that it had no rela- tion to the particular bill in question, and that the facts of any particular transaction could not legally be inferred from cir- cumstances which applied wholly to other transactions. Lord Kenyon, who tried the cause, admitted the evidence; upon which, the counsel for the defendants tendered a bill of excep- tions. The Court of King's Bench gave judgment for the defendant in error. A writ of error was then brought in the House of Lords ; and the question on the admissibility of the evidence was referred to the Judges. On this question there was a division among the Judges : but the majority of them being of opinion, that the evidence ought to have been received and left to the jury, the judgment below was affirmed. (1) When a right is claimed by custom in a particular manor or Proof of cus- . , n „ . .. . t • • -i toms in other parish, proof of a similar custom in an adjoining parish or ma- manors & c . nor is not admissible evidence. (2) In the Duke of Somerset's case (2), Lord Ch. J. Raymond said, he had always looked upon it as a settled principle in the law, that the customs of one manor should not be given in evidence to explain the custom of another manor ; " for, if this kind of evidence were to be allowed, the consequence seems to be, that it would let in the custom of one manor into another, and in time bring the customs of all manors to be the same." And, in addition to this argument of inconvenience, the objection taken to the evidence in that case, namely, that it was inapplicable to the (l) See infra, as to the proof 807. By Bullcr J. in Noble v. Evidence confined to Points in Issue. [Ch. 7» had been previously paid. If the contract had been to pay, not any particular price, but the average price at which such articles were sold, to be ascertained by a certain time, a general payment of money into Court would not have admitted the amount of the breach as stated in the declaration, though it would admit a cause of action on each count, and something due on each of the breaches : the contract is admitted, but not the averment of the average price. ( 1 ) In an action on a bill of exchange, the defendant, by paying money into court generally, dispenses with the regular proof of the party's handwriting (2), and cannot object to the suffi- ciency of the stamp on which the bill is. drawn (3): so, in an action of covenant, he admits the execution of the deed. (40 On the same principle, payment of money into court admits the plaintiff's right to sue in that court (5): it admits also the title on which he sues, as, for instance, his being a surgeon (6), or farmer of tithes, &c.(7) Where the defendant has paid money into court generally, upon a declaration containing a count on a policy of insurance together with money counts, he will not afterwards be permitted to shew, that the policy was originally different, and has been altered by the broker without his knowledge. (8) In an action to recover the amount of the sale of goods, which have been sold by sample at a particular price, the defendant will not be allowed to shew, after such general payment into court, that the goods were of a quality inferior to the sample (9): and, in an action upon a promise to pay another person's debt, he cannot insist, after paying money into court, on the couxt charging him with such promise, that the promise is not binding, because not written and signed, as (1) StovelJ v. Brewin, 2 Barn. (5) Miller v. Williams, 5 Esp. &Ald. 116. N. P. C. 19. (2) Gutteridge v. Smith, 2 H. Bl. (6) Lipscombe v. Holmes, 2 Campb. 574. Middleton v. Brewer, Peake, 441. N. P. C. 15. (7) Broadhurst v. Baldwin, 4 (3) Israel v. Benjamin, 3 Campb. Price, 5S. 40. (s) Andrews v. Palsgrave, i> East, (4) Randal v. Lynch, 2 Campb. 325. 557. Watkins v. Towers, 2 T. R. (;>) Leggett v. Cooper, 2 Staikic. 275. N.P. C. 103. Sect. 3.] Evidence confined to Points in Issue. J 87 the statute of frauds directs ; for he has admitted the agree- ment to be binding to a certain extent, and disputes only the amount of the debt. ( 1 ) If the plaintiff, previous to the trial, has induced the de- fendant to believe, that the only point to be tried would be a question of fraud, and has suffered him to prepare his evidence for that purpose, the court will not allow the plain- tiff to object to the receipt of that evidence at the trial, on the ground of the contract having been admitted by the payment of money into court. This was determined by the Court of Common Pleas, in the case of Muller v. Harts- horne. (2) Lord Alvanley, C. J. on the trial of that case, al- lowed the defendant to prove fraud on the part of the plaintiff, in order to avoid the instrument's) But the Court afterwards declined giving any opinion on that point, because, under the circumstances of the case, the plaintiff was not at liberty to avail himself of the objection. Payment of money into court is an admission only of a legal demand. If the contract declared upon be illegal, the defendant cannot give it validity by his admission ; no admis- sion of the parties will oblige the court to give effect to an ille- gal transaction. (4) And although paying money into court admits the contract, that is, the entire consideration for the act and the entire, act which is to be done for such consideration, yet it will not be an admission of other parts of the contract, which are distinct and collateral, respecting the liquidation of damages after breach of the contract. In the case of Clarke v. Gray (5), the Court of Kings Bench, after much consider- ation, determined, that in an action of assumpsit against a car- rier for the loss of goods, the plaintiff might maintain his action, although it was proved on the part of the defendants, that he was not to be accountable for more than 51. for goods, (1) Ramsbottom v. Brewer, Pcake, (4) Ribbans v. Cricket, 1 Bos.& N. P. C. 15. Pull. 264. 2 East, 134. (2) 5 Bos. & Pull. 556. (5) 6 East, 564. (3) lb. and sec 2 Bos. & Pull. 392. 188 Evidence confined to Points in Issue. [Ch. 7. unless entered as such and paid for accordingly, and the goods in question, though above the value of 5/., had not been paid for. The Court was of opinion, that the plaintiff was entitled to retain a verdict, which he had recovered for 51., the limited amount of the damages recoverable under this contract ; that this restriction was a part of the contract, collateral to the entire consideration, and to the act to be done for that con- sideration, and, as it related merely to the liquidation of damages after a breach of the contract, that it might be pro- perly given in evidence to the jury in reduction of damages. It follows from this case, that if the defendant had paid money into court, he would have been allowed to give in evidence the restrictive provision, and that such evidence would not have been inconsistent with the admission of the contract stated in the declaration ; though the contrary was decided in the earlier case of Yate v. Willan(l), on the ground, that the notice, con- taining the restriction, was a limitation of the contract, and that, if no money had been brought into court, the plaintiff must have been nonsuited. But the Court of King's Bench, advert- ing to this case in the before-cited case of Clarke v. Gray, said, " It appears to us, that the case of Yate v. Willan cannot be supported to its full extent; for although the payment of money in that case did admit the contract as stated in the declaration, it did not admit a contract incompatible with the restrictive provision as to the amount of damages to be reco- vered in case of loss." If indeed the provision is of such a nature as will discharge the defendant from all liability under the contract, unless the plaintiff has complied with the con- dition, (as was the case in Clay v. Willan (2), where the goods were not to be accounted for to any amount, unless properly entered and paid for,) that will not merely operate in reduc- tion of the damages, but in bar of the action ; and therefore, in such a case, if the defendant pays money into court on a declar- ation against a carrier in the common form, he cannot after- wards give in evidence such a provision, which entirely nega- tives the contract as stated in the declaration. (1) 2 East, 128. (2) 1 H. Bl. 298. 6 East, 570. culars. Sect. 3.] Evidence confined to Points in Issue. 189 Payment of money into court ought to be proved by the Proof of production of the rule of court, or by the office-copy of the rule. It will not be sufficient to call the attorney, who has taken the money out of court. ( 1 ) Thirdly, as to bills of particulars. — It has been before men- Bill of parti tioned, that a bill delivered, by an attorney to his client for busi- ness done during a certain period, or to a tradesman for goods sold, is strong presumptive evidence against any additional item within the same period. The party is not however pre- cluded from shewing, that items, included in a subsequent bill, have been omitted by mistake in the former bill, and that the business, which is the subject of the charge, has been done by him for the defendant. A bill of particulars, delivered under a Judge's order, is more conclusive : its sole object is to inform the opposite party of what he ought to come prepared to try ; and it will effe ctually precludejjie jj art y, who delivers it, from gi ving evidence of any ot her demand n ot there stated. Thus, where a declaration contained a count for money had and received for the plaintiff's use, and also a demand for horses sold by the plaintiff to the defendant himself, and the bill of particulars specified the last demand alone, it was decided that the plaintiff could not give evidence of horses being sold by the defendant as the plaintiff's agent (2) : for a contract for the absolute sale of horses to the defendant is essentially dif- ferent from a contract to repay money received on a sale of horses by commission ; and the pi'oceeds of such a sale by the defendant could only be recovered under the count for money had and received, which the plaintiff abandoned by confining his bill of particulars to the demand stated in the other count. Where the declaration contains a count on a promissory (1) Israel v. Benjamin, 3 Campb. rule by the defendant does not cn- 40. As to the commencement of title the plaintiff to a reply, 2 Taunt, the practice of paying money into 267. court, see 2 H. Bl. 576. ; l Ld. (2) Holland v. Hopkins, 2 Bos. & Raym. 254. The production of the Pull. 243. 190 Evidence confined to Points in Issue. [Ch.7. note, together with money counts, and the particular of de- mand includes only the note, the plaintiff will not be allowed to prove the consideration for which the note was given ; and if he cannot recover upon the note on account of the want of a proper stamp, he will be nonsuited. (1) And although the plaintiff, on perceiving the defect of his first particular of de- mand, which only mentions the promissory note, delivers a second bill of particulars large enough to comprehend the original debt, yet this will not avail him, unless the second particular has been delivered under a Judge's order. (2) On the other hand, if the plaintiff, either before or after deliver- ing a bill of particulars under a Judge's order, makes a de- mand of payment only for a part of the articles specified in the bill, such a demand will not have the effect of confining him in his evidence, nor supersede the bill of particulars. (3) If the plaintiff, in the former case, could have recovered on the promissory note, he might have recovered interest also, as arising out of the principal and incident to it, though interest has not been specifically claimed in the particular of demand, which gives notice of the amount of the note. (4) In an action of assumpsit, where the defendant pleaded in abatement, that the promises were made by himself and another person jointly, on which plea issue was joined, and on the trial it appeared from the bill of particulars, that some of the articles had been furnished to the defendant jointly with the person named in the plea, Lord Kenyon C. J. held that the plaintiff was bound by his bill of particulars, which sup- ported the defendant's plea; and therefore he nonsuited the plaintiff. (5) Here the articles stated to have been furnished on the joint credit of the defendant and another person, were items of the plaintiff's demand : and they were a necessary (1) Wade v. Beasley, 4 Esp. N. P. (4) Blake v. Lawrence, 4 Esp. N. C. 7. P. C. 147. (2) Brown v. Watts, 1 Taunt. 353. (5) Colson v. Selby, 1 Esp. N. P. (.") Short v. Edwards, 1 Esp. N. C. 451. A rule to set aside the non- P. C. 373. suit was afterwards refused by the Court. Sect. 3.] Evidence confined to Points in Issue. 191 part of his bill of particulars, if he intended to recover pay- ment upon them against jhe defendant. And this seems to distinguish the case from that of Miller v. Johnson (1), which was an action for the sale of some lottery tickets, and, as proof of the sale, the particular of the defendant's set-off was pro- duced, which mentioned the fact of the sale of the tickets to himself: but Ch. J. Eyre, who tried the cause, was of opinion that the particular could not properly be used against the de- fendant for this purpose, and that the fact of sale ought to be proved by other evidence. The use of a bill of particulars is to prevent the inconveni- Error in par- ences, which might otherwise arise from the general and unde- lcu ar ' fined statements in the plaintiff's declaration, and to apprise the defendant of the particulars of the demand, which the plaintiff has against him. If it gives sufficient information to the opposite party to guard him against surprise, it answers the purpose for which it was intended, and will be sufficient' though it may be in some respects inaccurate. Thus, in an action of assumpsit for money paid to the defendant's use, where m the bill of particulars an item for money advanced was by mistake written under the name of A. B. instead of being written under that of C. D. in another part of the particular, and thus appeared to have been advanced to the former, Lord Ellenborough allowed the plaintiff to prove, that the item in question was intended, and must have been understood, to refer to the latter name, but by mere clerical error had been misplaced : and that if the defendant could shew by affidavit, that he had been misled by the plain- tiff's particular, it might furnish a ground for the Court after- wards to set aside that particular sum. (2) So where the work for which the action was brought, was stated by the particu- lar to have been done in a wrong month, when in fact no work had been done, the plaintiff was allowed to give evi- (1)2 Esp. N. P. C. 602. cover rent, where the locality of (2) Day v. Bower, l Campb. 69. n. the premises, not described in the Brown v. Hodgson, 4 Taunt. 198. pleadings, had been misdescribed in See also Davies v. Edwards, 3 Maule the particular ; but the objection was & Sel. 580, an action of debt to re- overruled. 192 Evidence confined to Points in Issue. [Ch. 7. dence of his having done work for the defendant in the other month. ( 1 ) Although the general rule is, that the party shall be con- fined to his bill of particulars, and not admitted to give evidence of any additional demand, yet, under certain circum- stances, in a case where the proofs, produced by the defendant himself, established another claim in his favour, the plaintiff has been allowed to have the benefit of such evidence even beyond the contents of the particular. Thus, where an action was brought by one partner against another to recover a balance due on a statement of accounts, the plaintiff by his bill of par- ticulars confined himself to the balance due on separate ac- counts, in support of which he gave in evidence an account, in which the defendant made himself debtor to a certain amount, and in answer to this evidence the defendant produced an account subsequently rendered by the plaintiff, according to which there appeared to be a balance due to the defendant on the separate accounts ; but on the opposite side of the page, there was a statement also of the partnership accounts, on which the balance was in favour of the plaintiff, and greatly exceeded the balance on the separate account. It was objected that the plaintiff could not recover beyond his particular ; the Court however said, that the defendant himself had given the plaintiff a better case than he was at liberty to make for him- self, and that the plaintiff was entitled to a verdict for all that had been proved to be due to him. (2) The parties after- wards came to a compromise, and agreed upon the sum to be recovered. It is to be observed, that there were peculiar cir- cumstances in this case ; the written paper which the defend- ant gave in evidence as the writing of the plaintiff, could only have been admitted as one entire writing, the whole to be taken together, and was not admissible merely in parts ; the defend- ant could not use in evidence the separate account of the plaintiff without admitting also the partnership account, which (1) Millwood v. Walter, 2 Taunt. (2) Hurst v. Watkis, 1 Campb. 224. 68. Sect. 3.] Evidence confined to Points hi Issue. 193 was written by him on the same paper, since the one part might have explained or referred to the other ; and if the statement of a party is given in evidence against himself, the whole of the statement ought to be received, though all its parts may not deserve the same credit. But it appears to be too much to infer generally from the authority of this case, that, because the evidence adduced by the defendant discloses other items, which might have been included in the bill of particulars, the plaintiff ought therefore to recover on these items, as well as upon those which are specifically mentioned. The case in question must be considered as a particular ex- ception, and not as establishing a rule of so wide and general a nature. The plaintiff, it is presumed, can neither cross-ex- amine the defendant's witnesses to any claim, which he has not comprehended in his particular of demand, nor can he at the trial avail himself of any such claim, though disclosed by the witnesses on the othej* side in their examination in chief. An order for particulars of a set-off calls upon the defend- Delivery of ant to deliver the particulars within a limited time, and, in P ar lcu ar " default thereof, expressly precludes him from giving evidence in support of his cross-demand. This is the general form of such an order. (1) If it does not specify a certain day, before which the particulars are to be delivered, but only requires them to be delivered forthwith, and they are not delivered till many days after, so as to embarrass the plaintiff for want of time, he has a remedy by applying to the court, and he ought not to wait till the time of trial before he objects to the lateness of the delivery ; by accepting the particulars, and not making an application to the court, he waves the objection. (2) The particulars of demand are proved by the production of Proof of par- the judge's order, and by proof of the delivery of the particu- t,cular « lars ; and this delivery will be sufficiently proved by proving (l) Seeforni.in Tidd.App. ch, 22. (2) Lovelock v. Chiveley, Holt, * 10. N. P. C. 552. VOL. I. O 191- Affirmative of Imie proved. [Ch.7. the signature of the party's attorney, or of his agent, on the particulars.. Sect. IV. The Affirmative of the Issue is to be proved. There are several general rules, of great use in ascertain- ing whether the plaintiff or defendant will have to prove the ihsue on the record. One of the most useful of these is the rule, which has been taken as the subject of the present section, namely, that the point in issue is to be proved by the party who asserts the affirmative; according to the maxim of the civil law, " Ei incumbit probatio qui (licit, von qui negat" (1) A few instances will be sufficient to illustrate this rule. In an action for a loss, occasioned by barratry in the master of a ship, where it was objected by the defendant, that the plaintiff ought to prove, that the master was not also the owner or freighter, and that he did not act under the direction of the person who was, (in which case barratry could not be com- mitted,) the Court held, that, if the master was owner or freighter, or acted under the direction of the owner, the bur- then of proving that fact lay on the defendant. (2) " It was not incumbent on the plaintiff," said Mr. Justice Buller, " to prove that the captain was not the owner, for that would be calling on him to prove a negative ; and if the captain were not the owner, it is immaterial who was ; proof of that fact, which operates in discharge of the other party, lies upon him." If the plaintiff bring an action against the defendant for some act done by him, and the defendant plead the general issue, (1) Justin. Pand. Lib. 22. Tit. 5. (2) Ross v. Hunter, 4 T. R 35. De Probationibus, Art. l, 2. ~s. 18 Sect. 4.] Affirmative of Issue proved. 195 and in bar of the action plead further an illegal act done by the plaintiff, which would justify him in doing the act which is the subject of the suit, here the plaintiff will have to prove the whole of his case in the first instance : he ought not only to prove his right of action, but also negative the act imputed to him by the defendant's plea. Thus, in the case of Rees v. Smith (1), which was an action of trespass for breaking into the plaintiff's house, and seizing his goods, and the defendant pleaded, besides the general issue, a fraudulent removal of the goods to avoid a distress for rent, the plaintiff at first only proved the trespass, the defendant then gave evidence in sup- port of his plea, after which the plaintiff's counsel offered general evidence, to negative the supposition of a fraudulent removal, but Lord Ellenborough rejected the evidence. The general rule, he said, is, that when the defence is known, by pleading, or by means of notice, the counsel for the plaintiff is bound to open the whole case in chief, and cannot proceed in parts. If, added Lord Ellenborough, any one fact be ad- duced by the defendant, to which an answer can be given, the plaintiff must have an opportunity given for so doing; but this must be understood of a specific fact : he cannot go into general evidence in reply to the defendant's case. There is no instance, in which the plaintiff is entitled to go into half his case, and reserve the remainder." Where one party charges another with a culpable omission Charge of or breach of duty, the general rule, above laid down, does not , e;lc ' ° apply. In such a case, the person who makes the charge is bound to prove it, though it may involve a negative ; for it is one of the first principles of justice, not to presume that a person has acted illegally, till the contrary is proved. Thus, in a suit for tithes in the Spiritual Court, where the defendant pleaded, that the plaintiff had not read the thirty-nine articles, the Court called on the defendant to prove the fact, though a negative: upon which, he moved the Court of King's Bench for a prohibition ; but it was refused, for the reason already (1) 2 Starkie, N. P. ('. 50. o 2 I QG Affirmative of Issue proved. [Ch.7- stated. (1) In an action by the owner of a ship against the defendants, for putting on board a quantity of combustible and dangerous articles " without giving due notice thereof," the Court held, that it lay upon the plaintiff to pro^e this nega- tive averment. (2) In an action, for the recovery of penalties, under the hawkers' and pedlars' act (3), against a person charged with having sold goods by auction, in a place in which he was not a householder, some proof of this negative, namely, of the defendant not being a householder in the place, would be necessary on the part of the plaintiff. And in an action of covenant against a lessee, where the breach is, in the language of the covenant, that the defendant did not leave the premises well repaired at the end of the term, the proof of the breach lies upon the plaintiff; this breach, though in terms it involves a negative, admits of as easy proof, as if it had been expressed in the affirmative. On the trial of an indictment on the statute 42 G. 3. c. 107. s. 1., which makes it felony to course deer on an inclosed ground " without the consent of the owner of the deer," it ought to appear from the evidence produced on the part of the prose- cution, that the owner had not given his consent. According to the report of a late case (4-), it seems to have been thought necessary to call the owner of the deer, for the purpose of disproving his consent; and the owner not being called, the jury were directed to find a verdict of acquittal. The parti- cular circumstances of that case are not stated in the report; and it is not easy to discover upon what principle such evi- dence was held to be indispensable. If the circumstances were of such a nature as to raise a reasonable presumption, that what had been done had not been done illegally, (which, how- ever, it is difficult to conceive.) then, doubtless, the direct evi- (1) Alonke v. Butler, 1 Roll. Rep. (2) Williams v. East. hid. Comp. 85., cited by Lord Ellenborough, 3 East, 195. 199. R. v. Hawkins, 3 East, 199. Powell v. Milbank, 10 East, 211. 2 Black. Rep. 851. S.P. 5 Wils. (3) St. 29 G. 5. c. 26. s. 4. Z55. S. C. See also Lord Halifax's (4) R. v. Rogers, 2 Campb. 654, case, Bull. N. P. (298), R. v. Combs, by xMr. Justice Lawrence. See R Comb. 57. Gdb. Ev. 132. v. Mallinson, 2 Burr. 679. R *• Corden, 4 Burr. 2279. Sect. 4.] Affirmative of Issue proved. 197 deuce of the owner would be necessary to repel that presump- tion, and to establish the charge against the prisoner. But, as a general proposition, it may be safely laid down, that the non- consent of the owner may be properly inferred from the conduct of the prisoner, and the circumstances under which the act was done, such as the secresy of the proceedings, the attempt to conceal, the disguise of the prisoner, or his resistance, or any other circumstance of guilt; and that the evidence of the owner, to negative the supposition of his consent, is not more strictly necessary on this prosecution, than on a charge of larceny, in which it is an essential ingredient, that the goods should have been taken against the owner's consent ; and yet the owner is never questioned as to that point, though he is often called to prove the property. Where the presumption of law is in favour of the defend- Presumption ant's plea, there it will be incumbent on the plaintiff to dis- prove the plea, though in so doing he may have to prove a negative. As, in an action on a bond, if the defendant plead payment, and the bond appears to have been outstanding for twenty years, the law presumes that the principal debt has been discharged ; this legal presumption of itself affords a defence, in support of the plea; and, to repel the presumption, it will be necessary for the plaintiff to produce evidence, from which the contrary presumption of non-payment may be in- ferred ; such as evidence of payment of interest, or of an ad- mission of the debt. Where the question is on the legitimacy of a child, if a legal marriage is proved, the legitimacy is pre- sumed, and the party, who asserts the illegitimacy, ought to prove it ( 1 ) : but if there has been a divorce a mema et thoro, the presumption is, that a* child born afterwards, (that is, beyond the time of gestation,) is illegitimate (2) ; it will be suf- ficient, therefore, in such a case, to prove the divorce ; and this will call upon the opposite party to establish the legitimacy by proof of access. ( 1) See ante, p. 1.54. Margaret, 1 Salk. 123. See ante, (2) Parishes o'i St. George and . s i. p. \$j. Affirmative of Issue proved. [Ch. 7- Where the issue is upon the life or death of a person, the proof of the fact lies upon the party who asserts the death, for the presumption is, that the party continues alive, until the contrary be proved . ( 1 ) But where no account can be given of the person, this presumption of the duration of life ceases at the expiration of seven years from the time when he was last known to be living (2) ; a period, which has been fixed, from analogy to the statute of bigamy (3), and the statute concern- ing leases determinable on lives. (4) * Thus, in the before- cited case of Doe v. Jesson, where it was proved, that a person went to sea at a particular time, which was the last account given of him, his death was presumed at the end of seven years from that time. And therefore, where the defend- ant pleaded coverture in bar of an action of assumpsit, and proved her marriage, and that her husband went abroad twelve years before the commencement of the action, this was held not to be sufficient, and the defendant was required to prove that her husband was alive within seven years (5) ; without such additional proof, the jury might have presumed the death of the husband at the time of the promise, which would have been against the defendant's plea. (l)Throgmorton v.Walton, 2 Roll. (5) St. 1 J. I.e. 11. s. 2. Kep. 461. Wilson v. Hodges, 2 (4) St. 19 C. 2. c. G. East, 512. (5) Hopewell v. De Pinna, 2 f2) Doe, clem. George v. Jesson, Cair.pb. 13. Doe, clem. Banning v. 6 East, 80. 85. Doe, dem. Lloyd v. Griffin, 15 East, 295., stated infra. Deakin, 4 Barn. & Aid. 454. Roe v. Hflsland, 1 Black. 404. * The statute of bigamy contains a proviso, that " it shall not extend to any person, whose husband or wife snail be continually remaining be- yond the seas by the space of seven years together, or whose husband or wife shall absent him or herself, the one from the other, by the space of seven years together within the king's dominions, the one of them not knowing the other to be living within that time." Tt has been held, that the last clause, (namely " the one of them not knowing," &c.) relates only to the 2d clause, and not to the first respecting commorancy beyond the seas: and, consequently, that the second marriage is not felonious, where either of the parties is beyond the seas for seven .cars, though the party in this country had notice that the other was living. 5 Inst. 88. 1 Hal. P. C. 692. 4 Bl. Com. 164. Sect, k] Affirmative of Issue proved. 199 It is a general rule of evidence, that the burthen of proof Fact pecu- lies on the person, who has to support his case by proof of a t hl knowledge fact, which lies more peculiarly within his own knowledge, or of a party. of which he is supposed to be cognizant. ( 1 ) In an action by the assignees of a bankrupt, where the defendant, under a notice of set-off, gave in evidence promissory notes dated before the bankruptcy, the Court held that he ought also to show, that the notes came to his hands before that time. (2) In an action on the game laws, though the plaintiff must aver, in order to bring the defendant within the act, that he was not duly qualified; yet it is not necessary to disprove his qualifications ; but it will be for the defendant, if he can, to prove himself qualified. (3) And it has lately been determined by the Court of King's Bench, that the same rule of evidence applies as well to proceedings on informations before magis- trates, as to actions for penalties ; and that a conviction, which specifically negatives the several qualifications mentioned in the statute, is sufficient, without staling evidence to negative those qualifications. (4) If such negative evidence were neces- sary to support the information, it would scarcely be possible in any case to convict, in consequence of the great number N of distinct heads of qualification, which are enumerated in the statute. On the other hand, all the qualifications specified are peculiarly within the knowledge of the qualified person. If he is entitled to any such estate as the statute requires, he may prove it by his title-deeds, or by the receipt of the rents and profits; or if he is the son and heir apparent, or servant to any lord or lady of a manor, and appointed to kill game, that will be a good defence. All these qualifications are peculiarly within the knowledge of the party himself; but (1) 4 Barn. & Aid. 140. vid. infra, 1 T. R. 649. Heath J. in Jelfs v. sect. 6. and 5 Maule & Selw. 21 1. Ballard, 1 Bos. & Pull. 4GS. Cham- (2) Dickson v. Evans, 6 T. R. 57. In: /. in Frontine v. Frost, 2 Bos. & See other examples in criminal cases, Pull. 307. ad'm. per Cur. in K. v. 2 East, P. C. 782. Stone, l Fast, 650. (.3) By Lord Mansfield, in Spiercs (4) R. v. Turner, 5 Maule & Selw. v. Parker, l T. K. 144. Buller J. in 206. o 1- 200 The Substance of Issue proved. [Cli. 7. the prosecutor lias probably no means of proving a dis- qualification. Although, in general, it is necessary for a party, who brings an action, to prove all the material facts, which he alleges in support of his claim, yet where the defendant pleads a fact within his own knowledge in discharge of himself, and the plaintiff still insists on the defendant's liability, alleging the same fact in his replication, there the burthen of the proof lies on the defendant, not upon the plaintiff. Thus in action of assumpsit, where the defendant pleaded infancy, and the plain- tiff replied, that " the defendant, after he had attained his full age, ratified and confirmed the promise and undertaking," the Court held, that the mere proof of a promise to pay was suffi- cient on the part of the plaintiff; and that it was for the de- fendant to prove the personal incapacity to contract, on which he grounded his defence, and which lay so peculiarly within his own knowledge. ( 1 ) Sect. V. The Substance only of the Issue need be proved. The next general rule to be considered is, that on any issue it will be sufficient to prove the substance of the issue. It is a general principle of evidence, that all the material facts in the declaration, which are put in issue, must be established by legal proof. Another principle is. that the nature and ex- tent of the proof will depend upon the manner, in which the alleged facts are introduced ; allegations, which are merely matters of inducement, do not require such strict proof as those which are precisely put in issue between the parties. (2) (l) Bofthwick v, Carruthers, i T. (j) By Chauibre J. l New. Rep. R. 64S. 210. Sect. 5.] The Substance of Issue proved. 201 Evidence, as Lord Mansfield used frequently to observe, is always to be taken with reference to the subject-matter to which it is applied, and to the person against whom it is used. There are a great variety of examples, both in civil and cri- minal cases, which might be cited in illustration of the rule now under discussion. The object of the present section will be to make a selection of such examples, as appear most generally useful. And it will not be foreign to the subject, afterwards to consider the nature of material and immaterial averments, and the doctrine of variances. In an action on a bond, if the defendant plead solvit ad diem, Examples in the issue will be maintained by proof of payment before the ap- pointed day ; and payment to a third person by the appoint- ment of the plaintiff will be substantially payment to the plaintiff himself. In an action of waste, for cutting down a certain number of trees, proof that the defendant cut a smaller number is sufficient; for, in effect the issue is waste or no waste. (1) And in an action of covenant, when the breach assigned is, " that the defendant has not used a farm in a husbandlike manner, but on the contrary has committed waste," &c. to which the defendant pleads, " that he has not committed waste," &c, but used the farm in a good and husbandlike manner, and issue is taken upon this, the plaintiff cannot give evidence of any unhusbandlike treatment of the farm, not amounting to waste ; for the issue is narrowed to this point. (2) In an action against a sheriff, where the plaintiff declared, that he had J. 8. and his wife in execution, and that the defendant suffered them to escape, and a special verdict was found, that the husband alone was taken in execution, (the (1) Co. Lit 232. a. -2 Roll. Ab. (_') Harris v. Mantle, 5 T. R. 70G. tit. Verdict, C. 40. Ilobart, 507. The Substance of Issue proved. [Ch. ?'. execution being for a debt due from the wife before coverture,) and that he escaped, the Court held that the substance of the issue was found, and gave judgment for the plaintiff". ( 1 ) In an action on a simple contract, whether assumpsit or debt, the plaintiff may prove and recover a less sum than he has demanded in the writ ; and for this reason, it has been held, that a declaration in such action is not bad for specifying a less sum, though the breach assigned is the non-payment of the whole sum demanded. (2) In actions for slander, the courts used at one time to hold, that the plaintiff was bound to prove the words precisely as laid ; but it is now settled that it will be sufficient, if the plaintiff' prove some material part of the words alleged on the record. If the declaration contain several actionable words, the plaintiff" will be entitled to a verdict on proving some of them. (3) In an action of replevin, where the defendant avowed taking the cattle as damage-feasant, the plaintiff pleaded in bar, that one W. was seised of a house and land, &c, whereto he had common, &c, and demised the same to him to hold from a certain day next before for a year ; the avowant tra- versed the lease modo et forma, upon which issue was taken ; the jury found a special verdict, that W. made a lease to the plaintiff" on the day stated for a year ; and the plaintiff' had judgment, for although this is not the same lease as pleaded, (since this begins on the day, and the other not so soon,) yet the Court said, the substance of the issue is, whether or not the plaintiff had such a lease, as by force thereof he might have common at the time, and this appeared to be the case (1) Roberts and Wife v. Herbert, (s) Compagnon v. Martin, 2 Bl. 1 Sid. 5. S. C. cited Bull. N. P. 299. Rep. 790. See vol. 2. Action for (2) M'Quillin v. Cox. l H. Bl. 249. Slander. Sect. 5. J The Substance of Issue proved. %Q$ here. (1) But, the Court added, it (the verdict) must not de- part altogether from the form of the issue ; for if it had been found, that he had right of common by a lease from another, or as an owner, that had been clearly out of the issue both in matter and form. And they admitted, that if the plaintiff had declared thus in eject ionejinncu, it would have been clearly against him ; for there he demands and recovers the term, and therefore must make his title truly. In the principal case, as the reporter observes, the jury might have found directly against the plaintiff 11011 dimisit modo et forma, and could not safely have found a general verdict for him ; but the jury having found specially, the Court gave judgment for the plaintiff. (2) If the issue joined between the parties is, whether A. and B. were churchwardens, proof that one was, and not the other, avouUI not be sufficient. (3) So, where the declaration averred, that the plaintiff was constable of a particular parish, and that he was assaulted in the execution of his office as constable, and it appeared on the evidence, that he had been sworn in to serve for a whole liberty, of which the parish formed a part, this was held to be a material variance. (1) The same general rule of evidence applies, if possible, still Examples in more strongly to the case of criminal prosecutions than to civil suits. It is an universal principle, which runs through the whole of the criminal law, that it will be sufficient to prove so much of the indictment, as charges the defendant with a substantive crime. If the indictment charges, that the defend- ant did and caused to be done a particular act, it is enough to prove either the one or the other. If the defendant is charged with composing, printing, and publishing a libel, he may be convicted only of the printing and publishing. (5) (1) Pope v. Skinner, Hob. 72. S. (4) Goodes v. Wheatlv, 1 Campb. C. cited Bull. N. P. 500. Forty v. 2.31. finbcr, 6 East, 434. (5) R. v. Hunt, 2 Campb. 5S3. (2) S. C. cited as to this point, R. v. Williams, ib. 646. Sec also Com. Dip;, tit. Pleader, S. 7. cases in 2 East, P. C. 515. 516. (3) Bull. x\. P. 2 East, 440. Read- State Trials. Fost. 8. shaw v. Wood, 4 Taunt. 15. Com. (4) Co. Lit. 282. a, b. 2 Boll. Dig. tit. Record, (Q. Philips v. Ab. 6S7. 689. tit. Verdict, (N). Shaw, i Barn. & Aid. 435. Com. Dig. tit. Pleader, (S. 12.) (2) 5 T. R. 620. P 4 l 2l6 The Substance of Issue proved. [Ch. 7. plaintiff' traverses the cause of justification, and at the trial the defendant proves the trespass on the same day, there the plaintiff cannot give evidence of an assault on another day. ( 1 ) And though the defendant should prove the assault of the plaintiff* on another day, yet the plaintiff, after having made such a traverse, cannot prove another assault on a different day. (2) Variance in The same certainty of description, as to the place or parish, place. . .,,... T is not so necessary m local as in transitory actions. In an action for non-residence, where the parish was described as St. Ethelburg, and proved to be St. Ethelburga, it has been held, that the variance was fatal (3) ; so also it was, in an action of ejectment, where the premises were described as situate in the united parishes of A. and J5., but were proved to be in the parish of A., and the two parishes were united only for the single purpose of maintaining the poor. (4) But where the premises were described as lying in the parish of A. and B., and it appeared in evidence that part lay in A. and part in B., but that there was no such parish as the parish of A. and B. t the Court held, that the word parish was mere surplusage, and that the plaintiff was entitled to recover the lands in B. as well as in A. (5) So, where the premises were laid to be in the parish of Farnham, and were proved to be in the parish of Farriham Royal, but it did not appear that there were two Farnhams, the Court held that the variance was immaterial. (6) But if there had appeared to be another Farnham, there would have been an uncertainty. (7) (1) Downes v. Skrymsher, Brownl. (5) Goodtitle dem. Bremridge v. 233. 2 Roll. Ab. 687. I. 30. S. C. Walter, 4 Taunt. 671. See Sir C. (2) 2 Roll. Ab. 680, tit. Evidence, Morgan v. Edwards, 6 Taunt. 394. (C), Art. 3. Thornton v. Lyster, The case of Wilson v. Clerk, there- Cro. Car. 514. contra, (Jones J. fore, (l Esp. N. P. C. 273.) seems doubting,) Roll. Ab. lb. See 2 doubtful. Saund. 5. note 5. ( 6 ) Doe dem. Toilet v. Salter, (3) Wilson q. t. v. Gilbert, 2 Bos. 13 East, 9. &Pul. 231. (7) Taylor v Hooman, Holt, (4) Goodtitle dem. Pinsent v. N. P. C. 523. Lammiman, 2 Campb. 27-J. Sect. .5.] The Substance of Issue proved. 217 In an action for use and occupation, where the premises were proved to lie in the parish of St. Mary Lambeth, but were described in the declaration as in the parish of Lambeth, which last was the name generally known, the variance was held to be immaterial ( 1 ) : and this has over-ruled an older case, where a variance between the parish of Chelsea, and the parish of St. Luke's Chelsea was held at nisi prius to be fatal. (2) Although it is not necessary, in this action, to describe where the premises lie (3), yet if they are described in the declaration as situate in a certain parish, and are proved to be in a different parish, the plaintiff cannot re- cover. (4) Where the parish or place mentioned is mere matter of venue, and not of local description, (as, in an action for a nu- sance defamatory to the plaintiff's character, where the declar- ation stated, that the defendant erected the nusance, complained of, in the parish of A, in a street adjoining to the plaintiff's house, &c.) the actual situation of the house is immaterial, and the plaintiff may recover, though it should be proved that there is no such parish. (5) The same rule, which has been laid down with respect to civil actions, applies also to the case of an indictment; on the trial of which, it will be sufficient to show, that the offence was committed in some place within the county or other division; and it seems to be agreed, says Mr. Serjt. Hawkins (6), that the mistake of the place, in which an offence is laid, will not be material upon the evidence, on the plea of not guilty, if the fact be proved at some other place in the same county. Al- though the offence must be proved to have been committed in the county, where the prisoner is tried, yet, after such proof, (!) Kirtluiul v. Pounsett, 1 Taunt. East, 226.; 2 Campb. 3. S. C. For 570. other examples, see Drewry v. Twiss, (2) Ami sec 3 Taunt, l 40. 4 Term Rep. 558. Frith v. Gray, ib. (3) King v. Fraser,6 East, 548. 561. Comp. of Mersey [it Irwell (4) (jiicot v. Caumont, 5 Campb. Nav. v. Douglas, 2 East, 497. Ila- 235. (> East, 552. mcr v. Raymond, 5 Taunt. 789. (5) Jefferies v. Duncombc, n (6) B. 2. ch..35. s. 84. '218 The Substance of Issue proved. [Ch. 7. the acts of the prisoner in any other county, tending to esta- blish the charge against him, are properly admissible in evi- dence. This has been determined to be the rule in cases of high treason, and must equally apply to cases of conspiracy and felony. Where a felony is stated to have been committed at a certain place named in the indictment, and there is no such place in the county, the indictment is void. (1)* Sect. VI. The best Evidence is to be produced, which the Nature of the Case admits. The next general rule is, that the best evidence must be given, of which the nature of the thing is capable. (2) The true meaning of this rule is, not that courts of law re- quire the strongest possible assurance of the matter in ques- tion, but that no evidence shal l be given , which from the (1) By 9 Hen. 5. st. 1. c. ). made Lamb. Just. B. 2. ch. 5. p. 391. perpetual by stat. 18 Hen. 6. c. 12. Hawk. P., C. B. 2. c. 25. s. 84. (2) Gilb. Ev. is. Bull. N. P. 293. * The stat. 9 H. 5. st. 1. c. 1. after reciting, that many people by malice cause often the King's liege people to be appealed orlndicted in divers coun- ties of treasons or of felonies, supposing by the said appeals or indictments that the said treasons and felonies were done in a certain place in such county, where the indictment is made, or such place as is declared by such appeals, whereas there is no such place in the same county, enacts, that the process of the same be void and holden for none. In a case of felony, tried before Mr. Justice Lawrence, reported in 3 Campb. 75., an objection was taken, on the part of the prisoner, that there was not in the county any such parish as that laid in the indictment j in answer to which, it was contended on the other side, that as the jury are to come from the body of the county, it is no longer necessary that any parish should be laid in the indictment, Mr. Justice Lawrence reserved the objection for the opinion of the Judges; but, as the prisoner was acquitted, it became unnecessary to consider the point. It may be observed with respect to what was said in answer to the objection, that the challenge for hundreders, though now in disuse, (see 2 Hale, P. C. 272.264.) does not appear to have been taken away. The statute 4 & 5 Ann. c. 16. s. 6 & 7. and st. 24 G. 2 c. is. s. 5., which relate to the awarding of a venire facias of the body of the county, do not extend to indictments for treason or felony. And see Co. Lit. 125. a. n. l. R \ Burridge, 1 Stra. 593. Sect. 6. J The best Evidence to be produced. ( 219 nature of the thing supposes still g reate r evidenc e behind in the part y's possession or power ; for such evidence is altogether- insufficient, and proves nothing, but carries with it a presump- tion contrary to the intention for which it is produced. ( 1 ) Thus, if a party offer a copy of a deed or will, where he ought to produce the original, this raises a presumption, that there is something in the deed or will, which, if produced, would make against the party ; and therefore the copy in such a case is not evidence. But if he prove the original deed or will to be in the hands of the adverse party, who refuses to produce it, although he has received a regular notice for that purpose, or prove, that the original has been lost or destroyed without his default, no such presumption can reasonably be made, and a copy will be admitted, because then such copy is the best evidence that can be produced. (2) On the trial of a person charged with having wilfully, and with intent to injure an insurance company, set fire to a house, which he had insured at the company's office, it would not be allowable to prove the insurance by means of an entry in the company's books, unless in the first instance a regular notice has been given to the prisoner to produce the policy at the, trial (3); but, if such notice has been given, then the entry in the insurance books would be admissible. So if it should be material for a plaintiff, in reply to the case of the defendant, to prove the contents of a registered deed, which is in the defendant's possession, the memorial of the deed, or other secondary evidence, would not be admissible for that pur- pose, unless there has been previously a notice to the de- fendant to produce the original (4) ; or, if the one party would avail himself of a letter sent by him to the other party, a (1) Gilb. Ev. 15. as to the cases, in which a notice to (2) Gilb. Ev. 1,5. Bull. 295. Gar- produce writings maybe dispensed nons v. Swift, 1 Taunt. 507., stated with. post. Henry v. Leigh, 5 Campb. (3) R. v. Doran, 1 Esp. N. P. C. 499., stated post. Bee also, post, 127. part 2. ch. 8. sect. 2. as to the ad- (4) Molten q. t. v. Harris, 2 Esp. niissibility of secondary evidence in N. P. C. 518. the case of written instruments ; and VOL. I. * p 6 220 The best Evidence to be produced. [Ch. 7- previous notice ought to be given to produce the letter, before secondary evidence of its contents can be received. Parol evidence is not admissible to prove the contents of a licence to trade granted from the crown, though the licence is lost, because there must be some register of it at the secretary of state's office, and that register would be better than parol evidence. (1) Nor is parol evidence admissible to prove the taking of the oaths required by the toleration act : as the fact would be regularly entered on the records of the court, in which the oaths are supposed to have been taken. (2) So, the discharge of a party under an insolvent debtor's act cannot be proved by parol evidence, not even by proof of the acknowledg- ment of the party ; for the discharge may have been irregular and void ; and the party may be mistaken ; a judicial act of this kind can only be proved by calling the clerk of the peace, and giving in evidence the judgment or adjudication of the court for the debtor's discharge. (3) Even jin orderjinde r the se al of the court, reciting lhajLiliejgourt hajd_ajjudged th at the debtor should be dischar ged, and purporting to be an order to the marshal for his discharge, will not be the pri mary and best proof of suc h^djudication^jOjLajp^ear_to^e^the re gu lar practi ce of the court to make ent ries of the judgm ents in the books of the courts (4) The general > rule, which we are now considering, is strongly illustrated by the case of Williams v. the East India Company (5), where the question was, whether the defendants had put on board the plaintiff's ship some articles of a combustible and dangerous kind, without giving clue notice of their nature. It appeared in evidence at the trial, that the goods were delivered by the officer of the de- (1) Rhind v. Wilkinson, 2 Taunt, the defence was. that the plaintiffhad 237. Eyre v. Palsgrave, 2 Campb. been so discharged after the cause of 605. action had accrued, and before the (2) R. v. Hube, Peake, N. P. C. commencement of the suit. 131. (4) Doe dcm. Robinson v. Barton, (.5) Scott v. Clare, 5 Campb. 256., 2 Starkie, N. P. C. 474. by Lord Ellenborough. Action of (5) 3 East, 193. 201. assumpsit ; the general issue pleaded ; Sect. G.] The best Evidence to be produced. 2%[ fendants, with a written order to the plaintiff to receive them, in which order nothing was said as to their nature; that they were received by the chief mate of the plaintiff's ship, who had since died ; and that no other person was present at the time of the delivery. It was further proved, by the captain of the ship and the second mate, that no communication had been made to either of them, nor, as far as they knew, to any other per- son on board. Upon this evidence the plaintiff, who had to prove the negative, was nonsuited, on the ground, that he had not given the best evidence of the want of notice, which it was in his power to produce, by calling the company's officer, who delivered the articles on board. And the nonsuit was after- wards affirmed by the Court of King's Bench. " The best evidence," said Lord Ellenborough, in delivering the opinion of the Court, " should have been given, of which the nature of the case was capable. The best evidence was to have been had, by calling, in the first instance, upon the persons im- mediately and officially employed in the delivering and in the receiving of the goods on board, who appear in this case to have been the first mate, on the one side, and the military conductor, the defendant's officer, on the other ; and though the one of these persons, the mate, was dead, that did not warrant the plaintiff" in resorting to an inferior and secondarv species of testimony, (namely, the presumption and in- ference arising from a non-communication to the other per- sons on board,) as long as the military conductor, the other living witness, immediately and primarily concerned in the transaction of shipping the goods on board, could be resorted to ; and no impossibility of resorting to this evidence, the pro- per and primary evidence on the subject, is suggested to exist in this case." It has been already observed, that although the best evi- dence is to be given which the nature of the case admits, yet the strongest possible assurance of a fact is not required. If a deed, for example, is attested by several subscribing wit- nesses, the execution may be proved by one of them : or, if none of those witnesess can be produced, proof of the signa- 2$9 The best Evidence to be produced. [Ch. 7- ture of one witness will be sufficient ; for the proof is, as far as it goes, complete, and not inferior, in its kind, to any that can be produced ; nor can it be inferred merely from the ab- sence of further proof of the same kind, that such additional proof would be inconsistent with that already produced. So, to prove the plaintiff's demand satisfied, the defendant may mve evidence of an admission by the plaintiff to that effect, though it should appear that the plaintiff also signed a re- ceipt, and it may be said the receipt would be more satisfac- tory proof. ( 1 ) And, where an agent for the plaintiff made a verbal agreement with the defendant, and afterwards put it down in writing, (which was not signed by the parties,) as a memorandum to assist his recollection, such writing is not the best evidence, nor indeed any evidence of the agreement, though it may be used by the agent for the purpose of refresh- ing his memory. (2) So, if parol evidence should be offered to prove the terms of a tenancy, it is no objection that there is some written agreement relative to the holding of the lands in question, unless it should appear that the agreement was between the landlord and tenant, and that it continued in force down to the period, to which the parol evidence ap- plies (3); nor would it be a sufficient objection against the admission of parol evidence, that a written memorandum, specifying the terms, had been assented to by the defendant, if he had not signed the memorandum, as he had stipulated to do; for the memorandum would not become an agreement, until executed by the defendant; it contained a mere proposal, which had not been accepted. (4) For the purpose of proving hand-writing, it will not be ne- cessary, in the first instance, to call the supposed writer him- self; the evidence of persons, well acquainted with the general character of his writing, who, on inspecting the paper, can (1) Jacob v. Lindsay, 1 East, 460. (.3) Doe d. Wood v. Morris, 12 Smith v. Young, l Campb. 439. East, 237. Doc v. Pearson, 12 East, (2) Dalison v. Stark, 4 Esp. N. 239. n. P. C. 165. l East, 4 GO. Rams- (4) Doe dem. Bingham v. Cart- bottom v. Tunbridgc, 2 Maule & wrigM, 3 Barn, & Akf. 526 Sel. 454. Sect. 6.] The best Evidence to be produced. 223 say, that they believe it to be his hand-writing, will of itself be sufficient. Such evidence is not in its nature inferior or se- condary ; and though it may generally be true, that a writer is best acquainted with his own hand-writing, and therefore his evidence will generally be thought the most satisfactory, yet his knowledge is acquired precisely by the same means as the knowledge of other persons, who have been in the habit of seeing him write, and differs not so much in kind as in degree. The testimony of such persons, therefore, is not of a secondary species ; nor does it give reason to suspect, as in the case where primary evidence is withheld, that the fact, to which they speak, is not true. It is the common practice to receive such evidence in ordinary cases ; as, where the signature of a magistrate, on a deposition taken before him, is to be proved, it is usually proved by a witness acquainted with the general character of his hand-writing, without the evidence of the magistrate himself. But where the object, which a party has in view, is to disprove hand-writing and prove it forged, the most authentic and most satisfactory trial of the question seems to be, by resorting to the information of the supposed writer himself, in preference to the evidence of third persons, however well acquainted such persons may be . with the general style of the supposed writer's hand-writing, (supposing, of course, that he is not disqualified by in- terest, as a party to the suit, nor for any other cause in- competent ;) for a genuine and true signature may possibly, either from accident or intention, be a deviation from the general form or character of the writer's style, in which case a witness, who judges merely from the impression produced on his mind by such general character, is likely to be deceived, and would probably conclude, that a signature, so unlike the usual style of writing, must have been forged : whereas if the person, by whom the signature professes to be made, were himself to be called as a witness, he might be able to state some peculiar circumstances within his own know ledge, and give such decisive pi'oof, as to the signa- ture in question, as at once to remove all doubt respecting its genuineness. 0-j 1. The best Evidence to be produced. [Ch. 7. It has been held, in a prosecution for the forgery of a bank note, that the signature, in the name of the cashier of the bank, may be disproved by any person acquainted with his hand-writing (1), though the cashier himself would not be an incompetent witness. (2) And it is the common practice to disprove the signature of the entering bank-clerk by this sort of evidence. In such prosecutions, it may be observed, there is commonly some other proof of forgery, independent of the forgery of the signature, (in the texture of the paper, for instance, in the engraving, the ink, the date, &c.,) which additional proof would very materially confirm the other part of the case, as to the forgery of the signature ; however, it must be admitted, if the proof of the forgery of the signature, by the evidence of persons acquainted with the hand-writing of the cashier or entering clerk, were in its own nature in- competent and inadmissible, as being secondary proof, the additional evidence of the forgery in other parts, confirmatory as it may be, would certainly not have the effect of rendering such proof admissible. On what specific ground this evidence was admitted in the case, above referred ' to, — whether on account of the inconvenience, likely to result from requiring the attendance of the bank clerk, who might possibly be equally wanted in similar prosecutions in other places at the same time — or whether on the supposition, that the signatures of an entering clerk, who had merely signed officially, and was not in any degree personally interested, were not likely to vary, and would generally preserve an uniform and unvaried style of writing — or whatever other reason might be assigned — the short note of the case, supplied by Mr. East, does not enable the reader to decide. But, at least, that case does not appear to have decided the general proposition, that, in any prosecution for forgery, where the person, whose hand- writing is supposed to be forged, would be a competent witness, the writing may be disproved by others who are ac- (l) By Le Blanc J., in Hughes's (2) Newland's case, 17S4, 2 East, case, 1802. 2 East, P. C. 1002. Exe- P. C. 1001. ter Sp. Ass. Sect. 6.] The best Evidence to be produced. 225 quainted with the character of his hand-writing, without the concurrent testimony of that person himself. And in an earlier ca se, in which the capta in of a ship was ch arged wit h havingniade alte rations in a tradesman's r eceip t, with intent to defraud the ship-owner ( 1 ), two judges (Mr. Justice Gould and Mr. Justice Yates) held, that the evidence of a partner of the tradesman could not be admitted to prove the altered parts of the receipt to be forged, but that the evidence of the person himself, in whose name the alterations purported to have been made, (who was not proved to be dead, and who would have been a competent witness,) was indispensably necessary. They considered that his testimony would be the Tjest, as he could certainly give the most satisfactory evidence on the point, whether the alterations in his bill were his own corrections, or were forged by some other hand, whereas the partner could only speak from opinion : and it was an esta- blished rule, they said, that in all cases the best evidence should be given, which the nature of the case will admit; and less than that can never be received, if it appear that better might have been supplied. The rule, which requires the best evidence to be produced, is dispensed with in some particular cases. 1. Where it is necessary to prove an entry in a public book, i. Entry in the original need not be shewn ; but, from a principle of general P ubllc book - convenience^ajn^5ca^ne^djcpp^jivniJbe admitted. (2) 2. In the case of all peace-officers, justices of the peace, 2. Proof of constables, &c. it is sufficient to prove, that they acted in these b ~ ns a P ubIlc characters, without producing their appointments. (3) And in the case of officers of any branch of the revenue, where the question is whether they are such, proof of being reputed to be so, or of having exercised the office, is good evidence of the (1) Capt. Smith's case, C.B. 1768. Wise, 4 T. R. 366. By the opinion 2 East, P. C. 1000. of all the judges in the case of the (2) See infra, part 2. ch. 6. adjinem. Gordons, tried for murder in 17S9, (3) By Buller J. in Berryman v. Leach, Cr. C. 585. VOL. I. Q 22(3 The best Evidence to be produced. [Ch. 7. fact, on any indictment, information, action, or prosecution. (1) So, on an indictment for perjury, committed by the defendant before a surrogate in an ecclesiastical court, proof that the person, who administered the oath, acted as surrogate, has been held to be sufficient prima facie evidence of his appoint- ment and authority. (2) On an information against a military officer for making false returns, it is sufficient to prove, that he acted in the character alleged in the charge, without adducing direct evidence of his appointment. (3) And in an action for penalties against a collector of taxes, proof of his collecting the taxes is sufficient proof of his being collector, though his appointment is by warrant under an act of par- liament. (4) 3. Strict evi- dence dis- pensed with, by admission of party. 3. There are other instances in which strict proof is made unnecessary, because the party, against whom it would other- wise be requisite to produce proof of the particular fact, has by his conduct precluded himself, in the way of estoppel, from disputing the fact. (5) There are few cases, indeed, in which a person's acts operate against him as an estoppel, though they may often be used as good prima facie evidence against him. (6) Such is the rule in an action against clergy- men for non-residence, in which it is reasonable, that the acts of the defendant as parson, and his receipt of the emo- luments of the church, should be evidence against him of his being parson, without formal proof of his title. (7) And in action by a person, as farmer and renter of tolls, ap- pointed under an act of parliament, for tolls due at a turn- pike-gate, although the plaintiff will not be entitled to recover on the special count, unless he has been legally appointed collector of the tolls, yet, if the defendant has accounted with him in that character, the want of a formal appoint- (1) St. 26 G. 3. c. 77. s. 13., and see st. 1 1 G. 1. c. 50. s. 52. (2) R. v. Verelst, 3 Campb. 452. R. v. Cresweli, Lond. Sitt. after Mich. 1316, S. P. (5) By Chambre J., Smith v. Taylor, "l Bos. & Pul. N. R. 210.; and see the cases cited ante, p. 88. (6) By Chambre J. ib. (7) By Chambre J., 1 New Rep. (3) R. v. Gardner, 2 Campb. 515. 210. Bevan q. t. v. Williams, n. (a) (4) Lister, q. t. v. Priestley, White- 5 T. R. 635. wick, Rep. 67. Sect, 6.3 The best Evidence to be produced. 227 ment will not preclude him from recovering on an account stated. ( 1 ) This principle was carried farther in the case of Radford q. t. v. M'Intosh; too far, indeed, in the opinion of one learned Judge. (2) That was an action for penalties under the post- horse act, brought by the plaintiff as farmer-general, and proof of his appointment was dispensed with, because the defendant had previously accounted with him as farmer-general. (3) In an action for subtraction of tithes, proof of the defendant's former acknowledgment of the plaintiff's title to the tithes is sufficient evidence, as against the defendant a wrong-doer. (4) And in an action against the defendant for slander, in charg- es ' o ing the plaintiff with being a swindler, and threatening that he would have him struck off the roll of attornies, the Court was of opinion, that the defendant's threat amounted to a distinct acknowledgment that the plaintiff was an attorney, and dis- pensed with further proof. (5) The principle to be extracted from these cases seems to be, that where a defendant, in the course of the transaction, on which the action is founded, has admit ted th e title, by virtue of which the plaintiff sues, it^amounts to prima facie evidence, that the plaintiff is entitled to sue. (6) And upon this prin- ciple two of the Judges of the Court of Common Pleas were of opinion, that the plaintiff was entitled to recover in the case of Smith v. Taylor. (7) That was an action for defamation, in which the plaintiff averred, that he was a physician, and exer- cised the profession, and that the words were spoken concern- (1) Peacock v. Harris, 10 East, man v. Beard, 5 Anstr. 492. 4 Gwill. 104. 148.". S. C. (2) Chambre J., 1 Bos. & Pull. (5) Berryman v. Wise, 4 T. R. N. R. 211. And Mansfield C. J. 366. doubted, whether further proof (6) By Heath J. 1 New Rep. would not have been necessary; ib. 208. p. 205. (7) 1 New Rep. 196, by Mansfield (.3) 3 T. R. 6.52. And see Cross C J. and Heath J. ; but Rook J. v. Kaye, 6 T. R. 663. and 1 New and Chambre J. were of opinion Rep. 211. that the words did not admit the (4) l Bos. & Pull. N. R. 210. qualification. 3 T. R. 655. 4 T. R. 366. Chap- es 2 2£8 The best Evidence to be produced. [Ch. 7. ing him as a physician. The material facts of the case were shortly these : the plaintiff, having practised in the profession of a physician, was called upon to attend a sick person, for whom he prescribed ; the_ defMjin^wjs_emplojed_as apothe- cary, and made up the p rescription ; in this situation of things, the defendant spoke the words charged in the declaration, which did not impute to the plaintiff any want of qualification bv decree, but called him by his professional title of doctor, and ascribed to him mal-practice in his treatment of the patient. " The question," said the Chief Justice, " is, whether, in this particular action upon these particular words, the evidence offered was not sufficient prima facie evidence, that the plaintiff had lawfully practised as a qualified authorised doctor of phy- sic? And considering the nature of the words, and the situ- ation of the defendant, that the charge had no relation to the want of qualification, but merely to the practice, and that it was accompanied by the expression ' Dr. S.,' I think that these circumstances afforded sufficient prima facie evidence that the plaintiff was doctor." On the other hand, if the words imp ly a charge , that the plai ntiff was not qualified to act in the particular character which he assumed^ it has been held that the qualification ought to be proved^ and that it will not be sufficient to shew that he acted in that capacity. (1) And where the words imply merely ignorance or negligence, with- out admitting the plaintiff to be qualified, and the plaintiff avers that he is qualified, he will be bound to prove his quali- fication. (2) The proof of an admission of a fact by a party to the suit has, in many cases, been considered sufficient to dis- pense with the strict and regular proo£ which would otherwise have been necessary. If a lessee acknowledges that he has assigned the lease to another person, this is evidence against him of his having transferred all his interest in the premises, (1) See the judgment of Mansfield Pickford v. Gutch, 8 T. R. 305. n. (a); Ch. J. in 1 New Rep. 204. 207. Moises v. Thornton, 8 T. R. 303. ( 2) See 1 New Rep. ^o:. 2K>. Sect. 6.] The best Evidence to be produced. though an assignment can only be effected by some instrument in writing. ( 1 ) And an adm issio n by the defendant, that a jthird person had become a bankrupt, js^vidence i_ofthe Jmnk-^ _r uptcy, i n an action brought by the assign ee of the ban krupt ; and will dispense with the necessity of going through the formal proof of the trading and act of bankruptcy, as in ordinary cases. (2) So, if the defendant has acknowledged, that he agreed to pay a certain sum of money for tithes leased to him by the plaintiff, this will be sufficient proof of the agree- ment, in an action on a composition for tithes, although it ap- pear that the agreement is in writing, and in the plaintiff's possession. Sect. Vir. Hearsay is not Evidence. It is a general principle in the law of evidence, that if any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth ; and the reason of the rule is, because evi- dence ought to be given under the sanction of an oath, and that the person, who is to be affected by the evidence, may have an opportunity of interrogating the witness, as to his means of knowledge, and concerning all the particulars of his statement. Hearsay evidence of a fact, therefore, is not admissible. And the same principle is applicable to state- ments in writing, no less than to words spoken : whether spoken or written, they are equally inadmissible in evidence. The only difference between them in this respect is, that there is a greater facility of proof in the one case than in the other ; (1) Doe dem. Lowden v. Watson, See the case of Scott v. Clare, 2 Starkie, N. P. C. 230. supra, p. 220., where it was held, that (2) Maltby assignee of Durouveray the acknowledgment of the party v. Christie, l Esp. X. P.C. 540.; cited would not dispense with the formal 16 East, 193. Dickenson, assignee of proof of a discharge under an insol- Booth, v. Coward, 1 Barn. ccAld. 677. vent debtor's act, Q 3 ^30 Hearsay not Evidence. [Ch. 7. a written account is proved to be genuine, by proof of the hand-writing ; but the genuineness of mere oral declarations must depend upon the memory and accuracy of the witness, who professes to repeat them. The most convenient order for treating of this subject will be, first, to mention certain cases, clearly distinguishable from cases of hearsay; and then to state the exceptions to the general rule. Testimony on First, the testimony of a deceased witness, who has been examined upon oath, on the trial of a former action between the same parties, and where the point in issue is the same as in the second action, is admissible on the trial of the second action, and may be proved by one who heard him give evi- dence ( 1 ) ; for such evidence on the former trial was not given in an extrajudicial manner, but upon oath : the parties to the suit were the same, the point in issue was the same, and an opportunity was given for cross-examination. These circum- stances plainly distinguish the proposed evidence from hearsay. So, where a person, who had been sworn on a former trial between the same parties on the same issue, and subpcena'd to appear as witness at a second trial, did not appear in obedience to the writ, the Court of King's Bench, seeing reason to believe that he had been kept away by the con- trivance of the adverse party, admitted other witnesses to prove what lie had sworn on the former occasion. (2) The person called to prove what a deceased witness said, must undertake to repeat precisely his very words, and not merely to swear to their effect. (3) Thus, in a case before Lord Kenyon, a witness was not allowed to speak to the effect (1) R. v. Carpenter, 2 Show. 47. Mayor of Doncaster v. Dav, 3 Taunt. Buckworth's case, Sir T. Ravin. 170. 262. Vin. Ab. " Evidence," (T." b. 88.), (2) Green v. Gaturk, Bull. N. P. pi. 4. Cokerv. Farewell, 2 P. Wms. 243. 565. Pike v. Crouch, l Ld. Raym. (3) Lord Palmerston's ease, cited 730. By Lord Kenyon, 4 T. R. 290. by Lord Kenyon in R. v. Jolliffe, 4 T. R. 290. Sect. 70 Hearsay not Evidence. 23 1 of what the deceased witness had sworn on the former trial. Par t of " He ought," said Lord Kenyon, " to recollect the very words; res g esta - for the jury alone can judge of the effect of words." ( 1 ) And he cited the case of the King v. Deborah from one of his own notes, to the same point. For the purpose of introducing an account of what a deceased witness swore on the first trial, the nisi prius record and the postea indorsed are good evidence to shew, that a cause was brought on for trial, or that it was actually tried. (2) Secondy, hearsay is often admitted in evidence, as part of Hearsay, part ~ of the t action. the transaction , which becomes the subject of inquiry; the ° meaning of which seems to be, that where it is necessary in the course of a cause to inquire into the nature of a particular act, or the intention of the person who did the act, proof of whatjhe person said at the time of doing it is admissible in evidence, for the purpose of shewing its true character._ Thus, for example, in an action by the assignees of a bankrupt, the declarations of the trader at the time of his absenting himself from home, or immediately subsequent, are properly received in evidence, to shew the motive of his absence : for it is the intent with which he departed from his dwelling-house, that constitutes the act of bankruptcy. (3) For the same reason, letters written by the payee of a pro- missory-note to the maker, contemporaneous with the making of the note, and forming a part of the original transaction, are admissible in evidence, to prove the consideration passing between the parties; and this also, in an action by the in- dorsee against the maker. (4) It cannot be more necessary to call the party who wrote, than in the case of a verbal agree- (1) Ennis v. Donisthorne, Cornw. (4) Kent v. Lowen/ 1 Campb. Sum. Ass. 1789. MS. 177.180. d. For other examples in (2) Pitton v. Walter, 1 Str. 162. illustration of the same rule, see R. (3) Ambrose v. Clindon, Rep. v. Hathaway, Howell's Collection of temp. Hard. 267. Marsh v. Meager, St. Tr. vol. xiv. 654. Du Bost v. 1 Starkie, N.P.C. 355. Sec on this Beresford,2 Campb.512. ColIenrid>>;e subject, vol. 2. part 2. ch. 4. v. Farquharson, l Starkie, N. P. C. 261. Bull. N. P. 17. 2 * Hearsay not Evidence. £Ch. 7. ment to call the party who spoke the words. A written agree- ment is proved by the writing, as a verbal agreement may be proved by a witness who heard the parties agree. In the case of Thompson and wife against Trevanion (1), which was an action of trespass and assault, Lord C. J. Holt allowed what the wife said, immediately on receiving the hurt, to be given in evidence. Inquiries by medical men, with the answers to such inquiries, are evidence of the state of health of the patient at the time; such evidence is admissible from the very nature of the thing. (2) And it is in every day's ex- perience, that what a man has said of himself to his surgeon, is evidence in an action of assault, to shew what he has suffered by reason of the assault. (3) In the case of Aveson v. Lord Kinnaird (4), (where, in an action on a policy of insurance of a life, in order to ascertain whether the deceased was in a good state of health on the day of the insurance, it became material to consider what the state of health was both before and after that day,) the account, which the deceased gave some days after obtaining the certificate of good health, respecting her state on the former day, was admitted at the trial, as evidence on the part of the defendant ; and the Court of King's Bench were of opinion, that it had been properly admitted. The Judges held the evidence unexceptionable, on general principles, as the account of the deceased concerning her existing state of nealth, which was the subject of inquiry ; they considered it admissible also in another point of view, for, as the surgeon, who had given the certificate, and who was called as witness on the part of the plaintiff, had formed his opinion of the state of health of the deceased principally from the answers she had given to his inquiries, it was only a species of cross-examin- ation of the same witness, to shew, from what the deceased had said of herself to another witness very recently before, that (1) Skin. 402. cited by the Court, (5) By Lawrence, J. 6 East, 193. 6 East, 195. (4) 6 East, 1S8. 198. (2) By Lord Ellenborougl), 6 East, 195. Sect. 7.] Hearsay not Evidence. 235 she was not really well on the day when she gave that account Part of , „i res gesta. to the surgeon. (1 ) _ h The account given by a person, in answer to the questions of a medical man, it is to be observed, is evidence of com- plaints and symptoms, and of what the person suffers from his bodily state, when an inquiry into such particulars is material ; but it is not evidence to charge another person as the cause of those sufferings, nor is such an account any evidence of the truth of the statement. In prosecutions for a rape, it is the common practice, and is strictly regular, to inquire whether the woman made a complaint against the prisoner, recently after the injury ; but the particulars of the complaint, stated by her on the former occasion, are clearly not admissible as evidence of the truth of her statement. That statement having been made in the absence of the prisoner, cannot be used as evidence against him; nor can it be admitted as evidence in confirmation of her statement at the trial. (2) It should seem also, in an action for criminal convers- ation, the declarations of a wife at the time of her elope- ment, stating the reason of her eloping, (as, that she fled from an immediate fear of personal violence,) would be evidence against the husband (3); but a collateral declaration, respecting a matter which happened at another time, would not be admissible. And where, in an action for criminal con- versation, the defence was, that the plaintiff had connived at his wife's elopement, evidence was received, on the part of the plaintiff, of the wife's declarations as to her intention and pur- pose in going (4) : for the question in effect was, whether the husband knew that she was about to elope, or whether he be- lieved that her intention was as she represented. (1) 6 East, 195. 197. 198. 276. before Ld. Kenyon on 2d trial, (2) Brazier's case, 1 East, P. C. who said, that some of the Judges, 444. R. v. Clarke, 2 Starkie, N. P. C. on the motion for a new trial, were 242. of opinion, that this evidence ought (3) 6 East, 193. to be admitted. (4) Hoarc v. Allen, 5 Esp. N.P.C. <2S± Hearsay not Evidence. [Ch.7. Dying decla- rations. What a third person has said or written is admissible, in many cases, as amounting to an act done by him, or as shew- ing his knowledge, or as evidence of his conduct. If, for in- stance, it is material to inquire, whether a certain person gave a particular order on a certain subject, what he has said or writ- ten may be evidence of the order ; or where it is material to inquire, whether a certain fact, be it true or false, has come to the knowledge of a third person, what he has said or writ- ten may as clearly shew his knowledge, as what he has done. Where it is relevant and material to inquire into the conduct of rioters, what has been said by any of the party in the act of rioting must manifestly be admissible in evidence, as shewing their design and intention. On a charge of larceny, where the proof against the prisoner is, that the stolen pro- perty was found in his possession, it would be competent to shew, on behalf of the prisoner, that a third person left the property in his care, saying he would call for it again after- wards; for it is material, in such a case, to inquire, under what circumstances the prisoner first had possession of the property. And a variety of other instances might be mentioned of a similar nature. Exceptions. The exceptions to the general rule, on the subject of hear- say, are here considered, in the following order. First, as to dying declarations. Secondly, as to hearsay in questions of pedigree. Thirdly, as to hearsay on questions of public right, customs, boundaries, &c. Fourthly, as to the admis- sibility of old leases, rent-rolls, surveys, &c. Fifthly, as to the admissibility of declarations against interest. Sixthly, as to the admissibility of rectors' and vicars' books. Seventhly, and lastly, as to the admissibility of the books of tradesmen. First, as to the admissibility of dying declarations. Dying declar- ations. The dying declarations of a person, who has received a mortal injury, that is, declarations made under the appre- hension of death, are constantly admitted in criminal prosecu- Sect. 7«] Hearsay not Evidence. 235 tions. (1) The principle of this exception to the general rule is Dying deck- founded partly on the awful situation of the dying person, which ra lons ' is considered to be as powerful over his conscience as the ob- ligation of an oath, and partly on a supposed absence of interest on the verge of the next world, which dispenses with the ne- cessity of cross-examination. But before such declarations can be admitted in evidence' against a prisoner, it must be satisfactorily proved, that the deceased, at the time of making them, was conscious of his danger, and had given up all hope of recovery. This consciousness of approaching death is to be collected either from the circumstances of the case, (as, from the nature of the wound and the state of body,) or from ex- pressions used by the deceased. (2) And it has been decided by all the Judges, that the question, whether the deceased made the declarations under the apprehension of death, is a question for the Judge, not for the jury to determine, previous to their admission. (3) The declarations of a criminal at the time of his execution, cannot be received on the trial of an ac- complice ; for, after attainder, he could not be sworn as a witness. (4) The declaration of a person, who, having set his name as subscribing witness to a bond, in his dying moments begged pardon of Heaven for having been concerned in forging the bond, was admitted, by Mr. Justice Heath (5), as evidence of (l) Lord Mohun's case, 12 Howell, case, which was before the two last, St. Tr. 967. R. v. Reason and this question had been left to the Tranter, l Str. 499. 6 St. Tr. 202— jury by Eyre C. B., 1 East, PI. Cr. 205. 16 Howell, St. Tr. 26. S. C. 360. Still, however, it is the prac- Woodcock's case, 2 Leach, Cr. C. tice with many learned Judges to 566. Bambridge's case, 9 St. Tr. direct the jury, that, if they believe 161. Tinkler's case, 1 East, P. C. the declarations were not made un- 554. The same rule has been at all der the apprehension of death, they times adopted in Scotland ; see ought to reject them from their con- Hume's Commentaries, vol. 2. 391. sideration. ^ (2) Woodcock's case, 2 Leach, Cr. (4) Drummond's case, 1 Leach, C. 566. Dingler's case, ib. 638. Cr. C. 378 ; 1 East, PL Cr. 355. John's case, 1 East, PI. Cr. 357. S. C. (3) By the opinion of all the (5) Cited by Lord Ellenborough Judges, in John's case, i East, PI. in Aveson v. Lord Kinnaird, 6 East, Cr. 357., and in Welborne's case, 195. l East. PI. Cr. 559. In Woodcock's •■23() Hearsay not Evidence. [Ch. 7*- Dying decla- the forgery, on the authority of Wright on the demise of ratlons - Clymer v. Littler (1), where similar evidence of a dying con- fession, by a subscribing witness to a will, had been received by Chief Justice Willes, and afterwards approved by the Court of Kind's Bench. Lord Mansfield on that occasion said, " The account was a confession of great iniquity, and as the dying person could be under no temptation to say it, but to do justice and ease Iris conscience, I am of opinion the evidence was proper to be left to the jury." But, with the exception of this case, the general rule respecting the admissibility oj^dying declarations is, that they are admissible only in criminal pro- secutions, where the death of the deceased is the jm bject ~of the charge against the prisoner. On a question of pedigree, it has been lately determined, in an action of eject- ment, that the dying declarations of a person, as to the re- lationship between the lessor of the plaintiff and the person last seised of the premises in question, (the deceased not being himself a relation, nor in any manner connected with the parties,) cannot be received in evidence. (2) Dying declarations have been admitted in evidence, although it appeared that the deceased made a subsequent statement, which had been taken in writing before a magistrate, but the written examination was not ready to be produced at the trial. This subject was much discussed on the trial of Reason and Tranter under the following circumstances (3): — The deceased stated the particulars of the injury, which occasioned his death, at three several times in the course of the same day, with an interval of about an hour between each : the first and last account had not been written ; the second was reduced into writing, in the presence of a magistrate, by the same person to whom the former account had been given; this written statement was retained by the magistrate, and as (1) 3 Burr. 1244. 1255. l Blac. (2) Doe detn. Sutton v. Ridgwav, Rep. 546. S. C. See 4 Barn. & 4 Bam. & Aid. 53. Aid. 44. (3) 6 St. Tr. 202—205. 1 Stra. 499. S. C, Sect. 70 Hearsay not Evidence. QSJ he had removed to a distant part of the country, and it was In case of not known to what place, the original was not produced, and P ec 'S ree - an examined copy was rejected. An argument then ensued with respect to the admissibility of the first statement of the deceased. The Chief Justice (Sir John Pratt) was of opinion, that evidence of the first and third statement ought not to be received, considering all three as statements to the same effect, and forming one entire narrative, of which the written exa- mination was the best proof. But the other Judges ( 1 ) were of a different opinion; they held, that the three accounts given by the deceased were distinct facts, and that there was no reason to exclude the evidence as to the first and third declaration, because the prosecutor was disabled from giving an account of the second. The witness was therefore directed to repeat his evidence, laying the examination before the justices out of the case ; and the first as well as the third statement was admitted. As the declarations of a dying man are admitted, on a sup- position that, in his awful situation on the confines of a future world, he had no motives to misrepresent, but, on the con- trary, the strongest motives to speak without disguise and with- out malice, it necessarily follows, that the party, against whom they are produced in evidence, may enter into the particulars of his state of mind and of his behaviour in his last moments; or may be allowed to shew, that the deceased was not of such a character, as was likely to be impressed by a religious sense of his approaching dissolution. Secondly, with regard to hearsay on questions of pedigree. On question of pedigree. On enquiring into the truth of facts which happened a long time ago, the Courts have varied from the strict rules (l) 1 Stra. 500. The reporter was against receiving the evidence; and one of the counsel for the prose- Mr. Justice Eyre and Mr. Justice cution. From the report in the State Fortescue for receiving it. The Trials it would appear, that the Chief evidence, however, according to that Justice and Mr. Justice Powis were report, was at last received. <23S Hearsay not Evidence. [Ch. 7. In case of of evidence applicable to modern facts of the same descrip- 1 !fl____ tion, on account of the great difficulty of proving those re- mote facts in the ordinary manner by living witnesses. ( 1 ) On this principle, hearsay and reputation (which latter is the hearsay of those who may be supposed to have known the fact, handed down from one to another,) have been admitted as evidence in cases of pedigree. (1) Thus, declarations of deceased members of a family are admissible evidence to prove relationship; as, who was a person's grandfather, or whom he married, or how many^ children he had, or as to the time of a marriage or of the birth of a child, and the like, of which it cannot be reasonably presumed, that better evidence is to be procured. In ancient times, while the feudal system pre- vailed, great facilities of establishing descents were afforded by means of inquisitions post mortem. The heads of families, upon these occasions, made solemn declarations, which were preserved as matter of record. (2) But, these having now grown into disuse, it is often extremely difficult to prove a pedigree; and recourse must be had, from necessity, to the best evidence that the nature of the subject will admit. In a late case, proof by one of the family, that a particular person had many years before gone abroad, and was supposed to have died there, and that the witness had not heard in the family of his having married, was considered by the Court of King's Bench, good prima facie evidence of the person's death with- out lawful issue. (3) It is not, however, every statement or tradition, that can be admitted in evidence. " The tradition," said Lord Eldon, in the case of Whitlocke v. Baker (4), " must be from persons having such a connection with the party to whom it relates, that it is natural and likely from their domestic (1) By Le Blanc J. in Higham (2) 13 Ves. 143. Bull. N. P. v. Ridgway, 10 East, 120. And see 294. the Lord Chancellor's judgment in (3) Doe dem. Banning v. Griffin, the case of Vowels y. Young, 13 Ves. 15 East, 293. Doe dem. George v. 143. ; and the opinions of the Judges Jesson, stated ante, p. 198. in the Berkeley Peerage case, 4 (4) 13 Ves. 514. Edwards v. Campb. 404 — 421. Harvey, 1 Cooper, Ch. Rep. 39. Sect. 7»] Hearsay not Evidence. 289 habits and connections, that they are speaking the truth, and In c / 1se of that they could not be mistaken. Declarations in the family, descriptions in wills, descriptions upon monuments, in Bibles and registry-books, are all admitted, upon the principle that they are the natural effusions of a party, who must know the truth, and who speaks upon an occasion, when his mind stands in an even position without any temptation to exceed or fall short of the truth." Descriptions in family Bibles have been mentioned only by way of example. The admissibility of such entries, it is scarcely necessary to observe, can in no degree depend upon the circumstance of their being inserted in the family Bible, though on that account the statement may be entitled to greater consideration. A memorandum inserted in any other book by one of the family, may be given in evidence. So, a will by an ancestor is evidence on a question of pedi- gree, (though it be found cancelled, and not known to have been proved or acted upon,) if it appears to be treated as a paper relating to the family. (1) And recitals in family deeds, monumental inscriptions, engravings on rings, old pedigrees hung up in a family mansion, and the like, (in which it is improbable that a description would be suffered to continue, if erroneous,) are all of them admissible upon the same principle. (2) On a question, whether a testator at the time of making his Hearsay as to will was of full age, a written memorandum by his deceased time Dlrtn ' father, stating the time of his birth, has been admitted to be good evidence. (3) Here the controversy was not, as in a ques- tion of pedigree, from what parents he derived his birth, but at what precise time an undisputed birth had happened. Still however, the observation, before made, applies to this sort of (1) Doe dem. Johnson v. Lord (3) Herbert v. Tuckal, Tr. at bar, Pembroke, 11 East, 505. Sir T. Raym. 84. cited in Brune v. (2) 13 Ves. 144. Bull. N. P. 233. Rawlins, 7 East, 290,; and see 10 Covvp. 594. 10 East, 120. East, 120. £40 Hearsay not Evidence. [Ch.7. In case of evidence, namely, that the father had peculiar means of know- pe ' llgrcc ' ino- the fact in dispute without any interest to misrepresent it, and the fact itself was not a matter of notoriety, but necessarily lying within the knowledge of a few individuals of the family. So, on a question of legitimacy, the declarations of deceased persons, supposed to have been married, (who might them- selves be examined, if alive,) are admissible to disprove the fact of marriage. ( 1 ) From analogy to the case, just mentioned, (in which the declarations of a parent have been received as evidence of the time of the child's birth,) the declaration or written memo- randum of a deceased surgeon, respecting the time of a birth at which he attended, appears to be evidence, as having been made on a matter peculiarly within his knowledge. (2) Hearsay as The declarations of a deceased parent, though they are Ijirth. evidence of the time of a child's birth, will not be admitted as evidence of the place of the birth. (3) " The point in dis- pute," said Lord Ellenborough, in a case where the admissi- bility of such evidence was discussed, " turns on a single fact involving only a question of locality, and therefore not falling within the principle of the rules applicable to cases of pedigree." Nor can the declarations of a father or mother be received, after their deaths, to prove the want of access, so as to bas- tardize a child born during the marriage ; for they could not be examined to that fact, if alive (4); and, even if that objec- tion were removed, still the case would not come within the principle, on which such hearsay evidence can be made an exception to the general rule; as want of access (5), implying the continued separation of the parties, must be notorious to (1) R. v. Bramley, 6 T. R. 330. (4) R. v. Reading, Rep. temp. May v. May, 1762, Tr. at bar, Bull. Hard. 79. Stapleton v. Stapleton, N. P. 112. ib. 277. Bull.N.P. 113. S. C. Ste- (2) See 10 East, 120., and Vin. vens v. Moss, Cowp. 592. R. v. Ab. Ev. T. b. 91. Luffe, 8 East, 205. R. v. Kea, II (3) R. v. Erith, 8 East, 542. East, 1.33. See supra, p. 154. (5) Bull. N. P. 115. Sect. 7.] Hearsay not Evidence. 241 the whole neighbourhood, where they have resided, and is Declarations therefore capable of more satisfactory proof. For the same ^Itam™ reason, the declaration of a deceased person, as to having been relieved by a parish (1), or as to being hired for a year (2), are not evidence of those facts, on an appeal against an order of removal. Declarations made by a deceased husband, as to the legiti- macy of his wife, are evidence, though he was not related to her by blood ; for the husband must be supposed to have more intimate knowledge on that subject, than a distant relation. (3) But the opinion of deceased neighbours, or of mere acquaintances of the family, are not evidence on a question of pedigree (4) ; nor is the hearsay of a relative to be admitted, when the relative himself can be produced. (5) The declarations of a deceased member of the family, on a Declarations question of pedigree, are not to be admitted, unless, as was before ^^ am ^ mentioned, they have been made under circumstances, when the relation may be supposed without an interest and without a bias. If they were made on a subject in dispute, after the com- mencement of a suit, or after a controversy preparatory to one, they ought not to be received in evidence, on account of the probability, that they were partially drawn from the deceased, or perhaps intended by him, to serve one of the contending parties. There has been some difference of opinion on this subject. In a case reported in Viner's abridgment (6), Ch. B. Reynolds refused to admit declarations, which had been made at a time when the point had become the subject of controversy. On the other hand, such evidence was received by Lord Camden (7); and Lord Mansfield, in the case of (1) R. v. Chadderton, 2 East, 29. Bull. N. P. 115. Harrison v. Blades, (2) R. v. Nuneham Courtney, 5 Camp. 457. 1 East, 373. R. v. Ferry Fristone, (6) Dev. Sp. Ass. 1731, Vin. Ab. 2 East, 55. R. v. Abergwilly, 2 East, Ev. [T. b. 91.] 63. (7) Hayward v. Firmion, Sitt. (3) Vowels v. Young, 15 Ves. 148. after Trin. term, 1766; oited by (4) 13 Ves. 147. 514. 3 T. R. 723. Lawrence J. iu the Berkeley peerage See Bull. N. P. 295. 1 Maul. & Sel. case; and see Nichols v. Parker, 689. 14 East, 530. Exr. Sp. Ass. 1805. 14 East, 331. n. (5) Pendrel v. Pendrel, 2 Str. 924. VOL. J. R 242 Hearsay not Evidence. [Ch. 7. Declarations Goodright on the demise of Stevens v. Moss (1), was of ^notam. opinion, that an answer * by a deceased mother to a bill filed against her, stating the time of a child's birth, might be ad- mitted as evidence on the footing of a declaration. On the trial of the cause, Mr. Baron Eyre rejected this answer, together with the general declarations of the father and mother ; in consequence of which, an application was made to the Court of King's Bench for a new trial. Lord Mansfield, on that occasion, considered the rejection either of the gene- ral declarations, or of the answer, to be a sufficient ground for a new trial : but he adverted more particularly to the former ; and it does not appear from the report, that he laid any great stress on the rejection of the answer. Mr. Justice Aston concurred with Lord Mansfield in opinion, that the general declarations ought to have been admitted, but deli- vered no opinion on the other point. Thus, the authorities on this subject appear to have been, at one time, nearly evenly balanced. Great light has been thrown upon this subject bv the opinions of many of the Judges in the late case of the Berkeley peerage. (2) A question was, on that occasion, proposed to the Judges (3), in the following terms : " Upon the trial of an ejectment respecting Black Acre between A. and B., (in which (1) Cowp. 594. Banbury peerage claim, 1809, 2 Sel. (2) May 13. 1811. MS. 4 Campb. N. P. 7.31. lasted. 401. S. C. See also the case cf the (5) May 2. 1811. M.S. * The answer is described by the reporter of this case as an answer in Chancery. It appears from an enquiry, which was made in the case of the Berkeley peerage, that proceedings had been instituted in the Court of Chancery, and that afterwards a bill was filed in the Exchequer, by the younger son, claiming as a legitimate child, against the mother who was administratrix of her deceased husband. The mother in her answer averred, that the complainant was born before marriage and illegitimate. Now, as she was entitled as administratrix to a distributive share of the hus- band's effects, and was therefore interested to defeat the right of any other persons, who might claim a part under the distribution, her answer most clearly ought not to have been admitted. This objection, however, was not adverted to ; nor does it seem to have occurred, that the statement in the answer was inadmissible, as having been made after the commencement of a suit. Sect. 7.] Hearsay not Evidence. 243 it was necessary for A. to prove that he was the legitimate son Declarations of J. S.) A., after proving by other evidence that J. S. was his ^/ flBi . reputed father, offered to give in evidence a deposition made ■ - by J. S. in a cause in Chancery, instituted by A, against C. D* in order to perpetuate testimony to the alleged fact (disputed by C. D.,) that he was the legitimate son of J. S., in which character he claimed an estate in remainder in White Acre, which was also claimed in remainder by C. D. B., the de- fendant, in the ejectment, did not claim Black Acre under either A. or C. D., the plaintiff and defendant in the Chancery suit. According to law, could the deposition of J. S. be re- ceived in evidence upon the trial of such ejectment against B., as evidence of declarations of J. S., the alleged father, in mat- ters of pedigree?" The Judges, who were present, afterwards stated their opinions at length, and with only one dissentient voice, agreed in considering the deposition of J. S. to be inad- missible. Mr. Justice Lawrence delivered his opinion in the following terms (1): "The declarations of members of the family, in matters of pedigree, are generally admitted from the necessity of the case ; but the administration of justice would be perverted, if such declarations could be admitted, which have not a presumption in their favour, that they are consistent with truth. Where the relater had no interest to serve, and there is no ground for supposing that his mind stood other- wise than even upon the subject, (which may be fairly inferred before any dispute upon it has arisen,) we may reasonably suppose, that he neither stops short, nor goes beyond the limits of truth, in his spontaneous declarations respecting his relations and the state of his family. The receiving of these declarations, therefore, though made without the sanction of an oath, and without any opportunity of cross-examination, may not be attended with such mischief as the rejection of such evidence, which in matters of pedigree would often be the re- jection of all the evidence that could be offered. But mischiev- ous indeed would be the consequence of receiving an ex parte statement of a deceased witness, although upon oath, pro- (1)4 Campb. 409, R 2 244 Hearsay not Evidence. [Ch.7. Declarations pott litem mot am. cured by the party who would take advantage of it, and deli- vered under that bias which may naturally operate on the mind in the course of a controversy upon the subject. Not- withstanding what is said in the case of Goodwright v. Moss, I cannot think that Lord Mansfield would have held, that declarations in matters of pedigree, made after the controversy had arisen, ought to be submitted to the jury. They stand precisely on the same footing as declarations on questions of rights of way, rights of common, and other matters depending upon usage ; and although I cannot call to mind the ruling of any particular Judge upon the subject, yet I know that ac- cording to my experience of the practice, (an experience of nearly forty years,) whenever a witness has admitted, that what he was going to state he had heard after the beginning of a controversy, his testimony has been uniformly rejected. If the danger of fabrication and falsehood be a reason for re- jecting such evidence in the cases of prescription, that will equally apply in cases of pedigree, where the stake is gene- rally of much greater value." Then, after referring to the decided cases, the learned Judge added, — " The authorities being thus balanced, I think the point must be considered as without any decision, and we must resort to principle and the uniform practice, which has obtained in questions of pre- scription. Hardships may arise in rejecting declarations made between the commencement of the suit and the time of the trial ; but such hardships are not confined to the case of pedigree. In other cases, if witnesses die before the trial of the cause, the party, who relied upon their testimony, must sustain the loss. For avoiding uncertainty in judicial proceedings, general rules must be laid down and adhered to, without regard to our feelings or our wishes on particular occasions. Besides, the hardship may generally be avoided by a bill to perpetuate testimony. Although the exclusion of declarations made in the course of the controversy may prejudice some individuals, it is better to submit to this inconvenience than expose courts of justice to the frauds, which would be practised upon them, if a contrary rule were to prevail. That this is not an ima- ginary apprehension, will occur from what happened in the SeGt. 7.] Hearsay not Evidence. 34,5 Douglas and Anglesea causes ; in the first of which, fabricated Declarations letters were given in evidence ; and in the second, false declar- ^ ta ^ ations. Notwithstanding the danger of incurring the penalties of the crime of perjury, there is scarce an assize or sittings in which witnesses are not produced, who swear in direct contra- diction, the one to the other ; and it may be feared, that per- sons, who have as little regard to truth, may be induced to make false declarations, when they run no risk of punishment in this world, as no use can be made of their evidence till after their death. We know that passion, prejudice, party> and even good-will, tempt many, who preserve a fair character with the world, to deviate from the truth, in the laxity of convers- ation. Can it be presumed that a man stands perfectly in- different, upon an existing dispute respecting his kindred? His declarations post litem mot am, not merely after the com- mencement of the law-suit, but after the dispute has arisen, (that is the primary meaning of the word lis,) are evidently more likely to mislead the jury, than to direct them to a right conclusion, and therefore ought not to be received in evidence. I am likewise of opinion, that no deposition ran be received in evidence as a declaration, to prove a fact, which it was the object of that deposition to establish. A deposition is the answer of the witness to such interrogatories, as it is thought expedient to put to him, to establish certain facts, which the plaintiff alleges, and on which the case depends. Conse- quently, a deposition is considered a partial representation of facts, as to all persons who have no opportunity of bringing out the whole truth by cross-examination; and on that ac- count, all admit that against a stranger it cannot be received in evidence as a deposition. How then shall it be received as a declaration ? In that case, the circumstance of its being upon oath cannot be regarded. To consider it a declaration on oath, would be to receive it as a deposition. As a declaration, it is still subject to the same vice and infirmity, of being an answer to particular questions artfully put, with an interested view, by one party behind the back of the other. All the objections, on which it is allowed that this document cannot be received r 3 246 Hearsay not Evidence. [Ch. 7* Declarations as a deposition, apply, with at least equal strength, to receiving motam. it as a declaration." In a later case also, at nisi prim, where the question was, whether the occupier of a particular farm was liable to the repair of a public road, and, to prove the affirmative, an award was produced, (which had been made some years before, when the same question was the subject of dispute between the township, where the lands were situated, and a former occupier,) this evidence was rejected as inadmissible ; on the ground, that the account, which deceased witnesses might have given to the arbitrator on that occasion, could not have been received, as the declarations were made post litem motam, and that the opinion of the arbitrator, formed upon such testimony, could not be entitled to more credit. (1) a fonnerTuit ^ ie same principle applies equally to depositions relating upon a differ- to manorial customs ; which therefore are not admissible in ent custom, . , . . . . . , , . evidence, when precisely the same custom, as is the subject- matter of the existing suit, was contested in the former suit, in which the depositions were made. But where the two suits are not upon the same custom, the depositions, taken in the former suit, are not liable to objection, as being made post litem motam; and, where the former suit is very ancient, it will be unnecessary to prove by extrinsic evidence, that the witnesses, who made the depositions, were in the situation in which they profess to stand, or that they had the means of becoming ac- quainted with the customs of the manor. A question of this kind lately occurred in the case of Freeman v. Phillipps (2) ; where depositions in an ancient suit, as to a copyhold custom, were adjudged to be admissible. The former suit was instituted against the lord of a manor, by a person who claimed to be admitted to a copyhold for lives, upon a custom for any copyhold tenant for life or lives to change or fill up his lives, paying to the lord a reasonable Jine to be set by the lord or (l) R. v. Cotton. 5 Campb. 444. (2) 4 Maule & Selw. 486. before Dumpier J. Sect. 7.] Hearsay not Evidence. l i\q his steward. The subsequent suit was an action by a copy- Declarations holder against a lord of the same manor, and the question was, mo t aV u whether there existed in the manor such a custom, as the plaintiff claimed, in respect of copyholds granted for two lives, that the surviving life should renew, paying to the lord such Jine as should be set by the homage equal to two years' improved value. It was not proved, farther than by the record itself, that the litigating parties in the former suit were (as they claimed to be) lord and copyholder, or that the persons making the depo- sitions, were such as they represented themselves to be in the depositions. These depositions were offered in evidence on behalf of the defendant, as showing that, at the time of the former suit at least, no such custom as the present was ever set up, but that the custom, which was applicable to all copyholders for lives (and therefore to copyholders for two lives,) was, that the copyholder should renew on payment of a fine to be set by the lord or his steward, without mentioning any thing of the intervention of the homage or jury, and that such inter- vention was not an ingredient in the custom. The objections against the reading of the depositions were, first, that the former suit was res inter alios acta; and, secondly, that the depositions were not admissible as declarations, having been made post litem motam. But the Court of King's Bench determined, tha^ the depositions had been properly admitted in evidence. With respect to the first objection, Lord Ellenborough C. J. said, — " Considering these depositions as made in a suit, which may now be said to be lost in remote antiquity, we should give this record but little effect, if we did not attribute to it verity in many of the particular matters which it contains, such as, that the parties litigant were clothed with the rights, in which they profess to stand, and were agitating the claim put forward on the record. It appears then, that in 1693 a copyholder of this manor, or a person claiming at least to be a copyholder, was engaged in a suit with the lord, and in the course of that suit produced persons, who appear to have stood in pari jure or in codemjure, and who made their depositions in support of the claim. These depositions I consider to be evidence, as being made by persons standing in pari jure ; and so they have been it 4< Jks Hearsay not Evidence. [Ch.7. On question of public right, or custom. considered at all times. They furnish evidence not only against the parties making them, but against all persons standing in the same relation." And, as to the second objection, Mr. Justice Le Blanc said, — " One answer to the objection (of their having been made post litem motam) is this, that treating the depo- sitions as hearsay evidence only, still they are not to be consi- dered as made post litem motam, because the same thing is not in controversy now, that was in controversy in the former suit ; the two customs, which gave rise to the two suits, are different. And the strong ground of observation, which arises upon these depositions, is, not that they are evidence of any particular thing, which the witnesses have affirmed, but that, at a time when a dispute existed between the lord and his copyholder concerning the copyholder's right to renew on certain terms, it was never insisted upon as a term, that the fine should be assessed by the jury. I do not see how in this point of view it can be said, that this was not evidence applicable to the issue ; and it seems also to me to stand clear of objection, either on the ground of its being a declaration made after the commencement of a suit touching the matter in question, or on the other ground, that we ought to look for evidence aliunde to make it admissible." Thirdly, as to the admissibility of hearsay evidence on questions of public rights, customs, boundaries, &c. Hearsay as to public rights. 1. In questions concerning public rights, common reputation is admitted to be evidence ; for such rights, being matters of public notoriety and of great local importance, become a continual subject of discussion in the neighbourhood, where all have the same means of information and the same interest to ascertain the claim. (1) Thus, for example, if a question should be raised, whether a corporation has a pre- scriptive right to collect tolls on a public navigation, it would be good evidence to shew, that deceased persons have been heard to acknowledge the right, and to declare that they had (1) Morewood v. Wood, 14 East, & Sel. 679. 6S5. 5.19. See Weeks v. Sparke, 1 Maul. Sect. 7.] Hearsay not Evidence. 24,9 been so informed by their predecessors. The same reason ap- On question plies in a less degree, to questions respecting general customs, ° r \^ or C which concern parishes, or manors, or the inhabitants of custom. towns and other places, ( 1 ) In such cases, general reputation is some evidence of a right beyond the memory of living wit- nesses, and thus tends to support the modern usage. 2. In questions upon a boundary between parishes or ma- Hearsay as to nors (2), or on a customary right (3), or on parochial or customs &' t manorial customs (3), declarations, as to the common opinion of the place, made by deceased persons, who from their situation had the means of knowledge and no interest to mis- represent, have been generally considered admissible evidence. And perambulations are evidence of the extent of a particular parish or manor; since it may be inferred that those who perambulated, believed the line of their perambulation to be the boundary of the district, and such acts are in some measure an exercise of the right. (4) Such evidence has been admitted from analogy to cases of public rights, in which it is clearly established, that reputation is admissible. A right of common by custom is, strictly speaking, a private right ; but it is also a general right, and therefore (so far as it regards the admissibility of this species of evidence) has been considered as public, because it affects a large number of oc- cupiers within a district. But it is to be observed, the evi- dence is to be confined to what such old persons have said, as were in a situation to know what the rights were ; and before a customary right can be proved by such evidence, a found- ation ought to be laid by showing an exercise of the right, or acts of enjoyment within the period of living memory ; it is the exercise of the right, that lets in the evidence of reputa- (1) 14 East, 327. v. Wood, 14 East, 327. n. Nichols (2) Nichols v. Parker, 14 East, v. Parker, ib. 331. n. And see 331. n. 1 Maule& Selw. 81. Weeks v. Sparke, 1 Maule & Sel. (3) Denn. v. Spray, 1 T. R. 466. 679. 684. 686. Harwood v. Sims, Beebee v. Parker, 5 T. It. 26. 31. 1 Wightw. 112. Freeman v. Phil- Chapman v. Smith, 3 Gwill. 851. lipps, supra, p. 248. 2 Ves. 512. S. C. Doe d. Allason (4) 1 Maul. & StI. 687.689. v. Sisson, 12 East, 62. Morewood 258 Hearsay not Evidence. [Ch. 7. On question tion.(l) Where, indeed, the subject-matter does not admit right or °f acts °f enjoyment or the exercise of a right, there the custom. opinion of the place is of itself admissible in evidence ; as, on a question of parochiality, proof of reputation, un- accompanied by evidence of acts done, is clearly admissible. These declarations of deceased persons, as to boundaries or customs, &c. ought to come from persons who had no interest to misrepresent ; if they appear to have had any interest to make evidence for themselves or for others, what they said cannot be received. Any declarations made "post litem motam, that is, after the very same point or question has become the subject of controversy, are not admissible. (2) But, unless there should appear to be a controversy as to the same point, it will not be enough, for the purpose of excluding the declarations of deceased persons, to show, that they claimed under the same custom. This kind of evidence has been received, on a ques- tion of parochial modus, though the deceased was a parish- ioner, and liable to pay tithe (3) ; so also, on a question of parochial or manorial boundary, although the persons, who had been heard to speak of the boundary, were parishioners, and claimed rights of common on the very wastes, which their declarations had a tendency to enlarge. (4) Although, on a question of boundary or custom, the general opinion of the place is evidence of the general right, yet the tradition of a particular fact, (as, that turf was dug, or a post put down in a particular spot, &c.) said to have been done in the exercise of that right, will not be evidence (5); for the fact, which is the subject of tradition, may have been done under a licence from the very persons against whom, or (1) 1 Maul. & Sel. 689. 690. 12 (4) Nicholls v. Parker, 14 East, East, 65. 14 East, 350. 531.; tried before Le Blanc J. 1805. (2) See supra, p. 243. 246. on this (5) 3 T. R. 709. 5 T. R. 123. subject. 14 East, 550, 351. 1 Maul. & Sel. (3) Harwood v. Sims, 1 Wightw. 687. Chatfield v. Fryer, I Price, 112. 255. Garnons v. Barnard, 1 Anstr. 298. Sect. 7.] Hearsay not Evidence. 251 against whose privies, &c. the right is afterwards claimed ; On question and, in general, single facts are so frequently misrepresented, °j„h" Va e or misreported, either from intention or from ignorance, and the various circumstances, which have accompanied a fact, and which may be essentially characteristic, are often so little known, or, if known, are so likely to pass unobserved, and to be forgotten in the course of time, that no credit can safely be given to such a tradition. Thus, on a question of parochial modus, evidence that a particular person, since deceased, paid a certain sum in lieu of tithes, would not be admissible ; but if the witness says, he has heard from old inhabitants, that so much per acre was always paid in lieu of the tithes, that will be good evidence ; for it does not consist of hearsay of a particular fact, but comes within the general rule of evidence of reputation. (1) And, in questions of pedigree, as the repu- tation must proceed on particular facts, such as marriages, births, and the like, the hearsay of the family respecting these particular facts, from the necessity of the case, is not excluded. (2) With respect to the admissibility of common reputation, as Hearsay as to evidence of prescriptive rights strictly private, there has been P nvate rights- considerable doubt. In one of the latest cases on this sub- ject, (3), where, on a motion for a new trial, the question was, whether such evidence ought to have been received, as evi- dence of a prescriptive right of digging stones on a waste, the Court of King's Bench was equally divided. A book of authority lays it down broadly, that " in questions of prescrip- tion, it is allowable to give hearsay evidence, in order to prove general reputation : and that therefore, where the issue was on a right of way over the plaintiff's close, the defendants were admitted to give evidence of a conversation between persons not interested, then dead, wherein the right to the way was (l)Harwoodv Sims,, 1 Wightw. 327. Ld. Kenyon C. J. and Ashurst 112. Adams v. Evans, 4 Price, 20. J. against the evidence; Buller J. (2) 4 Campb. 416. and Grose J. for it. (3) Morewood v. Wood, 14 East, 'j.vj Hearsay not Evidence. [Ch. J. On question acknowledged." (1) But, on the other side, there are many ri-'ln™ 3 C great authorities against receiving this kind of evidence. (2) And there appears to be good reason for the distinction. For where individuals claim merely a private right, other people have not the same means of knowing it, nor, if they had, would they have the same interest to examine it. How, for instance, can the common belief among the inhabitants of a parish supply any kind of information, on a question of right of way claimed by an individual over a particular field? (3) In such cases, common reputation appears to give no satisfac- tory information, and to be inapplicable to the point in issue. In the case of Weeks v. Sparke (4), one of the latest cases on this subject, which was an action for a trespass on the plaintiff's close, parcel of a common, &c. the defendant justified for a prescriptive right of common at all times over the place, &c. and the plaintiff in his replication prescribed to use the place for tillage, &c. qualifying the defendant's general right; to support this prescriptive right of tillage, the plaintiff offered evidence of reputation, which was received at the trial ; and the Court of King's Bench were of opinion, that it had been properly admitted, on the ground, that the right claimed by the plaintiff, although claimed by prescription, yet was an abridg- ment of the general right of common over the waste, and affected a large number of occupiers within the district. It has been said, indeed, that in the case of the Bishop of Meath v. Lord Belfield (5) in a quare impedit, after the plain- (1) Bull. N. P. 295. And see the yon in Withnell v. Gartham, l Esp opinions of Buller J. and Grose J. N. P. C. 324. See also Clothier v. inMorewood v. Wood, 14 East,330. Chapman, 14 East, 331. n. Dids- n. 3 T. R. 709. In Webb v. Petts, bury v. Thomas, 14 East, 323. Noy, 44., it is said, the Court agreed Barnes v. Mawson, 1 Maul. & Sel. that proof by hearsay, of a modus 81. Blacket v. Lowes, 2 Maul. & for a particular farm, was admissible. Sel. 494. See also Price v. Littlewood, 3 (3) See 1 Maul. & Sel. 691. Campb. 288. stated infra. (4) 1 Maul. &. Sel. 679. See City (2) Lord Kenyon in Reed v. of London v. Clerke, Carth. 181. Jackson, 1 East, 357. Lord Ken- (5) Bull. N. P. 295. and cited by yon and Ashnrst J. in Morewood v. Buller J. in R. v. Eriswell, 3 T. R. Wood, 14 East, 329. Lord Ken- 719. S. C. reported 1 Wils. 215. Sect. 7- J Hearsay not Evidence. 253 tiff had given in evidence an entry, in the register of the dio- Old leases, rent-rolls, &c. cese, of the institution of one K., (in which entry there was a blank, where the patron's name is usually inserted,) parol evi- dence of the general reputation of the country was offered, that K. was in by the presentation of one, under whom Lord Bel- field claimed ; and that upon a bill of exceptions, this evidence was adjudged to be admissible, on the ground that a presentation may be by parol, and what commences by parol may be trans- mitted to posterity by parol, and that this creates a general re- putation. But Lord Kenyon, adverting to this case, in the case of the King v. Eriswell (1), said, he admitted, that a present- ation might be by parol, and might be proved by parol, that is, by a witness who was present and heard it: but he denied, that, in such a case, common reputation could be given in evidence. If it can, he added, why might not such evidence decide titles to estates, at least before the statute of frauds, when no written instrument was required to make a good feoffment of the greatest landed property in the kingdom. Fourthly, as to the admissibility of old leases, rent rolls, surveys, &c. Old leases and old rent-rolls have, in certain cases, been Old-leases, received in evidence, in favour of a party claiming under lent " ro1 s > iiC ' the lessors. (2) On a question, whether certain lands, which had been approved from a waste, were subject to a right of common, several counterparts of old leases, kept among the muniments of the lord of the manor, by which the land ap- peared to have been demised by the lord free from any such charge, were allowed to be evidence for the plaintiff, who claimed under the lord of the manor, against the defendant in trespass, who justified for common of pasture; they were admissible in evidence to prove this fact, that, at the time of their respective dates, the lord of the manor granted the land (1) 3 T. R. 723. Tellard v. Slieb- Ab. " Evidence," T. b. 43. 3 Brown, beare, 2 Wils. 566. Pari. Cases 553. By Heath J. in (2) Newburgh v. Newburgh, Vin. 1 Campb. 309. 254 Hearsay not Evidence. [Ch. 7« OKI leases, free from common ; and though possession under the leases rent-rolls, &C. . . , . , , was not shown, yet that was not an objection against the ad- mission of the evidence in this case, as the leases were so old that no person could speak to possession under them. ( 1 ) So, where the question was, whether the plaintiffs were entitled to a prescriptive right of exclusive fishery in a navigable river, which they claimed under the lords of the manor, they were allowed to give in evidence old entries of licences on the court- rolls of the manor, stating that the lords of the manor had the several fishery, and had granted the liberty of fishing for certain rents : nor was it thought necessary to prove pay- ment under these licences, as they were of such an ancient date, that evidence of payment could not reasonably be expected. (2) The old licences were, therefore, admitted ; but it, was added, that they would not be entitled to any weight, unless payment under similar licences could be proved in later times, or that the lords of the manor had exercised other acts of ownership, which had been acquiesced in. In the former of the two last-mentioned cases, the evi- dence consisted of counterparts of ancient leases, from which it appeared, that the demised lands were, at a certain time, not subject to common. In the latter case, the entries, offered in evidence, were entries on the court-rolls of the manor, to which the tenants of the manor would have access. But entries by a deceased person, of the receipt of rent for particular lands, would not be evidence for a party claiming under the deceased, to show that the lands belonged to his ancestor. Thus, in the case of Outram v. Morewood (3), (where one of the points to be established was, whether cer- tain lands, described in ancient title deeds, were the same, for which certain rents had been at several times paid,) the Court (1) Clarkson v. Woodhouse, 5 (3) 5 T. R. 125. And see Lord T.R.412. (a) Pomfret v. Smith, 7 Brown, P. C. (2) Rogers and others v. Allen, 5 T. R. 415. u. l Campb. 309., before Heath J. Sect. 7.] Hearsay not Evidence. 055 of King's Bench determined, that entries, made by a deceased Old-leases, person under whom the defendant claimed, acknowledging rent " ro s> c the receipt of rent for the premises in question, were not admissible evidence for the defendant. Lord Kenyon on that occasion, said, " This is distinguishable from all the cases cited. In those, something was produced in respect of the interest of the party ; and what the party did or said, may be evidence against himself. But here, the entry was a mere private memorandum, to remind the person that he had re- ceived the rent, and cannot be admitted to decide the right between these parties. Evidence of this kind can only be ad- mitted to restrain, not to advance, the interest of the party who makes it. What a man does in his closet ought not to affect the rights of third persons. There is only one instance in which this is allowed, namely, the books of an incumbent respecting his tithes. But that has been always considered an excepted case." " The general rule," said Lord Hard- wicke (1), in the case of Glyn v. The Bank of England, " is, that a man cannot make evidence for himself. What he writes or says for himself cannot be evidence of his right, and consequently cannot be for his representative claiming in his right and place. I will not say, (added Lord Hardwicke,) how length of time may vary it ; but otherwise it cannot be, any more than for himself." A survey of a manor or estate, made by the owner, is not Survey of evidence against a stranger, in favour of a succeeding owner, manon that particular lands are parcel of the estate. (2) But a survey, which was delivered by the owner to a purchaser of part of his estate, would be evidence against such former owner and against a purchaser of the other part ; as, in the case of Bridg- man v. Jennings (3), where Lord Holt ruled, that if A. be seised of the manors of B. and C, and during his seisin of (1) 2 Ves. 43. R. v. Dcbenham, (3) 1 Ld. Raym. 734. Gilb. Ev. 2 Barn. & Aid. 186. 70. And sec Davies v. Pierce, 2 T (2) Anon. 1 Str. 95 R. S3. Allott v. Wilkinson, 4 Gwill. 1585. ■256 Hearsay not Evidence, [Ch.7. Against interest. both he causes a survey to be taken of the manor of B., and afterwards the manor of B. is conveyed to E., and afterwards there are disputes between the lords of the manors of B. and C. about their boundaries, this old survey may be given in evidence: but it would be otherwise, said Lord Holt, if the two manors had not been in the hands of the same person, at the time when the survey was taken. A survey, then, which lias been made by a former owner of the estate, is not evidence of the locality or identity of land against any person, who was a mere stranger to the survey. Fifthly, as to the admissibility of declarations against interest. Declarations against inte- rest. The declarations or statements of deceased persons have been admitted, in many cases where they appear to be made against their interest ; as, entries in their books, charging them- selves with the receipt of money on the account of a third person ( 1 ), or acknowledging the payment of money due to themselves. (2) In either case, the entry is to their own im- mediate prejudice, and strong evidence of the fact, in consi- deration of which the moneyis said to have been received orpaid. Where the point in issue was, whether a certain waste was the soil of the defendant, entries by a steward, since deceased, of money received by him from different persons in satisfaction of trespasses committed on the waste, were admitted in evidence, to shew that the right to the soil was in his master, under whom the plaintiff claimed. (3) So rentals, in which a deceased bailiff or receiver charges himself with specified sums, are evidence to shew for what particular tenure, or in what right the money was received. (4) So, a bill of lading, signed by a deceased (1) Barry v. Bebbington, 4 T. R. 515. Harpur v. Brooke, .5 Woode- son, Lect. 352. Stead v. Heaton, 4 T. R. 669. (2) Warren v. Grenville, 2 Str. 1129. commented on by Lord Mans- field in Brydges v. Duchess of Chan- dos, 2 Burr. 1072. and by Lord EI- lenborough in Higham v. Ridgway, 10 East, 118. Doe dem. Reece and others v. Robson and another, 15 East, 3.5. 2 Price, 413. 437. (5) Barry v. Bebbington, 4 T. R. 515. (4) Harpur v. Brooke, 3 Woode- son's Lect. 332. Vin. Ab. " Evi- dence," (A. b. 15.) 13. Sect. 7.] Hearsay not Evidence. 257 master of a vessel, for goods to be delivered to a consignee, Against In- is evidence of property in the consignee, not only against the ' master, but also, as it seems, in an action of trover for the goods against a third person. ( 1 ) So, a written memorandum by , a deceased man-midwife, stating that he had delivered a woman of a child on a certain day, and referring to his ledger, in which a charge for his attendance was marked as paid, was thought by the Court of King's Bench to have been properly received in evidence, upon an issue as to the child's age. (2) This entry was made by a person, who, so far from having an interest to make it, had an interest the other way: for it appeared distinctly from other evi- dence, that the work charged was actually done; and the discharge in the book repels the claim, which he would otherwise have had. Upon the same principle, in a late case, in an action of ejectment by the first tenant in tail under a settlement (by which an estate was limited to A. for life, remainder to B. for life, remainder to C. his eldest son, for life, remainder to C.'s eldest son in tail, &c. with a power to the tenants for life to grant leases on condition of reserving the ancient rent,) against the defendant who claimed as lessee of C, to recover a part of the estate, which, as the lessor of the plaintiff complained, had been demised for less than the ancient rent, the Court of King's Bench held, that a letter addressed to B. by one intimately acquainted with the property, purporting to be a particular account of the ancient rents at that time, and recognized as such by B., and preserved by the successive owners of the estate, ought to have been received at the trial, as evidence of the ancient reserved rent against C, (a succeeding tenant for life, subject o the restrictions of the same power,) and also against the defendant claiming under C. This old paper, so accredited and adopted, was consid- ered to be equivalent to a declaration by B. himself. Lord (1) Iiaddow v. Parry, 5 Taunt. (a) Ilighain v. Ridgway, 10 East, 305. 109, no, Bullen v. Michell, 2 Trice, •n o. VOL, J. S teres! l 25S Hearsay not Evidence. [Ch. 7- Against In- Ellenborough, in delivering the judgment of the Court, said, _ " The contents of the paper were adverse to the title of the person who had possession of it, by diminishing the inte- rest in the fine on renewal, in the same proportion as it raised the rent to be reserved. Then at such a distance of time, with the means of knowledge which he had of the fact, and his interest in declaring it the other way, we think that his declaration is evidence of the fact to go to the jury." (1) And where the question was, whether some horses, which had been taken by the defendant under a heriot custom, belonged to the plaintiff or to one A. B., a deceased tenant of the defendant, declarations by A. B. were offered in evidence for the purpose of proving, that the horses belonged to the plaintiff before A. B.'s death, in which declarations A. B. stated, that he had given up his farm and all his stock to the plaintiff. This evidence was rejected at the trial; but the Court of Common Pleas, on a motion for a new trial, held that the declarations ought to have been admitted, since they were against the interest of the person who made them, and might have been given in evidence against him in his life-time, if the plaintiff had brought an action for the horses. (2) Upon the same principle, a paper signed by many deceased copyholders of a manor, importing what was the general right of common in each copyholder, and agreeing to restrict it, is evidence of reputation even against other copyholders not claiming under those who signed it. (3) So, a declaration (l) Roe d. Brune v. Rawlings, 7 mouth v. Roberts, 16 East, 554.; East, 279. 290. See also the fol- Hodgson v. Fullarton, 4 Taunt. 787.; lowing cases, in which declarations Wadley, v. Bailiss, 5 Taunt. 752. ; of deceased persons, against their Searle v. Lord Barrington, stated interest, were received in evidence ; in vol. %. Baggalley v. Jones, 1 Campb. 367. ; (2) Ivat v. Finch, 1 Taunt. Rep. Morewood v. Wood, 14 East, 528.; 141. Doe d. Reece v. Robson, 1 5 East, 33. ; (5) Chapman v. Cowlan, 1 5 East, Price v. Littlewood, 5 Campb. 288, 10. stated infra. And see Lady Dart- Sect. 7.] Hearsay not Evidence. 259 by the owner or occupier of adjoining land, that his neigh- Against In- bour's land extends to such a spot, accompanying an act of terest ' forbearance to go beyond the spot for that reason, (or without such act, if he speaks against his interest,) is evi- dence, that the land extends so far. (1) And the declaration of a deceased occupier of land, that he rented it under a certain person, is evidence of that person's seisin. (2) Such admissions or declarations against interest appear to be evidence upon the same principle, as the acts of a party against his interest ; they differ in degree and in their effect, rather than in their nature. An act of forbearance on one side is an admission of right on the other ; and proof of the exercise of a right, which has been acquiesced in, is still stronger evidence that the right exists. It is the constant practice to receive such evidence on questions concerning tolls, rights of way, freehold in wastes, and other cases of the same kind. (3) The memorandum or entry, before it can be received in evidence, must be proved to be authentic ; as, by shewing it to be the hand-writing of the deceased person, who knew the fact there stated, or that it was signed by him (4); or, if signed by another, that it was made by his order, or after- wards acknowledged by him. And as to the question, whe- ther a book produced was a receiver's book, that may be determined by internal evidence on an inspection by the Court. (5) In all the cases which have been mentioned on this sub- ject, the person, who made the entry or declaration in ques- tion, was deceased at the time of the trial : if the rule were not confined to such cases, there would be great danger of (1) Sir T. Stanley v. White, 14 (4) 4 T. R. 515,516. Jones v. East, 332. 339. 341. Waller, 3 Gwill. 847. Yatev. Leigh, (2) Uncle v. Watson, 4 Taunt. 16. 5 Gwill. 861. Doe dem. Jiaggalley v. Jones, 1 (5) Doe d. Webber v. Lord G. Campb. 367. Thynne, 10 East, 206. 4 T. R. 516. (3) 1 Str. 659. 14 East, 342. l Campb. 310. 5 Taunt. 752. S 2 260 Hearsay not Evidence. [Ch.7- Hector's or Vicar's book. collusion. It has, therefore, been held, that such evidence is not admissible, where the person is incapable of attending from illness. (1) This is the rule respecting the proof of mo- dern entries in private books. But entries in the public books of public companies are admitted, without the proof of the officer who made them. (2) Sixthly, as to the admissibility of the books of deceased rectors or vicars. Rector's and Vicar's books Entries made by a deceased rector or vicar, as to the receipt of ecclesiastical dues, have been in several cases admitted as evidence for his successor (3) ; because, it is said, he had no interest to mis-state the fact, in making an entry which could not possibly be evidence for himself. (4) " This," as Lord Hardwicke once said (5), "is going a great way, but has been allowed, because the parson knows, that his entry cannot benefit either himself or his representative, who has nothing to do with the living ; and it is not to be presumed (he added) that the parson would make false entries for his successor, who stands indifferent to him." * The cases have even gone still (1) Harrison v. Blades, 3 Campb. 457. Manby v. Curtis, 1 Price 282. 2.35. Cooper v. Marsden, 1 Esp. N. P. C. 2. stated infra. (2) Hodgson v.Fullarton, 4 Taunt. 7S7. by Mansfield Ch. J. The offi- cer was prevented from attending, by illness. This point was not sug- gested afterwards, among the grounds for entering a nonsuit. (5) Le Gross v. Lovemoor„2 Gwill. 529. Lord Arundel's case, 2 Gwill. 620. Perigal v. Nicholson, Wightw, 63. Armstrong v. Hewitt, 4 Price, 218. In this last case, the vicar's book was produced from the parish* chest; and it was said, that there were two other legitimate deposit- aries for such books, besides this of the parish-chest, namely, the bishop's registry, and.the registry of the arch- deacon of the diocese. (4) 7 East, 290. 1 Wjghtwick,63. (5) 2 Ves. 45. * Such evidence is said to have been refused in Le Gross v. Lovemoor, 2 Gwill. 527.; has been mentioned as a singular exception by Ld. Kenyon in Outram v. Morewood, 5 T. II. 123; was disapproved of by Mr. Baron Wood in Perigal v. Nicholson, 1 Wightw. Rep. 63., and in Bullen v. Michel, 2 Price, 456, also by Price B. in Woodnoth v. Ld. Cobham, 2 Gwill. 655. King C. J., in a case before him, in 1719, said, this evidence had been received per cursum Scaccarii, though he could not give a reason for it ; Vin. Ab. Ev. (T. b. 73.) See ante p. 229. as to the general ob- jections, to which hearsay evidence is liable; and Outram v. Morewood, supra, p. 254. Sect. 70 Hearsay not Evidence. 261 further: and similar entries, made by deceased impropriate' Y^ Ct0 ' l 'b°ok rectors, have been received as evidence for their successors, although objected to as coming from the owners of the in- heritance. (1) So, in a case where a question arose between- an impropriate rector and a vicar respecting agistment tithe, the Court of Exchequer held, that the books of a deceased lessee of the rectory, stating the receipt of such tithe, were- evidence, after the determination of the lease, for the im- propriator (2); and, on the other hand, entries by the steward of a former deceased owner of the estate, containing an account of payments to the vicar in lieu of the tithes of particular lands, have been admitted as evidence for a suc- ceeding owner against the impropriator. (3) In the late case of Perigal v. Nicholson and others (4), on a bill for tithes filed by the vicar against the defendants, who insisted upon a modus for hay and agistment, the Court of Exchequer ad- mitted, as evidence for the plaintiff, an entry in the parish register, stating, that various moduses were due from the different townships of the parish for hay only, in which entry the sum total of all the moduses was in the hand-writing of a preceding vicar, but it did not appear by whom the other part of the entry had been made. The majority of the Court held, as the report states, that the entry was admissible, upon the ground that the vicar had no interest beyond his incumbency, and there did not appear to be any dispute at the time, or previously, respecting these tithes ; and this entry, by admit- ting a modus in one article, was in abridgment of the rights of the vicar, and it was the application only which now accident- ally became favourable to his successor. It is essential in such cases, that the rector or vicar, whese books are offered in evidence, should appear to be dead ; if (l) Anon, case, Bunb. 46. Anon. (2) Illingworth v. Leigh, 4 Gwill case, before King C. J. Vin. Ab. Ev. 1618. T. b. 73., and T. b. 1 17. art. 3. II- (s) Woodnoth v. Lord Cobham, lingworth v. Leigh, 4 Gwill. 161 9. 2 Gwill. 65.3. Woodnoth v. Lord Cobham, 2 Gwill. (4) Wightw. 63. ; Wood 13. di*- 653.; Bunb. 180. S. C senting ■ 252 Hearsay not Evidence. [Ch. 7. Rector's or not dead, he must be called to prove the receipt of the sum Vicars boo . c jg e j < There have indeed been cases, where, from the circumstance of finding the books of a former vicar in the possession of a succeeding vicar, so far back as between the times of Charles the Second and George the Second, the death of the vicar might be reasonably presumed. The case of Jones v. Waller, is an instance (1), in which the book of a collector of tithes in 1679 was admitted as evidence in 1753, because it was not reasonable to suppose that the collector was then alive. In the late case of Manby v. Curtis (2), on the other hand, where the receipt purported to have been given in the year 1762, the Court of Exchequer determined, that the death of the person, in whose name the receipt was signed, could not be presumed after a lapse of fifty years, and, as this fact had not been proved, that the document ought not to be received in evidence. The cases, in which a deceased rector's books have been re- ceived as evidence, in favour of a succeeding rector, against a stranger, appear to be very distinguishable from the cases, before cited, in which the declarations or written entries were made by deceased persons, peculiarly if not exclusively ac- quainted with the fact. The utmost to be said of these is, that the declarations generally related to old facts, and were made by persons who could not have used them in their own favour; and the same may be said of a great variety of cases, in which the declarations of deceased persons have been uniformly rejected. The objection against hearsay, under which title such entries must be classed, (for, with re- spect to their admissibility, it is not material, whether the de- clarations were written or merely spoken,) is, not that the person, who asserted the fact, might have been interested to misrepresent it, but that the assertion was made not under the sanction of an oath, and that the party, against whom the evidence is offered, had no opportunity of questioning the (1) 5 Gwill. 847. the reasoning of Mr. Baron Wood (2) 1 Price, 225, 229. 255. Mr. in 2 Price, 456, 437. Baron Wood dissenting. See also 15 Sect. 7«] Hearsay not Evidence. 263 person as to the supposed fact. Here, the declarations were Tradesman's not against the interest of the person who made them, and ; were produced against a stranger ; and further, the rights, sought to be established by such declarations, were in their nature capable of various other kinds of proof. Seventhly, as to the admissibility of the books of a trades- man. Entries in the books of a tradesman by his deceased shop- Tradesman's man, who therein supplies proof of a charge against himself, 00 ' have been admitted in evidence, as proof of the delivery of goods, or of other matter there stated within his own know- ledge. Thus, in an action of assumpsit, where the usual course of the plaintiff's dealings appeared to be, that the dray- men of the plaintiff, who was a brewer, should come every night to the clerk of the brewhouse, and give him an ac- count of the beer delivered out by them, which he set down in a book kept for the purpose, and the draymen signed it ; the drayman, who signed the particular entry, offered in evi- dence, had since died, but his hand-writing was proved ; this entry was held to be good evidence of the delivery of the beer, for which the action was brought. (1) This declaration of the tradesman's servant, of having de- livered the goods, is an implied admission, that he received them for that purpose, and would have been evidence against him, in an action for not delivering them according to his in- structions. But it is clearly distinguishable from entries in the book of a receiver, who by making a gratuitous charge against himself, knowingly against his own interest, and without any equivalent, repels every supposition of fraud. A disposition to commit fraud would have tempted him to suppress altogether (1) Price v. Ld.Torrington, lSalk. a copy of a licence, in a merchant's 285.; 2. Ltl. Raym. 87-3. S. C. See letter-book, written by a deceased Pitman v. Madox, 2 Salk.690. j Cal- clerk, and proved to be in the usual vert v. Archbishop of Canterbury, course of business, was admitted in 2 Esp. N. P, C. 645. The entry of Hagedorn v.Reid, 5 Campb. 379. s 4< 2"* Hearsay not Evidence. [Ch. 7. bJok CSmanS tne ^ act °f nis h avin g received any thing, or to misrepresent the ■•■ amount of the sum, but not to mis-state the ground or consider- ation for which it was received ; that is, not to mis-state the only fact sought to be established by the proposed evidence. On the other hand, the declaration of the tradesman's servant is offered in evidence to prove the fact of delivery, and as he gives the account not against his own interest, which is some security for the truth of the statement in the other case, the probability, of his account being true or false, is neither greater nor less than the probability of his being honest or dishonest, which is nothing more than may be said in every case of hear- say. The circumstance of his thereby acknowledging the receipt of goods, which, it may be said, would be evidence \ in an action against him, seems to amount to little or no- thing. It was the least he could say : to have said nothing at all, would, as he must have known, necessarily lead to some inquiry. These considerations may serve to shew, how cautiously such declarations by shopmen are to be admitted in evidence, to charge third persons with the re- ceipt of goods ; more particularly, as the tradesman may easily be furnished with evidence of delivery, by taking a memorandum from the purchaser, or by requiring some other security. The entry in the tradesman's book ought to have been made by the shopman : or, if not actually written by him, should at least appear to have been observed by him soon after it was made, so as to enable him to speak to its cor- rectness, and that the entry may be tantamount to one made by the shopman himself, (l) If the shopman is living, he ought to be produced as a witness, that he may explain the circumstances and dealings, on which the entry was founded. When he is examined, he may use the entry as a memo- randum ; and the other party, charged with the debt, will then have an opportunity of examining into its correctness. If the person, who made the entry, was employed, as shop- (I) Digbyv. Stedman, l Esp. N.P.C.S27. Sect. 7.] Hearsay not Evidence. 265 man or clerk, to deliver goods, &c. and he is since dead, an Tradesman's entry made by him will be evidence under certain restrictions. But proof of the handwriting of the clerk, and that he is gone abroad, and is not likely to return, has been held not to be sufficient to make such an ex-parte memorandum admissible in evidence. (1) In the case of Evans and Lake, (2) a merchant's books were received in evidence under particular circumstances. The question there was, whether certain goods, which had been bought in the name of Mr. Lake, were purchased on his own account, or in trust for Sir Stephen Evans. To prove the latter of these positions, the assignees of Sir Stephen Evans, who were the plaintiffs, first shewed, that there was no entry in the books of Mr. Lake relating to this transaction ; they then produced several receipts in the possession of Sir S. Evans for the payment of part of the goods, and on the back of the receipts there was a reference in the hand- writing of Sir Stephen's book-keeper, since deceased, to a certain shop-book of Sir Stephen. Upon this, the question was, whether the book so referred to, in which was an entry for the payment of money for the whole of the goods, should be read. And the Court of King's Bench on a trial at bar, ad- mitted the entry, not only as to the part mentioned in the receipts, but also as to the remainder of the goods then in the hands of Mr. Lake's son. In this case (which Lord Hard- wicke has observed upon, as " new and having gone a great wa y>") ( 3 ) the entry was not offered by the assignees as evi- dence of payment against the seller of the goods, but as cor- roborating evidence to shew, that, while the books of the other party concerned took no notice whatever of the goods, those of Sir S. Evans, under whom the plaintiffs claimed, treated the goods as bought on his account. (1) Cooper v. Marsden, l Esp. Cooper v. Marsden, l Esp. N. P. T N. P. C. 2. C. 1. (2) Bull. N. P. 282, 285. and sec (3) Glyn v. Bank of England, 2 Ves. 43. book. 966 Hearsay not Evidence. [Ch. 7. Tradesman's In another case, where the plaintiff, to prove delivery of wine to the defendant, produced a book belonging to his cooper, since dead, whose name was subscribed to several articles, which it was proposed to read, after proof of the hand- writing, Lord Raymond C. J. would not allow it, saying it differed from Lord Torrington's case. ( 1 ) And Lord Kenyon ruled, in the case of Calvert v. Archbishop of Canter- bury (2), that, in an action for the hire of a pair of horses, an entry by the plaintiff's servant, since dead, stating the terms of the agreement with the defendant, ought not to be admitted. In an action by a tavern-keeper (3), it appeared, that the defendant belonged to a club, which was held at the plaintiff's house, and that in a room, where the club met, a book used regularly to be kept open, in which the plaintiff's servants entered the articles, as they were ordered by the members of the club, who had thereby an opportunity of inspecting and correcting the account. Lord Kenyon admitted the book as evidence of the delivery, though it was not proved that the servants, who made the entry, were dead, nor was their ab- sence accounted for, and only their hand-writing was proved. The daily account in the book was in this case considered as tantamount to a bill delivered and admitted by the de- fendant. The stat. 7. J. 1. c. 12. enacts, that the shop-book of a tradesman shall not be evidence, in any action for wares deli- vered, or work done, above one year before the bringing of the action, except the tradesman or his executor shall have ob- tained a bill of debt or obligation of the debtor for the said debt, or shall have brought against him some action, within a year next after the delivery of the wares, or the work done. (4) And the 2d section provides, that nothing in the act shall ex- (1) Clerk v. Bedford, Bull, N. P. (.5) Wiltzie v. Adamson, K. B. 582. See Cooper v. Marsden, l Esp. Sitt. after Mich. term. 17S9. M.S. N. P. C. 1. (4) Sikes v Marshall, 2 Esp. N. (2) 2 Esp. N. P. C. 646. P. C. 705. Sect. 7.] Hearsay not Evidence. 267 tend to the mutual trading and merchandize between trades- man and tradesman. At the time of making this act of parliament, there was an opinion growing up, that, after a certain length of time, a man's shop-books would be evidence for him, after the year : to prevent which the act was made. (1) However, the book is not evidence, even within the year, ex- cept under particular circumstances. An entry made by a tradesman himself, stating the delivery of goods, is not evi- dence for him ; but, whether made by him or not, it may often serve as a memorandum to refresh the memory of the shop- man, and for that purpose is admissible. An entry by a tradesman, stating a debt due from himself to a third person, is manifestly good evidence of the debt, as a statement against his interest; thus, entries by a bankrupt, and an account signed by him before his bankruptcy, charging himself with a balance, are admissible as evidence of the petitioning creditor's debt in an action by the assignees. (2) It is essentially neces- sary, in such cases, to prove the signing of the account, or the making of the entry, to have been before the act of bankruptcy, and to prove this by extrinsic evidence. (1) By Ld. Hardwicke, 2 Ves. 43. 576. Hoare v. Coryton, 4 Taunt. (2) Watts v. Thorpe, 1 Caiupb. 560. CHAP. VIII. Of the Examination of Witnesses. A FTER considering, in the last chapter, what kind of evi- dence ought to be produced for ascertaining the points in issue, the next subject of inquiry relates to the manner in which witnesses are to be examined. The ordinary mode of proceeding in the courts of common Examination law, preparatory to the examination of a witness, is to swear as to ,nterest - him in chief, unless an objection should be made to his com- '2GS Of the Examination of Witnesses. [Ch. 8. potency ; in which case, the practice formerly was to examine him on the voire dire, and this was so strictly observed, that, if a witness were once examined in chief, he could not after- wards be objected to on the ground of interest. (1) But in later times, the rule has been to a certain extent relaxed, and now, if it should be discovered in any stage of the trial, before the close of a witness's examination and before his dismissal, that he is interested, his evidence will be rejected. This is as well for the convenience of the Court, as for the purposes of justice. The examination of a witness, to discover whether he has any interest in the cause, is frequently to the same effect as his examination in chief; it therefore saves time and is more convenient, that the witness should be sworn in chief in the first instance ; and if it should afterwards appear, in the progress of the examination, that he is interested, it will then be time to take the objection. (2) Th is relaxation, how ever, of the ancient rule, does not extend so far, as to allo w the counsel on the cross-exami nation t o ask t he witness every sor t of question, which might be proper on the voire dire. For example, after an examination in chief, a witness is not to be cross-examined as to the contents of a will, not produced in court, under which it is suggested that he takes some interest, although such questions might be properly asked in an ex- amination on the voire dire. (3) Examination When the witness has been regularly sworn, he is first examined by the party which produces him ; after which,, the other party is at liberty to cross-examine. The examination is in open court, in the presence of the parties, their attornies, and counsel, and before the judge and jury, who have thus an opportunity of observing the understanding, demeanor, and inclination of the witnesses. It may often be advisable to examine witnesses separately, and out of the hearing of each (1) Sec Lord Lovat's case, 9 St. 57. Beeching v. Gower, Holt, Tr. 639. 64C. 704. N. P. C.513. (2) Turner v.Pearte, lT.R. 717. (3) Howell v. Lock, 3 Campb. Perigal v. Nicholson, l Wightw. 64. 14, Stone v. Blackburn. J Esp.N. P. C 18 in chief Ch. 8.3 Of the Examination of Witnesses. 269 other, with a view to obviate the danger of a concerted story Leading among the witnesses, and to prevent the influence which the queS ' account given by one may have upon another. * L eading questions , that is, such as instruct a witness how Leading to answer on material points, are n ot all owed on the examin- ation in chief; for, to direct witnesses in their evidence would only serve to strengthen that bias, which they are generally too much disposed to feel, in favour of the party that calls them. Questions which are intended merely as introductory, and which, whether answered in the affirmative or negative, would not be conclusive on any of the points in the cause, are not liable to the objection of leading. If it were not allowed to approach the points in issue by such questions, the examin- ation of witnesses would run to an immoderate length. For example, if two defendants are charged as partners, a witness may be properly asked, whether the one defendant has inter- fered in the business of the other. (1) This is not a leading question ; for though he may have interfered, it will not follow, that he has by this alone made himself liable as a partner. Or, if a witness, called to prove the partnership of the plaintiffs, is not able at the moment to specify the several names of the partners, a number of names, containing those of the partners among others, may be suggested to the witness, for the assist- ance of his memory. (2) If a witness should appear to be in the interest of the oppo- site party, or unwilling to give evidence, the Court will in its discretion allow the examination in chief to assume something (l) Nicholls v. Dowding and an- (2) Acerro and others v. Petroni, other, 1 Starkie, N. P. C. 81 , by Lord 1 Starkie, N. P. C. 100. Ellenborough. * By the law of Scotland, this separate examination takes place in all criminal prosecutions. The rule there is, that if a witness has been present in court during the examination of another witness, so as to hear his evi- dence, he will be rejected. Sec Hume's Com. on Crim. Law of Scotland, 2 vol. 3fi5, Burnet's Treatise, 467 £70 Of the Examination of Witnesses, [Ch. 8. Leading of the form of a cross-examination. The rule adopted by the question. . , pit courts of justice in Scotland, on the subject ol leading a wit- ness, appears to be much stricter than in this country. No distinction is allowed, according to their practice, between willing and unwilling witnesses, or between an examination in chief and a cross-examination. (1) It is to be considered, how far leading questions are proper, in the examination of a witness in chief, wh en the o bject is to prove, that another witness, who has b een examined o n the o p- posite side, has, on some former occasion, made a di fferent and contradictory statement. If, for example, a witness on his cross-examination were to deny, that he ever gave a different account of the transaction, or that, in conversing upon the subject with a third person, he ever used certain words or ex- pressions imputed to him, would it be competent to the counsel on the opposite side, in examining that third person in chief, as his witness, to ask him, in the first instance, whether the former witness, in conversing with him, said so and so, or used such and such expressions ? This form of put- ting the question is certainly not uncommon, and frequently passes without objection. But a very little consideration will shew, that such a leading question is irregular. For, in the first place, it must evidently be quite unnecessary to lead the witness to such a length ; it would be sufficient to lead him up to the subject of the conversation ; and, that being done, the most regular course would be, to inquire generally, what the former witness said, or what account be gave, relative to the transaction in question, thus leaving him, as in fairness he ought to be left, to the use of his own memoiy. If the wit- ness has a distinct recollection of the conversation, and of the representation made by the other person, whose account is now disputed, he requires only to have his attention directed to the subject, to enable him to speak what he knows ; if he has not that distinct recollection, he is ill-qualified to contradict the other witness, as to the expressions supposed to have been (l) See Burnet on Crim. Luw of Scotland, p. 465, Ch. 8.] Of the Examination of Witnesses. 271 used by him ; in other words, he is incompetent for the pur- Leading pose for which he is called. The plea of necessity, therefore, I ' altogether fails. But, further, to consider the inconvenience likely to ai'ise from such leading questions, the sti-ongest objection against them is, that they suggest the desired answer so broadly and obviously, that a witness of the dullest intellect and weakest memory can hardly fail to take the hint, and may easily shape his evidence, if he is so disposed, as may best serve the interest and wishes of the party who calls him. In effect, the question puts into the mouth of the witness the very words, which he is to echo back either in the affirmative or in the negative ; thus supplying a forgetful wit- ness with a false memory, and an artful witness with a prompt and concerted answer. Is there, then, any thing in the nature of this particular case, which ought to exempt it from the general rule applicable to examinations in chief? On the contrary, if there is any case, in which that general rule against leading ought to be more strictly maintained, it is the one now under consider- ation, where a witness is called for the purpose of proving the account, given by another witness, to be inconsistent with some former statement, supposed to have been made by him ; for whether the question at issue between the two witnesses is a question of credit, or whether it is to be considered rather as a question of mere memory, leading is, in either point of view, equally objectionable; if it is a question of memory, the only fair way of trying it, is by allowing the witness to speak for himself unprompted, as his own memory may suggest: if it is a question of credit, then it is undoubtedly due to the person, whose veracity is impeached, that the contradictory statement, supposed to have been made by him, should be distinctly proved, without the aid of leading, and without any undue in- fluence. Upon the whole, therefore, the most unexception- able and proper course ap pears to be, to ask the w itness, who is called to prov e a contradictory statement madebyanotherwitness, what that other witn ess sai d relative to the transaction in ques- tion, or what account he gave, and not in the first instance to ask, in the leading form, whether he said so and so, or used such and '27- Of the Examination of Witnesses. [Ch. S. Cross-exami- nation. such expressions. In the case of Courteen v. Touse (1), Lord Ellenborough allowed the counsel for the defendant to put a leading question to a witness called by him, in order to contra- dict a witness who had been called by the plaintiff; but that case is very distinguishable from the case now under consideration. In that case, one of the witnesses of the plaintiff, having been cross-examined as to the contents of a letter, received by him from the plaintiff, (which letter had been lost,) and having mentioned in his cross-examination some particular expres- sions as part of the contents, witnesses were called, on the part of the defendant, to speak to the contents of the same letter ; and Lord Ellenborough allowed the defendant's counsel to ask one of the witnesses, who had first stated all he recollected of the letter, whether it contained the particular words and ex- pressions, as represented by the plaintiff's witness. Here the object of the examination was, (not, as in the case above-sup- posed, to shew that a former witness had given two different re- presentations of the same transaction, ) but to ascertain a material fact in the case, by means of the plaintiff's letter ; and as the plaintiffs witness had stated what he conceived to be the language of the letter, and the defendant's witness had, on the other side, given his account of its contents, it then became perfectly reason- able to admit the question, whether the letter contained such ex- pressions, as represented by the witness on the other side, or any to that effect. Lord Ellenborough held, that " after exhausting the witness's memory as to the contents of the letter," (not, however, by leading questions, but by examining him in the regular manner), " the witness might then be asked, whether it contained a particular passage, recited to him, which had been sworn to on the other side ; otherwise it would be im- possible ever to come to a direct contradiction." Cross- examination. In cross-examinations, the object of which is to sift evi- dence and try the credibility of the witnesses, a great latitude is allowed in the mode of putting questions. The rule, how- (1) l Campb.43. Oh. 8. J Of the Examination of Witnesses. 273 ever, is still subject to certain limitations. A witn ess cannot Cross-examin- be cross-exam ined jis_to^ajTy fact, which, if admitted, would at ' on - be collateral, and w holly irrelevant to the matter in issue, for the purpose of contradicting him by other evidence, in case he should deny the fact, and in this manner to discredit his testimony (1); and if the witness ans wers such an irrelevant question before it is disallowed or withdrawn, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter. (2) In the application of this rule, the principal tiling to be considered will be, whether the question is irrelevant to the points in issue between the parties. In an action for usury, it would be entirely immaterial and irrelevant, to cross-examine the witness respecting other con- tracts, supposed to have been made by the defendant, unless the witness had first said, that the contracts were the same ; and that was the point in the case of Spenceley v. De Willot. So it would be irrelevant, to ask a witness in cross-examination, whether he had not attempted to dissuade another witness from attending the trial. (3) But it is not irrelevant, on the trial of a prisoner, to cross-examine the witness to this point, whether, in consequence of being charged with robbing the prisoner, he had not said that he would be revenged upon him, &c. ; and if the witness should deny having used such a threat, evidence may be given to contradict him. (4) If a witness is called by a party merely for the purpose of producing a written instrument, belonging to the party, which is to be proved by another witness, he need not be sworn ; and, unless sworn, he will not be subject to cross-examination. (5) But if a witness is sworn, and proves an instrument (however formal the proof may be,) on the part of the plaintiff, he is to be considered a witness for all purposes, although he may be (1) Spenceley v. De Willot, 7 East, (4) Yewin's case, 2 Campb. fi38. n. 108 before Lawrence J. (2) Harris v. Tippet, 2 Campb. 638. (5) See Part 2. Ch. 8. S. 2. R. v. (3) Ibid. 657. Brooke, 2 Starkie, N. P. C. 473. VOL. I. 274 Of the Examination of Witnesses. [Ch. 8. Cross-cxamin- substantially the real defendant in the suit, and the defendant ' on the record a mere nominal party. (1) When a witness has been once sworn to give evidence, the other party may cross-examine him, though he gave no evi- dence for the party that called him. (2) And it is reported to have been ruled at nisi prius, that if a witness has been once examined by a party, the privilege of cross-examination con- tinues in every stage of the cause ; so that the other party may call the same witness to prove his case, and in examining him may ask leading questions. (3) In the case referred to, the witness might possibly have shewn a strong bias in favour of the first party that called him, and on this account perhaps a greater scope was granted to the adverse party than is usually allowed. It may happen, on the other hand, that the plaintiff calls a witness unwillingly, and from mere necessity, knowing him to be favourable to the other side : in such a case to allow the defendant, on calling him up afterwards as his own witness, to put leading questions, would be giving him an unreasonable advantage ; on the contrary, the Court might perhaps be induced to invest the plaintiff's counsel with some of the powers of cross-examination, at the same time that it would probably oblige the defendant's counsel to treat such a witness strictly as his own, and confine him within the limits of an examination in chief. cross- examination Leading in Leading q uestions^are admitted in the cross-examination o f _ a witness, w here much larger powers are given to counsel than in the original examination. Witnesses, upon the cross-ex- amination, may be led immediately to the point, on which their answers are required. (4) If they betray a zeal against the cross-examining party, cr shew an unwillingness to speak fairly and impartially, they may be questioned with minuteness as to (1) Morgan v. Bridges, 2 Starkie, (3) Dickinson v. Shee,4Esp. N.P. N. P. C. 314. R. v. Brooke, 2 C. 67. Starkie, N. P. C. 473. (4) See Hardy's case, 24 Howell's (2) Phillips v. Earner, 1 Esp. N.P.C. St. Tr. 755., by Buller J. 357. Ch. 8.] Of the Examination of Witnesses. QTJ5 particular facts, or even particular expressions. There can be Obligation to no danger in leading too much, where the witness is obstinately ' determined not to follow. On the other hand, instances fre- quently occur, where the witness is adverse to the party who calls him, and leans strongly to the other side : here, there must be, in reason and justice, some restrictions as to the form and manner of putting questions. How often it happens, that a witness, in cross-examination, waits only for a hint, to shape a favourable answer, and is in effect the witness of the cross- examining party, though technically called the witness of the opposite side. To put strong leading questions to such a witness, Avithout limitation or reserve, is substantially pre- paring a statement for him, and appears to be inconsistent with justice and a fair trial. An instance of the kind, here described, occurred on the trial of Hardy for high treason. (1) A witness, who was a member of the same corresponding society as the prisoner, having been examined on the part of the prosecution, and having made, on his cross- examination, a favourable representation of the political opinions and designs of the society, was asked, whether some of the members had not used certain expressions on the sub- ject of petitioning ; upon which, the Lord Ch. Justice Eyre, reminded the counsel, that he could not put the very words into the witness's mouth; that this was contrary to the practice of his Court and to his opinion. And on the follow- ing day (2), when the subject occurred again, Mr. Justice Buller referred to the rule laid down by the Chief Justice, as the correct rule of practice ; and added, " You may lead_a_ witness upon a cros s -examination, to bri ng him d irect ly to the point as to the ans wer ; but not to go_the_length, as was attempted yesterday, of putting i nto the witness's mo uth the very words, which he is to echo back again." The privilege of witnesses, in not being compellable to answer Privilege of , . „ mi witness in not certain questions, is a subject or some importance. 1 lie cases answer i n g. (1) 24 Howell's St. Tr.659. (2) P. 755. T 2 27.6 Of the Examination of Witnesses. [Ch. 8. Obligation to here considered, are those, in which the witness might by answer. answering subject himself to a pe nalty or criminal prosecution, to civil proces s, or to any kind of forfeit ure ; and lastly, where the question, put to him, is degrading to his characte r. 1. Where the First, a witness cannot be compelled to answer any ques- s'^tt U t ' on ' which has a tendency to expose him to a penalty, or to alties, &c. any kind of punishment, or to a criminal charge. (1) Thus, on an indictment for a rape, the woman is not obliged to an- swer, whether on some former occasion she had not a criminal connection with other men or with particular individuals (2) ; nor is evidence of such criminal intercourse admissible. (3) So, on an appeal against an order of bastardy, a person can- not be compelled to acknowledge himself the father of a bastard child ; but there is no objection to his being sworn, and, if he chooses, he may confess the fact. (4) So it has been held, in an action for a libel (5), which was published by the defendant in a voluntary affidavit, sworn extrajudicially before a magis- trate, that the magistrate's clerk is not bound to answer, whether he wrote the affidavit, and delivered it to the magistrate ; be- cause, it is said, the bare copying out of a libel is criminal. An accomplice, who is admitted to give evidence against his asso- ciate in guilt, though bound to make a full and fair confession of the whole truth, as to the subject-matter of the prosecution, is not bound to answer with respect to his share in other offences, in which he was not concerned with the prisoner ; for he is not protected from a prosecution for such of- fences (6). (1) Sir J. Freind's case, 4 St. Tr. 1812. MS. Dodd v. Norn's, 5 6. Lord Macclesfield's case, 6 St. Canipb. 519. Tr. 649. R. v. Ld. G. Gordon, (3) By the opinion of all the 2 Doug. 595. Title v. Grevet, 2 Ld. Judges in Hodgson's case, MS. Raym. 1088. 16 Ves. jun. 242. (4) R. v. St. Mary's Nottingham, Preamb. st. 46 G. 5. c. 57. Hardy's 13 East, 58. n. case, 24 Howell's St. Tr. 720. Trial (5) Maloney v. Bartley, before of De Berenger and others, by Gur- Wood B. 5 Campb. 210. A bill of ney, p. 195. Cates v. Hardacre, 3 exceptions was tendered, but after- Taunt. 424. wards dropped. (2) Hodgson's case, by a majority (6) West's case, supra, p. 40. (2]. of the judges on a case reserved, Ch. 8.] Of the Examination of Witnesses. 277 Secondly, as to the case, where the witness ,_by answering Obligation to might subject himself to a civil action, or charge himself with ' a debt^ _ Considerable doubts have been entertained upon this point ; some judges being of opinion, that he is not compellable to answer such questions, and others being of a contrary opinion.* To settle the rule of law on this subject, t he stat. 46 G. 3. c. 37. was introduced, which declares, that a witness cannot legally refuse to answer a question, relevant to the 2> where the matter in issue, (the answering of which has no tendency to answer might ., ., , . , re- c su bject to a accuse lnmselr, or to expose him to penalty or torreiture 01 c i v jj su j t# any nature whatsoever,) on the groun d, that the ans wering of su ch question m ay establish, or tend to establish, that he owes a debt, or i s other wise subject to a civil suit. The right, which the parties to a suit have, to refuse answering any * This subect was much discussed, in the course of the impeachment against Lord Melville, and referred to the Judges for their opinion. The only report, which the author has seen, of these proceedings, is that to be found in the sixth volume of Cobbett's Parliamentary Debates ; from which the follow- ing brief account is extracted. A bill had been brought into the House of Lords, to indemnity witnesses from criminal prosecutions and from civil process, to which they might be exposed by giving evidence. The indemnity from criminal prosecutions was agreed to ; but some doubts arising with re- spect to the indem nification from civil process, several questions were referred to the Judges, with the view of ascertaining, whether persons were legally justified in refusing to answer questions, the result of which might subject them to a civil suit. (6 vol. Pari. Deb. p. 167.) Three questions were pro- posed ; the object of the first and second was to ascertain, whether a witness could demur to answer a question, the result of which might render him liable to an action for debt, or to a suit for the recovery of the profits of public money ; the object of the third was to ascertain, whether a wit- ness, who, on making a full and fair disclosure, was to be excused from certain debts, could be legally objected to, on the ground of his being in- terested. (P. 222.) The Lord Ch. Justice Mansfield, who delivered the opinon of the Judges, stated, that upon the two first questions they were divided in opinion ; and that on the third question they were unanimously of opinion, that a witness, in the situation described, could not be rejected on the ground of interest, since whatever might be offered, on condition of his making a fair and full disclosure, could legally make no difference with respect to his evidence, the witness being bound by his oath, by law, morality, and honour, to declare the truth, the whole truth, and nothing but the truth. (P. 22.3.) The House of Lords then called upon the Judges to deliver their opinions seriatim on the proposed questions. (P. 226, 227.) The Judges accordingly delivered their opinions in order. Four of the Judges (Lord Ch. Justice Mansfield, Grose J.,Ptooke J., and Thomson J.) were of opinion, that a witness was not compellable to answer any question, the answer to which might subject him to a civil action : the other Judges, together with the Lord Chancellor, and Lord Eldon, were of the contrary opinion. (P. 254. 245.) T 3 Of the Examination of Witnesses. [Ch. 8. : on to question, is not in any degree affected by this statute; and ' therefore on a question of settlement, a rated parishioner is not compellable by the adverse parish to give evidence, as he is directly interested as party to the appeal, and does not come within the words or meaning of the act. (I) 3. Where the answer might subject to for future. Thirdly, a witness is privileged from answeri ng any ques- tion, the answer to whi ch m ight subject him to a forfeiture of his estate. The declaratory statute, before referred to, im- plies, that a witness may legally refuse to answer any question, which has a tendency to expose him to forfeiture of any nature whatsoever. At the time of passing this act, when the general privileges of witnesses were much discussed, it was proposed to insert in the act a proviso, that no mortgagee or bona fide purchaser or possessor of an estate should be compelled to answer any question, the answering of which might probably tend to defeat his title, or incur a forfeiture of his estate. This proviso was afterwards withdrawn. However, several of the Judges, who on that occasion were of opinion, that the liability to a civil action or to a pecuniary charge ought not to exempt a witness from answering questions, yet considered the probability or danger of incurring a forfeiture of estate to be a legal. ground of exemption. And it is an established principle in courts of equity, that a party is not bound to answer, so as to subject himself to pains or penalties, or to any kind of puni shment, or to any forfeiture of interest. (2) 4. Where the answer might degrade the witness's character. The last case, to be mentioned on this subject, is, where a question is asked, the answer to which has a direct tendency, to degrade the witness's character, though it may not subject him to a criminal prosecution. If a witness, for instance, were to be asked, whether he had not suffered some infamous punishment, or if any other question of the same kind were asked, imputing guilt to the witness in some past transaction, (l) R. v. Inhabitants of Wbburn, 10 East, 395. (2) The cases upon this subject are collected in Mitford's Treat, on Chanc. Pleadings, p. 157 — 165. Ch. 8.] Of the Examination of Witnesses. 270 answer. and not relevant to the matters in issue, would he be com- Obligation to pellable to answer ? The inquiry here made, it is to be ob- served, relates only to such questions as are not relevant to the matters in issue ; for if the transaction, to w hich the wit- ness is interrogated, for m any part of the issue, he will be oblig ed to give evidence, however strongly it may reflect upon his character. There seems to be no reported case, in which this point has been solemnly determined ; and, in the absence of all express authority, opinions have been much divided. The advocates for a compulsory power in cross-examination maintain, that, as parties are frequently surprised by the ap- pearance of a witness unknown to them, or, if known, entirely unexpected, without such power they would have no adequate means of ascertaining, what credit is due to his testimony ; that, on the cross-examination of spies, informers, and accom- plices, this power is more particularly necessary ; and that if a witness may not be questioned as to his character at the moment of trial, the property and even the life of a party must often be endangered. — Those, on the other side, who maintain that a witness is not compellable to answer such questions, argue to the following effect : they say, the obli- gation to give evidence arises from the oath, which every wit- ness takes ; that by this oath he binds himself only to speak touching the matters in issue ; and that such particular facts as these — whether the witness has been in gaol for felony, or suffered some infamous punishment, or the like, — cannot form any part of the issue, as appears evident from this consider- ation, that the party, against whom the witness is called, would not be allowed to prove such particular facts by other wit- nesses : that it would be an extreme grievance to a witness, to be compelled to disclose past transactions of his life, which may have been since forgotten, and to expose his character afresh to evil report, when, perhaps, by his subsequent con- duct he may have recovered the good opinion of the world : that if a witness is privileged from answering a question, though relevant to the matters in issue, because it may tend to subject him to a forfeiture of property, with much more reason ought he to be excused from answering an irrelevant question, to the t 4 280 Of the Examinatioyi of Witnesses. [Ch. 8, Obligation lo disparagement and forfeiture of his character : that in the case ' of accomplices, in which this compulsory power of cross- examination is thought to be more particularly necessary, the power may be properly conceded to a certain extent, because accomplices stand in a peculiar situation, being ad- mitted to give evidence only under the implied condition of making a full and true confession of the whole truth ; but even accomplices are not to be questioned, in their cross- examination, as to other offences, in which they have not been concerned with the prisoner (1): and with respect to other witnesses, the best course to be ad opted, both in point of convenience and justice, is to allow th e quest ion to be asked , at the same time allowing the witness t o shelter him s elf unde r his privilege of ref using to an swer^ and, if he refuses, to leave it to the jury to draw their own conclusion as to his motives for such refusal. — Although there appears not to be any express decision on the point, whether a witness is compellable to answer questions degrading to his character, yet several opinions have b een pronounced by Judges of great authority, from which it may be collected, that the witness is not com - pellable to answer such questions. They are as follows : 1. In Cook's case, reported in the State Trials (2), where a question arose, whether a juryman, who had been challenged, might be examined as to his having asserted the guilt of the prisoner before the trial, C. J. Treby said, " You may ask upon the voire dire, whether he has any interest in the cause, nor shall we deny you liberty to ask, whether he is qualified according to law by having a freehold of sufficient value : but that you may ask a juror (3) or witness every question that will not make him criminous, that is too large. Men have been asked, whether they have been convicted and pardoned for felony, or whether they have been whipped for petty larceny, but they huvc not been obliged to answer ; for although their answer in (1) See West's case,supra, p. #0.(2). (3) See aLo Co. Litt. 158. b. (2) 4 St. Tr. 7 is. S. C. I Salk. 1.55. Ch. 8.] Of the Examination of Witnesses. 281 the affirmative will not make them criminal, nor subject them Obligation to to punishment, yet they are matters of infamy, and if it be ' an infamous thing^fh at is enough to preserve jzjnati from being hound to answer. A pardoned man is not guilty : his crime is purged. But merely for the reproach of it, it shall not be put upon him to answer a question, whereon he will be forced to for- swear or disgrace himself. So, persons have been excused from answering, whether they have been committed to bridewell, as pilferers or vagrants, $c. ; yet to be suspected is only a mis- fortune and shame, no crime. The like has been observed in other cases of odious and infamous matters, which are not crimes indictable." 2. On the trial of Sir John Freind for high treason (1), a question arose as to the propriety of asking a witness, whether he was a Roman Catholic. The Court determined, that the question could not be asked, as the witness might, by his answer, subject himself to several penalties. C. J. Treby, on that occasion, said, " No man is bound to answer any ques- tions, that will subject him to penalties or to infamy. If you should ask him, whether he were a deer-stealer, or whether he were a vagabond, or any other thing that will subject him to punishment either by statute or by common law, whether he be guilty of a petty larceny, or the like, the law does not oblige him to answer any such questions." 3. In Layer's case (2), on an indictment for high treason, the prisoner insisted that a witness should be examined on the voire dire, whether he had a promise of pardon, or some other reward, for swearing against him; the point was ar- gued by his counsel, and over-ruled by the Court. The Lord Ch. J. Pratt said, " You see, the most you can make of it'is, that it is an objection to his credit; and if it goes to his credit, must he not be sworn, and his credit left to (1)4 St. Tr. 259. This opinion case of R. v. Lewis, 1 Esp. N. P. C. of Ch. Justice Treby was approved 22.5. of by Lord Elltnborough in the (2) 6 St. Tr..25£/. - VJt.J ggg Of the Examination of Witnesses. [Ch. 8. Obligation to the jury? He must be examined as a legal witness. But answcr - if this man, under expectation or promise of a pardon, comes here to swear that which is not true, and you would ask him to that, he is not obliged to answer it. Nobody is to discredit himself, but always to be taken to be innocent, till it appear otherwise. If they who ask the question, insinuate any thing like that, (namely, that the witness can give no evidence ex- cept what is false,) it ought not to have an answer ; but if he has a promise of pardon, if he gives true evidence, it is no objection to his being a witness, or to his credit." And Mr. Justice Fortescue Aland, referring to a case cited, where a similar point was made and overruled, said, " The reason the Court gave, (that it was improper to ask this question on the voire dire,) was, that if he had this promise, such promise was made either to speak the truth, or to speak a falsehood ; if it were to give just and true evidence, there was no harm in it ,• and if it was a promise of pardon for speaking what was not true, the witness was not bound to answer that question" Whether questions, of such a d escription, may not be legally asked, is a very different point from that before con- sidered, whether the witness is compellable to answer. It may be just to allow a witness the privilege of not answering in certain cases ; but that the party, against whom the witness appears, shall not be allowed to ask the question, and force him to his privilege, is a proposition, which, if carried into practice, might often be attended with dangerous consequences. There are two nisi prius decisions, in which it seems to have been held, that a question, the object of which is to degrade the witnesses character, cannot be properly asked. * How- * R. v. Lewis 4 Esp. N. P. C. 225. Macbride, v. Macbride, lb. 242. — The case of R. v. Lewis was a prosecution for an assault The report states, that the prosecutor, who was a common informer, and a man of a suspicious character, was asked, in the course of the cross-examination, whether he had not been in a house of correction; Lord Ellenborough, it is said, interposed, and stated, that this question should not be asked. The Chief Justice, in sup- port of this opinion, referred to the rule laid down by Ch. Justice Treby, Ch. 8.] Of the Examination of Witnesses. 283 answer. ever, there are many other cases, in which questions of this de- Obligation to scription have been allowed by the Court. (1) The opinion of Ch. Justice Treby, and the other Judges, before cited, upon the point, whether the witness is compellable to answer, imply, that there is no objection, in point of law, to the asking the question ; but that the objection arises in a later stage of the (l) In the case of R. v. Edwards, case occurred at the sittings in K. B. 4 T. R. 440. on an application to bail after Hil. Term, 1818. In the case a prisoner, the Court allowed the of Frost v. Holloway, Mr. Scarlett, counsel to ask one of the bail, whe- in cross-examining a witness, asked ther he had stood in the pillory for him, whether he had not been tried perjury; the question was objected for theft at Reading. The witness to, but the objection was overruled, refused to answer, and appealed to hi Watson's case, for high treason, Lord Ellenborough, whether he was questions of this description were bound to answer such a question, frequently asked. An instance oo Lord Ellenborough said, " If you do curred also in Lord Cochrane's trial, not answer the question, I will com- p. 419. by Gurney ; and in Hardy's mityou. ;" adding, "you shall not be case, 24 Howell's St. Tr. 726. See compelled to say, whether you were also, 11 East, ."11. The following guilty or not." before mentioned, that a witness is not bound to answer any question, the object of which is to degrade or render him infamous; and added, that he thought the rule ought to be adhered to. Now, it seems probable, from the reasoning of Lord Ellenborough, and from the former part of the re- port, stating, that the witness was a common informer and of a suspicious character, (which shews, that questions, reflecting upon his character, had been already asked without objection, and had been also answered,) it seems highly probable from these circumstances, that the witness, on being ques- tioned as to the particular fact of his having been in a house of correction, either appealed to the Court for protection, or shewed an unwillingness to answer ; and if, after this, the question had been repeated, it might be thought necessary to interpose, and intimate, that the witness could not be compelled to answer, and that the question, therefore, ought not to be pressed ; this shews the application of the rule, which Lord Ellenborough cited as having been laid down by Ch. Justice Treby, as to the privilege of the witness in not answering, which would have been cited prematurely, if the single point in discussion were, whether the question covdd in the first instance be legally asked. The observation here made, will perhaps have more weight, when it is remembered, that Lord Ellenborough continually permitted such questions to be asked without the slightest disapprobation, a fact well known to all who are acquainted with the practice of that great master of the law of evidence. — Macbride v. Macbride, was an action of assumpsit ; a woman, having given evidence of the plaintiff's demand, was asked on the cross-exa- mination, whether she did not live in a state of concubinage with the plain- tiff, when Lord Alvanley interposed, and is reported to have said, he thought questions as to general conduct might be asked, but not such as went imme- diately to degrade the witness. On the trial of O'Coigley and O'Connor, a question was asked in cross-examination, which threw an imputation on the witness, and the counsel was not allowed to repeat the question or follow it up by another; but here the witness had first appealed to the Court for protection. (26 Howell's St. Tr. 1555.) 284 Of the Examination of Witnesses. [Ch. 8. Privileged communi- cations. cross-examination, namely, when an attempt is made to com- pel him to answer. They are as strong authorities for the one position as for the other. The same observation may be made also with respect to the statute before referred to ; which seems to imply, that there is no legal objection to a question which may subject the witness to forfeiture, al- though, if the question is asked, he may legally refuse to answer. In addition to this, it may be observed, the commo n practice of courts of ju s tice, before the most approved Judges, will abundantly fu rnish instan ces of such questions being asked, and not being disallowed as contrary to the rules of law: and it is difficult to see, how a question can properly be deemed illegal, when, if the witness chooses to answer, his answer must undoubtedly be received as evi- dence. Privileged communi- cations. There is another privilege, relating to certain kinds of in- formation, in the knowledge of a witness, which courts of justice will not permit him to disclose. This is not the privi- lege of the witness, but may be justly called a public privi- lege, and is observed by courts of justice on a principle of public policy, and from regard to public interests. On the trial of Hardy for high treason, a witness, who had been employed by an officer of the executive government, to collect information at a meeting of one of the corresponding societies, was not allowed to disclose the name of his employer, or the nature of the connection, that had subsisted between himself and the officer. (1 ) Another witness, in the course of the same trial, had made reports, from time to time, of the proceedings of some corresponding societies, and had made these reports by the advice of a third person, and under the impres- sion, that the information, contained in the reports, would (l) 24 Howell's St. Tr. 753. on high treason ; and in the prosecution cross-examination of Groves. The of Walker and others for a con- same principle was acted upon in the spiracy. prosecution of Home Tooke for Ch. 8.] Of the Examination of Witnesses, 285 be transmitted to another quarter for the purpose of dis- Privileged closure ; this witness was asked, whether he had communi- cated his reports to a magistrate of any description ( 1 ) ; Lord Ch. Justice Eyre considered this a proper question ; the wit- ness, on answering in the negative, was then asked, to whom he had made the communication. This question was objected to ; Lord Ch. Justice Eyre, upon this, said, " It is perfectly right, that all opportunities should be given, to discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons, who are the channel by means of which that detection is made, should not be unnecessarily disclosed ; if it can be made appear, that it is necessary to the investigation of the truth of the case, that the name of the person should be disclosed, I should be very unwilling to stop it, but it does not appear to me, that it is within the ordinary course to do it, or that there is any necessity for it in this particular case." The cross-examination of the same witness then pro- ceeded, and the witness admitted, that he had communi- cated what he knew to a friend, who advised him to com- municate his reports of the proceedings to another person. He was then asked, whether that friend was a magistrate; this he answered in the negative: then came the question, who was the friend ? This was objected to (2) : and the ob- jection was, that the person, by whose advice the information was given to a person standing in the situation of magistrate, was, to all intents and purposes, the informer, and that his name therefore could not be disclosed. (3) The Judges differed in opinion upon this point; the Lord Chief Baron Macdonald, and Mr. Justice Buller, were of opinion, that the question was proper : but the majority of the Court, consisting of the Lord Chief Justice Eyre, Mr. Baron Hotham, and Mr. Justice Grose, were of the opposite opinion. Lord Chief (l ) 24 Howell's St. Tr. p. 80S ; on (2) lb. p. s n . the cross-examination of Lynam. (3) lb. p. sh communi- cations. l 2So Of the Examination of Witnesses. [Ch. 8. Privileged Justice Eyre said, " those questions, which tend to the dis- unions, covery of the channels, by whom the disclosure was made to ' the officers of justice, are not permitted to be asked ; that such matters cannot be disclosed, upon the general principle of the convenience of public justice; that all persons in that "situation are protected from discovery ; that it is no more competent to ask, who the person was that advised the witness to make a disclosure, than it is to ask, to whom he made the disclosure in consequence of that advice y or than it is to ask any other question respecting the channel of information, or what was done under it." Mr. Justice Grose considered the adviser of the witness to be substantially in the situation of an informer, and that his name therefore ought not to be revealed. Mr. Baron Hotham also considered the person to be an informer ; the witness, he said, had made the communication to his friend, under an impression and full persuasion, that through him the intelligence might be conveyed to a magistrate ; and that there was no distinction, he added, between making a disclosure to the magistrate himself, or making it to another person, who was to communicate it to the magistrate. The Judges, who were of opinion, that the question might properly be asked, admitted the general rule, and differed only in the application of that rule to the particular facts of the case. The Lord Chief Baron said, if he were satisfied, that the friend, to whom the witness disclosed this matter, was in any way a link in the communication, he should certainly agree, that the rule applied to him ; but this person not being connected either with the magistracy, or the executive government, the case did not appear to him to fall within the rule. Mr. Justice Buller admitted the rule with respect to the informer to the utmost extent: " if the name of the informer," he said, " were to be disclosed, no man would make a discovery, and public justice would be defeated." He admitted also, that if a middle man is made the channel of communication, he ought to receive the same protection, as the first person to whom it is mentioned. But he differed in opinion only as to the situation of the friend, respecting which this question arose: in his view of the evidence, he considered that the witness had Ch. 8.] Of the Examination of Witnesses. 287 communicated the information to another man, not for the Privileged purpose of prevailing upon him to make the disclosure to a cat ions. magistrate, but merely to consult him for the purpose of ■ making up his own mind, whether he should himself make the discovery ; he Mas therefore of opinion that the witness ought to be allowed to answer the question. Hence it appears, that ji witness, who has been_em ployed to collect secret information for the use of government, or for the purposes of the j3olice } will not be pe r mit ted _to_dis close the name of his employer, or the nature of the connection be- tween that employer and himself, or the name of any person from whom he may have received the information ( 1 ), or the name of the person to whom he may have conveyed the inform- ation for the purpose of being transmitted : or any other_ matter respecting the channel of information. And as it would not be proper to enquire, to what officer of government the information had been given, so neither can it be asked, whether the communication has been made by that officer to the government. (2) Upon the same principle, official communications, between the governor and law officer of a colony, respecting the state of the colony (3) — orders given by a governor of a colony to a military officer (4) — a correspondence between an agent of government, and a secretary of state (5) — the report of a military court of inquiry, respecting an officer whose conduct the court had been appointed to examine (6) — are confiden- (1) And see 2 Brod. & Bing. 162. of the Earl of Strafford for high (2) R. v. Stone, cited by Lord treason, in the reign of Charles Ellenborongh in R. v. Watson, 2 the First, that nobleman's con- Starkie, N. P.C.I 56. Another ex- fidential advice to the King, at the ample may be seen in De Berenger's council-table, was brought forward ease, p. 544 of Gurney's edition. against him, and used to his ruin ; (5) Wyatt v. Gore, Holt, N. P. a most iniquitous proceeding, and C. 299. justly stigmatised by the great his- (A) 2 Starkie, N. P. C. 183. torian of those times, as "tending (5) Anderson v. Sir W. Hamilton, " to banish for ever all future free- 2 Brod. & Bing. 156. Note. " dom from the council-board, and (6) Home v. Lord T. Bentinck, " from those persons from whom 2 Brod. & Bing. 130. On the trial " his Majesty was to expect advice 288 Of the Examination of Witnesses. [Ch. 8. Opinion of tial and privileged communications, which courts of justice will not allow to be disclosed. Memo- randum A witness can depose only to such facts as are within his own recollection. But, to assist his memory, he may use a written entry in a book, or a memorandum, or the copy of a memo- randum : such entry or memorandum having been made at the time when the fact occurred, or recently afterwards : and if, after looking at the memorandum, he can positively swear to the truth of the fact there stated, such evidence will be suffi- cient. But if he cannot, from recollection, speak_tojheJact arry^ further, than as finding it stated in a written ent ry, his te stimony will am ount to nothing. (1) The entry, to which the witness has recourse for assisting his recollection, ought to have been made by the witness himself, or, if made by an- other, examined by him, while the fact was fresh in his VRQT mory. (2) It is always usual, and very reasonable, when a wit- ness speaks from memoranda, that the counsel should have an opportunity of looking at them, when he is cross-examining the witness. (3) Opinion of witness. In general, the opinion of a witness is not evidence : the wit- ness must speak to facts. But on questions of science or trade, or others of the same kind, persons of skill may speak not only as to facts, but are allowed also to give their opinions in evidence. The opinion of medical men is evidence as to the state of a patient, whom they have seen. Even, in cases where they have not themselves seen the patient, but have heard the symptoms and particulars of his state, detailed byother witnesses at the trial, their opinion has been properly admitted. On a "in his greatest straits; all men kins, 5 T. R. 752. Tanner v. Taylor, "satisfying themselves, that they ih. 754. 8 East, 284. 289. Hedges'* " were no longer obliged to deliver case, 28 Howell's St. Tr. 1367. " their opinions there freely, when (2) Burrough v. Martin, 2 Campb. " they might be impeached in an- 112. " other place for so doing." See (3) By Lord Ch. Just. Eyre, in Clarendon's Hist. Hardy's case, 24 Howell's St. Tr. (1) Sandwell v. Sandwell, by Holt 824. C.J. Comberb. 44.5. Doe v. Per- Ch. 8.] Of the Examination of Witnesses. <289 question of sanity, medical men have been permitted to form Opinion of their judgment upon the representation, which witnesses have _JJ^ given, of the conduct, manner, and general appearance ex- hibited by the patient ; and, in prosecutions for murder, they have been allowed to state their opinion, whether the wounds, described by witnesses, were likely to be the cause of death. The_opinion of a person c onversant with the business of in- Jj^FJHicejj^thij^^ would have been increased b y the communication of particular facts, has been th ought admi ssible, as judgment in a matter of trader (1) Ship-builders have been admitted to state their opinion on the sea- worthiness of a ship, from examining a survey, which had been taken by others, and at which they were not present. (2) In an action of trespass, alleged to have been committe d in making an emban kment, which was said to have gradually choked up a harbour, an engineer was permitted to prove from his own experiments, what were the effects of natural causes upon that particular harbour, and on other harbours similarly situated on the same coast, and that the removal of the bank would not, in his opinion, restore the harbour. (3) Where the question is, whether a seal has been forged, seal-engravers may be called to shew a difference between a genuine im_ pression and that supposed to be false. (4) Persons, much practised in examining hand-writing, and in detecting forgeries, may give their opinion, whether a particular specimen of writing is in a natural or imitated character. (5) And the opinion of an artist in painting is evidence as to the genuine- ness of a picture. There are several ways of impeaching the credit of a Credit of '. witnesses im- witness. (1) Barthon v. Loughman, 2 Star- (5) Folkes v. Chad, 1785, MS. kie, N. P. C. 25S. But see Durrel v. S. C. cited by Buller J. in Goodtitle Bederlev, Holt, N. P. C. 286, stated v. Braliam, 4T. R. 498. in vol. -2. (4) By Ld. Mansfield, in Folkes (2) Thornton v. Royal Excli. v. Chad, ib. Ass. Company, Peake, N. P. C. 25. (5) Revet v. Braham, 4 T. R. 497. Chaurand v. Angerstein, do. 45. As to proof oi' hand-writing, see Beckwith v. Sydebotham, 1 Campb. part 2. ch. 8. sect. 2. 117. VOL, I. U peac Ih-i 290 Of the Examination of Witnesses. [Ch. 8. I. Proof of First, The party, against whom a witness is called, may racter. ° *" disprove the facts stated by him, or may exam ine other wit - nesses as to his general character. To impeach the credit of a witness, says Mr. Justice Bui] er(l), you can only examine to his general character, and not to particular facts ; and the reason given is, that every man may be supposed capable of supporting his general character, but it is not likely he should be prepared to answer to particular facts, without notice ; and unless his general character and behaviour are in issue, he has no notice. If a witness, for example, on being questioned, whether he has not been guilty of a felony or of some infamous offence, deny the charge, the party, against whom the witness has been called, will not be allowed to prove the truth of the charge (2) : such evidence is not admissible, either for the pur- pose of contradicting, or of discrediting him. This principle has been established by many cases of great authority. In the case of Rookwood, who was tried for high treason (3), the point was considered as too clear for argument : — " Look ye," said Lord Ch. Justice Holt, " you may bring witnesses to give an account of the general tenor of the witness's convers- ation ; but you do not think, that we will try, at this time, whether he be guilty of robbery." And on the trial of Layer for high treason (4), Lord North and Grey being called, on behalf of the prisoner, to give a report of the character, which one of the witnesses for the prosecution had given of himself much to his disadvantage, the Lord Chief Justice Pratt said to the prisoners counsel, " You know what the rule of prac- tice and evidence is, when objections are made to the credit (l) Boll, N. P. 296. See also (2) Rookwood's case, and Lay- Rookwood's case, 4 St. Tr. 693. er's case, cited (l) supra. R. v. Layer's case, 6 St. Tr. 298. 316. De Watson, 2 Starkie, 149. Sharper. La Motte's case, 21 Howell's Coll. Scoging, Holt, N. P. C. 541. The St. Tr. 811. In some instances, in fame rule is observed in the Courts the State Trials, evidence of par- of Justice in Scotland ; see Burnett's ticular facts appears to have been Treatise of Crim. Law of Scotland, admitted ; as in Cranbume's case, p. 397. 1.5 Howell, 261., and Harrison's case, (5)4 St. Tr. 695. 13 Howell, 12 Howell, 862.; but no objection St. Tr. 211. was made to the evidence, in those (4) 6 St. Tr. 298. 516. 16 Howell, c'a>e>. St. Tr. 246. 286. Ch. 8.] Of the Examination of Witnesses. 291 and reputation of the witness ; you cannot charge him with Contradictory particular offences : for if that were to be allowed, it would '__. be impossible for a man to defend himself. You are not to ex- amine to particular facts, to charge thejreputation of any wit- ness ; but you are to ask in general, what is his character and reputation." And in summing up the case to the jury, the Chief Justice said, M The reason, why particular facts are not to be given in evidence, to impeach the character of the wit- ness, is, that if it were permitted, it would be impossible for that witness, having no notice of what will be sworn against him, to come prepared to give an answer to it; and thus the characters of witnesses might be vilified, without having any opportunity of being vindicated." The point was much dis- cussed in the late trial of Watson for high treason ; and the principle above laid down, which had been settled so long be- fore, was again recognised and fully confirmed. The regular mode of examining intoj^eneral characterjs to enquire of the witnesses, whether they have the means of knowing the former witness's general character; and whether, from such knowledge, they would believe him on his oath. (1) In answer to such evidence against character, the other party may cross-examine the witnesses, as to their means of know- ledge, and the grounds of their opinion ; or may attack then- general character, and by fresh evidence support the character of his own witness. Secondly, The credit of a witness may be impeached, by proof, 2. Proof of that he has made_statements out of court, on the same subject, 8tateHients co ntrary t o what he swears at the trial. (2) A letter written by him, or a deposition signed by him, may be used as evidence to contradict his testimony; the letter, or deposition, being first regularly proved. A conviction before a magistrate, pur- (l) Rook wood's case, 4 St. Tr. (2) De Sailly v. Morgan, 2 Esp. 693. Mawsan v. Hartsink, 4 Esp. N. P. C. 691. Christian v. Coombe, N. P. C. 102. 2 Esp. N. P. C. 489. u 2 -2\Y2 Of the Examination of Witnesses. [Ch, 8. Contradictory porting to set out the deposition of a witness, is not admissible, "'' U " t as proof of such deposition, to contradict the witness. (1) The verbal declarations or statements of a witness, made on some former occasion to a third person, are frequently given in evidence, by the party against whom the witness appears, with the View of shewing, that his several accounts of the par- ticular transaction, on which he has been examined, are incon- sistent and contradictory. This evidence of contradictory statement is produced, for the purpose of exciting doubt and distrust against his testimony, as to the particular transaction, on which the discrepancy arises, or perhaps to raise suspicion as to the truth of his testimony in general.* Before such evidence can be regularly admitted^ on behalf of the party , it will be necessary^ in the first instance, t o prepare the wa y for its admission, by cross-examining the witness as to the sup - posed contradictory statements, which are afterwa rd to be Thought forward against him. This course of proceeding is indispensable, from a principle of justice due to the wit- ness ; for as the direct tendency of the evidence is to impeach his veracity, by contrasting his present statement with that supposed to have been made by him to some other person, common justice requires, that, before his credit is attacked, he should have an opportunity of declaring, whether he ever made such statement to that person, and of explaining, in the re-examination, the nature and particulars of the conversation, under what circumstances it was made, from what motives, Cross-examin- ation as to verbal state- ments of the witness. (l) R. v. Howe, 6 Esp. N. P. C. 125. l Campb. 461. S. C. * According to the practice of the courts in Scotland, the credit of a witness cannot be impeached by proof of his having given a different account of the matter on a former occasion. The witness may, if he chooses, call for his declaration, (or deposition, if he has been sworn,) and have it cancelled in his presence, before his examination begins, that he may be free, and unfettered, in giving his evidence on the trial. And, if the declaration should not have been cancelled, it cannot be used in any manner to the prejudice of the witness. See Hume's Com. on the Crim. Law of Scotland, vol. 2. p. 567. ; and Burnett'? Treatise on the same subject, p. 467. Ch. S.J Qf the Examination o r Witnesses. ( 2Q8 and with what design. The former account, given by him Contradictory , . , -hit . statements. in conversation, may have been only partially heard, or mis- understood, or partly forgotten, or intentionally misrepre- sented ; and where the variance between his present statement upon oath, and the former statement, as reported by a third person, may be as much owing to the mistake of the one witness as to the misrepresentation of the other, it will be ne- cessary, that the memory and credit of both witnesses should be fairly tried and contrasted ; and, with this view, the person, with whom the conversation is supposed to have passed, and the particulars of the conversation, on which it is intended to con- tradict the witness, should be distinctly suggested to the witness, before any contradiction is attempted, (l) If, for instance, a witness, on being examined in chief as to some transaction, sup- posed to have occurred between certain persons, should admit, that he had heard of such a thing, but does not know its cause, it would be ^irregular to prove his having made a declaration respecting the cause, in order to prove his knowledge of the cause, without first asking him, in the cross-examination, whether he had not made such a declaration ; or, if he had answered, that he did not remember the transaction, it would be equally irregular, without such previous cross-examination, to prove declarations made by him respecting the transaction, for the purpose of shewing, that he must have remembered it. (2) Thus, it appears, that a witn ess ough t regularly to be cross- examine d as to _cont_radictory statements, supposed to have been made by him on a former occasion, before such contra- dictory statement s can be admit te d in evidenc e, to impeach the credit of his testimony. And this rule has been extended not only to such contradictory statements, but also to othci declarations of the witness, and to acts done by him through the (l) See the opinion of the Judges, the Judges, on the several points, in the course of the late proceedings which arose during these proceed- sn the House of Lords, p. 575, of the ings, are reported also in 2 Bro.l. & printed evidence. Some of the pre- Bing., p. '2H0, 315. ceding remarks have been suggested (2) lb. p. 576. by that opinion. The opinions of 2J 1 fc 0/" ///e Examination of Witnesses. [Ch. 8. Contradictory medium of declarations or words. So that if it is intended to J offer evidence of former declarations of the witness, or of acts done by him, though not with a view to contradict his state- ment upon oath in the examination in chief, but with the view of discrediting him as a corrupt witness, or as one who would corrupt other witnesses ; in this case also, it has been determined, that the witness should be previously questioned as to such declarations, or such acts, on the cross-examination. This appears from an answer of the Judges to a question put to them by the House of Lords, in the course of the late proceedings. ( 1 ) The question was in the following words : " Whether, if a witness in support of a prosecution has been examined in chief, and has not been asked, in cross-examination, as to any declarations made by him, or as to acts done by him, to procure persons corruptly to give evidence in support of the prosecution, it would be competent to the party accused to examine witnesses in his defence, to prove such declarations or acts, without first calling back such witness, to be examined, or cross-examined, as to the fact, whether he ever made such declarations, or did such acts?" Another question was the following: " If a witness, called on the part of a plaintiff' or prosecutor, gives evidence against the defendant, and if, after the cross-examination of such witness by the defendant's counsel, they discover, that the witness, so examined, has cor- rupted, or endeavoured to corrupt, another person to give false testimony in such cause ; whether the defendant's counsel may not be permitted to give evidence of such corrupt act of the witness, without calling him back?" The Judges were of opinion, on both questions, that the proposed proof could not be adduced, without a previous cross-examination of the wit- ness as to the subject-matter. " The general rule," said the Lord Chief Justice, " and the general practice, is this : if it be intended to bri ng the credit of a witness into questio n, by proof of any thing that he may have said or declared touching the cause, the witness is first asked, (1) Page 905. ni' the printed minutes of evidence. Ch. 8.] Of the Examination of Witnesses. 205 whetheror jio he has said or declared that whichjsjntended Contradictory to be proved."' ~~~ statements - The rules of cross-examination as to contradictory written Cross- examin» statements, supposed to have been made by the witness, were atl ? n as to — — . J written state- much discussed in the late proceedings in the House of Lords, ments by the On one occasion, in the course of those proceedings (1), a let- Wltness< ter was shewn to a witness on cross-examination, and, on being questioned as to the handwriting, she affirmed, that she could not say, whether it had been written by her. The counsel then proceeded to cross-examine the witness, as to her having written certain particulars in a correspondence with her sister. This mode of cross-examination was objected to ; on which occasion, the following question was put by the House of Lords to the Judges, for their opinion (2) : " Whether a party would be allowed, in cross-examining a witness, to represent, in the statement of a question, the contents of a letter ; and then to ask the witness, whether he wrote such a letter to any person with such contents, or contents to the like effect, without having first shewn the letter to the witness, and asked him whether he wrote it, and [without] his admitting that he wrote the letter?" The Judges were of opinion, that the question must be answered in the negative ; and the reason of their opinion was, " That the contents of every written paper are, according to the ordinary and well-established rules of evi- dence, to be proved by the paper itselfj and by that alone, if the paper be in existence. The proper course, therefore, is, to ask the witness, whether that letter is of his handwriting ; if the witness admits it to be his handwriting, the cross-examin- ing counsel may, at his proper season, read that letter as evi- dence ; and when the letter is produced, then the whole of the letter is made evidence. One of the reasons, (continued the Lord Chief Justice,) for the rule requiring the production of written instruments, is, in order that the court may be pos- (l) In the case of the witness (2) Printed evidence, page 334. Louisa Deuiont, page 328. 334, of 2 Brod. & Bing. 286. the printed evidence. U -i 296 Of the Examination of Witnesses. [Ch. 8. Contradictory sessed of the whole. If the course, here proposed, should be statements. f u owe j j t h e cross-examining counsel may put the Court in possession only of a part of the contents of the written paper ; and thus the Court may never be in possession of the whole, though it may happen, that the whole, if produced, may have an effect very different from that which might be produced by the statement of a part." The writing, therefore, if in existence and producible, ought to be produced, and shewn to the wit- ness. When it is produced, the cross-examining counsel may, if he thinks proper, shew the witness only a part, or only one or more lines of the letter, and not the whole of it ; and may ask the witness, whether he wrote such part, or such one or more lines. (1) If the witness does not admit, that he wrote the part shewn to him, he cannot be cross-exami ned as to th e contents of the letter, for the reason already given ; namely, that the paper itself ought to be produced, in order that the whole may be seen, and the one part explained by the other. (2) If, on the other hand, t he w itnes s sh o uld adm it, that he wrote the letter, still the rule with respect to cross-examining, as to th e contents, is precisely the same : the counsel cannot inquire o f the witness, whether or not such statements are in t he letter ; the letter itself must be read, to shew whether it contain such statements. It is a rule of evidence, as old as any part of the common law of England, said the Chief Justice, that the contents of a written instrument, if in existence, are to be proved by that instrument itself, and not by parol evidence. (3) With respect to the proper time for reading the letter, the ordinary rule is, that it shall be read as the evidence of the cross-examining counsel, as part of his evidence in his turn, after he shall have opened his case ; this is the ordinary course ; but if he suggests to the Court, that he wishes to have the let- ter read immediately, in order to found certain questions upon (1) The opinion of the Judges, on (3) Opinion of the Judges, in an- the second question in the case of the swer to another question, in the case same witness, page 555 of the printed of the same witness, p. 557 of the evidence. 2 Brod. & Bing. 286. printed evidence. 2 Brod. & Bing. (2) Answer of the Judges to the 288. second part of the second question, page 535. of the printed evidence. Ch. S.] Of the Examination of Witnesses. ^>97 the contents, which cannot well or effectually be done, without Contradictory reading the letter itself; in that case, for the more convenient administration of justice, the letter is permitted to be read at the suggestion of the counsel ; still, however, it must be con- sidered as part of the evidence of the cross-examining counsel, and subject to all the consequences of his having it so con- sidered. ( 1 ) The rule, above laid down, for cross-examining a witness as to the conten ts of a letter or other written jaaper, is applicable, at the furthe st, only to a case in which the writing is supposed to be in ex istence. This appears to be clear, from considering the opinion of the Judges, and the circumstances out of which the question arose. The letter, written by the witness, was, in that case, actually in the possession of the cross-examining counsel, produced by him, and shewn to the witness; the question, referred to the Judges, proceeds upon the suppo- sition of the letter being producible; and the entire reasoning, on which their opinion is founded, expressly refers to the case of an existing paper. They held, in the case proposed, that the counsel could not cross-examine as to the contents of a letter, which was produced and shewn to the witness ; because " the contents of every written paper are to be proved by the paper itself, and by that alone, if the paper be in existence." But if the paper be not in existence, this reasoning will not apply. If, therefore, a letter, written by the witness, is proved to have been lost or destroyed, (in which case, the only mode of contradicting him would be by producing afterwards some secondary evidence of the contents of the letter,) then it would be reasonable and proper to allow the counsel to cross-exa- mine the witness as to the contents of such letter. This, in- deed, appears to be the only regular mode of proceeding ; for, as the credit of the witness may be afterwards impeached by proof of the contents of the lost letter, no less than by the production of an original letter, justice requires, that the (l) Opinion of the Judges, in mentioned question. 2 JB/ocJ. & answer to the 2d part of the last- Biog.280. $298 Of the Examination of Witnesses. [Ch. 8. Contradictory witness should first have an opportunity, in his own defence, of statements. entering into a full statement of what he has written ; and this statement is not inferior in its kind, as evidence, to any other secondary proof of the contents, that may be afterwards pro- duced to contradict him. This latter circumstance distinguishes the case from that before mentioned, in which the witness's letter was in the possession of the cross-examining counsel, and that letter, if produced, would have been the best, and, as the Judges held, the only legitimate proof of its contents. It may, perhaps, be suggested, that, since the proof of the loss or de- struction of the writing is strictly necessary, before the counsel in such case can cross-examine as to its contents, the intro- duction of such antecedent proof might occasion great incon- venience, by disturbing the regular progress of the cause, and distracting the attention. But when this inconvenience is likely to be felt in any great degree, it will be always in the power of the Judge, if he shall think proper, either to admit, in the first instance, the witness's statement of the contents of the writing, or to reserve the power of cross-examining as to its contents, until the time has arrived, when the counsel on the opposite side shall enter upon his case. A question, connected with this subject, here naturally occurs ; whether counsel may be allowed to cross-examine a witness, as to his having given a different account of the trans- action, or as to his having written a letter containing a dif- ferent account. This question, it is conceived, in the general form here stated, has not been determined by the resolution of the Judges in the case before-mentioned : for, in that case, the question, put to the witness, related to a variety of particu- lar expressions and entire passages, supposed to be contained in a letter, and the letter, which was supposed to contain such expressions, had been actually produced, and shewn by the counsel : whereas, on the contrary, the question, here proposed, is quite general, namely, whether the witness has given any account in his letters, or otherwise, differing from his present statement; and the question is proposed, without any reference to the circumstance, whether the letter is or is not in existence. Ch. 8.3 Of the Examination of Witnesses. 299 or whether it has or has not ever been seen by the cross-examin- Contradictory ing counsel. Nor does the question, here proposed, appear to have been determined by the resolution of the Judges, on a question, which occurred in a later stage of the same proceed- ings ; since, in this latter case also, the question related to particular expressions, supposed to have been contained in the letter, and the opinion of the Judges seems to have been partly founded on the supposition, that the witness's letter was actually in the possession of the cross-examining counsel, as afterwards distinctly appeared to be the fact. * Since the subject, there- * The question, here alluded to, arose in the following manner, (a) The cross-examining counsel asked a witness, named Giuseppe Sacchi, " whether lie had ever represented to any person, after he had left the service of the Princess, that he taxed himself with ingratitude towards a generous mis- tress ?" On this, the Attorney-general submitted, that the question should be put, whether he had so represented himself in conversation ; for that, if the representation was in writing, the writing itself should be produced, before the question could be put. After an argument upon the point, the follow- ing question was put to the Judges; " whether, according to the established practice in the Courts below, counsel in cross-examining are entitled, if the counsel on the other side object to it, to ask a witness, whether he has made representations of a particular nature, not specifying in his question, whether the question refers to representations in writing or in words ?" The Lord Chief Justice, in delivering the opinion of the Judges (b), ob- served, that they felt some difficulty in giving a distinct answer to that pro- position, as they did not remember an instance of a question having been asked by the cross-examining counsel precisely in those words, and they were not aware of any established practice distinctly referring to such a question. The Lord Chief Justice then adverted to the rule of law re- specting the examination of a witness, as to a contract or agreement, in which case, if the counsel on the one side were to put a question generally as to the contract, the ordinary course is for the counsel on the other side to interpose an intermediate question, whether the contract, referred to, was in writing, and if the contract should appear to have been in writing, then all further inquiry would be stopped, because the writing itself must be pro- duced. With reference to this established rule, they considered the ques- tion proposed to them, and were of opinion, that the witness could not pro- perly be asked, on cross-examination, whether he had written suck a thing, the proper course being to put the ivriting into his hands, and ask him whether it be his writing ; they held also, that if the witness were asked, whether he had represented such a thing, they should direct the counsel to ask, whether the representation had been made in writing or by words ; and if, in consequence, he should ask, whether it had been made in writing, the counsel on the other side would object to the question ; but if he should ask, whether the witness had said such a thing, the counsel would undoubt- edly have a right to put that question. The counsel were then called in (c), and were informed, that if, on cross- examination, they inquired of a witness, whether he had made rcprescnl- («) Printed Evidence, p. 445. (c) Page 447. \b) Page 446. 2 Ikod. & Bing. 392. statements. 300 Of the Examination of Witnesses. [Ch. S. Contradictory f oro seems still open for discussion, and may be considered of statements. l . # J — — i some importance, as affecting very materially the powers of cross-examination, upon which the right administration of jus- tice so much depends, it will not, perhaps, be thought foreign to the subject, to consider, whether any legal objection can be made to the proposed question. The question is this; Can a witness be properly asked, in the_cross-examination, whether he has written any letter giving a different account^? The ob- jector to such a question might possibly urge, that, if the ac- count is in writing, the writing ought to be produced, as the best evidence, and that the witness's statement of the contents of the letter is only secondary evidence, which cannot be re- ceived : that, upon this principle, a witness cannot be examined as to the contents of a deed, or written contract, or other written instrument, unless the original is lost, or destroyed, or in the possession of the adverse party. Or, lastly, it might be argued, that the witness may not be able to remember some particulars of his letter, especially of a letter written some time before, and may, perhaps, suppose the statement, con- tained in it, to vary in some respects from the account which he has given in his examination in chief, and to be different, also, from what the letter really was ; in which case, the wit- ness may make an inaccurate representation of its contents, to his own disadvantage, and his character may consequently suffer, without any just ground of imputation ; whereas, if the letter itself were produced, this difference of statement might be corrected and satisfactorily explained. The argument on ations of any particular nature, stating the nature of those representations, they should, in their inquiry, ask the witness first, " whether he made the representations by parol, or in writing ?" The Attorney-general of the Queen inquired, whether he might be at liberty to alter his question, and put it thus : " Did you ever make any representation in writing concerning your real or supposed ingratitude towards so gener- ous a mistress as Her Royal Highness?" The counsel were then directed to withdraw, and, on their being recalled, the counsel for the Queen were asked, whether they wished to withdraw the question ; upon which the Attorney-general of the Queen stated, that he begged to withdraw the question, to save the necessity for further discussion. The examination then proceeded, and letters were put into the witness's hands, which he admitted to bt his hand-writimr. Ch. 8.] Of tire Examination of Witnesses. 301 the other side, in support of the question, may be supposed Contradictory to be of the following kind. First, with respect to the prin- . ciple, urged in support of the objection, (namely, that the letter itself is the best evidence, and therefore that the parol evidence of the witness is not admissible,) although this principle holds almost universally with reference to the proof of the issue, and of every material part of the issue, it will be found not to apply to a cross-examination, which is solely intended to try the witness's credit and veracity. A witness, it is admitted, cannot be questioned as to the contents of a written agreement, or other written instrument, wherever the agreement, or writing, is either part of the issue, or material to the issue ; because the writing itself is the best proof of its contents ; and this being within the knowledge of the parties, (as it must be supposed to be, from its being material to the issue,) the party, who wishes to avail himself of the writing, ought to be provided with the regular proof of its contents ; and the circumstance, of his not satisfactorily accounting for the non-production of the original instrument, is of itself matter of suspicion. Chief Baron Gilbert, in treating of the general rule, evidently considers it as a rule applicable only to the proof of the issue, or of some fact material to the issue. " The true meaning of the rule of law, (he says,)(l) which requires the greatest evidence, that the nature of the thing is capable of, is this ; that no such evidence shall be brought, which, ex natura rei, supposes still greater evidence behind in the party's own possession and power ,• for such evidence is altogether insufficient, and proves nothing ; for it carries a presumption with it, contrary to the intent, for which it was produced ; for, if the other greater evidence did not make against the party, why did he not produce it to the Court? As, if a man offers a copy of a deed or will, where he ought to produce the original, this carries a presumption with it, that there is some- thing more in the deed or will, that makes against the party, or else he would have produced it ; and therefore the proof of a CO 0ilb. Ev, .is, 30<2 Of the Examination of Witnesses. [Ch. 8. Contradictory copy, in this case, is not evidence, and cannot possibly weigh statements. * , . c . . „ rr be of such a general bad character, as would make him unworthy of credit. If he knew the infamy of his character, he was practising a fraud upon the court, in producinghim as a witness. But if a wit- ness unexpectedly give evidence against the party, that called him, another witness may be called to prove those facts other- wise: " for such facts are evidence in the cause, and the other witness is not called directly to discredit the first, but the im- peachment of his credit is incidental only, and consequential."(2) Thus, where the question was, whether the defendant's ser- vant, who had been employed to sell a horse, had warranted him sound, he swore, on being called by the plaintiff, that he had not given any warranty ; and Lord Ellenborough allowed the plaintiff to call another witness to prove, that at the time of the sale he had expressly warranted its soundness. There can be no rule of law, said Lord Ellenborough, by which the truth on such an occasion is to be shut out, and justice per- verted, (3) (1) Bull. N. P. 297. 556. Bull. N. P. 297. Richardson (2) Ibid. v. Allan, 2 Starkie, N.P.C. 334., is (3) Alexander v. Gibson, 2 Campb. another example. CHAP. IX. Of Bills of Exceptions, and Demurrers to Evidence. THHE competency of witnesses and the admissibility of evidence are to be decided by the Judge who tries the cause, and from his judgment there is an appeal by a bill of exceptions. x 3 310 Of Bills of Exceptions, [Ch. 9. Bill of excep- At common law, a writ of error could not be brought for any error in law, which did not appear on the record ; and therefore, where the plaintiff or defendant alleged any thing ore tenus, which was over-ruled by the Judge, the party ncro-rieved had no redress. (1) To remedy this defect, it was enacted by stat. 13 Ed. 1. s. 31., "if one impleaded before any of the justices allege an exception, praying that the justices will allow it, that, if they will not, and if he write the exception, and require the justices to put their seals to it, the justices shall do so, and if one will not, another shall." This statute extends to the plaintiff as well as to the de- fendant (2), and to a trial at bar as well as at nisi prius. (3) But it has been doubted, whether it extends to criminal cases. Lord Coke, in his exposition of the statute, states, that it ex- tends to all actions, real, personal, and mixed ; but of crimi- nal cases he makes no mention. In the case of Sir H. Vane (4), who was tried for high treason, the Court refused to sign a bill of exceptions, " because," they said, " criminal cases were not within the statute, but only actions between party and party." From this authority Mr. Serjt. Hawkins infers only, that a bill of exceptions is not allowable on an indictment for treason or felony. (5) "Whether a bill lies not in any criminal case," said Lord Hardwicke, " is a point not settled." (6) It was allowed in the case of the King against Lord Paget and others, on an indictment for a tres- pass (7), and also on an information in the nature of a quo warranto. (8) But Lord Hardwicke, in the case before re- ferred to, after saying " that he had known a bill of exceptions allowed in informations in the Court of Exchequer, which are civil suits for the king's debt," added, " it has never been de- , (l) 2 Inst. 426. (5) PI. Cr. b.2. C.46. s.210. (2) 2 Inst. 427. (6) R. v. Inhabitants of Preston, (5) Thurston v. Slatford, 5 Salk. Rep. temp. Hard. 251. 155.; Adm. per. Cur. in Duchess of (7) 1 Leon. 5. Grafton v. Holt, Skin. .354. R. v. (8) R. v. Higgins and others, Smith, 2 Show. 287., contra. i Ventr. 366. See also R. v. Nutt, (4) 1 Lev. 68.; Kel. 15. S. C. ; l Barnardist, 307., a prosecution for i Sid. 85. S. C. a libel. Ch. 9.3 and Demurrers to Evidence. $\y termined to lie in mere criminal proceedings in other courts."(l) A bill of exceptions cannot be allowed by the justices of the peace at the quarter sessions, on the hearing of an appeal against an order of removal. (2) It can be used only on a writ of error, and therefore where a writ of error will no t lie, there cannot be a bill of exceptions. (3) A demurrer to evidence is a proceeding, by which the Demurrer to judges, whose province it is to determine questions of law, are called upon to declare, what the law is upon the facts in evi- dence. And it is analogous to the demurrer upon facts alleged in pleading. (4) When the admissibility of the evidence has been established, the question, how far it conduces to the proof of the facts, which are to be ascertained, is not for the judge to decide, but for the jury exclusively. And when the jury have ascertained the fact, if a question arises, whether the fact thus ascertained maintains the issue joined between the parties, or, in other words, whether the law arising upon the fact is in favour of one or other of the parties, that question is for the judge to decide. (5) Ordinarily, he declares to the jury, what the law is upon the fact which they find, and then they compound their verdict' of the law and fact. But if the party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law upon the evidence. (6) It is reasonable, that either party should have such a power of referring to the Court to decide, what the inference of law is upon the facts; as the jury may refuse to find a special verdict, in which case the facts would not appear on the record. On the other hand, as it is the peculiar province of the jury, to (1) Rep. temp. Hard. 251 R. v. (4) See the Judgment of Eyre Stratton and others, Howell's Coll. C. J. in Gibson and Johnson v. St. Tr. 21 vol. 1187. Hunter, 2 H. Bl. 205,20ti. (2) See (6), p. 310. (5) 2 H. Bl. 205. (3) Bull. N. P. 316. (6) lb x 4 31* Of Bills of Exceptions, [Ch. 9. ascertain the truth of facts and the credibility of witnesses, the party ought not to be allowed, by a demurrer to evidence, or any other means, to refer the trial of such questions to an- other tribunal. A demurrer must therefore admit the truth of all facts, which the jury might find in favour of the other party upon the evidence laid before them, whatever the na- ture of that evidence may be, whether of record, or in writing (1), or by parol. (2) According to Alleyn's report of the case of Wright v. Pindar, it was resolved, "that he that demurs upon the evidence ought to confess the whole matter of fact to be true, and not refer that to the judgment of the Court; and if the matter of fact is uncertainly alleged, or it is doubtful whether it be true or no, because offered to be proved only by presumptions or probabilities, and the other party demurs thereupon, he that alleges this matter cannot join in demurrer with him, but ought to pray the judgment of the Court, that he may not be admitted to his de- murrer, unless he will confess the matter of the fact to be true." And now it is an established rule, that, in a demurrer to circumstantial evidence, the party, offering the evidence, is not obliged to join in demurrer, unless the party de- murring will distinctly admit upon the record every fact and every conclusion, which the proposed evidence conduces to prove. (3) If in an information, or any other suit, evidence be given for the king, and the defendant offers to demur upon it, the king's counsel cannot be compelled to join in demurrer, but in such case the Court ought to direct the jury to find the special matter; and upon that they shall adjudge the law. (4) When all matters of fact are admitted, the case is ripe for judgment in matter of law upon the evidence, and may (1) Baker's case, 5 Co. Rep. lo4. (s) Gibson and Johnson v. Hunter. (■J) Wright v. Pindar, Alleyn, 18. j H. Bl. 187. (4) 5 Co. Rep. 104. Ch. 9.] and Demurrers to Evidence. 313 then be properly withdrawn from the jury ; and being entered on record, it will remain for the decision of the judges. (1) The whole proceeding upon a demurrer to evidence is under the control and direction of the Judge at Nisi Prius, or of the Court on a trial at bar. The Court, said Mr. Justice Doddridge in the case of Worsley v. Filisker(2), may deny and hinder a party from demurring, by over-ruling the matter in demurrer, if it seem to them to be clear in law. And in that case the Court did over-rule the demurrer, and left the case to the jury. (0 2 H. Bl. 208. (2) 2 Roll. Rep. 119. Bull. N. P 314. END OF TART 1. 314 PART THE SECOND. ON WRITTEN EVIDENCE. r PHE preceding chapters having treated of the competency of witnesses and of parol or unwritten evidence, it is now proposed to enquire into the several kinds of written evidence. Writings are either publi c or private . Some publ ic writings are of record ; others, notof^record. And public writings not of record may be distinguished into such as areTof a judicial character, and such as are of a public na- ture, but not judicial. In this order it is proposed to treat of the several kinds of written evidence; and to consider, first, in what cases they are admissible; and, secondly, if admitted, how they ought to be proved. CHAP. I. Of Acts of Parliament. Records. OECORDS are the memorials of the proceedings of the — legislature, and of the King's courts of justice, preserved in rolls of parchment ; and they are considered of such au- thority, that no evidence is allowed to contradict_ them. (1) Thus, if a verdict, finding several issues, were to be produced in evidence, the opposite party would not be allowed to shew, that no evidence was offered on one of the issues, and that the finding of the jury was indorsed on the postea by mistake. (2) (1) Co. Lit. 117. b. 260. a. 12 221. Glynn v. Thorpe, 1 Barn. & Rep. 24, 25. Doddridge's English Aid. 156. R. v. Hopper, 5 Price, Lawyer, p. 200. Lamb. Just. B. 1. 495. c. 13. p. 71. Gilb. Ev. 5 Bull. N. P. (2) Reed v. Jackson, 1 East, 555- Ch. I.]. Of Acts of Parliament. 315 An officer, who has the care and custody of records, may be examined as to their condition, but he cannot be examined as to their matter or contents. ( 1 ) A record, then, is conclusive proof, that the decision or judgment of the Cou rt was, as is there stated : and evidence to contradict it will not be admitted. But it will not be con- clusive as to the tr uth of allegation s, which were not material nor traversable. (2) Thus, for example, a party will not be estopped from averring, in an action of debt on a bond, that the bond was made at A., though, in a former action upon the same bond, he averred it to have been made at B. (3) So, in the case of a conviction for felony, &c, where the jury have given a general verdict, the record will not be conclusive, that the offence was committed on the day mentioned in the indictment, for the time is not of the substance of the charge ; and, therefore, a party interested to dispute the forfeiture, (which in the case of real property, re lates to th e time of the offence,) may falsify the record, and shew that the offence was committed on another day. (4) But if the jury find specially the p recis e day, all parties jire concluded. ( 5) The first sort of records to be considered are acts of par- Acts of par- liament; and these, says Ch. B. Gilbert, are the highest and llament - most absolute proof. Acts of parliament relate either to the kingdom at large, when they are called general acts ; or only to particular classes of men, or to certain individuals, in which case they are called private acts. Laws which concern the king, or alljordsjof manors, or all officers in general, or all sp iritual persons, or all traders, &c. are public laws. But such as relate to the nobility only, or to spiritual lords, or to particular trades, are private acts. (6) This distinction be- tween public and private acts is not applied, in collections of the English statutes at large, to any statutes previous to those (1) Leighton v. Leighton, l Str. (4) Ives's case, 3 Inst, 250. Gilb. 210. Ev. 230. (2) Co. Lit. 552. h. (5) Gilb. Ev. 230. (3) Com. Dig. tit. Estoppel, E. 6. ((>) Gilb. Ev. 39, 40. 3l() Of Acts of Parliament. [Ch. 1. of Richard the Third. From that period the distinction commences in the several tables prefixed to the respective collections. ( 1 ) Public acts. The general rule is, that jmblic acts of parliament are to be taken notice of judicially by courts of law, w ithout being formally set forthj but particular orjpriva te acts are not_ rg- garded by the judges, unlessformally shewn and pleaded. (2) In some cases, however, the necessity of pleading a private act has been dispensed with ; as, where there is a special clause, enabling the defendant, in answer to any action for matters done under the act, to plead the general issue ; or, where the private act has been recognised by some public act of the legislature. Thus, the statute 23 H. 6. c. 9., relative to sheriff's bonds, (even supposing it in its original consti- tution to be a private act, as relating only to officers of a certain description, which, however, according to the best authorities, it is not,) must now be taken notice of judicially, because the statute 4 & 5 Ann. c. 16. s. 20. enables the sheriff to assign the bond, and thus makes it a general law. (3) The preamble of an act of parliament, reciting, that certain outrages had been committed in particular parts of the king- dom, has been adjudged by the Court of King's Bench, in a late case, to be admissible in evidence, for the purpose of proving an introductory averment in an information for a libel, that outrages of that description had existed. (4) Public acts of parliament, it was said, are binding upon every subject ; the Judges are bound to take judicial notice of their contents ; every subject is, in judgment of law, privy to the making of them, and supposed to know them ; the passing of an act of parliament is a public proceeding in all its stages, and when the act is passed, it is, in the contemplation of law, the act of the whole body of the kingdom. The Court of King's Bench, ( 1 ) See preface to new edit, of (5) Saxby v. Kirkus, Bull. N. P. Statutes at Large. 224. Samuel v. Evans., 2 T. R. 515. <■-) Bull. N. P. 222. (4) R. v. Sutton, 4 Maule & Seh* . 552. Ch. 1.] Of Acts of Parliament. 317 for these reasons, were of opinion that the preamble in question had been properly admitted in evidence. In many cases a defendant will be precluded, by the nature of the pleadings, from taking advantage of a public act of parliament. Thus, in an action of debt upon a bond, the defendant cannot, under the plea of non est factum, avail himself of the statute 13 Eliz. c. 8. s. 4. (1), which makes usu- rious contracts utterly void. But if he pleads, that the bond was void on account of usury, he may insist upon the statute, though he has not formally recited it. (2) In an action of assumpsit, indeed, where the defendant may give in evidence any thing that discharges the debt, or proves nothing due, he may shew under the general issue, that the contract was usurious (3), or founded on an illegal consideration which makes the contract void. (4) If an action or information be brought upon a penal statute, and there is another statute which exempts or discharges the defendant from the penalty, this latter act, as some books lay down the rule, cannot be given in evidence under the ge- neral issue, but ought to be pleaded ; for the general issue is but a denial of the plaintiff's declaration, and the plaintiff, it is said, has proved him guilty, when he has proved him within the law, upon which he founds his declaration. (5) It is, in- deed, enacted by statute 21 Jac. 1. c. 4. s. 4., that, in actions on penal statutes, it shall be lawful for the defendant to plead not guilty, or that he owes nothing, and to give in evidence such special matter, which, if pleaded, would have discharged the defendant at law : but this statute has been generally con- sidered to attach only on antecedent penal laws, and not to extend to those subsequently enacted. (6) However, with (1) See also 12 Ann.st. 2. c. 16. (5) 2 Roll. Ab. 6S5. pi. 13. Bull. (2) Com. Dig. tit. Pleader, 2 W. N. P. 225. 25. (6) Gaul's case, 1 Salk. 372. (3) Ld. Bernard v. Saul, 1 Str. Hicks's case, ib. by Lord Mansfield 493. Bull. N. P. 152. S. C. in 4 Burr. 2467. Bull. N. P. 196. (4) Adm. per Cur. in Husscy v. French, q. t. v. Coxon, 2 Str. 1081. Jacob, 1 Ld. Raym. 89. S. C. more fully stated in 2 Selw. N. P. 562. n. (117.) 31 S Of Verdicts and Judgments, [Ch. 2. respect to these also, it should seem, according to the modern practice, the defendant may plead nil debet, and give in evi- dence the statute ; which would show, that he does not owe the penalty. Thus, on a prosecution for exercising a trade contrary to the provisions of a statute, the defendant may shew, under the general issue, that he is exempted from pe- nalties by a subsequent statute (1): and on the trial of an indictment against a parish for not repairing a highway, the defendants may, on the general issue, give in evidence an act of parliament, which exempts them from the repair, and transfers it to commissioners. (2) And if the same act, which imposes the penalty, contains also the proviso of exemption, it is quite clear that this proviso may be shewn under the general issue. (3) (1) R. v. Pembeiton, 1 Blac. Rep. (3) Suttou v. Bishop, 4 Burr. 2284. 230. Sibly v. Cuming, 4 Burr. 24G9. Bull. (2) R. v. Inhabitants of St. N. P. 225. George, 3 Campb. 222. CHAP. II. Of Verdicts and Judgments of Courts of Record. TN treating of judicial proceedings, and inquiring in what cases they are admissible in evidence, it is proposed to con- sider, first, the verdicts and judgments of courts of record ; secondly, the judgments of courts of exclusi ve jurisdic tion; and, thirdly, certain other proceedings^of an infe rior kind . The admissibility of verdicts and judgments of cou rts of re- cord is the subject of the present chapter, in which will be considered, first, their admissibility, with reference^ to th e parties in the suit ; secondly, their admissibility, with refer- ence to the subject-matter of the suit; thirdly, the admissi- bility, in civil cases^of verdicts, which have been given in criminal prosecutions. Sect. 1.] with reference to the Parties. 319 Sect. I. Of Verdicts and Judgments, with reference to the Parties in the Suit. The general principles, which govern this subject, are clearly laid down in the celebrated judgment delivered by the Chief Justice De Grey, on a question referred to the judges in the prosecution of the Duchess of Kingston. (1) " It is true, as a general principle," said the Chief Justice General rule. De Grey, in delivering the opinion of the Judges, " that a transaction between two parties in judicial proceedings ought not to be binding upon a third ; for it would be unjust to bind any person, who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he might think erroneous. Hence the^ depositions of witnesses in another cause in pro of of a fact, theverdict of a jury find- ing a fact, and the jud gment of the court on facts^jomidL altEoughevidence against the parties and all claiming under them, are not in general to be used to the prejudice of strangers." (2) To this general rule there are some exceptions, founded upon particular reasons, which will be stated in the course of the present chapter. " From the variety of cases," continued Ch. J. De Grey, " relative to judgments being given in evidence in civil suits, these two deductions seem to follow, as generally true : first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive between the same parties, upon the same matter directly in question in another court ; secondly, that the judg- ment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter (1) ll St. Tr. 261. 22 Howell's Duchess of Kingston's case, 1 1 State St. Tr. .538. S. C. Tr. 261. (2) Judgment of De GreyC. J. in 320 Of Verdicts and Judgments, [Ch. 2. cominn- incidentally in question in another court, between the same parties, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter, which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." Effect of judg- First, then, a judgment directly upo n the point, is, as a plea , ment between • "" 7 TT same parties, a bar between the same parties . A party may be estopped by when pleaded. a ver( jj ct on record : as, in an action of trespass, if the defend- ant prescribes for common, and the plaintiff traverses the pre- scription, the defendant may say, that in a former action by the plaintiff against the defendant, the same prescription was found against the plaintiff. ( 1 ) A recovery in any suit, upon issue joined on matter of title, is conclusive upon the subject matter of such title, if pleaded by way of estoppel ; but, unless so pleaded, it will not be con- clusive. (2) In Trevivan v. Lawrence (3), it was held, that if a party will not rely on the estoppel, when he may, but takes issue on the fact, the jury shall not be bound by the estoppel, for they are to find the truth of the fact. And in the late case of Vooght v. Winch (4), an action on the case for widening a water-channel to the damage of the plaintiff's mill, the Court of King's Bench held, that a verdict obtained by the defendant in a former action, which had been brought by the plaintiff for the same cause, was not conclusive as evidence under the general issue, though it would have had that effect, if pleaded in bar by way of estoppel. When a judgment is pleaded as an estoppel, the plaintiff will not be allowed to discuss the case with the defendant, and for the second time to disturb and vex him by the agitation of the same question : but (l) Com. Dig. tit. Estoppel, (A. 1.) subject, see the judgment in the case p. 75. citing 1 Show. 28. The case of Outram v. Morewood, 3 East, is, Incledon and another v. Burgess. 554, 355. The doubt there was, whether this (2) 3 East, 554. 565. was a good estoppel as against a co- (3) Salk. 276. cited by Holroyd J. plaintiff, a stranger to the former 2 Barn. & Aid. 672. action ; and the Court gave judg- (4) 2 Barn. & Aid. 662. ment on another point. On this ■Sect. 1.] with reference to the Parties. 532 L if the defendant plead not guilty in the second action, he has thereby elected to submit his case to the jury, who are to give their verdict upon the whole evidence submitted to them. ( 1 ) The jury, upon the general issue, are to try, not whether the plaintiff is estopped from trying the question, but whether the defendant be guilty of the wrongful act imputed to him. (2) In the case of Moses v. Macferlan (3), the Court of King's Bench held, that the plaintiff might recover back money, which he had paid under a judgment, obtained against him by the defendant in an action in a court of conscience, which action the defendant brought against him as indorser of a bill of exchange, in breach of a written agreement. They admitted it, however, to be a clear principle, that the merits of a judgment can never be overruled by an original suit, either at law or in equity; and that the judgment is conclu- sive, as to the subject-matter, until it is set aside or reversed. The ground of the decision in that case was, that the breach of the agreement was no defence to the action in the court of conscience, being a collateral matter not within their cogniz- ance. But this has been since questioned (i) ; and it has been thought, that the breach of the agreement went to the essence of the debt demanded, and was necessarily as much a defence in that court, as it would have been in the Court of King's Bench. The case of Moses v. Macferlan, therefore, does not in any manner infringe, but rather confirms the general rule, that the merits of a question, which has been directly determined by a court of competent jurisdiction, cannot be tried over again, between the same parties in any shape whatsoever. The authority of a former adjudication of the right pre- Who, tlic vails between the same parties, that is, between the same same P alu,s " persons suing or sued in the same quality or character. A (1) By Ch. Justice Abbott, 2 Barn. (4) By Eyre C.J. in Philips v. &Ald. p. 668. Hunter, 2 H.Bl. 414. And see Mar- fa) By Bavley J. ib. 669. riott v. Hampton, 7 T. R. 269. Browu (3) 2 Burf. 1006. 1009. v. M'Kinnally, l Esp. N. P. C. 279. VOL. I. Y 322 Of Verdicts and Judgments, [Ch. 2. woman is not estopped after coverture, by an admission upon record by her husband and herself during coverture. (1) An heir, claiming as heir of his father, shall not be estopped by an estoppel upon him as heir to his mother. (2) A party suing as executor, in an action of debt upon a bond, will not be estopped by having been barred in an action upon the same bond, when he sued as administrator ; but he may shew that the letters of administration have been since repealed. (3) For the same reason, an acquittal of a person as accessory cannot be pleaded by him in bar, on a charge against him as princi- pal ; for the quality and nature of the offences are quite different. (4<) A verdict against two defendants will be evidence in an action, upon the same subject-matter, against one of the defendants alone, if he alone was substantially interested in the former action, and the other defendant was joined with him merely for form. Thus, where a person brought an action of trover against a creditor and the sheriff, for goods levied under an execution, in which action the plaintiff failed, and afterwards he brought an action of assumpsit against the creditor alone, to recover the proceeds of the sale of the goods, the judgment in the first action was held to be a bar to the second action. (5) Who, the real In considering the effect of verdicts and judgments, courts par les. of justice will always take notice of the real parties to the suit. In an action of ejectment, the lessor of the plaintiff and the tenant in possession are judicially considered the real par- ties. (6) For the same reason, in the case of Kinnersley v. Orpe(7), which was an action for a penalty, incurred by destroy- ing fish in the plaintiff's fishery, a verdict for the plaintiff in a (1) Com. Dig. tit. Estoppel (C). (5) Hitchin v. Campbell, 2 Black. (2) Ibid. Rep. S27. (3) Robinson's case, 5 Rep. 32. b. (6) Aslin v. Parkin, 2 Burr. 66S. (4) 2 Hale, P.C. 244. Fost. Disc. (7) 2 Doug. 517. See the obser- 561. vation on this case in Outram v. Morewood, 3 East, 366. Sect. 1.] with reference to the Parties. 3^3 m former action, for a trespass committed in the same fishery, against one who justified as servant, was allowed to be evi- dence against the defendant. At the trial of the cause, this was admitted, as conclusive evidence of the plaintiff's right of fishery ; as it appeared, that the defendant in the second suit acted by the command of the same person, under whom the defendant in the first action had justified, and who was considered by the judge to be the true party in both causes. The Court of King's Bench, afterwards, on a motion for a new trial, considered the evidence admissible, though not conclusive. Estoppels by verdict, admissions on record, &c. bind privies Effect be- in blood, (as the heir,) privies in estate, (as feoffee, lessee, &c.) tween p " vies " and privies in law, (as lord by escheat, tenant by curtesy, tenant in dower, the incumbent of a benefice, and others who come in by act of law in the jjost) ; in the same manner, per- sons standing in either of these relations will be bound, equally with the parties themselves, by a judgment in a former action for the same matter, if pleaded in bar. ( 1 ) A verdict or judgment in a former action, upon the same matter directly in question, is evidence tor or against privies in blood, privies in estate, and privies in law, as well as for or against the parties to the suit. If an ancestor has 1. Privy in obtained a verdict, the heir may give it in evidence as privy to it. (2) If several estates in remainder be limited 2. Privy in in a deed, and one of the parties in remainder obtain a ver- dict, in an action brought against him for part of the land, that verdict may be given in evidence by another person in remainder, in an action brought against him for the same land, although he does not claim any estate under the first remainder-man ; because they all claim under the same deed. (3) So, a verdict for or against a lessee is evidence for (1) Co. Lit. 352. a. Com. Dig. tit. (2) Per Cur. in Lock v Norborne, Estoppel (B). Outram v. Morewood, 3 Mod. Rep. 142. 5 East, 346. Lady Dartmouth v. (3) Pyke v. Crouch, I Ld. Raym. Roberts, 16 East, 551. 730 Com. Dig. tit Evidence, (A 5.) Bull. N. P. 2.32. Y 2 estate. Of Verdicts and Judgments, [Ch. 2. 3. Privy in r against the reversioner, (l) A verdict on a question of tithes, between a vicar and an occupier of land in the parish, is evidence between him and another occupier, the vicar in both suits claiming the same general right to tithes. (2) And a decree, in the Court of Exchequer, in a cause between the vicar on one side, and the impropriator on the other, (establishing the vicar's title to. small tithes, under an ancient endowment, against the defendant, who insisted that he was only entitled to an annual payment in lieu of tithes,) is evidence in suits between succeeding vicars and patrons ; but not conclusive evidence, as it would be, if the ordinary had been a party to the first suit. (5) So, a judgment for or against the school- master of a hospital, concerning the rights of his office, has been admitted to be evidence for or against his successor. (4) And so, where, on an information in the nature of a quo war- ranto against the defendant, for acting as bailiff of a corpor- ation, the defendant pleaded, that he had been duly elected under a nomination by two persons, who were bailiffs of the corporation, and the point in issue was, whether they were bailiffs at the time of the election, the record of a judgment of ouster in a quo warranto against them, was adjudged to be good evidence against the defendant, who claimed under them.* (5) These cases fully establish the rule above laid (1) Per Cur. in Rushworth v. (.3) Carr v. Heaton, 3 Gwill. 1261. Countess of Pembroke and Currier, (4) Lord Brounker v. Sir R. At- Hardr. 472. Com. Dig. tit. Evidence, kins, Skin. 15. (A 5.) Bull. N. P. 232. Gilb. (5) R. v. Hebden, Andr. 388.: Ev.35, 36, Bp. of Lincoln v. Sir W. 2 Str. 1109. S. C. Bull. N. P. 251. Ellis, 2 Gwill. 632. S.C.; 2 Selw. N. P. 1047., cited (2) Travis v. Chaloner, 3 Gwill. from MS. R. v. Grimes, 5 Burr. 1237. And see Ashby v. Power, 2601. S. P. 2 Gwill. 1239. Benson v. Olive, 2 Gwill. 701. * Judgment of ouster has been considered in the nature of a judgment inrem. In the case of the King v. the Mayor of York, 5 T. R. 72., where the ca-;e:s of R. v. Hebden and R. v. Grimes were cited in argument, in order to shew, that such a judgment cannot be conclusive against third per- sons, Lord Kenyon is reported to have said, " U you derive title to a cor- porate office through A., and the prosecutor shew a judgment of ouster against A., it is conclusive against you, unless you can impeach the judg- ment a? obtained by fraud." Sect. 1.] with reference to tfie Parlies. S2S down, that a verdict or judgment directly upon the point is good evidence, not only for or against the parties to the suit, but also for or against any persons standing in the relation before mentioned, of privies in blood, privies in estate, or privies in law. The general rule is, that a verdict cannot be evidence fo r Verdict, not ~ ~. ' — 7 — — — ! ■ ' evidence either party, in an action against one who was a stranger to against a the former proce eding, who had n o opportunity to examine Granger, witnesse s, or to defend himself, or to appeal against the judg- ment. Thus a verdict in an action between A. and B. is not evidence against a third person C, who was neither party nor privy to the first suit. The case of Green v. the New River Company ( 1 ), where Lord Kenyon said, that a verdict, ob- tained in an action against a person for the negligence of his servant, is evidence in a subsequent action by the master against the servant, as to the quantum of damages, is not an exception to the general rule. Such a verdict would not be evidence of the fact of the injury, but admissible only a evidence of special damages, to shew the amount of what th master was by process of law compelled to pay in the action brought against himself. It is laid down also, as a general rule, th at a verdict is Nor, for a not eviden ce for a stranger, agai nst one wh o was par ty to stran S er - the former suit. Thus, it was resolved by Ch. J. Holt and the other Judges of the Court, on a trial at bar, that no record of conviction, or verdict, can be given in evidence, but such whereof the benefit may be mutual, that is, such as might have been given in evidence either by the plaintiff or the de- fendant. (2) And Ch. B. Gilbert lays it down, " that no body can take benefit by a verdict, who had not been preju- diced by it, had it gone contrary." (3) The same rule applies (1) 4 T. R.590. And see 2 East, (5) Gilb. Ev. 26. Bull. N. P. 459. As to the general principle, 252. Ward v. Wilkinson, 4 Barn. Price, 464. & Aid. 412. The same principle is (2) R. v. Warden of the Fleet, adopted by Eyre C.J. in liisjudg- Rep. temp. Holt, 134. Bull. N. P. ment in the Duchess of Kingston's. i.',33. S. P. case, ll St. Tr. 261. y 3 8£6 Of Verdicts and Judgments, [Ch. 2. to depositions as well as to verdicts. Thus, if A. prefers his bill against B., and B. exhibits his bill against A. and C. in relation to the same matter, and a trial at law is di- rected, C. cannot give in evidence the depositions in the cause between A. and B., but the trial must be entirely as of a new cause. (1) The reason why a verdict is not evidence against a person, who was neither a party to the former suit, nor claims under one of the parties, is because he had no opportunity of calling witnesses, or cross-examining those on the other side, nor of appealing against the judgment. And the reason, why the verdict would not be evidence for a stranger, even against a party who was engaged in the former suit, seems to be, because, if he had been party to that suit, instead of the person who gained the verdict, the result might have been different ; for as the parties would in that case have been constituted differently, the evidence might have varied ; part of the evi- dence might then have appeared inadmissible, or of a doubtful character, or perhaps other evidence might have been pro- duced by the party who lost the verdict. Under such circum- stances to admit a verdict as evidence, would be giving a party indirectly the benefit of testimony, which he might be pre- cluded from availing himself of directly in his own suit. But this reason, it is evident, only applies, where the verdict is offered in evidence by a third person, against the party who failed in the former action, and not where it is produced against the party who succeeded. Exceptions to There are several exceptions to the gen eral rule, which requires, that verdicts or judgments should be admitted in evidence only between the original parties to the suit, or their privies. I. Verdict as 1. On a question of custom, or toll, a verdict is evidence, tollT&c™ 5 ' although between other parties (2); for the custom or toll is (!) Rushworth v. Countess of (2) City of London v. Clarke, Pembroke and Currier, Hardr. 47'-'. Carth. 181. Bull. N. P. 235. Sect, 1.] with reference to the Parties. 327 lex loci, and it is as reasonable to give in evidence a verdict between other parties, as to prove a payment of the duty by strangers. So on a question of customary right of common (1), or a public right of way (2), or on the liability to repair a highway (3), or on manorial or other customs (4?), or on the public right of election to a parochial office (5), a verdict in a former action between any other persons is admissible in evi- dence. The common reputation of the place would be evi- dence of the right ; a fortiori the finding of twelve men upon their oaths is evidence. (G) On such questions, therefore, a verdict in an action between A. and B. is evidence of the point, there directly determined, in an action between C. and D., where the same point comes in issue; but it is clearly not con- clusive. (7) And it seems not to be conclusive evidence for or against A. or B., in an action between either of them and a third person C. (8) ; it could not be pleaded, in such a case, by way of estoppel. Another exception to the general rule, says Mr. Justice Buller, is in a question of pedigree, where a spe- cial verdict between other parties, finding a pedigree, would be evidence to prove a descent. (9) " Of this opinion," he adds, " was Mr. Justice Wright, in the Duke of Athol's case, which opinion is generally approved, though the determination of the rest of the Court was contrary." The other Judges con- sidered the special verdict " inadmissible, as res inter alios acta; and, for any thing they knew to the contrary, the same evidence, that was laid before the former jury, might have been then produced." (10) (1)1 East, 557. 5 T. R. 41.3. n. (6) By Lawrence J., 1 East, 357. (2) Reed v. Jackson, 1 East, .355. Gilb. Ev. 31. (3) R. v. St. Pancras, Peake, N. (7) Biddulph v. Ather, 2 Wils. P. C. 219. 23. f (4) By Holt C. J., Carth. 181. (s) See the cases above cited, and Case of the Manchester Mills, cited see Mayor of Hull v. Horner, Cowp. in Cort v. Birkbeck, 1 Doug. 222. 111. ad fin. n. (13.) (9) Bull. N. P. 233. (5) Berry v. Banner, Peake, N. (10) Neal d. Duke of Athol v. P- C. 156. Wilding and another, 2 Str. 1151. Y 4 J28 Of Verdicts and Judgments, [Ch. Q. 2. Judgments of courts ot exclusive jurisdiction. 2. A judgment in rem in the Exchequer is conclusive as to all the world. ( 1 ) The sentence of a Court of Admiralty is equally conclusive upon all persons. So is the sentence of ecclesiastical courts in some few particular instances, in which they have an exclusive jurisdiction. This subject will be fully considered in a subsequent section. 5. Judgment of q. sess. in appeals. 3. A judgment by the court of quarter sessions, discharging an order of removal, (not for defect of form but upon the merits,) is conclusive as between the contending parishes, that the set- tlement of the pauper was not in the appellant parish at the time of the removal (2); but it is binding only on these pa- rishes, not on a third parish. An order of removal executed, and not appealed against, is conclusive of the pauper's settle- ment at the time of the order, even as between third parishes, who were not parties to that order. (3) And a judgment by the quarter sessions, confirming an order of removal, is conclu- sive upon the appellant parish as to all the world, and may be given in evidence against them by a third parish on any subse- quent appeal. (4) Here it may be observed, the party, against whom the judgment was pronounced, had an opportunity of discharging themselves by proving the liability on a third parish ; and this not having been done, and the court of quar- ter sessions having confirmed the order of removal, the last settlement is adjudged to be in the appellant parish ; and this point being once determined, the judgment must be final, that there may be some end to litigation. (5) 4. Convic- tions. 4. A record of conviction on an indictment against a parish, for not repairing a road, has been held to be conclusive evidence of the liability of that parish to repair, on a plea of not guilty to a second indictment. (6) If the parish can (1) See infra, c. 5. s. 5. And see R. v. Hebden, supra, p. .524. (2) R. v. Sarratt, Burr. S. C. 75. Harrow v. Rislip, Salk. 524. (3) R. v. KenneJwortl), 2 T. R. 5?S. 11. v. Corsham, 11 East, 5ss. ■ Admitted, R. v.RisJip, 2 Bott, 700. R. v. Bentley, 2 Bott, 704. R. v. Sarratt, 2 Bott, 702. (5) By Holt C. J. in R. v. Rislip, 2 Salk. 524. 2 Bott, 705. (6) R. v. St. Pancras, Peake, N. P C. 21?., by Lord Kenyon. Sect. 1.] with reference to the Parties. 329 shew, that fraud has been practised in obtaining the former verdict, this would vitiate the judgment ; otherwise, it is said to be conclusive. Fraud, as it has been observed ( 1 ), is only put for an example. If the parish consists of several districts, which have immemorially repaired the respective highways lying within them, and if the districts, in which the road in- dicted is not situate, can shew that they had no notice of the former indictment, (the defence having been made and conducted entirely by the district, within which the road lies,) the Court will consider the indictment, as being substantially against that district, and give the other districts leave to plead the prescrip- tion to a subsequent indictment for not repairing the highways in the parish. (2) Criminal proceedings, on which a person has been at- tainted, are between the king and the party only, but they are evidence, as was before mentioned, to prove the attainder between all parties, and on all occasions. A conviction and judgment prove the incompetency of a witness; the reversal of the judgment, on a writ of error, restores his competency. (3) So, a record of conviction for felony is admissible in evidence against an accessory, to shew that the felony has been commit- ted by the person convicted as principal. (4) These facts the conviction of the principal has established with certainty, at least sufficient to put the accessory to his answer. The rule is founded on a legal presumption, that every thing in the former proceeding was rightly and properly transacted. Another weighty reason, says Mr. Justice Foster, is, that the witnesses against the principal may be dead, or not to be found, when the accessory is brought upon his trial, especially after a long interval between the trials. It is admitted, however, that the (l) 2 Saund. 159. a. note by the Cr. C. 288. Though the judgment editor. on the record is drawn up irregularly, (;J) R. v. Townsend, 1 Doug. 421. and erroneous, proof of the convic- R. v. Eardisland, 2 Campb. 494. tion will be sufficient. R. v. Bald- (3) See ante, p. 55. Lord Lovat's win, 5 Campb. 26'5. The attainder case. against the principal stands, till it (4) Fost. Disc. iii. c. 2. s. 2. p. 561, is reversed. 9 Rep. 119. a. b. 385. 567. R. v. Smith, 1 Leach, 330 Of Verdicts and Judgments, [Ch. 2. record of conviction is not conclusive evidence against the accessory, because it is as to him res inter alios acta. S. Judgment evidence, by wny of in- iluccinent. 5. A judgment is evidence, in many cases, for or against parties who were strangers to the former suit, when offered as proof of a collateral fact, by way of inducement to the ac- tion. Thus, where a party claims under an execution, the judgment in the former suit, under which the execution issued, is part of his title, and admissible in evidence, though the other party may be a stranger to that suit. And where the defendant is liable to pay the amount of damages, which a third person has recovered in a suit against the plaintiff, the ver- dict in that suit will be evidence, to prove the amount. (1) So, in an action of debt between A. and B., for rent due from a certain day, it has been held that a judgment in an action of replevin between B. and C, (in which C. made cognizance as bailiff of A., and one of the issues found against B. in that action was, that he held the premises at the time of the dis- tress, as assignee of the original tenant, a bankrupt,) is evi- dence, and conclusive evidence, of B.'s tenancy; if he had joined issue on this point with a mere stranger, the judgment would have the same conclusive effect. (2) So, where, in an action of assumpsit, for goods sold and delivered against two defendants, (one of whom suffered judgment by default, and the other defended,) the question at the trial was, whether the defendants were partners at the time when the goods had been delivered, Lord Kenyon held, that a verdict on an issue, directed by the Court of Exchequer, to try the fact of partner- ship, was conclusive evidence of a subsisting partnership, and that it could not properly be deemed res inter alios acta, as both the defendants had been the parties on record in that suit, and it was open to either of them by any evidence to rebut the idea of a partnership. (3) (l) On this account the defendant would not have been a competent witness in the former suit. See Green v. N. R. Comp., supra, p. 57. and other cases there cited. (2) Hancock'v. Welch and Cooper, 1 Starkie, N. P.C. 34 7. (5) Whateley v. Menheim and Levy, 2 Esp. N. P. C. 60S. And see Lowfield v. Bencroft, Bull. N P. 40. 2 New Rep. 571. Sect. 2.J with reference to the Subject-matter. 331 Sect. II. Of' Judgments, with reference to the Subject-matter of the Suit. The judgment of a court of concurrent jurisdiction, di- rectly upon the point, is, as a plea, a bar, or, as evidence, conclusive, upon the same matter directly in question in an- other court. ( 1 ) And it is a bar to any other action of the same nature as the first. (2) By actions of the same nature, is meant actions in a similar degree ; not merely those which have a similitude of form. All personal actions are of the same degree; therefore each is a perpetual bar. (3) Thus, a judgment in an action of debt is a bar in an action of assumpsit on the same contract. (4) And a judgment in trespass, when the right of property is determined, will be a bar in trover for the same taking. (5) So, a verdict for the defendant in trover is a bar in an action for money had and received, for the money arising from the sale of the same goods. (6) One great crite- rion for trying, whether the matter or cause of action be the same, is that the same evidence will maintain both the actions. But where the plaintiff failed in his first suit, on account of some defect in pleading, or from having mistaken the form of action, the judgment will not be conclusive, and he may bring another action to try the same right. (7) If the plaintiff on the trial of his action attempted to prove a demand against the defendant, and failed in the at- tempt, he cannot set it up again in a second action. But if he omitted to give any evidence of the demand on the former occasion, though he had an opportunity of doing so, he is not (1) Sec ante, p. 515. (5) Com. Dig. lb. Putt v. Ros- (2) Ferrer's case, 6 Rep. 7. ; Cro. ter, 2 Mod. 319. 3 Mod. 1. S. C. El. 667. S. C. Sparry's case, 5 Rep. Sir T. Raym. 472. S. C. 2 Black. 61. Hitchin v. Campbell, 2 Black. Rep. 831." Rep. 827. ssi. (C) Hitchin v. Campbell, 2 Black. (3) 2 Black. Rep. 831. Rep. 827. (4) Slade's case, 4 Rep. 94. Com. (7) Robinson's case, 5 Rep. 55. Dig. tit. Action (K 3*). 6 Rep. 8. a. Com. Dig. tit. Action (L 4.). 2 Black. Rep. 331. Of Verdicts and Judgments, [Ch. Q. precluded from doing it afterwards- Thus, when the plaintiff in a former action declared on a promissory note and for goods sold, but, upon executing a writ of enquiry after judgment by default, gave no evidence on the count for goods sold, the judg- ment was not a bar to his recovering for the goods in another action. (1) So, it has been held, that an award, made on a reference of all matters in difference between the parties, is no bar to any cause of action, which the plaintiff' had against the defendant at the time of the reference, if it appear that the subject-matter of the action was not inquired into before the arbitrator. (2) In considering the effect of a former judgment, it is to be observed that the judgment, whether it be pleaded in bar, or given in evidence where special pleading is not required, can be final only for its own proper purpose and object, with reference to the subject-matter of the suit, and upon the points there put in issue and directly determined. Therefore, in an action for obstructing a watercourse, where a verdict for the plaintiff in a former action, which had been brought against the defendant for another obstruction to the same watercourse, was offered in evidence under the general issue, Lord Mans- field held, that the plaintiff had not obtained such a determin- ation of his right by the former verdict, as the law considered conclusive. (3) And this decision has been recognised and confirmed in a very elaborate judgment, before referred to on the nature of estoppels. (4) There is a difference, it has been said, between real actions and personal actions, as to the conclusiveness of ajudgment. " In a'personal action, as debt, account, &c. the bar is perpetual ; for the plaintiff cannot have an action of a higher nature, and has no remedy but by error or attaint. (5) But if the plaintiff be (1 ) Seddon v. Tutop, 6 T. R. G07. And see Cross v. Salter, .'T.R. 639. (2) Ravee v. Farmer, 4 T. R. 146. Sintzenick v. Lucas, 1 Esp. N. P. C Martin v. Thornton, 4 Esp. N.P. C 45. 180. (4) By Ld. Ellenborough in Ou- (3) Sir F. Evelyn v. Haynes, cited tram v. More\frood, ib. in Outram v. Morewood, 5 East, 365. (5) Ferrer's casc ; « ; Rep, 7. 1st Res. Sect. 2.] with reference to the Subject-matter. 333 barred in a real action by judgment on a verdict, demurrer, confession, &c. yet he may have an action of a higher nature, and try the same right again ; because it concerns the freehold and inheritance." ( 1 ) Now, although it is true that the same matter may be thus tried again, yet the former judgment is no less conclusive upon the immediate right then in demand, as far as that former judgment purports to bind, and against all such persons as it is competent by law to bind. A judg- ment is final for its own proper purpose and object, and no further. A recovery in any suit, upon issue joined on matter of title, is conclusive upon the subject-matter. Thus, a find- ing upon title in trespass not only operates as a bar to the . future recovery of damages for a trespass founded upon the same injury, but operates also as an estoppel to any action for an injury to the same supposed right of pos- session. (2) A judgment in one action of ejectment is not conclusive in another, in consequence of the fictitious nature of the pro- ceedings. However, it is conclusive evidence of the plaintiff's title against the tenant in possession, in an action for mesne profits; for the plaintiff, to entitle himself to recover in an ejectment, must shew a possessory right not barred by the statute of limitations. This judgment, like all others, only concludes the parties as to the subject-matter. It proves no- thing beyond the time laid in the demise ; because beyond that time the plaintiff has alledged no title, nor could be put to prove any. As to the length of time also, during which the tenant has occupied, or as to the value, the judgment proves nothing, for the same reason. (3) (1) See the judgment in Outram (5) Aslin v. Parkin, 2 Burr. 668. v. Morewood, 3 East, 559. See Hunter v. Britts, sCanipb. 455., (2) lb. 554. as to the effect of a judgment agaii^t the casual ejector. 384 Of the Admissibility of Verdicts [Ch. 2. Sect. III. Admissibility, in Civil Cases, of Verdicts in Criminal Proceedings. A question has frequently arisen, whether verdicts, which have been given in criminal proceedings, can be admitted as evidence in civil cases. The principal cases on this subject are the following; : 1. Sentence in ecclesiastical court. 1. In the case of Hillyard and Grantham (1), which was an issue directed by the Court of Chancery, to try a question of legitimacy, a sentence against the supposed father and mo- ther, upon a proceeding against them in the Consistory Court of Lincoln, for living together in fornication, was offered in evidence, to prove that they were not married ; but the whole Court of King's Bench were of opinion, on a trial at bar, that the sentence could not be given in evidence ; " because, first, it was a criminal matter, and could not be given in evidence in a civil cause ; next, because it was res inter alios acta, and could not affect the issue : but they held, that if it had been a sentence on the point of marriage, in a question on the law- fulness of the marriage, it might have been given in evidence, being the sentence of a court having proper jurisdiction." 2. Record of conviction. 2. In the case of Gibson v. Maccarty (2), on an issue to try the genuineness of some promissory notes, depositions of a deceased witness having been read on the part of the plaintiff, (in which depositions the witness swore, that the defendant had acknowledged the notes in question and also another note,) it was proposed, on the part of the defendant, to shew by a record of conviction, that the plaintiff had since been con- victed of forging this other note, mentioned by the deponent ; for such evidence, it was said, would go to the credit of the (l) Cited by Lord Hardwicke in (2) Rep. temp. Hard. 311, Brownsord v. Edwards, 2 Ves. 246. see supra, p. 328. and in Rep. temp. Hard. 311. And Sect. 3.] in Criminal Proceedings. 335 deponent's evidence, as to the acknowledgement of the notes in question ; and, secondly, because there is at all times a liberty given to examine into the plaintiff's character. But this evidence was opposed on the part of the plaintiff, on the ground, that no record of a criminal action can be given in evidence in a civil suit, because such a conviction might have been upon the evidence of a party interested in the civil ac- tion ; and Lord Hardwicke is reported to have said, " that the general rule was as had been stated by the plaintiff's counsel (1), and that it had been so strictly kept, that in the case of the Hilly ards, on a question of legitimacy, the Court refused to admit a sentence of excommunication in the spiritual court, for fornication between the father and mother of the party, whose legitimacy was impeached." 3. In a third case (2), to be found on this subject, upon an 5. Coroner's issue to try the question of devise or no devise, a coroner's I?1( l ue9 inquest, finding the deceased a lunatic, was offered in evidence against the plaintiff, who claimed as executrix, for the pur- pose of shewing, that the deceased was incompetent to make a will; this evidence was objected to on the part of the plaintiff, and the Court were equally divided in opinion. The Chief Justice (Parker) was of opinion that the inquest ought to be admitted, "because it was for the plaintiff's advantage, as the personal estate would be saved by the finding of lunacy," and he added, that in Lord Derby's case an inquest post mortem was allowed to be given in evidence. Mr. Justice Powys agreed with the Chief Justice. Mr. Jus- tice Eyre said, " This is a criminal matter, and ought not to be given in evidence in a civil proceeding. A verdict on an indictment for battery cannot be read in an action for the same battery. An inquest post mortem is in the nature of a civil proceeding; but this is criminal, for it might induce a forfeiture of the goods, if he had been found felo de se." And Mr. Justice Pratt said, " If a verdict be given in evi- (1) Ace. by Sir J. Mansfield C. J. (2) Jones v. White, Tr. at bar, in Hathaway v. Barrow and others, 1 Str. 68. As to Inquisitions, see 1 Campb. 151. post. ch. 4. sect. 2. Of the Admissibility of Verdicts [Ch. 2. dence, it must be between the same parties, and, therefore, an indictment at the suit of the king cannot be read in an action at the suit of the party." The objections, then, against the ad mis sibility of such evidence, seem to be, first, that the parties are not th e same in the civil suit, as in the criminal case ; and secondly, that the party in the civil suit, on whose behalf the evidence is supposed to be offered, might have b een a witness o n the prosecution. On the other hand, it may be said, that, although the prosecution was conducted in the name of the king, no kind of injustice can be done to the defendant in admitting the record of conviction as evidence against him on the points there in issue, r since he had a full opportunity at the trial of defending himself, and, if he could, of disproving the charge : and with regard to the second objection, it cannot at least apply to cases where the party, who offers the judg- ment in evidence, was not in fact a witness on the prosecu- tion, or where, from the nature of the case, he could not have been admitted. A record of conviction is conclusive proof, that the person charged has been convicted. It is conclusive also of his incompetency as a witness in a court of justice, while the judgment stands in force against him. Mr. Justice Buller lays down the rule generally (1), "that a conviction in a court of criminal jurisdiction is conclusive evidence of the fact, if it afterwards come collaterally in controversy in courts of civil jurisdiction. As, suppose the father convicted on an indictment for having two wives, this, he says, would be con- clusive evidence in an action of ejectment, where the validity of the second marriage is in dispute." * And if a person, (1) Bull. N. P. 245. 2 Atk. 412. * In support of this, the case of Boyle v. Boyle (a) is cited ; where a wo- man, who was libelled in the spiritual court in a cause of jactitation of (a) 5 Mod 164 Con S. C. Sect. 3.] in Criminal Proceedings. 33J indicted for an assault, plead guilty to the charge, the record would be conclusive against him in an action for damages for the same assault. (1) If the rule is, as Mr. Justice Buller has laid down, that a record of conviction may be given in evidence, on the same matter in a civil suit, it must be understood at least with this limitation, that the party, who offers such evidence, was not a witness on the prosecution. To admit the record as evidence on any other condition, would be in effect to allow the party to a suit to give evidence for himself. The record, in such a case, seems upon every principle inadmissible ; and the rule must be the same, whether the conviction was founded solely on his testimony, or whether his testimony was corroborated by other evidence. Thus, on a trial for perjury, committed in an answer to a bill of injunction, the person who was sued by the defendant in an action then pending, and who in conse- quence filed the bill, was thought to be a competent witness (2), on the ground that a conviction, procured by his testimony, could not be used by him for obtaining relief in equity against the defendant's action at law. (3) So a conviction for an assault before a magistrate, on the information of the injured party, is not evidence in an action for the same assault. (4) Ch. B. Gilbert seems indeed to have been of opinion, that where the verdict in the criminal prosecution is supported by other tes- timony, besides that of the party who wishes to avail himself of (1) Lamb. Just. B. 2. c. 9. p. 427. (4) Smith v. Rummens, 1 Campb. cites 9 H. 6. 60. and 1 1. H. 4. 65. 9. Hathaway v. Barrow and others, (2) R. v. Boston, 4 East, 581. Bur- 1 Campb. 151. Bur Ion v. Brown- don v. Browning, 1 Taunt. 521. ing, 1 Taunt. 520. (.5) Bartlett v. Pickersgill, 4 East, 577. n. (6). marriage, applied to the Court of King's Bench for a prohibition, suggesting that the complainant had been convicted of bigamy in marrying her; and the Court of King's Bench granted the prohibition, 'the best report of this case is in Comberbach, whence it appears that Holloway C. J. and Alli- bone J. granted the prohibition against the opinion of Powell J., " be- cause," they said, " the libel is for jactitation, and the ecclesiastical court will not allow the plea." Nothing further is to be found in the case, to support the general position laid down by Mr. Justice Buller. VOL. 1. Z 338 Of the Judgments of Courts, $c. [Ch. 3. it in the civil suit, there the verdict may be properly received in evidence : for though the verdict, he says, " may be dimi- nished in point of authority, by shewing that it was partly founded on the oath of the party interested in the action, yet the jury ought to respect it no further than as they presume it was given and supported by other witnesses not concerned in the cause." ( 1 ) It may still, however, be objected, that the fact might have found credit from the party's oath, and since this evidence is so intermixed, that it cannot appear on what the jury relied, the verdict ought not to be admitted at all as evidence. Record of Though a conviction, says Mr. Justice Buller, in a court of acquittal. criminal jurisdiction, is conclusive evidence of the fact, if it afterwards come collaterally in controversy in a court of civil jurisdiction ; yet an acquittal, which does not, like a conviction, ascertain facts, is no proof of the reverse. (2) It is, however, conclusive, that the party has been tried for the offence, and was not proved to be guilty, (1) Gild. Ev. 26. for the parish on a second indict- (2) Bull. N. P. 245. Gilb. Ev. 52. ment, R. v. St. Pancras, Peake, N. P. A verdict of not guilty, on an indict- C. 219. As to acquittals in the Ex- nient against a parish for not repair- chequer, see infra, c. 3. s. 3. ad fin. ing a road, is said not to be evidence CHAP. III. Of the Judgments of Courts of exclusive Jurisdiction. HPHE great principle on this subject is, that a judgment of a court of exclusive jurisdiction, directly upon the point, is conclusive between the same parties, upon the same matter coming incidentally in question in another court for a different purpose : but that the judgment either of a court of concur- rent or exclusive jurisdiction is not evidence of any matter, which came collaterally in question, though within their ju- risdiction, nor of any matter incidentally cognizable, nor of Sect. 1.] Of Sentences in Ecclesiastical Courts. 339 any matter to be inferred by argument from the judg- ment. (1) But, although such sentences are conclusive, and cannot be impeached from within, yet, like all other acts of the highest judicial authority, they are impeachable from without. (2) Fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says, it vitiates all judicial acts, whether ecclesiastical or temporal. (3) In treating of this subject, it is proposed to consider; First, Sentences of Ecclesiastical Courts : Secondly, Sentences of Courts of Admiralty, and of Foreign Courts: Thirdly, Judgments in rem in the Court of Exchequer, and by Com- missioners of Excise, and Sentences by Colleges in the Universities. Sect. I. Of Sentences in the Ecclesiastical Courts. Spiritual courts have the sole and exclusive cognizance Sentence on of questioning or deciding directly the legality of marriage. [,,. u .^j.^ e And the temporal courts have an inherent power of deciding incidentally, as far as temporal rights are concerned, either upon the fact or legality of a marriage, when they form a part of some more general issue within their cognizance, or are in some way connected with the decision of the proper object of their jurisdiction. But where, in civil causes, the temporal courts find the question of marriage directly determined by the ecclesiastical court, they receive the sentence as conclusive proof of the fact, it being an authority accredited in a judicial proceeding by a court of competent jurisdiction. (4) They (\) 11 St. TV. 2.81. Judgment of (.4) Judgment of De Grey C J. Ch. J. De Grey in Duchess of King- 1 1 St. Tr. 261. Bunting's case, 4 Co. ston's case. Rep. 29. Kenn's case, 7 Co. Rep. (2) 11 St. TY.2G2. 42. Nedham's case, 8 Rep. l.^. • (5) Fermor's case, ~ Co. Rep. 78. £. .Jones v. Bow, Carlh. 225. Da Costa v. Villa Real, 2 Str. 960. z 2 840 Of Sentences in Ecclesiastical Courts. [Ch. 3. receive it upon the same principles, and subject to the same rules, by which they admit the acts of other courts. A sen- tence of nullity, therefore, and a sentence in affirmance of marriage, have been received as conclusive evidence, on a question of legitimacy arising incidentally upon a claim to a real estate. (1) So, a sentence in a cause of jactitation has been received as evidence against a marriage, upon a title in ejectment, and in personal actions immediately founded on a supposed marriage. (1) In all these cases, said C. J. De Grey, the parties to the suit, or at least the parties, against whom the evidence was received, were parties to the sen- tence, and had acquiesced under it, or claimed under those who were parties, and who had acquiesced. The sentences of the spiritual courts are, in general, not evidence, except against the parties to the suit, in which the judgment was given, or against those claiming under them. To make them conclusive against strangers, would be giving them an effect beyond what a judgment in the courts of common law is allowed to have. In a few particular instances, indeed, namely, where issue is joined on the record in certain real writs, on the legality of marriage or its imme- diate consequence, on general bastardy, or on the fact of profes- sion, or deprivation, in those cases, upon the issue so formed, the mode of trying the question is by reference to the ordinary, and Ills certificate, when returned and entered on record in the temporal courts, is a perpetuai and conclusive evidence against all the world on that point; which exceptionable extent was the occasion of a statute in the reign of Henry the Sixth, requiring certain public proclamations to be made, for persons interested to come in and be parties to the proceeding. (2) A sentence in a cause of jactitation is evidence against a marriage, and has been received as such, upon a title in ejectment, and in personal actions immediately founded upon (1)11 St. Tr. 261. (2) Part of the Judgment of De Grey C.J. 11 -St. Tr. 261. Sect. 1.] Of Sentences in Ecclesiastical Courts. 341 a supposed marriage ( 1 ) ; but it will not, like a sentence of nullity, be conclusive evidence. They are sentences of a very different nature and operation. A cause of jactitation is ranked as a cause of defamation only, and not as a matrimonial cause, unless when the defendant pleads a marriage: and, whether it continues a matrimonial cause throughout, as some say, or ceases to be so on failure of proving a marriage, still the sentence has only a negative and qualified effect, namely, that the party has failed in his proof, and that the libellant is free from all matrimonial contract " as far as yet appears," leaving it open to new proofs of the same marriage in the same cause, or to any other proofs of that or any other mar- riage in another cause : and if such sentence is no plea to a new suit in the ecclesiastical court, and is not conclusive there, it cannot conclude another court, which receives the sentence, from going into new proofs to make out that or any other marriage. (2) Admitting the sentence in its full extent and import, it only proves, that it did not yet appear that the parties were married, and not, that they were not married at all; and, by the rule laid down by Ld. Ch. J. Holt (3), such sentence cannot be proof of any thing to be inferred by argument from it ; and therefore it is not to be inferred* that there was no marriage at any time or place, because the court had not then sufficient evidence to prove a marriage at a particular time and place. In the Duchess of Kingston's case, therefore, on a charge of polygamy, where a sentence in the spiritual court, in a cause of jactitation of marriage, was offered, as conclusive evidence, to disprove the second marriage, the Judges held, that this sentence, (even admitting it to be evidence on a criminal prosecution,) could not be conclusive, but that the sentence and the judgment of the Lords might well stand together, and both propositions be true. The sentence would only prove, that it did not then appear, that the parties were married ; but, because the court had not then sufficient proof of the marriage specified, it could not be in- (1) 1 1 St. Tr. 261. (3) Blackham's case, 1 Salk. 290. (2) 11 St. Tr. 261. Z 3 ;»l. i J Of Sentences in Ecclesiastical Courts. [Ch. 3. ferred, that there was no marriage between them at any other time or place. Probate, and The ecclesiastical courts have also exclusive authority in ministration! deciding on the validity of wills of things personal, and in granting administration. ( 1 ) And their sentences, pronounced in the exercise of this sole and exclusive jurisdiction, are so binding on the temporal courts, as to be conclusive evidence of the right directly determined ; but it will not be evidence of any collateral matter, which may possibly be collected or in- ferred from the sentence by argument. (2) A probate, unre- pealed, is conclusive evidence, in civil cases, of the validity of such will : and therefore payment of money to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the intestate, though the probate be afterwards de- clared null and void. (3) A probate is the only legitimate evidence of personal property being vested in an executor, or of the appointment of executor; the original will is not admis- sible for that purpose. (4) But the probate of a will, devising real pro perty, is not evidence of the contents of the w ill, as to suclipropej^yj^^eyen though the orig inal is proved to be lost (6) : the spiritual court having no power to authenticate such a devise, as far as it relates to land. The adverse party may shew, that the probate is forged, be- cause such evidence supposes, that the spiritual court has given no judgment; or, if the probate was granted by an inferior court, the adverse party may shew, that the testator left bona notabilia, for then the court had not jurisdiction. (7) But evidence will not be admitted to prove, that another person was appointed executor, or that the testator was insane (8) : (1) Noel v. Wells, 1 Lev. 255. (5) Bull. N. P. 245. 1 Ld. Ray. 262. 5 T. R. 130. (6) Doe d. Ash v. Calvert, 2 (2) Blackham's case, 1 Salk. 290. Campb. 589. Hoe v. Nathorp, 1 Thompson v. Donoldson, 5 Esp. Ld. Ray. 154. St. Leger v. Adams, N.P.C. 6.5. ib. 751. Dikev. Polhill, ib. 744. (3) Allen v. Dundas, 3 T.R. 125. (7) 1 Sid. 359. Bull. N. P. 247. (4) Coe v. Westernham, -2 Selw. 5 Rep. 30. N. P. 730. (s) l Lev. -25b. Sect. 1.] Of Sentences in Ecclesiastical Courts. 343 that would be to falsify the proceedings of the ordinary in cases, where he is exclusive judge. It appears, then, that the s entence of an ecc lesiastical court, Sentence not iti£ectiy__ugon_aj3omt within its peculiar jurisdiction, is con- cHmhiScalies. elusive on the same matter, coming incidentall y into question h^a civi l case in jtnother court. But, although the law stands thus with regard to civil suits, proceedings in matters of crime, and especially of felony, fall under a different consideration (1) ; first, because the parties are not the same, for the king, (in whom the trust of prosecuting public offences is vested, a trust executed by his immediate orders, or in his name by some prosecutor,) is not a party to such proceedings in the ecclesi- astical court, and cannot be admitted to defend, examine wit- nesses, or in any manner intervene or appeal : secondly, such a doctrine would tend to give the spiritual courts, which are not permitted to exercise any judicial cognizance in matters of crime, an immediate influence in trials for offences, and to draw the decision from the course of common law, to which it solely and peculiarly belongs. (1) The case of the King v. Vincent (2), therefore, (where the probate of a will is said to have been admitted, as conclusive evidence of its validity, on an indictment for the forgery of the same will,) has been frequently much questioned, and at length expressly over- ruled. (3) For the same reason, a sentence in a spiritual court on the question of marriage will not preclude enquiry on a criminal charge of polygamy ; unless it is made to have such an effect by an express provision of the legislature. Now, by the sta- tute of 1 J. 1 . c. 11., which makes polygamy a felonious offence, and for the trial of this offence necessarily gives to the temporal courts a cognizance of the lawfulness of marriage, it is pro- vided, that the act " shall not extend to any person divorced (1) 11 St. Tr. 261. stated by Mr. Evans in the 2d vol. of {-J,) i Sir. 481. his edition of Potbiev, p. 556. R. v. ("5) R. v. Gibson, Lane. Sum. Ass., Buttery and M'Naniara, at the Old 1802, before Ld. Ellcnborough C J., Bailey, May 6. 1S18. S. P. Z 4 #1*1. Of Sentences in Ecclesiastical Courts. [Ch. 3. by a sentence in the ecclesiastical court, nor to any persons where the former marriage has been by the ecclesiastical court declared null and void." There are two cases, then, put by the statute, in which the sentence of the ecclesiastical court will protect against the criminal enquiry, namely, the case of a sentence of divorce, and the case of a sentence of nullity of marriage. ( 1 ) But the statute makes no exception in favour of a sentence in a cause of jactitation : and as such a sentence is not conclusive even in the court where it was delivered, and declares not directly, but only collaterally, the invalidity of marriage, it has been adjudged not to be a bar to a criminal prosecution. (2) Sentence im- It has been before mentioned, that judgments and sentences paidiablefor f cour ts of justice, or any other judicial act, may be im- peached by evidence of fraud or collusion. And such evi- dence was adjudged to be admissible, on the part of the prosecution, in the case of the Duchess of Kingston, who was tried for polygamy. A distinction, in this respect, has been made between the case of a stranger, (who cannot come in and reverse the judgment, and therefore of necessity he must be permitted to aver, that it was fraudulent,) and the case of a party to the proceedings ; the party himself cannot give evidence of fraud, but must apply to the Court, which pronounced the judgment, to vacate it. Thus, in the case Prudham v. Phillips (3), where the defendant proved her marriage with one M., in answer to which a sentence of an ecclesiastical court was produced, (to which sentence she was a party,) shewing that she was at the time married to another person, Chief Justice Willes, after much debate, refused to allow the defendant to prove, that the sentence had been ob- tained by fraud. (1) l East P. C. 467. (.-) Ambler, 763. cited l.v the LA ('2) Duchess of Kington's cao>e, Ch. from a MS. note of Sent. 1 1 St. Tr. 260. Parker. Sect.] Of Sentences in Courts of Admiralty, §c. 345 Sect. II. Of Sentences in Courts of Admiralty and Foreign Courts. The Judge of the Admiralty has the sole and exclusive Sentence in cognizance in questions of prize or not prize at sea. ( 1 ) The .' r i zc> true reason of this rule is, that prizes are acquisitions jure belli, and the jus belli is to be determined by the law of na- tions, and not by the particular municipal law of any country. A sentence therefore in the prize-court, deciding the question of prize, is conclusive, in all it professes to decide, on the same point incidentally arising in courts of common law. " It has been clearly settled," said the Master of the Rolls in the case of Kindersley against Chase (2), "from the time of Lord Hale down to the present period, that a sentence of condemnation in a court of admiralty is conclusive, when it proceeds on the ground of enemy's property, that the pro- perty belongs to enemies, and not only for the immediate purpose of such a sentence, but is binding on all courts and against all persons. The sentence of a court of admiralty, proceeding in rem, must bind all parties, must bind all the world." The sentence of a foreign court of admirality also, which is Sentence of acknowledged by the law of nations, and of competent jurisdic- f admiralty, tion, deciding the question of property, is conclusive, if the same question arise in this country. (3) * And though in the case of Hughes and Cornelius, the leading case on this sub- (1) Thompson v. Smith, 1 Sid. (3) Hughes v Cornelius, 2 Show. 320. Brown v. Franklyn. Carth. Rep. 232. Sir T. Ray. 473. S. C 47G. Le Caux v. Eden, 2 Doug. 600. Bernardi v. Motleux, 2 Doug. Rep. Lindo v. Rodney, n. (l) ib. 575. (2) Cockpit, July 1801, Park. Insur. 490. * This principle, which is established in our courts of justice, prevails also in those of the United States of America. See 4th vol. of Cranch'3 Reports of Cases adjudged by the Supreme Court of the United States, pp, 267. 271. £12, 513. !].(> Of Sentences in Courts of Admiralty > [Ch. 3. ject, the question upon the foreign sentence arose in an action of trover, and not in an action on a policy of assurance, where the non-compliance with a warranty of neutrality is in dispute, yet, from that period down to the present, the doc- trine, there laid down, has been considered as applicable to questions of warranty in actions on policies, as to questions of property in actions of trover. (1) And it may now be as- sumed as the settled doctrine of courts of English law, that all sentences of foreign courts, of competent jurisdiction to decide questions of prize, are to be received here as conclu- sive evidence in actions upon policies of insurance, on every subject immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially. (2) "It is now too late, said Mr. Justice Lawrence (3), to examine the practice of admitting these sen- tences to the extent to which they have been received, sup- posing that practice might at first have appeared doubtful. On the authority of those decisions men have acted for a long series of years, and entered into contracts of assurance in this country, with a knowledge of such decisions, and in expecta- tion that the questions, arising out of such contracts, to which the decisions are applicable, will be ruled by them." Such a sentence of condemnation will be binding on the rights of third persons, as well as on the parties to the original suit; it is conclusive between the assured and the underwriter, with respect to every fact, which it professes to decide. Thus, when it proceeds on the ground of enemy's property, it is conclusive, that the property belongs to enemies, not only for the immediate purpose of such a sentence, but it is binding on all courts and against all persons. (4) And the sentence is binding, whether it proceecLtojcondemn the ship expressly as being enemy's property, or whether such a ground jxfjle- cision can only be collected from ^other partsjof the proceed- (1) By Chambre J., Lothian v. & Pull. 524. Baring v. Clagett, Henderson, 5 Bos. & Pull. 515. 5 Bos. & Pull. 214. See 1 Campb. (2) Bolton v. Gladstone, 5 East, 452. 160. Christie v. Secretan, 8 T. R. (4) Kindersley v. Chase, Park, Ids 196. Kindersley v. Chase, Park, 490. All the cases on this subject Ins. 486. are there collected. (5) Lothian v. Henderson, 3 Bos. Sect. 2.] and in Foreign Courts. ings : and this, although it appear on the face of the sentence, that the prize-court arrived at the conclusion through the medium of rules of evidence and rules of presumption, established only by the particular ordinances of their own country, and not admissible on general principles. (1) The sentence is conclusive evidence of the points, upon Effect of sen- tciicc. which it professes to decide. (2) Thus, for example, if it pro- ceeded upon the ground of the property not being neutral, it is conclusive against the insured, that he has not complied with his warrantry. (3) If no spe cial ground is stated, and the ship is condemned generally as lawful prize, it is to be pre- sumed from the condemnation, as no other cause appears, that the sentence proceeded on the ground of the property belong- ing to an enemy ; and the sentence, in such a case, has been held to be conclusive evidence, that the property was not neutral. (4) In the case of Bernardi v. Motteux (5), where there was some ambiguity in the sentence, so that the precise ground of the determination could not be collected, the Court of King's Bench considered themselves at liberty to examine, whether the ground, on which the sentence proceeded, but which was not stated, actually falsified the warranty contained in the policy. Hence it follows, that it does not lie on the party, who produces the sentence, to shew that it has pro- ceeded on the ground of enemy's property ; but it is incum- bent on the other party, who objects to the sentence, to shew that it proceeded on some other ground. (6) Where the sentence professes to be made on particular grounds, which are set forth in the sentence, but which ap- pear not to warrant the condemnation, the sentence will not (1) Bolton v. Gladstone, 5 East, sur. 46*9. Baring v. Clagett, 5 Bos. 155. 2 Taunt. 85. Barring v. Roy, & PuJl. 201. Ex. Ass. Comp. 5 East, 99. - (4) Saloucci v. Woodmas, Park, (2) Christie v. Secretan., 8 T. It. Ins. 471. 8 T. R. 444. 196. Fisher v. Ogle, 1 Cainpb. 418. (5) 2 Doug. 574. 3 Bos. & Pull. Evcrth v. Hannam, 2 Marshall, 72. 215. Marshall v. Parker, 2 Campb. 70. («) Kinderaley v. Chase, Park. Ins. (3) Barzillay v. Lewis, Park. In- 490. H8 Of Sentences in Courts of Admiralty, [Ch. 3. be conclusive as to such facts. (1) Or if the sentence has not decided the question of property, nor declared whether it be neutral, but condemned the property as prize, solely on the ground, that the ship had violated an ex parte ordinance, to which the neutral country had not assented, or on the ground of a foreign ordinance against the law of nations, such a sen- tence, though conclusive of the question of prize or no prize, would not be conclusive of the fact, whether or not the ship were neutral. (2.) Lastly, sentences of condemnation in foreign courts of prize are admissible, only where such courts are constituted according to the law of nations, and exercise their functions either in the belligerent country, or in the country of a co-belligerent, or ally in the war. (3) It has, therefore, been determined, that a sentence pronounced by the au- thority of the capturing power, within the dominions of a neutral country, to which the prize may have been taken, is illegal (4-), and consequently would not be admissible evidence to falsity the warranty of neutrality. Sentence of other foreign courts. The sentence of any other foreign court of competent ju- risdiction, directly deciding a question, which was properly cognizable by the law of the country, seems to be conclusive here, if the same question arise incidentally between the same parties in this country. Thus the sentence of a foreign court of competent jurisdiction, directly establishing a marriage in that country, would be conclusive in any of our courts on the validity of the marriage. (5) So, where a party, having accepted a bill of exchange drawn upon him at Leghorn, in- stituted a suit there, in which suit his acceptance was vacated, and, upon his return to this country, being sued again on his acceptance, applied to the Court of Chancery for an injunc- tion and relief against the second action, Lord Chancellor (1) Calvert v. Bovil, 7 T. R. 523. 8 T. R. 444. (2) Pollard v. Bell, 8 T. R.444. Bird v. Appleton, 8 T. R. 562. Ba- ring v. Clagett, 3 Bos. and Pull. 215. Bolton v. Gladstone, 2 Taunt. 85. 05. See 2 Campb. 154. (3) Oddy v. Bovil, 2 East, 4 75. (4) Haveloek v. Rockwood, 8 T. R. 268. Case of the Flad Oyen, 8 T. R. 270. n. (a); 1 Rob. Adm. Rep. 135. Donaldson v. Thompson, 1 Campb. 429. (5) By Lord Hard\vicke,in Roach v. Garvan, 1 Vcs. 159. Sect. 2. j and in Foreign Courts. Si9 King decided, that the cause was to be determined by the law of the country where the bill was negotiated, and, as the ac- ceptance had been there declared void by a competent juris- diction, he thought the sentence must here also be con- clusive. (1) So, on a criminal charge, (as, for murder com- mitted in a foreign country,) an acquittal in that country might be pleaded here in bar to an indictment for the same offence. (2) ; because, says Mr. Justice Buller, a final deter- mination in a court of competent jurisdiction is conclusive in all courts of concurrent jurisdiction. (3) From the two last cases the following principle seems to be properly dedu- cible, namely, that a party, w ho h as been o nce discharged from a crimina l charge, or from a legal demand, by the sen - tence of a foreign court of c ompetent jur isdiction, may pro- tect himself by that sentence against any fresh suit, or prose - cution, ins tit uted here for the same cause. If an action is brought in this country, as, an action of debt Action on or assumpsit, directly upon a foreign judgment, the sentence ment ° ° has been considered prima facie evidence of the debt, but not conclusive. Lord Kenyon, indeed, in the case of Galbraith v.Neville (4), which was an action of debt on a judgment in the supreme court of Jamaica, said, he entertained serious doubts concerning the doctrine laid down in the case of Walker v. Witter, (5) that foreign judgments are not binding upon the parties here ; and after referring to a case, which might seem to point against his opinion, he added, " that is not an authority for saying, that we can revise the judgments of the lowest courts in foreign countries, where they have competent jurisdiction." However, Mr. Justice Buller, in the same case, said, " The doctrine which was laid down in the case of Sinclair v. Fraser has always been considered the true line ever since, namely, that the foreign judgment shall be prima, facie evidence of the debt, and conclusive, till it be impeached (1) Burrows v. Jemino, 2 Str. 7,55. (4) 1 Doug. Rep. 5. n. (2); and (2) Hutchinson's case, cited 1 5 East 475. n. (b). S. C. Show. Rep. 6. ; also in 2 Str. 735. (5) 1 Doug. 1. (3) Bull. N. P. 245. Roche's case, 1 Leach, Cr. C. J 60. 886 Of Sentences hi Courts of Admiralty, [Ch. 3. by the other party." " As to actions of this sort," he con- tinued, " see how far the Court would go, if what was said in the case of Walker v. Witter were departed from. It was there held, that the foreign judgment was only taken to be •prima facie evidence, that is, we will allow the same force to a foreign judgment, that we do to those of our own courts not of record ( 1 ) : but if the matter were carried farther, we should give them more credit ; we should give them equal force with those of courts of record here. Now a foreign judgment has never been considered as a record : it cannot be declared on as such, and a plea of nul tiel record in such a case is a mere nullity. How then can it have the same obligatory force? In short, the result is this; that it is prima facie evi- dence of the justice of the demand in an action of assumpsit, having no more credit than is given to every species of written agreements, namely, that it shall be considered as good, till it is impeached." And in the case of Philips v. Hunter (2), Eyre C. J. said, " It is in one way only, that the sentence or judgment of the court of a foreign state is examinable in our courts, and that is, when the party who claims the benefit of it applies to our courts to enforce it. When it is thus volun- tarily submitted to our jurisdiction, we treat it not as obli- gatory to the extent, to which it would be obligatory perhaps in the country in which it was pronounced, nor as obligatory to the extent, to which by our law sentences and judgments are obligatory, not as conclusive, but as matter in pais, as a consideration prima facie sufficient to raise a pi'omise. We examine it, as we do all other considerations of promises, and for that purpose we receive evidence of what the law of the foreign state is, and whether the judgment is warranted by tin law." It is now fully established, that a judgment in_a foreign court is only prima facie evidence of a debt, and has th e force _of a simple contract betw een the parties. When it is said, that a foreign judgment is evidence of a debt, the rule must obviously be understood with this limitation, (l) Ace. Ld. Mansfield in Herbert (2) 2 H Black HO, i" error, v. Cook, Willes Rep. 37. n. (. VOL. I. A A Of Judgments in rem in Exchequer, [Ch. 3. evidence of the right of seizure, but it does not appear whether they thought it conclusive, on the ground of its being a judg- ment of a court of record. Nor is this reason stated as the ground of determination in any of the authorities referred to by Mr. Just. Blackstone. A different principle was certainly established in the case of the Duchess of Kingston (1), where De Grey C. J., in an elaborate judgment, delivered the una- nimous opinion of the Judges ; and it is observable, that he pronounced this judgment within a year after the determin- ation of the court in the case of Scott and Shearman. The principle, there established, is not confined to the judgments of courts of record, some of which are of a very inferior descrip- tion, but extends equally to every court of competent or ex- clusive jurisdiction ; and the examples cited by C.J. De Grey, in illustration of this principle, are all drawn from the pro- ceedings in ecclesiastical courts, none of which are classed among courts of record. It seems therefore correct to infer, from the rule established in the Duchess of Kingston's case, as well as from analogy to several cases mentioned in the course of the present chapter, that a sentence of condemnation by commissioners of excise will be conclusive, on the right of seizure coming incidentally into question in any other court, in all cases where by act of parliament they have a sole or exclusive jurisdiction. In support of this position, the following authorities may be cited. First, in an action of trover against commissioners of excise (2), for levying the plaintiff's goods by their warrant under statute 12 C. 2. c. 23., the point was, whether, after they had adjudged low wines to be strong wines perfectly made, their judgment could be drawn in question again, so as to make the officers chargeable. The court gave judg- ment for the plaintiff, on the ground, that the defendants had exceeded their jurisdiction. Rainsford B. said, that the de- fendants might well enough have justified by virtue of an (1) 11 St. Tr. 261. C. J., in Dr. Groenvelt v. Dr. Bur- (2) Terry v. Huntington and well, 1 Ld. Raym. 471. ethers, Hardr. 4 SO., cited by Holt Sect. 3.] and by Commissioners of Excise, §c. 355 authority from the commissioners of excise, who are judges of the fact, and whose authority is not traversable by the plaintiff, and that the plaintiff here must have taken his re- medy by appeal and no otherwise. But if the commissioners exceed their authority, and that appear to the Court, then their proceedings are coram non judice, and an action of tres- pass lies. But if that does not appear, it must be otherwise. Hale C. B., and the other judges present, argued to the same effect. In another case, which was an action of trespass against commissioners of excise for taking the plaintiff's money (1), the defendants pleaded not guilty, and gave in evidence their warrant and a judgment against the plaintiff, on an inform- ation against him for an offence against an excise law. It was objected, on behalf of the plaintiff, that this judgment was not peremptory, and that the plaintiff in this action was at liberty ' to disprove the truth of the matter of fact, upon which the de- fendants grounded their judgment. But this was denied by the Court, and a distinction was taken, namely, that if the commissioners had intermeddled with a thing which was not within their jurisdiction, then all is coram non judice, and that may be given in evidence upon this action; but it is otherwise, if they are only mistaken in their judgment in a matter within their cognizance, for that is not enquirable, otherwise than upon an appeal. A third case may be cited to the same effect. In an action of trover for a quantity of tea (2), it appeared in evidence that the plaintiff sent the tea for one Lloyd with a permit, but the porter in his way called at the house of one R., and set it down there, where the defendant, an excise officer, seized it, as forfeited for being brought to R.'s house for R.'s use without a permit to that place, according to the statute (1) Fuller v. Fotch, before Holt, C. J., Sittings after Easter Term C. J., Carth. 346. Rep. temp. Holt, 1742, 1 Hargr. Law Tracts, p. 468. 287. S. C. n. from Ford's MS. (2) Roberts v. Fortune, before Lee A A 2 §56 Of Judgments in rem in Exchequer, [Ch. 3. 10 G. 1. c. 10. s. 16. Upon not guilty pleaded, the defendant, to shew that the property was out of the plaintiff, produced a condemnation by the commissioners of excise upon an inform- ation against R. for receiving this tea without a permit, which sentence, it was insisted, was conclusive evidence of that fact, being a judgment before a proper jurisdiction. On the other side it was insisted, that the plaintiff was no party to the suit ; that R. had nothing to do with the tea; and that, if he made a feigned defence, or, as the case was, made default, yet the plaintiff ought not to be affected by that, but might shew, that this was a case not subject to forfeiture. But Lee C. J. said, " The judgment of forfeiture is a judgment on the thing itself. How the tea came to R.'s house was a matter proper for the consideration of the commissioners; and, if the plain- tiff was willing to have defended the suit, he might have come in piv interesse suo, which, as he has not done, his property is bound. There is no more in this than the common case- namely, that courts of law pay such deference to the judgment of each other in matters within their jurisdiction, that the first determination by a proper authority ought to prevail : so that, the tea being forfeited, the property could not be in the plain- tiff." And upon this the plaintiff was nonsuited. Acquittal. An acquittal in the Exchequer was considered by Lord Kenyon, in the case of Cooke v. Sholl(l), to be conclusive evidence of the illegality of the seizure. That was an action of trover for several pipes of wine seized by the defendant for want of a permit. At the trial of the cause, the plaintiff gave in evidence a record of acquittal in the Court of Exchequer. The defendant then insisted, that, under the circumstances of this case, the permit had expired, before the seizure was made ; and Mr. Justice Heath, who tried the cause, was of that opinion; but, on its being suggested, that there had been a different determination in the Court of Exchequer, he reserved the point for the opinion of the Court of King's (l) 5 T. R. 255.; and see a case in 12 Vin. Ab. (A. b. 22.) pi. l. before Price B. ace. IS Sect. 8.] and by Commissioners of Excise, §c. 357 Bench, with liberty to enter a verdict for the defendant, if ifc should be adjudged for him. When the case came before the Court, Lord Kenyon thought the record of acquittal pre- cluded all reasoning on the construction of the permit; but. us the question respecting the judgment of acquittal was not upon the record, and the only question was on the construc- tion of the permit, a verdict was entered for the defendant. This case, therefore, has not determined, that an acquittal in the Exchequer would be conclusive evidence of the ille- gality of a seizure, although certainly that appears to have been the opinion of Lord Kenyon. It may be observed, that an acquittal does not, like a conviction, ascertain any precise fact. The sentence might have proceeded on the ground, that sufficient evidence was not produced, on the part of the crown, to warrant the seizure ; and though the sentence may be conclu- sive as against the crown, it seems reasonable, that it should not have such a conclusive operation, in an action for seizing the property, against a third person, who was not a party with the crown in the original proceedings, and had no notice or op-> portunity for supporting the condemnation. The principle, which has been before laid down as appli- cable to the sentences of courts of justice, seems to apply equally to the judicial proceedings of other tribunals, which are invested with an exclusive or peculiar jurisdiction. A Sentence of sentence of deprivation or expulsion of one of the members j™ college. of a college, by the master and fellows, or by the visitor on an appeal, upon a subject within their jurisdiction, is con- clusive in courts of law. And the justice of their decision cannot be questioned even in the King's Bench, though it belongs to that court to control them, if they exceed the bounds of their jurisdiction. On this principle, a mandamus, to restore the fellow of a college, has been frequently re- fused. (1) In the case of Philips v. Bury, it was decided, on an appeal to the House of Lords, that a sentence of depriv- (1) Dr. Widrington's case, 1 Lev. '25. Dr. Patrick's case, 1 Lev. 65, case of New College, 2 Lev. 14. A A 3 35S Of Judgments in rem in Exchequer, 8$c. [Ch. 3. ation, by the visitor of a college acting within the limits of his visitatorial jurisdiction, was conclusive evidence in an action of ejectment for one of the college estates ; and the judgment of the Court of King's Bench, which had been given on the opinions of three Judges against the opinion of Lord Holt, was reversed. ( 1 ) And in the last case on this subject, which was a prosecution for an assault in turning out of a college one who had been expelled, the Court of King's Bench deter- mined, that evidence impeaching the sentence of expulsion had been properly rejected at the trial. (2) It is a general rule, with respect to special and limited jurisdictions, that where a person acts as judge , (that is, where lie has over the subject-matter a general jurisdiction, which he has not exceeded,) he will not be li able t o have his judgm ent examined in an action brought against him . (3) Thus if an ecclesiastical Judge proceeds to excommunicate in a cause, in which he has jurisdiction over the subject-matter, he will not be liable to an action, although he proceed to excommunicate erroneously ; but if he excommunicates in a matter, in which he has no jurisdiction, he will be liable to an action. (4) And where a statute provides, that the judgment of commissioners, appointed by the act, shall be final, their decision is con- clusive, and cannot be questioned in any collateral pro- ceeding. It has therefore been held, that a certificate from commissioners for settling the debts of the army, stating that so much was due from the defendant (an army-agent) to the plaintiff (an officer), was conclusive in an action brought to recover the money ; and that no evidence could be received to shew, that the commissioners had formed a wrong judg- ment. (5) (1) Philips v. Bury, Skin. 447. (4) Ackerley v. Parkinson and 1 Ld. Raym. 5 S. C. 2 T. R. 546. Mawdesley, 5 Maule & Selw. 411. S. C. (5) Moody v. Thurston, 1 Str. 481. (2) R. v. Grundon, Cowp.315. ruled by Pratt C. ,J. ; and a new (S) Marshalsea case, 10 Rep. 76. trial afterwards refused by the whole Dr. Groenvelt v. Dr. Buiwell, 1 Ld. Court. See also Lane v. Hegberg, Ray. 454. 467.; 1 Salk. 596. S. C. Bull. N. P. 19.; Earl of Radnor v. Miller v. Seare, 2 Black. Rep. 1145. Reeve, 2 Bos. & Pull. 391. Mostis v. Macferlan, ante, p. 521. Ch. 4.] Of Proceedings in Chancery* 359 CHAP. IV. Of certain other Judicial Proceedings, \\fEt proceed now to treat of the admissibility of certain other judicial proceedings ; and, in the present chapter, it is proposed to consider, first, the admissibility of pro- ceedings in Chancery; secondly, the admissibility of deposi- tions on interrogatories, of depositions taken before justices of the peace and coroners, of inquisitions taken by coroners, of certain other inquisitions, of depositions and judgments in inferior courts, of awards, and of certificates. Sect. I. Of Proceedings in Chancery, A decree in the Court of Chancery may be given in evi- Decree, dence on the same footing, and under the same limitations, as the verdict or judgment of a court of common law. (1) The common opinion used to be, that a bill in Chancery, Bill which had been followed up by other proceedings, was ad- missible in evidence against the complainant, as an admis- sion of facts. (1) " The allegations in the bill, it was saidj must be supposed to be true : nor is it to be presumed, that the bill was preferred by a counsel or solicitor, without the privity of the party himself. (2)" However, it is notorious, that many of the facts stated in the bill are the mere suggestions of counsel, made for the purpose of extorting an answer from the defendant. > The general rule therefore is, that a bill in Chancery will not be evidence, except to shew, that such a bill did exist, and that certain facts were in issue between the parties, in order to introduce the answer or the depositions of (1) See ante, p. 319. Gilb. Ev.42. Woollett v. Roberts, (2) Snow v. Phillips, 1 Sid. 221. l Chan. Cas. 64. contra. A A 4- 360 Of Proceedings in Chancery. [Ch. 4<. witnesses (1): it is not to be admitted as evidence, in courts of law, to prove any facts either alleged or denied in the bill. (2) Lord Kenyon, indeed, is reported to have admitted a bill in Chancery, filed by an ancestor, to be evidence of a pedigree there stated, as a declaration in the family. (3) But it was resolved by the Judges in the Banbury peerage case, on a question put to them by the House of Lords, that a bill in equity, or depositions, cannot be received in evidence in the courts below, on the trial of an action of ejectment, against a party not claiming or deriving in any manner under the plaintiff or defendant in the Chancery suit, either as evidence of the facts therein deposed to, or as declarations respecting pedigree. (4) And even if the bill or depositions could be received, some extrinsic proof must be given of the relationship between the complainant and the party whose pedigree is disputed. It would not be sufficient, that the bill purports to have been filed by a relation. In the Ban- bury peerage case before mentioned, where C. D.'s legitimacy was in question, the complainant offered in evidence a bill filed in C. D.'s name by E. F. his uncle and next friend, stating his legitimacy, but there was no proof that E. F. was his uncle : the Judges, being referred to for their opinion, were unani- mous, that extrinsic proof of the relationship was essential, and the bill, which was above 1 50 years oid, was accordingly rejected. (4) Answer. Answers in Chancery are confessions on oath , and there- fore strong ev idence against th e party who makes them . When an answer is read, all the parts must be taken together, connected, and entire. If only a part is read in evidence, the other party is entitled to have the whole read (5); (1) Lord Ferrers v. Shirley, Fitz- (4) MS. case in 2 Selw. N. P. 685. gib. 196. Bull. N. P. 255. Bower- Feb. 1809. See also Berkeley Peer- man v. Sybourn, 7 T.R. 3. 1 Wightw. age case, supra, p. 242.; and Free- 525. man v. Phillipps, supra, p. 246. (2) Banbury Peerage case, re- (5) By Holt C.J. Lynch v. Clarke, ported from MS. in 2 Selw. N. P. 5 Salk. 155. Earl of Bath v. Batter- 685. sea, 5 Mod. 9. (5) Taylor v. Cole, sitt. after Hil. term, 1799, 7 T. R. 3.n. N Sect. 1.] Of Proceedings in Chancery. 3(jl and if, on exceptions being taken, a second answer is put in, the defendant may insist upon having that also read, to explain what he swore in his first answer. ( 1 ) This is the general rule, when an answer of either party to the suit is given in evidence against him, to prove a point in issue. But if an answer is produced, merely for the purpose of shewing the incompetency of a witness, who has in his answer admitted himself interested in the event of the cause, that part only is to be read which states the ground of interest (2) ; for if the witness is incompetent, his evidence ought not to be re- ceived in any form ; on the other hand, if he is competent, he ought to be examined viva voce in open court. When you read the answer of a party, says Ch. B. Gilbert, the confession must be all taken together : you shall not take only what makes ^against him, and leave out what makes for him ; for the answer is read as the sense of the party. (3) But although the defendant may regularly insist on having the whole of the answer read, that, by comparing the several parts with each other, the true meaning and extent of the ad- missions may be more clearly understood, it will not therefore follow, that all the parts of his statements are equally credible, or that every thing, which he asserts, is to be admitted, as strictly proved. If, for example, he states a fact, not from his own knowledge, but on mere report, that would not be evi- dence in his favour ; as, on the other hand, it would not be evidence against him, in case he had acknowledged the re- port to be different. The objection is, not that he speaks in his own behalf, for that difficulty is waved by the other party, who offers the answer in evidence, but that he speaks from hearsay, and has not the means of knowledge, which alone can be resorted to. In the case of Roe on demise of Pellatt and others against Ferrars (4), where the defendant gave in evi- dence an answer by the lessors of the plaintiff, Mr. Justice (1) R. v. Can-, l Sid. 4 is. Bull. (4) 2 Bos. & Pull. 542. 548. See N.P. 237. See ante, p. 109. also the remark of Lord Mansfield, (2) Sparin v. Drax, trial at bar, in Bermon v. Woodbridgc, 2 Doug. Bull. N. P. 238. 788. (5) Gilb. Ev. 44. Sec ante, p. loy. ,3o-j Of Proceedings in Chancery. \Ch. 4. Chambre, observing upon the degree of positive proof, which the lessors of the plaintiff had drawn from the answer in their own favour, expressed himself thus: — " It is true, that the answer was introduced into the cause by the defendant, on whose behalf some parts of it were read. But in those parts, on which the lessors of the plaintiff relied, they speak only to what " they have heard as truth." I think that was not ad- missible evidence, for it appears to me, that where o ne party reads a part of the answer of the other party in evi dence, he makes the whole admissible only so far as to wave any obj ection to the competency of the testimony of the party making the answer, and that he does not thereby admit as evidence all the facts, which may happen to have been stated by way of hearsay only, in the course of the answer to a bill filed for discovery. This point, he added, does not indeed appear to have been contested at the trial. Had it been contested, I should have thought the court bound to send the case down for a new trial." Evidence An answer to a bill filed in the Court of Exchequer, in a suit a S t P y» instituted for tithe-hay by a vicar against the rector and others (owners of lands in the parish), in which answer the defend- ants disputed the vicar's claim, and declared that the tithes in question belonged to the rector, will be evidence, in an action for tithes by a succeeding rector against owners or occupiers of the same lands, for the tithes of which the former suit was instituted. (1) "This appears to me," said Lord Ellen- borough, " not to be res inter alios acta, but inter eosdem acta ; and was not only evidence, but strong evidence, against the de- fendant, who stood in the same place, by derivation of title and by legal obligation, as the former occupier of the same land; and that former owner, upon his oath, in a suit against him by the vicar, has declared that the tithe is due to the rector, and not to the vicar ; and now that same person, in effect, (that is, (l) Lady Dartmouth v. Roberts, vis v. Chaloner,3 Gwill. 1257. Ash- 16 East, 3.34. The suit was aban- by v. Power, 5 Gwill. 1259. Benson doned by the vicar, who from that v. Olive, 2 Gwill. 701. EarlofSus- time had acquiesced. See also Tra- sex v. Temple, 1 Ld. Raym. 310. i Sect. l.J Of Proceedings in Chancery. S6S the present owner, who purchased of the former owner the very lands, over which tithes were now claimed,) is deraign- ing the title of the rector in favour of the vicar." The answer is admissible in evidence, although a decree is not shewn to have been made in the suit ( 1 ) ; and proof of an examined copy will be sufficient proof of the answer. ( 1 ) The answer of a minor by his guardian is not evidence Answer of against him (2) ; because, in reality, it is the guardian's answer. The guardian is sworn, not the minor, who possibly may know nothing of its contents. And therefore an answer, purporting to be the answer of a minor by his mother and guardian, may be read against the mother in another cause, in which she is defendant in her own capacity. (3) The answer of one defendant, generally speaking, is not evi- Of co-defend- dence against a co-defendant (4) ; for if that were allowed, a ant * plaintiff might make one of his friends a defendant, for the pur- pose of procuring an answer in his favour against the co-de- fendant, who would have no opportunity of cross-examination. But as an admission by one of two partners, concerning joint contracts during the partnership, is good evidence to charge the other partner in an action against him alone (5) : so, in an action by a creditor against some of the partnership firm, the answer of another partner to a bill, filed by other creditors, has been received in evidence against the defendants, not indeed to prove the partnership, but, that being established, as an admission against those who are as one person with him in interest. (6) woman. It does not appear to have been expressly determined, Of married whether an answer by a married woman can be used as evi- (1) See note (1), p. 362. (5) Wood and others, Assignees (2) Eccleston v. Petty, Carth. 79. of Hussey and others, v. Braddick, 3 P. Wms. 237. Gilb. Ev. 44. Cow- l Taunt. Rep. 104. See ante, p. 92. ling v. Ely, 2 Starkie, N. P. C. 366. (6) Grant v. Jackson and others, (3) Beaslcy v. Magrath, 2 Schoale Peake, N. P. C. 203. See Lucas v. and Lefroy's Rep. 34. De La Cour, 1 Maule& Selw. 250.; (4) Wych v. Meal, 3 P. Wms. 511. also p. 92., supra. 12 Ves. 361. 364 Of Proceedings in Chancery, [Ch. 4. dence against her in an action after the husband's death. In the case of Wrottesley against Bendishand his wife(l), [where it was argued, that the wife was not bound to answer, on the ground, that the answer could not be read against her husband, nor against herself, as she is supposed to be under the control of the husband, and not to answer freely), the Lord Chan- cellor said, " he would not give any opinion, whether the answer may be read against the wife, when discovert : but as, in all times heretofore, the wife as well as the husband had been compelled to answer, he would not overthrow what had been the constant practice." Depositions. Depositions in a suit in Chancery, which are the written examinations of witnesses taken by officers of the court, or taken by commissioners specially appointed for the purpose, may be given in evidence in an act ion at com mon law, on the same mat ter, bet ween the same parties, o r between any who claim undejvthem, if it can be proved at the time of the trial that the deponent is dead (2); or, that he cannot be found after strict enquiry (3) ; or, that he has been subpoenaed, and is un- able to attend from sickness (4); or if it can be proved, that he has been kept away by the contrivance of the other party (5); or that he is out of the kingdom, or not amenable to the process of the court. (6) In either of these cases, de- positions are admissible in evidence. But if the witness him- self is in a state to be produced, his depositions cannot be received. The party who wishes to have the benefit of his testimony, ought, if he is able, to bring him forward, that he may undergo an open examination, hi the face of the public, (1) 3 P. Wins. 237. See Barron 1 Mod. 283. Adm. per cur. in Kins- v. Grillard, 5 Ves. & Beam. 166 man v. Crooke, trial at bar, 2 Ld. (2) Godb. p. 195. pi. 276. & p. Ray. 1166. 1 Atk. 445. Gilb. Ev. 326. pi. 418. Fry v. Wood, 1 Atk. 54.* Bull. N. P. 259. 1 Ves. & Rep. 445. Coker v. Farewell, 2 P. Beam. 22. 340. Jones v. Jones, Wms. 565. Gilb. Ev. 54. Bull, l Cox. Cas 184. N. P. 239. (5) Bull. N. P. 245. (3) See cases in (2). Benson v. (6) 1 Atk. Rep. 445. Lord Al- Olive, before Reynolds C. B. 2 Str. tham v. Earl of Anglesey, tr. at bar 920. in K. B., Gilb. Eq. Cas. 16. 18. (4) Luttrcl v. Reyncl and others, Sect. 1.] Of Proceedings in Chancery. 365 before the jury and the court: a mode of enquiry generally more conducive than any other, to the discovery of truth. It is the common practice in the Court ofJJh ancery, when an issue or trial at law is dir ected, to make an order, that the depositions of witnesses shall be read in evidence, if it be sa- tisfactorily proved at the time of the trial, that they are unable to attend in person. (1) But this order is not made, for the purpose of making that admissible in evidence, which is of a nature not strictly admissible in courts of common law, but for the convenience of the parties. For if depositions are offered at the trial without such an order, the whole record, bill, answer, &c. must be proved ; but if there is an order for reading the depositions, the court of law will read them without going through the regular and strict course, which is generally necessary for the purpose of making them evi- dence. (2) When a witness has been examined on interrogatories, and afterwards happens to become interested, the Court of Chancery has allo wed his depositions to be read for him, as evidence in his own suit, on a bill of revivor. (3) " This," said Lord Hardwicke, " has been allowed on just reason : because his evidence must be taken, as it stood at the time' of his examination, which should not be set aside, unless it could be supplied by other evidence." (4) But a different rule has been established in courts of common law. It was resolved in Tilly's case, by the unanimous opinions of the courts of King's Bench and Common Pleas, that a party to an action of eject- ment could not give in evidence his own depositions, though he had made them at a time when he was perfectly disin- terested. (5) (1) Corbet v. Corbet, 1 Ves. & (4) In Glyn v. Bank of England, Beam. 540. 2 Ves. 42. (2) Palmer v. Ld. Aylesbury, 15 (5) Tilly's case, 1 Salk. 23C. See Ves. 176. also Holcroft v. Smith, Eq. Cas. Ab. (.3) Goss v. Tracy, 2 Vern. 699. 224.; Baker v. Lord Fairfax, 1 Str. 1 P. Wins. 287. S. C. Haws v. Hand, 101 . ; Bull. N. P. 242. 2 Atk. 615. 366 Of Proceedings in Chancery. [Ch. 4. Evidence Depositions are not to be admitted in evidence for a party 32311 ' to the suit, against a stranger, who was not a party, nor claims under either of the parties (1) ; nor can they be used by a stranger against one of the parties. (2) An exception lias been made in cases, where the question is on the existence of a custom, or on the right to tolls, or where hearsay and reputation would be good evidence (3) ; and in such cases, depositions are admissible in evidence, in a suit between other parties, provided they have not been made post litem motam. But if the question at issue is precisely the same in both suits, the depositions in the former suit cannot be ad- mitted. (4) On leading Depositions in a suit, instituted for the purpose of perpe- ' ' tuating testimony, are not objectionable, on the ground that the interrogatories, in answer to which they were made, were leading interrogatories, and such as could not regularly be put on the examination of a witness : for the party, against whom the depositions were originally made, had an opportunity of objecting to them, and might have applied to have them expunged, instead of which he allowed publication to pass, and the evidence to be exemplified ; the objection, there- fore, though it might have been taken with effect in the first instance, was now too late, after such an acquiescence by the party. So where interrogatories and cross-interrogatories have been exhibited by the parties to a suit, the answers of the witness cannot be objected to at the trial, as inadmissible on the ground, that he was interested, and ought to have had a release previous to his examination (5) ; for, after cross-inter- rogator ies, the objection is too late. (1) Hob. Rep. 155. 2 Roll. Ab. (.3) Bull. N. P. 259. See ante, €79. pi. 8. Cooke v. Fountain, p. .326. 1 Vera. 41.3. As to the general (4) Berkeley Peerage case, supra, principle, see supra, p. 525. and p. 242. Freeman v. Phillips, supra, 2 Price, 434. p. 246. (2) Rushworth v. Countess of (5) Ogle w Paleski, Holt. N.P. C. Pembroke and Currier, Hardr. 472. 485. Gilb. Ev. 35. See ante, p. 525. Sect. 1.] Of Proceedings in Chancery. 357 When a bill has been dismissed, the rule respecting the After bill in- admissibility of the depositions has been laid down with the """^d* following distinction. If the bill was dismissed, because the court considered the matter to be unfit for equity to decr ee, the depositions may still be given in evidence, provided the subject-matter of the suit was regularly before the c ourt, and within its jurisdiction. (1) But if the s uit in equ ity be dis - jn issed fo r the irr egularity^ of_the complainant, it has been said, that the depositions in that cause c annot be readjn any fresh suit^ Thus, where a devisee brings a bill of revivor, on a suit commenced by his devisor, and depositions are taken, and then the cause on the hearing is dismissed, on the ground that a devisee, claiming as a purchaser and not by representation, cannot bring a bill of revivor, the devisee will not be allowed, on exhibiting a new original bill, to use the former deposi- tions ; for in the first cause, in which the complainant mis- took his remedy, there was no complaint regularly before the court, and consequently there could not regularly be any depositions. (2) I f the witnes s after bjgjn^examined de bene esse should die. Before an- before the defendant puts in his answer, 'his deposition cannot swer P ut in * be read (3), because the opposite party had not the power of cross-examination ; and the rule of common law is strict, that no evidenc shall be admitted, but what is or might have been under the examination of both parties. " In such a case," says Ch. B. Gilbert (4), "the course is to move the court of Chancery, that the deposition of the deceased wit- ness should be read ; and, if the court see cause, they will order it, and this order will bind the parties to assent to the reading of such depositions, though it does not bind the court of nisi prius." (1) Smith v. Veale, 1 Ld. Ray. 755. Ford v. Guy, cited in Howard v. (2) Backhouse v. Middleton and Tremaine, 1 Show. 365. Piercy v others, Chan. Cas. 175. Gilb. Ev. ,2 Jon. 165. Bull. N. P. 240. 36. (4) Gilb. Ev. 57, 58. Bull. N. P. (3) v. Browne, Hardr. 315. 240. Ann see Marden, v. Bound, Dutton v. Colt, Sir T. Ray, 335. n. 1 Vera. 331. ,SliS Of Depositions, Inquisitions, fyc. [Ch. 4. The reason why depositions are not read in evidence, be- fore the defendant has put in his answer, has been before mentioned to be, because it does not otherwise appear, that the adverse party had liberty to cross-examine. T his reason will not apply, where the defendant is in contempt for refusing to answer. If the adverse party, says Ch. B. Gilbert, had been in contempt, then the depositions of the witnesses shall be admitted, for then it is the fault of the objector, that he did not cross-examine the witnesses, since he would not join the examination. (1) This subject came before the court of King's Bench in the course of Cazenove v. Vaughan. (2) ; from which it now appears to be clearly settled, tha t deposj- tions are not allowed_jo be read in evid ence, before an swer put in, or before the partyjs i n conte jnpt^jmless hehas ha d an opp ortuni ty of crosjs-examiningj b ut if he has had such an opportunity, and has omitted to_ayail himself of jt, he cannot afterwards make th at a ground for object ing to the depositions as evidence. Sect. II. Of Depositions, Inquisitions, Examinations, §c. Sfc. Depositions on interroga- tories. Depositions are frequently taken with the consent of the parties to a suit, when a material witness is about to leave the kingdom, or resides abroad. (3) These depositions may be given in evidence, if at the time of the trial the witness has quitted the country ; (4) and they are admissible in cri- minal, as well as in civil, cases. (5) But if the trial comes on before his departure, or after his return, the depositions cannot be read. This rule, however, is not to be taken so strictly, as to make it absolutely necessary, that a witness, who (1) Gilb.Ev. 56. (2) l Maule & Sel. 4. (3) See ante, p. 14. As to the mode of taking the examination on interrogatories, see 2 Tidd. Pr. 854 . (4) Anon, case, 2 Salk. 691. (5) R. v. Morphew, 2 Maule & Selw. 602. Sect. °Z.~\ Of Depositions, Inquisitions, §c. 3(>9 is about to go abroad, should be on his voyage, when the trial comes on. If the ship has sailed, though it may have put back — or if the witness be on board, and the ship ready to sail, though prevented by contrary winds — that seems to be suffi- cient. (1) But it would not be sufficient to shew, that the wit- ness is a seafaring man, and that he lately belonged to a vessel lying at a certain place, without proving that some effort had been recently made to procure his attendance. (2) Where an indictment or information is exhibited in the Depositions King's Bench for an offence committed in India, or where a * n l n< "a. suit has been commenced in any court in this country for a cause of action arising in India (3), the depositions of wit- nesses may be obtained under the provisions of the statute 13 G. 3. c. 63. ss. 40. & 44. This statute enacts, that the court may award a writ of mandamus to the Judges of the courts in India, as the case may require, for the examination of witnesses, who are to be examined publicly in the court, upon oath administered according to the form of their several religions ; and these depositions, duly taken and returned, in the form prescribed by the act, are to be allowed and deemed as good and competent evidence, as if the witnesses had been sworn at the trial, and examined viva voce.* Justices of the peace are enabled and directed to take the Depositions depositions of witnesses in cases of felony, by the statutes before justices r J J of peace. 1 & 2 Ph. & M. c. 13. s. 4., and 2 & 3 Ph. & M. c. 10. (4) By the first of these statutes, "justices of the peace, when any person is brought before them for manslaughter or felony, being (1) Fonsick v. Agar, 6 Esp. N. (.3) Francisco v. Gilmore, 1 Bos. P. C.92. Ward v. Wells, 1 Taunt. & Pull. 177. 461. (4) 1 Hal. P. C. 305. 585. 2 Hal. (2) Falconer v. Hanson, 1 Campb. P. C. 52. Tong's case, Kel. 19. 172. Paine's case, 1 Salk. 281. Wood- cock's case, 2 Leach, Cr. C. 565. * Other statutes of a similar nature are cited in chap. 1. p. 15. VOL. I. B B 3yo Of Depositions, Inquisitions, <§c. [Ch. 4. bailable by law, shall, before any bailment, take the examin- ation of the prisoner, and the examination of them who bring him, of the fact and circumstances thereof, and the same, or as much as may be material to prove the felony, shall put in writ- ing, before they make the bailment ; which examination, with the bailment, the said justices shall certify at the next general gaol delivery to be holden within the limits of their com- mission." As this statute extended only to bailable felonies, and not to cases where the justice committed a prisoner on suspicion of manslaughter or felony, (in which cases, however, the examination of a prisoner, and of those who brought him before the magistrate, was more necessary, than where the prisoner was bailed,) it was therefore enacted by statute 2 & 3 Ph. & M. c. 10., " that the justice, before he shall commit a prisoner, brought before him on suspicion of man- slaughter or felony, shall take the examination of the prisoner, and the information of those who bring him, of the fact and circumstance thereof, and shall put the same, or as much thereof as shall be material to prove the felony, in writing, within two days after the said examination, and the same shall certify in such form, and at such time, as he ought to do, if such prisoner so committed had been bailed." l . When evi- In the construction of these statutes, it seems now to be cl g. n c p settled (1), that the deposition of a witness, taken upon oath (2), in the presence of a prisoner, (3) who has been brought before the magistrate on a charge of felony, may be given in evidence on the trial of an indictment for the same felony, if it be proved on oath to the satisfaction of the Court, (1) See Hawk. P. C. b. 2. c. 46. (5) R. v. Payne, 5 Mod. 163. cited s. 15. by Ld. Kenyon, 3 T.R. 723. Wood- (2) 1 Hale, P.C. 305. 586. 2 Hal. cock's case, 2 Leach, Cr. C. 566. R. P. C. 52. 120.284. Dalton. Just. v. Vipont, 2 Burr. 1163. R. v. Din- c. 1 1 1 . p. 369. Bull. N. P. 242. gler, Leach, Cr. C. 638. Sect. c 2. ] Of Depositions, Inquisitions, §c. Qj[ that the informant is dead ( 1 ), or not able to travel (2), or that he is kept away by the means and contrivance of the prisoner (3) ; provided also, that the deposition, offered in evidence, is proved to be the same, as was sworn before the justice, without any alteration. (4) Before the statute of Philip and Mary, a deposition taken before a justice of the county, where a felony was committed, would not have been evidence, even though the witness had died, or was unable to travel. (5) The deposition ought to be taken as nearly as possible in 2. How taken, the words used by the deponent ; the statute requiring the magistrate to take the information of those, who bring the prisoner, and put the same, or as much thereof as shall be mate- rial to prove the felony, in writing. It has been before ob- served, that the information should be taken in the presence of the prisoner, to give him an opportunitj' of cross-examining. The prisoner is usually allowed to be present from the com- mencement of the examination ; but in case any part of the information has been taken while he was not present, it will be necessary to have that part afterwards read over distinctly in the presence of the prisoner and the deponent ; and if the deponent then swear to the truth of the statement in the prisoner's presence, this will be a regular taking of the information, and the deposition may be used against the prisoner. (6) It is not essential to the validity of depositions, that they should be signed by the deceased witness. In Flemming's (1) 4th Res. in Ld. Morlcy's case, P. C.52. Kel. 55., the case of depo- Kel. 55. Bromwich's case, 1 Lev. sitions before a coroner. 180. Dalt. c. ill. p. 369. Adm. (3) Kel. 55. Fost. Disc. p. 557. per Cur. in Payne's case, 1 Salk. 281. Harrison's case, 4 St. Tr. 492. Hal. P. C. 505. Bull. N. P. 242. (4) 1 Hal. P. C. 305. 2 Hal. P. C. Case of Fleming and Windham, 52. Kel. 55. 2 Leach, Cr. C. 996. Westbeer's (5) 5 T. R. 710. 722. case, 1 Leach, Cr. C. 14. (in which (6) R. v. Smith, 2 Starkie,N. P.C. case the depositions were those of a 208. Holt, 614. S.C. By the opinion deceased accomplice.) of the Judges, to whom the point was (2) l Hal. P. C 305. 586. 2 Hal. referred by Lord Ch. B. Richards. SB 2 872 Of Depositions, Inquisitions, 8$c. [Ch. 4. •case, on an indictment for a rape, all the Judges concurred in opinion, that the depositions of a girl deceased, on whose person the crime had been committed, taken on oath by the committing magistrate, had been properly admitted in evi- dence at the trial, though the depositions were not signed by the deceased. (1) The informations against the prisoner are to be taken on oath ; the examination of the prisoner, not upon oath. (2) Par ol evidence, to add to, or vary, the de- position, is not admissible. (3) 3. Evidence The information of witnesses, taken before justices of the only in case of . . . ., . ,. P felony. peace, cannot be given in evidence on an indictment tor a mis- demeanor, (as, on an information for publishing a libel,) or in civil actions, or on an appeal for murder. (4) Nor can a con- viction for petty treason be grounded on such evidence (5) ; for the statute 1 Ed. 6. c. 12. s. 22. enacts, " that no person shall be indicted, arraigned, condemned, or convicted, for any offence of treason or petty treason, unless he be accused by two sufficient and lawful witnesses, or shall willingly without violence confess the same;" and this is confirmed by statute 5 &6 Ed. 6. c. 1 1. s. 12., which enacts, " that no person shall be indicted, arraigned, condemned, convicted, or attainted, for any of the treasons specified in the act, or for any other trea- sons, unless the offender be accused by two lawful accusers; which said accusers, at the time of the arraignment of the party accused, shall be brought in person before the party so accused, and avow and maintain what they have to say against the said party, to prove him guilty of the treasons or offences contained in the bill of indictment against the party arraigned ; un- less the said party arraigned shall willingly without violence confess the same." However, as a prisoner may be convicted of murder on an indictment for petty treason, the deposi- tions are admissible in evidence to support a conviction of (1) Case of Flemming and Wind- merAss. 1817, by Holroyd J. And ham, 2 Leach, Cr. C. 996. see R. v. Smith, vol. i. 1 13. (2) See ante, p. 113. (4) R. v. Pavne, 1 Ld. Rav. 729. (.') R. v. Thornton, Warw. Sum- (3) Fost. Disc. 337. Sect. 2.] Of Depositions, Inquisitions, 8$c. 3J3 murder, though not sufficient to support a conviction of petty treason. (1) The words of the statute 1 & 2 Ph. & M. c. 13. s. 4. which 4. Deposition, are also referred to and adopted by stat. 2& 3 Ph. & M. She" county. c. 10., are, " that the justices shall certify the examination taken before them at the next general gaol-delivery within the limits of their commission." It often happens that the felon is taken and examined by a magistrate in a county, where the offence was not committed ; in such a case, the examinations and informations are to be transmitted into the county where the felon is indicted, and may there be read in evidence against him, though the magistrate had not original cognizance of the offence. (2) As informations, when judicially and regularly taken, are 5. Deposition, evidence against a prisoner, if the informant dies before the witness ""^ 1C trial ; so, on the other hand, whe re the informant himself gives evidence, the informations may be used, on the part of the prisoner, Jo contrad ict his testimony. One of the objects of the legislature in passing the statutes, was to enable the judge and jury, before whom the prisoner is tried, to see whether the witnesses at the trial are consistent with the account given by them before the committing magistrate. (3) Thus, it was ad- mitted in Lord Stafford's case (4), that the deposition of a witness, taken before a justice of the peace, might be read, at the desire of the prisoner, in order to take off the credit of the witness, by shewing a variance between the deposition and the evidence given in court viva voce. The statute 1 &2 Ph. &M. c. 13. s.5. enacts, " that every Depositions coroner upon an inquisition before him found, whereby any c l^ e ^ (1) Radbourne's case, 2 Leach, (4) 3 St. Tr. p. 131. Hawk. P. C. Cr. C. 512. Swan's case, Fost. Disc. b. 2. c. 46. s. 22. By the law of 106. Scotland, the deposition of a wit- (2) Dalt. Just. c. 111. p. 369. ness cannot be produced at the trial, 2 Hal. P. C. 285. Cro. Car. 213. to discredit his testimony. See And see st. 44 G. 3. c. 92. Hume's Commentary on the Crim. (3) See the judgment in Lambe's Law of Scotland, vol.ii. p. 367., and case, 2 Leach, Cr. C. 653. Burnett's Treatise, p. 464, BB 3 S74 Of Depositions, Inquisitions, <$c. [Ch. 4. person shall be indicted for murder or manslaughter, or as accessory before the murder, shall put in writing the effect of the evidence given to the jury before him, being material ; and shall certify the same evidence, together with the inquisition or indictment before him taken and found, at or before the time of the trial thereof to be had." On this statute, it has been resolved unanimously by all the Judges, that in case any of the witnesses, who have been exa- mined before the coroner, are dead, or unable to travel, or kept out of the way by the means and contrivance of the pri- soner, their depositions may be read on the trial of the pri- soner, the coroner first proving, that they are the same which he took upon oath, without any addition or alteration. ( 1 ) And proof, that the witness has been enquired after and is not to be found, has been thought sufficient to authorise the reading of the depositions. (2) The statute requires the coroner " to put in writing the effect of the evidence given to the jury before him being material ;" the true meaning of which appears to be, that he should at least take down the plain and obvious meaning of the words spoken by the wit- nesses, and not merely to state what, in his judgment, was the result of the evidence. It does not appear from the report of either of the cases above cited, whether the depositions were taken by the coro- ner in the presence of the prisoner. But it seems to be the prevailing opinion, that they are admissible, though the pri- soner may have been absent at the time of taking the inqui- sition. A book of authority (3), after stating the general rule, that depositions are not evidence, where there cannot be a cross-examination, adds, by way of exception, " yet, if the witnesses, examined on a coroner's inquest, be dead or beyond (1) Lord Morley's case, Kel. 55. case, before Holt C. J., Atkins J., Thatcher's case, 2 Jon. 55. Brom- and NevilJ., 4 St. Tr. 4 96. Contra Vvich's case, 1 Lev. 180. Gilb.Ev. 4th Res. in Lord Morley's case, 224. Kel. 55. (2) Adm. per. Cur. in Harrison's (3) Bull. N. P. 2VJ Sect. 2. J Of Depositions, Inquisitions, §c. 375 sea, their depositions may be read ; for the coroner is an of- ficer appointed on behalf of the public, to make enquiry about the matters within his jurisdiction." And in the case of the King against the Inhabitants of Eriswell (1), (where Mr. Just. Buller, in support of his opinion on the case then before the Court, stated, that depositions before a coroner had long been settled to be good evidence, though the person accused be not present when they are taken, nor ever heard of them till the moment when they are produced against him,) Lord Kenyon, who differed from Mr. Justice Buller on the principal question, said (2), that the case, alluded to, was an exception founded on the statute of Philip and Mary. Besides, he added, the ex- amination before the coroner is an inquest of office; it is a transaction of notoriety, to which every person has a right of access ; and writs of ad quod damnum have been frequently set aside, for want of this notoriety in the execution of them by the sheriff. To this effect also Lord Hale lays it down (3) that the coroner's inquest must hear evidence on oath as well for the party accused as for the king, if it be offered to them ; because the proceeding is not so much an accusation on an indictment, as an inquisition of office to enquire truly, how the party came to his death ; and for an omission in this respect an inquisition ofjelo de se has been quashed. coroner. An inquisiti o n ofjelo de se, taken before the coroner super inquisition by visum corporis, is consid ered by Lor d Coke to be conclu - sive evidence of the fact against the executors or administra- tors of the deceased. (4) But Lord Hale, in his Pleas of the Crown (5), is of a different opinion, justly conceiving it unrea- sonable, that they should be concluded, and lose the goods of the deceased without an answer, by an inquisition which may be taken by the coroner behind their backs. And it is now settled that such an inquisition may be removed into the King's (1) 5T.R. 713. (4) 3 Inst. 55. (2) 3 T.R. 722. (5) 1 PI. Cr. 416. 1 East, P. C. (3) 1 PI. Cr. 415. 2 PI. Cr. 60. 589. Schorey's case, l Leach, Cr. C. 50. B B 4- 37i> Of Depositions, Inquisitions, 8$c. [Ch. 4, Bench, and traversed by the executors and adminis trators of the deceased. (1) If it be found by the coroner's inquisition, in case of the death of one who is not felo de se, that the per- son, who committed the offence, fled for it, the authorities hold this finding to be conclusive and not traversable ; yet, upon principle, it seems that the one case is as properly traversable as the other. (2) Inquisition of There are various other kinds of inquisition of office, which, if regularly taken, and under a competent authority, will be admitted by courts of law as evidence of the facts there found. Some inquisitions are taken on an enquiry made by the sheriff, or coroner, or escheator, by virtue of their office, or under a writ directed to them for that purpose : others are taken by commissioners, especially appointed to examine witnesses on oath, and enquire into the several matters specified. These inquisitions are evidence of the facts there found, even against third persons. An inquisition of escheat, for instance, is evi- dence, in any suit and between any parties, that the person, who was the subject of enquiry, died without issue, as the commissioners have stated. This kind of inquisition is pre- sented on the oath of a jury, and is a formal and solemn finding of the several facts. The escheators are bound to meet in a public and open place ; and every person is to be allowed to give evidence openly in their presence. (3) On an inquisition also under a writ of extent, as to the effects in possession of a party, a person claiming property in the effects, which are the subject of enquiry, may put questions to the witnesses examined on the part of the prosecutor ; and if the sheriff refuse to allow such questions, the inquisition will (1) See 1 Saund. 362. note 1. by (3) St. 1 H. 8. c.8. An account the Editor, who has there collected of these inquisitions, post mortem, the cases on this subject. As to the may be seen in the Report of the duty of the coroner in taking an in- Proceedings of Commissioners of quest, see stat. 1 H. 8. c.8. Public Records, Append. (F. 1.) (2) See n. (l), and Hawk. b. 2. p. 63. An account also of inqui- c. y. s. 54. sitions ad quod damnum may be seen in the same Report, App. (F. 2.) Sect. 2.] Of Depositions, Inquisitions, fyc. 377 be irregular, and the extent may on this ground be set aside. (1) An inquisition of lunacy is evidence, on the trial of an in- dictment, to shew that the prisoner was insane, when he com- mitted the offence. (2) Such inquisitions are evidence even against third persons, who were strangers to the proceeding. Thus, in a case, where an inquisition of lunacy was offered as evidence to affect the rights of third persons, and objected against as res inter alios acta, Lord Hardwicke over-ruled the objection, and said that inquisitions of lunacy, and likewise other inquisitions, as post mortem, &c, are always admitted to be read, but jiot conclusive. (3) And in an action upon a bond, against the executors of the obligor, an inquisition of lunacy has been admitted, under the plea of non est factum, for the purpose of shewing that the obligor had been a luna- tic from a certain time, as found by the inquisition. (4) So an inquisition taken by virtue of a commission, which issued in the reign of Queen Elizabeth, under the seal of the court of Exchequer, to commissioners to enquire, whether a prior was seised of certain lands as parcel of a manor, or whether the crown was seised of them after the dissolution of the priory, was adjudged to be good evidence of those facts. (5) And an inquisition, taken under an order of the House of Commons, is evidence respecting the fees of certain offices. (6) Inquisitions, which are extrajudicial, are not admissible in evidence. Thus an inquisition made by a sheriff's jury, for the purpose of ascertaining who was entitled to the property of goods taken under an execution, is not admissible evidence even against the sheriff, in an action of trover brought by the (1) R. v. Bickley, 5 Price, 454. executors of Jervoise, 3 Campb. 126. (2) It. v. Bowler, 0. B. June, before Lord Ellenborough C. J. 1812, before Le Blanc J. and Lord (5) Tooker v. Duke of Beaufort, Ch. J. Gibbs. l Burr. 146. Sayer, 297. S. C. (3) Sergeson v. Sealey, 2 Atk. (e) Green v. Ilewctt, Peake, N. P. 412. 184, (4) Faulder v. Silk and another, 378 Of Depositions, Inquisitions, fyc. [Ch. 4<. party, in whose favour the inquisition was found. (1) This evi- dence was received at the trial of the cause by Mr. Justice Buller, who admitted it, but held it not to be conclusive ; and, a verdict having been found for the defendants, a motion was afterwards made for a new trial, on the ground, that the in- quisition was conclusive evidence in favour of the plaintiff, as ao-ainst the person who contested the property with the plain- tiff, and who was present at the time of taking the inquisition. But the Court refused the application. Ch. J. Eyre said, he doubted whether a sheriff can, strictly speaking, hold any in- quisition as to property, except under a writ de proprietate probanda in replevin. And Mr. Justice Buller said, he thought he ought not to have admitted the evidence at the trial, as the inquisition was not under the king's writ, but merely a pro- ceeding by the sheriff on his own authority. Examination of pauper as to settlement. The general rule, respecting the admissibUity^jpf^dgposij tions after the death of the witness, is, that they are not_evi- dence, unless they have been taken judicially, and unless th e party, whose interests would be affected by them, had an opportunity of being present and cross-examining the depo- nent. It is therefore now clearly established, that the ex parte examination of a pauper concerning his settlement, taken on oath before magistrates, is not admissible, upon a question of settlement, as evidence against the appellant parish. (2) The objection against their admissibility is, not that the magistrates have no power to administer an oath, (for it seems to be ad- mitted, that the statute 13 & 14 C. 2. c. 12. s. 1., which first gave them a power to remove, gave them also incidentally a power to examine the pauper preparatory to a removal,) (3) but that the examination is ex parte, obtained at the instance of overseers, whose parish would be benefited by the removal, and behind the backs of the appellants, who received no notice (1) Latkow v. Earner and Barnctt, Sheriff of Middlesex, 2 H. Blac. 457. Glossop v. Poole, 5 Maule & Selw. 175. (2) R. v. Nuneham Courtenay, 3 1 East, 373. R. v. Ferry Frystone. 2 East, 54. R. v. Abergwilly, ib. 63. (5) By Lord Kenyon, R. v. Eris- well,5T. R. 721. See Lambard, Just, b. 1, c. 21. p. 209. Sect. 2.] Of Depositions, Inquisitions, fyc. 379 of the proceeding, and had not the benefit of a cross-examin- ation. (1) There is one exception to this general rule, in the case of a soldier, examined as to his settlement; an exception, founded on the special provision of an act of parliament. The examination of a soldier, touching his settlement, is made evidence on an appeal, by the mutiny act (2), which enables " two or more justices for the county, where any soldier shall be quartered, in case he has either wife or child, to cause him to be summoned before them in the place, where he is quartered, in order to make oath of the place of his last legal settlement. And such justices are required to give an attested copy of such affidavit to the person making the same, to be by him delivered to his commanding officer, in order to be produced when required, which attested copy shall be at any time admitted in evidence as to such last legal settlement at any general quarter-sessions of the peace." The examin- ation of a soldier, therefore, taken under the mutiny-act, is evidence as to his settlement, though he be dead, or absent from the kingdom at the time when the appeal is tried. (3) As an attested copy is made evidence, it has been determined, on a reasonable and obvious construction of the act, that the original affidavit, which is a higher kind of evidence, ought to be admitted as well as the copy. (4) The statute however is to be construed strictly ; and therefore no other attested copy is legal evidence, while the original is in existence, except that given to the soldier. (5) The examination of a single woman before a magistrate, Examination under the statute 6 G. 2. c. 31., (which enacts, that, in case b " s ta r d° f any single woman shall, in an examination to be taken in writ ing upon oath before any justice, &c, charge any person with having gotten her with child, it may be lawful for the (1) By Lord Kenyon, R. v. Eris- (4) R. v. Warley, 6 T. R. 554. well, 5 T. R. 725. See Burdon v. Rickets, 2 Campb. (2) 55 G. 5. c. 108. s. 70. 121. (3) R. v. Warminster, 5 Barn. & (5) R. v. Clayton-le-Moors, 5 T. Aid. 121. R. 706. ecclesiastical courts S8(j Of Depositions, Inquisitions, $$c. [Ch. 4. justice to issue his warrant for the immediate apprehension of such person, &c.) will be evidence after the woman's death against the reputed father, on his appearance at the sessions to abide the order of the court according to his recog- nizance. (1) This examination, taken by the directions of the statute in a judicial proceeding, will be evidence like de- positions under the statute of Philip and Mary ; although the proceeding before the magistrate is entirely ex parte, and though the party accused is not present at the woman's examination. (2) Depositions in Depositions taken in an ecclesiastical court, in a cause within its jurisdiction, seem to be admissible in evidence upon the same footing as depositions in the Court of Chancery, the parties being the same, and having had an opportunity of cross-examining the deponents. Chief Baron Gilbert lays down the rule thus (3) : " Depositions taken in the spiritual court in a cause relating to lands cannot be read, because they are no oaths ajt all, inasmuch as the spiritual courts have no authority to take depositions relating to lands : but it seems they may be read, when taken in a cause in which they have authority, as far as relates to that cause, inasmuch as these are lawful oaths, and a man may be indicted for the violation of them, though they be not oaths in a court of record." It does not appear, in any of the cases above mentioned, to have been thought essential to the admissibility of depositions, that they should be made in courts of record ; but the material consider- ation was, whether they were taken judicially, and whether the other party, against whom they were offered in evidence, had any opportunity of cross-examining the deponent. And upon this principle, Lord Holt, in the case of Breedon v. Gill (4), was of opinion, that depositions before commissioners of excise, (who by statute 12 Car. 2. c. 24. s. 45. have a power to ad- minister oaths on enquiring into forfeitures,) taken in the pre- sence of the other party, and signed by the witness, would be (1) R. v. Ravenstone, 5 T.R. 375. (s Gilb. Ev. 60. (2) See supra, p. 374. (4) 1 Ld.Ray. 213.222. Sect. 2.1 Of Depositions, Inquisitions, Sjc. 381 admissible on an appeal from the sentence of the commission- ers, in case the witness should be dead at the time of hearing the appeal. There are some authorities, which hold, that de- positions of witnesses in an ecclesiastical court are not to be admitted in courts of common law(l); and one book of autho- rity lays it down as a general rule, that depositions, taken in a court not of record, shall not be allowed in evidence else- where. (2) However, the better opinion seems to be, that such depositions are admissible in evidence, under the limitations above stated. Judgments in a court baron, county court, or hundred Judgments ot ° ... inferior court, and the judgments of any other inferior court recog- courts. nised by the law of the land (3), are evidence between the same parties, upon the same points in issue, on matters within t heir jurisdiction . Thus, in an action of debt on a judgment recovered in an inferior court, the judgment will be evidence of the debt ; but the defendant may show, if he can, that the cause of action w as not with i n the jurisdiction of the jcourt below. (4) An award, regularly made by an arbitrator, to whom matters Award, in difference are referred, is conclusive, in an action at law, on the parties to the reference, upon all matters inquired into within the submission. (5) What has been before said on the subject of judgments by a court of concurrent jurisdiction, may be said also of awards, that they are, as a plea, a bar, or, as evidence conclusive between the same parties, upon the same matter directly in question. (6) Thus, in an action of eject- ment, where the defendant and the lessor of the plaintiff had before referred to an arbitrator their respective claims to the property in question, the Court of King's Bench held, that the (1) Earl of Sarum v. Sir B. Spen- note (a), Willes, Rep. 36. See Moses cer, 2 Roll. Abr. 679. pi. 5. Litt. v. Macferlan, ante, p. 521. Rep. 167. March, Rep. 120. (5) See ante, p. 332. (2) Bull. N. P. 242. See ante, (6) See ante, p. 319.; and Camp- p. 319. bell v. Twemlow, ante, p-87.; and (3) Com. Dig. tit. Evidence, (C 1 .) R. v. Cotton, ante, p. 246. (4) Herbert v. Cook, reported in .)82 Of Depositions, Inquisitions, 8$c. [Ch. 4. party had by his agreement concluded himself from disputing the lessor's title. (1) It has been before observed, that an award is not a bar to any cause of action, which the one party had against the other at the time of the reference, if it appear that the subject-matter of the action was not enquired into before the arbitrator. (2) Certificates. Certificates of convictions are made evidence in several cases, by the express provisions of the legislature. On the trial of a prosecution, for a second offence in uttering counter- feit money, a certified transcript of a former conviction, by the clerk of the assize or clerk of the peace, containing in a few words the effect and tenor of the conviction, is suf- ficient proof of the former conviction. (3) On a prose- cution, also, of a felon, for being at large unlawfully before the expiration of his term of transportation, a certified transcript of the indictment, of the conviction of the felon, and of the order for transportation, has been made sufficient proof, that the person, there named, has been before convicted, and ordered for transportation. (4) The certificate of a vice-consul has been compared to a foreign judgment. But the vice-consul is not, properly speak- ing, a judicial officer ; nor is his certificate to be admitted as evidence of the fact there stated. In the case of Waldron v. Coombe (5), the Court of Common Pleas determined, that the certificate of a British vice-consul in a foreign country could not be received here as evidence of the amount of a sale, although by the law of that country he was constituted general agent for all absent owners of goods, and was autho- rised and compelled to make the sale in question. (1) Doe, dem. Morris, v. Rosser, scripts are made evidence, may be 3 East, 15. seen in vol. i. of Russell's Treat, on (2) Ravee v. Farmer, 4 T. R. 146. Crimes, b. 2. ch. 36. ante, p. 332. (5) 3 Taunt. 162. Roberts v.Ed- (3) St. 15 G. 2. c. 28. s. 9. dington, 4 Esp. N. P. C. 88. R. v. (4) St. 6 G. 1. c. 23. s. 6. Several Vyse, Forrest. 35. other cases, in which similar tran- Sect. 2.] Of Depositions, Inquisitions, §c. 383 A certificate of the king, under his sign manual, has been admitted in an old case, as evidence of a fact, in a suit on a promise of marriage (1) ; the report states, that the certificate was allowed for proof, without exception. But it is laid down in Rolle's Abridgment (2), " that the king, as it seems, can- not be witness in a cause, by letters under his sign manual." And Lord Ch. Justice Willes, in his judgment in the case of Omichund v. Barker (3), says, " Even the certificate of the king, ander his sign manual, of a matter of fact, has been always refused, except in one old case in Chancery," referring to the case in Hobart. A certificate under the seal of a mi- nister abroad, as to the fact of a marriage having been so- lemnized before him, was admitted also in an old case (4); but the admissibility of such evidence has been questioned (5) ; and it cannot be doubted, but that the evidence would now be rejected. A certificate from the secretary at war, as to the nature of the station of a sergeant in the army, is said to have been admitted, though opposed, in the case of Lloyd v. Woodall (6) ; but for what reason, or upon what principle, is not stated. The general rule is, that our law never allows a certificate of a mere matter of fact, not coupled with any matter of law, to be admitted as evidence. (7) — A certificate of justices, certifying that a highway, which is the subject of an indictment, is in a state of repair, is admitted, in common practice, as an adjudication of the state of repair, after a plea of guilty pleaded by the parish. (8) A certificate of the enrolment of a fine is evidence of the enrolment, for the reason mentioned in the following chapter. A protest, as to the presentment and non-acceptance of a foreign bill of exchange, attested by a notary-public, is evidence of those facts, in an action upon the bill : this is a relaxation of the strict rule, from a prin- ciple of general convenience. (9) A certificate of the dis- (1) Abignyev. Clifton, Hob. Rep. (5) Willes, Rep. 549. 213. See 3 Woodeson, Lect. 275. (6) 1 Black. Rep. 29. (2) 2 Roll. Ab. 686. (H.) Art. l., (7) By Willes Ch. J. Willes, Rep. citing the case of Abignye v. Clif- 550. ton, contra. (8) 6 T. R. 6.30. 635. (3) Willes, Rep. 550. (9) Willes, 550. (4) Alsop v. Bowtrell, Cro. Jac. 541. 38i Of the Proof of Records [Ch. 5. charge of an insolvent debtor by the quarter sessions, under the insolvent act of 2 G. 2. c. 20., is evidence of the fact of his discharge, (l) (l) Gillum v. Stirrup, Rep. Temp. Hard. 144. Action of debt on bond; discharge pleaded in bar. CHAP. V. Of the Proof of Records and Judicial Proceedings. 'T'HE admissibility of judicial proceedings having been treated of in the preceding chapters, it remains to con- sider, how their contents are to be regularly proved, so as to render them producible in evidence. Records. Records are, for security, preserved in public repositories, and, as they cannot be removed from place to place to serve a private purpose, examined copies are admitted as the best producible evidence. (1) Public sta- tutes. Public acts of parliament are presumed by the law to be known to every individual. Printed copies, therefore, of public acts, and the printed statute-books, are resorted to by courts of justice, not strictly as evidence, but as serving to refresh the memory. (2) And by the statute 41 G. 3. c. 90. s. 9., made for the better and more effectual proof of the statute-law of this country in Ireland, and of the Irish statute- law in Great Britain, it is enacted, that copies of the statutes of Great Britain and Ireland prior to the Union, printed by the printer duly authorised, shall be received as conclusive evidence of the several statutes in the courts of either kingdom. In some acts of parliament, not relating to the kingdom at large, a special clause is often inserted, declaring them to be (1) Leighton v. Leighton, 1 Str. (2) Gilb. Ev. s. 210. See ante, p. 514. Ch. 5.] and Judicial Proceedings. 385 public acts. Such acts are to be considered on the same foot- ing, and of the same authority in courts of justice, as those above mentioned ; and proof of the contents will be as unne- cessary in this case, as where a statute is public without the aid of such special clause. A clause is also frequently inserted in some private acts, p r ; V ate acts, providing that they shall be printed by the king's printer, and that a copy so printed shall be admitted as evidence of the act. When a private act of parliament, not con- taining such a clause, is required in evidence, the regular proof is by an examined copy, compared with the original in the parliament-office at Westminster. Even in the case of a private statute, however, if one of the parties to the suit has done an act under the statute, against which act the other party appeals, and the regularity of which proceeding is the question to be tried, there the appellant will not be obliged to produce an examined copy, but a common printed copy will be sufficient. ( 1 ) Copies of records in courts of justice are of two kinds : Excmplifica- under seal, and not under seal. Those under seal are called tlon recor ' exemplifications, and are of higher credit than any sworn copy : for " the courts of justice, that put their seal to the copy, are supposed more capable than a common person to examine, and more exact and critical in their examin- ation." (2) These exemplifications are of two kinds ; under the great seal of Chancery, or under the seal of some other court. (3) 1. The practice is not to exemplify a record under the great seal, unless it be either a record of the Court of Chan- cery, or be sent from some other court into Chancery, the centre of all courts, by writ of certiorari. But in either of (l) R. v. Shaw, 12 East, 479. begin, by shewing that he had a right Appeal against a rate, made by the to make the rate under the act. respondent under a private act. In ('_>) Gilb.Ev. 11, is? this case, as Mr. Justice Le Blanc (■") Gilb. Ev. 12. observed, the respondent ought to vol. r. c c ,386 Of the Proof of Records [Ch. 5. these cases a copy may be obtained, under the attestation of the great seal. ( 1 ) If the record of a court is put in issue by a proceeding in the same court, the record itself is inspected by the Judges. But when the record, denied by the issue, is in a court of superior or concurrent jurisdiction, the trial is then by the tenor of the record, which may be obtained by certiorari and mittimus out of Chancery (2), a method adopted for the pur- pose of communicating evidence of records from one superior court to another, without the inconvenience of removing the originals. If the record of an inferior court is disputed in a suit before a higher tribunal, the certiorari may be issued out of the superior court, as well as from the Court of Chancery. (3) And in pursuance of this writ, where the superior court sends for the record of an inferior court, not for the purpose of seeing whether their proceedings are within the limits of their jurisdiction, but merely to know whether there be in fact such a record, it will be sufficient to certify the tenor, that is, a literal transcript, of the record. (4) But where the record itself is the subject of the proceedings in the su- pex'ior court, the original ought to be returned. (4) When records are exemplified, /the whole, in general, must be exemplified, for the construction is to be taken from a view of the whole together : and nothing but records can be proved by an exemplification. Private deeds, exemplified under the broad seal, will not be admitted in evidence : for as the deeds themselves are in the custody of the party, they ought to be produced, that the court may see whether there are any erasures or interlineations. (5) (1)3 Inst. 173. Gilb. Ev. 12. (s) Butcher and Aldworth's case, Bull. N. P. 226. Cro. Eliz. 821. Guilliam v. Hardy, (2) Luttrel v. Lea, Cro. Car. 297., 1 Ld. Ray. 216. Pitt v. Knight, l Saund. 9s. Hew- (4) Woodcraft v. Kinaston, 2 Atk. son v. Brown, 2 Burr. 1034. 317. (5) Bull. N. P. 227. Ch. 5.] and Judicial Proceedings. 387 2. The second sort of copies under seal are exemplifications of the records of a court under its own seal ; and they also are considered to ba of higher credit than sworn copies. The seal of the king, and of the public courts of justice, and of all courts established here by act of parliament, are admitted in evidence without extrinsic proof of their genuineness ; as, for example, the seal of the county palatine of Chester (1), or of the great sessions of Wales (2), or the seal of the eccle- siastical court on an exemplification of a will. (3) But the seals of private courts, or of a foreign colonial court (4), or of a corporate body (5), ought to be proved by a witness acquainted with their impression. It is not, however, necessary to prove the seal of a corporation in the same manner as the seal of an individual, that is, by producing a witness who saw the seal affixed to the identical instrument; but when an instru- ment purports to be under the seal of a corporation, it will be sufficient to shew, that the seal is the official seal of the corporate body. (6) 3. Copies of records, not under seal, are also of two kinds ; Copy of re- sworn copies, and office copies. Records are complete, as soon as they are delivered into court in parchment, and there fixed as the rolls of the court. Of these, a sworn copy will be sufficient evidence for a jury, unless' the record itself is in issue. But the copy of a judg- ment signed by the master is not evidence, though upon such judgment execution may be taken out ; for it is not yet become permanent, and is removable from place to place. (7) (1) Dyer, 27S. cited in Olive v. (4) Henry v. Adey, 5 East, 22 1 . Gwin, 2 Sid. 146. Tooker v. D. of (5) Moises v. Thornton, 8. T. R. Beaufort, Sayer, 297., where the ex- 507. emplification was under the seal of (g) 8 T. R. 307. In Woodna^ the Court of Exchequer. v. Mason, l Esp. N. P. C. 5.3., it (2) Dyer, 276. cited in Olive v. was held by Lord Kenyan, that the Gwin, 2 Sid. 146. Hardr. 118. S. C. seal of the city of London proves Gilb. Ev. 16. itself. (3) Kempton, don. Boyfield, v. (7) Bull. N. P. 228. Cross, Rep. temp. Hardr. los. c c 2 cord. ( )J the Proof of Records [Cli. 5. Copies of records are to be proved, as other transcripts, by a witness, who has compared the copy, line for line, with the original, or who has examined the copy, while another person read the original ( 1 ) ; and it ought to appear, that the original came from the proper place of deposit, or out of the hands of the officer, in whose custody the records were kept. (2) But when an ancient record has been lost, a copy may be read without proving it a true copy. Thus, an unexamined copy of a recovery of lands in ancient demesne has been re- ceived where the original was lost, and where possession had gone for a long time according to the recovery. (3) And similar proof has been allowed of the decree in the time of Henry the Eighth for tithe in London, that decree having been lost. (4) In such cases, says Ch. B. Gilbert, the instrument must be, according to the rule of the civil law, vetustatc temporis out judiciarid cognitionc roboratum. (.5) Copy authen- it is a general rule, that a copy, authenticated by a person ticatec \ appointed for that purpose, is good evidence of the contents of the original, without any proof of its being an examined copy. The chirograph of a fine, for example, is evidence of the line, the chirographer being appointed to give out copies of the agreements between the parties, which are entered of record. (6) An indorsement by the proper officer on a deed of bargain and sale, enrolled according to the form of the statute 27 H. 8. c. 16., is evidence of the enrolment (7): and an indorsement of the date of enrolment, by the clerk of the enrolments, is part of the record, and conclusive as to the date. (8) So, where it became necessary for the plaintiff to shew, in proof of his title, that a certain lease had been enrolled with the auditor of the (1) Reid v. Margison, l Campb. (5) Gilb. Ev. 19. 470. Rolf v. Dart, 2 Taunt. 52. (6) Ibid. 21. 2 Starkie, N. P.C. 15. M'Niel v. Perchard, l Esp. X. P. C. (7) By Buller J. in Kinnersley v. 26.5. Gyles v. Hill, 1 Campb. Ope, l'Dong. 56. 471. n. (s) The King in aid of Reed v. (2) Adamthwaite v. Synge, l Star- Hopper, 5 Price, 495. The same kie, IS". 4 Campb. 372. S. C. rule, with respect to the date of the (5) Anonym, case, Ventr. 257. enrolment of a memorial of annuitv- (4) Ventr. 257. Knight v. Dan- deedsj Garriek v. Williams, 5 Taunt. ler, Hardr. 52.5. Thurston v. Slat- rio. lord, l Salk. 284., by Holt C. .'. Ch. 5.] and Judicial Proceedings. 389 Duchy of Lancaster, the Court of King's Bench held, that a memorandum of enrolment, on the margin of the lease, signed "A. B. auditor," was sufficient proof of the enrolment. (1) A rule of court under the hand of the proper officer is itself an original, and may be given in evidence in a legal proceeding in that court, without being proved a true copy. (2) So, in a case where a witness, being about to leave the country, had been examined at a Judge's chambers, a copy of his depositions, delivered out by the clerk of the Judge, and attested by the clerk's signature, was admitted in evidence, without proof of its being examined and compared with the original depo- sitions. (3) But where the officer of the court is only entrusted with the custody of records, and is not authorised to make out a copy, he has no more authority for that purpose than a common person ; and the copy must be regularly proved in a strict and regular mode. Thus, the office copies of depositions, though they are evidence in the Court of Chancery, where officers are entrusted for that purpose, will not be admitted in courts of common law, without examination with the roll. (4) So, where a fine is to be proved with proclamations, as it must be to bar a stranger, the proclamations ought to be examined with tlvc roll ; for though the chirographer is authorized to make out copies of the fine itself, he is not appointed to copy the pro- clamations. (5) When a verdict is offered in evidence, as the opinion of a Verdict- jury on certain points in issue, it will be necessary also to Postea * produce a copy of the judgment founded upon the verdict. The production of the postea alone is not sufficient ; for it may happen that the judgment was arrested, or a new trial (1) Kiniicrsley v. Orpc, 1 Doug. (I) Gilb. Ev. 21. Bull. N.P. 229. 56. 2 Starkie, N. P. C. 13. (2) Selby v. Harris, 1 Ltl. Rayiu. (.5) Gilb. Ev. 21. Allen's case, 745. Bull. N. P. 22'J. 5 Taunt. 166. (3) Duncan v Scott, l Campb. 101. C c 3 390 Of the Proof of Records [Ch. 5. granted. ( 1 ) But this rule will not apply to the case of a verdict on an issue directed out of Chancery, as it is not usual to enter up judgment in such a case ; and here, there- fore, the decree of the Court must be shewn, which will be a sufficient proof, that the verdict was satisfactory, and stands in force. (2) Though the nisi prius record, with the postea indorsed, is not generally evidence of the verdict, it is good and proper evidence that the cause came on to be tried. (3) And in an action by the plaintiff, to recover a moiety of the money paid by him under a verdict, which a third person had received in a suit against him and the defendant, as co-defendants, the nisi prius record, with the postea indorsed, will be evidence of the verdict and damages in the former suit, without proof of the judgment. (4) In the case just cited, of Fisher v. Kit- chingman, Willes C. J. doubted whether the associate was the proper person to produce the postea in evidence ; because, by several rules of court, it ought to be returned into court to the proper officer within the four first days of the next term ; but, on the prothonotaries informing the court, that scarcely one postea in a hundred was so returned, he was of opinion, that this objection was not of sufficient weight to set aside the verdict. Writs. When a writ is only inducement to the action, the fact of taking out the writ may be proved without a copy, because possibly the writ might not have been returned, and then it is not a record. But where the writ itself is the gist of the (1) Bull. N. P. 234. Fisher v. N.P.C.365. ByAbbotC.J. Thepos- Kitchingman, Willes, 367. Garland tea, in this case, with the Master's al- v. Scoones, 2 Esp. N. P. C. 647., locatur indorsed upon it, was offered contra. also as evidence of the costs : the (2) Montgomerie v. Clarke, at Lord Ch. Justice doubted, whether the Delegates, 1745. Bull. N. P. this was sufficient proof of the costs. 234. The plaintiff, however, was allowed (3) Pitton v. Walter, l Str. 161. to take a verdict for the whole de- Fisher v. Kitchingman, Willes, 36 8. mand, subject to be reduced after- R. v. Page, 2 Esp. N. P. C. 649. n. wards, if the court should think it 6 Esp. N.P. C. 83. S. C. right. (4) Foster v. Compton, 2 Starkie, 18 Ch. 5. J and Judicial Proceedings. 39 I action, there ought to be a copy from the record, as the best proof of which the nature of the case is capable. ( 1 ) If it be necessary to prove, that a writ issued in a particular cause, it will not be sufficient to prove, the praecipe by the filazer's book, and, after proof of notice to produce the original, to give in evidence a copy of the writ ; but a proper search must be proved to have been made at the Treasury for the original writ, before secondary evidence can be given. (2) An ex- amined copy of the judgment-roll, containing the award of an elegit and return of the inquisition, is evidence, in an action for use and occupation, of the title of the plaintiff, who claims under the elegit, without proving a copy of the elegit and of the inquisition (3) ; the judgment-roll is absolute proof of all the proceedings, which it sets forth. If an action of trespass, for taking goods in execution, is brought by the party, against whom the writ of fieri facias issued, it will be sufficient for the officer to give the writ in evidence, without shewing a copy of the judgment. But if the plaintiff is not the party, against whom the writ issued, and claims the goods by a prior execution or sale, the officer, in order to prove the sale or the execution fraudulent, must produce not only the writ, but also a copy of the judgment. In the first case, he will justify himself, by proving that he took the goods in obedience to a writ issued against the plaintiff; but, in the other case, the goods do not prima facie belong to the party against whom the writ issued, and therefore the officer is not justified by the writ in taking them, unless he can bring the case within the statute 13 Eliz. c. 5. against fraudulent alienations, &c. for which purpose it will be necessary to shew a judgment. (4) The return of the sheriff upon a writ, which has been duly returned and filed, is prima facie evidence of the fact (1) Gilb. Ev. 34. Bull.N. P. 254. (1) Lake v. Billers, 1 Ld. Ray. 733. (2) Edmonstonc v. Plaisted,4 Esp. Martin v. Podger, 2 Black. Rep. 701 . N. P. C. 160. Bull. N. P. 234. a. (3) Ram&bottom v. Buckhurbt, 2 Maule & Sel. 565. C C 1 392 Of the Proof of Records [Ch. 5. there stated, when that fact comes incidentally into question, even in an action between third persons. If the sheriff return a rescue, the court above, to which the return was made, would give it such credit, as to issue an attachment in the first instance ; though, upon an indictment for a rescue, the de- fendant might shew, that the return was false. (1) And so in an action for maliciously suing out an alias fieri facias, after a sufficient execution under the first^m" facias, the Court of King's Bench held, that the sheriff's return annexed to the writs (in which he stated, that he had forborne to sell under the first, and had sold under the second writ, by the request and with the consent of the plaintiff,) had been properly admitted at the trial as evidence of that fact, in support of a plea of licence pleaded by the defendant; for, as the Court said, faith ought to be given to the official act of a public officer like the sheriff, even where third persons are concerned. (2) But though the sheriff's return is ■prima facie evidence that he has levied, it affords no proof that he has paid over the money to the judgment-creditor, so as to charge him in an action with the receipt. (3) Inquisition. When an inquisition is offered in evidence, the commission, under which it was taken, ought regularly to be proved, or shewn to be lost. But in cases of more general concern, such as the minister's return to the commission in the reign of Hen. 8. for enquiring into the value of livings, a copy of the whole record need not be taken, and the commission is of such public notoriety as not to require any proof. (4) Common recoveries. It is enacted by statute 14 G. 2. c. 20. s. 4., (made for the purpose of protecting purchasers, in cases where recoveries (l) R. v. Elkins, 4 Burr. 2129. There are several cases, in which the indorsement on the writ has been admitted as evidence against the sherif^/vho makes the return. Blatch v. Archer, Cowp. 63. M'Neil v. Perchard, 1 Esp. N. P. C. 2C3. Jones v. Wood, 3 Campb. 229. Fairlie v. Birch, 3 Campb. 397. (2) Gyffbrd v. Woodgate, 11 East, 297. (3) Cator v. Stokes, 1 Maule & Sel. 599. (4) Bull. N. P. 228. Hardcastlev. Sclater, 2 Gwill. 787; Ch.5.] and Judicial Proceedings. ,393 have not been entered on record,) that, where any person hat> purchased any estate, whereof a recovery was necessary to be suffered in order to complete the title, such person, and all claiming under him, having been in possession of the pur- chased estate from the time of the purchase, may, after the end of twenty years, produce in evidence the deed making a tenant to the writ of entry, or other writ for suffering a com- mon recovery and declaring the uses, and the deed so pro- duced, execution thereof being duly proved, shall in all courts be deemed good and sufficient evidence for the purchaser, and all claiming under him, that the recovery was duly suffered and perfected according to the purport of the deed, in case the record of recovery cannot be found, or should not appear to be regularly entered. A decree in the Court of Chancery may be proved by an Decree in exemplification under the seal of the Court ; or by a sworn Chancery, copy ; or by a decretal order in paper, with proof of the bill and answer. (1) But it has been held, that the bill and answer need not be proved, if they are recited in the decretal order. (2) And it is said in a book of authority (3), " that, if a party wants to avail himself of the decree only, and not of the answer, the decree, under the seal of the court and enrolled, may be given in evidence without producing the bill and answer, and the opposite party will be at liberty to shew, that the point in issue was not the same as the present issue." However, the rule, generally laid down, seems to be, that, where a party intends to avail himself of the contents of a decree, and not merely to prove an extrinsic collateral fact, (as, that a decree was made by the court,) he ought regularly to give in evidence the proceedings upon which the decree is founded. " The whole record," says Ch. B. Comyns, "which concerns the matter in question, ought to be produced." (4) So, " a sentence in the Admiralty Court may be evidence, upon (1 Trowel v. Castle, 1 Keb. 21. (.-) Bull. N. P. 255. citing Lord Com. Dig. Ev. (C. 1.) p. 94. Thanet v. Paterson, K. B. East. (2) By Trevor C. J. in Wheeler 12 O. 2. v. Lowth, cited Com. Dig. ib. I Kcb. (4) Com. Dig. tit. livid. (A. 4,) 21. contra. p. 85. 391 Of the Proof of .Records [Ch. 5. the libel and answer produced; and a judgment in a court baron, or other inferior court, with proof of the proceedings in which the judgment was given." (1) If, indeed, the fact, to be shewn, were merely, that a decree has been made in the Court of Chancery, or that a decree, made there, has been reversed on appeal, proof of the previous proceedings will not be necessary. (2) And in the case of an ancient decree, if the bill and answer cannot be found after proper search, the decree alone may be admitted. Answer. An answer cannot be regularly given in evidence without proof of the bill ; for without the bill there does not appear to be a cause depending. But if there be proof by the pro- per officer, that the bill has been searched for in the office, and cannot be found, the answer has been allowed to be read without a sight of the bill. (3) As the defence in Chancery is upon oath, it will be presumed in ordinary cases, that the answer was sworn to by the defendant. When an answer is offered in evidence as an admission of the party upon oath, it will be sufficiently proved by an examined copy (4); nor will it be necessary to shew, that there has been any decree in the suit. (5) If an examined copy is given in evidence, some proof of the identity of the party will be re- quisite ; and this may be supplied by extrinsic proof, or by the proceedings themselves. In one case, the attorney of the party was called, to prove that the other party had filed the bill in equity against his client. (6 ) In another case, in which the action was brought against the defendant A. B. as administrator of C. D.,*and the defendant did not plead, that he was not admini- strator, it appeared, that the bill in equity had been also filed against A. B. as adminstrator of C. D. ; and this was consider- ed to be sufficient presumptive evidence, that the answer, pur- (1) Com. Dig. tit. Ev.(C. l.)p. 94. 16 East, 354. Salter v. Turner, (2) See Jones v. Randall, Cowp. 2 Campb. 87. 5 Campb. 401. 17. (5) Lady Dartmouth v. Roberts, (") Gilb. Ev 49. 16 East, 334. (4) Lady Dartmouth v. Koberb, (6) Hodgkinson v. Willi*, 3 Campb. 401. Ch. 5.] and Judicial Proceedings. 395 porting to be made by A. B. in that character, was the answer of the defendant. ( 1 ) Stricter proof than an examined copy is required, on a pro- secution for perjury alleged to have been committed by Ihe de- fendant in his answer. Some evidence of the administration of the oath will there be required ; as, that a person, calling him- self by the defendant's name, was sworn, and that the signature on the answer, which must be produced, is his hand-writing ; or, that the answer is signed by the defendant, and that the jurat, purporting to have been sworn before a master, is attested by the master's hand -writing. (2) This strictness of proof is re- quired not only in criminal proceedings, as on a trial for per- jury, but also in actions which are in the nature of a criminal proceeding, as in an action for a malicious prosecution. (3) With regard to depositions, the general rule is, that they Depositions. are not to be admitted in evidence without proof of the bill and answer (4) ; for, if there do not appear to be a cause de- pending, the depositions are considered to be mere voluntary affidavits ; and the bill and answer ought to be produced, in order to shew, who were the parties to the suit, and what the points in issue, as depositions in general are evidence only upon the same points, and between the same parties, or those who claim under the parties. (5) But depositions may be read with- out such antecedent proof, if they are so ancient, that no bill or answer can be forthcoming ; formerly it was not the practice to enrol bills and answers. (6) And if the defendant is in con- tempt, or has had an opportunity of cross-examining, which (1) Hennell v. Lyon, l Barn. & bill and answer had not been Aid. 182. duly proved, nor enquired after. (2) R. v. Morri9, 2 Burr. 1139. R. But it is said by the reporter, that v. Benson, 2 Campb. 508. the rejection of this evidence was (3) 16 East, 340. one of the grounds upon which a (4) Gilb. Ev. 56. Bull. N. P. 240. new trial was afterwards granted. Nightingale v. Devisme, 5 Burr. 2594. And see Byam v. Booth, 2 Price, ad fin. Baker v. Sweet, Bunb. 91. 254. n. Illingworth v. Leigh, 4 Gwill. 1619. (5) See ante, p. 319. At the trial of the last-cited case, (6) Byam v. Booth, 2 Price, 234. n. Mr. Just. Heath refused to admit Gilb. Ev. 58. depositions in evidence, because the j()<; Of the Proof of Records [Ch. 5. he chose to forego, the depositions may then be read, after proving the bill, although no answer has been put in. ( 1 ) Depositions are evidence, as an admission, against a party to the suit — or for the purpose of contradicting a witness — without proof of the bill and answer : but some proof of the identity of the person will be necessary. - Depositions taken on interrogatories, under a commission of modern date, are not admissible without the production of the commission, under the authority of which the depositions were taken : if the depositions are of a long standing, so that the commission may be presumed to have been lost, they are evidence by themselves : in either case, whether the depositions are of a recent or ancient date, there is no occasion to produce the bill and answer. (2) Where the Court of Chancery, on directing a trial at law, makes an order, that the depositions of a witness shall be read, the proof of the bill and answer will be dispensed with. This order is not made for the purpose of making that admissible in evidence, which is not strictly admissible in courts of common law (3) ; and the depositions cannot be admitted, even under the order, unless it be satisfactorily proved at the time of the trial, that the witnesses are unable to attend in person. If de- positions were offered in evidence without such an order, the whole record, bill, answer, &c. must be regularly proved ; but when there is an order for reading depositions, the court of law will read them, without going through the regular and strict course, which is generally necessary for the purpose of making them evidence. (4) The proof of depositions is by an examined copy. Office copies are evidence in the Court of Chancery, but not in courts of common law, for a reason before mentioned. (5) (1) Cazenove and another v. (4) Palmer v. Lcl. Aylesbury, IS Vaughan, 1 Maule & Sel. 4. Ves. 176. Corbett, v. l.'oibett, l'Ve-. (2) Baglie v. Wylic, 6 Esp. S£. Sc Beam. 340. (3) 1 5 Vcs. 176. (5) See ante, p. jS?. in inferior courts. Ch. 5.] and Judicial Proceedings. ?97 Judgments in the House of Lords are not formally drawn Judgment in up, but minutes only are entered on the Journals. The mi- L orcte ° nutes of a judgment are the judgment itself, and they may be proved by an examined copy. ( 1 ) When the judgment of a court baron, or of any other Proceedings court of inferior jurisdiction, is offered in evidence, the pro- ceedings, on which it is founded, ought to be shewn (2) ; but as the record is not usually made up in form, the minutes of their proceedings will be admitted, if they are perfect, and omit nothing material. (3) Testaments are proved in the ecclesiastical court either in Probate of common form, or in form of law. The first mode of proof is where the executor presents the will before the Judge, without citing the parties interested, and deposes, that it is the true and last will of the testator ; upon which the Judge allows the will. The proof in form of law is, when the will is ex- hibited before the Judge in presence of the parties interested, and after a full examination is finally allowed. (4) If the will be proved in common form, it may be disputed at any time within thirty years ; but if it be proved in the more formal mode, and there be no proceedings within the time limited for appeals, the will cannot afterwards be disputed. (4) After proof of the will, the original is deposited in the registry of the ordinary or metropolitan, and a copy in parchment is made out under his seal, and delivered to the executor, to- gether with a certificate of its having been proved before him, which copy and certificate are the probate. A court of com- mon law will not take notice of a will as a title to personal property, till it is proved in the Ecclesiastical Court (5) ; and though the original will, together with the probate, is pro- duced by the officer of the Ecclesiastical Court, the will can- (1) Jones v. Randall, Cowp. IT. (4) Z Bac. Ab. 40. tit. Executor. (2) See ante, p. 594. (5) Stone v. Forsyth, 2 Doug. (3) Fisher v. Lane, 2 Black. Itcp. 707. 834. Holt C. J. in R. v. Hains, Comberb. 537. 898 Of the Proof of Records [Ch. 5. not be read in evidence, unless it bears the seal of the court or some other mark of authentication. ( 1 ) It is not the practice in the ecclesiastical courts to grant a second probate, if the first should be lost, but only to grant an exemplification from the record of the court, and this ex- emplification will be evidence of the proof of the will. (2) And an examined copy of the probate is evidence of the person, there named, being executor, as the probate is an original, taken by authority, and of a public nature (3); but a copy of the will would not be evidence of that fact. (4) The probate o f a will, devising real property , is not evi- dence of the contents, in an action ojfej ectment, e yenjto jrove a relationship ; for where the original is in being, the copy is not admissible ; and besides, the seal of the court does not prove it a true copy, unless the suit relate only to personal property. (5) But the ledger-book, says Mr. Justice Buller, is evidence in such a case, because this is not considered merely as a copy, but is a roll of the court ; and though the law does not allow these rolls to prove a devise of lands, yet when the will is only to prove relationship, the rolls of the spiritual court, which has authority to enrol wills, are sufficient proof of such testament. (5) It has been often held, that a copy of the ledger-book is not evidence ; yet, since the origi- nal would be read as a roll of the court without further attest- ation, it seems fit, says Mr. Justice Buller, that the copy should also be read. The contrary practice, he adds, has been founded upon the mistaken supposition, that the ledger- book is read as a copy, when in fact it is read as a roll of the court. (5) To prove that the probate of a will has been revoked, an entry of the revocation in a book of the prerogative court, in (1) R'.v. Barnes, 1 Starkie, N.P.C. (3) Hoe v. Nelthorp, 5 Salk. 154. 243. l Ld. Raym. 154. S. C Holt C. J. (2) Shepherd v. Shorthouse, 1 Str. in R. v. Haynes, Skin. 584. 412. Bull. N.P. 246. (4) Bull. N. P. 246. (5) Ibid. Ch.5.] and Judicial Proceedings. 399 which all causes were entered by the registrar, and which was kept as the only record of such proceedings, and of the decree of the court, has been admitted to be good evidence. ( 1 ) Administration is generally granted by writing under seal. Letters of ad- It may also be granted by entry in the registry without letters minis ra lon " under seal. (2) The ecclesiastical court never grants an ex- emplification of letters of administration, but only a certificate, that administration was granted; therefore, when a lessee pleads an assignment of a term from an administrator, such certificate is good evidence. (3) And the original book of acts, directing letters of administration to be granted, with the sur- rogate's fiat for the same, is evidence of the title of the party, to whom administration of the intestate's effects is granted, without producing the letters of administration themselves, (notwithstanding subsequent letters of administration granted to another,) if the first are not recalled ; for the original book was the authority for the proper officer, to make out letters of administration, and the letters of administration were only the copy of the original minutes of the court, drawn up in a more formal manner. (4) So, an examined copy of the act-book, stating, that administration was granted to the defendant at such a time, is proof of his being administrator in an action against him, without giving him notice to produce the letters of administration. (5) In an action upon a judgment of a court of a foreign Foreign country, the sentence must be proved by proving the hand- writing of the Judge of the court, who subscribed it, and the authenticity of the seal affixed. Thus, in a late case (6), the plaintiff, who sued here on a judgment obtained in the island of Grenada, was nonsuited, because he could not prove the (1) Ramsbottom's case, 1 Leach, Garrett v. Lister, l Lev. 25. Bull. Cr. C. 30. n. (c) N. P. 246. 2 Maule& Selw. 567. (2) Vin. Ab. Executor, D. p. 70. (5) Davis v. Williams, 13 East, (5) Kempton, dem. Boyfield, v. 232. Ray v. Clark, ib. 238. n. («) Cross, Rep. temp. Hard. 108. Bull. (6) Henry v. Adey, 3 East, 221. N. P. 246. Buchanan v. Rucker, l Campb. 6.". (4) El den v. Keddell, s East, 187. Flindt v. Atkins, 5 Campb. 215. Judgment. 400 Of the Proof of Records [Ch. 5. seal affixed to be the seal of the island. And on a motion to set aside the nonsuit, the court said, they could not take official notice, that the seal affixed was the seal of the island, which was necessary to be shewn, in order to prove the judg- ment, which it purported to authenticate ; and that proving the Judge's hand-writing could not advance the proof of the seal, unless by considering him in the nature of a witness to it, which was not pretended. If a colonial court possess a seal, it ought to be used for the purpose of authenticating its judgments, although it may be so much worn as no longer to make any impression. ( 1 ) If it is clearly proved, that the court has not any seal, so that the document cannot be clothed with the form of a legal exemplification, it must be shewn to pos- sess some other requisite to entitle it to credit (2) ; as, by proving the signature of the Judge upon the judgment. (3) An exemplification of a foreign judgment, that is, a copy authenticated under the seal of the court, is evidence of the judgment in the courts of this country (4); but a document, purporting to be a copy of a judgment, made by the officer of the court, is not admissible. (5) Award. The effect of an award has been before mentioned. (6) In an action upon an award, it will be necessary to prove both the submission and the execution of the award. And, in ge- neral, whether the validity of the award comes into question directly, or only incidentally, the submission of all the parties ought to be regularly proved. Thus, where there had been a deed of reference, between a creditor and several partners, of all copartnership accounts and of all matters in difference between the parties or any two of them, and an action of tro- ver was afterwards brought by the creditor, the assignee under a commission of bankruptcy of one of the partners, (in which action the plaintiff produced the award and deed of reference, as evidence of a separate debt due to him from the bankrupt,) (l)Cavan v. Stewart, l Stark. (4) 2 Starkie, N. P. C 11, 12. by N. P. C, 525. Lord Ellen borough and Bavlev J. (2) 2 Starkie, N. P. C. 1 1. (5) Appleton v. Lord Braybrooke, (3) Alves v. Bunbury, 4 Campb. 2 Starkie, N. P. C. 6, 7. 28. (6) See ante, p. 5S1. Ch. 5.~] and Judicial Proceedings. 401 the Court of King's Bench held, that it was indispensably ne- cessary to prove the execution of the deed by all the parties : for this was a reference of the aggregate accounts between all and each of the partners, and the consideration to each for entering into the submission was, that each party's account should be liquidated, not only as to one, but as to all ; the accession of all, therefore, ought to be proved ; and, without such proof, the arbitrator would not appear to have competent authority to decide the whole question between the par- ties. (1) If the award, given in evidence, is the award of com- missioners under an act of parliament, the act ought to be produced, for the purpose of shewing the authority of the commissioners, and that the award is conformable with the pro- visions of the statute, and, if the act is a private act, it must be regularly proved. (2) If previous notices are required to be given, before the commissioners make their award, proof of the regularity of such notices will not in ordinary cases be necessary. But if the circumstances of the case raise a pre- sumption, that all has not been regularly performed, then it will be incumbent on the party to prove the due performance. Thus, on the trial of an indictment against a parish for not repairing a highway, which was reputed to lie within the parish, and had been from time to time repaired by the in- habitants, an award made by commissioners of inclosure, awarding the highway to be situate in a different parish, was adjudged not to be admissible evidence for the defendants, because it was not proved, that the commissioners had given the previous notices, required by the inclosure act, to the parishes, who would be affected by their award ; the circum- stance of the defendants having continued to repair after the award, raised a presumption, that there had not been such a notice as the act of parliament required. (3) (1) Antrum v. Chace, 15 East, (3) R. v. Inhabitants of Hasling- 209. field, 2 Maule & Selw. 558. (2) See ante, p. 385. VOL. I. D D 4CK* Of Public Writings, not Judicial. [Ch. 0. CHAR VI. Of Public Writings, not Judicial. rPHE next species of evidence, which the subject leads us to consider, relates to such public writings as are not ju- dicial. In treating of this part of the subject, it is proposed to mention some of the principal documents of this descrip- tion ; and then to proceed to the enquiry, how a party, who wishes to use public writings in evidence, may obtain an inspection. Domesday- ^ ne most ancient public document in the kingdom is book. Domesday-book, consisting of two volumes, kept in the receipt of the Exchequer. They contain a general survey of all the counties in England, excepting the four northern, and were compiled soon after the Conquest, for the purpose of ascertain- ing the ancient demesne lands, which were the soccage tenures first in the hands of Edward the Confessor, and afterwards of William the Conqueror. This has been always considered a book of the greatest authority ; and if a question should at any time arise, whether a manor is ancient demesne, the trial is by inspection of Domesday-book. (1) These volumes have of late years been printed at the expense of government, in consequence of an address from the House of Lords ; and the work is said to be executed with the most scrupulous fidelity and correctness. (2) Another ancient survey, which ascertains the extent of the king's ports, is also deposited in the Exche- quer. (3) These surveys are recognized and treated as au- thentic documents in courts of justice, having been made by the authority and order of the government of the country, on public occasions, and on subjects of public interest. (1) Hob. 188. Gill). Ev. G9. mons, on Public Records, AppeHdix, (2) First Report of H. of Com- A. l a. (51 Gilb. Ev. 69. Ch. 6.] Of Public Writings, not Judicial. iOo The Valor Beneficiorum, or Pope Nicholas's Taxation, is Surveys of another document of a public nature. In the year 1288, ^ ccle * lastlcal Pope Nicholas the Fourth, to whose predecessors in the see of Rome the first-fruits and tenths of all ecclesiastical benefices had for a long time been paid, granted the tenths to King Edward the First for six years, towards defraying the expense of an expedition to the Holy Land; and, that they might be collected to their full value, a taxation by the king's precept was begun in that year, and finished for the province of Can- terbury in the year 1291, or the 20th year of the reign of Edward the First ; and for that of York in the following year; the whole being under the direction of the Bishops of Winton and Lincoln. (1) This taxation of Pope Nicholas is an im- portant document, because all the taxes, as well those paid to our kings as those to the Pope, were regulated by it, till the survey made in the twenty-sixth year of Henry VIII. ; and because the statutes of colleges, which were founded before the Reformation, are also interpreted by this criterion, ac- cording to which their benefices under a certain value are exempted from the restriction in the statute of the twenty-first of Henry VIII, concerning pluralities. (2) The taxation is evidence of the rate and value, at which the persons, employed in that taxation, thought fit at that time to estimate the living. (3) The original is kept in the office of the king's remembrancer in the Exchequer. A new Valor Beneficiorum was instituted in the twenty- sixth year of Henry VI II., when the first-fruits and tenths of every ecclesiastical promotion were annexed to the revenue of the crown. (4?) To ascertain their value, ecclesiastical sur- veys were taken, by virtue of commissions in the king's name issuing under the great seal (5) ; and these surveys are ad- mitted as evidence of their amount at that period, although (1) Sec first Report of H. of (?) By Ld. Redesdale, Bullen v. Commons on the Public Records, Michel, 2 Price, 477. p. 15. (4) St. 26 H. 8. c. ?. (2) Humphreys v. Knight, Cro. (5) Sect. 5 & 10. Car. 45.5. 2 Lutw. 1505. Stump v. Ayliffe, 2 Gwill. 556. , a d 2 404 Of Public Writings^ not Judicial [Ch. (>. they are generally considered as estimating the value much too low. (1) It is to be observed, that the Valor Beneficiorum of the reioii of Henry VIII. in no instance mentions the ex- istence of a modus. The commissioners appear not to have taken notice of any existing modus, or immemorial agreement between the parson and the occupiers ; but to have calculated the value of the first-fruits and tenths, without considering the question of modus, or any other legal exemption. Surveys of the possessions of Teligious houses, previous to the dissolution of the monasteries, are admissible in evidence, upon the same principle ; and, in the case referred to, were admitted, to shew what tithes belonged to the rector, and what to the vicar. (2) These surveys are admissible, although the commissions, under which they were taken, are not to be found. (3) Surveys of the church and crown lands were taken by commissioners in the time of the commonwealth, under the authority of acts or ordinances of the parliament ; and copies of these surveys were deposited in many of the cathedrals. The originals would have been good evidence of the par- ticulars of the surveyed estates, upon the same principle as the other public surveys, which have been before mentioned, but as they were destroyed at the time of the great fire in London, the copies have been admitted, as evidence, in the place of the original surveys, provided they have been kept in unsus- pected repositories. (4) The parliamentary surveys have the credit of being taken with extreme accuracy and minuteness. The circumstance, therefore, of these surveys being silent as to a supposed modus, has been considered to be strong evi- dence against its existence. (5) (1) 5 Gwill. 856. 1240. 4 Price, (4) Underbill v. Durham, 2 Gwill. 221. 5 Price, 377. 2 Price, 455. 542. Green v. Proude, 1 Mod. 117. (2) Vicar of Kellington v. Trin. Bullen v. Michel, 4 Dow. 325. Coll. Cambridge, 1 Wils. 170. 2 Price, 599. S. C (5) l Wils. 170. Bagshaw v. Bp. (5) ll East, 284. l Maule& Selw. of Bangor, cited in Underbill v. 294. Durham, 2 Gwill. 542. CIi. 6.] Of Public Writings, not Judicial. 405 The history of the Inquisitiones Nonarum is thus given in the Report of the Commissioners of Public Records, before referred to. ( 1 ) A grant having been made by parliament to Edward the Third, in the fourteenth year of his reign, of the ninth lamb, ninth fleece, and ninth sheaf, assessors and venditors were thereupon appointed, and directed, by three commissions under the great seal, for every county in England, to assess and sell these ninths. The Inquisitiones Nonarum were taken under the third commission, whereby the commissioners were directed to levy the ninth of corn, wool, and lambs, in every parish, according to the value upon which churches were taxed, (this means Pope Nicholas's taxation,) if the value of the ninth amounted to as much as the tax ; but should the value of the ninth be less than the tax, they were directed to lay only the true value of the ninth, and to disregard the tax ; and to gain correct information of these facts, they were di- rected to take inquisitions, upon the oath of the parishioners, in every parish. These inquisitions form the records called, the Inquisitiones Nonarum. The Journals of the Lords or Commons are evidence of Journals of their proceedings. An entry in the Journals of the House of pai Lords, stating, that a judgment below has been reversed, is evidence of the fact of reversal (2); and the Journals have been admitted to prove an address from the House of Lords to the King, and the answer of the King. (3) Thus, the ad- dress of the Lords to the King, and the King's answer, proved by the Journals, have been admitted as evidence of an aver- ment in an information, that certain differences had existed be- tween the King of England and the King of Spain. (3) Here, it is to be observed, the fact related purely to a matter of state, and therefore admitted of this kind of proof. But a resolu- tion of either House is not evidence of the truth of facts there affirmed ; and therefore in the case of Titus Oates, who was charged with having committed perjury on the trial of persons (1) Appendix, (L. 2) p. HC. cited by Buller J. 5 T. R. 445. And (2) Jones v. Randall, Cowp. 17. see the case of the Seven Bishops, (3) Franklin's case, 9 St. Tr. '259. 4 St. Tr. 576. d n 3 40(> Of Public Writings, not Judicial. [Ch. 6. suspected of the popish plot, a resolution in the Journals of the House of Commons, asserting the existence of the plot, was not allowed to be evidence of that fact. (1) An entry in the Journals may be proved by an examined copy compared with the original; but cannot be proved by the printed Journals. (2) Gazette?. The public acts of government, and acts by the king in his political capacity, are commonly announced in the Gazette, published by the authority of the Crown ; and of such acts announced to the public in the Gazette, the Gazette is admit- ted in courts of justice to be good evidence. A proclamation for reprisals, published in the Gazette, is evidence of an exist- ing war. * Proclamations for a public peace, or for the per- formance of quarantine, and any acts done by or to the king in his regal character, may be proved in this manner (3); and upon the same principle, articles of war purporting to be printed by the king's printer, are allowed to be evidence of such articles. (4) A Gazette, in which it was stated, that certain addresses had been presented to the king, has been adjudged to be proper evidence, to prove an averment of that fact in an information for a libel (5); for they are addresses, said Lord Kenyon, of different bodies of the king's subjects, received by the king in his public capacity, and they thus become acts of state. And in the late case of the King v. Sutton (6), the Court of King's Bench determined, that the (1) 4 St. Tr. 39. (4) R. v. Withers, cited by Buller (2) Lord Melville's case, 29 J. 5 T. R. 446. See stat. 55 G. 3. Howell, St. Tr. 683. c. 108. s. 56. (3) 5 T. R. 436. 443. Quelch's (5) R. v. Holt, 5 T. R. 436. case, 8 St.Tr. 212. Dupays v. Shep- (6) 4 Maule & Selw. 546. herd, Rep. Temp. Holt. 296. * Public notoriety is sufficient evidence of the existence of a war. Foster, Disc. ch. 2. 6. 12. p. 219. Evidence, therefore, was not produced to prove this fact, though averred in the indictment, in the cases of Sir John Friend, of Sir W. Parkyn, Cook's case, and Vaughan's case, which are reported in the State Trials. A declaration of war by a foreign government, transmit- ted to this country by the English ambassador, and produced from the Secre- tary of State's office, has been admitted as evidence of the commencement of hostilities between that government and another state. Thelluson v. Cosling, 4 Esp. N. P. C. 266. Ch. G.J Of Public Writings* not Judicial. 407 king's proclamation, (which recited, that it had been repre- sented, that certain outrages had been committed in different parts of certain counties, and offered a reward for the discovery and apprehension of offenders,) was admissible in evidence, as proof of an introductory averment in an information for a libel, that acts of outrages of that particular description had been committed in those parts of the country. Gazettes are not evidence of private titles or private inte- rests, as of a presentation, or of a grant by the king to an in- dividual, which have no reference to the affairs of government ; nor is a Gazette evidence to prove an appointment to a com- mission in the arm} r . ( 1 ) Notices relating to bankruptcies are constantly inserted in the Gazette ; and they are made sufficient by act of parliament. Notices, also, of the dissolution of partnerships, are very com- monly inserted. An advertisement in the Gazette, announc- ing a dissolution, has been admitted as evidence of a public notification of that fact; but such evidence is of little avail, unless it be shewn, that the party, entitled to notice, was in the habit of reading the Gazette. (2) And such an advertisement in a common newspaper is not even admissible, without proof that the party took in that paper. (3) If the paper, containing the advertisement, is proved to have been read by the party, or if it is proved only to have been delivered in the usual course at the house of the party, the jury may reasonably be instruct- ed to consider, whether the attention of a tradesman, in reading a newspaper, was not likely to be attracted by notices of the dissolution of partnerships, to which the attention of others might not be directed : and it is a question for the jury to de- (l) Kirwan v. Cockburn, 5 Esp. S.C. Newsome v. Coles, 2 Campb. N.P.C.23.3. R.V.Gardner, 2 Campb. 619. See also Graham v. Hope, 513. Pcake, N. P. C. 154. Gorham v. (2) Leeson v. Holt, 1 Stark. N.P. C. Thompson, ib. 42. 186. Godfrey v. Macaulay, Peake, (.3) 1 Starkie, N. P. C. 186. N. P.C.I 55. 1 U;p. N. P. C. 371. 1) D 4 408 Of Public Writings, not Judicial. [Ch. 6. termine, whether, under all the circumstances of the case, the party had actually received notice of the dissolution. (1) Parish re- Parish registers are evidence of births, marriages, and burials. Registers are directed to be kept as public books, and are accompanied with all the means of authenticity. " They are in the nature of records," said Lord Mansfield, " and need not be produced, or proved by subscribing witnesses." (2) To prove a marriage, for instance, an examined copy of an entry is sufficient ; this is proof of a marriage at a certain time, between two parties describing themselves by the names and places of abode there mentioned. The keeping of registers for entries of births and chris- tenings commenced in the thirtieth year of the reign of Henry VIII., and was afterwards enforced by injunctions from Edward VI., and from Elizabeth (3) ; and the mar- riage act (4), after directing registers to be kept as public books in every parish, for the purpose of registering mar- riages, enacts, that " immediately after the celebration of every marriage, an entry thereof shall be made in such regis- ter, in which entry or register it shall be expressed, that the marriage was celebrated by banns or licence ; and if both, or either of the parties married by licence be under age, with consent of the parents or guardians, as the case shall be ; and shall be signed by the minister with his proper addition ; and also by the parties married, and attested by two credible wit- nesses." By the canons of 1603, copies of parish registers in every diocese ought to be regularly transmitted once in every (1) Jenkins v. Blizard and an- evidence, on a question of tithes be- other, 1 Starkie, N. P. C. 420. tween a succeeding vicar and occu- (2) Birt v. Barlow, 1 Doug. 173. — piers of the parish, in the case of A book, entitled The Parish Register, Drake v. Smyth and others, before Eroduced from a chest in the vicarage the Lord Chief Baron. 5 Price, 369-. ouse, and containing ancient entries 372. 377. respecting tithes due to the vicar, (3) 3 Bum. Eccl. L. 275. Gilb t one of which entries purported to be Ev. 68. made about 150 years ago by the (4) St. 26 G. 2. c. 33. s. 14. vicar of that time, was admitted in Ch. 6.] Of Public Writings, not Judicial. 409 year to the diocesan or his chancellor ( 1 ) ; a regulation ex- tremely important, for the purpose of guarding the evidences of title and pedigree, but which has been so generally ne- glected, as to make it necessary for the legislature to interpose, and pass an act for their better preservation. It is by this statute enacted (2), that copies of the register books, verified by the officiating minister of the parish, shall be transmitted annually by the churchwardens, after they or one of them shall have signed the same, to the registrars of the diocese within which the church is situated. An entry of marriage in the parish register, made in the form prescribed by the act of parliament, is evidence, that the persons therein named were married, on the day specified, by banns or licence, as the case may be. Such an entry is not essential to the validity of a marriage ; so that, if it has not been expressed in the regular form, the only consequence will be, that it cannot be admitted as evidence of the marriage, which must therefore be established by some other medium of proof. In order to prove, that the parties, described in the register, are the same parties whose marriage is in question, it must obviously be unnecessary to call either of the sub- scribing witnesses to the register ; any evidence, which satis- fies the jury concerning their identity, must be sufficient; as, by proof of the similarity of their hand- writing, or that the bell-ringers were paid by them for ringing after the marriage, or by proof of other circumstances to ascertain the persons. (3) A book of Fleet marriages cannot be read as a register, not having been compiled under public authority, and is not legal evidence of a marriage. (4) A copy of a register of baptism, kept in the island of Guernsey, is not admissible in our courts of law (5); nor is the copy of a register of a foreign chapel admitted here as proof of a marriage abroad. (6) (1) Can. 70. Gibson's Codex, 2.51. Lloyd v. Passingham, 1 Cooper, P- 204. Ch. C. 155. (2) Stat. 52 G. 3. c. 146. s. 7. (5) Huet v. Le Mesiirier, 1 Cox, (3) Bull. N. P. 27. Cas. 275. (4) Reed v. Passer, Peake, N. P. C. (6) Leader v. Barry, i E»p. N. P- C. 333, 410 Of Public Writings, not Judicial. [Ch. 6. Registers of Public registers are required by act of parliament to be ps ' kept for the registering of ships (1 ) ; and the registe r and ce r- tificate of j^is^ejt^are_con clusive evidence of want of title, again st" thos e_ who are n ot named in theregister. Thus, in an action on a policy of insurance on freight, where the interest in a ship and its earnings were alleged to be in four persons, who were partners in trade, two only of whom were named as owners in the register, it was decided, that the action could not be maintained, although it was proved as a fact, that the ship had been paid for by all the four partners : for as the plaintiffs claimed the freight only in right of ownership, they could not recover without proving that right ; and it appeared conclu- sively from the register, that all the four partners had not a legal title to the ship. (2) The register of a ship, then, is conclusive evidence, that persons, who are not there named as owners, cannot legally be joint-owners; but the converse of the rule is not true , namely, that all persons, who are named as owners in the j^isjjer 2 _are liable as such. Such registers are not recog- nised as public documents, to prove the ownership ; and they are not evidence to fix the parties therein named as owners, in actions against them, unless they are shewn to have been made by their assent or recognised by them. This point was decided in the case of Tinkler v. Walpole(3) ; which was an action for goods sold and delivered for the use of a ship, against the defendant as one of the owners. At the trial of the cause, in order to prove the ownership of the defendant, two registers were offered in evidence, purporting to have been made on the oaths of the managing owner, who gave the (1) St. 26 G. 5. c. 60. St. 54 G. 5. Fraser v. Hopkins, 2 Taunt. 5. c. 68. The reader is referred, on this 2 Campb. 1 70. S. C. Teed v. Mar- subject, to Mr. Abbott's Treatise on tin, 4 Canipb. 90. Upon the same Shipping, ch. 2. p. 27. principle, an entry in books, kept in (2) Camden v. Anderson, 5 T. R. the office for licencing stage-coaches, 709. 14 East, 229. Marsh v. Ro- is not anj proof, that persons, named binson, 4 Esp. 98. in the licence, are owners of a coach. (5) 14 East, 226. Cooper v. Strother v. Willan, 4 Campb. 24. South and others, 4 Taunt. S02. See also Ellis v. Watson, 2 Stark. Smith v. Fuge, 5 Campb. 456. N.E.C, 453 16 Ch. 6.] Of Public Writings, not Judicial. 41 1 order for the goods, and of two other part-owners, swearing that they and others named, including the defendant, were owners of the ship ; and it was insisted that these registers, on account of their authenticity as public documents, required for public purposes, and obtained under the sanction of an oath, ought to be considered at least prima facie evidence to prove the defendant a part-owner. But Lord Ellenborough C. J., who tried the cause, ruled that the evidence was not ad- missible, unless it could be shewn that the defendant had assented to the register, or at least had recognised it. And this opinion was afterwards confirmed by the other Judges of the court. On that occasion Lord Ellenborough expressed himself in the following terms : " Notwithstanding the prac- tice may have prevailed for a long time to receive ships' regis- ters, as evidence of the property being in the persons therein named, yet when we are brought to consider the admissibility of such evidence against the defendant, in a case, where he has done no act to adopt the register as having been made by his authority, we cannot give effect to it without saying, that a party may have a burthensome charge thrown upon him by the act of a third person, without his own assent or privity. If it had appeared, that the defendant, by any act of his own, had recognised the register, he would have been liable to all the consequences as a part-owner, which it desci'ibes him to be ; but here he has done no act to adopt it. His partner has, indeed, dealt with the property, as if the defendant were a part-owner, by registering the ship in his name ; but the act of a third person, without some act of the defendant to re- cognize it, cannot throw upon him a burthen, without vio- lating the plain rule of law." Upon the same principle, a register is not of itself evidence of a joint ownership, in support of the defendant's plea, that other persons, there named, are jointly liable with him(l); nor is it evidence, that the ship is British-built, as there de- scribed. (2) So, in an action brought by the plaintiff as agent, (i) Flower v. Young, 5 Canipb. (2) Rcussc v. Meyers, 3 Canipb. 2 '10 475. 112 Of Public Writings, not Judicial [Ch. 6.. on a policy of insurance, the register is not evidence to prove an averment, that the interest in the ship is in the persons there described. ( 1 ) The legislature lias made the regis- tration necessary to complete a title, but this does not make it of itself proof of the title. Property in a ship may be proved now, as it was proved before the acts of parliament relating to registers; as, for example, by proof of acts of ownership, or by proving actual possession in the party, or in those to whom he has committed it, or in those from whom he has himself derived his title. Any one of these media of proof is sufficient prima facie evidence of ownership, without the aid of documentary proof or of title- deeds. (2) Rate-books. It is enacted by st. 17 G. 2. c. 38. s. 14. that true copies of all rates and assessments, made for the relief of the poor, be entered in a book to be provided for that purpose by the churchwardens and overseers of the poor of every parish, &c. who shall take care, that such copies be entered accord- ingly within fourteen days after all appeals from such rates are determined, and shall attest the same by putting then- names thereto ; and every such book shall be carefully pre- served by the churchwarden, &c. for the time being, or one of them, in some public place, in every such parish, &c. whereto all persons assessed or liable to be assessed may freely resort, and shall be delivered over from time to time to the new and succeeding churchwardens, &c. as soon as they enter into their offices, and shall be produced by them at the ge- neral or quarter sessions, when any appeal is to be heard or determined. Book for The stat. 42 G. 3. c. 46. enacts, that the overseers of the furef U ' den " p0or of ever y P arish sha11 provide and keep a book at the expense of the parish, and enter therein the name of every (1) Pirie v. Anderson, 4 Taunt. Johnstone, 3 Taunt. 177.203. Amery 652. v. Roeers, 1 Esp. N. P. C. 207. (2) 4 Taunt. 657. Robertson v. Thomas v.Foyle, 5 Esp. N.P. C. 0S. French, 4 East, 136. Hubbard v. 15 Ch. G.] Of Public Writings, not Judicial. 413 child, who shall be bound out by them respectively as an -ap- prentice, together with the several other particulars, in the manner and form required by this act ; and every such entry shall be produced and laid before the two justices of the peace, who shall signify their assent to the indenture of ap- prenticeship, at the time when such indenture shall be laid before them for that purpose, and each entry shall, if ap- proved of, be signed by them according to the prescribed form. And in the third section it is enacted, that any person may at all seasonable hours inspect such book in the hands of the said overseer, and take a copy of such entry; and every such book shall be deemed to be sufficient evidence in all courts of law in proof of the existence of such indentures, and also of the several particulars specified in the register respecting such indentures, in case it shall be proved, to the satisfaction of the court, that the indentures are lost or destroyed. The register of the navy-office has been admitted in evi- Books in dence, to prove the death of a sailor (1); the book from the P u c bhc offices > master's office in the Court of King's Bench, to prove a per- son one of the attornies of that court (2); and the log-book of a man of war, which convoyed a fleet, to prove the time of the convoy's sailing. (3) Bank-books are good evidence to prove the transfer of stock (4); and on a prosecution for a libel published concerning a person in his office of treasurer of a parish, an entry in a vestry-book, stating, that he was elected at a vestry duly held in pursuance of notice, has been con- sidered sufficient evidence, to support an allegation in the in- dictment, that he was duly elected treasurer. (5) So, in an action for disturbing the use of a pew in a church, an old entry in the vestry-book, stating that the pew had been re- (1) Bull. N. P. 249. Rhodes's t (.3) D'Israeli v. Jowett, 1 Esp. case, 1 Leach, O. C. 29. Wallace 'N. P. C. 427. v. Cook, 5 Esp. N. P. C. 117. See (4) Breton v. Cope, Peake, N. P. Barber v. Holmes, 5 Esp. N. P. C. C. 20. Marsh v. Colnet, 2 Esp. 190. N. P. C. 66.5. (2) R. v. Crossley, 2 Esp. N.P.C. (5) R. v. Martin, 2 Campb. 100. 524. 414 Of Public JVn Itings, not Judicial. [Ch. (). paired by the then owner of a messuage, (under whom the plaintiff claimed,) has been admitted as evidence of his right ; being made by the churchwardens on a subject within the scope of their official authority, and as shewing the reputation in the parish respecting the right. (1) The day-book of a public prison, containing a narrative of the transactions of the prison, has been received upon the same principle, as proof of the time of a prisoner's commitment or discharge (2): but it would not be admissible to prove the cause of his commitment. (3) The distinction between these cases is, that in the former there was no document besides the one produced, and no other evidence of the fact in question could be given, except perhaps the parol testimony of some person, who might have happened to be in prison at the time ; but in the last case, the committitar, from which the entry was inserted in the book, might have been produced, and that would have been better evidence of the cause of commitment. An entry in the book kept at Lloyd's, stating the capture of a ship, is evidence of that fact ; but such entry is not a suf- ficient notice of the capture to the defendant, so as to make him liable on a policy of insurance, by which it was agreed, that the loss should be adjusted, within a certain time after advice of the capture. (4) The poll-books taken at an elec- tion for members of parliament, or at the election of a mayor, are admissible in evidence. (5) A copy of an official paper, containing an account of the cargo of a ship, made in pur- suance of an act of parliament by an officer of the customs, and lodged there as an official document, has been admitted as proof, that the property, therein mentioned, was put on board. (6) A book in the office of secretary of bankrupts, containing entries of the allowance of certificates, kept by order of the (1) Price v. Littlewood, 5 Campb. (4) Abel v. Potts, 5 Esp. N. P. C. 288. 242. (2) R. v. Aickles, l Leach, Cr. C. (5) Mead v. Robinson, Willes, 436. 424. R. v. Hughes, cited, ib. (3) Salte and others v. Thomas, (6) Johnson v. Ward, 6 Esp. 5 Bos. & Pull. 188. N.P.C.47. The official paper was proved to have gone with the ship Ch. ().] Of Public Writings, ftol Judicial. 11, Chancellor, and recognized by him as an official document, would be good secondary evidence of the allowance of a cer- tificate ; but a book, containing such entries, is not admissible, if it appear to be kept merely as the private memorandum of the clerks, without any authority or sanction from the Chan- cellor. (1) Books transcribed by officers of excise from speci- men-papers, which hang up in every malthouse, and regularly returned to the excise-office, are admissible evidence against the maltster, though not signed by him, and though the excise- officers are not called to substantiate the books by proof. (2) A book, in which leases were enrolled, and which was kept in the office of the auditor of the Bishop of Durham, has been held to be admissible evidence of a lease, after proof of the loss of the original and the counterpart : in the case alluded to, it appeared, that the office was conducted like a public office, and the officer appointed by patent, and that the practice had been to enrol leases : the enrolment-book was therefore considered as a public instrument, and presumed to exhibit a correct copy. (3) Books preserved in the office of clerk of the peace, containing enrolments of ancient deputations of gamekeepers for a certain manor, are admissible in evidence, to show that those persons, who caused the enrolments to be made, had ex- ercised rights as lords of the manor ; and they are admissible, without proof that the original deputations have been lost, or that the gamekeepers, named in them, have acted under their authority. (4) In the above-cited case of the King v. Aickles (5), the cleric of the papers of the prison produced a daily book, kept by him, containing entries of the names of all the debtors and criminals brought into prison, and of the times when they were discharged ; but it appeared that these entries were not made by the clerk on his own knowledge of the facts, but generally (1) Henry v. Leigh, 3 Campb. (4) Hunt v. Andrews, 5 Barn. & 499. Aid. 348. (2) R. v. Grimwood, l Price, 37 1. (5) l Leach, Cr. C. 436. (3) Humble v. Hunt, Holt, N. P. C. 601. 410 Of Public Writings, not Judicial. [Ch. 6. from the information of the turnkeys, and frequently from the turnkey's indorsements on the backs of the warrants, which warrants were afterwards regularly filed. Upon this, it was objected, that the entries in the books were mere copies, and that the original minutes, from which the entry of the pri- soner's discharge had been made, ought to be produced as the best evidence. But the court over-ruled the objection, and admitted the contents of the book, as it appeared to have been the constant and established practice of the keepers of public prisons to register the discharge of prisoners in such books as the one produced, and in the manner there described. In another case, a parish-register of christenings was re- ceived in evidence as an original authentic book, although the constant practice in the parish was to make a memorandum of the christenings in a day-book, from which entries were some time afterwards made into the register. ( 1 ) The question in that case was on the plaintiff's legitimacy, and on the part of the plaintiff a general parish-register was produced, in which there was an entry of his christening, describing him in the same manner as legitimate children were usually entered. It appeared, that the practice was to make the entries in this register once in three weeks out of a day-book, in which entries were made immediately after the christening or on the same morning ; and in the case of illegitimate children, to insert in the entry in the day-book the letters B. B., which were intended to signify " base born." The counsel for the defendant then offered in evidence the day-book, from which the other entry was posted, and in which the letters B. B. were inserted, insist- ing that it was the original entry. But a majority of the judges, present on a trial at bar, A were of opinion, that such evidence ought not to be received, on the ground, that there could not be two registers in the parish, and that the one first produced ought to be taken to be the true register. — If, indeed, the (l) May v. May, 2 Str. 1072. Lee See Hughes v. Wilson, 1 Starkie, v. Meecock, 5 Esp. N. P. C. 177. N. P. C. 179. Ch. G.] Of Public Writings, not Judicial. 417 entry in the day-book, representing the plaintiff as illegitimate, had been signed by the reputed father or the mother, or made under their direction, such evidence would have been admis- sible as the declaration of a deceased parent on a question of legitimacy : but if, on the other hand, in the absence of such proof, the entry appeared to be merely a private memorandum, kept for the purpose of assisting the clerk to make up the register, (and of that nature it seems here to have been con- sidered,) in that case it could not be received as the original authenticated entry. The rolls of a court baron (which is the court of the free- Roll* of ma- holders,) or of the customary court (which is the copyholders' court,) are evidence between the lord of the manor and his copyholders or tenants. They are the public documents, by which the inheritance of every tenant is preserved, and the records of the manor couit, which was anciently a court of justice relating to all property within the manor. (1) So ancient writings, not properly court rolls, but found among the court rolls, and delivered down from steward to steward, purporting to be made " assensu omnium tenentimn" have been admitted as evidence to prove the course of descent within a manor : and this, although they were not signed by any of the tenants. (2) And an entry in the court rolls, stating the several customs within the manor as found by the homage, and regulating the descent of the several species of tenure, was in another case admitted to be good evidence of the mode of descent, although no instances were shewn of any tenant having in fact so taken under the custom. (3) " It cannot be doubted," said Lord Kenyon, " that this evidence was admissible, for tradition and the received opinion are the lex loci. Here was full proof of a tradition respecting the custom of descent in this manor ; it was the solemn opinion of twenty-four homagers, who are the constitutional judges of (1) Gilb. Ev. 67. 4 T. R. 670. (3) Roe, dem. Beebee, v. Parker, (2) Denn.dem. Goodwin, v.Sprav, 5 T. R. 26. Roe, dem. Bennett, v. l T. R. 466. 473. Jeflery, 2 Maule & Selw. 92. VOL. I. E E 1<1S Of Public Writings, not Judicial. [Ch. 6. the court, delivered on an occasion when they were discussing the interests of all the tenants of the manor." Upon the same principle, in an action by a copyholder against a freeholder of a manor for surcharging the com- mon, an old writing, found among the muniments of the manor, and purporting to be signed by many of the copy- holders, stating that the commoners of the manor had an ancient unlimited right of common, but that they had agreed to a certain stint, was held admissible evidence of the imputa- tion of the manor at that time, as to the general prescriptive right of common, against the limited right insisted on by the plaintiff; and although it was not proved that the instrument had been signed by a majority of the copyholders, or that the plaintiff held the copyhold tenements under any one of those who had signed, yet that circumstance could not affect the admissibilty of the instrument, which was offered in evidence, not on the footing of an agreement, but as evidence of tradi- tion and the received opinion within the manor. (1) Terriers. Terriers are of two kinds, temporal and ecclesiastical. It has been established by a variety of cases, that old terriers or surveys of a manor, are evidence of manorial tenures or boundaries. (2) And an ecclesiastical terrier is evidence of the possessions of a church, if it has been regularly made, and preserved in the proper repository. Ecclesiastical terriers are constantly received in questions of tithes : they are ecclesi- astical records, made in perpetuam rei ?nemoria?n t and are as solemn instruments as any that can be produced on such subjects. (3) By the ecclesiastical canons, an enquiry is directed to be made, from time to time, of the temporal rights of the clergyman in every parish, and to be returned into the registry of the bishop. This return, which is generally (l) Chapman v. Cowlai), 13 East, (2) Gilb. Ev. 69. 10. (5) 5 Price, 380. 385. Ch.fi.] Of Public Writings, not Judicial 419 signed by the minister, is denominated a terrier, and de- rives its authority from being found either in the bishop's register office ( 1 ), or the registry of the archdeacon of the diocese. (2) Unless it comes from one of these repositories, it cannot, in general, be admitted in evidence. A paper, there- fore, purporting to be a terrier, found in the charter-chest of a college, which had property in the parish, was thought to be inadmissible to disprove a modus. (3) However, under particular circumstances, this rule respect- ing the custody of the terriers has been relaxed, and a terrier has been admitted, though not brought from one of the regu- lar repositories, when the custody in another place has been satisfactorily explained. One that was found in the registry of the dean and chapter of Lichfield, has been admitted in evidence against a prebendary. (4) This evidence was reject- ed at the trial ; but a new trial was afterwards granted by the Court of King's Bench, on the ground, that the evidence ought to have been received, as there appeared to be a proper connection between the terriers and the place where it was found ; and a strong corroborating circumstance was, that the terrier was found annexed to an old lease of the prebend, of nearly the same date. (5) But when the custody is merely private, and unconnected with the subject-matter, the courts have never gone the length of admitting such papers in evidence. An instrument, therefore, purporting to be an endowment, without the seal of the bishop, and another pur- porting to be an Inspeximus of the former under his seal, were rejected, because they came out of the hands of a private person entirely unconnected with the matters contained i:i them. (6) (1) Atkins v. Hatton, 4 Gwill. (3) 4 Gwill. 1406. 1406. 2-Anstr. 386. S. C. 4 Gwill. (4) Miller v. Foster, 4 Gwill. 1595. 1406. n. and see Bullen v. Michel, (2) Potts v. Durant, 4 Gwill. stated in ch. S. s. 2. infra. 1450. 1454. 5 Anstr. 789. S.C. See (5) j Gwill. 145.3. Drake v. Smyth, supra, p. 408.(2). (6) Potts v.-Duraot, 4 Gwill. 1450. K E 2 420 Of Public Writings, not Judicial [Ch. 6. For the same reason, before ancient grants can be ad- mitted as evidence of private rights, the custody, in which they have been kept, ought to be satisfactorily explained. In a late case, a grant to an abbey, contained in a manuscript en- titled " Secretum Abbatis" in the Bodleian library at Oxford, was rejected, as not coming from the proper custody ( 1 ) ; and, on the authority of this case, Mr. Justice Lawrence held, that an old grant to a priory, brought from the Cottonian manuscripts in the British Museum could not be received, as it was not shewn that the possession of the grant was connected with any person, who had an interest in the estate. (2) A terrier is strong evidence against a parson; but it is never admitted for him, unless it be signed by a churchwarden, or, if the churchwardens are nominated by him, by some of the substantial inhabitants of the parish. (3) Old terriers signed by the rector, churchwardens, and other inhabitants of the parish, are evidence for a succeeding rector against the land-owners, on a question of farm-modus, although they are not proved to have been signed by occupiers of the farm, or by any persons from whom the land-owners derive title. (4) Terriers are generally signed by the minister of the parish : but this does not appear to be essentially necessary. In a late case (5), on a bill filed by a vicar against the impropriatrix of a rectory, for agistment tithe, a terrier was given in evidence, on the part of the vicar, signed only by the churchwardens ; it was objected, first, that it was not a terrier, because made (1) Michell v. Rabbets, cited 3 (5) Bull. N. P. 248. Earl v. Taunt. 91. See Bullen v. Michel, Lewis, 4 Esp. N. P. C. 5. stated infra; and see infra, ch. 8. s. 2. (4) Mytton v. Harris, 5 Price, 19. on the custody of documents. Wood B. contra. (2) Swinnerton v. Marquis of (5) Illingworth v. Leigh, 4 Gwill. Stafford, 3 Taunt. 91. Earl \. 1615. Potts v.Durant, 5 Anstr. 796. Lewis, 4 Esp. N. P.C. 1. Ch. 6.] Of Public Writings, not Judicial. 421 by the churchwardens alone, and not signed by the vicar; secondly, even supposing it to be a proper terrier, yet that it could not be admitted in evidence in that cause against the rector, as it was not signed by any person claiming under, or on the part of, the rector. However, the court were of opinion, that the terrier was admissible; that such imperfect terriers were now uniformly received ; that the terrier in ques- tion was signed by persons who were in no respect interested, and whose duty it was, from their official situation, to sign it ; and that the want of the vicar's signature made it stronger evidence in favour of his successor. The ancient books of the heralds' office ( 1 ), and their visit- HeraltU' ation-books of counties (2), are evidence on a question of books * pedigree. The visitation-books contain the pedigrees and arms of the nobility of the kingdom from the twenty-first year of Henry VIII. to the latter end of the seventeenth century, during which period the two provincial kings of arms, soon after their investiture in office, usually received a commission under the great seal, authorizing them to visit the several counties within their respective provinces, " to take survey and view of all manner of arms, cognizances, crests, and other like devices, with the notes of the descents, pedi- grees, and marriages of all the nobility and gentry therein contained ; and also to reprove, control, and make infamous by proclamation, all such as unlawfully and without jusfe authority usurp or take any name or title of honour or dignity." The first of these commissions was issued in the twenty-first year of Henry VIII., and the last in the second of James 11.(3) From these visitation-books, entries were afterwards made into the books kept at the College of He- ralds. (1) King, dem. Lord Thanet, v. (3) See First Report of the House Foster, 2 Jon. 224. of Commons on the Public Records, (2) Pitton v. Walter, l Str. 161. p. 82. Appendix, (c. 8.) Matthews v. Port, Comb. 65. E £ 3 422 Of Public Writings, not Judicial [Ch. 6. Pope's bull. A licence from the Pope, granted in the reign of Ed- ward II., has been adjudged, in an old case, to be evidence of an impropriation, the Pope being formerly the supreme head of the church, and having the disposition of all spiritual benefices. (1) For the same reason, a Pope's bull was for- merly admitted in evidence, to shew that monastery lands had a special exemption from the payment of tithes. (2) Corporation Corporation-books, containing an account of the privileges books. or p U |)jj c transactions of the body, are evidence in a suit be- tween the several members, on the same footing as manor- books between the tenants of a manor. But they are not evidence in favour of a corporation to support a claim of right against a stranger (3) ; as, where a right to certain tolls is claimed by a corporation, entries in the corporation-books, respecting payments made by individuals in former times, are not admissible, on the part of the corporation, against a party who contests the right to tolls (4) ; for such entries relating to the private interests of the corporation, and being of a private nature, cannot be evidence for the party to whom the books belong. But on a question of public right, such as the right of swearing and admitting freemen, &c, corporation-books are admissible. (5) The books of a corporation cannot be admitted in any case, unless shewn to have been regularly kept by the proper officer of the corporation. On an information in the nature of a quo warranto, the prosecutor produced in evidence a book written by the prosecutor's clerk, not an officer of the corpor- ation, which appeared to be only minutes of corporate acts done some years before, and was not kept as a public book of (1) Cope v. Bedford, Palm. 427. (4) Maniage v. Lawrence, 5 Barn. (2) Lord Clanricard's case, Pain:. & Aid. 142. Another case, to illus- 37. trate the same principle, is R. v. (3) 1 H. Black. 214. n. (c), Mayor Debenham, 2 Barn. & Aid. 185. of London v. Mayor of Lynn. In (5) Case of Gibbon, upon a quo the case of the Mayor .] Of Public Writings, not Judicial. Y23 the corporation : this evidence was rejected at the trial, and, on a motion afterwards for a new trial, the Court held that it had been properly rejected. " Corporation-books," the Cour* said, " are generally allowed to be given in evidence, when they have been publicly kept as such, and when the entries have been made by the proper officer ; not but that entries made by other persons may be good, if it be shewn that the town-clerk is sick, or refuses to attend." (1) "A general hist ory may b e admitted;" says Mr. Justice Buller, Histories. *^to prove a matter relating^ to the kingdom at large." (2) Thus, in the case of St. Katharine's Hospital, Lord Hale allowed Speed's Chronicles to be evidence of a particular point ol history in the time of Edward III. (3) And the same book was admitted as evidence of the death of Edward the Second's queen, in the case of Lord Brounker v. Sir R. Atkins (4), where Ch. J. Pemberton said, he knew not what better proof they could have. Histories^ however, it is admitted, cannot be_jt^ceiy^d_as_prqof _of a priva te right or particular custojm (5) Camden's Britannia was therefore rejected on an issue, whether by the custom of Droitwich salt-pits could be sunk in any part of the town, or only in a certain place. (6) And in another case, where the question was, whether a particular abbey was of the inferior order, Dugdale's Mo- nasticon was refused, because the original records might be had in the augmentation-office. (6) So, it has been de- termined, that Dugdale's Baronage is not evidence to prove a descent. (7) With regard to the proof of entries in public books, it is Proof of entry now clearly settled, that wherever an original is of a public !" 'I 11 .' lc nature and admissible in evidence, an examined copy will (1) R. v. Mothcrsell, 1 Str. !)2. (4) Skin. 14. 12 Vin. Abr. Evidence, (A. b. 15.) (5) Bull. N. P. 248. Cockman pi. 16. 17 Howell, St. Tr. 854. Mather, l Barnardist. 14. (2) Bull. N. P. 248. (61 1 Salk. 282. Skin. 623. (3) i Vent. 151. Stabler v. Bur- ^7) Piercey's case, 2 Jon 164. pesscs of Droitwich, 1 Salk. 282. Skin. 623. S. C. E E 4 424 Of Public Writings, not Judicial. [Ch. 6. equally be admitted^ ( 1 ) This rule is necessary, as well for the security of the document, as for the convenience of the public. Examined copies, therefore, of entries in the Journals of the Lords or Commons (2), or of entries in the Council-book in the Secretary of State's office (3), or of entries in the Bank books (4), or in thg_bgo.ks__ o£ the East-India ^ConuJany (5), and examined copies of entries in parish registers, or in the books of assessments made by the commissioners of land- tax (6), or in the books of the commi ssioners of excise ( 7), or in the court-rolls of a manor (8), or in poll-books of an elec- tion of mayor or member of parliament (9), and examined copies in other cases of the same kind, have been admitted in evidence, when th e original books themselves would have been admissible. But where an original is of a private nature, a copy will not be evidence, unless the original is lost, or de- stroyed, or in the possession of the opposite party. Thus, the copy of an old letter, brought from the chest of a corporation, has been refused. (10) In one case, indeed, where the o rigin al was kept in the Bodleian li brary at O xford^ and by the sta- tutes of the university not removable, an examined copy was allowed to be given in evidence (11); the Court admitted the case not to be within the general rules of evidence, but, under the particular circumstances, permitted the copy to be read. (1) Holt C. J. in Lynch v. Clerke, 5 Salk. 153. R. v. Haines, Comberb. 537. Skin. 583. S. C. (2) Jones v. Randal, Cowp. 17. R. v. Lcl. G. Gordon, 2 Doug. 595. The printed journals are not evi- dence. See supra, p. 406. (2). (5) Eyre v. Palsgrave, 2 Campb. 606. (4) Marsh v. Colnet, 2 Esp. N. P. C. 665. Breton v. Coape, Peake, N. P. C. 50. (5) 2 Dong. 593. n. (3). (6) R. v. King and others, 3 T. R. 234. (7) Carth. 346. R. v. Commis- sioners of Land-tax, 2 T. R. 234. (8) Tuckey v. Flower, Comberb. 137. R. v. Haines, ib. 537., by Holt C. J. Doe, dem. Churchwar- dens of Croydon, v. Cook, 5 Esp. N. P. C. 221. Doe, dem. Benning- ton, v. Hall, 16 East, 208. (9) Mead v. Robinson, Willes, 424. (10) R. v. Gwyn, 1 Str. 401. (11) Downes v.Moreman, 2 Gwill. 659. Bunb. 189. S. C. Ch. 7.] Of the Inspection of Public Writings. 425 CHAP. VII. Of the Inspection of Public Writings. T^HE judicial records of the king's courts are safely kept for Records the public convenience, that any subject may have access to them for his necessary use and benefit ; which was the an - cient lawof England, and is so declared by an act of parliament in the forty-sixth year of Edward III. ( 1 ) Some restriction, however, of the general right of inspect- Copy of i»- ing records has been thought necessary in the case of an ac- quittal on a prosecution for felony; in which case, if the trial is at the Old Bailey, a copy of the indictment cannot regularly be obtained without an order from the court ; and it is a com- mon practice, on the circuits, to apply to the court for a copy at the time of the trial. This practice appears to have been first adopted at the Old Bailey, in pursuance of an order made by some of the Judges, for the regulation of those sessions in the twenty-sixth year of Charles II. (2) It was then ordered " that no copies of any indictment for felony be given without special order, upon motion made in open court, at the general gaol delivery : for the late frequency of actions against prose- cutors, which cannot be without copies of the indictment, deterreth people from prosecuting for the king upon just occa- sions." And Lord Holt has laid it down as a general rule of law, that if a person be indicted for felony and acquitted, and means to bring an action (without sufficient cause), the Judge will not permit him to have a copy of the record, and he can- (1)3 Inst. 71. Pref. to 3d Rep. said, that, by the laws of the realm, p. 5, 4. See Sir R. Grahme's Trial, every prisoner, upon his acquittal, 1 2 Howell's St. Tr. 659. has an undoubted right and title to (2) Directions for Justices at the a copy of the record, for any use Old Bailey, prefixed to Kelyng's which he may think fit to make of Rep. p. 3., order 7. See Brangam's it; and that, after a demand, the case, 1 Leach, Cr. C. 32. In this proper officer might be punished for case, Willcs C. J. is reported to have refusing to make out a copy. K'G Of the Inspection of 'Ptcblic Writings. [Ch. 7. not have a copy without leave. (1) In the case of Vander- comb and Abbott (2), the prisoners after their acquittal applied for copies of the several indictments, for the purpose of assisting them in their plea of autrefois acquit : the court, however, refused to grant them copies, but ordered the officer to read over the indictments slowly and distinctly, which was accordingly done. The rule of the Judges states, that an action against a pro- secutor cannot be maintained without a copy of the indictment, and that a copy is not to be given without an order from the court ; but it is not to be inferred from this, that an order is essentially necessary for the introduction of a copy in evidence, or, if a copy were offered to be produced without an order, that it could on that account be properly rejected. The ad- missibility of such evidence has been determined in the case of Legatt v. Tollervey. (3) On the part of the plaintiff, in that case, the clerk of the court of quarter sessions, before which the indictment had been tried, produced a copy, which for want of an order was not allowed to be read ; and the plain- tiff was in consequence nonsuited. But the Court of King's Bench were of opinion, that the evidence ought to have been received, and set aside the nonsuit. " It is very clear," said Lord Ellenborough C. J., " that it is the duty of the officer, charged with the custody of the records of the court, not to produce a record but upon competent authority, which at the Old Bailey is obtained upon application to the court, pursuant to the order that has long prevailed there ; and, with respect to the general records of the realm, upon application to the Attorney-General. But if the officer, even without authority, shall have given a copy of a record, or produce the original, and that is properly proved in evidence, I cannot say that such evidence shall not be received. He may incur the penalty of his contempt of the court, and may be warned, at (l) In the case of Dr. Groenveltv. (2) 2 Leach, Cr. C S21. Dr. Burwell and others', 1 Ld. Raym. (3) H East, 302. •J 55. Ch. 7.] Of the Inspection of Public Writings. 427 the time, of his peril in so doing, and a discreet officer placed in such a situation would, before he produced the record, or gave a copy of it, apply to the court, and state the circum- stances ; and it cannot be doubted, that he would be saved harmless in doing what, after such disclosure, the court should order him to do. But still I cannot help thinking, that the rule laid down by Lord Ch. J. Lee, in the case of Jordan v. Lewis ( 1 ), is the correct rule. The order made at the Old Bailey was there read by way of objection to the evidence offered, but the Chief Justice in that case said, that he could not refuse to let the plaintiff read the copy of the indictment, though obtained without any order of the court for that purpose." The rule, which ha s been before mentioned, is confined to cases of felo ny. In prosecutions for misdemesnors, the defendant is still entitled to a copy of the record, as a matter of right, without a previous application to the court. (2) So, in the case of a conviction by a magistrate, the defendant is entitled to a copy of the conviction, in order to defend himself against an action for the same offence ; and if it should be refused, and the defendant in consequence sue out a writ of certiorari, merely for the purpose of procuring a copy and making his defence, the magistrate will be compelled to pay his own costs of returning the conviction. (3) The conviction may be drawn up at any time, before the return to the certiorari or the sessions, though after a commitment (4), or after the levying of the penalty. (5) And the conviction returned to the sessions, or to the Court of King's Bench, is the only one, of which those courts will take judicial notice. (6) (1) 2 Stra. 1122. 14 East, 305. (.3) R. v. Midlam, 3 Burr. 1721. n. (a), S. C. reported from Mr. Ford's (4) Massey v. Johnson, 1 2 East, MS. 67. 82. 16 East, 20. (2) Morrison v. Kelly, 1 Black. (5) R. v. Barker, 1 East, 186. Rep. 585. Evans v. Phillips, re- (6) Ibid. 188. ported from MS. in Selw. Ni. Pri. 952. 4<2S Of the Inspection of Public Writings. [Ch. 7. Inspection of depositions. A defendant on a criminal charge, is not entitled to an in- spection of the grounds, up on which the prosecution has-been instituted. In some species of treason, indeed, the prisoner is entitled to a copy of the indictment, a privilege not al- lowed by the common law, but conferred by act of parliament ; but neither in cases of treason jior of felony, has he any right to a copj^pOhe^e^ositions of witnesses, who are to appear aga inst hum So, when informations are filed by the Attor- ney-General, on depositions taken under the excise laws, the defendant is not allowed to inspect those depositions. And in a case where an information was filed against an officer of the East-India Company, on charges of delinquency founded upon the report of a board of inquiry in India, the Court of King's Bench were of opinion, that the defendant had no right to have an inspection of that report, and that the court had no discretionary power to grant it. (1) " The practice on indictments at common law, and on informations upon particular statutes," said Mr. Justice. Buller on that occasion, " shews it to be clear, that the defendant is not entitled to inspect the evidence, on which the prosecution is founded, till the hour of trial." Proceedings of inferior jurisdictions. The right of inspecting the proceedings, of inferior juris- dictions is more limited. It cannot be necessary for the in- terests of the public, that they should be open for inspection to all persons without distinction ; but, on the other hand, it seems reasonable, that, in any suit, where the regularity of those proceedings may come into question, a party should have the power of taking a copy of such, as have been insti- tuted against himself. In an action of trespass and false im- prisonment, brought by the plaintiff, who had been sued in the court of conscience in London, the Court of King's Bench allowed the plaintiff to inspect the proceedings, so far as they related to the suit against himself, on the ground that every one has a right to look into the proceedings to which he is a party. (2) In another case, where the plaintiff, (1) R. v. Holland, 4T.R. «I. (2) Wilson ?. Rogers 2 bU. I34S. Ch.70 Of the Inspection of Public Writings, 4^9 having been fined for neglect of duty, as an under-officer to the commissioners of lieutenancy for the city of London, brought an action of trespass against the defendant for dis- training upon him, the court granted the plaintiff a rule for inspecting and taking copies of the rates and assessments made by the commissioners. ( I ) On the same principle, in an action for a malicious prosecution and false imprisonment, the plain- tiff may obtain a rule for a copy of the information, upon which he was committed ; and, as the original itself ought to be produced at the time of the trial, the court will also grant a rule, calling upon the committing magistrate to cause it to be produced. (2) A different rule, however, was adopted by the court in the case of Dr. Groenvelt v. Dr. Burwell (3), and in Abery v. Dickenson. (4) 1. The first of these cases was an action for false imprison- ment against the defendants, who justified as censors of the college of physicians by virtue of their charter, by which charter they have power to fine and imprison pro non bene utendo facultate medicincc ; they then set forth, that the plain- tiff at such a time and place had administered unwholesome medicines to A. B., and so justified the taking and imprison- ing. The counsel for the plaintiff moved, that the regi strar of the college shoul d permit the plaintiff to have copies of t he proceedings and judgment, to enable him to reply t o the de- fendant's plea in justification; and, in support of the application, it was said, that the plaintiff was a party to the judgment, and therefore had a right to a copy, and that it is the usual practice, if an action is brought for a false return to a mandamus, upon which the party is returned to be disfranchised, that the King's Bench will make an order for the plaintiff to have recourse to (1) Edwards v. Vescy, Rep. temp. 1 Stra. 304.; and R. v. Commission- Hard. 128. ers of Land-tax, 2 T. R. 2,"4. (2) R. v. Smith, l Stra. 126. (3) 1 Ld. Rayni. 253. 454. Cartli. Welch v. Richards, Barnes, 46S. 421. 491. S.C. S. P. See also Herbert v. Ashbunier, (4) Say. 25o. l Wik 297. Moodv v. Thurston, 130 Of the Inspection of Public Writings. [Ch. 7- the public books. But the court refused a rule, saying, (as Lord Raymond reports the case,) " that they could not oblige the college of physicians to permit the plaintiff to have a copy of their proceedings ; for they act in a judicial manner, by au- thority of an act of parliament ; and therefore it shall be pre- sumed that they have done right." The report of this case by Carthew differs materially from that by Lord Raymond. Car- thew reports, that the court admitted the rule, for inspecting the proceedings, to be usual for the sake of evidence, after issue joined, but not by way of assisting the party to plead. The reason given in Lord Raymond's report (namely, " that the proceedings must be presumed to be regular, since the college acted in a judicial manner, by authority of an act of parlia- ment,") seems to proceed upon the supposition, that the pro- ceedings were truly and correctly set out in the defendant's plea; and on a demurrer, (which admits all the facts in justi- fication), that reason would have been conclusive ; it might then have been justly said against the demurrer, that, the de- fendants having shewn their authority over the plaintiff, and the fact, for which he had been punished, being within their jurisdiction as censors, and not traversable in this collatei'al suit, they could not be liable to an action for what they had done within the limits of their jurisdiction, and in the discharge of their judicial powers. But if, instead of demurring, the plaintiff, in such a case, had admitted the warrant under which the defendants arrested him, and replied that " they had com- mitted the trespass of their own wrong and without the residue of the cause alleged in their plea," it would then have been competent for him to shew, that the defendants had exceeded their jurisdiction ; and, for the purpose of enabling him to be prepared with this defence, the plaintiff seems to have been entitled, at least after issue joined, to an inspection of such proceedings as had been instituted against himself. 2. In the other case, of Abery v. Dickinson (1), which was an action of trespass against the defendant for taking a distress 250. Ch. 7.] Of the Inspection of Public Writings. 431 for a penalty, under an order of certain commissioners, the Court of King's Bench is reported to have refused the rule, on the ground, that the commisioners were not parties to the suit. The same objection might have been made in the other cases, which have been before cited (1); but the court there allowed an inspection, (although the persons, who had the custody, were not parties to the suit,) because, the plaintiff, who applied for the rule, was the object of the proceedings, under which the defendant had acted. Parish-registers, b ooks of the India C ompany relating to Pamh-regis- the transfer of stock, books of the Bank, &c, are for some public books. purposes considered as public book s ; and persons, interested in them, have a right to inspect and take copies of such parts, as relate to their interest. (2) So the books of the commis- sioners of the lottery, and their numerical lists, are of a public nature ; and kept by the commisioners in trust for the ticket-holders, who are entitled to an inspection, by rule of court. (3) ^Access is not allowed to such ^parish-books^ as are kept only for the private use of the parish, and relate to their pri- vate interests. An inspection was for that reason refused, in an action of ejectment by an impropriator against the church- wardens of a parish, where a rule was applied for, on the part of the plaintiff, suggesting, that the parish-books would make the titles appear, and that they were the common books belonging to the parish at large : but the court were of opi- nion, that, when the person claims a distinct interest from that of the parish, it is not reasonable to compel the parish to discover their title by shewing their books, which are kept only for their own use. (4) For the same reason, a public (1) See cases cited in p. 429. (4) Cox v. Copping, 5 Mod. 595. (2) Geery v. Hopkins, 2 Lord 1 Ld. Raym. 557. Lewis v. Baker, Raym. 851. Warrinerv. Giles, 2 Stra. 1 Barnardist. 100. Turner v. Ge- 954. Mayor of London v. Svvin- thin, Vin. Ab. tit. Evidence, (F. b.) land, 1 Barnardist. 454. pi. 11. As to the inspection of the (5) Schinotti v. Bumstcad and proceedings before commissioners of others, cited from a MS. case in bankrupt, see vol. ii. p. 2. c. 4. 2 Tidd's Prac. 5VG. 432 Of the Inspection of Pulbic Writings. [Ch. 7. company will not be compelled to produce any books relating to their private transactions. ( 1 ) Nor will access be granted to the books of public offices, in collateral actions brought by persons who have no interest in the books ; therefore, in a qui tarn action for penalties against a clerk in the post-office, for interfering in the election of a member of parliament, the prosecutor was not allowed to have a rule for inspecting the books of the post-office, as the cause did not relate to any transaction in the post-office, for which transactions alone those books are kept. (2) Nor will the court grant a rule for inspecting the custom-house_books, for the purpose of furnishing evidence in an action betweentwo_p_er- sons, who have no interest i n th e subject-matter, concerning the amount of a particular branch of the public revenue. (3) Rolls of The court-rolls of a manor are kept in the custody of the lord or his steward, not for the use of the lord alone, but as the common evidence of the manorial rights, to which evi- dence all the tenants of the manor, whether copyhold or free- hold, have an undoubted right of access, as well in actions between the tenants and the lord, as between the tenants them- selves (4); and it is now a matter of course to grant ji rule for the inspection of the court-rolls and ancient writings ofa manor, on the application of a tenant, who has been refused by the lord. This privilege of inspection is confined to the tenants of the manor, and does not extend to third persons, who have no con- cern or connection with the manor-court or the court-rolls. Thus, in an action of trespass, where the question was, whether the place, in which the trespass was alleged to have been com- (1) Shelling y. Farmer, 1 Stra. (4) Roe v. Aylmer, Barnes, 236. 646. Murray v. Thornhill, 2 Stra. Hobson v. Parker, ib. 257. Adding- 717. ton v. Clode, 2 Black. Rep. 1030. (2) Crew q. t. v. Blackburn, cited Folkard v. Hemet, ib. 1061. R. v. 1 Wils. 240. 2 Stra. 1005. S. P. Shelley, 3 T. R. 141. R. v. Lucas, (3) Atherfold v. Beard, 2 T. R. 10 East, 235. Bateman v. Phillips, 614. 616. 4 Taunt. 162. Ch. 7.] Of the Inspection of Public Writings. 4S3 mitted, was within the manor of the plaintiff, or part of a manor claimed by the defendant, the court held, that the de- fendant, who, as it appeared from his affidavit, was not a tenant of the plaintiff's manor, nor claimed any interest under him could not be entitled to an inspection. (1) And it maybe laid down as a general rule, that where the question is on the c us- tom of a manor between the lord and a stranger, the lor d will not be obliged to let him have an inspection of the rolls, be- cause, in a dispute with a stranger, they may be considered as his private evidence; but if the dispute is between tenants of the manor, or between the lord and a tenant, the lord shall produce the roll, and permit copies to be taken. Corporation-books are open to the members of the corpor- Cornoration- ation, as court-rolls a re to the tenants of a manor. * Thus, b ' where a mandamus h ad been granted to admit a person into a c orpor ation, and by the return it appeared to be a question, whether the master, under whom he had served, had been ad- mitted to his freedom in the corporation, a rule wasjnoy ed for, on the part of the pe rson claiming admissio n, to inspec t the books of theco rporation j and the court held that every mem- ber has a right to inspect and take copies of corporation-books for any matter that concerns himself, even in a dispute with strangers ; but, as the return had pointed out the necessity of inspecting them for a particular purpose, the rule should be confined to such books as contained the admissions of free- men. (2) So, where an information in the nature of a quo (l) Talbot v. Villeboys, cited Bunb. 269. Attorney-General v. from MS. by Buller J. 3 T. R. 142. City of Coventry, Bunb. 290. Smith v. Davies, 1 VVils. 104. Bp. (2) R. v. Fraternity of Hostmcn of Hereford v. Duke of Bridgewater, in Newcastle, 2 Str. 1222. * By stat. 32 G. 5. c. 58. s. 4. a penalty of a hundred pounds is incurred by any officer of the corporation, having the custody of the corporation records, who shall refuse to allow any other officer or member to inspect books and papers, wherein are entered the admission or swearing in of the freemen, burgesses, or members of the corporation, and to take copies or minutes of such admission, &c. Books, containing orders for the admission and swearing in of the burgesses, are not within the provisions of the sta- tute. Davies v. Humphreys, 3 Maule Sr. Selw. 223. VOL. I. V F 434 Of the Inspection of Public Writings. [Ch. 7. warranto had been obtained, jit the relati on of corporators, against a person charged with unlawfully holding a corpor- ation-office, the court held, that these relators were entitled to inspect the books, and that the rule should be limited to the inspection of such papers, as related to the subject-matter in discussion. ( 1 ) This right of inspecting the muniments of a corporation is confined to the members of the corporate body. A stranger has no better right to inspect corporation-books, than to in- spect the books of any private person. On a prosecution against a person for practising physic, (not being a member of the college of physicians, nor having a licence, nor being a graduate of either university,) the defendant moved for leave to inspect the book of the college of physicians, but the court refused to grant the rule, as the defendant, who was not a member, had no right to see the books. (2) And in an action of trespass, where the defendant justified under a corporation for distraining for a toll, the court refused a similar rule to the plaintiff, who was a stranger to the corporation. (3) A dif- ferent practice was at one time introduced in courts of law (4), upon the ground, that, on filing a bill for disclosure in a court of equity, an inspection would be granted as a matter of course, and that it would only cause unnecessary expense to send the parties into that court. But this practice, which was not warranted by earlier authorities (5), nor conformable to the practice of courts of equity, has been long discontinued ; and the rule of law, now established, is, that in disputes be- tween several members of a corporation an inspection of the corporation-books will be granted, because each has a right to (1) R. v. Babb, 3 T.R. 579. Crew of Southampton v. Graves. 8 T. R. q. t. v. Saunders, 2 Str. 1005. Cor- 590. poration of Barnstaple v. Lathey, (4) Mayor of Lynn v. Denton, 3 T. R. 503. Young v. Lynch, 1 T. R. 639. Corporation of Barn- 1 Black. Rep. 27. staple v. Lathey, 5 T.R. 305. (2) Dr. West's case, cited l Wils. (5) Dr. West's case cited, 1 WiK. 240. Allan v. Tapp, 2 Black. Rep. 240. R. v. Dr. Bridgeman, 2 Str. S50. 1203. Mayor of Exeter v. Coleman, (3) Cited by De Grey C. J. in Barnes, 23S. Hodges v. Atki-, Hodges v. Atkfs, 3 Wils.598. and by 3 Wils. 598. Lawrence J. in s T. R. 594. Mayor Ch. 70 Of the I?ispection of Public JVrithigs. 435 see them : but an ins pection will not be granted in die case of a corpor ation, wh en a similar inspection would_ be refused, if jhe suit were between private persons. No distinction is to be made, in this respect, between a corporation aggregate and a corporation sole, nor between a corporation sole and a private person suing in his individual capacity. ( 1 ) The rule for ins pecting court-rolls, corporation-books, and Inspection othe r public writings, will not be allowed, where the party, who w "i 0t , has them in his custody , would, by pr oducing them for in- spection, disclose any evid ence of a crimi nal nature^ or expose himself to a pr osecutiqn. On an information, therefore, against several persons, for executing an office of trust without taking the oaths, the court refused a motion for leave to inspect some books kept by the defendants, in which they had entered their elections, receipts, and disbursements, as it would have com- pelled them to give evidence against themselves in a criminal prosecution (2) ; and a similar motion was refused, on an in- formation against two overseers for making a rate without the concurrence of the churchwardens. (3) Another case to the same effect is the case of the King v. Dr. Purnel (4), where, on an information against the defendant for a misdemeanour in his office of vice-chancellor of the university of Oxford, a rule for taking a copy of the university-statutes, in the care of the keeper of the archives, was refused by the Court of King's Bench, after great consideration ; and the principle, that no man shall be bound to accuse himself, was fully recognized. This principle will not apply; to the case of informations in the nature o f a quo xvarranto^ for usurping a franchise or intruding into a corporation-office ; for such informations, although ori- ginally and strictly criminal methods of prosecution, are applied to the purpose of trying civil rights, and are considered at pre- sent as merely civil proceedings. On an information, there- fore, exhibited at the relation of a member of a corpor- (1) 8 T. It. 593. (5) R. v. Lee, cited 1 Wils. 240. (2) R. v. Mead, 2 Ld. Raym. 927. (4) 1 Wils. 239. 1 Black. Rep. 37. R. v. Worsingham, 1 Ld. Raym. 705. R. v. Heydon, 1 Black. 35t . R. v. Cornelius, 2 Str. 1210. F F 2 430 Of the Inspection of Public Writings. [Ch. 7« ation, against a person for unlawfully executing an office, the relator, who as member has a right and interest in the books of the corporation, may obtain an inspection and copy of such, and of such only, as relate to the subject-matter in discussion . ( 1 ) In a case very lately before the Court of King's Bench (2), an action having been brought for a libel contained in a writ- ten statement, which the defendant had drawn up respecting the plaintiff's conduct, the defendant applied for a rule to inspect certain documents, belonging to the parish, then in the plaintiff's possession, from which documents he had drawn up his statement by the authority of the vestry. The inspection was required, with the view of enabling the defendant to jus- tify in the action. But the court refused to order the plain- tiff to furnish evidence against himself: if the papers, the court added, had been wanted for the purpose of advancing any parochial right, the case would have been different. How to obtain inspection. The motion for a rule to inspect and take a copy, where an action is depending, is founded on an affidavit statingj the ci r- cumstances, under which the inspection is claimed, and stating further, that an application has been made in the proper quar- ter, for permission to make the required inspection, which has been refused. (3) Where a motion for a mandamus, or for an information in nature of a quo warranto in a corporation, is depending, the court will grant a rule absolute in the first instance. (4) But whe n th e motion is for a writ of mandamus to i nspec t, grounded upon affidavits, the ru le, then to be^ granted, is only a r ule to shew cause. With regard to the proper stage of the proceedings for making the application, it may be observed, that the court has refused the motion in an action against a corporation upon a right of toll, because issue was not joined, so that it could not (1) R. v. Babb, .5 T. R. 579. i'2) May v. Gvvynne, 4 Rani. & Aid. 301. (3) Roe v. Avlniar, Barnes, 256. {••') R. v. Shelley, 3 T. R. 141. Ch. 7«] Qf the Inspection of Public Writings. iSJ appear, whether an inspection would be necessary. ( 1 ) And in the case of Dr. Groenvelt v. Burwell, before mentioned, where the plaintiff applied for a copy of the proceedings, instituted against him by the college of physicians, the court admitted the rule for inspecting the proceedings to be usual, for the sake of evidence, after issue joined, but not by way of assisting the party to plead. (2) If a rule has been granted to shew cause, why a mandamus should not be awarded, the court will not make a rule for inspecti ng^ and taking copies, until t he first ru le is made absolute, and a return is made to the mandamus (3) ; and it has been thought the most conve- nient practice, wher e a rule nisi for a quo warranto information has been obtai ned, not to jgrant an inspection, until the inform- ation isjp'an ted .. ( 4 ) If no action is depending, the proper mot ion is for a rule t o shew c ause, why a writ of mandam us shou ld not issue, com- manding the officer , who has the custody of the books, to per- jnit the party to i nspect and take a cojay. The affidavit, upon which this motion is founded, ought to state clearly the right, under which the inspection is claimed, and that the inspection has been refused. In a case of this kind, where an inspection of the court-rolls of a manor was applied for, the party stated in his affidavit a "prima facie title to a copyhold of the manor ; and the Court of King's Bench held, that, as he was clearly entitled to the copyhold, unless it had been conveyed away by those under whom he claimed, he had a right to see, whether any such conveyance appeared on the rolls, and the court therefore made the rule absolute, so far as related to the copy- hold lands, the subject of the party's claim. (5) (1) Hodges v. Atkis, 3 Wils. 398. (4) By Ashurst J. in R. v. Babb, 2 Black. Rep. 877. S. C. 3 T. R. 581. R. v. Hollister, Rep. (2) Carthew. 421. temp. Hard. 245. (5) Per. Cur. in R. v. Justices of (5) R. v. Lucas, 10 East, 255. j Surrey, Say. 144. and see 3 T. R. 142. R. v. Tower, 4 Maulc& Sclw. 162. F F 3 488 Of the Proof of Deeds, Agreements, fyc. [Ch. 8. CHAP. VIII. Of the Proof of Deeds, Agreements, §c. HPHE nature and proof of public writings having been con- sidered, the next branch of the subject relates t o private writings. In treating of this part of written evidence, we shall not attempt to describe all the various kinds and requisites of private writings, which would far exceed the limits of the present work, but consider only the mode of proofnecessary for making a written instrument admissible in evidence. The first section of the present chapter treats of the proof of deeds and agreements ; the second section treats of the proof of wills. The two succeeding chapters will treat of the re- quisite of stamping^and of the admissibility of p a rol eviden ce to explain written instruments^ Sect. I. Of the Proof of Deeds, Agreements, &>c. The principal subjects treated of in the present section are, first, the process for compelling a person to produce writings in his possession ; secondly, the effect of a notice to a party to produce writings ; thirdly, the admissibility of secondary evidence of writings, which have been lost or destroyed; fourthly, the proof of the execution of deeds and other writ- ings ; fifthly, the proof of hand-writing in general. First, o f the process for compelling a person to produce writing s in his possession. Subpoena jf anyjjeed or other writing, necessary to be produced at the trial of a cause, is in the possession of a third person, the legal process, for compelling him to produce it, is by suing 2 Sect. l.J Of the Proof of Deeds, Agreements, <§c. 439 out a writ of su bpoena ad testificandum, to enforce his personal Subprena attendance, and inserting a special clau se, ca lled a duces ' tecum, which specifies the writings required, and commands him to produce them at the trial. The writ of subpcena duces tecum, like some other writs of undoubted antiquity, is not to be found in the rcgistrum brevium-, but it can be traced in practice as far back as the time of Charles II., and pro- bably existed much earlier, as such a compulsory process is essential to the constitution of courts of justice. A witness, served with this subp cena, is o bliged to atten d ; and, though it will be a question for the consideration of the judge, whether he ought to be compelled to produce the writings in his pos- session, yet undoubtedly he ought to be ready to produce them, if ordered by the court ; and, in case of disobedience without sufficient cause, will be liable to an attachment, or to a special action for damages. ( 1 ) If the writing, whi ch the witness is ca lled upon to produce, would have a tendency to subject him to a criminal charge, or to a penalty (2), or any kind of forfeiture, the Court will excuse him from pro ducing it, as well as from answering any question of the same tendency ; but, from analogy to the rule respecting parol testimony, (and there seems to be no good reason for allowing a greater privilege in the one case, than in the other,) he would not be exc used from producing a paper in his possession, relevant to the matter in issue, on the groun d th at it might establish, or t end to establish, against him the fact of his being in debt, or might subject him to a civil suit. (3) If writings are in the possession of a party to the suit, the Rule on party other party has, in general, no means of compelling their ° proc ucc ' pro duction. In some instances, indeed, where the writing is deposited in the custody of a defendant, as a trustee for all (1) Amey v. Long, 9 East, 473. (2) Whitakerv. Izod, 2 Taunt. 1 15. Corsen v. Dubois, Holt, N. P. C. 259. (3) See stat. 46 G. 3. c. 37. ante, Reed v. James, 1 Starkie, N. P. C. p. 277. 132. Field v. Beaumont, 1 Swanst. 209. F F 1' Of the Proof of Deeds, Agreements, §c. [Ch. 8. parties interested, courts of law will order him to furnish the plaintiff with a copy, and produce the original at the trial. Thus, in an action for a stake won at an horse-race, the de- fendant, who was the stake-holder, was ordered to produce a copy of the racing articles, without which the plaintiff could not proceed. (1) So, in a late case, in an action of covenant, the Court of Common Pleas granted the plaintiff a rule for taking a copy of an indenture of assignment of a lease, made between the plaintiff and defendant," as the only part of the indenture, which had been executed, was in the hands of the defendant (2) : the parties, in this case, having executed one part only of the indenture, in order to save the expense of double stamps, the Court thought it a necessary consequence, that the party, who had the custody, undertook to produce the deed, when necessary for the use of the other contracting party. So also, in an action by seamen to recover wages, the defendant is compellable to produce the ship's articles (3); for, the contract for wages always remains in the possession of the master, and the statutes (which require a written agree- ment in the case of foreign voyages (4), and in the case of cer- tain vessels employed in the coasting trade,) (5) expressly enact, that, where it becomes necessary to produce the contract in court, no obligation shall lie on the seamen to produce it, but on the master or owners of the ship ; and that no seaman shall fail, in any suit or process for the recovery of wages, for want of its production. * (1) Gracewood v. , Barnes, does not apply to the case of a 439. British seaman, who enters on hoard (2) Blakey v. Porter, 1 Taunt. 386. of a foreign ship in a British port, but King v. King, 4 Taunt. 666. is confined to voyages on board of (5) Johnson v. Lcwellyn, 6 Esp. British ships. Dickman v. Benson, N. P. C. 101. 1 Taunt. 386. 5 Campb. 290. (4) St. 2 G.2 c. 36. This statute (5) St. 51 G. 3. c. 59. * The captain must produce the articles at the trial, though he has not received a notice for that purpose, if he would found any objection upon them, or resort to them in making his defence. The statute has intro- duced an exception to the general rule upon this subject. Bowman v. Manzelman, 2 Campb. 515. Sect. 1.] Of the Proof of Deeds, Agreements, fyc. 441 Where a person is sued on a written security, which he ^ ule to produce. has given for the benefit of third persons, and he afterwards gets possession of the writing, the court, on the application of the plaintiff, who claims an interest in the paper, though he has not signed it as a party, will compel the defendant to produce it, that it may be stamped, previous to the trial. (1) The ground of the application is, that the applicant has an interest in the writing, the production of which is required ; and he may be interested, though not, technically speaking, a party to the instrument. A person, who takes an estate by way of remainder, is not a party to the deed, by which his estate is created, but he has a strong interest in the deed, and is en- titled to compel the production. (2) But the Court will no t c ompel a person to produce a written instrument in his pos- session, that it may be stamped, on the application of on e who is_not a party to the instrument, nor interested in it. (3) And where an instrument is executed by two parties, each of whom keeps a part, the Court will not compel the one party to produce his part, in order to support an action against himself (4) : if, for instance, a bond were executed, and after- wards lost by the obligee, he has no right to demand of the obligor to produce a copy of the bond in his possession. (5) In an action between the plaintiff (a factor) and defendant (a grazier), the Court of King's Bench, on the motion of the defendant, made a rule for the plaintiff to shew cause, why he should not produce at the trial the several books, in which he entered the amount of beasts sold, and of money received on the defendant's account ; and, no cause being shewn, the rule was made absolute. (6) The rule, which Lord Mansfield laid down in such cases, is said to be, that wherever the defendant would be entitled to a discovery, he should have it in a court (1) Bateman v. Phillips, 4 Taunt. Taunt. 159. 162. Brown v. Rose, 157. The writing was originally de- 6 Taunt. 28.5. posited in the hands of a third person (4) Street v. Brown, 1 Marshall, for the benefit of the creditors of a 610. 6 Taunt. 302. S. C. bankrupt, who brought the action. (5) lb. 305. (2) lb. 161. (6) Goaterv. Nunnely,2 Str. 1130. (3) Osborne v. Taylor, cited 4 Ward v. Appricc, 6 Mod. Rep. 264. contra. Notice to produce. Notice to produce. Of the Proof of Deeds, Agreements, §c. [Ch. 8. of law, without going into equity. (1) In causes on policies of insurance, it is now the common practice to obtain a judge's order, calling upon the assured to produce to the under- writers, upon affidavit, all papers in the possession of the for- mer relative to the matters in issue ; and if the one party is not content with such papers as are produced under the order, the other party will be obliged to make an affidavit, denying the relevancy of those which are withheld. (2) This prac- tice has been adopted for its great convenience, as it saves the delay and expense of a bill in equity. But the pra ctice in Chancery i nvariably i s, that a party_Js entitled only to ex- tracts of letters, if the othe r party w ill swear, that the passages extracted are the only parts rela ting to _the ^ubject- jnatter^(3) Secondly, of the effect of a notice to a party to produce writings in his possession. In general, one party has not the meansjof ^ojnjrjeningjhe other party to produce any jyritings in his po ss ession^ how- ever nece ssary they may be for the prosecution of his suit. ( 4) If such evidence is required, the rule, both in civil and in cri- minal cases (5) , is to gi ve the opposite party or his attorney (6) a regular notic e to p roduce the o rigina l ; not, that on proof of the notice he is compellable to give evidence against himself, or that, if he refuses to produce the papers required, such a circumstance is to be considered as conclusive against him (7), but the consequence will merely be, that the other party, who has done all in his power to supply the best evidence, jv ill be (1) Barry v. Alexander, 25 G. 3. K.B. l Tidd. Pr. 618. See Smith v. D. of Northumberland, 1 Cox, Ch. C. 363. 365. Burton v. Neville, 2 Cox, 242. Campbell v. French, ib. 286. (2) Clifford v. Taylor, 1 Taunt. 167. Goldschmidt v. Marryat, 1 Campb. 362. (3) l Taunt. 167. (4) See the caseofEntick v. Car- rington, 19 Howell's St. Tr. 1075. (5) The Attorney-General v. Le Merchant, 2 T. R. 201. n. (6) 1 T. R. 203. n. Cates q. t. v. Winter, 5 T. R. 306. Service of the notice upon the wife of the party's attorney, late in the evening before the trial, has been held to be insufficient. Doe, dem. Wartney, v. Grey, l Starkie, N. P. C. 283. (7) Cooper v. Gibbons, 3 Campb 563. Sect. 1.] Of the Proof of Deeds, Agreements, %c. 443 allowed to go into evidence of a n infe rior kind, and may read Notice to an examined copy, or give parol evidence of the contents. pi ° uce * Before this secondary evidence can be admitted, it ought to be clearly shewn, ^that the writing required is in the pos- session of the other party, and that a notice to produce it has been regularly served. The degree of evidence, which may be necessary to prove the fact of possession, will depend so much on the nature of the transaction, and the particular circumstances of each individual case, it is scarcely possible to lay down any general rule upon the subject. Slight evidence may be sufficient, in many cases, to raise a pre- sumption, that the writing is in the possession of a party, when it exclusively belongs to him, and regularly ought to be in his possession according to the course of business. In the case of Henry v. Leigh (1), the solicitor to a commission of bankrupt proved, that he had been employed by the defendant to solicit his certificate under the commission, and that, looking at the entry of charges, he had no doubt the certificate was allowed ; it was therefore presumed, that the certificate came into the defendant's possession. In certain cases, though the written instrument, which is required, is not in the possession of the party to t he suit, but in the possession of a third p erson7 yet if there is a privity be- tween such person and the party, a notice to the party may be sufficient. Thus, in the case of Baldney^vT Ritchie (2),^n action against the owner of a vessel for goods supplied for die use of the vessel, Lord Ellenborough held, that a notice to the defendant to produce an order, which he had given to the captain, was sufficient to admit the plaintiff into secondary evidence of the contents of the order, though the order itself appeared to be in the possession of the captain ; the evidence was held to be admissible, on account of the privity between the owner and the captain. (l) 3 Campb. 502. (2) Starkie, N. P. C. 558. 14 1< Of the Proof of Deeds, Agreements, fyc. [Ch. 8. Notice to produce. I f one party ca lls for boo ks or writings in thepossessi on of the other party, but, when t hey are ^produced, declines us ing them, the mere calling for them _will no^jnak^jhem_evidence for the adverse partv. (1) It may, said Lord Kenyon, be matter of observation to the counsel on the other side, that the entries in the books were in favour of his client, but cannot entitle him to offer the books in evidence to the jury. If, how- ever, the party, who has ca lled for the^booksj^insp ects th em, he thereby makes the m evidence for the other party, although he has not used them himself in evidence. (2) Where books are refused, it is a suspicious circumstance, and open to much observation, but it will not be conclusive against the party. The regular time of calling for the production of papers and book is not until the party, who requires them, has entered upon his case; till that period arrives, the other party may refuse to produce them, and there can be no cross-examination as to their contents, although the notice to produce them is admitted. (3) " The evidence," said Lord Ellenborough in the latter of the cases here cited, " cannot in strictness be anti- cipated, although it may be rigorous to insist upon the rule, and a close adherence to it may be productive of inconvenience." Notice, when dispensed with. The rule, which requires, that a party shall have previous- notice to produce a written instrument in his possession, be- fore the contents can be proved as evidence in the cause, has been made with good reason ; in order that the party may not be taken by surprise, in cases where it must be uncertain, whether such evidence will be brought forward at the trial by the adverse party. But this reason will not apply to cases, where, from the nature of the proceedings, the defendant has notice, that the plaintiff means to charge him with the posses- sion of the instrument. It cannot here be necessary to give any other notice, than the action itself supplies. In an action of trover, therefore, for a bond, theplaintiif has been allowed to g ive. (1) Sayer v. Kitchen, 1 Esp. N.P.C. 210. (2) Wharara v Routlege, 5 Esp N. P. C. 235. (5) Graham v. Dyster, 2 Starkie, N. P. C. 25. Sideways v Dyson, 2 Starkie, N. P. C. 49. Sect. 1.] Of the Proof of Deeds, Agreements, §c. 445 jparol evide nce of the conte nts, to s upp ort the general descrip- Notice to tion of the instrument in the declar ation, without having p given the defend ant previous not ice to p roduce the original. ( 1 ) And on a prosecution for stealing a promissory note, or other writing, described in the indictment, parol evidence of the contents will be received, without any formal notice to the prisoner to produce the original. In Aickles' case (2), on an indictment for stealing a bill of exchange, all the judges held, that such evidence had been properly admitted, though it was proved in that case, that the bill had been seen only a few days before the trial, in a state of negotiation, in the hands of a third person, who had been served with a subpoena duces tecum, but who did not appear. And in Layer's case (3), on an indictment for high treason, where it was proved, that the prisoner had shewn a person the paper, con- taining the treasonable matter laid in the indictment, and then immediately put it into his pocket, that person was per- mitted to give parol evidence of the contents of the paper. And in the case of De la Motte (4), on an indictment for a traitorous correspondence with the French government, where the question was, whether examined copies of the treasonable papers, which had been secretly opened at the post-office, and copied, and then forwarded to their place of destination, were admissible in evidence, the Court held, that they might be ad- mitted, after proof that the originals were in the hand-writing of the prisoner. Nor does the principle of the rule apply to the case, where a party to the suit has fraudulently got possession of a written instrument belonging to a third person ; as, where a witness (1) How v. Hall, 14 East, 274. Tr. 170. S. C. Francia's case, 15 Scott v. Jones, 4 Taunt. 865. Jolley Howell's St. Tr. 941. R. v. Moors, v. Taylor, 1 Campb. 143. Butcher 6 East, 421. n. v. Jarratt, 3 Bos. & Bull. 143. 2 (4) Cor. Buller J. and Heath J. Merivale, 465. O. B. 1781, 1 East, P.C. 124., from (2) 1 Leach, Cr. C. 330. Butler's MS. of Gould J. These copies were case, 13 Howell's St. Tr. 1254., which rejected on another ground, because was a prosecution for the forgery of the originals had not been traced to a bond. the prisoner's possession. See How- (3) 6 St. Tr. 263. 16 Howell's St. ell's Coll. of St. Tr. vol. xxi. p. 737. 446 Of the Proof of Deeds, Agreements, <$■£. [Ch. 8. Notice to wag called, on the part of the defendant, to produce a letter ' written to him by the plaintiff, and it appeared, that after the commencement of the action he had given it to the plaintiff; in this case, though a notice to produce had not been given, parol evidence of the contents was admitted, because the paper belonged to the witness, and had been secreted in fraud of the subpoena. (1) The counterpart of a deed is evidence against the person who signed it, and against his assignee, without giving notice to produce the original. Thus, in an action against the master of an apprentice, for not inserting in the indenture of apprenticeship the true consideration, an averment in the declaration, that A. B. by a certain indenture put himself ap- prentice to the defendant, may be proved by that part of the indenture which the defendant executed. (2) So, in an action of ejectment, upon a condition of re-entry for non-payment of rent, against the assignee of a lease, proof of the counter- part, executed by the original tenant, is sufficient proof of the assignee's holding on the same terms. (3) Another case may here be mentioned, in which a majority of the judges in the Court of King's Bench were of opinion, that want of notice was not a sufficient objection against re- ceiving parol evidence of the contents of a deed, because it appeared that the deed itself was in court in the possession of the opposite party. (4) At the trial of an ejectment, on the several demises of Haldane and Urry, title was deduced to Haldane under a will ; but one of the plaintiff's witnesses said on cross-examination, that Haldane had conveyed all interest in the premises to Urry, before the time of the demise in the declaration, and that the deed was in court. Upon this, it was insisted, that, as the plaintiff's witness proved the (1 ) Leeds v. Cook, 4 Esp. N. P. C. 7 East, 563. Mayor, &c. of Carlisle 256. v. Blamire, 8 East, 487. (2) Burleigh v. Stibbs, 5 T. R. (4) Doe, on the several demises of 465. Haldane and Urry,v. Harvey, 4 Burr. (3) Roe, dem. West, v. Davis, 2484. See Doe, dem. Wartney, v. Grey, 1 Starkie, X. P. C. 283. Sect. 1.] Of the Proof of Deeds, Agreements, tyc. 44,7 title out of Haldane, and as the deed of conveyance was in Notice to the court, the deed ought to be produced in evidence to shew P ro a title in Urry, the other lessor of the plaintiff. The counsel for the plaintiff, on the contrary, refused to produce the deed, insisting, that the plaintiff ought to recover under the one or the other of the lessors ; for, if the one had parted with the title, the other had acquired it. But Mr. J. Aston, who tried the cause, being of opinion, that the plaintiff ought to give further evidence to ascertain the title, under which he was to recover the term, nonsuited the plaintiff; and on a motion afterwards for setting aside this nonsuit, Lord Mansfield, after observing that in the action of ejectment the plaintiff could not recover except upon the strength of his own title, said, " It was plain the plaintiff had no title under Haldane, who had conveyed away all the interest in the premises to the other lessor, and that as to his claim of a title under Urry, the plaintiff had not proved any title ; the jury could not have found for the plain- tiff under the deed of conveyance to Urry, unless it were pro- duced, and probably there was something in the deed, which would have shewn, that Urry had no title." Lord Mansfield laid the principal stress on the fact of the plaintiff's refusing to produce the conveyance from Haldane, which was admitted to be in court. " The want of notice," he said, ** was no objection in this case, because they had the deed in court ; and the refusal to produce it warranted the strongest pre- sumption, that neither of the lessors had any title." Mr. Jus- tice Aston and Mr. Justice Willes agreed in opinion with Lord Mansfield. But Mr. Justice Yates differed from the rest of the Court. " He founded himself," he said, " upon the rules of evidence. The fact of the conveyance coming out on cross-examination could make no difference. The plaintiff's counsel were not obliged to produce the deed, for no man can be obliged to produce evidence against himself; the only consequence of a notice to produce would have been the ad- mission of inferior evidence." Upon this case it may be observed, that the fact of Haldane's having conveyed away all his interest to Urry seems to have been assumed, as satisfac- torily proved ; but from the opinion of Mr. Justice Yates, 148 Of the Proof of Deeds, Agreements, <$r. [Ch. 8. Notice to produce. which seems to be the better opinion, it may be collected, that there was no legal proof of any conveyance of title out of Haldane, and that the answer of the witness, upon which the defendant's argument rested, was as inadmissible in evi- dence on the cross-examination, as it would have been on an examination in chief. The true objection to such evidence is, that the witness was speaking to the contents of a deed, when there had been no notice given to produce the original ; and it does not appear to be a sufficient answer to say, that the deed is in court ; for, if the party had received a regular notice to produce it, he might have come prepared with evi- dence to repel any inference, which the production of the deed might have raised against him. Proof of no- tice. A parol notice to produce writings may be proved by a third person who delivered the notice, or by one who heard it delivered ; and a written notice to produce may be proved by a duplicate original. (1) A notice to quit in an action of ejectment (2), and a notice of the dishonour of a bill in an action upon the bill (3), may be proved in the same manner, by a duplicate original, without a notice to produce the other original. It may be objected, that the duplicate is not the best evidence of the contents of the notice delivered, as the supposed duplicate original may be inaccurate, and the contents may be proved to a certainty by the production of the notice itself; but, on the other hand, extreme inconvenience would arise from a stricter medium of proof; for, if a duplicate notice to quit is not sufficient, no more is a duplicate of the notice to produce, and thus notices might be required in infinitum. The practice of allowing duplicates of this kind in evidence seems further to be sanctioned by this principle, that, as the original delivered is in the hands of the other party, it is in his power to contradict the duplicate original, by producing the other, if they vary. (4) "When a notice may be either in (1) Gotlieb v. Danvers, 1 Esp. N. P. C. 455. Surtees v. Hubbard, 4 Esp. N. P. C. 203. (2) 2 Bos. & Pull. 41. (5) Ackland v. Pearce, 2 Campb. G01. Roberts v. Bradshaw, 1 Starkie, N. P. C. 28. Langdon v. Hulls, 5 Esp. 157. (4) By Lord Eldon C. J. Jory v. Orchard, -2 Bos. & Puli 41. Sect. 1.] Of the Proof of Deeds, Agreements, $c. 441) writing or by parol, and a notice is given in both forms, it may Notice to be proved in either form. (1 ) produce. Upon the same principle, where a notice is given to a ma- gistrate previous to the commencement of an action against him, or where a demand is made of a copy of a warrant preparatory to an action against a constable, if another paper is made out at the same time, precisely to the same effect as that delivered, both may be considered originals, and the paper so preserved may be received in evidence without a notice to produce the one delivered. (2) From analogy to these cases, in an action on an attorney's bill, though the plaintiff cannot produce parol evidence of the contents of the bill delivered, without giving notice to produce it (3), yet a copy, made out at the same time and proved to be correct, has been admitted to be good evidence. (4) A duplicate, which has been taken from an original letter at a single impression by means of a copying machine, is still only a copy ; and there- fore cannot be read, without a previous notice to the other party to produce the original. (5) Proof of hav ing sent a notice or other paper by the post has been frequently considered, in mercantile trans- actions, to be sufficient proof of notice to the party, to whom it was directed ; and this, on a principle of general convenience. A question has sometimes arisen, as to the requisite proof of the fact of sending by the post. In the case of Hagedorn v. Reid (6), where it became necessary to prove, that a licence to trade had been sent by the plaintiff to A. B., it was proved to be the invariable course of the plaintiff's office, that the clerk, who copies a licence, sends it off by the post, and writes on the copy a memorandum of his having done so ; a copy of the (1) Smith v. Young, l Campb. Pull. 237. Philipson v. Chase, 2 440. Campb. 110. S. P. (2) 2 Bos. & Pull. 39. (5) Nodin v. Murray, 3 Campb. (3) Shaw v. Markham, Peake, 228. N.P.C. 164. (6) 3 Campb. 379. (4) Anderson v. May, 2 Bos. & VOL. I. G G 450 Of the Proof of Deeds, Agreements, <$c. [Ch. 8. licence in question was produced from the plaintiff's letter- book, in the hand-writing of a deceased clerk, who had written a memorandum, stating that the original had been sent to A. B., and a witness, acquainted with the plaintiff's mode of trans- acting business, swore, that he had no doubt the original was sent according to the statement in the memorandum ; this evi- dence was held to be sufficient. In the case of Hetherington v. Kemp (1), where the question was, whether the defendant had received notice of the dishonour of a bill of exchange, it was proved, that, on the day after the bill became due, the plaintiff wrote a letter addressed to the defendant, stating that it had been dishonoured ; that this letter was put down on a table, where, according to the usage of his counting-house, letters for the post were always deposited, and that it was the business of a porter to carry them from thence to the post-office ; but the porter was not called, and there was no evidence as to what had become of the letter, after it was put down upon the table. A notice to produce the letter had been served upon the defendant- It was contended for the plaintiff, that this was good -prima facie evidence, that the letter had been sent by the post. Lord Ellenborough held, that some evidence ought to be given, that the letter had been taken from the table in the counting-house, and put into the post-office. If the porter had been called, and if he had said, that, although he had no recollection of this particular letter, he invariably carried to the post-office all the letters found upon the table, this might have been sufficient ; but it was not sufficient to give such general evidence of the course of business in the plaintiff's counting-house. Deed pro- jf a party, in compliance with a notice^ should produce a duced, how • — *~ ] , ~ - — * — proved. de ed, or other instrument, called for by the adverse party, the next question is, which of the parties ought to prove the execution^ the one who calls for its production, or the other who produces. The general rule, laid down by Mr. Justic e Buller, is, that T 5ijn civil actions, where a plaintiff wishes to give in evidence a deed in the defendant's custody, he (l) 4 Campb. 195. Sect. 1.] Of the Proof of Deeds, Agreements, 8$c 451 gives the defendant notice to produce it; and the deed, when produced, m ustjp rimd facie be taken to be d uly exe- cuted ; because the plaintiff, not knowing who are the sub- scribing witnesses, cannot come prepared at the trial to prove the execution." (1) In a case of settlement, therefore, where the respondents had given not ice to the appe llants to pro- duce an indentu re of apprenticeship, by which the pauper was bound in the appellant parish, and which indenture was accordingly produced at the trial of the appeal, the Court of King's Bench held,_ jhat the court be low ought not to have required the respondents topro ve th e_execution, but that the indenture should have been admitted prima facie as duly executed. (2) In the next reported case on this subject, the case of Gordon andjother s v. Secretan (3), Lord Ellenborough C. J. s aidVt hat the case of the King v. M iddlezoy had been much questioned at thetime, and since over-ruled ; and that the production of Iff Tinstrument at _thetrial, in pursuance of a notice, would not supersede the necessity of proving it by one of the sub- scribing witnesses, as in ordinary cases. And Mr. Justice Lawrence added, that this point had been so ruled by Lord Kenyon in a subsequent case, where the adverse party, having notice to produce a written instrument, produced it accordingly at the trial, and Lord Kenyon held, that the party, who called for it, was bound to call one of the subscribing witnesses to prove the execution. In the case of Gordon and others v. Secretan, which was an action upon a policy of insurance on shipped goods, the plaintiffs averred in their declaration, that they were interested in the subject-matter of the insurance, and the defendant, intending to dispute that fact at the trial, gave the plaintiffs notice to produce certain articles of agreement made between them and the captain of the ship,~by~wEIch, as it was contended, the contrary would (l)2T. It. 43. Edginton, 2 Campb. 94. S. P. (2) R. v. Inhabitants of Middle- Johnson v. Lewellin, GEsp. N. P.C. zoy, 2T. R. 41. 5 T. R. 366. ioi. (3) 8 East, 548. Wetherston v. G G 2 452 Of the Proof of Deeds, Agreements, §c. [Ch. 8, clearl y appear ; in pursuance of this 1 notice, the plainti ffs at the trial produced the instrument, attested by two witnesses , :ind insisted, that the defendant should call one of them to prove ^hje_^xecutign i ^The point was so ruled at nisi prius, and afterwards confirmed by the_ Court of King's Bench. From this case, therefore, it might be inferred, that, if a party to a suit, in consequence of a notice, produc es an instrument executed between himself and others, yet that the other party, though a stranger to the instrument, ought to prove the execution, if he means to avail himself of it in evidence. The rule, however, has been properly restricted by the late case of Pearce v. Hooper and others. (1) That was an action of trespass, and the question at the trial was, whether the place, in which the trespass was alleged, belonged to the plaintiff as part of a certain estate ; the defendants gave no- tice to the plaintiff to produce a deed of conveyance, in which the estate had been conveyed to the plaintiff by a description limited to a number of acres, which, it was said, would neces- sarily exclude the place in question ; the plaintiff produced the conveyance, and, on the authority of the cases before mentioned, it was ruled, that the defendant ought to prove the execution, which as he was not prepared to prove, the instrument could not be received in evidence. But, on a mo- tion afterwards for a new trial, the Court of Common Pleas were of opinion, that it was not necessary for the defendants in this case to call the attesting witness, to prove the execu- tion. The Court admitted, that the mere possession of an instrument by one party cannot, in general, absolve the other part}-, who calls for it, from the necessity of producing the attesting witness. " An instance to illustrate this," said the Chief Justice, "has been properly put in the case of a will, cited in the case of Gordon v. Secretan ; for, supposing that an heir at law is in possession of a will, and the devisee brings an eject- ment, and calls on the heir to produce the will, there the heir (i) 3 Taunt. 6*. Sect. 1.] Of the Proof of Deeds, Agreements, 8$c. 453 claims not under the will, but against the will, and it would Secondary * evidence of be hard, that the will should be taken as proved against him, writings. because he produces it. But that is very different from the case, where a man is called upon to produce a deed, under which he holds an estate. The defendant (added the Chief Justice, with reference to the case then before the court,) has no interest in the fee-simple of the estate, if this deed does not convey it : if then he produces the deed, under which he claims, shall it not be taken to be a good deed, so far as relates to the execution, as against himself?" The other Judges concurred in opinion, and a new trial was granted. — T he result, th erefore, at present, appears to be, that, when a part y to a sui t, in purs uance of a n otice^jjroduces an instru- ment, to w hich h e is a party, and under which_ he claims a beneficial intere st, it will not b e n ecessary, that the o ther party, a stranger to the instrument, sho uld call an a ttesting witness, to prove the execution ; but that, in other cases, JJhe execution ought to be regularly proved by the party , w ho offers the instrument a s part of his evidence in the cause* If, in compliance with a notice, the party produces the writ- ten instrument in his possession, he is entitled to have the whole read ( 1 } ; and if a writing produced refers to others with such particularity as to make it necessary to inspect them, that the sense may be complete, or, referring to other writings, adoptithem as part of its own meaning, he may insist on hav- ing these also read in evidence. (2) Thirdly, as to the admissibility of secondary evidence of writings, which have been lost or destroyed. If a party intend to use a deed or any other written instriir Secondary ment in evidence, he ought to produce the original, if he has wr itings. it in his possession ; but, if the instrument is in the posses- sion of the other party, who refuses to produce it after a (1) Sec ante, p. 561. 5 Esp. 246. Falconer v. Hanson, (2) Johnson v. Gilson, 4 Esp. 1 Carapb. 171. N. P. C. 21. Wheeler v. Atkins, G G 3 454 Of the Proof of Deeds, Agreements, §c, [Ch. 8. Secondary reasonable notice, or if the original is lost or destroyed, se- writings. condary evidence, which is the best that the nature of the case allows, will then be admitted. If two parts of a deecLjor mo re, have b e en execu ted, th e loss or destr uction of all the parts should be proved, before secondary evide nce of the con - tents can be recei ved ( 1 ) ; and the original deed ought to be proved to have been duly executed (2), unless proof of the execution would be dispensed with, if the original itself were produced, or unless the want of the original is occasioned by the default of the other party, in which case, the execution may reasonably be presumed against him. (3) So, where^anjorigi- nal note of _ hand is lost, a c opy_jcannot be read in evide nce, unles s the note^s^proye^tojje^enmne. (4) On the hearing of an appeal against an order of removal (5), the principal question was, whether one person only, or more than one, had been appointed overseer in a particular year ; the respondents, who, in order to vacate an indenture of apprenticeship, had to prove, that only one overseer had been appointed in that year, had given notice to the appellants to produce all books and writings in their custody and power, relating to the appointments of overseers; the appellants, being called upon to produce under this notice, produced one parish-book, which was the only one in existence, and the parish-officer, who produced it, proved that no ap- pointments were kept by the parish : the respondents then proceeded to enquire of a witness, as to there having been, in the particular year, one or more overseers; but, on an objection being taken, the Court of Quarter Sessions held, and the Court of King's Bench afterwards confirmed their opinion, that, as the appointments had been in writing, parol evidence could not be admitted. " The question," said Lord Ellenborough, " is, whether the justices below have done (1) Bull. N. P. 254. R. v. Cas- (3) Doxon v. Haigh, l Esp. N. tlcton, 6T. R. 256. P.C. 410. (2) R. v. Sir T. Culpepper, Skin- (4) By Lord Hardwicke C. J. ner, 673. by Holt C. J. Goodier v. Lake, 1 Atk. 246. (5) R. v. Stoke Golding, J Barn. & Aid. 1 73. Sect. 1.] Of the Proof of Deeds, Agreements, §c. 455 wrong in rejecting the parol evidence. This is clear, that the Secondary parol evidence could not be admitted, until the case was ripe ^rituv^s! ° for the admission of secondary evidence; now it could not be considered as ripe for that purpose, until the respondent parish had exhausted all the proper means of procuring the primary evidence. Have they done this ? First, as to the appoint- ment itself, they gave a notice to the parish ; and, supposing the parish had the actual cutody, that notice would have been sufficient, but this does not appear. Have they then the legal custody ? Certainly not ; for the legal custody is in the officer, who is the person most interested in the instrument, and who requires its production as a sanction for those acts, which he may be called upon to do under its authority. Now, here there has not been any notice to the overseer himself. I think, therefore," added Lord Ellenborough, " that, as in thi s case there has been an omission of the means of exhiausting^ the primary evidence, recourse could_not be had t o that of a secondary nature." Proof by a witness, that the paper in question was thrown Proof of loss, aside as useless, and that he believes it to b e lost or d estroyed, will be sufficient to let in the secondary evidence. This was determined by the Court of King's Bench in the case of Mr. Justice Johnson. (1) A similar point arose in the case of Kensington v. Inglis (2), in the course of which it became necessary to prove the loss of a licence ; the witness said, it was his practice to destroy or put aside such licences amongst the waste papers of his office, as not being of any further use, and that he supposed he had disposed of the licence in ques- tion in the same manner as other licences for ships, whose voyages had been performed ; but was not sure, that it was de- stroyed. The witness added, he had been afterwards applied to for this licence, and searched for it, but he did not recollect, whether he had found it or not ; though he did not think he had found it. Lord Ellenborough, adverting to the evidence, in delivering the judgment of the court, said, " We arc of (l) R. v. Mr. Justice Johnson, (2) « East, 278. 288. 7 East, 66. G G 4 4o6 Of the Proof of Deeds, Agreements, §c. [Ch. 8, Secondary opinion, that this evidence satisfies what the law requires in writings* respect of search, and establishes with reasonable certainty the "—" — — — fact of the licence being lost. It was not to be expected that the witness should be able to speak with more confident cer- tainty to a fact, to which his attention would not be particu- larly drawn at the time on account of any importance being supposed to belong to it." And in the late case of Brewster v. Sewell(l), (which was an action against the defendant for publishing a libel, charging the plaintiff with having defrauded an insurance-company in settling a loss upon a policy against fire,) where it became necessary, in proof of an averment in the pleadings, to account for the non-production of the policy, with a view to give secondary evidence of its contents, it ap- peared, that the policy, which had been effected about seven years before, had become useless in consequence of a second policy having been effected : the policy had probably been returned to the plaintiff after settling the loss. The clerk of the plaintiff's attorney, a few days before the trial of the action, searched for it in the plaintiffs house, not only in every place pointed out by the plaintiff, but also in every place which the clerk thought likely to contain a paper of this description : the question was, whether this was a sufficient search : the Court of King's Bench held it was sufficient. In such a case, said the Chief Justice, where the loss or destruction of the paper might almost be presumed, very slight evidence of its loss or destruction is sufficient. It is difficult, said Mr. Justice Best, to lay down any general rule as to the degree of diligence ne- cessary to be used in searching for an original document, to entitle the party to give secondary evidence of its contents. That must depend, in a great measure, upon the circumstances of each particular case. If a paper be of considerable value, or if there be reason to suspect, that the party, not producing it, has a strong interest which would induce him to withhold it, a very strict examination would properly be required ; but if a paper be useless, and the party could not have any interest (1)5 Barn. & Aid. 296. Sect. 1.] Of the Proof of Deeds, Agreements, §c. 457 in keeping it back, a much less strict search would be neces- Secondary , . i • i r • evidence of sary, to let in parol evidence or its contents. writings. If the writing in question is traced into the possession of a particular individual, who is alive, he should be called to give some account of the instrument ; if he is dead, an enquiry should be made of such persons as must be presumed to have it in their possession. Thus, in a case of settlement, where it was proved by witnesses, that an indenture of apprenticeship consisted of two parts, one of which had been destroyed, and the other had come to the hands of a person, who was living and had not been subpoenaed, but in answer to an application for the other part, he was proved to have said, that he could not find that part, arid did not know where it was, the Court of King's Bench was of opinion, that this was not a sufficient ground for admitting parol evidence of the contents. (1) In another case of settlement (2), where it appeared, that only one part of an indenture had been executed, that the pauper and master were both dead at the time of the trial, and that an enquiry for it had been made of the pauper shortly before his death, who said, that the indenture had been given up to him after the expiration of the apprenticeship, and that he had burnt it, and an enquiry had also been made of the daughter and sole executrix of the master, who said, she knew nothing about it ; under these circumstances the Court of King's Bench were of opinion, that a sufficient enquiry had been made, to render parol evidence of the contents admissible ; and the distinction, taken between this case and the case of the King and Castleton, was, that in that case there was evidence of a fact which made a further search necessary, but that in this case the same information, which traced the instrument into the pauper's possession, plainly shewed that any further search would have been nugatory. Here, there was no proof, (1) R. v. Castleton, 6 T. R. 236. (2) R. v. Morton, 4 Maule & R. v. St. Sepulchre, 2 Bott. 353. Sclw. 48. Williams v. Younghusband, 1 Starkie, N.P.C. 139. 458 Of the Proof of Deeds, Agreements, fyc. [Ch. 8. Secondary that the instrument ever existed in the possession of the pauper, unless his declaration could be taken as evidence; writings. and if it could, he declared, in the same breath, that it existed no longer. When therefore the pauper, by whose information alone the parties were acquainted with the fact of his having had the instrument in his possession, at the very same time declared, that it was destroyed, it became unnecessary to search among his papers. What second- The party, after accounting Jor •Jhe jibsence of the original, admissible C6 ^y proving itsjqss or destruction, or that it is in_thej)ossession of_the other party, who has had^ notice to prod uce it, may read a counter-part ; j>r, if there is no counter-part, an ex- amined copy j_ or, if there should not be an examined copy, he may give parol evidence of the co ntents . (1) The recital of a deed in another deed is evidence of the recited deed, if the original is lost, against the party who executed the reciting deed, or against any person claiming under him. (2) And when possession has gone along with a deed during many years, the original of which is lost or destroyed, an old copy or abstract may be given in evidence, though not proved to be true, because in such case it may be impossible to give better evi- dence. (3) A witness, in speaking to the contents of a lost writing, may assist his recollection by entries in his memorandum- book ; but these entries are not in themselves admissible as evidence ; so that, if the witness has not the memorandum- book at hand, ready to be produced, no objection can be taken on account of its absence. In the case of Kensington v. Inglis, before cited (4), the witness, who proved the loss and contents of a licence, had kept a memorandum-book, in which he made entries of licences for his own information, and for the information of the governor of the country, who (1) Villiers v. Villiers, 2 Atk. 71. 192. Liebmap v. Poolev, l Starkie, Doxon v. Haigh, l Esp. N. P. C. N.P.C. 167. 409. Waller v. Horsfall, 1 Campb. (2) Com. Dig. tit. Evidence, (B. 5.) 501. Fisher v. Sanmda, 1 Campb. (3) Buller, N. P. 2J4. (4) 8 East, 279. 2S9. writings. Sect. 1.] Of the Proof of Deeds, Agreements, %c. 459 granted the licences ; he gave it to the governor, but did not Secondary know where the book then was, or what the governor had done with it. As to the non-production of the memorandum- book, said Lord Ellenborough, that book, if it had existed, and been in the witness's hand ready to be produced, could not have been produced at the trial, in proof of the fact of granting any particular licence ; the only use, which it could be allowed to answer, being by way of memorandum, to refresh the memory of the person who made the entries, when he should be called as a witness. Examined copi es, and the parol evidence of witnesses, are t he ordinary and regular pro of of the contents of lost writings. But when a written paper has been traced into the possession of one of the parties to the suit, who does not produce it after receiving a notice, something less than an examined copy may reasonably be admitted as sufficient, at least to oblige the party to give better evidence by producing the paper itself, if he finds the secondary evidence incorrect. In a late case, where it appeared that the defendant had acknowledged the receipt of a letter of a particular date, which was not produced at the trial when required, it was ruled, that an entry in a letter-book, (purporting to be a copy of a letter of the same date from the plaintiff to the defendant, and inserted by a de- ceased clerk, who kept the book according to the course of business, and with great punctuality,) was admissible evidence of the contents of the letter in question. ( 1 ) " The rules of evidence," said Lord Ellenborough, " must expand according to the exigencies of society : this entry is reasonable evidence to prove the contents of the letter of the particular date, which the defendant acknowledges he received, and which he does not produce upon a notice for that purpose : we know, it is the habit of merchants to keep such a book, and a witness has sworn, that (1) Pritt v. Fairclough, 5 Campb. power of attorney, in the office- 305. by Lord Ellenborough. See books at the exchequer, was ad- ?.lso Roberts v. Bradshaw, 1 Starkie, judged to be evidence of the eon- N. P. C. 28., stated in vol. ii. In tents of the power, after reason- Lord Melville's case, (2!) Howell's able proof of the Joss of the original. St. Tr. 7J4 — 740.) an entry of a 460 Of the Proof of Deeds, Agreements, #c. [Ch. 8. Secondary the book in question was kept with great punctuality : if the evidence ot writings. entry in the clerk's hand-writing were not admitted, there would be no way, in which the most careful merchant could prove the contents of a letter after the death of his entering clerk : I will therefore allow," added Lord Ellenborough, " the entry to be read as prima facie evidence, and the de- fendant may rebut it by producing the original." The case of Bullen v. Michel ( 1 ), which has been lately determined, affords an example respecting the admissibility of secondary evidence of ancient documents. In that case, on an issue to try, whether a particular farm in the parish of S. was discharged of tithes on payment of a modus, the Court of Ex- chequer determined, that an old ledger or chartulary of the abbey of Glastonbury was admissible, as secondary evidence of the endowment of the vicarage. Two questions arose, one, with respect to the custody, from which this document was pro- duced, which will be afterwards mentioned ; the other, (sup- posing it to have been sufficiently authenticated as to the pro- priety of its custody,) whether it could be admitted in evidence between the parties to the issue, the vicar and the occupiers of the farm. With respect to this it appeared, that the chartulary contained an account of matters of a miscellaneous description; among other things, it contained entries which appeared to be transcripts of contemporaneous documents considered as au- thentic ; and these transcripts purported to give an account of the licence of appropriation of the parish, and likewise an ac- count of the several matters of endowment. The original en- dowment not being found in the places, where search had been made for it as its natural places of deposit, the court held, that the chartulary, having been found in the custody of the Mar- quis of Bath, (and which must, therefore, be considered as having come from the custody of the rector, for the abbot was formerly the rector,) was admissible evidence. (2) The plaintiff (l) 2 Price, 599. Judgment af- (2) Wood B. differed from the firmed in the House of Lords, 4 Dow. rest of the court on this point. 298. Sect. 1.] Of the Proof of Deeds, Agreements, S;c 461 appealed from this judgment to the House of Lords, who Secondary evidenc< writings affirmed the judgment of the Court of Exchequer. Lord evidence of Redesdale, in giving his opinion on that occasion, stated ( 1 ), that the original instruments, if they could have been produced, would have stood on the same ground as the taxation of Pope Nicholas, inquisitions on the writ of ad quod damnum, and a variety of similar evidence, from which the jury may draw their inference. The only question then is, whether the entries in this book are evidence of these two instruments. If the ori- ginals could be produced, these entries could not be evidence. But search has been made, and the originals cannot be found ; and if we shut our eyes to that sort of inferior evidence in cases where no other can be had, we shall constantly do injustice. The best evidence is often lost through carelessness, the inju- ries of time, and various other circumstances ; and secondary evidence is then admitted, to raise presumption or inference, where no direct evidence can be had. This then is the next best evidence ; and perhaps evidence still more inferior might have been admitted, if this could not have been produced. This however appears to be the best after the originals ; for what is it ? These two instruments seem to have been copied by a person employed for the purpose, probably one of the monks, and deposited among the muniments of the abbey, be- cause it was important for the interests of the abbey, that the instruments should be preserved ; and for the same reason it might be presumed, that they were faithful copies ; at least there appeared to have existed no motive to make them other- wise, and they were found in a situation where they were likely to be kept. The loss of a deed by time and accident, or by any other Profert dis- casualty, is a sufficient reason for dispensing with a profert in onToss of ' pleading, when otherwise a profert might be necessary (2); deed. or it may be pleaded, that the deed is in the hands of the (1) 4 Dow. 524. 2 Price, 399. 151. Bolton v. Bp. of Carlisle, (2) Read v. Brook man, 3 T. R. 2 H. Black. 259. 462 Of ike Proof of Deeds, Agreements^ <$c. [Ch. 8. Proof of execution. opposite party, or destroyed by him. (1) But if the plaintiff instead of declaring upon the deed, as lost or destroyed, in- advertently pleads with a profert, and the defendant pleads non est factum, the plaintiff will not be allowed to prove the loss at the trial, and must be nonsuited. (2) In such a case, the plaintiff should move to put off 1 the trial, and amend the pleadings, stating the circumstances to excuse the pro- fert. (3) But it would be too late to make such a motion at nisi prim. (4) Fourthly, of the proof of execution of deeds and other writing^. Proof of ex- ecution, by subscribing witness. The general rule is, that a dee d cann ot be given in eviden ce without proof of its execution. The execution of every at- tested instrument, whether under seal or not, ought to be proved by a subscribing witness, if he can be produced, and is capable of being examined. (5) The subscribing witness alone is competent to prove the execution, because he may be able to state the time of the execution and some circumstances of the transaction, which may be material and unknown to other persons. On an indictment therefore against an apprentice for enlisting himself in the army, all the Judges held, that the indenture of apprenticeship could not be proved by the master, but that it was necessary to call one of the subscribing wit- nesses. (6) This rule is so strictly observed, that an acknowledgment of the obligor himself, admitting that he executed a bond (7), and (1) Totty v. Nesbitt, 3 T. R. 153. n. (c). (2) Smith and others v. Wood- ward, 4 East, 585. (3) Ibid. (4) Paine v. Bustio, 1 Starkie, N. P. C. 74. (5) This has been the rule from the earliest times. The ancient pro- cess for bringing the subscribing witness into court, is stated in For- tescue de Laud. Leg. Ang. c. 32. See also Jenkins cent. p. 47. case 39. (6) R. v. Jones, East, P. C. 8 22. 1 Leach, Cr. C. 208. S. C. R. v. Harringworth, 4 Maule & Selw. 550. (7) Abbotv. Plumbe, 1 Dougl. 21G. cited by Lawrence J. 7 T. R. 267. and 2 East, 187. In an action of co- venant, payment of money into court, on one of the breaches, is an admission by the defendant, which dispenses with proof of the execution of the deed, although one of the pleas pleaded is the plea of non est factum. Randall v. Lynch, 2 Campb. 357. Sect. 1.] Of the Proof of Deeds, Agreements, tyc. 463 even an admission by the defendant in an answer to a bill filed Proof of against him for a discovery (l), will not dispense with the . testimony of the subscribing witness ; for though the party may acknowledge the bond, yet he may not know every cir- cumstance attending the execution ; " a fact may be known to the subscribing witness, not within the knowledge or recollec- tion of the obligor, and he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transac- tion." (2) The rule is precisely^ the same, whether thejic- knowledgment is offered as evidence against the party himself wh o made it (S), or against a third personj^j ; or whether the deed is an existing instrument, or cancelled_[5) ; or whether it is the foundation of the action, or comes in collaterally as part of the evidence in the cause. (6) The same rule applies equally to all written instruments, which are attested. Attested notices to quit (7 ), attested war- rants to distrain (8), attested bills of exchange or promissory notes, are to be proved by the attesting witness ; and in the case of a notice to quit, the circumstance, that the party, upon whom the notice was served, read the notice, and made no objection to it, cannot vary the rule. (9) In all these cases, the attesting witness ought to be called to prove the execution, if he can be produced. If, indeed, the attorney of a party to the suit ad- mit the execution of the instrument, or agree that the other party should act upon the instrument, as if the witness himself had been produced, or if he admit merely the hand- writing of the subscribing witness, such admission would dispense with the testimony of the subscribing witness. (10) (1) Call v. Dunning, 4 East, .55. (6) Manners q.t.v. Postan, 4 Esp. See Bowie and another, Assignees N. P. C. 239. of Jones v. Langworthy, 5T.R. 566.; (7) Doc, tlcm. Sykes, v. Durnford, and as to the case of R. v. Middlezoy, 2 Maule & Sclw. 62. on the authority of which that case (8) Higgs v. Dixon, 2 Starkic, N. was determined, see ante, p. 451. P. C. 180. (2) Le Blanc J. 4 East, 53. (9) 2 Maule & Selw. 62. (5) 4 East, 55. (10) Laing v. Raine, 2 Bos. & Pull. (4) l Dougl. 216. 85. Goldie v. Shuttleworth, l Campb. (5) Breton v. Cope, Peake, N. P. 70. Young v. Wright, l Campb. 140. C. 30. Milward v. Temple, 1 Campb. 375. . *64 Of the Proof of Deeds, Agreements, §c. [C\\. 8. Proof of The subscribing witness is to prove the delivery of the deed, execution. ° . J or, if the writing is not under seal, the hand-wntmg of the party. If the person, who signed the instrument, signed it for another under a power of attorney, the power ought regularly to be produced and proved. ( 1 ) It is not absolutely necessary that the witness should see the party sign or seal : if he sees him deliver it already signed and sealed, or merely sealed, as his own deed, it will be sufficient. Nor will it be necessary for him to prove, that blanks, which had been left in the in- strument for the purpose of being filled up, were filled up at the time of the execution. (2) Some evidence of the identity of the party, who executed, is obviously necessary. (3) Signing. Signing is not an essential part of a deed at common law ; but it has been required in some cases by act of parliament, particularly by the statute of frauds, which expressly directs a signing in all grants of a freehold estate in lands, and in some other species of deeds ; in which, therefore, signing is as neces- sary as sealing. Sealing. Sealing is essential to a deed ; but it is not material with what seal it is sealed. Any number of parties may use the same seal. (4) If there be twenty to seal one deed, (says the author of the Touchstone,) and they all seal upon one piece of wax and with one seal, yet if they make distinct and several prints, this is a sufficient sealing, and the deed is good. (5) Or one may seal for the rest with their consent, and the deed will be as binding, as if every one had put his several seal. (6) Thus, where one of two defendants, in the presence of the other and by his authority, executed a bill of sale for them both, the two defendants being partners in the transaction, but there was only one seal, and it did not (1) Johnson v.Mason, 304. 1 Esp. kins v. Hawkshaw, 2 Starkie,N. P. C. N. P. C. 89. 116. 259. (2) England v. Roper, l Starkie, (4) Perkins, ch.2. s. 134. Sheph. N.P.C.504. Touch. 55. Com. Dig. tit. Fait. (3) Bull. N. P. 171. Middleton (A 2.) v. Sandford, 4 Campb. 34. Nelson (5) Touchst. ch. 4. p. 55. Fitzh. v. Whittal, 1 Barn. & Aid. 20. Par- tit. Feoffment, pi. 105. (6) 4T.R. 314. Sect. 1.] Of the Proof of Deeds, Agreements, §c. appear, whether the seal had been put twice upon the wax, the Proof 01 cxccuti* Court of King's Bench held that no particular mode of de- _1_^, livery was necessary; and that it was sufficient if a party executing a deed, treated it as his own. The report adds, that the Court relied principally on the circumstance, that the deed had been executed by one defendant for himself and the other, in the presence of the other. ( 1 ) If a bond, ex- ecuted abroad, is declared upon in the usual form, as a deed made and sealed by the defendant, and the instrument on being produced appears not to have a seal, but instead of it a pen-mark of a particular kind, evidence is admissible to shew, that it is the custom of the country to execute bonds in this manner. (2) With regard to the delivery of a deed, no particular form Delivery of or ceremony is necessary : it will be sufficient, if a party testifies e ' his intention in any manner, whether by action or by word, to deliver or put it into the possession of the other party ; as, if a party throw the deed upon a table, with the intent that it may be taken by the other, who accordingly takes it; or, if a stranger deliver it with the assent of the party to the deed. (3) If the deed is made by a corporation, actual de- livery is not required; and fixing the common seal, that is the corporate seal, or any other used for the occasion (4), is tantamount to a delivery ; but if the corporate body has given a letter of attorney to deliver, the deed is not theirs until de- livered. (5) It has been before mentioned, that proof of delivery, with- out any proof of signing or sealing, will be sufficient evidence of execution ; for the party, by delivering a deed purporting to be his own, adopts the seal and the signature. But, under particular circumstances, less evidence has been admitted (1) Ball v. Dunsterville and an- 137. a. Com. Dig. tit. Evidence, other, 4 T. R. 313. (A 3.) Co. Lit. 56. a. [Note 223.] (2) Adam v. Kerr, l Bos. & Pull. (4) Perkins, c. 2. s. 132. 360. (5) Co. Lit. 36 . a. [Note 222.] (3) Thoroughgood's case, 9 Rep. VOL. I. II H 4f>6 Of the Proof of Deeds, Agreements, §c. [Ch. 8. Proof of execution. to prove the execution. It appeared, in one case, that the defendant, a few minutes after having executed the deed, brought it to the witness in an adjoining room, and desired him to attest it; another attesting witness was still in the room, where the deed had been executed ; and it was further proved, that the witness was acquainted with the defendant's hand-writing, and that the defendant knew of his being ac- quainted with it, and that the defendant had acknowledged the instrument; but there was no proof of the act of delivery, and no reason was shewn, why the other attesting witness could not be called to prove the delivery; in this case the Court of Common Pleas was of opinion, that the whole might be considered as one transaction, and that there was sufficient proof of the execution. (1) Execution of powers. The distinction between executions of deeds at common law, and executions under powers, is fully established. It is a well-known rule, that all the formalities and circumstances, prescribed by a power, are to be strictly observed. If a par- ticular number of attesting witnesses is required, there must be that number. If they are to attest in a particular form, that form must be followed, and they must attest every thing, that is necessary for the execution of the power. The following are the latest cases that have been determined upon this subject. (2) In the case of Wright v. Wakeford (3), where a power was created, to be executed by trustees, with the consent of the cestui que trusts testified by writing under their hands and seals, attested by txvo or more credible witnesses, but the attestation expressed only, that the deed had been sealed and delivered by the cestui epic trusts and the other parties in pre- sence of the subscribing witnesses, the majority of the Court (l) Parke v. Mears, 2 Bos. & Pull. 217. Powel v. Blacket, l Esp. N. P. C. 96. Grellier v. Neale, Peake, N. P. C. He. (2) This subject is fully considered in Sugden's Treatise on Powers. (3)"4 Taunt. 214.; Mansfield C. J. dissenting, T Taunt. 561. 17 Ves. 454. S. C. 19 Sect. 1.] Of the Proof of Deeds, Agreements, 8$c. 4,67 of Common Pleas determined, that the power had not been Proof of duly executed; for the question is to be determined by the executlon - true construction of the terms of the attestation, and by that alone ; and the word " sealed," according to its true accept- ation, and ordinary sense, cannot be considered as implying, that the parties who put their seals to the instrument, put also their hands to it, or signed it in the presence of the witnesses, It was further determined in this case (1), that a subsequent attestation, indorsed upon the instrument after the death of one of the cestui que trusts, and expressing that the parties had also signed in the presence of the subscribing witnesses, would not cure the original defect; on the ground, that the attestation, to cons titute a due and effectua l execution of the jxnver, ought to make a part of the same transaction with the signing and sealing, such being the usual and common way of attesting the execution of all instruments requiring attestation. In the late case also of Doe, on the demise of Mansfield, v. Peach (2) *, where the power was directed to be executed " by any deed or writing under the hands and seals of the parties, to be by them duly executed in the presence of, and attested by two or more witnesses," and the attestation was only (1) See also 17 Ves. 457. v. Barlow, 3 Maule & Selw. 512. (2) 2 Maule & Selw. 576. Wright S. P. * In consequence of the decisions in the cases of Wright v. Wakeford and Mansfield v. Peach, (which mi«ht affect the titles of purchasers, in case the fact of signature were not expressed in the memorandum of attestation,) an act of parliament was passed (a), which enacts, " that every deed or other instrument, already made, with the intention to exercise any power, authority, or trust, or to signify the consent or direction of any person, whose consent or direction may he necessary to be so signified, shall, if duly signed and executed and in other respects duly attested, be, (from the date thereof, and so as to establish derivative titles,) of the same validity and effect, and provable in the like manner, as if a memorandum of attestation of signature, or of being under hand, had been subscribed by the witness; and the attestation, expressing the fact of sealing and delivering, without expressing the fact of signing or any other form of attestation, shall not ex- clude the proof or the presumption of signature." This statute, it is to be observed, is only retrospective. («) St. 54. G.o. c. \cs. H II 2 execution. 468 Of the Proof of Deeds, Agreements, §c. [Ch. 8. Proof of of the sealing and delivery, the Court of King's Bench were of opinion, that, in order to make a due execution of the power in this case, the instrument ought to have been made with all the forms required by the power, and that there ought also to have been an attestation of its execution with all those forms ; and with respect to the second point, which arose here as well as in the case of Wright v. Wakeford, the Court said, it was not necessary to determine, at what precise time the attestation should be made, but that the attestation, subse- quent to the death of one of the parties, could not give to their act an operation, which it never had during the lives of the parties. In another case, where lands were limited to such uses, as the donee should direct by deed or writing, under his hand and seal, attested by two or more credible witnesses, the Court of Common Pleas determined, that the power was not effectually executed by a will, signed and sealed, but attested by the sub- scribing witnesses as being signed in their presence, without noticing the sealing ; nor could the defect be cured, by calling one of the witnesses to prove, that the will was actually seakd in their presence, as well as signed. (1) In the case of Moodie v. Reid (2), the same Court de- termined, that a power, to be executed by a writing signed and published in the presence of attesting witnesses, is not properly executed by an attestation, which notices the sign- ing only, and not the publication. The question in that case arose on a marriage-settlement, which contained a power to limit the uses of money in the funds, by any writing or ap- pointment in the nature of a will, to be signed and published in the presence of, and attested by two or more credible witnesses ,- the testatrix at the close of her will signed her name, and two names were subscribed under the word " witness j" the sub- scribing witnesses proved, that the testatrix signed in their (1) Doe, dem. Hotchkiss, v. (2) 7 Taunt. 355. Pearce, 6 Taunt. 402. 2 Marshall, 102. S. C. Sect. 1.3 Of the Proof of Deeds, Agreements, §c. 469 presence, and that they understood, from what the testatrix Proof of said at the time of signing, that the paper was her last will. cxecu Ion - The Court of Common Pleas held, on a case directed for their opinion by the Vice- Chancellor, that the power had not been properly executed. Lord Ch. Just. Gibbs said, " A will, as such, requires no publication ; but here the power is to be exercised by a will signed and published ; there must be some publication here ; the will must be signed, published, and at- tested ; there must therefore be some attestation of signing and publication." After adverting to the difficulty of defining the term "publication" as applied to a will, the Lord Ch. Justice added, " I can only suppose it to be that, by which a person designates, that he means to give effect to a paper as his will." Where, however, the deed, by which the power was created, directed, not that the instrument should be attested by wit- nesses, but that the power should be executed by any writing to be signed and sealed in the presence of two or more witnesses, and the deed, in pursuance of the power, was expressed to be executed in the presence of the witnesses, but the attestation applied only to the sealing and delivery, the Chancellor was of opinion, that in such a case it might be properly left to the jury to presume, that the deed was signed, as it professed to be, in the presence of the witnesses, who attested the sealing and delivery. (1) The rule which has been before mentioned, respecting the sealing by several parties on one piece of wax, and with one seal, is applicable to all deeds at common law ; and such sealing will bind the parties, by whose authority the deed is executed. But this rule does not extend to warrants or orders executed under a power. In a case lately determined by the Court of King's Bench (2), where the question was, whether a certificate, signed by two churchwardens and one overseer, but bearing only two (l) M'Queen v. Farquhar, 1 1 Ves. (2) R. v. Austrey, Easter term, 467. 17 Ves. 458. 1817, Manic & Sehv. MS. HH 3 470 Of the Proof of Deeds, Agreements, <$c. [Ch. 8. Proof of seals, was a legal and valid certificate under the stat. 8 & 9 execution. ^ g c g() ^ ^j^ re q U j res certificates to be under the , hands and seals of the churchwardens and overseers, or the major part of them, or under the hands and seals of the over- seers, where there are no churchwardens,) the Court deter- mined, that the certificate had not been properly executed. The facts of the case were shortly these. The certificate was duly attested, and allowed by magistrates, and purported to be the certificate of A. B. and C, D. churchwardens, and of E. F. overseer ; one seal was opposite to the two first names, and the other seal opposite to the last ; no trace of any other seal appeared on the instrument, and the certificate was above thirty years old. Lord Ellenborough C. J. in delivering the judgment of the Court, said, " In considering, how far the cases of deeds are applicable to the present, it is to be recol- lected, that in those cases the parties alone, under whose au- thority the deeds were executed, are bound by them. But the present is the case of the execution of a power, which binds and operates upon other persons at their peril, and subjects them to indictments as for crimes, in case of their disobedience to the power, if it be duly executed. In the execution of powers, all the circumstances required by the creators of the power, however unessential and otherwise unimportant, must be observed, and can only be satisfied by a strictly literal and precise performance. (1) It is also a general principle of law, wherever a power is given to particular persons, to do a written act in a particular manner or under certain particular circum- stances, whether it be to parish officers or magistrates, (as, to grant certificates, under which, if duly executed, other per- sons, especially public officers, are bound to act — or to grant warrants .or make orders,) that their authority must appear upon the instrument itself. It must thereby appear, that they are the persons authorized, and that the certificate, warrant, or order, was made in the manner and under the circum- stances required. Otherwise the certificate, warrant, or order, is not obligatory, but void. The statute is to be construed, in (l) bee Hawkins, v. Kemp, 5 £tut ; 440. Sect. 1.] Of the Proof of Deeds, Agreements, fyc. 471 a case like this, according to common parlance and under- Proof of standing, and so as to be a security to persons, who are bound cxecutlon - to obey the powers given by it at their peril ; and it is not to be construed according to what may be brought within its words by nice legal reasoning, applicable merely to deeds. In the case of Thaire v. Thaire ( 1 ), where there was a submis- sion to arbitration, " so that the award be delivered under their hands and seals," it was made a question, whether an award, sealed but not signed, was a good award ; the point re- served being, whether the sealing, which was virtually a sign- ing, was sufficient, or whether the words of the submission should be intended, in common parlance, an actual writing of their hands. The Judges of the Court of Common Pleas were at first divided in opinion on that point. It was finally de- cided, however, by the whole Court, that a virtual signing would not do, but that there ought to be an actual signing under their hands. So in the present case, said Lord Ellen- borough, where an act is to be under the hands and seals of the three, a mere virtual sealing by any of the three appears to us not sufficient ; but it ought to be under the actual dis- tinct seal of each, that is to say, under a distinct and several sealed impression adopted by each of the parties." If a deed or other written instrument is attested, but none Proof of of the witnesses are capable of being examined, the course then ®* ^w^w i is to prove an attesting witness's hand-writing ; and this will be hand-writing a sufficient proof of the execution ; as, where the attesting w ; tnesSi ° witness is dead — or blind (2) — or incompetent to give evi- dence, either from insanity (3), or from infamy of character (4«), or from interest acquired after the execution of the deed (5), — or where the subscribing witness is absent in a foreign coun- (1) Palmer, 10.9. 112. (4) Jones v. Mason, 2 Stra. 83,5. (2) Wood v. Drury, 1 Ld. Itaym. (5) Goss v. Tracey, 1 P. Wins. 734. by Holt C. J. ' 287.289. Godfrey v. Norris, I Stra. (5) Vin. Abr. tit. Evidence, (T. b. 34. Swire v. Bell, 5T.R. 371. 48.) pi. 12. Burnett v. Taylor, 9 Buckley v. Smith, 2 Esp. N. P. C. Ves. 581. Currie v. Child, 3 (W7 Campb. 283. 11 II i 47& Of tfie Proof of Deeds, Agreements, §c. [Ch. 8. Proof of try (1), or out of the jurisdiction of the superior English courts, so as not to be amenable to their process (2), — or where he cannot be found after strict and diligent enquiry. (3) * Illness is not a sufficient reason for di spensing with the attendance j xf (1) Coghlan v. Williamson, 1 (3) Anon, case, 12 Mod. 607., by Doug. 93. Wallis v. Delancey, 7 T. Holt C J. 7 T. R. 266. Cunliffe v. R. 266. (c). Adam v. Kerr, 1 Bos. Sefton, 2 East, 183. Crosby v. Percy, & Pull. 561. 1 Taunt. 565. Parker v. Hoskins, (2) Prince v. Blackburn, 2 East, 2 Taunt. 223. Wardel v. Fermor, 250. 1 Bos. & Pull. 561. Ward v. 2 Campb. 282. Wells, 1 Taunt. 161. Hodnett v. Forman, 1 Starkie, N. P. C. 90. * In the case of Cunliffe v. Sefton, (2 East, 183.) it was proved, that dili- gent enquiry had been made after one of the attesting witnesses to a bond at the residence of the obligor and obligee, without being able to obtain any intelligence of such a person ; this was considered a sufficient ground for letting in proof of the hand-writing of the other attesting witness, who had since become interested as administratrix to the obligee, and was a plaintiff on the record. In the case of Crosby v. Percy (l Taunt. 565.), the Court of Common Pleas held, that proof of the hand-writing of an attest- ing witness had been properly admitted, after proof that diligent enquiry- had been made for him at his usual place of residence, where, in answer to the enquiry, information was received, as also from the father of the at- testing witness, that he had absconded to avoid his creditors, and was not to be found. In the case of Wardel v. Fermor (2 Campb. 282.), evidence of the hand-writing was admitted, on proof that, twelve months before, a commission of bankrupt had been sued out against the subscribing wit- ness, who had not appeared at the time fixed for his surrender. Similar evidence was admitted in the case of Parker v. Hoskins (2 Taunt. 225.), an enquiry having been made for the subscribing witness at the Admiralty, whence it appeared by the last report, that he was serving on board of some ship, but in what ship it was not known. And in another case, where it appeared, that one of two subscribing witnesses was dead, and the other had gone abroad as a marine, about twenty years before the trial of the cause; and the witness, who spoke to this latter fact, said, he had not heard any thing of him since ; but that he had applied for information to the brother of the marine, who informed him, that he did not know where he was, whether in England or abroad ; the Court of King's Bench held, that proof of this subscribing witness's hand-writing ought to have been admitted ; and Lord Ellenborough said, the proof of the fact of the sub- scribing witness's going abroad twenty years ago, (so large a portion of the life of man,) and never having been heard of since, would of itself be sufficient. The case was thought to be so clear, it was not argued on either side. Doe, dem. Johnson, v. Johnson, Leicester Lent Ass. 1818. K. B. Trim term, June 5. — It is not possible, by any general rule, to ascertain precisely in what cases this proof of the subscribing witness's hand-writing will be admitted. Each case must depend upon its own peculiar circum- stances. But in all cases it ought to be satisfactorily proved, that a reasonable, honest, and diligent enquiry has been made, without any evasion, and without any design to overlook the witness. Sect. 1.] Of the Proof of Deeds, Agreements, §c. ' 473 a subscribing witnes s : such a relaxation of the rule has not Proof of yet been made, and it would obviously be liable to great executlon - abuse. (1) The proo f of thg^u bscribing witness's hand-writin g, in the cases above-mentioned, is evi dence of the execution of th e_ instrument by the party therein named M:he sealing and deli- very will be presumed ; and, for the purpose of proving the execution , it will not be necessary to pr o ve also the hand- writ- ing of the party . (2) * With a view, indeed, to establish the identity of the party, that is, that the person, who executed the instrument, is the party to the suit or the party charged, proof of the party's hand-writing will be most important, and the most satisfactory evidence that can be produced. In an action on a bond, or on a promissory note or bill of exchange, some evidence of identity appears to be necessary. (3) Proof of the witness's signature proves only this fact, that the instrument in question was executed by a person in a certain name ; it does not prove the other important fact, that the defendant is that person. Some evidence seems necessary to (1) Harrison v. Blades, 5 Campb. nesses, who was abroad, was not suf- 458., by Lord Ellenborough. There- ficient, in an action upon a bond, ceipts of a tax-gatherer were offered and that the hand-writing of the in evidence, and as he was at the obligor should also be proved. Such point of death, it was proposed to additional proof might have been prove his hand-writing. See Jones v. necessary in that case, to connect Brewer, 4 Taunt. 47. the defendant with the bond. This (2) Prince v. Blackburn, 2 East, is not unlikely to have been the 250. Adam v. Kerr, l Bos. and Pull, ground of Lord Kenyon's opinion. 360. Milward v. Temple, 1 Campb. The note of the case is very short ; 375. Gough v. Cecil, 1 Selw. and the ground is not stated. N. P. 516., cited from MS. In the (5) Nelson v. Whittal, 1 Barn. & case of Wallis v. Delancey, 7 T. R. Aid. 21. See also Memot v. Bates, 266. n. (c), Lord Kenyon held, Bull. N. P. 171. Middleton v. Sand- that the proof of the hand-writ- ford, 4 Campb. 24. ing of one of the subscribing wit- * In the case of a deed executed in the East Indies, and attested by a witness resident there, the stat. 26 G. 3. c. 57. s. 38. enacts, " that it shall be sufficient to prove the hand-writing of the party to the deed, and of the attesting witness, and that the witness is resident in the East Indies." When this statute was passed, the present rule respecting the proof of the execution of a deed had not been established. 474 Of the Proof of Deeds, Agreements, 8>c. [Ch. 8. Proof of execution. connect the defendant with the bond or note. Proof of his signature on the instrument would be decisive. But such proof is not indispensably necessary ; and much slighter evi- dence would, in the first instance, be sufficient. Evidence, that the defendant was present when the note was prepared_by the subscribing witness, will serve to connect him with the in - strument. (1) Proof of exe- Where there is no subscribing witness on the deed; or cution, in the where the subscribing witness denies having any knowledge of absence of the . . , . , ° , ,. » . J h . subscribing the execution, which is the same thing as it there were no wit- witnesses. ness at a jj ^) ; or where the name of a fictitious person is inserted (3); or where the attesting witness was interested at the time of the execution of the deed, and continues so at the time of the trial (4) ; or where the person, who has put his name as subscribing witness, did so without the knowledge or consent of the parties (5) ; or if after diligent enquiry nothing can be heard of the subscribing witness, so that he can neither be produced himself, nor his hand-writing proved ; or if at the time of the execution he was of such an infamous charac- ter, as to make him incompetent to give evidence ; in these cases, the execution may be proved, by proving the hand- writing of the party to the deed ; or by any person present at the execution, though he is not endorsed as witness (6) ; or by proof of an admission of the party himself, that he executed the deed. (1) Nelson v. Whittal, I Barn. & Aid. 19. (2) Grellier v. Neale, Peake, N. P. C. 145., ruled by Lord Kenyon. Ley v. Ballard, 3 Esp. N. P. C. 173., by Ld Kenyon. Fitzgerald v. Elsee, 2 Canipb. 655., by Lawrence J. Lemon v. Dean, ib. 636. n. by Le Blanc J. Talbot v. Hodson, 7 Taunt. 251. — Phipps v. Parker, 1 Campb. 412. is therefore over-ruled. (3) Fassct v. Brown, Peake, N. P. C. 23. (4) Swire v. Bell, 5 T. R. 371. A defendant cannot object to an attest- ing witness, as incompetent to prove the execution, on account of his in- terest, after having requested him to attest the execution, with full know- ledge of the situation in which he stood. Honeywood v. Peacock, 5 Campb. 196. (5) M'Craw v. Gentry, 5 Campb. 232. 4 Taunt. 220. (6) Com. Dig. tit. Evidence. (B 3.) Sect. 1.] Of the Proof of Deeds, Agreements, §c. 475 The proof of the party's hand-writing in these cases is a Proof of sufficient ground for presuming, that the deed was, as it pur- excciltIon - ports to be, sealed and delivered. ( 1 ) In the case of Talbot v. Hodson, an action on a bond (2), the subscribing witness was first called to prove the execution, but on his denying that he saw any thing of the execution, the co-obligor was exam- ined, having had a release to render him competent ; this wit- ness stated, that there was a seal on the bond, when the defendant wrote his name opposite, but that the defendant did not seal it in the witness's presence, nor put his hand to the seal, nor delivered the bond as his deed. The Lord Ch. Justice Gibbs considered the circumstance of the defendant's writing his name opposite the seal on an instrument, in which it was affirmed that he sealed, was evidence of a sealing and delivery ; and the Court of Common Pleas were of opinion, that the evidence had been properly left to the jury, and that they had drawn the true conclusion. There are some exceptions to the general rule, as to the ne- Exceptions, cessity of proving the execution of deeds and other writings, which may be conveniently mentioned in this place. First, if the deed is thirty years old, it may be admitted in 1. Deeds 30 — r~; — — / „ . — 7 1 j i • years old. evidence without any proof or its execution ; such a deed is said to prove itself (3) : and the same rule applies generally to deeds concerning lands, to bonds (4), receipts (5), and all ancient writings. Some account, however, says Mr. Justice Buller, ought to be given of the place where the deed was found (6) ; and in another book it is said, that " ancient (7) Grellier v. Ncalc, Peake, N. works v. Cowpcr, 1 Esp. N. P. C. P. C. 145. Burrows v. Lock, 10 Ves. 275. 474. (5) D. & Ch. of Ely v. Stewart, (2) 7 Taunt. 251. The jury found 2 At k. 44. Fry v. Wood, 1 Selvir. a verdict for the plaintiff. Both wit- N. P. 492. Manby v. Curtis, 1 ncsses, who were called, were very Price, 2.32. Bertie v. Beaumont, near relations of the defendant. 2 Price, 308. Bullen v. Michel, 2 (5) 2 Term Rep. 471. Bull. N. Price, 399. 4 Dow. 297. Sir VV. W. Wynne v. Tyrwhitt, 4 Barn. & (4) Governor of CheLta Water- Aid. 376. (6) Bull. N. P. 255 V/6 Of the Proof of Deeds, Agreements, 8$c. [Ch. 8. Proof of writings, which are proved to have been found among deeds of evidences of land, may be given in evidence, although the exe- cution cannot be proved ; for it is hard to prove ancient things, and the finding them in such a place is a presumption, that they were honestly and fairly obtained and preserved for use, and are free from suspicion of dishonesty." (1) If there is any blemish in the deed by rasure or interline- ation, the deed ought to be proved, though above thirty years old (2), and the blemish satisfactorily explained. In such a case, the jury would have to try, whether the rasure or inter- lineation was before or after the delivery of the deed ; for, if the rasure was before that time the deed is still valid and binding; it is only after the delivery, t hat a rasure or inter- lineation can affect a deed, and even then they are in some cases immaterial. Now, to ascertain the time of delivery, the first and best evidence to be resorted to"ls~the testimony of a subscribing witness, if any can be produced ; or, if there is no subscribing witness, other persons may be called, who were present when the deed was delivered ; or, if no pers on was present, the tim e of delivery will b e_xgckon ed froni the date of the deed. And the fact, of the rasure having been after the delivery, may be proved either by a subscribing witness, or by any other person, who saw the rasure made. The rule, that deeds of thirty years' standing prove them- selves, is so well established, that even if a subscribing wit- ness were alive, and in a state to be produced, it has been thought unnecessary to call him for proving the execution. Lord Kenyon is reported to have said (3), that he remembered a case before Mr. Justice Yates, in which, a deed of that age being produced in evidence, it appeared, that the subscribing witness was then actually in court, but the Judge declared, he would not break in upon a rule of evidence so well established, (1) Vin. Ab. tit. Evidence (A. & Aid. 376. As to the custody of b. 5.), cited 7 East, 291. Forbes v. old documents, see infra, p. 478. Wale, 1 Black. 552., cited by Lord (2) Gilb. Ev. S9. Bull. N. P. 255. Kenyon, 1 Esp.N. P.C. 27s. 4 Barn. (o) March v. Collnett, 2 Esp. N. P. C. 665. Sect. 1.] Of the Proof of Deeds, Agreements, §c. 477 by requiring the subscribing witness to be called, and ad- Proof of mitted the deed without further proof. But in the case of cxecutlon - Rees v. Mansell (1), Mr. Baron Perrot held, that, although a deed may be read in evidence on account of its antiquity, yet, if on the other side it is shewn, that one of the witnesses is alive, he must be produced, or the deed must be rejected ; and he cited a case, where a deed was produced in the King's Bench, and it appeared, that Sir Joseph Jekyll was the sub- scribing witness, upon which the Court said, they knew he was alive, and that if he did not come to prove it, the plaintiff must be nonsuited. It was then mentioned to have been ruled by Mr. Justice Yates, that, for the sake of practice, the witness should not be allowed to prove an old deed, even if he attended for that purpose; but Mr. B. Perrot retained his opinion : " An old deed (he said) is admitted only on a presumption, that the witnesses are dead, but when the con- trary is made to appear, they must be called." If, indeed, the rule is founded on the presumption of the attesting witness's death, then it seems to follow, that, where this presumption is contradicted by the fact of his being still alive, the execution of the deed ought to be regularly proved, as in ordinary cases. But if courts of law have adopted the rule, not on the presumption of a fact, (which would be for the consideration of the jury rather than of the court,) but as a general maxim of law, on account of the great difficulty of proving execution after an interval of many years, and have therefore fixed a limit, beyond which the proof of execution will not be required, there appears to be no incon- sistency in acting generally upon this principle, though in a particular case the subscribing witness may be proved to be alive, at the same time leaving it to the opposite side to dis- pute the regularity of the execution by calling him or any other witness. The character and authenticity of old writings depend in a Custody of old great degree on the nature of the place or custody, in which llocumenU - (l) i Selw. N. P. 402. 47S Of the Proof of Deeds, Agreements, <$c. [Ch. 8. Custody of old they have been kept. This is the case with terriers, ecclesi- docnmcnts. a.stica.1 surveys, court rolls, and other muniments of manors, — which ought to be produced each from its proper depository ; and if they have been regularly preserved, it will not be neces- sary, after a considerable lapse of time, to prove them genuine. For the same reason, old grants to abbeys have been rejected as evidence of private right, because the possession of them did not appear to be connected with any persons, who had an interest hi the estate. (1) In the case of Bullen v. Michel, before stated (2), one of the questions, on the admissibility of the chartulary, related to the custody, from which that old document was pro- duced. It appeared, that the chartulary was brought from the muniment-room of the Marquis of Ba th, who, although not the owner of the particular farm, nor of any property in the parish of S., was the owner of o ther estates formerl y belonging to the abbey, and concerning which estates entries were to be found in the same document ; and the character of the hand-writing in the chartulary was proved to be of the reigns of the three first Edwards. " The question is," said the Lord Chief Baron Gibbs, in delivering the judgment of the Court, " whether this book appeared, from the facts attending it, to have belonged to the abbey of Glastonbury. We should recollect, that such a book, as this purports to be, usually contains a description of all the estates of the abbey, and all the transactions relating to them. When the abbey was dis- solved, those estates went to the Crown, and the Crown afterwards granted them to different persons ; the book, when the abbey was dissolved, would go to the officers of the Crown, and when the Crown portioned out and made over the posses- sions of the abbey to other persons, the book could go only to one of those grantees ; and the only possible way of connect- ing it with the abbey is, by shewing a connection between the (1) Lygon v. Strutt, 2 Anstr. 601. Michell v. Rabbets, cited 5 Taunt. Swinnerton v. Marq . of Stafford, 5 91., and stated supra, p. 420. Taunt. 91. cited supra, p. 420. (2) See ante, p. 4C.o. Sect. 1.] Of the Proof of Deeds, Agreements, §c. 479 possessor and the crown, and by raising a probability, that the Custody of old crown may have handed over the book to the present posses- lient: " sox\" Now, such a connection was shewn in the present case ; for it appeared, that the present owner of the book is also the owner of certain lands, which formerly belonged to the abbey, and on the dissolution of the abbey passed to the Crown, and from the Crown to the present possessor ; and the probability is, that the book attended the lands in their passage from the Crown. On this ground, therefore, the Court were of opinion, that the custody was so accounted for, as to render the book admissible in evidence. The case of Earl v. Lewis (1) is another instance on this subject. There it was proved, on the trial of an issue respect- ing the boundaries of two adjoining parishes, that the old papers offered in evidence on the part of the plaintiff (the rector of one of the parishes) had come into the possession of the son of the former rector, upon his father's death, and that the son delivered them over, as papers belonging to the parish, into the hands of the witness, who produced them in court, in the same state in which he had received them; and this was held to be sufficient evidence of the authenticity of the papers. So in the case of Jones v. Waller (2), on a bill for tithes, a book p urporting to be the book of a collec tor of tith es, some- thing more than -seventy years old, being in the hands of the successor of that collector, was for that reason ^considered authentic. In the case of Manby v. Curtis (3), a paper, purporting to be a receipt fifty years old, was produced as matter of evi- dence, to shew that a man of the name of Curtas had, fifty years before, paid to a man of the name of Smith, a certain sum in lieu of tithes, and, in support of the authen- ticity of this paper, it was proved to have been delivered to (1) 4 Esp. N. P. C. 1. before out proof of the collector's hand- Heath J. writing. (2) 3 Gwill. 847. The evidence (.3) l Price, 225. Mr. Baron is said to have been received with- Wood dissenting. 480 Of the Proof of Deeds, Agreements, §c. [Ch. 8, Custody of old the witness by the defendant: but it did not appear, where the ocunicnts. defendant got the paper, nor did it appear whether Smith was dead, or even who he was ; the Court of Exchequer therefore re- jected the evidence, on the ground that the paper had not been authenticated. And in the case of Randolph v. Gordon ( 1 ), where a book, purporting to be the book of a former rector, was produced by the defendant's attorney who received it from the defendant, and the defendant was the grandson of the former rector ; but it did not appear, whether he had found the book among his grandfather's papers, or how it came into his possession; the Lord Chief Baron held, that the book was not admissible. In the case of Bertie v. Beaumont (2) the question was, whether a paper, which on the face of it contained evidence of monev-payments in lieu of the tithes enumerated in it, was ad- missible, to shew that a Dr. Eyre, who was clearly at the time rector, and had been so for many years preceding, and had received customary payments, (there being also negative evi- dence, that no payments of tithes in kind had been ever made,) had given such receipt, and thereby acknowledged such pay- ments. This paper was produced by the defendant's solicitor, who stated, that he received it from the defendant, for the purpose of preparing his defence. It was not given to the defendant, but to another person of the same name, and who of course occupied lands in the parish, for none but an occupier could have acquired such a receipt. The Lord Chief Baron Thompson said, " That person being of the same name with the present defe^mkjin^jhe^e_is_a^j^sonable inference, that they were so con nected_as__tc^ _make t his the proper custody ; and reasonable evidence of proper custody is_ all thatcan be required, and is su fficient." It was objected also, that the hand-writing of the paper had not been proved; " but," said the Chief Baron, " I do not think, that any such proof was necessary to establish a document of this sort, at (l) 5 Price, 512. (2) 2 Price, 307. 15 Sect. 1.] Of the Proof of Deeds, Agreements, <§r. 48 L sucli a distance of time, any more than it would have been Enrolment necessary to prove a deed of the same date." '_ The rule respecting the proof of the custody, in which docu- ments have be en k ept ^ appli es more par ticula rly to ancient docu- ments^ whose authenticity depends, in some degree, upon their custody, and which must be shewn to be connected with the party who produces them. In common cases, where the written in- strument itself purports to belong to the party, who produces it in evidence, no proof can be requisite as to the place in which it has been kept. On a question of settlement, where the respondents produced a certificate; more than thirty years old, purporting to be granted to the parish by the appellant- parish, the mere production of it was held to be sufficient, and the respondents were not obliged to shew, that the certifi- cate had been kept in the parish chest ; ( 1 ) and it would be suf- ficient, if the certificate were to be produced by a rated inhabitant of the parish. (2) So in an action for a false return to a mandamus, a corporator may produce the muniments of the corporation. (3) It has been before mentioned, that if a witness is called merely to produce an instrument, he need not be sworn for that purpose. (4) Secondly, Deeds enrolled have been adm ittedjwithouXproqf 2. Deeds ■■ ■ "" ■ ■■" — ' " ~ enrolled. of exec ution. (5) On this subject, Ch. B. Gilbert makes the following distinctions : " Where a deed needs enrolment/' (as deeds of bargain and sale, by statute 27 Hen. VIII. c. 16.) " there the enrolment is the sign of the lawful execution of such deed, and theT officer, appointed to authenticate such deeds by enrolment, is also empowered to take care of the fairness and legality of such deeds, and therefore a copy of such enrolment must be sufficient ; for when the law has ap- pointed them to be made public acts, the copy of such public (1) R. v. Ryton, 5 T. R. 259. (s) 2 Maule & Selw. 53S. (2) R. v. Netherthong, 2 Maule (4) See ante, p. 273. & Selw. 337. This was before the (J) Com. Dig. tit . Evidence, late act of parliament, which made (B 2.), citing 1 Salk. ->si. rated inhabitants competent wit- nesses on the trial of an appeal. VOL. I. I I 482 Of the Proof of Deeds, Agreements, $c. [Ch. 8. Enrolment acts shall be a sufficient attestation. (1) But where a deed _* needs no enrolment, there, though it be enrolled, the inspexi- 7nus of such enrolment is not evidence, because, since the officer has no authority to enrol them, such enrolment cannot make them public acts, and consequently cannot entitle the copy of them to be given in evidence ; for then, if the deed were doubful, it were but to enrol it, and bring the copy or inspeximus in evidence, and thereby avoid producing a deed that was any way suspicious." (2) Mr. Justice Buller, after citing the rule from Chief Baron Gilbert, (that deeds of bargain and sale, enrolled and requir- ing enrolment, may be given in evidence without proof of the execution,) observes (3), that "the law may well be doubted, •** notwithstanding that such deeds of bargain and sale enrolled ** have frequently in trials at nisi prius been given in evidence '* without being proved. In support of this practice," he adds, " the case of Smartle v. Williams (4) is much relied on ; " but that case is wrong reported, for it appears from the re- " port in Levinz (5), that the acknowledgment was by the " bargainor, and so is stated in Salkeld's manuscript ; besides " itrappears from both the books, that it was only a term that " passed, and consequently it was not an enrolment within " the statute." Mr. Justice Buller then cites a case from Styles's Reports (6), where Glyn C. J. is reported to have said, that " if divers persons seal a deed, and but one of them ac- knowledge the deed, and the deed is thereupon enrolled, this is a good enrolment, and may be given in evidence at a trial, as a deed enrolled." " But it would be of very mischievous " consequence," observes Mr. Justice Buller, " to say, there- " fore, that a deed, enrolled upon the acknowledgment of a "bare trustee, might be given in evidence against the real '* owner of the land, without proving it executed by him. " However, that has been the general opinion, and it seems (1) Gilb.Ev.86. Baikiev.Chand- (2) Gilb. Ev. 86. lKeb. 117. less, 3 Campb. 21. Garrick v. Wil- (3) Bull. N. P. 256. liams,5 Taunt. 544. Taylor v. Jones, (4) l Salk. 2SO. 1 Ld. Raym. 746. 1 Keb. 117. 1 (5) 3 Lev. 387. S. C. Salk. 230 (6) Thurle v. Madison, Styl. 4 6?. Sect. 1.] Of the Proof of Deeds, Agreements, 8p. 183 " fortified in some degree by statute 10 Ann. c. 18. On the Enrolment " other hand, it seems as absurd to say, that a release, which ofdeeds " " has been enrolled upon the acknowledgment of the releasor, " shall not be admitted in evidence against him, without being " proved to be executed, because such release does not need " enrolment : and in fact such deeds have often been ad- " mitted : and that was the case of Smartle v. Williams ; the " deed there did not need enrolment, yet, being enrolled on '* the acknowledgment of the bargainor, it was read against " him without being proved." In the case of Smartle v. Williams, an . examined copy of the enrolment of a deed of bargain and sale, by which a term of years was assigned, was offered in evidence without any proof of the bargainor's sealing and delivery. It was objected, that the copy of the deed enrolled was not evidence, because the interest assigned, being only a term, passed immediately, and the enrolment afterwards is no more than an enrolment of an obligation : but the court over-ruled this objection, and held, that " the acknowledgment of the deed by the lessor before the master in Chancery is good evidence against him- self, and against all who claim under him." ( 1 ) So, in the case of Lady Holcroft v. Smith (2), a distinction was made between deeds of bargain and sale, (enrolled in pursuance of the statute of Henry VIII.) and other deeds enrolled, and it was held, that a copy of a deed, enrolled for safe custody, would not be evidence otherwise than against the party, who sealed it, and all claiming under him. It does not appear from any of the authorities cited by the Chief Baron Gilbert, (excepting the case of Smartle v. Williams,) against what party the copy of the enrolment was offered in evidence. If the enrolment had been on the acknowledgment of the bargainor, and offered as evidence against him, there cannot be a doubt of its being- admissible. With regard to a copy of the enrolment of a deed of bar- gain and sale, indented and enrolled in pursuance of the statute (l) 3 Lev. 387. (-2) 2 Freeman, 259. i I 2 484 Of the Proof of Deeds, Agreements, %c. [Ch. 8. Enrolment of Henry VIII., it is enacted by statute 10 Ann. c. 18. s. 3. (1) of deeds. a ^ or SU pplying a failure in pleading or deriving title to lands, &c. conveyed by such deeds of bargain and sale, where the original indentures are wanting,) that, where in pleading any such indenture shall be pleaded with a profert, the party so pleading may shew forth and produce a copy of the enrol- ment; and such copy, examined with the enrolment, and signed by the proper officer having the custody of the enrol- ment, and proved upon oath to be a true copy, shall be of the same force and effect, as the indenture of bargain and sale would be, if produced." Before this statute, an enrolment of the deed could not have been pleaded ; and though a deed had been exemplified under the great seal, yet it was necessary, at common law, to shew forth the deed itself under seal, and not the exemplification. (2) So, by the common law, a constat or inspeximus of the king's letters patent could not have been shewn forth in court, but the letters patent themselves ; but by statute 3 & 4 Ed. VI. c. 4., explained by stat. 13 Eliz. c. 6., " patentees, and persons claiming under them, may make title in pleading by shewing forth an exemplification of the enrolment of the letters patent, as if the letters patent them- selves were pleaded and shewn forth ;" and now they are to be given in evidence in the same manner, as if they were pleaded. (3) _Theji^e^pjnceTrung copies of enrolments appears then to be, thaj_anjexamined copy of the enrolment of a b argain and sale of freehold in lands, &c. is as good evidence as t he origi - nal itself (4) ; but that a copy of the enrolment is n ot evidence of a bargain and sale of a chattel interest, or of the contents of any other deed, enrolled for safe custody, excep^as_against the party acknowledging the deed ; and that against such party, and against all claiming under him, a copy of the enr olment of an y _deed is admissible in evidence. (1) See also stat. 8 G. 2. c. 6. (3) Olive v. Gwyn, Hardr. 119. s. 22., concerning deeds of bargain (4) See 14 East, 231., and Holl- and sale of lands, in the North Riding house v. Hamilton, 1 Schoal. & of Yorkshire. Lefr. 207. (?) Co. Lit. 225. b, Sect. 1.] Of the Proof of Deeds, Agreements, fyc. 485 The enrolment of a bargain and sale under the statute of Proof of Henry the Eighth is a record ; the date of the enrolment is a JL material part of the fact of the record, and proof or an aver- ment of a different date is not admissible. (1) Lastly, A deed may be given in evidence, under a rule of 5 - D( jed P ro ," ., (. . ^i • duced by rule court, without proof of execution ; for the consent is conclu- f court. sive, and the jury are to try only such facts as are in issue between the parties. (2) Fifthly, of the proof of hand-writing in general. The simplest and most obvious proof of hand-writing is the Proof of ' T :, — . , , : : — ~~ ,, hand-writing. testimony or a witness, who saw the paper or signature actually written. But a great variety of cases must continually occur, where such a direct kind of evidence cannot possibly be pro- cured. The writing may be secret, as must constantly happen in cases of a fraudulent or criminal nature ; or, if any person was present, he may be dead or unknown. In this deficiency of positive proof, the best evidence, which the nature of the case admits, is the information of witnesses acquainted with the supposed writer, who, from seeing him write, have ac- quired a knowledge of his hand-writing : for in every person's i. Proof by . . , . n . . .,- i witnesses, who manner of writing there is a certain distinct prevailing cna- j lave seen t i le racter, which may be easily discovered by observation, and, P art y write, when once known/ may be afterwards applied as a standard to try any other specimens of writing, whose genuineness is disputed. A witness may therefore be asked, whether he has seen a particular person write, and afterwards, whether he believes the paper in dispute to be his hand- writing. This course of examination evidently involves two questions ; first, whether the supposed writer is the person, of whom the witness speaks ; and, secondly, if he is the person, whether he wrote the paper in dispute. The first is a question of identity ; the second a question of judgment, or a comparison in the mind of (l) The King in aid of Reed v. (2) 1 Siderf. 260. Gilb. Ev. 91. Hopper, 3 Price, 495. 511. Bull. N. P. 256. J 1 3 486 Of the Proof of Deeds, Agreements, 8$c. [Ch. 8. Proof of _ the witness, between the general standard and the writing pro- hand-writing. . , duced. This kind of evidence, like all probable evidence, admits of every possible degree from the lowest presumption to the highest moral certainty. It may be so weak, as to be utterly unsafe to act upon ; or so strong as, in the mind of any rea- sonable man, to produce conviction. The witness may have been in the constant habit of seeing the person write, day after day, for years together, on common transactions, and in the course of important business ; and what better means can he have of gaining the most accurate knowledge of his manner of writing? On the other hand, it may be found perhaps on enquiry, that he has seen him write only a few words, many years ago, or only once ; or the specimens, which he saw, were perhaps slight and imperfect, made in "a hurry, at distant intervals, or from some other cause were not the fair average specimens of his general style of writing, but deviations from the common form; in which cases, the impression on the mind of the witness would be faint and inaccurate. But what- ever degree of weight his testimony may deserve, which is a question exclusively for the jury, it is an established rule, that, if he has seen the person write, he will be comp etent to speak to his hand- writing. (1) On the trial of Algernon Sidney, as appears from the printed report of that case (2), three witnesses were called to prove a paper to be his hand-writing ; the first said, he had seen the prisoner write the endorsement upon several bills of exchange, and that he believed the paper to have been written by him : this evidence was objected to as a comparison of hand-writing, but admitted : the second witness said, he had (l) Lord Preston's case, 4 St. Tr. 4 Esp. 37. If a written paper bear 446, 447. Francia's case, 6 St. Tr. the signature of a person's Christian 70. Layer's case, 6 St. Tr. 275. name and surname, the hand-writing R. v. Dr. Hensey, l Burr. 644. De- will not be sufficiently proved by a la Motte's case, Howell's Coll. St. witness who never saw the party Tr. vol. xxi. p. 810. Eagleton and write his Christian name; Powell v. Coventry v. Kingston, 8 Ves. 438. Ford, 2 Starkie, N. P. C. 164. 474. Stranger v. Searle, l Esp. (2) 3 St. Tr. 802. . N. P. C. 14. Carrels v. Alexander. Sect. 1.] Of the Proof of Deeds, Agreements, ) But unless there is positive proof that the entire will was not in the room, the question, whether it was so or not, is a question of fact to be left with all the particular circumstances of the case to the consideration of the jury. (5) The witnesses are to attest and subscribe in the presence of the testator; and as the object of this provision was to guard against fraud, and prevent the substitution of a false will in the place of the true one, the obvious meaning of the statute must be, that the testator should be in such a state of mind, and in such a situation, as to be capable of seeing the witnesses in the act of subscribing. It will not be a good execution, if the testator was in a state of insensibility (6), or if it was impossible for him to see the witness subscribe. (1) Cook v. Parsons, Prec- in (3) Bond v. Seawell, 5 Burr. 1775. Chan. 185. Jones v. Lake, 2 Atk. l Black. Rep. 407. 422. 454. 177., in note. S, P. Admitted in 2 (4) Lea v. Libb, 5 Mod. 262. Ves. 458., and in 1 Ves. jun. 14- 1 Eq. Cas. Ab. 405. S. P. (2) Harrison v. Harrison, 8 Ves. (5) Bond v. Seawell, 3 Burr. 17 75. 2SS. Addy v. Grix, ib. 504. (6) Cater v. Price, 1 Doug. 241 . Sect. 2.] Of the Proof of Wills. 505 " It is enough if the testator might see, it is not necessary that he should actually see them signing ; for at that rate, if a man should turn his head back, or look off, that would vitiate the will." (1) But if the jury find the fact, that the testator might have seen what was passing at the time of the subscribing, then it will be presumed in favour of the attest- ation, that the testator actually saw what he might have seen. In one case, the testator was sick in bed, and the witnesses withdrew into a gallery, and there subscribed it; between which gallery and the bed-chamber, where the testator lay, there was a lobby with glass doors, and part of the glass was broken. (2) In another case, the testator lay in bed in one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that and the door of the testator's room were open. (3) In a third case, the testatrix sat in her carriage opposite the window of her attorney's office, in which office the witnesses subscribed their names. (4) In all these cases, (and in others, which might be mentioned to the same effect, differing only in their peculiar circumstances,) the execution was held to be suffi- cient, the material fact being proved, that the testator might have seen the attestation, if he had chosen to look. If one of the subscribing witnesses can prove the execution, (as, that the testator signed in the presence of himself and two other witnesses, or that he acknowledged his signing to each of them, and that each of the witnesses subscribed in his presence,) this will be a sufficient proof of the will without calling the others. But if the witness, who is called, can only prove his own share in the transaction, as must happen, where the testator acknowledged his signing to the witnesses separately, the other witnesses ought in that case to be called, (1) Shires v. Glascock. 2 Salk. 687. (4) Casson v. Dade, 1 Brown, Clu (2) Sir G. Sheers's case, cited C. 99. See also Doe, dem. Wright Carth. 81. and others, v. Manifold, 1 Ma-ule & (.") Davy and another v. Smith, Selw. 294. 5 Salk. 595. Of the Proof of Wills. [Ch. 8. If they are dead, or insane, their hand-writing, and the hand-writing of the testator, ought to be proved ; it will then be a question for the jury, whether under the circumstances of the case it is probable, that all the formalities of the statute were regularly observed. ( 1 ) The clause of attestation gene- rally expresses, that the witnesses subscribed in the presence of the testator ; but such a statement is not absolutely neces- sary; and though it is entirely omitted, the omission will not conclude the jury from finding, that the will was so subscribed. In the case of Croft v. Pawlet (1), the attestation was, that the will had been signed, sealed, published, and declared as his last will, in the presence of the subscribing witnesses ; the witnesses being dead, and their signatures proved in the common way, it was objected, that this was not an execution according to the statute of frauds ; for the signatures of the witnesses could only stand as to the facts to which they had subscribed, and signing in the presence of the testator was not one; but the Court were of opinion, that this was a matter of evidence to be left to the jury, and they gave a verdict in favour of the will. If_a_subscribing witness is abroad, who ought to be called if he could be produced, his hand-writing may be proved in the case of a will, as in cases on the execution of a deed, and the rule appears to be the same in court s of equity. Thus where a question arose, whether it was necessary to send out a commission to examine one of the witnesses, who was in Jamaica, Lord Alvanley, then Master of the Rolls, held, that it was not necessary to have his examination, but that the case was the same, as if the witness were dead (2) : the heir at law, he observed, did not make a point of it, but submitted it to the Court; and he cited a case, where it was thought not only unnecessary, but very dangerous to send the will abroad. And in another case, where it was ob- (]) Hands v. James, 2 Comyn's l S. P. Lord Ranclifle v. Parkynt, Rep. 550. Croft v. Pawlet, 2 Stra. 6 Dow. 202. 1J09. Brict v. bmith, Wilks's Rtp (2) Ld. Carrington v. Payne, 5 Vcs. 411. Sect. c 2.] Of the Proof of Wills. 5Q7 jectcd, that one of the witnesses was abroad, Lord Chancellor Thurlow said, he doubted, whether the rule had ever been laid down so largely, as that the will could not be proved without examining all the witnesses, although that had been the practice. (1) If a subscribing witness should deny the execution of the will, he may be contradicted, as to that fact, by another sub- scribing witness ; and even if they all swear, that the will was not duly executed, the devisee would be allowed to go into circumstantial evidence, to prove the due execution. (2) If one of the subscribing witnesses impeach the validity of the will on the ground of fraud, and accuse other wit- nesses, who are dead, of being accomplices in the fraud, the devisee may give evidence of their general good cha- racter. (3) "When the subscribing witnesses are dead, and no proof of Proof of old their hand-writing can be obtained, as must frequently hap- pen in the case of old wills, it will be sufficient to prove the signature of the testator alone. In a case (4), where the hand-writing of two subscribing witnesses was proved, and no account could be given of the third, the will being above thirty years old, and the testator having been dead for twenty years, an objection was made to the proof of the will ; but the Master of the Rolls said, he could not see any distinction in this respect between a will and a deed, except that the former, not having effect till the death, wants a kind of authentication, which the other has; that is, from the nature of the subject; but in this case, he added, I think the proof sufficient; for in a late case in the Court of King's Bench, Cunliffe v. Sefton (5), an enquiry of the same kind was held sufficient. The Master of the Rolls (1) Powcl v. Cleaver, 2 Brown. Stra. 1096. Lowe v. Jolifle, 1 Black. Ch. C. 504. Sec Grayson v. Atkin- Rep. 565. son, 2 Vcs. 460. (5) Vide supra, p. "508. (2) Austin v. Willes, Bull. N. P. (4) M'Kcnire, v. Frascr, Ves. S. 264. Pike v, Badnjering, cited 2 (5) 2 East. 185. <508 Of Stamping, [Ch. 9. therefore held, that the execution of the will had been suf- ficiently proved. In the case of Calthorpe v. Gough and others, at the Rolls, (1 ) a will, thirty years old, (reckoned from the date of the will, not from the testator's death,) was not proved by witnesses, and it was said at the bar, that proof was not necessary on account of the age of the will ; and, in support of this,, a case of Mac- kery v. Newbolt was cited, in which Sir Lloyd Kenyon, then Master of the Rolls, is said to have decided, that a will, above thirty years old, should be read without proof, although the testator had died very recently. That point, however, was not decided in the case of Calthorpe v. Gough,, because the plaintiff, the heir at law, admitted the will, and claimed under it. In the late case of Lord Rancliffe v. Parkyns (2), the Lord Chancellor is reported to have expressed an opinion, that a will, thirty years old, if there has been possession under it, proves itself, when the attestation records the fact of the sign- ing of the witnesses in the testator's presence ; and, if the sign- ing is not sufficiently recorded, yet that the fact of possession under the will, and claiming and dealing with the property, as if it had passed under the will, would be cogent evidence to prove the duly signing by die witnesses. (2) The general rule seems to be, that a will, thirty years old, unless there has been possession under it, ought to be proved like any other will. (1) 4 Term Rep. 707. n. (a) 709. (2) 6 Dow. 202. CHAP. IX. Of Stamping, as a Requisite of Written Instruments. A WRITTEN instrument, which requires a stamp, cannot be admitted in evidence, unless it be duly stamped; and no parol evidence will_bejreceived of its contents. If, there- fore, the instrument produced is the only legal proof of the 15 Ch. 9.] as a Requisite of Written Instruments. 509 transaction, and that cannot be admitted for want of a proper stamp, the transaction cannot be proved at all(l); as, in an action for use and occupation, if it appear that the de- fendant held under a written agreement, which for want of a stamp cannot be received, the plaintiff will not be allowed to go into general evidence ; for the agreement is the best evi- dence of the nature of the occupation. (2) Parol evidence of a lost agreement cannot be received, if the agreement was on u nstamped paper; though it has been wrongfully de- stroyed by one of the parties, yet the other party will not be permitted to prove its contents by parol evidence; this is one of the risks which attends the omission to have the agreement properly stamped, that, if any accident happen to it, before the stamp is affixed, all remedy by action is entirelyjrone. (3) But it may happen in a variety of cases, that the transaction Proof of the is capable of being proved by other evidence, besides the writ- ^ho^ 10 " ten instrument ; and the objection, arising from the stamp acts, writing. may be avoided by resorting to that other species of proof. Thus a although an unstamped receipt for the payment of a bill is not admissible in evidence, yet the fact of payment may be proved by a witness, who saw the money paid; and even such an unstamped receipt may be shewn to the witness, as a memorandum to refresh his memory. (4) So, in an action on a promissory note, though the plaintiff cannot give the note in evidence, unless it is duly stamped, yet he will not be precluded from recovering on one of the general counts of the declaration, if he can prove an admission of the original debt, or give other evidence of a consideration received by the defendant. (5) And so, when a party to the (1) R. v. St. Paul's, Bedford, 6 (3) Rippener v. Wright, 2 Starkie, T. R. 452. Hodges v. Drakeford, N. P. C. 478. 1 New Rep. 271. R. v. Castle Mor- (4) Rambert v. Cohen, 4 Esp. N. ton, 3 Barn. & Aid. 588. P.C. 213. Jacob v. Lindsay, 1 East, (2) Brewer v. Palmer, 5 Esp. N. 460. P.C. 213. Doe, dem. St. John, v. (5) Farr v. Price, 1 East, 57. Hore, 2 Esp N. P. C. 724. Rams- Alves v. Hodgson, 7 T. R. 243. bottom v. Mortley, 2 Maulc & Selw. Tyte v. Jones, 1 East, 58. n. («). 445. Brown v. Watts, I Taunt. 3.53. Wade v. Beasley, 4 Esp. N. P. C. 7. 510 Of Stamping, [Ch. . (3) 2 East, 414. Ch. 9J as a Requisite of Written Instruments. ,513 A question has often arisen, whether an instrument, to Several which several persons are pa rties, requ ire sev eral s tamps, or necessary. ^ whether a single stamp is sufficient. And the distinction established is, that if the interest of the parties relates to one thing, which is the subject-matter of the instrument, or, in other words, if the instrument affect s the separate interests of seve ral, and there ii^ a community of the_same subject- matter as to all the parties (1), there a single stamp will be su fficient : but where thejmrties have separate interests in se- veral subject-matters, ther e ought to be a separate stamp for e ach party, against whom, or in whose favour, the instru- ment is offered in evidence. To illustrate the first part of the rule, if a debtor com- pounds with his creditors, and each creditor sign the same deed, covenanting either to give further day of payment, or to take a certain sum as a composition ; there, every covenant is in fact a separate covenant, and the several deed of each creditor, who signs the deed ; but the whole being only one transaction, a separate stamp for each person is not re- quired. (2) So, if several persons bind themselves severally in a penalty by one bond, conditioned for the performance of certain acts, by each and every of them, such a bond requires only one stamp. (3) Upon the same principle, it has been held, that an agreement relating to the prize shares of different persons, though several as to the share of each, yet, being payable in* respect only of one entire fund, is only chargeable with one stamp. (4) And on the authority of this case, the Court of King's Bench determined in a very late case, that a single stamp was sufficient for an agreement, which several persons had entered into for a subscription to one common fund, for the purpose of constructing a dock. (5) In the case of Jones v. Sandys (6), the question was, whether (1) 13 East, 246. (0 Baker v. Jardine, 12 East, (2) 1 New Rep. 278. Goodson 235. n. (b.) v. Forbes, 6 Taunt. 171. 1 Mar- (5) Davis v. Williams, 13 Eact, shall, 52.5. S. C. 232. (3) Bowen v. Ashley, 1 New (6) Barnes, 46;. Rep. 274. VOL. I. L L Of Stamping, [Ch. 9. a bond, in the condition of which a mortgage-deed was men- tioned, ought to have had two stamps : and the Court held, that it was not necessary; and in delivering their opinion, they mentioned the cases of bargain and sale, lease and re- lease, mortgage with covenant to pay the money, as constantly charged with only the single duty. But the rule is different, where the instrumentj ncludes in effect several transactions, and the subject-matter is distinct as to the several parties. Thus, an instrument, containing the admissions of several persons to a corporation, re- quires as many stamps as there are admissions. This was de- termined in the case of The King v. Reeks (1), where, in a trial at bar, on an information in the nature of a quo warranto, to prove the admission of the defendant a paper was pro- duced, containing the admissions of the defendant and four other burgesses, which paper was stamped only with one stamp ; it was then objected, on the part of the Court, that this paper, having only a single stamp, could not be admitted to be read in evidence; for the statute 9& 10 W. 3. c. 25. s. 27. enacts, that a certain duty shall be paid for every piece of parchment or paper, upon which any admission into any corporation, &c. shall be written : and the 59th section enacts, that "if any instrument or writing, by that act intended to be stamped, shall, contrary to the intent thereof, be written or engrossed by any person whatsoever (not being a known officer, who in respect of any public office or employment shall be entitled to write the same,) upon parchment or paper not stamped according to that act, then there shall be paid over and above the duty for such instrument ten pounds ; and that no such instrument shall be pleaded or given in evi- dence in any court, or admitted in any court to be good or available in law or equity, until as well the said duty as ten pounds should be paid, &c. and a receipt produced for the same ;" &c., under this section of the act it was insisted, that the (1)2 Ld. Raym. 1445. 2 Str. 716. S. C. Ch. 9.] as a Requisite of Written Instruments. .515 instrument in question, being an admission of five persons to be burgesses, ought to have five stamps ; that it could not be good for any or^e of the five on account of the uncertainty, or at most it could be good only for one ; if it was good for any, it must be for the first named ; but the defendant was the third name, and therefore it could not be good for him. And of this opinion, as the report adds, was the whole Court, after argu- ment. The counsel for the defendant then offered in evidence four other distinct pieces of parchment, bearing date on the - day mentioned in the information, each of them being duly stamped, which imported the several admissions and swearings of the four burgesses last named in the other parchment, and one of them imported the particular swearing and admission of the defendant. But the witness, who produced these pieces of parchment, proved, that the entries were not made upon them, nor were any of them stamped, till near two months after the day on which they bore date ; and, an objection being taken on this ground to the single instrument, which stated that the defendant alone was admitted and sworn, the Court was clearly of opinion; that it could not be admitted in evi- dence ; for by the act the admission is to be on paper or parch- ment, stamped at the time ; otherwise it is not to be given in evidence, till the penalty is paid, and certificate thereof pro- duced. In the case of The King v. Reeks, which has been just men- tioned, the instrument, first offered in evidence, purported to contain the admissions of five burgesses, and it does not ap- pear, that the single stamp, which was impressed, applied more to the defendant's name than to any of the others. This circumstance distinguishes that case from two others lately de- cided, Powell v. Edmunds ( 1 ), and Doe on the demise of Sir Joseph Copley, v. Day (2), in which a j)apjer, containing contracts by several persons relative to different things, though s tampe d with a single stamp, was adjudged to be good (1) 12 East, 6. diagton v. Francis, 5 Esp. N. P. C. (2) 13 East, 241 Sec also Wad- 182. Perry v, Bouchier, 4 Catnpb. 80. L L 2 51(i Of Stamping, [Ch. 9< evidence as to one of the contracting jparties, because the stamp appeared to be applicable exclusively to his na me. In the first case, the paper contained an agreement, signed by the defendant, for a lot of timber, and underneath a second agree- ment with another person for a different lot; this last had pencil marks drawn across it, as if for the purpose of striking it out ; the stamp was affixed on that part of the paper, on which the defendant's agreement was written, and below was the stamp officer's receipt for a penalty " for making the above agreement." An objection was taken on the ground of there being a single stamp, which was over-ruled at the trial, and afterwards by the Court of King's Bench. In the other case (1), the paper contained a variety of independent let- tings of land between the landlord and a number of his tenants, one of whom was the defendant ; the stamp was affixed opposite the defendant's name, and it appeared from the re- ceipt of the stamp-officer, that the money for affixing it was paid after the commencement of the action, and only a short time before the trial ; the instrument also appeared, when produced in evidence, to be cancelled with black-lead pencil marks as to every name except that of the defendant, and it was not proved, that the instrument was not so cancelled at the time when the stamp was affixed. Under these circumstances the Court held, that the single stamp was intended to be ap- plied to the contract with the defendant, and consequently that the paper was admissible. " If, indeed," said Lord El- lenborough C. J., " the instrument had been required to sub- stantiate the several contracts with tlie different tenants, no doubt there should have been a stamp affixed to each, although the same terms of agreement applied to all : one stamp has been only held to be sufficient upon an instrument affecting the separate interests of several, where there has been a com- munity of the same subject-matter as to all the parties. But here it sufficiently appears from the circumstances of the case, that the stamp was meant to be applied to the defendant's sig- nature." (l) 13 East, 241. See also Waddington v. Francis, 5 Esp. N. P. C. 182. Ch. 9-] as a Requisite of Written Instruments, 517 When a s tamped instrument has been once used for one Alteration of jmrpose, it cannot be altered without a new stamp. If the ^ ° f cx " parties have altered their original intention, and make a new n °te. instrument different from that which they originally contem- plated, a new stamp will be necessary. (1) If a bill of exchange, for example, has been once effected, and has issued in a perfect form from the drawer to the acceptor, by whom it was returned with his acceptance to the drawer, it cannot be altered without being re-stamped. Thus, in the case of Bowman v. Nichol (2), where a bill of exchange had been drawn on a proper stamp, payable 21 days after date, and, while it continued in the hands of the drawer, was altered with the consent of the acceptor, to be made payable 51 days after date, and was again altered to 21 days after date, subsequently to the time of becoming payable ac- cording to its original form; the Court of King's Bench held, that, at the time when the last alteration was made, the operation of the bill, as it originally stood, was quite spent ; that it was a new and distinct transaction between the parties; and that there ought to have been a new stamp. So, where a promissory note, payable by the defendant to the plaintiff or order (3), was originally expressed to be for value received, but, on the day after it had been signed and de- livered by the defendant to the plaintiff, was with the consent of the parties altered by the addition of the words " for the good-will of a lease and trade," the Court held, that the alteration was a material one, because it was evidence of a fact, which, if necessary to be enquired into, must other- wise have been proved by different evidence, and also be- cause it pointed out the particular consideration for the note, and put the holder upon enquiring, whether that consi- deration had passed ; a new stamp was therefore necessary, for the want of which the note could not be received in evi- (1) 15 East, 418. ton v. Hastings, 4 Campb. 223. I (2) 5 T. II. 537. See also Mas- Starkie, N.P.C. 215. S. C. Matsou ter v. Miller, 4 T. R. .320. 2 H. v. Booth, 5 Maule & Selw. 226. Black. 141. S. C. Cardwell v. Mar- (.3) Knill v. Williams, 10 E^K tin, l Campb- 79.; 9 East, 190. S.C. 431. Bathe v. Taylor, 15 East, 412. Wal- L L 3 518 Of Stamping j [Ch. 9. dence. The same rule is equally applicable to the case of an accommodation-bill. ( I ) A person having drawn a bill payable to his own order, in- dorsed it to A., who indorsed it to B., and, the bill being dis- honoured, paid the amount to B. ; on which B. struck out his own indorsement and A.'s indorsement, and returned the bill to the drawer ; the drawer then indorsed it, with the indorse- ments struck out, to the plaintiff, without a new stamp; the Court of King's Bench held, that the plaintiff was entitled to recover against the acceptor; the' bill not having discharged its functions, when given to the plaintiff. (2) So, an alteration of the date (3), or of the time for which a bill has to run (4), made with the consent of the drawer and the acceptor, before the bill is negotiated, will not render a new stamp necessary ; and it will be incumbent on the party, who sues upon the bill, to prove the time of making the alteration. Words written on a bill after its acceptance, not affecting the responsibility of the parties, will not vitiate the bill. (5) Nor is the validity of a bill affeoted by writing upon it the place, where it is to be paid. (6) Alteration of policy of in- surance. It is provided by the 13th section of the stat. 35 G. 3. c. 63., relating to stamp-duties on sea-insurances, " that no- thing in that act shall be construed to extend to prohibit the making of any alteration, which may lawfully be made in the terms or conditions of any policy of insurance duly stamped, after the same shall have been underwritten, or to require any additional stamp-duty by reason of such al- teration, so that such alteration be made before notice of the determination of the risk originally insured (7), and the pre- (1) Calvert v. Roberts, 5 Campb. (5) Marson v. Petit, I Canipb. 543. 82. a. (2) Callow v. Lawrence, 5 Maule (6) Trapp v. Spearman, 5 Esp. & Selw. 95. N. P. C 57. Jacobs v. Hart, 2 Star- (5) Johnson v. D. of Marlborough, kie, N. P. C. 45. 2 Starkie, N. P. C. 315. (7) Ramstrom v. Bell, 5 Maule (4) Kennerley v. Nash, 1 Starkie, & Selw. 270. N.P.C. 452. 17 Ch. 9.] as a Requisite of Written Instruments. 519 mium or consideration originally paid or contracted for, exceed the rate of 10 shillings per cent, on the sum insured, and so that the thing insured shall remain the property of the same persons, and so that such alteration shall not prolong the term insured beyond the period allowed by this act, and so that no additional or further sum shall be insured by means of such alteration." In the case of Kensington v. Inglis (1), where the policy i. Alteration was " on goods and specie on board of ship or ships as , to ime *» ° r L l sailing. sailing between the 1st of October, 1799, and the 1st of June, 1800, being the property which should first sail to a certain amount, and upon the vessels carrying the goods," and a memorandum was written on the policy and sub- scribed by the defendant on the 11th of June, 1800, before any notice of the determination of the risk had been received, by which memorandum it was agreed to extend the time of sailing to the 1 st of August following, the Court of King's Bench in this case held, that the memorandum did not require a stamp ; for although the time of sailing was extended, yet no new subject of insurance was introduced by the memorandum, but the object insured continued the same. In another case (2), which occurred upon the same clause, 2 . Alteration where the policy was originally " on ship and outfit" from ? 8 to v ro P cri H tTisuvcd* London to the South Seas, but, after the sailing of the ship, was altered by consent of the underwriters, and declared to be " on the ship and goods" instead of ship and outfit, the Court determined, that, as the outfit, originally insured, was essentially different from goods, which were afterwards made the subject of insurance, the policy in its altered state required an additional stamp. " The question is, said Lord Ellenbo- (1) 8 East, 275. Hubbard v. ten, 9 East, 351. Hubbard v. Jack- Jackson, 4 Taunt. 169. Ridsdale v. son, 4 Taunt. 169. The cases on Shedden, 4 Carnpb. 107. this subject are collected in Parke's (2) Hill v. Patten, 8 East, 375. Treatise on Insurances, p. 16., last 1 Campb. 72. S. G. French v. Pat- edit. L L 1< 5*20 Of Stamjwig, [Ch. {). rough C. J., in delivering the judgment of the Court, whether that part of the provision, which requires, that " the thing insured shall remain the property of the same person," has been in this case complied with. The words, *' the thing insured shall remain the property," appear pro- perly to require and apply to one identical and continued subject-matter of insurance ; such subject-matter all along remaining the property of the same proprietor, and to be ill-suited to a case like the present, where the thing last insured is not only in fact, but in name and kind, as a specific subject of insurance, essentially different from the thing first insured, and which begins also to have an ex- istence at a different and much later period than the other, and when the thing first insured scarcely, or in a small degree only, remains or continues to exist at all." ness z. Alteration A memorandum indorsed upon a policy, waiving the war- ns to warranty rant y f sea-worthiness, does not require a new stamp. (1) And Mr. Justice Bayley compared the case to that of a warranty to sail within a certain time, which maybe altered by an unstamped memorandum, even after the period when the condition has terminated, without affecting the continuance of the policy. 4. Material alteration. Where a policy has been executed in the common printed form, without any specific subject of insurance expressed in writing, and the subject-matter is afterwards inserted, the assured cannot recover against those underwriters, who have not signed the policy after the addition; for a material alter- ation is introduced with respect to such of the underwriters as have not assented. (2) It has been determined by several cases, that a material alteration in a material part of a policy of insurance, made by one of the parties interested, without the consent of all parties, destroys the policy as to those under- writers who have not assented to the alteration. (3) Even if (1) Weir v. Aberdeen, 2 Barn. (>) Fairlie v. Christie, 7Tannt.4l6. & Aid. 325. Holt, N. P. C. 351. S. C. Campbell (2) Langhorn, v. Cologon, 4 v. Christie, 2 Starkie, N. P. C 6 l. Taunt. 330. Ch. 9.] as a Requisite of Written Instruments. 521 all the parties as sent to an alteration^ and the altera tionjs such as to make the policy void for want of a newsta mp, the policy cannot be enforced in its original form. ( 1 ) This is a general principle, and applies equally to bills of exchange, promissory notes, and other negotiable instruments. An immaterial alter- ation in a policy of insurance, made by the party insured, (as, an alteration by the insertion of words, which add nothing to what was expressed before in substance, and do not in any degree vary the legal effect of the policy (2),) will not vacate the policy, even as against a party, who refused his consent to the alteration. Where an alteration is made in an instrument, with the Alterations to consent of all parties, in order to correct a mistake, and to ta j ies make the instrument consistent with the original intention of the parties, there it has been held, that a fresh stamp is not necessary. Thus in the case of Kershaw v. Cox (3), where a bill had been drawn, payable to the defendant but not payable to order, the defendant, on the day after the bill was drawn, indorsed it over to the plaintiff, without adverting to the omission of the words " or order;" on the same day the plaintiff returned it to the defendant, to get the omission recti- fied, and the drawer then inserted the words ; here, there was strong evidence to shew, that the omission was by mistake, for the bill was intended to be negotiable, and as such imme- diately indorsed, as if it had been drawn payable to order, and, as soon as the omission was discovered, it was rectified by the proper parties: the learned Judge, therefore, who tried the cause, left it to the jury to consider, whether the words, after- wards added, had been originally intended to have been in- serted, but were omitted by mistake ; and, the jury finding this to be the case, it was ruled, that a fresh stamp was not required. The point was afterwards brought before the Court of King's (1) French v. Patten, 9 East, 351. 1.5 East, 417. Jacobs v. Hart, 2 Star- ts) Sanderson v. Symonds, 1 Brod. kic, N.P.C. 45. Robinson v. Touray, & Bing. 426. 1 Manic & Selw. 217. Robinson v. (3) 3 Esp. N. P. C. 246. before Tobin, 1 Btarkie, N. P C. 336. Le Blanc J., cited io East, 435., and 522 Of Stamjmig, [Ch. g. Bench, on a motion to enter a nonsuit, and the alteration was adjudged to be allowable under the stamp acts ; having been made merely for the purpose of rectifying a mistake in draw- ing the bill contrary to the intention of the parties. In another case, which occurs upon this subject, where an action was brought against the defendant as acceptor of a bill of exchange (1 ), it appeared, that the defendant and another person, being indebted to the plaintiff, agreed to give him a bill of exchange, to be drawn by the one and accepted by the other (the defendant) ; instead of this they sent him a pro- missory note, made by the one and indorsed by the other, which the plaintiff immediately returned, that it might be altered into a bill of exchange according to the agreement, and the alteration was accordingly made; an objection was taken, on the ground that the instrument required a fresh stamp; but Lord Ellenborough C. J. ruled, that the stamp impressed was sufficient to render the instrument available, since it had not been negotiated as a promissory note, and the alteration might be treated as the correction of a mistake, ac- cording to the terms of the original agreement. The case of Cole v. Parkin (2) affords another instance of the rectification of a mistake, in a bill of sale of a ship. The bill of sale, in reciting the certificate of registry, stated Guernsey as the port, where the certificate was granted, instead of Wey- mouth, and in this state was executed, but the mistake, being afterwards discovered, was rectified with the consent of all parties, and the deed delivered afresh ; the question was, whether this second delivery made a new stamp necessary; Lord Ellenborough C. J., in delivering the judgment of the Court, referred to statute 26 G. 3. c. 60. s. 17., which enacts, that a bill of sale of a registered ship, which does not truly and accurately recite the certificate of registry in words at length, shall be utterly null and void to all intents and purposes. " This bill of sale, therefore, when first executed, was, from (l) Webber v. Madtlocks, 3 (2) 12 Eas>t, 471. Campb. I. Cb. 9«] as a Requisite of Written Instruments. &23 the mistake in the recital of the certificate of registry, to all in- tents and purposes null and void : it took no effect whatever from its first delivery ; and the stamp impressed upon it was wholly inoperative. This defect arose not from intention, but from mistake. The instrument, as first executed, was not what the parties meant to execute ; and it was not in the state, in which it was at first intended to be, till it was altered. This is not the case of substituting a new and second contract, in the place of a preceding effectual one, upon a change of in- tention in the parties ; but merely making the contract what it was originally intended to have been ; and in such a case, where the instrument upon its first execution was void to all intents and purposes, where its insufficiency arose from a mere mistake, where in consequence of that mistake it was not in the state, in which it was intended to have been, when it was so executed, and where upon its second execution it is only put into that state which was originally intended, we think it is not going beyond the fair spirit of the stamp-laws to hold, that upon such second execution, being the first which was effectually operative, a new stamp was not re- quisite." So, the mistake of an agent, in declaring the interest in the margin of a policy to be on a ship by a wrong name, may be rectified by inserting the true name, without a fresh stamp. ( 1 ) Written instruments have been admitted in evidence with- Unstamped out a stamp in certain cases, when produced merely_ to f nstrU n! C t "r a i prove something collateral, and not for the purpose of purposes, being enforced between the parties, and when it was not material to consider, whether the instruments were goo d or available in law. In the case of Holland q. t. v. Duffin (2), wTncTT^vas~an action to recover several sums of money, for- feited by insuring tickets in the lottery, contrary to the statute 22 G. 3. c. 47. s. 1 3., Lord Kenyon held, that an instrument, purporting to be a policy of insurance, might be given in evi- (l) Robinson v. Touray, 1 Maule (2) Peake, N. P. C. 57. & Selw. 217. Sawtell v. Loudon, 5 Taunt. 559. 524- Of Stamping, [Ch. 9. dence, though not stamped as a policy ; for, such a contract is declared by the act to be illegal and void, and could not have been intended by the legislature as an object of taxation. And in an action of debt for bribery at an election under statute 2 G. 2. c. 24. s. 7. (1), Lord Ellenborough C. J., held, that an unstamped promissory note, payable to the defendant, which a witness said he had given for the re-payment of money, received by him as a voter from the defendant (one of the candidates), might be admitted as evidence of the transaction, to corroborate the testimony of the witness. A paper, purporting to be a bill of exchange or promis- sory note, may be given in evidence, though unstamped, to support an indictment for forgery, or for uttering with a knowledge of the forgery (2) ; for the stamp acts being revenue laws, and not intended Jo affect the crime of forgery, cannot alter the law respecting it ; the stamp is not, properly speaking, any part of the instrument, but merely a mark im- pressed on the paper, to denote the payment of a duty, and is collateral to the instrument itself. (3) And if a person were to be sued for a penalty, for having negotiated an instru- ment without a stamp, there is no doubt, but that the un- stamped instrument might be given in evidence, notwithstand- ing the general prohibitory words of the stamp acts. (4-) An unstamped receipt may be shewnj to a witness a s a m e- morandum, in o rder to refresh his recollection of a fa ct there stated. (5) An unstamped contract, made between commis- sioners of the navy and other persons, containing also a direc- tion by the commissioners to their clerks, in consequence of the contract, to issue certificates in a certain form, is evidence (1) Dover v. Maestaer, 5 Esp. N. 3 Barn. & Aid. 589. See Whitwell p. C. 92. v. Dimsdale, Peake, N. P. C. 168. (2) Hawkeswood's case, 1783., (3) See the judgment of Mr. 1 Leach, Cr. C. 292., 2 East, P. C. Judge Grose, who delivered the 955. S. C. Lee's case, 17 84, 1 Leach, opinion of the Judges in Reculists' Cr. C. 293. n. (a). Morton's case, case, 2 Leach, Cr. C. 813. 1795, 2 East, P. C. 955. Reculists' (4) Ibid. case, 1796, 2 Lsach, Cr. C. 811. (5) Rambert v. Cohen, 4 Esp. N. Davies's case, 1 796, 2 East, P. C. 956. P. C. 213. Jacob v. Lindsay, 1 EasU 460. Ch. 9«] 05 a Requisite of Written Instruments. 525 of such a direction having been given, though not evidence of the contract. ( 1 ) A written agreement, for which an action of trover is brought, and which is produced at the trial by the defendant, is not inadmissible in evidence on account of the want of a stamp. (2) An unstamped part of an agreement is admissible, on the par t of th e plaintiff , as secondary evidence of the agreement, after proof of notice to the defend- ant to produce the stamped part, which is in hisjossessionJ3) ; and there can be no difference in this respect, whether the plaintiff has specially declared upon the agreement, or merely offers it as evidence in the course of the cause. On a question of settlement by hiring and service, although a general hiring cannot be presumed from the mere fact of service, if the service has been performed under written articles of agreement, which are not admissible in evidence for the -want of a proper stamp, yet, where the question is, whether the service commenced after the expiration of the articles, they may be properly inspected for the purpose of ascertaining this collateral fact, whether they would apply to the subse- quent service. (4) In an action for the non-delivery of goods, if the contract is proved by parol evidence, and it should appear that the parties made a contract on unstamped paper, the Court may inspect the instrument, to see whether it applies to the goods, which are the subject of the action ; and if they are not included in the contract, the parol evidence would be properly admitted. (5) So, in an action for money lent, where the plaintiff proved, that he had advanced the money to the defendant, who gave him a note for the amount on unstamped paper, and the defence was, that he had been induced to give the note in a state of intoxication, without having received any part of the money, Lord Ellenborough C. J. held, that the note might be inspected by the jury, as a (1) Hedges's case, 28 Howell's St. 507. Waller v. Horsfall, l Campb. Tr. 1.344. 501. (2) Scott v. Jones, 4 Taunt. 3G5. (4) R. r. Pendleton, 15 East, 449. (3) Garnons v. Swift, l Taunt. 455. (5) 15 East, 455. 526 Of Stamping, [Ch. 9. contemporary writing, to prove or disprove the fraud imputed to the plaintiff. (1) In the case of The King v. Pooley (2), the prisoner was in- dicted under the statute 7 G. 3. c. 50. s. 1., which makes it a capital felony for any person, employed in receiving letters, to secrete any letter containing a bank note, or any warrant or draft, &c. for the payment of money. It appeared at the trial, that the draft, contained in the letter, which the prisoner had secreted, was drawn above ten miles from the banking-house ; the prisoner's counsel then objected, that, as the draft was on unstamped paper, it was not a valid order for the payment of money, and therefore not within the statute, on which the pri- soner was indicted ; and they founded this objection on the statute 31 G. 3. c. 25., the fourth section of which exempts from stamps only such orders for the payment of money, as are drawn on a banker residing within ten miles of the place where the order is made, and the nineteenth section provides, that no bill, note, draft, &c. shall be pleaded or given in evi- dence in any court, or admitted in any court to be good, use- ful, or available in law or equity, unless they are written on paper duly stamped. This point was reserved at the trial, and the case was afterwards argued before the Judges in the Exchequer Chamber ; when the objection, taken on the part of the prisoner, was, first, that which has been stated, namely, that the draft in question was not a draft for the payment of money, within the meaning of the stat. 7 G. 3. c. 50. s. 1. ; and, secondly, that the indictment, which averred, that the draft was in foz*ce at the time of the secreting, had not been proved, as from the want of a stamp the draft had never been available. The opinion of the Judges was not publicly de- clared : but the prisoner received a pardon for the offence charged in the indictment ; and he was afterwards tried on the second section of the same act, which makes it a capital offence for any person to rob any mail of a letter or packet, or to steal or take any letter from any mail, or from any place for (l) Gregory v. Fraser, 5 Campb. (2) 5 Bos. ct Pull. 311. 454. Ch. 9.] as a Requisite of Written Instruments. 5Tf the receipt of letters, &c. ( 1 ) It was objected at the second trial, that the draft, before mentioned, being on unstamped paper, could not be received in evidence, as a medium to shew, that the prisoner had stolen the letter ; but the Court over-ruled the objection , being of opinion, that the draft, though un - stamped, might be admitt ed in evidence for collateral purpose s, ^t hough not f or the pu rpose of rec overing the moneys men- tioned in it, and the evidence was accor dingly rece ived. Here the paper was not offered in evidence, as it was on the former trial, as a draft for the payment of money, but merely as a paper contained in the letter, and the fact, of the prisoner having this paper in his possession, was evidence against him of his having stolen the letter, in which it was contained. An objection, similar to that which was taken on the for- mer trial in the last case, was again taken in the case of The King v. Gillson. (2) The indictment was for feloniously set- ting fire to a certain house with intent to defraud an insur- ance company ; at the trial, a policy of insurance was given in evidence, on the part of the prosecution, by which the pri- soner's goods, in a house there described, were insured against fire, and upon this policy a memorandum was indorsed, stating, that the goods insured had been removed from the house, described in the policy, to another house mentioned in the memorandum, in which last-mentioned house the prisoner was charged with having committed the felony ; the policy was properly stamped, but the memorandum had no stamp ; and the objection taken for the prisoner was, that, in support of the charge, it was essentially necessary to shew, that there subsisted a legally effective contract, and that, by the express provision of the stamp-acts, the memorandum in question, not being stamped, could not be given in evidence, or be good or avail- able in any manner whatever : and a distinction was drawn between this case and that above-mentioned, where an un- stamped forged instrument was admitted in evidence against (I) ."Bos. & Pull. 315. And (2) l Taunt. 25. this part of the case is reported in l East, PI. C, addenda, xvii. 528 Qf Stamping, [Ch. g. the party charged with having forged it, or with uttering it knowing it to be forged. The point was reserved for the opinion of the Judges, and argued in the Exchequer-Chamber : and judgment was afterwards given at the Old Bailey, that the prisoner should be discharged. Stamp pre- A regular stamp may be presumed in certain cases. If an sum , wnen - agreement is jn the possession of a party to the suit, w ho re - fuses to p roduce it after a notice, the other party may give in evidence a copy ofjhe agreement, without provi ng that the original was duly stamped ; the party, who has t he origin al in his possession, may prove the negative. (1) If an instru- ment, which ought to be stamped, is proved to have been lost, parol evidence of its contents may be admitted without proof of the stamp being regular, where it can be presumed, from the circumstances of the case, that the instrument was duly stamped. (2) In the latest case upon this point, on a question of settlement between two parishes (3), it appeared, that an indentui'e of apprenticeship, which had been regularly exe- cuted thirty years before, was delivered to the apprentice at the end of the term, and lost ; that a premium had been paid with the apprentice; and further, that the parish, in which he had served under the indenture, had for many years treated him as one of their parishioners ; on the other side, it was proved by the deputy-register and comptroller of the apprentice duties, that it did not appear, that such an indenture had been stamped with the premium stamp or enrolled, from the time of the date to the time of the trial of the appeal ; but the Court of King's Bench were of opinion, that the Court below were right in presuming, that the indenture had been properly stamped. " The question before the Justices," said Lord Ellenborough, " was, whether the presumption, that all was rightly done after the lapse of so many years, was sufficiently rebutted by the negative evidence of the officer ; they thought not, and we cannot say that they have done wrong; for the (1) Crisp v. Anderson, 1 Starkie, Case, 151. 1 Bott. 547. S. C. R. v. N. P. C. 35. Badby, l Bott, 549. S. P. (2) R. v. East Knoyle, Burr. Set. (~) R. v. Lon^ Buckby, 7 East,45. Ch. 9-3 as a Requisite of Written Instruments. />2f) presumption oflaw is to be favoured, and against the negative evidence they may have set the possibility of an irregularity in the returns made to the office." If an action c annot be brought upon an agreement, until Defect of it is stamped, it must be stamped before the commencement of cured.' 10W the action : but if it is an agreeme nt which may be st amped on th e payment o f a penalty, then it may be stamped_during the action. ( 1 ) In some cases the legislature has declared, that the paper cannot be stamped after it has been written, as in stat. 35 G. 3. c. 63. s. 14. concerning sea-insurances (2), and in stat. 31. G. 3. c. 25. s. 19. concerning bills of exchange, promissory notes, &c* In other cases it is declared, that a penalty shall be incurred by writing on unstamped paper ; and that the instrument shall not be available irt evidence, until the duty and penalty are first paid, and a receipt for them produced, and until the instrument is marked with a proper stamp. (3) Here the defect may be cured by having a proper stamp affixed, which may be done by paying the duty, toge- ther with the penalty for not having the instrument stamped within the time limited. (4) In other cases the legislature only impose a penalty for not having the instrument duly stamped ; and in th ese, thou gh the party would be liable to a penalt} r , yet the paper may be given in evidence, though unstamped. (5) If the defendant has paid money into comt (1) 9 Ves. 252. 11 Ves. 595. R. c. 156. s. 2. Hunt v. Stevens, v. Bp. of Chester, 3 Mod. 3G5. 3 Taunt. 1 13. 1 Stra. 624. S. C. (4) R. v. Bishop of Chester, 1 Stra. (2) Roderick v. Hovil, 5 Camph. 621. 103. (5) R. v. Pearcc, Pcake, N. P.C. (3) St. 5 & 6 W. & M. c. 21 . s. 1 1 . 75. 12 Ann. st. 2. c. 9. s. 25. St. 37 G. 3. * Although the stamp-act of the 48 <•>■ ~- c. 149. does not in express terms require, that the paper shall be stamped before the bill or note is writ ten, yet as the 3d and 8th sections of this statute confirm and adopl all provisions and regulations relating to former duties, the clause in the 1 9th section of the 31 G. 5. is still in force. The 34 G. -~>. c. 32., which autho- rizes the commissioners to stamp bills, &c. after they were drawn, on pay- ment of a penalty was only a temporary act, and has expired. Sec Bayl< J on Hills, p. 24 VOL. I. W M &3Q Qf Stamping, [Ch.O. in an action on a bill of exchange (1), or has b} r his plea admitted letters of administration, (of which the plaintiff, as administrator, made profert,) (2) he cannot object to the stamp as insufficient. The payment of money in the one case, and the plea in the other, admits the validity of the instrument. Agreements, The stat. 48 G 3. c. 149. (3), one of the principal acts relating stamp"! to starn P duties, enacts, that every agreement, minute or memo- randum of agreement, (not particularly exempted,) that is made in England under-hand only, or made in Scotland without any clause of registration, is liable to a stamp in proportion to the number of words contained, when the subject-matter is of the value of 20Z. or upwards, whether the same shall be only evidence of a contract, or obligatory upon the parties from ]fs being; a written instrument. A written paper, delivered by an auctioneer to a bidder, to whom lands were let by auction, containing the description of the lands, the term for which they were let to the bidder, and the rent payable, is not such a minute of the agreement as requires a stamp, unless it is signed by some of the parties or by the auctioneer ; nor is it such a writing, as will exclude parol evidence (4); but if signed by the auctioneer, and deli- vered to the bidder, it ought to be stampecL (5) A contract of marriage may be proved by unstamped letters; the statute evidently applying to such matters only as are the subject of pecuniary calculation. (6) An agreement is to be stamped in proportion to the num- ber of words which in contains, not according to the number of items agreed upon. But if the parties add another item (1) Israel v. Benjamin, 3 Canipb. (0 Ramsbojttom v. Tunbridge, 40. 2 Maule & Selw. 434. Ingram, v. (2) Thynne v. Protheroe, 2 Maule Lea, 2 Campb. 521 . Adams v. Fair- & Selw. 555. bain, 2 Starkie, N. P. C. 277. (5) See also St. 23 C.5. c. 58. s. 5. (5) Ramsbottom v. Mortley, 2 St. 35 G. 5. C. 30. s. 1. 0. St. 37 G. 3 Maule & Selw. 445. c. 90. s. 1. 6. (6) Orford v. Cole, 2 Starkie. N. P.C.S51. Ch. 9.] as a Requisite of Written Instruments. 531 to an agreement which is already complete, and which has been executed between them, an additional stamp ought to be an- nexed to make such new item available. As, if two persons lay a wager, and write it down in the form of an agreement, which is stamped, and afterwards by another agreement, in- dorsed on the first, they consent that the bet shall be doubled ; here there ought to be two agreement-stamps, or the party cannot recover on the last bet. (1) A written acknowledg- ment of the payment of money, stamped as a receipt, is evi- dence of the fact of payment, although there may be other writing on the same paper amounting to an agreement, pro- vided this does not in any manner control or qualify the former part (2) ; it is evidence also of the consideration, on which the money was paid, if the consideration is stated in the receipt. (3) A cognovit, being a mere acknowledgment of an account without any mutuality, does not require a stamp. But if there be any thing of agreement beyond the mere authority to enter a cognovit, then a stamp becomes necessary. Thus, where the defendant gave a cognovit to the plaintiff on un- stamped paper, by which he agreed to confess, that the plaintiff had sustained damage in the action to the amount of 30/., on which no judgment was to be entered, unless the defendant made default in payment of the sum of 51. by instalments, together with costs to be taxed the Court held, that, in consequence of the terms which had been added, the paper in question amounted to an agreement; but that it was an agreement for less than 20/., and therefore not liable to a stamp. (4) (l) Kobson v. Hall,Peakc, N.P.C. ( 2 ) Grey v. Smith, 1 Campb. 387. 127. Lord Kenyon is said to have (.>) Watkins v. Hewlett, 1 Brod. & been of opinion, that the plaintiff Bing. 1. might recover on the original bet. (l) Ames v. Hill, 2 Bos. & Pull, But the plaintiff was nonsuited on 150. Iicardon v. Swaby, 4 East lb« another point. S. P. M M 2 532 Exemptions Memorandum of insurance. Of Stamping , [Ch. 9. The following particulars are exempted from stamp-duties imposed on agreements, (1) 1. Any label or memorandum containing the heads of insurances, to be made by the Royal Exchange Assurance and London Assurance. Agreement for 2. Memorandum or agreement for granting a lease or a lease. tack, at rack-rent, of any land or tenement, under the yearly rent of 5L Whether a particular agreement is to be considered as a lease, (in which case it will require a lease-stamp,) or merely as an agreement for a lease, must depend entirely on the in- tention of the parties, as it is to be collected from the whole of the instrument. (2) If the words are, that the one party does thereby demise, &c. or that the other party shall have, &c. and no other words appear to qualify the expression, they are to be construed as a lease. (3) ^And where the instrume nt appears to have been intended to transfer a present inte rest, or where it contains words of present demise, without anything to shew that the parties had in contemplation a mere executory contract, the instrument will be considered as an actual lease, notwithstanding there may be a stipulati on for ex ecuting a sub- sequent lease u nder se al. (4) If indeed the words do not im- port immediate possession, (as where it is agreed, that the party shall have and enjoy the land, &c.) such a stipulation would warrant the conclusion, that the instrument was in- tended, not as of itself a perfect lease, but as an agreement for a lease. (5) (1) St. 4S G. 5. C. 149. See also St. 25 G. 3. C. 58. S. 5. St. 55 G. 5. C. 30. S. 1. 6. St. 57 G. 3. C. 90. S. 1. 6. (2) Morgan v. Bissell, 5 Taunt. 65. (.3) Drake v. Munday, Cro. Gar. 207. Maldon's case, Cro. El. 55. 5 T. R. 167. (4) Harrington v. Wise. Cro. El. 486. Tisdale v. Sir W. Essex, Hob, 54. Baxter v. Brown, 2 Black. 973. Barry v. Nugent, cited 5 T. R. 165. 167." Pool v. Bentley, 2 Campb. 286. 12 East, 168. S. C. Tempest v. Rawlmg, 13 East, 18. Doe dem. Walker v. Groves, 15 East, 244. (5) Doc dem. Jackson v. Ash- burner, 5 T. R. 165. Coore v. Clare, 2 T. R. 739. Doe dem. Bromfield v. Smith, 6 East, 530. Ch. 9.] as a Requisite of Written Instruments. 533 3. Memorandum or agreement for the hire of any labourer, Agreement for artificer, manufacturer, or menial servant. vant° SCr " An agreement for the assignment of an apprentice from one master to another is not within the meaning of this clause; the term " hiring" not being applicable to an apprentice. (1) If such a written agreement is unstamped, it cannot be ad- mitted in evidence, nor can parol evidence of the terms be received. 4. Memorandum, letter, or agreement made for^or relating Agreement for to the sale of any goods, wares, or merch andize. ba e S oolls - Upon this clause it has been determined, that an agree- i- Meaning of ment by the defendant to take a share of some goods, which ,. re uuinB to. had been bought by the plaintiff on their joint account, and to pay for them at a certain time, is an agreement relating to the sale of goods, and therefore exempted from a stamp duty (2) ; so also is an agreement by a broker to indemnify his principal, for whom he bought goods, from any loss on a re-sale (3) ; or a guarantee for the payment of goods, which a third person was about to purchase to a certain amount (4<) ; or a receipt for the price of a horse containing a warranty of soundness (5) ; or an agreement to cancel a former agreement respecting a sale of goods, and for the future sale of goods upon different terms. (6) A letter from a principal to his factor, containing bills of exchange drawn upon the factor, and engaging to provide for the bills, if certain goods in the factor's hands, or about to be placed there, remained unsold when the bills should become due, is not within the exception of the act, and requires a (1) R. v. St. Paul's, Bedford, 242. Watkins v. Vince, 2 Starkie, T. R. 455. R. v. Ditchinghani, 4 N. P. C. 369. T. R. 769. (5) Skrine v. Elmore, 2 Campb. (2) Venning v. Leckie, 13 East, 7. 407. (3) Curry v. Edensor. 3 T. R. (6) Whitworth v. Crockett, 2 Stark. 524. N. P. C 431. (4) Warrington v. Furbor, s East, M M 3 534> Of Stamping, [Ch. 9. stamp. (1) The Court held, that the description in the act is confined to instruments, which have the sale of goods for their primary object, and that the primary object of the letter in question was the obtaining of money upon a pledge of goods, intended to be placed in the factor's hands. 2. Sale <.f An agreement for the making of machinery at a fixed made '° ** P rice was considered, in the case of Buxton v. Bedall (2), to be not within the exemption ; on the ground, that it is not a contract for, or relating to, the sale of goods, but relating to the making of goods, and for work and labour to be done. (2) The language of the exempting clause, " Memorandum or agreement for, or relating to, the sale of any goods, wares, or merchandise," is expressed in terms the most general and comprehensive ; and, perhaps, on reconsideration, may be thought to extend to contracts, relating to the sale of goods, which are to be made by the seller before their delivery, no less than to contracts for the sale of goods already made. It may be observed further, that the true principle and ground of deci- sion in the case of Towers v. Sir J. Osborne, (on the authority of which the case of Buxton v. Bedall was determined,) does not appear to be inconsistent with such a construction. The Court of King's Bench there held, that a contract for a cha- riot, which a person had bespoke, was not a contract for the purchase of goods, but for the making of something not in existence, and therefore not within the 1 7th section of the sta- tute of frauds; for that section speaks of acceptance of part of the goods as one of the requisites to bind the bargain, and is sup- posed therefore not to extend to those cases, in which the sub- ject-matter of the contract is incapable of delivery and of part- acceptance. (3) But in the exempting clause of the stamp-act, nothing is said relative to the delivery of the goods, nor is there any reason for supposing that the legislature intended to make (1) Smith v. Cator, 2 Barn. & termined the point on the authority Aid. 778. of Towers v. Sir J. Osborne, a case (2) 3 East, 30". on shewing cause on the statute of frauds. Sec this against a new trial. The only Judges case stated, in ch. 8. sect. 1. present were Mr. Justice Lawrence, (■"•) See Groves v. Buck, 3 Maule and Mr. Justice Grose ', and they de- Of the Admissibility of Parol Evidence, [Ch. 10. of the crops had an immediate interest in the land, while the crops were growing to maturity,) but here the land was to be considered as a mere warehouse for the potatoes, till the pur- chasers could remove them, which was to be done immediately. So, where the agreement was to sell all the potatoes growing on a certain piece of land of the defendant, and the plaintiff to dig them up and carry them away, the Court held, that the con- tract was confined to the sale of the potatoes as mere chattels, and that nothing else was in the contemplation of theparties. (1) Agreement for 5. Memorandum or agreement made between the master wires" S and mariners °f an y slll P or vessel for wages, on any voyage coastwise from port to port in Great Britain. Letter containing agreement. 6. Letters containing any agreement (not before exempted) in respect of any merchandise, or evidence of such an agree- ment, which shall pass by the post, between merchants and other persons carrying on trade or commerce in Great Britain, and residing an d actually bein g_at the time of sending such letters at the distance of 50 miles from each other. (2) A letter written by one, who managed another person's trade, to a creditor, promising to pay a debt which arose in the regular course, has been held to come within the letter and spirit of this exemption. (3) (1) Warwick v. Bruce, 2 Maule & Selw. 205. (2) Leigh v. Banner, 1 Esp. N. P.C. 403. Stat. 32 G. 3. c. 51. (3) M'Kenzic v. Banks, 5 T. R. 176. CHAP. X. Of the Admissibility of Parol Evidence to explain, vary, or discharge Written Instruments. HPHE order in which it is proposed to treat of this intri- cate and extensive subject, is, First, to consider in what cases parol evidence is admissible to e xplain amb i guities in Sect. 1.] to explain Written Instruments. ,537 written instrumen ts ; Secondly, whet her parol evidence is ad- missible to add to, vary, or discharge written instruments ; and, Thirdly, to consider the rule of evi dence on th is subject, estab- lish ed in cour ts_of equity. Sect. I. Of the Admissibility of Parol Evidence to explain Ambiguities. The first section treats of Ambiguitie s, l aten t and pate nt, and of the admissibility of evide nce of usag e as explanatory of ancient grants and deeds. There are two sorts of ambiguities of words, says Lord Ambiguities. Bacon ( 1 ) ; the one is called ambiguitas platens, the other ambiguitas patens. The first occurs, where the deed or instrument is sufficiently certain and free from ambiguity, but the ambiguity is produced by evidence of something extrinsic,^* some collateral matter out of the instrument; the latter kind is such as appears on the face of the instru- ment itself. First, with respect to latent ambiguities. A latent ambiguity, which is raised by extrinsic evi- Latent dence, may be explained in the same manner. Thus, if a dm '° ul - v * person grant his manor of S. to one and his heirs, so far there appears to be no ambiguity ; but if it should be proved, that t he grantor has the manors both of South S. and North &, this ambiguity is matter in fact, and parol evidence mayjje admitted to shew, which of the two manors the party intended to convey. (2) So, it was resolved in Lord Cheyney's (l) Bac. Elcm. rule 25. The sub- Sugden in his Law of Vendors and ject of th is chapter has been treated Purchasers, of by Mr. Roberts in his Treatise on (2) Bac. Elcm. rule 25. the Statute of Frauds, am! by Mr. 538 Of the Admissibility of Parol Evidence, [Ch. 10. case (1), if a person has two sons both baptized by the name of John, and conceiving that the elder, who had been long absent, is dead, devises his land by his will in writing to his son gene- rally, and in truth the elder is living, in this case the younger son may in pleading or in evidence allege the devise to him, and, if it is denied, he may produce witnesses to prove his father's intent, that he thought the other was dead ; or, that, at the time of making his will, he named his son John the younger, and the writer left out the addition. No inconveni- ence, adds Lord Coke, can arise, if an averment be taken in such a case ; for he who sees the will, by which land is so devised, cannot be deceived by any secret averment : when he sees the devise to the testator's son John, generally, he ought at his peril to enquire, which son the testator in- tended, which may easily be known by him, who wrote the will, and by others who were privy to the intent; and, if no direct proof can be made of his intent^ there _ the de vis e is void for its uncertainty. name. Mistake in When a devise in a will is to a person, design ated by a Christian and surname without any other description, and no such person appears to claim the legacy, or to have been known by the testator, jarol evidence m ay be adm i tted to shew, that both the names have been mistaken by t he per- son, who took the instructions for the will ; as, in the case of Beaumont v. Fell (2), where a legacy was bequeathed to Catharine Earnley, and the name of the person, who claimed the legacy, was Gertrude Yardley, the Court established the claim, observing how very material it was, that no such per- son as Catharine Earnley claimed under the will. Here, there was no ambiguity on the face of the will, but the latent (1)5 Rep. 68. b. See also Alt- (2) 2 P. Wins. 140. See also ham's case, 8 Rep. 155. Hob. 3a. Dowset v. Sweet, Ambl. 175. Brad- Jones v. Newman. I Blackst. 60. win v. Harpur, Ambl. 574. Parsons Harris v. Bp. of Lincoln, 2 P. Wins. v. Parsons, 1 Ves.jun. 266. 3 Ves. 156. Careless v. Careless, l Meri- 322. Smith v. Coney, 6 Ves. 42. vale, 584. Doe. dem. Westlake v. Doc dem. Cook v. Danvers, 7 East, Westlake, 4 Barn. & Aid. 57. 303. Sect. 1.] to explain Written Instruments, .539 ambiguity was introduced by extrinsic evidence, and the same kind of evidence also shewed, that there was a person of the name of Gertrude whom the testator called Gatty, which name the person, who drew the will, mistook for Katty ; in this case, therefore, as parol evidence was admitted to shew the latent ambiguity, parol evidence was also admitted to explain it. So, where the testator bequeathed his stock in a particular fund, and it appeared, that he had not, at the time of making his will or afterwards, any stock in that fund, having sold out some time before and purchased into another fund, evidence was admitted to shew, whence the mistake arose, and the legacy was satisfied out of the new fund, into which the testator had purchased. (1) So, where the devise was " of all my farm and lands called Trogues-farm, now in the occupation of A. C," the Court of King's Bench were clearly of opinion, that two closes in the occupation of L. M., but forming a part of Trogues-farm, would pass under the devise ; and that a writ- ten notice from the testator to L. Mi had been properly ad- mitted in evidence, to shew that he considered them as parcel of his farm called Trogues-farm. (2) Here the devise was sufficiently comprehensive to include the whole of the lands, and ought not to be narrowed by the defective description of the occupation. In the instances, which have been just mentioned, it is to Evidence, to i • i ill l-ii give effect to a be observed, that, unless the evidence had been admitted, the ^ill. will could not have taken effect. In the first case, no person was to be found corresponding with the description in the de- vise ; in the second, the testator had no property in the funds, out of which he appointed the legacy to be paid ; and in the third, if the closes in question were not to be included as part of the devised farm, the word " all" in the devise would not be satisfied. And the question on the admissibility of parol (1) Sehvood v. Mildmay, 3 Vcs. Southern, 1 Maule & Sclw, 299. 506. See 4 Ves. 676. l" Bio. Cli. Doe dem. Beach v. Lord Jersey, C. 472. Andrews v. Dobson, l 1 Barn. & AW. 550. Doe dem. Harris Cox, Cli. C. 425. v Greathed, 8 East. 103. (2) Goodtitle dem." Radford v. 540 Of the Admissibility of Parol Evidence, [Ch. 10. evidence, in such cases, will depend principally upon this, namely, whether the evidence is necessary to give an effective operation to the devise, or whet her, withou t that^vidence^ there appears to be sufficient to satisfy the terms o f the devis e, and the intention of the testator as expressed on the face of the will. If the testator has left property, which corresponds with the description in the will, extrinsic evidence is not ad- missible to shew, that he intended to include other property not within that description. (1) l. With refer- In the case of Whitbread v. May (2), where the tes- tstate ° & ta tor, having devised all his estates in trust for his son for life with remainder over in strict settlement, &c, by a codicil afterwards revoked his will " so far as it related to his estate at Lushill, in the county of Wilts, and Hearne and Buckland, in the county of Kent, which he de- vised to his son in fee," it appeared, that, at the time of the devise, the testator had lands in the parish of Hearne and in several other parishes, all which he had purchased by one con- tract from one person ; evidence was then offered to shew, that the testator, by the description of his " estate at Hearne" meant to designate and include not only the lands in that parish, but also all the other lands which he had purchased at the same time. This evidence was received at the trial, subject to the opinion of the Court above ; and the Court of Common Pleas were afterwards equally divided in opinion on the question of its admissibility. In a much later case, however, the case of Doe on the de- mise of Sir A. Chichester v. Oxenden (3), which was very similar to the last, the Court of Common Tleas adjudged such evidence to be inadmissible. The question there was, whether, on a devise of the testator's " estate of ' Ashton" parol evidence could be admitted to shew, that the testator intended by that (l) Doe dem. Brown v. Brown, (2) 2 Bos. & Pull. 595. 11 East, 441. Doe v. Oxenden, 3 (3) 5 Taunt. 147. Doe dem. Taunt. 147. Doe dem. Tyrrell v. Browne v. Greening, 3 Maulc & Lyf'ord, 4 Maule & Selw. 550. Tyt- Selw. 171. Beaumont v. Field, lcr v. Dalrymple, -' Merivalc. 419. l Barn. & Aid. 247. Sect. 1.] to explain Writ ten Instruments. description to devise all his maternal estate, which consisted of two manors in the parish of Ashton an d another m anor in the a4joinin ff parish ; the Court of Common Pleas, after hearing two arguments, determined against its admissibility. The Chief Justice, Sir James Mansfield, in delivering the judgment of the Court, after premising, that he had felt con- siderable doubts on the subject in consequence of the case of Whitbread v. May, in which case the Court was equally divided on the admissibility of parol evidence, adverted to the case of Beaumont v. Fell ( 1 ), and to the similar case of Dowset v. Sweet (2), and observed on these cases, that_althougli it was not expressly stated to have been necessary to receive the evidenc e in order to give effect to the will, yet that groun d of dete rmination might be inferred. " It will be found," said the Chief Justice, " that the will would have had no operation, unless the evidence had been received. But, in the case now before the Court, the will has an ef- fective operation without the evidence proposed ; every thing will pass under it, that is, in the manor or parish, or what he would naturally call his Ashton estate. This will be an effective operation ; and, this being so, the case in this respect differs from all the others; because in them the evi- dence was admitted to explain that, which without such ex- planation could have had no operation. It is safer not to go beyond this line. Only those premises, therefore, will pass under the devise, which are in the manor or parish of Ashton." Soon after this decision of the Court of Common Pleas, the devisee brought an action of ejectment against the heir at law, jmd offered at the trial the evidence before-mentioned ; on the rejection^ of which, a bill of exceptions was tendered ; and the case was brought up to the House of Lords on a writ of error. (3) Thejniestion on the admissibility of the evidence was referred to the Judges : and Lord Chief Justice Gibbs de- (1) Vid. supr. 558. (3) Doe clem. Oxenden v. Sir A. (2) Ibid. Chictfester, 4 Dow. 65. 542 Of the Admissibility of Parol Evidence, [Ch. 10. livered their nrianimous opinion, that the evidence ought not to be admittecl. " The courts of law," said the Chief Justice, *' have been jealous of the admission of extrinsic evidence to explain the intention of a testator ; and I know only of one case in which it is permitted, that is where an ambiguity is introduced by extrinsic circumstances. There, from the ne- cessity of the case, extrinsic evidence is admitted to explain the ambiguity ; for example, where a testator devises his estate of Blackacre, and has two estates called Blackacre, evidence must be admitted to shew, which of the Blackacres is meant ; so if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence must be received to shew, which of them the testator intended. And so, also, if one devises to his nephew William Smith, and has no nephew answering the description in all respects, evidence must be ad- mitted to shew, which nephew the testator meant by a descrip- tion not strictly applying to any nephew. The ambjguity_ there arises from an extrinsic fact or circumstance, and the admission of evidence, to explain the ambiguity, is necessary to give effect to the will, and it is only in such a case that extrinsic evidence can be received. It is of great importance, that the admission of such extrinsic evidence should be avoided, where it can be done, that a purchaser or an heir at law may be able to judge from the instrument itself, what lands are or are not affected by it. Here the devise is of all the devisor's •estate at Ashton, (for there is no difference between the words " estate of Ashton" and " estate at Ashton,") and he has an estate at Ashton which satisfies the description. It is true, he has other lands, which come to him along with his estate of Ashton : but they are not therefore comprised in the words " my estate of Ashton." If a testator should devise his lands of or in Devonshire or Somersetshire, it would be impossible to say, that you ought to receive evidence, that his intention was to devise lands out of these counties ; and for the same reason, when the testator here describes the lands as his estate of Ashton, you cannot receive extrinsic evidence to extend this to other lands .not of Ashton." Sect. 1.] to explain Written Instruments. 5i<% In the case of Thomas v. Thomas (1), where the testator 1. With refer- G11CC t.O tilt had devised to his granddaughter Mary Thomas of Llech- devisee. Uoyd in Merthyr parish, it appeared, that, at the time of his death, he had a grand-daughter of the name of Elinor Evans, one of the lessors of the plaintiff who lived in the place and parish named in the will, and also a great-granddaughter, Mary Thomas, the defendant, the only person of that name in the family, but who lived in another place, and had never been in Merthyr parish ; the plaintiff's counsel at the trial offered parol evidence to shew, that the person, who drew the will, had made a mistake in the name of the devisee ; and Mr. Justice Lawrence received the evidence (2), subject to the opinion of the Court above on its admissibility ; but as the jury were of opinion, that the name had not been inserted by mistake, and therefore found for the defendant on the first count, which laid the demise from Elinor Evans, the admissi- bility of this evidence did not afterwards form any part of the argument. After this finding of the jury, the question was between Mary Thomas and the plaintiff on a demise from the heir at law, and in this stage of the cause the defendant's counsel offered evidence of declarations made by the devisor previous to the making of his will, expressive of his regard for the plaintiff, and of his intention of giving her the premises in dispute. But this evidence was rejected, on the ground, that nothing dehors the will could be received, to shew the intention of the testator, which could only be collected from the words of the will itself, after the removal of any latent ambiguity in the description of persons or other terms in the will. And this opinion was afterwards affirmed b}' the Court of King's Bench. " If there had been no person," said Lord Kenyon, " to answer the description of granddaughter, living at Llechlloyd in Merthyr parish, I should have rejected the description, and have said, that the devise applied to Mary Thomas : but it appears, that there is another person answer- ing that part of the description, who is also in another part (1)6 T. R. 671. And sec Lord (l<) See 3 Vin. Ab. 512. pL.29.; Walpolc v. Ld. Cholmondeley, 7 and Hampshire v. Pierce, 2 Ves.216., T. It. 138. cited by Lawrence J., 6 T. K 678 14 544< Of the Admissibility of Parol Evidence, [Ch. 10. of the will an object of the testator's bounty. Then, as there are two parts of the description not answering to Mary Thomas, who is named in this clause of the will, we are left to conjecture, who was meant by the devisor ; but the law will not allow an heir at law to be disinherited by conjecture. And with regard to the other question respecting the rejection of evidence," added Lord Kenyon, " it was properly re- jected ; the supposed declar ations hav ing been made by the testator, lonj* before the will was made : but, had they been made at the time of making the will, I should have t hough t them admissible evidence." Secondly, with respect to patent ambiguities. Patent am- If a clause in a deed, or will, or any other instrument, is so ambiguously or defecti vely expres sed, that a court of law, which has to put a construction on the instrument, i s unab le to collect the intention^of the jparty^ evidence o f the declar - ation of the party cannot be admitted to explain his intention ; but the clause will be void on account of its uncertainty. In many cases an apparent uncertainty may be removed by col- lecting the general intention from other passages in the writing, so as to make the whole consistent ; or by a reference to some event, or some other writing, or some medium of ex- planation, adverted to in the instrument. But when, after comparing the several parts of a written instrument, and col- lecting all the lights which the writing itself supplies, the in- tention of the parties still appears to be uncertain, parol evi- dence of their intention is not admissible. " Ambiguitas patens," says Lord Bacon ( 1 ), (that is, an ambiguity apparent on the deed or instrument,) " cannot be helped by averment ; and the reason is, because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law ; for that were to make all deeds hollow, and subject to averment, and so in (1) Bac. Elem. rule 2.5. Doe clem. 550. Lord Cholmondelej v. Lord Tyrrell v. Lyford, 4 Maule & Selw. Clinton, 2 Merivale, 545. Sect. 1.] to explain Written Instruments. 545 effect to make that pass without deed, which, the law appoints, shall not pass but by deed. It holds generally," he adds, " tha t all ambigu i ty of words within the deed, and not_out_qf the deed, may be helped by construction, or in some cases by election, bu t n ever by averment, but rather shall make the deed vo id for uncertai nty." And in the case of a will, if any devise is expressed doubt- Uncertainty in fully and with uncertainty, the only construction which it is capable of receiving, is by comparing it with the other parts of the will : the declarations of the testator are not admissible to remove the apparent ambiguity, or to explain his intention. As, for example, if the devise is to " one of the sons of J. S.," who has several sons, such an uncertainty in the description of the devisee cannot be explained by parol proof. (1) So in a case, where the testator made dispositions in his will to several persons, among others to his wife and niece, who were the only women mentioned in the will, and then devised " to her" a particular estate for life, the question was, whether parol evidence could be admitted, to shew which, of the two was in- tended : the Lord Chancellor refused to receive it, on the ground, that it would tend to put it in the power of witnesses to make wills for testators ; the Court held, that though the term " her" was relative, it was to be referred in this case to the wife, because in other parts of the will it seemed to relate to the wife ; but expressly excluded the parol evidence offered to explain the will. (2) A blank in a will, for the devisee's name, is an instance of Omission of apparent ambiguity, and parol evidence cannot be admitted 11ame In to shew, what person's name the testator intended to insert. (3) But on a bequest to a person, whose surname was mentioned with a blank left for the Christian name, the part}', who claimed the legacy, was allowed, not only to prove acts of (1) 2 Vern. 621. s Rep. 155. a. ral, 2Atk. 239. Castledon v. Tur- (2) Castleton v. Turner ; cited ner, 5 Atk. 257. Hunt v. Hort, 3 2Ves. 217. Bro. Ch. C. 311. (5) Baylis v. the Attorney-genc- VOL. I. \ . 46 Of the Admissibility of Parol Evidence, [Ch. 10. Jdndness and^onstan^aflfection on the part j)f_the de ceased , but to shew further, that the testator had said, " he would provide for him, and that he had left him something by his will." (1) And in another case, where only one initial appeared in the will, the bequest being " to Mrs. G." without any other description, the Chancellor referred it to the master to re- ceive evidence, to shew who was the person intended to be described by that initial. (2) The distinction between these cases is, that in the former there is no description whatever of a devisee, and whether the testator had selected any person as the object of his devise is entirely uncertain on the face of the will ; but in the two last cases, the testator has given some description, and though it would appear too slight and general for the information of strangers, yet to persons well acquainted with the testator, it might be sufficiently full and distinct; in the first of these two cases, the testator might not have known the Christian name ; in the other, the de- scription in the will might have been the only one, by which the testator used to designate the claimant. Omission in written instru- ments. When a blank is left in a written agreement, which need not have been reduced into writing, an d would have been equally binding, whether written or unwritten, (as if the aoreement were to deliver goods to the amount of less than ten pounds, and a blank were left for the quantity of goods to be delivered,) in such a case, it is presumed, in an action for the non-performance of the contract, parol evidence might be admitted, to shew the quantity, for which the parties agreed: for a memorandum in writing was not required in this case by the statute of frauds, and the proposed evidence would not contradict any part of the written agreement, but merely supply an omission, where nothing need have been expressed. And where a written instrument, which was made professedly to record a fact, is produced as evidence of that fact, which it purports to record, and a blank appears in a material part, the omission may be supplied by other proof. Thus, if a (l) Price v. Page, 4 Ves. 680. (2) Abbott v. Massie, 5 V.es. us. Sect. 1.] to explain Written Instruments. 547 bishop's register were to be produced in evidence, for the pur- pose of shewing a presentation by a patron, under whom the plaintiff claims, and on the production of the register a blank should appear in the place where the patron's name is usually inserted, the presentation might be proved in some other way ( 1 ) ; as by a witness, who was present, and heard the presentation. So, in the case of a surrender of a copyhold by a steward, if there is any mistake in the entry, that is only matter of fact, and the courts of law will in that case admit an averment, that there was a mistake either as to the lands or uses. (2) Thirdly,_as to the admissibility of evidence^fusagej to ex- Usage, to ex- , . . ~ , j plain ancient plain ancient charters and grants. charters grants, <£c. In the construction of written instruments, words are to be understood according to their common and general ac- ceptation at_the time, when the instrument was made (3), and with reference to the nature of the subject. If the language in ancient charters is become obscure from its antiquity, or the construction is doubtful, the constant and immemorial usage under the instrument may be resorted to for the pur- pose of explanation^), though it can never be admitted _to control or contradict the express provisions of the instr ument . Such continued usage is a strong practical exposition of the meaning of the parties. And modern usage, of forty or fifty years' duration, is evidence not only for that period, but evi- dence from which it may be presumed, if nothing is shewn to the contrary, that the same course was pursued in earlier times. (5) Even in the case of an act of parliament, imiver- (1) Bishop of Meath v. Lord Bel- 120. 11. v. Mayor of St. Alban's, field, 1 Wils. 215. 12 East, 559. R. v. Mayor, &c. of (2) Towers v. Moor, 2 Vern. 98. Stratford-upon-Avon, 14 East, 34S. (5) Vaugh. ltep. 169. Com. Dig. R v. Mayor, &c. of Chester, l Maule tit. Parols, (A). & Selw. 101. Mayor of London v. (4) R.v.Varlo. Cowp. 24S. Gape Long, 1 Campb. 22. Chad v. Til- v. Handley, 5 T. R. 288. n. R. v. scd, 2 Brod. & Bing. 40G. Bellringer, 4 T. R. 810. R. v. Os- (5) By Richardson, J. 2 Brod. & bourne, 4 East, .335. Bailiff, &c. of Bing. 409. Tewkesbury, v Bricknell, 2 Taunt. N N 2 548 Of the Admissibility of Parol Evidence, [Ch. 10. sal usage has been referred to as a proper expositor, where the language is doubtful. (1) Lord Coke, in commenting on the statute of Gloucester, says, that when any claimed before the justices in eyre any franchises by ancient char- ter, if the words were general, and a continual possession was pleaded of the franchises claimed, or if the claim was by old and obscure words, and the party in pleading expounded them to the court, and averred continual possession according to that exposition, the entry was ever, inquiratur super ])os- sessiojiem ct usum ,• " and this," adds Lord Coke, " I have ob- served in divers records of those eyres, agreeably to that old rule, optimus interpres rerum iisus." (2) And the uniform course of modern authorities fully establishes the rule, that, however general the words of ancient grants may be, they are to be construed by evidence of thej nanner, in which the thing has been always possessed and used. (3) Thus, on an inform- ation to set aside an election to a perpetual curacy, it ap- peared that the impropriate rectory, out of which the curacy arose, had been granted in trust for the use of the parishioners and inhabitants of a parish for ever ; on the part of the rela- tors it was insisted, that the right of nomination to the vicarage ought to be confined to inhabitants paying scot and lot, or to persons paying to church and poor; and on the part of the defendants, that it extended to all house-keepers in general ; Lord Hardwicke, in delivering his judgment, said, " that some sort of limitation was allowed by both sides to have been put by usage on the liberality of the grant, and that in the construction of ancient grants and deeds there is no better way of construing them, than by usage ; and contemporanea expositio is the best way to go by :" and since in this case there was evidence of house-keepers having constantly voted, Lord Hardwicke held, that this usage ought to prevail. (4) (1) Sheppard v. Gosnold, Vaugh. (4) The Attorney-general v. 169. ; and see R. v. Scott, 3 T. R. Parker and others, 3 Atk. 576. The 104. Attorney-general v. Forster, 10 Ves, (2) 2 Inst. 282. 335. (3) Weld v. Hornby, 7 East, 199. R. v. Osbourne, 4 East, 527. 14 Sect. 1.J to explain Written Instruments. 549 N or does it m ake a ny differ encejgjtlL-respect to the admis- sibility of evidence of immemorial usage L for the purpose of explaining and construing ancient instruments, jwhether the inst rumen t_be a charter jp^irn:ed_by the^ crown^ qrjnerely a priv ate deed. Thus, in the case of Withnell v. Gartham (1), where the question was on the construction of an ancient deed, granting to the minister and churchwardens of a parish the power of appointing a schoolmaster, whether all the church- wardens must concur, or whether the act of the majority was sufficient, and the jury found the usage to be in fa- vour of the appointment by a majority, Lord Kenyon, in speaking of the usage, and adverting to an argument which had been insisted on, (namely, that the Court ought to re- ject the evidence of usage, because the instances proved were not as ancient as the deed, and also because usage cannot be let in to explain a private deed,) said, that if the first reason were sufficient to reject the usage, it would be difficult to know, how far such an objection might extend. In many cases a party undertakes to prove a custom from the time of legal memory, but that proof is generally established by evidence of facts done at a much later period. And as to the second objection, Lord Kenyon said, there was no dif- ference in that respect between a private deed and a king's charter ; in both cases evidence of usage might be given to expound them. Thus, also, in a late case (2), in an action for entering the plaintiff's close, where the defendant pleaded, that the close was copyhold, and justified under a grant from the lord and by the command of the copyhoider; in support of this plea the defendant proved, that the person, under whom he justified, and all those whose estate he had, for a long course of years, had constantly taken the forecrop of grass and pasturage from the close, and then, by court rolls of the manor, proved admissions to a copyhold tenement " of three (l)fiT. R. 388. 752. Lord Petre v. Blencoe, 4 (a) Stammers v. Dixon, T East, Gwill. H84. 200. Wadley v. Bayliss, 5 Taunt. a n 3 550 Of the Admissibility of Parol Evidence, [Ch. 10. acres of meadow," (which was admitted to be the close in question,) but every other benefit of the land, except the forecrop, had been enjoyed by those from whom the plaintiff claimed. Mr. Justice Heath, who tried the cause, was of opinion, " that, although the terms of the surrender and admission were sufficiently comprehensive to pass the soil and freehold, yet, as in ancient grants the legal import might be restrained by long and concomitant usage, which might be taken as evidence of the original intent of the parties in making the grant, so here the grant might be restrained by the received usage, and only pass the forecrop, which would not carry the soil." And the Court of King's Bench agreed in this construction of the written evidence. The terms of the admissions, they thought, were not incompatible with the plaintiff's right, and might receive a construction conformable to the usage. Evidence as Courts of law as well as courts of equity will admit evidence to situation or „ , , . r . _ , estate of °* the situation and circumstances ot the parties, for the pur- party. j )OS6 Q f ass i s tjng them in putting a construction on wills, that are not clearly expressed ; as, in the case of Masters v. Mas- ters (1), where the testator, after having bequeathed a legacy to the poor of two hospitals in Canterbury, (naming them,) bequeathed another sum in his codicil " to all and every the hospitals," the second bequest was adjudged not to be void for uncertainty, but to have been intended for all the hospitals in Canterbury, as it appeared in evidence, that the testator lived in Canterbury, and had in his will taken notice of two hos- pitals in that city. It may often be of importance to inquire, what estate the devisor or grantor had at the time of making his deed or will ; for the construction may vary, in some cases, according to (1) I P.Wms. 420. Sec also liar- 1 T.R. 701. Selwood v. Mildmay, lis v. Bishop of Lincoln, 2 P. Wms. 3 Vcs. r.io. 6 Ves. 506. 13 Ves. 135. Sir J. Eden v. Earl of Bute, 174. 15 Ves. 514. Herbert V. Reid, 3 Bro. Pari. C. 79. Doe v. Burt, 16 Ves. 481. Sect. 1.] to explain Written Instruments, 551 the estate or quantity of interest in the subject-matter. (1) If a person grant an estate for life generally, without sayinc whether for his own life or for the life of the grantee, evidence is admissible to shew, what interest the grantor had in the premises ; for if he was tenant in fee, the grantee would have an estate for his own life ; but, if he was tenant in tail or for life only, then the grantee would have an estate for the life of the grantor. (1) Qr ? _if_a _ testator b eque ath such a sum in a part icular stoc k, it will b e a specifi c legacy, if he has that stock at the time ; not specific, if he has it not. (1 ) Evidence is therefore ad missible, in such a case, to shew, what was the state of property at the time he made his will ; and the con- struction upon the will is one way or the other, according to the result. So, in the case of Doe on the demise of Freeland ' v. Burt (2), where the question was, whether a cellar, for the recovery of which the action was brought, passed under a lease from the lessor to the defendant, as appurtenant to a yard, which was described in the lease by its abuttals, and as having been late in the occupation of A. ; evidence was ad- judged to be admissible, on behalf of the plaintiff, to shew, that the cellar was, at the time of the execution of the lease, in the occupation of another tenant B. ; here the defendant claimed the cellar, not as specifically demised, but as appur- tenant to the demised yard, upon the general maxim of law, " cujus est solum, ejus est usque ad ccclum et ad inferos ;" and the proposed evidence would clearly shew, it could not have been the intention of the parties, that the cellar should pass by the lease to the defendant. " Where there is a convey- ance in general terms," said Mr. Justice Buller, " of all that acre called Blackacre, every thing which belongs to Blackacre passes with it ; and then the rule, which has been mentioned, prima facie obtains ; but whether parcel or not of the thing demised, is always matter of evidence." (l) Sec Mr. Justice Bayley's jiulg- Lord Jersey, 2 Brod. & Bing. 551. ment, in Smith v. Doe dcm. (2) 1 Terra. Rep. 701. N N 4' <5«52 Of the Admissibility of Parol Evidence > [Ch. 10. Another case, in which evidence of the state and amount of the testator's property has been admitted, is the case of Fon- nereau v. Poyntz ( 1 ) ; where Lord Thurlow received the evi- dence, not to control a bequest, which was distinctly and ac- curately described, but because it was uncertain, upon the whole context, whether the testator meant so much per annum or so much as a gross sum. Lord Thurlow decided the case, as a case of ambiguity. And Lord Alvanley, in observing on this case, says (2), " Lord Thurlow's only doubt was, whether parol evidence was admissible to ascertain, whether the tes- tator did not mean capital, but he had no doubt he must know all the circumstances of his affairs." (3) In the construction, however, of wills free from ambiguity, the general rule is, that evidence of the value of the estate devised, ^ r of the amount of the testator's property, will not be admitted in order to raise an argument in favour of a par ticular cons truction ; whatever may be the amount, the general rule of c onstructio n must prevail. (4) In the case of Smith v. Doe on the demise of the Earl of Jersey (5), lately decided by the House of Lords on a writ of error, where the principal question was on the execution of a power, in a deed of marriage-settlement, by which the settler was authorized to demise by indenture such premises as were then leased for lives, &c. and so as the ancient accustomed rents were reserved, &c. and so as the lease contained a power of re- entry for non-payment of the rent reserved, Sec, the House of Lords determined, it was allowable to prove, that the usual and accustomed form of leases, (by which the estate, settled in the marriage-settlement, had been demised, as well before as after the date of the settlement,) had contained a conditional proviso (1) 1 Bro. Ch. C. 4 72 ; cited and Cowp. 853. Standcn v. Standrn, commented on by Mr. Justice Bay- 2 Ves. jun. 593. Richardson v. Ed- ley in Smith v. Doe dem. Lord monds, 7 T. II. 640. Doc v. Driii-;, Jersey, 2 Brod. & Bing. 5o2. 2 Maule & Selw. 4. 55. Bootlc v. (2) S Ves. 320. Blundell, l Merivale, 216. Jones v. (3) On this case of Fonnercau v. Tucker, 2 Merivale, 537. Attorney- Pqyntz; see also 5 Merivale, 319, general v. Grote, 3, Merivale, 516. 520. " {5) 2 Brod. & Bii;^. 4 73. (4) Doc dem. Handson v. Fyldes, Sect. I.] to explain Written Instruments. 563 of re-entry similar to the one in the indenture, whose validity was then disputed. " This evidence," said Mr. Justice Bayley, in his judgment in the House of Lords (1), "is not admitted, to produce a construction contrary to the direct and natural meaning of the words ; not to control a provision which was distinct, and accurately described; but, because there is an ambiguity upon the face of the instrument," (for the deed of settlement required the leases to contain a power of re-entry, generally, on non-payment of rent, and there are various forms of powers of re-entry,) " because an indefinite expression is used, capable of being satisfied in more ways than one. I look to the state of the property at the time, to the estate and interest the settler had, and the situation in which the settler stood with regard to the property settled, to see, whether that estate, or interest, or situation, will assist us, in judging, what the settler meant by that indefinite expression." It appears, from some of the cases above cited, that tlie words of an instrument, Tin themselves ^nyeying a general right to an estate, may in certain cases be limited and restraTned 15yjEe manner, in which the estate has for a length of time been actually enjoyed. But in the construc- tion of a legal instrument, where the question is, whether a party is bound by his covenant to do a certain act, (as for example, to grant a renewal of a lease,) courts of law will not consider the acts of the parties or their interpre- tation of the instrument. In one case, indeed, where it was doubtful, whether a covenant for renewal extended to a perpetual renewal, and the parties had renewed four times successively, the Court of King's Bench held, that the legal effect was a perpetual renewal, on the ground that the par- ties themselves had, by their own acts, put a construction on the covenant, and that the Court could not say the con- trary. (2) But this case has been frequently disapproved of (3), and a different rule is now established. " It cannot (1)2 Brod. it Bins;. 55o. 3 Vcs. -IPS. Eaton v. Lyon, 5 Vcs. (2) Cooke v. Booth, Cowp. 810. 694. Iggulden V. May, 'J Vcs. 333, (3) Baynham v. Guy's Hospital, 7 Bo:.ec Full. New Rep. 452. S. C. 55i Of the Admissibility of Parol Evidence, [Ch. 10. be a legal mode of construction, (said the Master of the Rolls, in a case of this kind,) that a party who has done an act, which he was not bound to do, or from a mistake, should therefore be bound for ever without the power of retracting." (1) Sect. II. Of the Admissibility of Parol Evidence to vary or discharge Written Instmmcnts. It is a general rule of law, that parol evidence cannot be admitted to contradict, add to, or vary the terms of a will, deed, or other written instrument. First, with respect to wills ; Wills. The statutes of the 32d and 34-th of Henry VIII., which gave the power of devising lands by a last will and testament in writing, must clearly have intended, that whatever is effectual and to the purpose, ought to be in writing, and sufficient without the aid of words not written ; and therefore no parol evidence of the testator's intention can be admitted to control or enlarge the terms of the will. (2) An addi- tional reason for this rule is supplied by the statute of frauds, which enacts, that all devises of lands, &c. must be in writing, and are not revocable except by some other will or codicil, or by some act, as cancelling, &c. And with regard to wills of personal property, it is evident from the 22d section of the statute of frauds, that no unwritten declarations of the testa- tor can be admitted to vary any bequest; for that section enacts, " that no will in writing concerning goods, chattels, or personal estate, shall be repealed, and that no clause shall be altered or changed, by any words or will by word of (1) Moore v. Foley, 6 Ves. 258. 68. Bertie v. Lord Falkland, 1 Salk. (2) Brett v. Rigden, Plowd. Com. 231. 2 Vein. 353. S. C iJ5. Lord Cheynej's ease, 5 Rep. Sect. 2.] to vary or discliar ge Written Instruments. 555 mouth only, except the same be in the life-time of the testator committed to writing, and after the writing read to the testator, and allowed by him, and proved to be so done by at least three witnesses." (1) Parol evidence is not admissible to contradict, or vary or Deeds, add to, the terms of a deed. (2) " It would be inconvenient," says Lord Coke, " that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by an aver- ment of parties, to be proved by the uncertain testimony of slippery memory ; and it would be dangerous to purchasers and all others, in such cases, if such nude averments against matter in writing should be admitted." In an action of debt, therefore, on a bond conditioned to pay a sum of money on a certain day, the defendant cannot shew, that the bond was in- tended as an indemnity against another bond. (3) In an action on a bond a party will not be permitted to [. Proof of shew a condition, different from that expressed in the bond ; a . notlie . r con_ r sideration. and a conveyance cannot be averred by parol to be to an- other use or intent than that expressed in the conveyance. But there is a difference in this respect b etween an use and a con sideration. It is an established rule, that a party may aver another consideration, which is consistent with the con- sideration expressed^ but no averment can be made contrary to, or inconsistent with, that ; expressed in the deed. (1<) Thus, if a deed of bargain and sale is expressed generally to be made " for divers good considerations," it may be averred, that the bargainee gave money or other valuable consideration. (5) That such an averment may be taken, which stands with the (1) Brown v. Sclvvin, Forrest. (5) Mease v. Mease, Cowp. 47. j to. Lowfield v. Stoneham, 2 Stra. Fitzgibb. 75. 1261. Cambridge v. Rous, 8 Vcs. (1) 2 Roll. Abr. 7S6. (N), pi. 1. 22. Mildmay's case, 1 Rep. 17<;. Lord (2) Countess of Rutland's ea;;e, Cromwell's case, 2 Rep. 76'. Bedell's 5 Rep. 2*5. Buckler v. Millerd, case, 7 Rep. 58. 2 Vcntr. lo7. Tiimey v. Tinney, (5) 2 Roll. Ab. 786. (N). 1 Rep. 7, Atk. 8. 1 VVils. 5-1. Ilaynes v. 176. Hare, 1 II. Black. 05:'. Clifton v. Walmesley, 5 T. R. Jo7. 556 Of the Admissibility of Parol Evidence, [Ch. 10. deed, says Lord Coke, although it be not expressly comprised in the deed, is proved by the case of Villers and Beamont (1), where the consideration in a deed of bargain and sale of lands was stated to be a sum of money, but it was averred and found by the jury, that the indenture was made " as well in consider- ation of marriage (to make it a jointure in bar of dower) as of the said sum of money ;" jmd_i t was adj udge d, that, although there was a particular consideration mentioned in the deed, yet an aver ment migh t be m ade of ano ther considerati on, which stood with the indenture, and which was jiot contr ary to it * A fortiori, adds Lord Coke, the averment may be made, where no consideration is mentioned, but the deed is general, " for divers good considerations ;" for then the averment (that the bargainee gave money, &c.) is but an explanation and particularising of the general words of the deed, which in- clude every manner of consideration ; and in all these cases, the matter, so averred, is traversable and issuable. And Lord (l)2 Dyer, 146. a. Vernon's case, thorne v. Swinburne, 14 Ves. 170. 4 Rep. 3. S. P. And see Cray- * In the case of Villers and Beamont, above cited, (2 Dyer, 146, a.) an elaborate argument is to be found in support of the position, that " where a consideration is expressed in a deed of gift or grant, no other cause can be averred ; but, if no cause is expressed, that a cause may then be averred out of the deed." The Report adds, " that three Judges argued to the contrary, and that the effect of that which is found by the assignment of, ' as well in consideration of the said marriage, &c. as of the sum,' &c. is contained ivithin the indenture, and so their finding is not contrary to it." In the case of Peacock v. Monk, (l Ves. 128.) Lord Hardwicke makes the same distinction. A bill in that case was filed, claiming the benefit of a trust under a deed, and the point was, whether the plaintiff could prove a valuable consideration, as no consideration was expressed in the deed. Lord Hardwicke held, that the proof ought to be read. " It differed," he said, " from the common case, upon which the objection is founded ; for, to be sure, where any consideration is mentioned, as of love and affection only, if it is not said also, ' for other considerations you cannot enter into proof of any other ; the reason is, because it would be contrary to the deed ; for when the deed says, it is in consideration of such a particular thing, that imports the whole consideration, and is negative to any other. But this is a middle case, there being no consideration at all in the deed." All the authorities agree, that, where the deed is not impeached for fraud or other illegal matter, no consideration can be averred or proved contrary to that expressed in the deed ; and further, the cases referred to in the text appear to have established, that it is not considered to be contrary to or incon- sistent with a deed, to prove another consideration in addition to the con- sideration expressed. Sect. £.] to vary or discharge Written Instruments. 557 Hardwicke has held, that where no consideration is expressed injhe deed, a party, claiming the benefit of a trust under the deed, may prove a valuable consideration. (1) In a case of settlement also, where the question was, whether a settlement had been gained by the purchase of an estate within the statute 9 G. 1 c. 7. s. 5., parol evidence was ad- judged to be admissible, to shew, that the parties, after having agreed upon twenty-eight pounds as the purchase money, (which was the consideration expressed in the deed of con- veyance,) made a subsequent unwritten agreement before the execution of the deed, that the consideration should be in- creased to thirty pounds, and that the latter sum was actually paid. (2) Here the object of the proposed evidence was not to contradict the indenture, but to ascertain an independent collateral fact, namely, whether thirty pounds had been bond Jide paid as a consideration for the purchase of the estate, upon which fact the settlement would depend. The general rule is. that a party to a deed will be pre- 2. Proof of eluded from s hewing a condi tion o r co nsideration contrary s jd e ration in to wha t is expressed in the deed. An e xcepti on, however, case of fraud, is always to be made, where the consideration has been illegal, as for simony, usury, compounding of felony, &c. (3) In an action of debt upon a bond, the defendant may plead, that the bond was given for an usurious consideration, though a dif- ferent and a legal consideration may be recited. And when fraud is imputed, the party, who complains of the fraud, may prove any consideration, however contrary to the averment in the deed, to shew the fraudulent nature of the transaction. (4) Thus, where the considerations, mentioned in the deed, were ten thousand pounds and natural love and affection, the lords commissioners of the great seal directed an issue, to try, whether natural love and affection formed any part of the con- (1) Peacock v. Monk, 1 Ves. 128. (5) Buckler v. Millerd, 2 Vcntr. (2) R. v. Scammonden, 5 T. R. 107. Collins v. Blantern, 2 Wib 474., cited in Rich v. Jackson, 6 Ves. 347. 337. n. (4) Bull. N.P. 173. 5.58 Of the Admissibility of Parol Evidence, [Ch. 10. sideration, the estates conveyed by the deed being worth thirty thousand pounds. On an appeal, this was confirmed ; and the jury, on the trial of this issue, finding, that natural love and affection constituted no part of the consideration, the deed was afterwards set aside by the Court of Chancery. (1) So, when the question is, whether a person has gained a settle- ment in a parish by purchasing an estate, within the statute 9 G. 1. c. 7. s. 5., evidence is admissible, to shew, that less than thirty pounds was the consideration, though the deed of conveyance may express a greater consideration ; for that act of parliament says, that no person shall gain a settlement, &c. by virtue of any purchase, unless the consideration for such purchase shall amount to the sum of thirty pounds bona fde paid. (2) And for the purpose of setting aside a will on the ground of fraud, parol evidence may be given of what passed at the time of the testator's signing, and what the tes- tator said ; as in the case of Doe on the demise of Small v. Allen (3), where it was proved, that the testator, at the time of the execution, asked, whether the contents of the will were the same as those of a former will, the answer to which was in the affirmative, when in fact the contents were different. So, where indentures or other writings are not available in evi- dence, unless the consideration paid or contracted for is truly stated, it may be proved, that a greater sum than is mentioned was actually paid, or that the writing does not contain the whole of the agreement, but that some of the terms of the agreement were omitted, for the purpose of evading the pro- visions of the stamp acts. In these and similar cases, the general reason against admitting parol evidence will not apply ; the danger is, not that the admission of such evidence would introduce fraud or uncertainty, but that fraud would be assisted by its exclusion, the whole object of the evidence being to expose and defeat a secret fraud. (1) Filmer v. Gott, 4 Bro. Pari. (2) R. v. Mattingley, 2 T. R. 12. C. 234. 2d. edit. R. v. Olney, 1 Maule & Selw.387. (3) s T. R. 147. Sect. 2.] to vary or discharge Written Instruments. 559 But although a par t y, who impeaches a deed for fr aud, may prove a differe nt conside ration, the p arty , charged w ith the fraud, will not be all owed t o ^roy^any^other^ consideration, in support of t he instrument. Thus, where a bill was filed to set aside, as fraudulent, a conveyance, expressed to be made in consideration of an annuity, and on the part of the defendants it was objected, that the grantor of the estate had often de- clared, " he would rather that his kinsman, one of the defend- ants, should have the estate in consideration of this annuity, than any other person for a more valuable consideration, and that he was willing to give the premises to his kinsman ;" the Master of the Rolls, after stating, that the deed and the answer had put the defence on another ground, declared, that it would be of mischievous consequence, and liable to the danger of perjury, which the statute of frauds intended to prevent, to suffer parol evidence to prove blood and kindred to have been the consideration of this conveyance. (1) As a deed takes effect from the time of delivery, not from 3. Proof o( the time of the date, it may be proved to have been delivered & e ™f r J °j-r either before or after the day, when it purports to have been ferent time, made. In an action of debt upon a bond, the plaintiff may declare on a bond bearing date on a certain day, and prove the delivery on another day (2) ; or may state in his pleading, that the deed was indented, made, and concluded, on a dif- ferent day, from that on which the deed itself professes to have been indented and concluded. (3) Extrinsic evidence may sometimes be admitted to establish 4 - Pr <>of oC . , , , ., , , iiT customary a customary right between a landlord and tenant, though such right, not ex- customary right is not expressed in the deed or lease, pro- [" e gj Sed m vided that it is not inconsistent with any of the stipulations. Thus, it may be shewn, that a heriot is due by custom on the death of a tenant for life, though not expressed in the lease. (4) (1) Clarkson v. Hanway, 2 P. (5) Stone v. Bale, 3 Lev. 348. Wins. 203. 2 Schoal. & Lef. 501. Hall v. Cazenove, 4 East, 477. (2) Gocklard's case, 2 Rep. 4. I>. (4) Per Cur. in White v. Sayer, Palm, 211. 5t)0 Of the Admissibility of Parol Evidence, [Ch. 10. And a lessee by deed may be entitled to an away-going crop by the custom of the country, though no such right is reserved by the deed. This was determined in the case of Wiggles- worth v. Dallison ( 1 ), which was an action of trespass for cutting down corn, which the plaintiff claimed as his away- going crop after the expiration of a lease by deed. The jury found the existence of the custom ; and it was afterwards moved, in arrest of judgment, that such a custom was repug- nant to the deed ; and to that effect a case was cited, which had been determined ten years before by Mr. Justice Yates. But the Court of King's Bench held, that the custom was not repug- nant. They considered such a customary right as conse- quential to the taking, in the same manner as a heriot may be due by custom, though not mentioned in the grant or lease. The right was entirely collateral, and not excluded by the deed, which contained no stipulation whatever applicable to the subject. But where the lease contains a covenant, which in express terms, or by plain and necessary implication, excludes the customary right, there the benefit of the custom is waved, and cannot be claimed consistently with the stipulations of the lease. (2) 5. Evidence A demise of lands by deed, to commence from Michaelmas- not admissible j must be understood to be from New Michaelmas, since the to vary the . time of hold- act of Parliament for altering the stile ; unless there is some re- ference in the deed to a prior holdin g from Old Michaelmas* to shew what the parties intended by using general ly tli ejerm Michaelmas-day. The general term, Michaelmas being thus fixed by law to mean New Michaelmas, and nothing appear- ing in the deed, from which a different use of the term can be presumed, no parol evidence can be received to explain the time of holding stated in the deed. (3) But i f the holdin g has (1) 1 Doug. 201. This judgment (3) Doe dem. Spicer, v. Lea, 11 was affirmed in the Exchequer East, 512. In this case, the tenant Chamber. The case ef Senior v. first held from Old Michaelmas by Armitage, Holt, N. P. C. 197., is parol, then took a lease by deed from another instance. Michaelmas, and, after the expiration (2) Webb v. Plummer, 2 Barn, of that lease, held on without any & Aid. 746. new agreement. mg. Sect. 2. ] to vari/ or discharge Written Instruments. 561 been fro m Mic haelmas-day to Michaelmas-day, or from Lady- day to Lady-day, under ajraro/ lease, and no evidence is pro- duced, on the part of the plaintiff, to shew, whether the parties intended the New Lady-day or the Old, in such a case evidence is ad missible, on the part of the defendant, of the custom and usage in the country, that such holdings are always understood to be from Old Lady-day. ( 1 ) And in the case of old parol tenancies from year to year, where the time of entry cannot be ascertained, and where the receipts of rent have been general, such evidence seems not unreasonable. Policies of insurance are within the saine_ rule, and cannot Policies of in- be contradicted or varied by any written agreement made by charter-nar- the parties before the time of signing the policy, Thus, in an tics. early case, where, in an action on a policy of insurance from Archangel to Leghorn, the defendant attempted to shew, that the agreement before the subscription of the policy was, that the adventure should begin only from the Downs, the Court would not admit the evidence. (2) Lord Chief Justice Pem- berton in that case said, that policies were sacred things, and that a merchant should no more be allowed to go from what he had subscribed in them, than he who subscribes a bill of exchange, payable at such a day, shall be allowed to go from it, and say, it was agreed to be on condition, &c, when it may be that the bill had been negotiated; for though neither of them are specialties, they are of great credit, and much for the support and advantage of trade. The same rule of course applies to charter-parties. In a case where a ship was chartered (1) Such evidence was admitted Trin. Term. 1821, which warrants by Lord Kenvon, in the case of the position in the text. The Court Fin-ley dem. Mayor of Canterbury v. of King's Bench made a distinction, Wood, 1 Esp. 198., cited by counsel in tin: latter case, between leases by in Doe v. Lea, 1 1 £ast,3 1 2." Upon its deed and lea^'N by parol. being cited, the Court asked, whether ('-') Kaines v. Knightly, Skin. 54. the lease was by deed. The report S. C, referred to in Bates v. Grab- does not state that fact. This case ham, J Salk. 444., but mis-stated, of Fnrlcv v. Wood, was cited, and Weston v. Ernes, 1 Taunt 115. Uhde approved of by the Court of King's v. Walters, 5 Campb. 16. Bench, in Due dem. Hall v. Benson, VOL. I. <> o note. £88 Of the AdmissibiUty of Parol Evidence, [Ch. 10. \o wait for convoy at Portsmouth, Lord Kenyon would not suffer a parol agreement to be set up on the other side to sub- stitute Corunna for Portsmouth. ( 1 ) Promissory in an action on a promissory note or bill of exchange, the defendant will not be allowed to give evidence of an agreement between him and the plaintiff, at the time of making the note, that it should be renewed, and that payment should not be de- manded on its becoming due. (2) Nor is parol evidence ad- missible to shew, that a note, purporting to be payable on demand, was intended by the parties to be payable only on a contingency (3) ; or that a note, payable on a certain day, was intended to be payable on some other day. (4?) That the note was given on an illegal consideration, may certainly be proved, for a reason before mentioned (5) ; but no parol evidence can be received inconsistent with the terms of the note. The usage in a public office, from which the note or bill issues, will not be allowed to control the legal import of the instrument. (6) jeamen s Contract for In the case of contracts of hir ing a lso, betweenjnasters of ships and seamen, (though they are directed by statute to be in writing, under a penalty to be inflicted on the master, and it has not been decided that they are void, if unwritten,) still, when once reduced into writing, they cannot be va ried Of added to by parol. Thus, it was ruled in the Court of Common Pleas, that a mate in a slave-ship could not, on the ground of a verbal promise, claim the perquisite of the price of a negro slave beyond the wages due to him by certain written articles of agreement, executed between the master, officers, and crew. (7) (1) Leslie v. De la Torre, cited (4) Free v. Hawkins, 1 Moore, 21 East, 5S3. Rep. C. P. 555. 8 Taunt. 92. S. C (2) Hoarc v. Graham, 3 Campb. (5) Sec ante, p. 557. 57. Hogs v. Snaith, 1 Taunt. 547. (<>') Hogg v. SnaitH, I Taunt. 517. (3) Rawson v. Walker, 1 Starkie, (7) Whin- v. Wilson, 2 Bos. & Pull. N. P. C. 561. YVoodhridge v. IKS. Spooner, 3 Barn. & Aid. -25~. 18 Sect. 2.] to van/ or discharge Written Instruments. 569 However, it has been long determined by a variety of cases, Usage of mer- that mercantile contracts, such as policies o f i nsurance, charter - plain mercan- parties, and others of a like nature, are to be construed tile contracts. conformably with the usage and custom of merchants. On mercantile contracts relating to insurance, said Lord Hard- wicke in a case before him, courts of law examine and hear witnesses, as to the usage and understanding of merchants conversant therein ; for they have a style peculiar to them- selves, which is short, yet is understood by them, and must be the rule of construction. (1) Thus, where an insurance was on a ship from London to the East Indies, warranted to depart with convoy, the Court held, that this clause of warranty must be construed according to the usage among merchants ; that is, from such place where convoys are to be had, as from the Downs. (2) So, where the insurance is on goods till landed, and the defence is, that the plaintiff has been guilty of unreasonable delay in landing, the question can only be decided by knowing the usual practice of the trade, with which every underwriter is supposed to be acquainted, whether the practice has been recently or long established. (3) Jt has indeed been doubted by Judges of the highest autho- rity, whether the practice of admitting such evidence has not been carried to an inconvenient length. In the late case of Anderson v. Pitcher (4), Lord Eldon C. J. expressed himself in the following terms : " It is now too late to say, that this warranty is not to be expounded with due regard to the usage of trade. Perhaps it is to be lamented, that, in policies of insurance, parties should not be left to express their own (l) l Vcs. 4',. S.C (3) 6 T.R. .--jo. o 3 >0'6 Of the Admissibility of Parol Evidence, [Ch. 10. Agreements -within the statute of frauds. whole year. So if the plaintiff in this case could have proved any usage, that persons in the situation of this mate are entitled to wages in proportion to the time they served, the plaintiff might have recovered according to that usage. But if this is to depend altogether on the terms of the contract itself, the plaintiff cannot recover any thing." The same rule applies to all such written agreements, as are required by the statute of frauds to be in writing. They cannot be contradicted, or added to, or substantially varied by parol evidence (1 ) ; such evidence would defeat the statute, and introduce that uncertainty, which it was the object of the legislature as far as possible to suppress. Where the rent for a house was specified in a written agreement to be twenty-six pounds a year, and the landlord, in an action for use and oc- cupation, proposed to shew by parol evidence, that the tenant had also agreed to pay the ground-rent, the Court refused to admit the evidence. (2)* So, where a tenant, having paid the land tax, brought an action to recover it back from his landlord, and gave in evidence a written memorandum of agreement in the plaintiff's hand-writing, which specified the rent and terms, but was silent respecting the payment of taxes, the defendant offered parol evidence, that, previously (l) "Binstead v. Coleman. Bunb. 65. Parteriche v. Powlet, 2 Atk. 583. Meres v. Ansell, 5 Wils. 275. Wain v. Warlters, 5 East, 10. Hope v. Atkins, 1 Price, 143. Bartlett v. Pickersgill, l Cox, Ch. C. 15. (2) Preston v. Merceau, 2 Black. 12-19. * In the case of Preston v. Merceau, above cited, Mr. Justice Blackstone after stating, that the Court could neither alter the rent nor the term, the two things expressed in the agreement, is reported to have added, "that, with respect to collateral matters, it might be different; the plaintiff might shew, who was to put the house in repair, or the like, concerning which nothing is said." But this opinion is not consistent with the prin- ciple established in Meres v. Ansel (5 Wils. 275.), Rich v. Jackson (4 Bro. Ch.C. 515.), Powell v. Edmunds (12 East, 6.), and several other cases above mentioned, which plainly shew, that parol evidence is not admissible either to vary, or to add to, the terms of the written agreement. To add a new term, or to define what was before indefinite, is in effect to make a material variation. Sect. 2. J to vary or discharge Written Instruments. to the drawing up of the memorandum, it had been men- tioned and was understood by the parties, that the rent was to be paid clear of all taxes : this evidence was re- jected, and the Court of Common Pleas afterwards, on a motion for a rule to shew cause, why the verdict should not be set aside, adjudged the evidence to be inadmissible, and re- fused the rule. (1) Upon the same principle, the verbal declarations of an auctioneer at the time of sale are not admissible in evidence for the purpose of varying, or adding to, or explaining the print ed conditions of s alg^ (2) Thus, where the conditions described only the number and kind of timber trees to be sold by lot, but said nothing as to the weight of the timber, the defendant, in an action for not completing his purchase according to the conditions, was not allowed to prove, • that the auctioneer at the sale had warranted the quantity of timber to amount to a certain weight, and the Court of King's Bench was of opinion, that this evidence had been properly rejected. (3) Lord Ellenborough said, " the purchaser ought to have had it reduced into writing at the time, if the representation, then made as to the quantity, swayed him to bid for the lot. If the parol evidence were admissible in this case, in what instance might not a party by parol testimony superadd any term to a written agreement, — which would be setting aside all written contracts, and rendering them of no effect. There is no doubt, that the warranty, as to the quantity of timber, would vary the agreement contained in the written conditions of sale." When a contract is made for the sale of goods, jnid the bargain has been reduced into writing, pursuant to the 17th section of the statute of frauds, p arol evidence would not be (1) Rich. v. Jackson, 4 Bro. Ch. 15 Ves. 5l6. Clowes v. I Ti 'Vinson, C. 515. 6 Ves. 354. n. S. C. i Ves. & Beam. 524. Winch v. (2) Gunnis v. Erhart, l H. Bl. Winchester, 1 Ve?. & Beam. 378. 5*p. Jtnkinboti v. Pepys, cited Ogilvic v. Fbljatribe, 5 MerivaVe, 55. '5 Vsh. 330. Ilif^inson v. Clowes, ,,") Powell v. Edmund:-,, lj East, <>. o o 1 568 Of the Admissibility ofTarol Evidence, [Ch. 10* admitted to shew, that the parties agree d to vary the qu antity ^Tgoods to be delivered. But^ the rule is different with re- spect to the time of delivery, or the particular mode of de- livery, which are not essential parts of the contract, but are frequently expressed in the memorandum, together with the quantity and the price of the goods, in order the more easily to carry the contract into execution ; proof of a verb al agree- ment has, therefore, been allowed tp prolong the time^Jimited in a written contract, for the delivery of a certain quantity of barley (1); on the ground, that it was only a continuance of the original contract, and a forbearance on the part of the plaintiff for a longer time. And in a very late case, where the question was, whether, after a part-delivery of goods, which by a written contract were to be delivered at fixed times, a verbal agree- ment, to extend the time for the delivery of the remainder, was good, the Court of King's Bench held, that it was good (2); for this was not a parol variation of the contract, but what had been done was only in performance of the original contract : the parties agreed to a substitution of other days, instead of those originally specified for its performance, but still the con- tract remained. Parol evidence is also admissible to shew that a written contract, purporting to be made between A. and B., as seller and buyer, was in fact made by B. not on his own account, but as agent for a third person. (3) Contracts By the rule of law, independently of the statute of frauds , the statute of Pgroj, evidence cannot be^j*eceiyed to contradict a written frauds. agreement.; the written instrument must be considered as con- taining the true agreement between the parties, and as furnish- ing better evidence than any which can be supplied by parol. (4) The reason assigned by Lord Coke against admitting parol evidence to contradict the terms of a deed, is very general, and applies to the case of a written agreement, though writing (1) Warren v. Stagg, ruled by (3) Wilson v. Hart, 7 Taunt. 295. ; Buller J., cited in 5 TAi. 591. l Moore, C. P. 45. S. C. (2) Cuff v. Penn, l Maule & (4) 2 Atk. 385. Sayer, 189. 2 Selw. 21. Bro. Ch. C. SI 9. 7 Vcs. -.MS- 4 Taunt. 7S(). Sect. 2*1 to vary or discharge Written Instruments. o('){) may not have been absolutely necessary. " It would be in- convenient," he says, " that matters in writing, made on con- sideration, and which finally import the certain truth of the agreement of the parties, should be controlled by an averment of the parties, to be proved by the uncertain testimony of slip- pery memory." (1) Thus, where there has been a contract in writing for the sale of goods, specifying the quantity and the price, neither of the contracting parties would be allowed to give evidence of conversations previous to, or contemporaneous with the bargain, for the purpose of proving that the price was to be different, or that a different quantity was to be delivered ; for this evidence would directly contradict the written memo- randum, which must be considered as expressing the final in- tention and understanding of the' parties at the time of the contract. For the same reason, if the time of carrying away the goods is not expressed in the agreement, in which case a reasonable time is allowed, evidence will not be admitted to shew, that the purchaser verbally agreed to carry them away immediately after the purchase. (2) But if it were not necessary in the fi rst instance to have the bargain reduced into writing, evidence of conversations subse- quent to the ti me of making the agreeme nt woul d probably be admitted^to shew that the parties agreed afterwards to vary the contract, or add some new stipulation. Here the written agreement, so far as it purports to express the true meaning of the parties, that is, down to the time of its being concluded, is not in any manner contradicted or impugned ; but from the proposed evidence it would appear, that they afterwards varied, or added to, the contract; which is not inconsistent with any thing contained in the original agreement. Lord Iiardwicke (1)5 Rep. 26. dence, that the defendant agreed to (2) Greaves v. Aslilin, 3 Campb. be liable lor all accidents. It does 426. See Jefferey v. Walton, 1 not appear from the report, whether Starkie, N. P. C. 267., where, in an the written memorandum was signed action for not taking proper care of by the defendant ; if it was not sign- a horse, which the defendant had ed, it cannot be considered as evi- hired, the time of hiring and the price dence of the agreement. See Ingram were proved by a written memoran- v. Lea, 2 Campb. 521. dum,and it was proved by parol evi- 570 Of the Admissibility of Parol Evidence, [Ch. 10. is reported to have said in a case before him (1), that " to add any thing to an agreement in writing, by admitting parol evi- dence, which would affect land, is not only contrary to the statute of frauds, but to the rule of common law, before that statute was in being." It is not, however, expressly stated in the report of the case before Lord Hardwicke, whether the circumstance, to which the parol evidence related, was pre- vious or subsequent to the signing of the agreement ; but it seems rather probable, from the nature of the case, that it was previous. Proof of col- Though an ambiguity, apparent on the face of a written lutcrul iscts to . a shew inten- instrument, cannot be explained by extrinsic evidence, yet tion. where a question arises as to the g enera l j ntention ^of the parties, concerning which the instrument is n ot decis ive, it has been held, thatTproof oT independent facts_c ollateral to the instrument may be properly admitted. Thus, in the case of King v. Laindon (2), on a question between two parishes respecting the settlement of a pauper, where it appeared that the pauper agreed to serve a person three years, to learn the business of a carpenter, and evidence was admitted at the sessions, that, at the time of making this agreement, the pauper agreed also to give a sum of money as a premium to be taught the trade ; that he paid the money, and that he was not to be employed, nor was he employed, in any other work than that of a carpenter ; the Court of King's Bench held, that the evidence was properly admitted, as it was not offered to contradict the written agreement, but to ascertain an inde- pendent fact collateral to the written instrument, in order to explain the intention of the parties, the instrument being in some measure equivocal. It does not distinctly appear from the report, whether the fact alluded to was the verbal agree- ment, (by which the pauper agreed to pay a premium, and stipulated that he was to do only carpenter's work,) or only the payment of a certain sum of money by the pauper to (1) Parteriche v. Powlet, 2 Atk. (2) 8 T. R. 379. And see 14 "84. Sec Clinan v. Cooke, l Schoal. Ves. 170. & Lef. 3.5. Sect. 2.] to vary or discharge Written Instruments. 571 the master at the time, when the agreement was made. But from the opinions expressed by the Court, in which the evi- dence of the verbal agreement was not adverted to, it may be inferred, that the latter fact alone was judged to be admissible. Lord Kenyon said, " The evidence was offered to ascertain an independent fact, and I think it was properly received in evidence. That being so, the case appears to be shortly this : in consideration of three guineas paid by the pauper, the master undertook to teach him the business of a carpenter, and the pauper was to serve three years." Mr. Justice Lawrence expressed himself nearly in the same words ; and Mr. Justice Le Blanc concurred in opinion with the Court, that the parol evidence was admissible, as evidence of a fact collateral to the writte n instru ment. ( 1 ) A deed cannot be discharged or revoked by parol ; for Paro1 a g ree - & J * ments dis- every contract or agreement, says Lord Coke, ought to be charged by dissolved by matter of as high a nature as the first deed; P a '° • nihil tarn conveniens est naturali aquitati, quam unwnquod- que dissolvi eo ligamine, quo ligatum est. (2) This reason is applied by Lord Coke only to agreements by specialty. But it appears to be generally understood, that executory_agree men ts, in writing, not under seal, may before breach_be_djscharged aiid_abandoiied_ byL^-iaihseqiigni underwritten agreement, as well in cases where t he original contract is required by the statute of frauds to be in writing, as where writing is un necessary. Agreements, not by specialty, whether writ- ten or unwritten, are classed on the same level, and denominated agreements by parol ; there is no such third class recognised by the law of England as contracts in writing not under seal ; if they are merely— written, and not specialties, they are called parol (or, more properly, simple) contracts. (3) It follows, therefore, that to admit (l) See also 14 East, .544. 44. a. Braddick v. Thompson, 8 East, ('-') 5 Rep 26. a. 9 Rep. 79. 1>. 544. 3 Lev. 234. Blake's case, 6 Rep. (3) Rami v. Hughes, 7 T. R. 550. ii. •>7~ Of the Admissibility of Parol Evidence, [Ch. 10. evidence of an unwritten agreement, for the purpose of shewing ail abandonment or discharge of a previous written agreement, would not be to dissolve the agreement by matter of an inferior nature. Xor does the statute of frauds contain any provision respecting the dissolution of agreements ; it prescribes the manner of revoking wills, and in many cases makes a written memorandum necessary in order to establish and enforce agreements, but, as to the discharge or abandon- ment of executory agreements, the statute is entirely silent, leaving the case as it stood at common law. The 1 7th section enacts, in certain cases, that " a contract for the sale of goods shall not be allowed to be good, unless some note or memo- randum, in writing, of the bargain shall be made and signed," &c. ; but an agreement to wave that contract, before breach, is not a contract for the sale of goods, and may therefore be binding, though not reduced into writing. So, the fourth section enacts, that " no action shall be brought upon any contract or sale of lands, &c, or any interest in or concerning them, unless the agreement, upon which the action shall be brought, or some memorandum or note thereof, shall be in writing," &c. ; this is very different from enacting, that all contracts or agreements concerning land shall be in writing, terms so general and comprehensive, that, if they had been introduced into the act, they might be considered as including an agreement for the waver of a purchase-contract, as well as the original agreement itself; the section only provides, " that no action shall be brought upon any contract or sale of lands" Sec, but it does not proceed to enact, in case an action is brought, and the defence set up is a dissolution and abandon- ment of the agreement, that some note or written memorandum is also necessary to give effect and validity to such subsequent agreement. On a bill filed in a court of equity for the specific .per- formance of a written agreement, it appears to be the belter opinion, that the defendant may hisist, that the agjeeinent has been since discharged merely ^ /arol between the Sect. £.] to vary or discharge Written Instruments. "v*' parties. (1) In the case of* Buckhouse and Crosby ( L 2), in- deed, where a bill was filed for the specific performance of a contract for the sale of an estate, and the defendant insisted that the contract had been discharged by parol, in support of which the case of Gonian v. Salisbury was cited as an authority, Lord Hardwicke is reported to have de- clared, that, " though he would not say, that a contract in writing could not be waved by parol, yet he should expect in such a case a very clear proof, and the proof in the ease before him he thought very insufficient to discharge a contract in writing ;" Lord Hardwicke then observed, that the sta- tute of frauds requires, " that all contracts and agreements concerning land should be in writing (3), and that an agree- ment to wave a purchase-contract is as much an agreement concerning land as the original contract ; however, there was not any occasion then to determine the point." * And in the case of Bell v. Howard (4), Lord Hardwicke, after noticing an objection on the part of the defendant, against decreeing an execution of written articles for the sale of an advowson, (l) Goman v. Salisbury, 1 Vern. 59. 2 Ves. £99. S. P. i Ves. jim. 240., cited and approved by Sir J. 404. S. P. 17 Ves. 556. Strange, in Legal v. Miller, 2 Ves. (2) Eq. Cas. Ab. 32. 299., and in Pitcairne v. Ogbourne, (.3) This is not quite correct. Vide 2 Ves. 576., and cited by Lord Chan- supra, p. ."72. cellor Redesdale in 1 Schoal. & Lef. (4) 9 Mod. 302. * In this case of Bnckhouse and Crossbv, the waver was not between the purchaser and vender, but between a former and a subsequent purchaser. The material facts of the case will be found to be, that A., seised of lands in fee-simple, mortgaged them to the defendant, and afterwards authorised his attorney to sell the estate, who sold it by parol agreement to the plain- tiff; A. being informed of this, wrote to the plaintiff, acquainting him, that he accepted the purchase-money : afterwards A. by letter offered the estate; for the same money to a third person, who agreed with A. for the purchase on behalf of the defendant, and accordingly A. by indenture conveyed the premises to the defendant in consideration of 500 guineas then paid. Be- fore this conveyance, C, who treated for the purchase on behalf of the de- fendants, had notice of the plaintiff's title, but, being examined as witness for the defendant, swore that, before the conveyance was executed to him, the plaintiff agreed, that all prior contracts between him and A. should be void, and that it should be referred to A., whether the plaintiff or the de- fendant should he the purchaser, and that A., being written to, gate the preference to the defendant. 57* Of the Admissibility of Parol Evidence, [Ch. 10. (namely, that the plaintiff' had waved the articles,) is reported to have said, " it was certain, an interest in land could not be parted with, or waved, by naked parol without writing;" but added, " that articles may by parol be so far waved, that, if the party come into a court of equity to have a spe- cific execution of them, such parol-waver will rebut the equity which the party before had, and pi'event the court from exe- cuting them specifically." But in the last case on this sub- ject ( 1 ), where the plaintiff' prayed a specific performance of an agreement for a lease, under which the plaintiff had taken possession, and afterwards, as the defendant stated in his an- swer, the parties mutually abandoned the terms of the written agreement, and made another agreement by parol, the Master of the Rolls, observing upon the argument for the defendant, " that the agreement was waved, and that a written agree- ment may be so far waved by parol, that the Court will refuse the interposition of its equitable jurisdiction to enforce it," said, that, as he conceived there was not in the case before him any waver within the meaning of the dicta or the decisions upon the subject, it was not necessary for him to give any precise opinion upon the point ; " but," he added, " as at present advised, I incline to think, upon the doctrine of this coui't, such would be the effect of a parol waver clearly and satisfactorily proved. The waver, spoken of in the cases, is an entire abandonment and dissolution of the contract, restor- ing the parties to their former situation. No such thing was for a moment in the contemplation of the parties. All that they at any time meant, was to add to, or modify, the terms of the original agreement." The bill was — accor d i ngly -tbs- - mi s sod , but witho wVeoste. (l) Price v. Dyer, 17 Ves. 356. 365. See also 9 Ves. 250. Sect. 5.] in Courts of Equity. 5y\5 Sect. III. Of the Bide in Courts of Equity, respecting the Admissibility of Parol Evidence. It would far exceed the proper limits of this treatise, to en- quire into the rules observed by courts of equity, respecting the admissibility of parol evidence, on subjects within their peculiar jurisdiction. Such an inquiry would be long and laborious; and the multitude of cases, which it would be necessary to cite, would, after all, be seldom wanted in the business of courts of common law. The only purpose of entering at all upon this subject, is with a view to mention some points very nearly connected with those in the last section. The rules of evidence, in courts of equity are, in general, General rule, the same as in courts of common la w ; although, in the ap- plication of those rules, diversities must necessarily arise from the different modes of proceeding in the two jurisdictions. (1) It is a general principle, therefore, established in the former courts, no less than in the latter, that parol evidence of the intention of the parties is not admissible to vary or add to the terms of a written agreement. (2) If the agreement is cer- tain, explained in writing, and signed by the parties, that binds them : if it is not certain, and parol evidence is neces- sary to prove what the terms were, to admit such evidence would effectually break in upon the statute of frauds and intro- duce all the mischiefs, inconvenience, and uncertainty, which the statute was designed to prevent. (3) In the case of Rich v. Jackson (4), therefore, on a bill for specific performance, the Court of Chancery gave the same judgment, against the admissibility of parol evidence, to vary a written contract, as (1) 2 Merivale, 464. Ch. (J. 388. 1 Ves. jun. 402. S. C (2) Fell v. Chamberlain, '2 Dick- Jackson v. Cator, 5 Ves. 688. ens, 4*4. Harev. Shearwood, l Ves. (3) Buller J., Brbdio v. St. Paul, jun. 241. Jordan v. Sawkins, 3 Bro. i Ves. jun. .'53. (4) ti Ves. 334. 11. :r ' 1 ' Of the Admissibility of Parol Evidence, [Ch. 10. liad been previously given by the Court of Common Pleas in an action between the same parties. " The question," said Lord Rosslyn in that case, " is, whether, in equity any more than at law, such evidence ought to be admitted ; whether there is any distinction in a court of equity, where a party comes to enforce a written^ agreement, by obtaining a more formal instrument, and to add, in doing that, a term not ex- pressed in the written agreement , and of such a nature as to bear against the written agreement ? 1 have looked into all the cases, and cannot find, that this court has ever taken upon itself, in executing a written agreement by a specific perform- ance, to add to it, by any circumstance that parol evidence could introduce." There are certain exceptions to this general rule, the prin- ciple of which will be briefly considered in the present section. First, it will be inquired, in what cases a dtfendarit may prove by parol evidence a variation in n written jagreem ent, cont rary to the intention of the party; secondly, whether a plain tiffimag produce such evidence. Some cases will then be mentioned, in whi ch extrinsic evid ence has been admitted, to rectify mis- takes in deeds, and for the purpose of raising trusts in wills. Rule with re- 1. When a court of equity is called upon to exercise its part v charge d P ec ^ inar jurisdiction by decreeing a specific performance, the party charged is admitted to shew, that under the cir- cumstances the plaintiff is not entitled to have the agreement specifically performed. (1) The admission of such evidence, as matter of defence, is very frequent ; it is used to rebut an equity. The defendant says, " The agreement, which you seek, is not the agreement which 1 meant to enter into;" and then lie is let in to prove fraud or mistake (2) : for the Court will not grant a decree for specific performance, unless it is satisfied, that, under all the circumstances, it is equitable to give more relief, than the plaintiff is entitled to at law. (1) 7 Ves. 2M>. (*) Lord Redesdale, 1 Schoal. & Let'. 3£>. Sect. 3.] in Courts of Equity. 577 The statute of frauds has not altered the situation of a defendant, against whom a specific performance is prayed ; and he m ay_gi_ve the same evidence now, which he might have given before. ( 1 ) The words of the statute are, that " no person shall be charged upon any contract, or sale of lands, &c, unless the agreement, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised." No person, then, can be charged with the execution of an agreement, who has not, either by himself or his agent, signed a written agreement : but the statute does not say, that, if a written agreement is signed, the same exception to it may not be taken as before the statute. Now before the statute, if a bill had been brought for specific performance, and it had appeared that the agreement had been prepared contrary to the intent of the defendant, he might have said, " That is not the agree- ment meant to have been signed." Such a case is left by the statute, as it was before ; the statute does not say that a written agreement shall bind, but that an unwritten agreement shall not bind. (2) The general principle, to be deduced from the various authorities on this 'subject, appears to be, that a defendant, in answer to a bill for a specific performance, may suggest, and prove by parol evidence, that, by reason of fraud, surprise, or mistake, the written instrument does not correctly and truly express the agreement, but that there is an omission or inser- tion of a term, or some material variation, contrary to the intention and understanding of the parties. (3) The defendant may be admitted also to prove by parol evidence, that, after signing the written agreement, the par- (l) 14 Ves. 524. 6 Ves. 328. Woollaui v. Hearn, (2^ Lord Redesdale's judgment 7 Ves. 211. Clarke v. Grant, 14 in the case of Clinan v. Cooke, Ves. 524. Ranisbottom v. Gosden, 1 Schoal. & Lef. 39. l Ves. & Beam. 1 65. Winch v. (3) Joyncs v. Stathain, 3 Atk. 588. Winchester, 1 Ves. & Beam. 375. Marquis of Tuwnsend v. Stangroom, j VOL. I. Pl« ,v;- Of the AilmmihiliUj of Parol Evidence, [Ch. 10. ties made a verbal agreement varying the former ; provided those variations have been so acted upon, that the original agreement can no longer be enforced without a fraud upon the defendant. Thus, in a case where there was a written agreement for the lease of a house at the annual rent of 32/. r and that the owner of the house should put it in repair: it was afterwards discovered, that the house was not worth re- pairing, and without any alteration of the agreement the house was in consequence pulled down with the consent of the tenant, who was apprised of the great expence, which the landlord must necessarily have incurred in making the repairs; the tenant then made a verbal agreement to add 8/. per annum to the 32/., provided the house should be rebuilt; and, on a bill brought by the tenant for a specific performance of the lease, on the foot of the written agreement to pay 32/. rent, the defendant in his answer set up the parol agreement. (1) Now here the original agreement was unexceptionable, but the execution of it under the new circumstances would have been a fraud upon the landlord; the landlord having rebuilt instead of repairing the house, and the tenant having agreed to pay an additional rent in consideration of the additional expence. The situation of the parties was therefore materially altered. But variations, verbally agreed upon, are not sufficient to pre- vent the execution of a written agreement, where the ^ situa tion of the parties in all other respects remains unaltered^ 2) Rule with 2 « Whether a plaintiff in equity, on a bill for the specific respect to the performance of a written agreement, can in any case be plaintiff in l . . , . ° ' . J equity. admitted to prove, that some terms or the agreement have been omitted or varied by fraud, mistake, or surprise, and that the agreement is different from what the parties intended ; and whether, on such a case being distinctly proved, the plaintiff can obtain a decree for a specific performance of the agreement in its rectified form, is a much larger and more (\) Legal v. Miller, 2 Ves. 29'J., fs") 17 Ves. 3(M., and sec Oraerod cited 6 Ves. 3G(»'. h.; and 17 Ves. t. Havdman, 5 Ves. 722. 564. Sect, o.] in Courts of Equity. difficult question, and one on which it is not easy to reconcile all the authorities. In the cases of Lord Irnham v. Child (l), and Lord Portmore v. Morris (2), where the plaintiff* filed a bill to redeem an annuity, and the question was, whether parol evidence could be admitted to shew, that the parties intended the annuity to be redeemable, but did not insert in the deed a clause to that effect, supposing that it would make the transaction usurious * ; Lord Thurlow in the one case, and Lord Kenyon in the other, thought it clear, that if the clause had been omitted by^fraudf j)r if the agreement had been varied b y_J}rtud, the evidence would be admissible. Lord Thurlow, in the former case, after saying, that the rule of evidence is not subverted, if there is clear proof of frauds added, — " Then as to mistake or accident, suppose it were a clear thing, that one agreement was intended, and that by accident it was extended further; but there is no such case in the book ; if admitted to be a mistake, the Court would not overturn the rule of equity by varying the deed, but it would be an equity dehors the deed. Then it should be proved as much to the satisfaction of the Court, as if it were admitted." In another part of his judgment Lord Thurlow says, " It is necessary to see the statement of the bill; if it states, that it was agreed, that the clause for redemption should not be inserted, they cannot read the evidence ; but if it is stated, that it was intended to insert the clause, but that it was sup- pressed by fraud, I cannot refuse to hear evidence read to (1) 1 Bro. Ch. Cm. (2) 2 Bro. Ch. C. 21!). * Lord Eldon has observed on these cases («), that they proceed on an indisputably clear principle, that the parties did not mean to insert in the agreement a provision for redemption, because they agreed that it would be usurious; and they desired the Court to do, not what they intended, for the insertion of that provision was directly contrary to that intention; but they desired to be put in the same situation, as if they had been better informed and consequently had a contrary intention. The answer is, they admit it was not to be in the deed; and why was the Court to insert it, where two risks had occurred to the parties, the danger of usury, and the danger of trusting to the honour of the party? (a) c, Ves. 332. P P 2 »SQ Of the Admissibility of Parol Evidence, [Ch. 10, establish the rule of equity. They are at liberty to read evidence to prove such fraud, as will make a ground in equity." Thi s doctrine re specting the proprie ty of rec eiving^ parol evidence, on the part of the ^laintijf, under circumstances of ciaxrfraud, appe ars to have been __ admitted in other modern c ases. ( I) The difficulty has generally been in carrying the principle into practice, and in ascertaining what constitutes a fraud. In the case of Pember v. Mathers (2), Lord Thurlow allowed the plaintiff, on a bill for specific performance, to give parol evidence of a promise by the defendant under the following circumstances. The bill was filed by the original lessees of a leasehold estate against an assignee of the lease, on his parol undertaking to indemnify the plaintiff against all rents and covenants, to be paid or kept on the part of the lessee, and to execute a bond for such an indemnity. The assign- ment had been made by a sale by auction ; and the condi- tions of sale did not stipulate the indemnity ; but it rested only on parol evidence. This evidence was objected to as in- admissible, on the ground that, where the parties have en- tered into a written agreement, no parol evidence could be admitted to increase or diminish such agreement. Lord Thurlow said, " The rule is right ; but where the objection (to the omission of an article) was formally made, and pro- mised by the other party to be rectified, it comes among the string of cases, where it is considered as a fraud upon the rule of law." As some doubt arose, whether the evidence was sufficient to establish the parol undertaking to indemnify, en- tered into by the defendants, Lord Thurlow directed an issue to be tried, whether such promise was made on the day of the execution of the assignment; and, this being found in the af- firmative, the plaintiff had a decree for a specific performance. In speaking, however, of the case of Pember v. Mathers, the late Master of the Rolls appears to have entertained some (1) See Marquis of Townsend v. (2; l Bro. Ch. C. 5i Stansroom, o Ves, 55b Sect. 3. 2 in Courts of Equity. 581 doubt, how far it would be proper to go the length of the doc- trine there laid down, or to decree a specific performance on the ground of such a promise. ( 1 ) It d oes not appear from any reported case, that the plaintiff' has been allowed to give parol evidenc e, vary ing a written agreement, on the ground of mistake or surprise. In the case of Joynes v. Statham (2), indeed, where, on a bill for the speci- fic performance of an agreement for the lease of a house at a certain rent, the defendant was admitted to prove by parol evidence, that the agreement was for rent clear of all taxes, Lord Chancellor Hardwicke, after observing that " the de- fendant had a right to insist, either on account of an omission, mistake, or fraud, that the plaintiff should not have a specific performance," is reported to have added, — " Suppose the defendant had been the plaintiff, and had brought a bill for the specific performance of the agreement, I do not see, but that he might have been allowed the benefit of disclosing this to the Court; because it was an agreement executory only, and as in leases there are always cove- nants relating to taxes, the master will enquire, what the agreement was as to taxes ; and therefore the proof, offered here, is not a variation of the agreement, but is explanatory only of what those taxes were." Lord Redesdale in a very late case (3), commenting on this passage, observed, " That the words do not appear to import any thing positive ;" and with respect to the case, which Lord Hardwicke conceived might possibly be made, where even a plaintiff^ might be admitted to shew an omission in a written instrument as well on the ground of mistake as of fraud*, added, that he could find no decision except the contrary way. (1) Sec 14 Vcs. 524. (.-) Clinan v. Cooke, l Schonl. & ('_>) 3 Atk. 388. Let'. 39. See also 4 Bro. Ch. C. 518. 6 Veti. 535. n. ; and 7 Vcs. 220. * The words of Lord Redesdale, in the report, are as follow: — "There seems to have been something of a floating idea in the mind oT Lord llard- i I 582 Of the Admissibility of Parol Evidence, [Ch. 10 In the case of the Marquis of TWnsend v. Stangroom (1), Lord Eldon, after observi ng, " that it w as_com|3etent to a court of equity (for the purpose of enabling it 'to_deter mine , whether it will specifically execute an agreement,) to receive evidence of the^circumstances und er w hic h_ it was obtained," added, " and I will not say, that there are no cases, in which it may be received to enable the Court to recti/}/ a written agreement upon surprise or mistake, as well as fraud : proper irrefragable evidence, as clearly satisfactory, that there has been mistake or surprise, as, in the other case, that there has been fraud. I agree, that those producing evidence of mis- take or surprise, either to rectify an agreement, or calling upon the Court to refuse a specific performance, undertake a case of great difficulty ; but it does hot follow, that it is there- fore incompetent to prove the actual existence of it by evi- dence." A specific performance was in this case sought, with a variation intended to be introduced by parol. And Lord Eldon stated, " he would not say, that, upon the evi- dence without the answer, he should not have had so much doubt, whether he ought not to rectify the agreement, as to take more time to consider, whether the bill should be dis- missed ; but the evidence must be taken, due regard being had to the answer (2) ; and the Court is not to decide upon the allegation as to the probability against the answer." The bill was accordingly dismissed, but without costs. The later case of Woollam v. Hearn (3), determined by the Master of the Rolls on great consideration, sets the doc- trine of the courts of equity on this subject in a very distinct and clear point of view. The plaintiff there filed a bill for the specific performance of an agreement for a lease; the (1) 6 Vcs 35S. (.") 7 Vcs. 211. (2) And see 1 Bro. Ch. C. 92. 5 Bro. Ch. C. 16S. l Ves. jun. 241. vvicke, that by possibility a case might be made, in which even a plaintiff might be admitted to shew an omission either by vaslake or fraud. How- ever I can find no decision except the contrary way." 19 Sect. 3.] in Courts of Equity. 583 bill stated, that the rent of 73/. 105., specified in the agree- ment, was inserted by mistake, or with some unfair view; the real agreement being, that the plaintiff was to have the lease upon the same rent, as the defendant paid to his lessor, and that he the defendant did not pay more than 60/. The defendant in his answer admitted, he might have said, that the plaintiff should have the lease upon the same terms, not meaning the same rent, but upon terms on the whole equally advantageous ; insisting, that as he had laid out a great deal of money, the plaintiff would upon the whole have as good a bargain. The plaintiff offered parol evidence to prove, that he was to have it on the same terms as the defendant had it, and to shew, that nothing could be meant by the expression but the same rent ; nothing being in discussion between them but the amount of rent. The question was, whether this evi- dence was admissible. The Master of the Rolls, in giving judgment, said, that " by the rule of law, independent of the statute of frauds, parol evidence could not be received to con- tradict a written agreement. To admit it for the purpose of proving, that the written instrument does not contain the real agreement, would be the same as receiving it for every pur- pose. It was for the purpose of shutting out that enquiry, that the rule of law was adopted. Though the written instru- ment does not contain the terms, it must in contemplation of law be taken to contain the agreement, as furnishing better evidence, than any that parol can supply. If this had been a bill brought by the defendant, for a specific performance," added the Master of the Rolls, " I should have been bound by the decisions to admit the parol evidence, and to refuse a specific performance. But this evidence is offered, not for the purpose of resisting, but of obtaining a decree ; first, to falsify the written agreement, and then to substitute in its place a parol agreement, to be executed by the Court. Think- ing as I do, that the statute has been already too much broken in upon by supposed equitable exceptions, I shall not go far- ther in receiving and giving effect to parol evidence, than I am forced by precedent. There is no case, in which the 584 Of the Admissibility of Parol Evidence, \C\\. 10. Court has gone the length now desired. But two cases (1) are produced, in which, it is said, there is an intimation from Lord Hardwicke to that effect. Upon this, it might be suf- ficient to say, it was not decided. But it is evident from the manner, in which that great Judge qualifies his own doubts, that he thought it impossible to maintain such a proposition, as the plaintiff is driven to maintain. In Walker v. Walker, it is to be observed, first, that the parol evidence was not offered for the purpose of contradicting any thing in the writ- ten agreement. It was admitted, that, as far as it went, it stated the true meaning ; but it was contended by the defend- ant, that there was another collateral agreement, which the plaintiff ought to execute, before he could have the benefit of the written agreement; it was evidence, too, offered in defence, to resist a decree. The evidence offered in this case," added the Master of the Rolls, concluding his judgment, " is to vary an agreement in a material part ; and having varied it, to procure it to be executed in another form. There is no- thing to shew, that this ought to be done." The proposed evidence was accordingly rejected ; and the bill dismissed, without costs. Rule, in case Where a written agreemenUias been varied by parol, and of part-per- there has been such a part-performance of the parol" v ariat ion, iormance. — — c c — — c as would have procure d it to be specifically exeaUed, pr ovided it had formed a part of the origina l agreement, the plaintiff, in that case, will be admitted to give evidence of such subse- quent unwritten variation. As to what constitutes a part- performance, Lord Redesdale, in a late case (2), has laid down the following rule, that " nothing is to be consi- dered as a part-performance, which does not put the party into a situation, that is a fraud upon him, unless the agree- ment is performed ; for instance, if upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement. \\) Walker v. Walker, 2 Atk. 08. (2) Clinan v. Cooke, 1 Schoal. k Joynes v. Statham, 5 Atk. 388. Lcf. 41. 14 Ves. 388. Sect. 3.] in Courts of Equity. 585 This is put strongly in the case of Foxcraft v. Lister (1); there the party was let into possession on a parol agreement, and it was said, that he ought not to be liable as a wrong-doer, and to account for the rents and profits, because he entered in pursuance of an agreement. Then for the purpose of defend- ing himself against a charge, which might otherwise be made against him, such evidence was admissible ; and if it was ad- missible for such purpose, there is no reason why it should not be admissible throughout. That," continued Lord Redesdale, " I apprehend to be the ground, on which courts of equity have proceeded, in permitting part-performance of an agree- ment to be a ground for avoiding the statute ; and I take it, therefore, that nothing is to be considered as part-perform- ance, which is not of that nature. Payment of money is not part-performance, for it may b e re paidj and then the parties wilLbe just as they_were before, especially if repaid with i n- terest. __ But the great reason, why part-payment does not take such an agreement out of the statute, is, that the statute has said, that in another case, namely, with respect to goods, it shall operate as a part-performance ; and the Courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the legislature said it should bind in the case of goods, and were silent as to the case of lands, they meant it should not bind in the case of lands." 3. Mistakes and misapprehensions, in the drawers of deeds Mistakes in or of written agreements, are a subject for relief in courts of rented 001 " equity, and may be rectified according to the true intention of the parties. (2) Thus, on a bill to rectify a mistake in a policy of insurance, which the plaintiff* suggested to have been made too general and contrary to the intention of the parties, Lord Hardwicke said (3), there could be no doubt, but that the (1) 2 Vcrn. 45G. 553. See also Motteux v. Lond. (2) 2 Atk. 205. Assur. Comp. 1 Atk. 545. Thomas (5) Henkle v. Roy. Ex Assur. v. Fraser, 5 Ves. 599. 10 Ves. 227. Comp. 1 Ves. 518., cited C Ves. J8() Of the Admissibility of Parol Evidence, [Ch. 10. Court of Chancery had jurisdiction to relieve in respect of a plain mistake in contracts in writing, as well as against fraud in contracts ; so that if reduced into writing, contrary to the intention of the parties, on proper proof that would be recti- fied. " This," as Lord Eldon has observed (1), "is loose in one sense, as it leaves to every Judge to say? whether the proof is that proper proof, which ought to satisfy him." The principal evidence on the part of the plaintiff, in this case, was the deposition of a witness, who had transacted the busi- ness for the Company (the defendants), but this evidence ap- peared to the Court not sufficiently certain to be relied upon. Lord Hardwicke observed, that the proof in such a case ought to be the strongest possible ; and as it did not suffi- ciently appear to the Court, that the policy had been framed contrary to the intention and real agreement of the parties, the bill was dismissed. In the case of Baker v. Paine, on a bill filed for an account under a written agreement, the mi- nutes and calculations, which had been previously made by the parties, were admitted in evidence, in order to prove a mistake, made in the agreement by the person employed to draw it. (2) And in a variety of cases, where settlements have been drawn by mistake, contrary to the instruction of the parties, the mistake has been rectified by courts of equity, and the settlement made conformably to the instructions. (3) The Court, however, will expect full and satisfactory evidence of the mistake and misapprehension of the party's intention, be- fore it will alter a settlement. In one case, where the parol evidence of the attorney, who had received verbal instruc- tions, was offered, the Court held, that as nothing appeared in writing under the hands of the parties to shew their in- tention, the settlement could not be altered (4) ; and in another case, Sir Thomas Clarke is reported to have said, that he (1)6 Ves. 533. 596. n. Barstow v. Kilvington, (2) Baker v. Paine, l Ves. 457., 5 Ves. 59. Butt v. Barlow, 5 Bro. cited in Rich v. Jackson, 6 Ves. Ch. C. 451. 356. n. (4) Harwooil v. Wallis, cited S (3) Randal v. Randal, 2 P. Wins. Ves. 195. 469. Jenkins v. Quinchant, 5 Ves. Sect. 3.] in Courts of Equity. 587 did not give a positive opinion as to the head of mistake, but he did not think, the Court had relied on parol evidence only. (1) 4. Provis ions injfrfll^jiave in ce rtain case s been enlarged Trusts raised by parol evide nce, and trusts in equity raised, as against ex- m e( l lutv - editors or other persons claiming an interest under wills, where it has appeared, that the testator intended to make a furthejr_prqyisJon in his will, but omitted to insert it on re- ceiving a promise, that notwithstanding such omission, his intention should be carried int o effect. Thus, in the case of Oldham v. Litchford (2), a witness was allowed to prove, that the defendant, who was the testator's executor and de- visee of his real estate, had promised the testator, that he would pay the annuity bequeathed to the plaintiff, and that otherwise the testator would have charged the real estate with the payment. And on this evidence, it was decreed at the Rolls, that the real estate should be charged with the an- nuity; and this decree was afterwards affirmed, on appeal to the Court of Chancery. In a later case (3), where a bill was filed against an executor and residuary legatee, to have a bequest enlarged, it appeared from a paper written by the defendant himself, that the testator, a few days be- fore his death, had mentioned to him what he had bequeathed to the plaintiff, and that it was his wish, that he should have a larger sum ; it was further proved, that after the testator's death, when the paper was shewn to the defendant, he promised to perform the same according to the testator's request ; another witness proved, that the testator mentioned to him, in the presence of the defendant, the annuity, which he had bequeathed to the plaintiff, and that it was his desire he should have a larger annuity, mentioning the sum ; that the testator then requested the defendant to see such annuity paid to the plaintiff, and the defendant promised it (1) l Dickens. 29.5. And see Sher- (3) Barrow v. Grccnougli, .7 Ves. gold v. Boone, 13 Ves. .373. 376. 152. (2) 2 Vera. 506. 588 Of the Admissibility of Parol Evidence, 8$c. [Ch. 10. should be done, as if it had been expressed in the will : and, lastly, that the witness and the defendant desired the testator to send for some person to draw a new will, which the testator refused to do, saying, he would leave it to the defendant's generosity. " Upon this evidence," said the Master of the Rolls, " the question is, whether, by reposing that trust in the defendant, the testator was not prevented from making a new will. The defendant ought to have toldjhim, that if he did not put it in his will, he would not do it. Instead of ^hat, he promised to do it ; upon which the testator refused to make a new will. I am quite relieved," added the Master of the Rolls, " from any difficulty as to the statute of frauds. The question is, whether the confidence, that the defendant would perform the trust which he undertook, did not px*event the testator from making a new will." The Court accordingly ordered the defendant to pay the increased sum out of the assets, with costs ; and, if the assets were not sufficient for the costs, that he should pay them personally. THE END OF THE FIRST BOOK. Printed by A. Strahan, Law-Printer to His Majesty, Printers- Street. London. University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. • ** LAW L] UNIVERSITY OF CALK lm LOS ANGt, iiiH!S!iiiSiii EGI0NAL LIBRA - Y FACIL|TY AA 000 850 751